text:
    445 A.2d 189
    COMMONWEALTH of Pennsylvania, Appellant, v. Carl W. GAMARINO.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1981.
    Filed April 30, 1982.
    Stanley R. Geary, Pittsburgh, for appellant.
    John R. Fernán, Ridgway, for appellee.

      Before CERCONE, P. J., and McEWEN and HOFFMAN, JJ.
   PER CURIAM:

The Commonwealth has appealed from an order of the Court of Common Pleas following a trial de novo of a summary offense. Because the order is improper, we cannot reach the merits of the Commonwealth’s contentions. Accordingly, we must vacate the order and remand for proceedings consistent with this opinion.

The order appealed states, inter alia, that “the appeal on the merits is sustained, the charge is dismissed, and [appellee is] discharged.” “As we have held repeatedly, on an appeal from the judgment ... in summary conviction proceedings, the judgment of the Court of Common Pleas should be either ‘guilty’ or ‘not guilty;’ a judgment affirming the justice of the peace, dismissing the appeal, or sustaining the appeal is not sufficient and will be reversed.” Commonwealth v. Carter, 230 Pa.Superior Ct. 401, 402-403, 326 A.2d 530, 531 (1974). Accord, Commonwealth v. Wenyon, 230 Pa.Superior Ct. 342, 343, 326 A.2d 633, 634 (1974); Commonwealth v. Alton, 209 Pa.Superior Ct. 168, 169, 224 A.2d 792, 793 (1966); Commonwealth v. Young, 184 Pa.Superior Ct. 658, 659, 135 A.2d 774, 775 (1957); Commonwealth v. Miller, 173 Pa.Superior Ct. 168, 170, 96 A.2d 153, 154 (1953); County of Allegheny v. Liss, 60 Pa.Commonwealth Ct. 100, 102, 430 A.2d 1033, 1034 (1981). Although the lower court implicitly found the Commonwealth’s case to be deficient in a material respect, “[n]either the order nor the complimenting opinion found [appellee] ‘not guilty’ of the alleged offenseQ” Id., 60 Pa.Cmwlth. at 101, 430 A.2d at 1034. Cf. Commonwealth v. Wenyon, supra (finding of guilt implicit); Commonwealth v. Carter, supra (same). “It is the duty of the court to try the case de novo, to hear the evidence and arguments of counsel, to find the facts and thereupon to enter such judgment as would be warranted under the law and evidence.” Commonwealth v. Miller, supra, 73 Pa.Super.Ct. at 170, 96 A.2d at 154. Only after such a finding may the parties properly exercise their post-trial and appellate rights. See Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981) (holding Pa.R.Crim.P. 1123 applicable to trials of summary cases). Accordingly, we must vacate the order of the court below and remit the record for the entry of an appropriate verdict. If the verdict be not guilty, the court shall order appellee discharged. However, if the verdict be guilty, appellee shall be allowed to file post-trial motions in accordance with rule 1123 and Commonwealth v. Koch, supra. Either party aggrieved by the lower court’s ultimate decision may appeal as allowed by law.

Order vacated and case remanded for proceedings consistent with this opinion.

       Because of our disposition of this case, we do not express any view upon the propriety of the lower court’s post-trial ruling upon appellee’s pretrial motion challenging the underlying complaint and summons. We do note, however, that the lower court should not have reserved judgment upon the motion. See Pa.R.Crim.P. 310 (“Unless otherwise provided in these rules, all pretrial motions shall be determined before trial.”).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    445 A.2d 191
    COMMONWEALTH of Pennsylvania Officer Grabenstein and Officer Nicholson v. David H. PATTERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed April 30, 1982.
    David Harry Patterson, appellant, in pro. per.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

      Before SPAETH, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

On March 12, 1981, appellant was adjudicated guilty of a summary offense after a trial de novo in a court of common pleas. He filed no post-trial motions before taking this appeal. In Commonwealth v. Koch, 288 Pa. Superior Ct. 290, 431 A.2d 1052 (1981), we held that post-trial motions are a prerequisite to preserve issues for appellate review following such a trial de novo. See Pa.R.Crim.P. 1123. However, when no post-trial motions were filed and the adjudication occurred before July 1, 1981, we have remanded to allow appellant to file post-trial motions nunc pro tunc. E.g., Commonwealth v. Cruice, 297 Pa. Superior Ct. 1, 442 A.2d 1183 (1982); Commonwealth v. McNelis, 297 Pa. Superior Ct. 4, 442 A.2d 1184 (1982). Because appellant did not file post-trial motions but was convicted before July 1, 1981, we vacate the judgment of sentence and remand to allow him to file post-trial motions nunc pro tunc. Following the lower court’s ultimate disposition of those motions and entry of a final order, either party aggrieved may appeal as allowed by law.

So ordered.


text:
    445 A.2d 191
    COMMONWEALTH of Pennsylvania, v. Mark BURTON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1982.
    Filed April 30, 1982.

      Mark Burton, appellant, in pro. per.

      Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

Appellant appeals from his convictions on charges of defiant trespass and harassment at a trial de novo, following his convictions on these summary charges before a magistrate. Appellant was sentenced on July 16, 1981, to pay the costs of prosecution and, on each conviction, to 90 days imprisonment to run concurrently, as well as a $250 fine on each conviction. We note that after the date of this sentence and notice of appeal entered the same day, Appellant filed a Motion to Modify Sentence on July 31, 1981. The lower court then vacated the initial sentence on July 31,1981 and imposed a new sentence on August 20, 1981, from which Appellant again appealed.

Appellant alleges, inter alia, that the evidence was insufficient to sustain the verdicts. As we find that Appellant’s convictions were based on insufficient evidence, we vacate both convictions and discharge Appellant.

In reviewing sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth and, drawing the proper inferences favorable to the Commonwealth, determine whether the trier of fact could reasonably have found that all elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981).

The record indicates that Appellant and his female friend, Linda, were quietly engaged in a discussion on the enclosed back porch of the boarding house where Linda rented a room. The back porch was used by all tenants and guests, as well as complainant and his wife, as a common area to enter and leave the house. The complainant landlord had seen them there as he left the house on his way to the store and said nothing. After his return, he approached Linda, who was crying, and inquired as to whether she was all right, to which Linda said yes. Appellant told him their discussion was not any of his business; that he and Linda were discussing a disagreement which had arisen between them the day before. Complainant then asked Appellant to leave, to which Appellant replied that he was not leaving at that moment, because he and Linda were attempting to resolve their differences. Complainant insisted that Appellant leave and when Appellant again refused, complainant went into another room. When complainant returned to the porch, he found his wife near Appellant and complainant’s dog barking. The dog, a large Newfoundland, although chained outside, was able to place himself in a position in the outside doorway of the rear porch while still on his chain, so as to prevent any person from entering or exiting at that point. Complainant’s wife, in his absence, had attempted to push Appellant through the outside porch doorway.

Appellant told the complainant that he was afraid of the dog and, for that reason, would not leave by the back door. Appellant grabbed complainant by the shirt, released his grasp, and then proceeded to run through the house towards the front door of the premises. Complainant followed him and, after unsuccessfully attempting to grab Appellant and physically force him out towards the back porch door, complainant was hit in the mouth by Appellant. Appellant then immediately left via the front door.

The statute concerning defiant trespass states in part: § 3503. Criminal Trespass
(b) A person commits an offense, if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(i) actual communication to the actor; or
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders.

Appellant clearly had the right to remain on the porch, a common area, to visit Linda. Complainant landlord communicated to him that he wished Appellant to leave. However, the facts in the instant case do not indicate that this communication amounted to a notice against trespass, absent any communication to Appellant that he had done anything wrong. Complainant simply told Appellant to leave.

Also, despite Appellant’s initial emotional reaction to complainant’s request and his arguing concerning his right to remain, he did opt for leaving soon after. However, due to his reasonable fear of the dog, Appellant headed for the front door. We therefore find Appellant’s running to the front door to have not been an unexpected action, as no other reasonable alternative for exit was presented to him. Under these specific circumstances, we find that the evidence was insufficient to prove Appellant either had knowledge that he was not privileged to remain on the back porch or had received actual communication of a notice against trespass. Therefore, the Commonwealth has failed to meet its burden of proof of each element of the crime beyond a reasonable doubt. Commonwealth v. Harris, 263 Pa.Super.Ct. 110, 397 A.2d 424 (1979).

Appellant’s other conviction involves the statute regarding harassment which states:

§ 2709. Harassment
A person commits a summary offense when, with intent to harass, annoy or alarm another person:
(1) he strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same; or
(2) he follows a person in or about a public place or places; or
(3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

On the instant facts, we find no proof béyond a reasonable doubt of any intent to harass, annoy or alarm another. Appellant fully believed he had the right to be on the porch with Linda. No valid reason was given to him to leave. When told to leave, Appellant did argue briefly against the request, but then determined on his own accord to leave. He was prevented from leaving as a result of complainant’s insistence that he exit past the barking dog. It is clear that Appellant did not follow any person, as per subsection (2) of the statute, nor did he engage in a course of conduct or repeatedly commit any act which alarmed or seriously annoyed any other person and which. served no legitimate purpose, as per subsection (3). Viewing the evidence in the light most favorable to the Commonwealth, we are unable to infer that the Appellant, in striking the complainant while seeking to exit the premises, had formed any intention to harass, annoy or alarm the complainant.

Judgment of sentence is reversed on both convictions and appellant discharged.

      . 18 Pa.C.S.A. § 3503(b).

      . Id., § 2709.

      . Pa.R.A.P. 1701(b)(3) allows the lower court to grant reconsideration of a sentence in which an appeal has already been taken if certain prerequisites have been met. See Pa.R.A.P. 1701 (b)(3)(i) and (ii). The record suggests that Appellant’s Motion to Modify sentence was filed out of time, on July 31, 1981. However, the transcript of sentencing dated July 16, 1981, indicates that the judge “reserve[d] the right, within thirty days, to make an order of restitution.” We need not address the propriety of the vacation of the original sentence and the subsequent resentencing because of our determination of the sufficiency of evidence issue.

      . The testimony from complainant indicates that the dog weighed at least 150 pounds.


author: MONTEMURO, Judge:

text:
    445 A.2d 499
    Arden E. MELZER v. Lynn L. Melzer WITSBERGER. Appeal of Arden E. MELZER Appeal of Lynn L. Melzer WITSBERGER
    at No. 163.
    at No. 210.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1981.
    Filed Feb. 5, 1982.
    Reargument Denied May 27, 1982.

      Harry J. Cancelmi, Jr., Waynesburg, for Melzer.
    James H. McCune, Washington, for Witsberger.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

The instant action began as a Complaint and Petition, for Custody of two children, Andrea and Ethan. The petition was filed by the father on January 22, 1980, in the Court of Common Pleas of Greene County, Pennsylvania.

An action in the same matter had been filed previously by the mother in her own jurisdiction of Ohio County, West Virginia, on January 11, 1980. On January 23, 1980, after a hearing with both parents represented, the father appearing specially to contest jurisdiction, the West Virginia Circuit Court awarded custody to the mother.

The Pennsylvania Court, in response to the January 22, 1980, filing in this state, scheduled a custody hearing, and, upon Preliminary Objection of the mother, scheduled another hearing for February 22,1980, to determine jurisdiction in the matter.

During the lunch break at this hearing, the parents appeared to be able to resolve their differences, and an Agreed Order was issued under the aegis of the Greene County Court, providing for custody that in essence gave each parent primary custody in alternate years. This Agreed Order was altered by stipulation of the parties on March 7, 1980. The issue of support was retained in Greene County by stipulation and was to be decided by the court if the parents were unable to agree.

In June, the parents were again specifically ordered to discuss the question of support. However, before that issue was resolved, either privately or before the court, the father, on July 16, 1980, petitioned again for custody.

The court interviewed the children on July 23, 1980, with attorneys for both parents present, and then scheduled a full hearing upon receipt of the mother’s Petition for Custody. This hearing was held on August 14, 1980.

The matter was fully litigated, and the lower court weighed the complex matters concerning the best interests of the children.

The order of the court resulting from the decision of the trial judge on the record below determined that Greene County did have jurisdiction to decide the matter and gave custody to the father. Additionally, the order awarded certain child support sums to the mother about which there is no discussion in the record. Both parents appealed from the order; the mother appealed from the finding of jurisdiction and determination of custody; the father appealed from the support award.

This court affirms the finding of the court below as to its exercise of jurisdiction, although by a different process of reasoning. We also affirm the award of primary custody to the father as determined by the discretion of the lower court. As to the support, the order is vacated as of date of filing of this opinion, without prejudice to the mother’s right to apply to the court of Greene County for whatever relief in the way of child support she may, in fact, require and prove.

FACTUAL HISTORY

The parties to this action resided in Greene County together from 1972 until 1976. In the spring of 1976 the father left the marital home and lived in neighboring Allegheny County while the mother and children remained in the family home. In August of 1978, the mother and children moved to West Virginia, and the father moved back into the residence in Greene County.

The children had been in the custody of their mother since 1976, and remained in her custody in West Virginia from August of 1978 until January 1980. At this time, the father informed the mother by telephone after a visitation that he would not return the children as previously had been their custom.

The mother made one abortive foray into Greene County to physically recover the children, and then promptly filed suit in the West Virginia Circuit Court. The father appeared specially to contest jurisdiction. The case was heard and a preliminary injunction and preliminary determination were issued by that court in favor of the mother. Appeal was filed, and proceedings in West Virginia were stayed as of February 19, 1980.

The instant action was by that date scheduled in Pennsylvania, and the mother in her turn appeared specially to contest jurisdiction. The hearing was begun, but no determination was made at that time because over luncheon break the parties discussed possible compromise, and in the afternoon the parents stipulated to an Agreement which appeared to settle the matter.

This Agreed Order was an elaborate document which unarguably modified the orders of the West Virginia court as well as the informal established custody arrangements observed by the parents prior to January 1980. By its terms, this Order defined itself as a settlement of the outstanding actions in West Virginia and provided for their discontinuance. The Order stated itself to be:

... a full settlement of all issues, cases and proceedings pending in this court and in this Commonwealth and in the Court of Ohio County and in the State of West Virginia . . .,

and it specifically reserved the support issues still outstanding to its own jurisdiction.

The above Order was thereafter modified by Order of March 7,1980, which was also agreed to by stipulation of the parties and provided in pertinent part:

All disputes pertaining to the enforcement, modification, or other proceedings about the custody of Andrea or Ethan_, visitation rights, support, or determination as to the proper venue of such proceedings, shall be submitted to the Greene County Court in (and under the laws of) the Commonwealth of Pennsylvania.

There is an Order of June 2, 1980, on the record which orders the parties to proceed to discussion on child support, but no further information as to this collateral issue appears.

Thereafter, on July 15, 1980, the father petitioned again for primary custody of the children, alleging that the joint custody agreed to on February 22, 1980, was not in the best interests of the children because the children were opposed to the arrangement and because the mother was not careful of their health and safety.

The court did not automatically grant a hearing on the matter, but interviewed the children with counsel present on July 23, 1980.

At this time, Ethan was nine and a half years old and Andrea was fourteen and a half. Ethan definitely preferred to live with his father because:

... I am used to living here. It’s fun. I think the school is better because we work and think more. It’s just a good school.
This school is lots better than any other school. (R. N.T. 55a)

He also did not like his mother’s residence because his older stepbrother always picked on him and teased him.

Andrea was more fluent in expressing her preference. She “shares the same views” with her father and found her stepmother (whose own children are grown and gone from the household) far easier to live with than her step-relatives on her mother’s side. She, too, felt harassed by the older stepbrother and was obviously made nervous and uncomfortable by the stormy relationship between her stepfather and his son.

Their father is a professor who schedules his classes to have time at home, and his wife is also usually home. He prepares breakfast before the children leave for school. If Andrea is ill, there is someone in the house and an immediate check-up with the doctor is provided. In contrast, her mother works full-time and so does her stepfather. If Andrea is ill, she is home alone, and her mother tends to put off visits to the doctor. She makes her own breakfast. The school in Pennsylvania is better and she has more friends there. She would not actually run away from her mother’s home, but she thinks about it. She does believe that both parents love her. (R. N.T. 62a-71a).

After these interviews with the children the trial judge directed counsel for the mother to file her Petition for Custody and scheduled a full hearing on the merits. At the hearing on August 14, 1980, the extraordinarily antagonistic behavior of both parents became apparent. There was no doubt in the mind of the trial judge and, upon review of the record, none in the mind of this court, that the sight of these two professional parents battering doors, brandishing guns, calling police, withholding clothing, and otherwise misbehaving was, to say the least, detrimental to these children.

The counsel for the mother orally requested in court that the case be dismissed on grounds that testimony did not indicate “any substantial change” since the Agreed Order of February 22,1980. (R. N.T. 86a). The court replied at some length:

. . . Sometimes someone needs to say something totally objective ... I sit here and I listen to these types of cases and I keep wondering is human intelligence guiding us to human reason or is this the land again of the barbarians.. . Whether it is this court or the Circuit Court in Ohio County ... it is so immaterial to this court. What is material to this court is that the more of this I hear, finally I know these children need a comforting shelter of some objective judgment . . . not invaded by whim or fancy on the part of either parent.... these are well above average parents, but this circumstance they are creating . . . and I presume unintentionally on their part, but it . . . cannot be continued . . . even as I say that, I think of the overwhelming effort both parents have made but those efforts are not resulting in a proper uniform good for these children. (R. N.T. 87a-88a).

The hearing continued, and the order resulting therefrom was a decision accepting jurisdiction, giving custody to the father and visitation to the mother, and allowing $100 per month in child support from father to mother, with an additional $200 of support due in the two months in which mother had lengthy visitation. We affirm the order of custody and vacate the order for support.

DISCUSSION

Under § 5344(a)(l)(i) of the Child Custody Jurisdiction Act, “home” jurisdiction predominates under ordinary circumstances. This jurisdiction is defined by the Act as:

The state in which the child immediately preceding the time involved lived . .. with a parent . .. for at least six consecutive months ... 42 Pa.C.S.A. § 5343.

The children were living with their mother at the West Virginia address for well over six months prior to the decision of the father to retain them in Pennsylvania after their visitation. West Virginia qualifies as the state of “home” jurisdiction.

The father’s behavior in unilaterally retaining the children against prior custom of the parties was behavior proscribed by the Act. Section 5349(a) discusses the “general rule” where an “initial decree” is concerned. (“Initial decree” is the “first custody decree concerning a particular child.” § 5343). No court order had been entered at that date concerning these children. Therefore, § 5349(a) applies:

If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in conduct intending to benefit his position in a custody hearing, the court may decline to exercise jurisdiction if this is just and proper under the circumstances.

The drafters of the Uniform Act, from which the Pennsylvania provisions were adopted almost verbatim, were careful to warn courts not to accept jurisdiction too easily under § 5344(a)(2), the “significant contacts” jurisdictional base. It is to be read “in the spirit of the legislative purposes” which promote cooperation with other court systems in order to discourage unending parental squabbles and the unilateral removals of children which have proved so harmful in the past. 42 Pa.C.S.A. 5342.

At the time the father filed this action in Pennsylvania, therefore, an action had already been filed on the preferred jurisdictional base in West Virginia, and the father’s self-help in unilaterally deciding to retain the children would have been additional reason for the Greene County Court to decline to accept its possible jurisdiction under § 5344(a)(2), despite its significant contacts with the children.

However, once the case had been filed, the lower court was correct in scheduling a hearing to determine its own jurisdiction in the matter, and it was during the pendency of this litigation as to jurisdiction that the parties came to an agreement between themselves which was accepted by the court below. As noted above, the wording provided that this was to be a “full settlement” of every issue pending in Ohio County as well as in Greene County. Also, as mentioned supra, an addendum to the February order was stipulated to and made a part of that order as of March 7, 1980. This wording specifically provided that “all” disputes as to enforcement or modification of proceedings pertaining to custody of these particular children were to be submitted to the Court of Greene County, Pennsylvania.

Curiously, the opinion of the lower court does not stress the free agreement of the parties to a valid and reasonable jurisdiction, but appears to base its assumption of jurisdiction largely upon the significant contacts the children had with Greene County. The wording of the lower court is misleading when it states that:

... it is not now a matter of which court case was first filed, or where the first order of custody was made, it is only a question of whether the plaintiff in this action has satisfied the requirements of the above section of the Act? [Meaning the “significant contacts” section.]

As seen, supra, the “Significant Contacts” provision is the alternative provision to the preferred “home” jurisdiction and is to be very strictly limited in its construction. Especially where the non-custodial parent has resorted to self-help before approaching the court, refusal of the trial judge to exercise jurisdiction under § 5344(a)(2) would ordinarily be proper.

The Greene County jurisdiction was proper in this instance under § 5344(a)(2) because the parties agreed to its exercise in lieu of another jurisdiction which was also valid under § 5344(a)(1). Once the parties selected this forum, there was no onus on the Pennsylvania court to consider whether it should, under all the circumstances, decline to exercise jurisdiction.

This was not an ancient agreement, nor was it entered into by either parent in ignorance of the bitterness of the battle in which they were joined. The addendum specifically providing for the forum of parental choice was, in fact, entered into after the original Agreed Order had already begun to fail and after the mother had knowledge that the alternating-years of custody arrangement was not acceptable to the children.

The trial judge, faced with a situation in which the parties had agreed upon jurisdiction, but proved incapable of agreement on anything else, found himself with three nominal routes to follow: (1) he could refuse to act and return the case to West Virginia; however, in the face of the recent agreement as to forum, this gesture would have been futile as it would have given rise to a valid appeal; (2) he could accept jurisdiction but refuse to intervene in the agreed custody; however, this course was also futile, since the order had already begun to need patching, and the still-open support matter was also apparently unsolvable by private agreement; or (3) he could accept the whole unenviable job, acknowledge his jurisdiction, and fulfill the letter and the spirit of the Custody Act and the custody case law of this Commonwealth by making a full court adjudication of the best interests of the children. This, in the exercise of his discretion, he elected to do, and we believe he chose the proper course.

The most readily accepted indicia of “changed circumstances” justifying modification of an existing order are lacking here. The housing, schooling, marital status, and incomes of the parents did not change materially in the few months between the original Agreed Order and the modification order entered by the trial judge after full hearing on the matters involved.

What did change materially was the hope of the court, and the parties as well, that any agreement as to custody would be accepted and adhered to by these parents and these children. In view of the working, if not truly amicable, arrangements in force from 1976 to 1980, the court was justifiably optimistic that the matter could be privately settled. The ensuing months made it abundantly clear that this would not be the case. This court cannot but agree with the trial judge that these intelligent and well-intentioned parents were approaching “the land again of the barbarians.” Jurisdiction lay with this court. For the judge to decline to take action for lack of conventional grounds of “changed circumstances” would, under the facts of this particular case, have been an abuse of discretion.

The abiding theme of the Custody Act is that stability of environment for children is vital, that shifting, conflicting custody is harmful. See inter alia § 5342, 5348, 5349. It is likewise hornbook law that the ultimate aim of custody proceedings is a determination of the child’s best interest, physically, intellectually, morally, and spiritually. See, e.g., In re Davis, 237 Pa.Super. 516, 352 A.2d 78 (1975); Commonwealth ex rel. Bordlemay v. Bordlemay, 201 Pa.Super. 435, 193 A.2d 845 (1963).

The trial judge took careful account of the children’s preference and examined with care the other evidence offered by both parties. He found both parents fit and proper. He found the atmosphere of country life and surroundings familiar to the children from babyhood more conducive to the welfare of this particular pair of children. He found the father’s more easy-going approach to life to be temperamentally more comfortable for the children, but also found that the father did not lack discipline.

The judge declined to find one school system intrinsically better than the other, but noted that the children were far more comfortable in the Pennsylvania schools. He also weighed the advantages of a well-liked stepmother at the father’s residence versus the disadvantages of a disruptive step-relative relationship in the mother’s residence. He also noted easier “discourse” with the father, and the odd, but true fact, that the children’s friendships in a rural setting outnumbered those in the urban location.

We have thoroughly reviewed the entire record and find that it supports these findings. The award of primary custody to the father and liberal visitation to the mother was well within the lower court’s discretion and we affirm.

There are, however, no facts set forth in this record to give credence to the provision for support adjudicated as part of the order of August 20, 1980. Support was at various times included in this record as a matter in controversy, and certainly the jurisdiction of the lower court extended to support matters. This was specifically provided for in the Agreed Order of February 22,1980. Although the court below ordered the parties to discuss support by its order of June 2, 1980, no further information on the matter appears. The trial judge may have had informal knowledge as to this matter, but in view of the lack of evidence as to need and ability to pay, we must vacate the provisions of the order of the court below without prejudice to the right of the mother to apply to the Court of Greene County for whatever relief she may, in fact, require during her periods of visitation with the children.

Order affirmed as to custody of children.

Order vacated as to support from date of filing of this opinion.


author: LIPEZ, Judge:

text:
    445 A.2d 506
    Edward LEE v. UNITED STATES PLYWOOD CORPORATION, Appellee, and Ralph Rokeby Johnson as Representative Underwriter of those underwriters at Lloyds subscribing a policy of liability insurance issued to United States Plywood Corporation; Excess Insurance Company; Swiss Union Insurance Company; Orion Insurance Company; River Thames Insurance Company; World Auxiliary Insurance Company; Andrew Weir Insurance Group, Garnishee (re interests of United States Plywood Corporation), Appellee, and Robert E. Lamb, Inc., Appellant, and Employers Mutual Liability Insurance Company of Wisconsin, Garnishee (re the interests of Robert E. Lamb, Inc.), Appellant. Floyd HARGROVE v. UNITED STATES PLYWOOD CORPORATION, Appellee, and Ralph Rokeby Johnson as Representative Underwriter of those underwriters at Lloyds subscribing a policy of liability insurance issued to United States Plywood Corporation; Excess Insurance Company; Swiss Union Insurance Company; Orion Insurance Company; River Thames Insurance Company; World Auxiliary Insurance Company; Andrew Weir Insurance Group, Garnishee (re interests of United States Plywood Corporation), Appellee, and Robert E. Lamb, Inc., Appellant, and Employers Mutual Liability Insurance Company of Wisconsin, Garnishee (re the interests of Robert E. Lamb, Inc.), Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1981.
    Filed March 12, 1982.
    Reargument Denied June 9, 1982.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.

      Kenneth F. DeMarco, Philadelphia, for appellants.
    Charles T. Roessing, Philadelphia, for appellees.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal from a lower court order requiring an employer who had already paid its workmen’s compensation obligations in full to contribute an equal amount towards a joint judgment which had been satisfied by a co-defendant. Since we agree with the employer’s claim that this was contrary to the applicable statutory and case law, we reverse.

Plaintiffs, Floyd Hargrove and Edward Lee, were seriously injured during the course of their employment while working at a warehouse under construction for U. S. Plywood Corporation. They each sued U. S. Plywood and Frommeyer & Company, a sub-contractor. Robert E. Lamb, Inc., the general contractor and plaintiffs’ employer, was subsequently joined by Frommeyer as an additional defendant in both actions.

The actions were later consolidated and a jury trial took place from September 22, 1970, to September 30, 1970. During the trial, but before the jury returned its verdict, plaintiffs’ employer, Lamb, and its insurance carrier negotiated a settlement with plaintiffs whereby they agreed to accept $15,000 ($9,000 from plaintiff Lee and $6,000 from plaintiff Hargrove) in settlement of the potential subrogation interest Lamb and the insurance carrier might have against any recovery made by the plaintiffs against Plywood and Frommeyer. This subrogation interest totaled $45,-491.52 and represented funds which had already been paid to plaintiffs by Lamb and its insurance carrier in the form of medical and wage benefits. Before the jury returned with its verdict, plaintiffs also accepted a settlement offer from Frommeyer in exchange for joint tortfeasor releases which provided for a pro rata reduction with respect to any damages recoverable against any other joint tortfeasor.

All three defendants, Plywood, Frommeyer, and Lamb, were subsequently found negligent. The jury awarded $400,000 to plaintiff Lee and $225,000 to plaintiff Hargrove. Post-trial motions were filed and denied. This court affirmed. Hargrove v. Frommeyer & Company, 229 Pa. Superior Ct. 298, 323 A.2d 300 (1974).

On January 31, 1975, plaintiffs began a garnishment action against Plywood’s insurance carriers. The lower court held that the full amount of the jury award must be borne on a 50/50 basis by the only two defendants who could be held liable in tort, i.e., Plywood and Frommeyer. Lamb was excluded because its liability as plaintiffs’ employer was statutorily limited to the extent of its workmen’s compensation obligations. Since Frommeyer’s contribution had been resolved by the joint tortfeasor release, Plywood was held responsible for V2 the jury’s verdict ($200,000 for plaintiff Lee and $112,500 for plaintiff Hargrove), plus interest and record costs. Then, despite the case law which clearly holds otherwise, the lower court denied Plywood’s request that it receive a credit for the amount of workmen’s compensation benefits already paid to plaintiffs by their employer, Lamb. Instead, the court held that such benefits could be recouped by Plywood in a separate action for contribution against Lamb. Plywood did not appeal this erroneous denial of credit for compensation already paid by Lamb. Instead it paid the judgments against it in full and, some 2lh years later, brought the present action seeking contribution from Lamb in the amount of $45,491.52. Plywood’s petition was granted and the lower court entered the order in question directing contribution. Lamb has appealed.

It is well-settled that, for injuries occurring prior to the 1974 Amendments to the Pennsylvania Workmen’s Compensation Act, a defendant who has been held jointly liable with an additional defendant employer is entitled to a credit for the amount of compensation paid by the employer to the plaintiff. See Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940); Brown v. Dickey, 397 Pa. 454, 155 A.2d 836 (1959); Burke v. Duquesne Light Company, 231 Pa. Superior Ct. 412, 332 A.2d 544 (1974).

The reason for allowing the credit was explained by our Supreme Court in Maio v. Fahs, 339 Pa. at 190, 14 A.2d at 110:

Since compensation is being paid ... it would be manifestly inequitable to permit plaintiff to recover the entire amount of her judgment against the other two defendants or against either of them. Therefore, in the event that she proceeds to enforce the judgment against either or both of the other two defendants, she must not be permitted to collect more than the amount of the judgment with interest, less the amount paid her under the compensation agreement. (Emphasis in original).

It is therefore clear that the lower court erred in its earlier ruling that Plywood was not entitled to such credit. Though that ruling was not appealed, we are not bound by its clearly erroneous interpretation of the law which works a manifest injustice. See Morrow v. Dillard, 580 F.2d 1284 (5th Cir. 1978). While Plywood has paid $45,491.52 more than it should have, this is not justification for requiring Lamb to twice pay its workmen’s compensation obligations as the lower court required. Plywood, here, finds itself in the position of having failed to receive the credit it was otherwise entitled to not because of any action on the part of Lamb, but solely because of its failure to appeal the lower court’s earlier erroneous ruling. Lamb, having already paid its statutory obligations under the Workmen’s Compensation Act, has no further liability. Burke v. Duquesne Light Co., 231 Pa. Superior Ct. at 426, 332 A.2d at 550.

The lower court’s reliance on Kim v. Michigan Ladder Co., 208 F.Supp. 298 (W.D.Pa.1962) is misplaced. There it was held that an additional defendant employer must contribute an amount equal to its compensation liability towards a joint judgment which had been satisfied by a co-defendant. However, in Kim, the employer had not paid any compensation to the injured plaintiff because the plaintiff had failed to pursue his compensation rights within the statute of limitations. Here the employer has already paid its obligation under the Workmen’s Compensation Act in full. It need do no more.

Reversed.

      . Prior to the 1974 Amendments to the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 et seq., even though an employee could not sue his employer in trespass for work related injuries, he could sue a third party who could then join the employer as an additional defendant. The 1974 amendments, with certain exceptions not here relevant, now prohibit such joinder. (Act of December 5, 1974, P.L. 782, No. 263 § 6, 77 P.S. § 481(b)). See Bell v. Koppers Co., Inc., 481 Pa. 454, 457, 392 A.2d 1380, 1382 (1978); Hefferin v. Stempkowski, 247 Pa.Superior Ct. 366, 372 A.2d 869, allocatur refused, 250 Pa.Superior Ct. XLIV (1978).

      . Under applicable provisions of the Pennsylvania Workmen’s Compensation Act, Lamb and its insurance carrier were subrogated to any recovery made by the plaintiffs against third parties to the extent of compensation paid. 77 P.S. § 671. This subrogation interest was only a potential one, however, because if Lamb was subsequently found negligent, either individually or in conjunction with other defendants, it would forfeit its subrogation rights. See Grimm v. O. K. Keckley Co., 555 F.2d 123, 124 (3rd Cir. 1977); Barbieri, Pennsylvania Workmen’s Compensation and Occupational Disease, Vol. 1, § 5.46(6)(a). This agreement between plaintiffs and Lamb was clearly intended for their benefit only gambling on the possible verdicts. It could not affect Plywood’s rights, which included its right to credit for compensation paid by the employer Lamb. See, infra, 299 Pa.Super. at 170, 445 A.2d at 508.

      . The $45,491.52 represented Lamb’s and its insurance carrier’s total obligation under the Workmen’s Compensation Act. ($19,393.00 was paid to Lee and $26,098.52 was paid to Hargrove).

      . See discussion, infra, 299 Pa.Super. at 170, 445 A.2d at 508.

      . Plaintiffs were injured on March 10, 1961.


text:
    445 A.2d 509
    KOIKE AMERICA, INC. v. E M E ENTERPRISES, INC., a Pennsylvania Corporation, and Elliott M. Edelstein, Appellants.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed May 5, 1982.
    Vincent P. Ventomiller, Pittsburgh, for appellants.
    Robert D. Barozzini, Pittsburgh, for appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from an order denying appellants’ motion to dismiss appellee’s amended complaint for failure to file it within the time allowed by a prior order of court. Such an order is interlocutory and not appealable.

The appeal is quashed, and the case is remanded to the trial court for further proceedings. Jurisdiction is relinquished.


author: SPAETH, Judge:

text:
    445 A.2d 509
    COMMONWEALTH of Pennsylvania v. Johnnie S. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1981.
    Filed May 7, 1982.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for criminal conspiracy, robbery, possession of an instrument of crime, and simple assault. Appellant argues that the lower court erred (1) in refusing to suppress his statement; (2) in refusing to excuse for cause two prospective jurors; and (3) in sentencing him for both conspiracy and possession of an instrument of crime. We have concluded that the lower court did not err in refusing to suppress appellant’s statement but that at least one of the two prospective jurors should have been excused for cause. We therefore order a new trial, at which appellant’s statement may be admitted. Because of this disposition, we do not reach appellant’s third argument.

-1-

In arguing that his statement should have been suppressed, appellant says that “[wjhile the police were searching him, one officer asked appellant a question to which appellant made a direct response.” Appellant’s Brief at 11. Before we discuss the merits of this argument, we note that the evidence is in conflict on exactly what appellant replied to the officer’s question, and, indeed, on whether there was a question at all. Appellant himself testified on both direct and cross examination that he could not remember having any conversation with the arresting officers. N.T. 3/27/79, 171, 209. However, one of the officers testified as follows:

Q: How was he arrested?
A: Well, after observing him standing there, we pulled up to the curb, stopped our vehicle, maybe approximately three to four feet from him and I called to him. I said, “Hey Johnnie.” He turned to us and said, “Yes.” At this point, I said, “Don’t move.” At the same time, we were exiting our vehicle. We got out, went over to Mr. Johnson, my partner frisked Mr. Johnson while I kept him covered and I next said to Mr. Johnson, “Is your name Johnnie Johnson?” and his reply was, “No.” At this point my partner proceeded to put the handcuffs on Mr. Johnson. I said to Mr. Johnson, “You are wanted.” He asked me at this point, “What for?” I said, “There is a warrant that says robbery.”
N.T. 3/26/79, 136-137.

If we assume, as appellant seems to do in his brief, that the arresting officer’s version of the arrest is accurate, still, the lower court did not err in refusing appellant’s motion to suppress his reply to the officer. Statements given in response to preliminary questions, such as questions about name and age, are not as a general rule within the purview of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), for at least in most cases, such questions are not intended or expected to elicit an incriminating response, Commonwealth v. Davis, 460 Pa. 37, 331 A.2d 406 (1975), Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974), and the answers are not incriminating or prejudicial to the defendant, Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). Here, both reasons apply. The officers asked appellant his name not to elicit an incriminating response but to determine whether he was the person named in the arrest warrant. Appellant’s response that his name was not Johnnie Johnson was not prejudicial to him, for as appellant admits, “[Rjegardless of his answer, the police were going to take him in, in light of their ‘photographic identification’ and appellant’s affirmative response when addressed as ‘Johnnie.’ ” Appellant’s Brief at 17.

Since appellant’s response was not incriminating, it was not obtained in violation of his right to counsel. United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (right to counsel violated where government deliberately elicited incriminating information from defendant through cellmate). For the same reason, the rule of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), was not violated. Commonwealth v. Rhem, 283 Pa.Superior Ct. 565, 424 A.2d 1345 (1980) (Davenport rule applies by its terms to inculpatory statements). Moreover, Davenport applies only to statements “obtained after arrest but before arraignment.” Commonwealth v. Davenport, supra, 471 Pa. at 286, 370 A.2d at 306. Here, appellant’s response was during, not after, his arrest. N.T. 3/26/79, 136-37, 139.

-2-

A prospective juror should be excused for cause in two situations:

The first is where the prospective juror indicates by his answers that he will not be an impartial juror. . . . The second is where, irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the potential juror has such a close relationship, be it familial, financial, or situational, with any of the parties, counsel, victims or witnesses.
Commonwealth v. Stamm, 286 Pa.Superior Ct. 409, 415-16, 429 A.2d 4, 7 (1981), quoting Commonwealth v. Colon, 223 Pa.Superior Ct. 202, 299 A.2d 326 (1972).

The standard of review differs, depending on which of these two situations is presented. In the first situation, “[M]uch depends upon the answers and demeanor of the potential juror as observed by the trial judge and therefore reversal is appropriate only in case of palpable error.” Commonwealth v. Colon, 223 Pa. Superior Ct. 202, 207, 299 A.2d 326, 328 (1972) (footnote omitted). In the second situation, “[T]he determination is practically one of law and as such is subject to ordinary review.” Id.

Sometimes a case will present the first situation, see Commonwealth v. McBee, 267 Pa.Superior Ct. 49, 405 A.2d 1297 (1979), sometimes the second, see Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978); Commonwealth v. Stamm, 286 Pa.Superior Ct. 409, 429 A.2d 4 (1981); Commonwealth v. Rough, 275 Pa.Superior Ct. 50, 418 A.2d 605 (1980). The two situations, however, are not mutually exclusive, and it is to be expected that some cases will present both situations. Thus a prospective juror may indicate by his answers on voir dire that he will not be impartial—the first situation—and the reason for his attitude may be that he has a particular relationship with someone involved in the case—the second situation. In Commonwealth v. Davis, 282 Pa.Superior Ct. 52, 422 A.2d 671 (1980), this court sitting en banc held that it was error not to ask, in some form, the question, “Have you or any member of your immediate family ever been the victim of a crime?” This question is not about only either the first or the second situation; it may disclose that the case presents both situations.

This case is just such a case as we have been discussing, for it presents both situations. One of the two prospective jurors, Herbert Rubin, indicated by his answers that he would not be impartial and the questioning disclosed that the reason for his attitude was a situational relationship.

Mr. Rubin’s daughter had been the victim of a robbery; the robbers had then raped her. Appellant was on trial for robbery, simple assault, and possession of an instrument of crime. He was charged with having assaulted three persons in the course of the robbery, one of them a woman, whom he had knocked from a barstool and had picked up by the hair, threatening to kill her. The similarity between the violent robbery of his daughter and the violent robbery with which appellant was charged caused Mr. Rubin considerable distress. The record does not disclose just how this distress became manifest, although Mr. Rubin, describing his conduct, said, “I didn’t expect myself to break down, practically.” N.T. 11/20/79, 12.2. A side-bar conference was held, after which the following ensued:

THE COURT: Mr. Rubin, you related to me that—about an incident that occurred to your daughter and during that incident you were emotionally upset, and I was aware of your emotion and that concerns me, so I’m going to ask you that supposing in this case—supposing in this case there would be some evidence like similar to—supposing one of the witnesses would say that this man—this is a hypothetical question, that this man wouldn’t do something to her, sexually, if he didn’t give the money or something of that sort; would that so overwhelm and emote [sic] you that you would be overwhelmed as to your conscience so that you couldn’t be fair to both sides?
MR. RUBIN: Not only in answer to what you said but in thinking over my observation of my own reaction when I related this to you, I didn’t realize how strongly I feel about this and if I consider that, I’m not what I thought I was and trying to be fair and consider the evidence in such a case and—
THE COURT: You believe you would be fair?
MR. RUBIN: I think it would be difficult because I can see how I’m reacting. I didn’t realize how strongly I felt about this.
THE COURT: The charges here are not involving sex at all.
MR. RUBIN: I think just the fact that what happened to her in such an unusual condition, I think also was a robbery but at the last moment this is what the robbers did.
THE COURT: Okay. Now, the fact that that happened in that case, which is certainly unrelated to the evidence in this case, I mean what happened in one instance in another case—on another case under different circumstances doesn’t mean it happened in this case. You are to consider only the evidence in this case.
MR. RUBIN: That’s what I realize and that’s what I thought sitting there before and realizing, thinking about it and realizing how I reacted just relating the incident signifies to me a much stronger—
THE COURT: Will you react to somebody else being molested? Will you react to that?
MR. RUBIN: I think it would bring back to mind the things I imagined happened at the time with my daughter.
THE COURT: Even though I instruct you that that’s not a proper way to deal with it?
MR. RUBIN: I realize that, logically. It should not be so but I could see emotionally, I can see that I don’t have full control in that case, because as I said, 1 didn’t realize how strong it was in relating it to you and I didn’t expect myself to break down, practically.
THE COURT: When it involves your daughter, I can see it, and you’re relating a story involving your daughter but when it involves another person and you’re asked to be a Juror because that’s what we do and—
MR. RUBIN: I realize that. I’m wondering if I am able to do it.
THE COURT: You have to determine that whether the evidence is true in the other case, when you looked at your daughter, you said, well, my, why would my daughter go through this and what happened to your daughter, you can visualize as having happened but here you have to first determine whether it’s true and then if you determine that, then you apply the law.
MR. RUBIN: I see.
THE COURT: So, you see it isn’t every time that somebody says something that it’s true. You have to determine that at first. Can you do that without being so upset as to impair your ability of making fair judgments?
MR. RUBIN: All right. I’ll do that.
THE COURT: You must commit yourself to that endeav- or, and if you have any reservations, we want to hear about it. We can’t have to so emotionally blank because something happens to you that you can’t think, so you can apply yourself in a fair way. I mean, you know yourself best. We all have some emotional feelings about our members of our family. The question is whether that emotional feeling which is unrelated to this matter can overwhelm your faculties so that you could no longer be fair and be objective about a situation that’s unrelated. That’s the question. Can you be fair?
MR. RUBIN: Yes.
THE COURT: In an unrelated matter?
MR. RUBIN: Yes.
THE COURT: I’m going to repeat that again and going to say that supposing the evidence in this case should, for some reason, be that one of the victims may say and he threatened to do something to me sexually if I didn’t give him the money, for some reason, would that so emote you as to overwhelm your faculties that you could no longer be fair?
MR. RUBIN: No. I think I could.
THE COURT: Be fair?
MR. RUBIN: Be fair.
THE COURT: All right. You may take your seat. N.T. 11/20/79, 10.2-15.2 (emphasis supplied).

Not every familial or situational relationship will justify a finding that a prospective juror would be likely not to be impartial. Commonwealth v. Stamm, 286 Pa.Superior Ct. 409, 429 A.2d 4 (1981) (challenge for cause properly denied where prospective juror was aunt of member of district attorney’s staff; the member was not the prosecutor); Commonwealth v. Short, 278 Pa.Superior Ct. 581, 420 A.2d 694 (1980) (challenge for cause properly denied where prospective juror knew of neighbor’s child, not relative, who was victim of similar attack); Commonwealth v. Rough, 275 Pa.Superior Ct. 50, 418 A.2d 605 (1980) (challenge for cause properly denied where prospective juror had talked with neighbor about fact that local man had committed crimes charges); Commonwealth v. Colon, supra (challenge for cause properly denied where prospective juror was policeman with no “real relationship” to the case). Here, however, a member of the prospective juror’s immediate family had been the victim of a similar crime. Although the fact that a prospective juror’s close relationship has been a victim of crime will not result in prejudice in every case, see United States v. Jones, 608 F.2d 1004 (4th Cir. 1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1046, 62 L.Ed.2d 773 (1980) (declining to adopt a per se rule of disqualification where prospective juror related to victim of similar crime), the circumstances of this case are especially compelling. Mr. Rubin vividly demonstrated during voir dire that he would be likely not to be an impartial juror. He not only visibly manifested emotional distress but specifically expressed substantial doubts about his ability to be impartial at least five times. Although he acknowledged that “logically” he could separate the robbery and rape of his daughter from the robbery of appellant’s victims, he added at once that “emotionally, I can see that I don’t have full control.”

Mr. Rubin’s eventual assurance to the court that he would “[b]e fair” did not dispel the force of these admissions. Commonwealth v. McBee, supra, (voir dire shows venireman in murder case whose niece had been murdered had sincere and persistent doubts concerning ability to be fair despite sincere assertion that he would try). This is particularly so in view of the court's questions, which Mr. Rubin may well have understood as suggesting that his proper response, and the response desired by the court, was to say, despite his doubts, that he would be an impartial juror. It is not the court’s function to persuade a prospective juror to put aside doubts expressed, and explained, as earnestly as Mr. Rubin’s were.

We therefore find the court’s refusal to excuse Mr. Rubin for cause an abuse of discretion. This error was not harmless. Where, as here, a defendant is forced to use one of his peremptory challenges to excuse a prospective juror who should have been excused for cause, and then exhausts his peremptories before the jury is seated, a new trial will be granted. Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978) (error to refuse challenge for cause to prospective juror who was a policeman); Commonwealth v. McBee, supra (error to refuse challenge for cause to prospective juror who expressed substantial doubts concerning ability to be impartial).

The judgment of sentence is reversed and the case is remanded for a new trial consistent with this opinion.


author: HESTER, Judge:

text:
    445 A.2d 514
    COMMONWEALTH of Pennsylvania v. Gerald EVERETT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1981.
    Filed May 7, 1982.
    Petition for Allowance of Appeal Denied Aug. 31, 1982.

      Daniel H. Greene, Philadelphia, for appellant.
    Maureen A. Brennan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before HESTER, CAVANAUGH and DISALLE, JJ.
   HESTER, Judge:

On July 18, 1979, the appellant Gerald Everett, was charged with murder, voluntary and involuntary manslaughter, robbery and criminal conspiracy for his participation in the hold-up of a candy store at 16th and Bainbridge Streets in Philadelphia and the shooting death of the store's owner, John Jennings. The Commonwealth later moved for a nolle prosequi of the involuntary manslaughter charge. The appellant was found guilty of all remaining charges except voluntary manslaughter. A post-trial motion for a new trial and in arrest of judgment were denied January 28, 1981; and, on Febrüary 25, 1981, the appellant was sentenced to life imprisonment at the Graterford State Correctional Institute for the murder in the first degree conviction and concurrent sentences of 10 to 20 years for the robbery conviction and 5 to 10 years for the criminal conspiracy conviction. This appeal from the judgment of sentence was filed on February 26, 1981.

Viewed in a light most favorable to the verdict winner, the facts and circumstances unfolded as follows:

On July 17, 1979, at 1:30 p. m., the appellant drove Raymond Gray (nicknamed “Sutan”) and Robert Burgess (nicknamed “Woody”) to the corner of 16th Street and Kater, parked his vehicle facing in a westerly direction on Kater Street and allowed his two passengers to leave the vehicle. Gray and Burgess then entered a small candy store on 16th and Bainbridge.

The storekeeper, Bernard Ferguson, was selling candy to one of the men when the darker-skinned of the two pushed Ferguson’s head to the counter-top and held a gun to his head. The light-skinned assailant then approached the store owner, John Jennings, and aimed a gun at him as well. Jennings grabbed the gun and a struggle ensued between him and the light-skinned assailant. The darker-skinned man ran to the aid of his accomplice and shot twice at Jennings, with the second shot delivering a fatal wound to the chest.

The two men, Gray and Burgess, were then seen running north on 16th Street and turning left (west) on Kater Street. At about that same time, or very shortly thereafter, another eyewitness saw the appellant’s car moving in a westerly direction on Kater Street between 16th and 17th with two men in it and a third man jumping in as the vehicle slowed at the corner of 17th and Kater. After stopping at Gray’s house on Fitzwater Street, the appellant drove both men to Sharon Hill, Pennsylvania. Later that day, after the appellant was interrogated by the Philadelphia police, he was charged with murder, voluntary and involuntary manslaughter, robbery and criminal conspiracy.

In consequence of our review of the court record, written briefs and oral arguments, we affirm the judgment of sentence. We hereby adopt the well-reasoned opinion of the court below; however, we supplement it by addressing two of the arguments raised by the appellant.

The appellant argues, inter alia, that the lower court erred in refusing the appellant’s request for a mistrial after the prosecutor questioned a police witness on re-direct examination regarding the appellant’s failure to disclose the real names of the other two perpetrators to Detective Clark while later disclosing them to Detective Henwood. The appellant maintains that this line of questioning employed by the prosecution was akin to asking the appellant on cross-examination to explain why he chose not to make a complete statement to Detective Clark; and, the appellant concludes, such an inquiry was a violation of the appellant’s right to remain silent without the court or jury drawing inferences of guilt therefrom.

The court opinions cited by the appellant [Commonwealth v. Jones, 229 Pa.Super. 236, 327 A.2d 638 (1974); United States v. Holland, 360 F.Supp. 908 (E.D.Pa.1973); Commonwealth v. Burkett, 211 Pa.Super. 299, 235 A.2d 161 (1967)] hold that a cross examination regarding the accused’s refusal to testify in a prior proceeding is not permissible where the purpose of such interrogation is to promote an inference of guilt. This law emanates from constitutional safeguards of protection from self-incrimination, presumption of innocence and assistance of counsel. The appellant does not mention, however, that Jones, supra, permits the cross-examination of the accused regarding his choice to remain silent at some earlier proceeding where the probative value on the issue of the accused’s credibility outweighs any prejudicial impact on the jury, and where the trial judge determines that the prior silence is inconsistent with the defendant's testimony.

It cannot be said, though, that the appellant remained silent when Detective Clark requested the names of Gray and Burgess. He did disclose their nicknames (“Satan” and “Woody”); therefore, he did not exercise his right to remain completely silent in response to Detective Clark’s request for the identity of the two men. Moreover, we do not believe that the prosecution intended to equate the appellant’s failure to disclose their real names with an incriminating statement; nor do we believe that the jury would necessarily interpret it that way. Rather, it was an attack on his credibility through the use of inconsistent statements given to Detectives Clark and Henwood. We conclude that such questioning of a police witness on direct examination was just as permissible as such questioning of the appellant himself on cross-examination.

The second issue we address is whether the finding of robbery was against the clear weight of the evidence. The appellant argues that a robbery was neither attempted nor completed. He refers to a small portion of the transcript where the store keeper, young Bernard Ferguson, in response to the court’s inquiry, testified that both Gray and Burgess neither demanded nor took any money.

Robbery is defined in 18 Pa.C.S.A. § 3701(a) as follows:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another.
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
(2) An act shall be deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit theft or in flight after the attempt or commission.

We find that the evidence was sufficient to permit the jury to conclude that a felony in the first degree (murder) occurred during the course of an attempted robbery. The statutory provision does not require that the property either be taken or demanded before a conviction of robbery is permissible. An attempt to commit theft can be reasonably inferred from the action taken by Burgess and Gray.

For the reasons set forth herein and in the opinion of the court below, we affirm.

DiSALLE, J., did not participate in the consideration or decision of this case.


author: ROWLEY, Judge:

text:
    445 A.2d 517
    Charles JOHNSON and Ruth Johnson, Appellants, v. KEYSTONE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1982.
    Filed May 7, 1982.

      James Womer, Philadelphia, for appellants.
    Mark Robert Bosniak, Philadelphia, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

This is an appeal from an order dismissing the appellants’ complaint for failure to comply with the so-called “240 Day Rule” and Philadelphia R.Civ.P. 151. The appellants contend that the lower court abused its discretion in entering the order. We vacate and remand.

The procedural history of this case is as follows: Appellants filed their complaint on December 3,1979. An answer, new matter and counterclaim were filed by the appellee on January 16, 1980. Preliminary objections to the answer, new matter and counterclaim were filed by the appellants on January 18, 1980.

On January 15,1980, the appellee sent the appellants a set of supplemental interrogatories. In a letter dated February 12, 1980, appellants’ counsel notified the appellee that the appellants would not answer the supplemental interrogatories on the ground that the information being sought was as readily available to the appellee as it was to the appellants.

On June 16,1980, the appellee filed a motion for sanctions seeking to compel appellants to answer the supplemental interrogatories. An answer to the motion was filed on the same day.

On June 19,1980, the trial court entered an order granting in part and denying in part appellants’ preliminary objections. The appellee filed an amended answer, new matter and counterclaim on July 1, 1980. Appellants filed a reply on July 3, 1980.

On August 6, 1980, the trial court ordered the appellants to answer the supplemental interrogatories within 30 days. The appellants’ answers were filed on August 12, 1980.

A hearing was held on November 10, 1980, following notice, before a “court master”, to determine whether the appellants’ complaint should be dismissed for their failure to file either a certificate of readiness or a petition for an extension of time on or before August 31, 1980, as required by the “240 Day Rule”. There is no record of that “hearing” and the master did not file a report with the court.

On December 23, 1980, the trial court entered an order dismissing the appellants’ complaint stating only that appellants had “failed to show good cause for not filing a Certificate of Readiness or a Petition to Extend. . . . ” It is from this order that appellants filed their appeal. On February 4, 1981 the trial court filed a “memorandum opinion”, containing one sentence, and stating again that the appellants’ complaint had been dismissed on December 23,1980 for their failure “to demonstrate good cause” for not complying with the 240 day rule “as determined by a Court Master” at the hearing on November 10, 1980.

On January 22, 1981, after their appeal was filed in this court, appellants petitioned the trial court for reconsideration of its order of December 23, 1980. The basis of their petition was that they had made a good faith effort to comply with the 240 Day Rule. In support of the petition, appellants set forth the following allegations: (1) The appellants’ counsel was not able to begin the process of compliance with the 240 Day Rule until August of 1980 because he was almost continuously involved in trial work from September of 1979 to August of 1980; (2) The appellants’ counsel had almost 400 Certificates of Readiness or Petitions for Extensions to file in August of 1980; (3) The hours for filing certificates or petitions in the Prothonotary’s Office for Philadelphia County in August of 1980 were limited to between 7:00 A.M. to 9:00 A.M. and between 5:00 P.M. and 7:00 P.M.; (4) As a result of the large number of certificates and petitions being filed in Philadelphia County in August of 1980, the Prothonotary’s Office was in a state of “utter confusion”; (5) The certificate of readiness for this case was prepared and taken to the Prothonotary’s Office before the August 31, 1980 deadline but for some unknown reason, it was never filed; (6) In the week after the deadline for filing the certificate had passed, appellants’ counsel attempted to file the certificate, however, the Prothonotary refused to accept it; and (7) This evidence was presented at the Master’s Hearing in this matter.

In opposition to appellants’ petition for reconsideration, appellee alleged that no evidence in support of appellants’ allegations was introduced at the master’s hearing. The appellee alleges that the only evidence presented by appellants at the November 10, 1980 hearing was that the certificate was not filed because of an oversight by appellants’ counsel.

The trial court denied the petition for reconsideration on February 20, 1981, on the basis that appellants’ appeal from the Order of December 23, 1980 was pending before this court.

The Supreme Court’s order of November 19, 1979 provided:

“(1) Prompt Certification for Trial
“(a) In all civil action commenced on or before December 31, 1979, any and all documents required to signify that the case is ready for trial must be filed on or before August 31, 1980. In civil actions commenced on or after January 1, 1980, such documents must be filed not more than 240 days after the action is commenced.
“(b) Prior to the expiration of the period limited in Paragraph (a), any party may apply for extension of such period. The application must be served on all other parties and must set forth the grounds for the request and the length of the extension required. The court may grant the extension only upon finding good cause. The order of extension, if any, shall set forth the new date for cértifying trial readiness, which may be sooner than that requested, but may not be later.
“(c) If the documents are not filed within the time limits above, the court, with or without motion by any party, shall require that good cause be shown why the case should not be dismissed for want of prosecution.
“(d) For purposes of this order
“(i) Documents required to signify that a case is ready for trial include certificates of readiness, praecipe for trial or other writing required by local rule.”

Appellants concede that no certificate of readiness or petition for an extension of time was filed and docketed in the prothonotary’s office on or before August 31, 1980. The appellants contend, however, that the evidence they produced at the master’s hearing was sufficient to show good cause for their failure and that the court erred in dismissing their complaint for want of prosecution and that the dismissal constituted an abuse of discretion.

To show good cause why a case should not be dismissed for want of prosecution pursuant to the 240 Day Rule, a plaintiff must reasonably explain his inability to certify the case ready for trial. The burden of proof is on the plaintiff. A decision to dismiss a complaint for want of prosecution under the 240 Day Rule is within the sound discretion of the trial court and will not be reversed absent a manifest abuse of discretion. Drakes Mills Development Company v. Northwest Pennsylvania Bank and Trust Company, 295 Pa.Super. 487, 441 A.2d 1338 (1982).

The allegations contained in appellants’ petition for reconsideration, if true, would reasonably explain the appellants’ failure to certify this case ready for trial or file a petition for an extension of time by August 31, 1980 and would constitute “good cause”. Those allegations, if true, support a conclusion that appellants’ counsel made a good faith effort to comply with the 240 Day Rule and that his failure to do so was the product of the extraordinary volume of work created in his office and the prothonotary’s office by the approaching deadline and the problems created for the prothonotary’s office in attempting to cope with the situation and was not due to a lack of due diligence on counsel’s part.

On the basis of the record in this case, however, it is impossible for us to decide the question. There is a disagreement between the parties as to what evidence was actually presented at the master’s hearing. The record contains neither a transcript of that hearing or a master’s report. The lower court’s opinion contains only the conclusion that the appellants failed to show good cause for not complying with the 240 Day Rule. There are no findings of fact and no discussion of the “facts” in the opinion. Hence, there is no way for us to know what evidence was actually introduced at the master’s hearing or what evidence the lower court relied upon in making its decision. Any decision on the merits we would make in this case, therefore, would be based upon only our subjective assumptions as to what transpired during the master’s hearing in this matter. We cannot decide the case on its merits under these circumstances.

Where it is impossible for the appellate court to decide a case because the record is incomplete, the case should be remanded to the lower court for clarification and completion of the record. See Anmuth v. Chagon, 295 Pa.Super. 32, 440 A.2d 1208 (1982) [not obvious from the record that the copy of the rule relied upon by the appellant was a forgery], Cf. Pawol v. Pawol, 293 Pa.Super. 29, 437 A.2d 974 (1981) [impossible for the appellate court to determine if the lower court considered all relevant factors before entering an order increasing support where there is no transcript of the support hearing], and Dickson v. Lewandowski, 224 Pa.Super. 285, 307 A.2d 392 (1973) [impossible to determine if the Statute of Limitations had run before the appellant was joined where the record is silent as to whether, when, how and on what grounds the appellant was joined].

In the case at hand, we believe it is particularly appropriate that the case be remanded for completion and clarification of the record. Unlike other cases involving the dismissal of a case for failure to comply with the 240 day rule, the procedural history of this case prior to August 31, 1980 clearly indicates that the appellants were proceeding diligently and that the case was active. Cf. Drakes Mills Development Company v. Northwest Pennsylvania Bank and Trust Company, supra. All necessary pleadings were timely filed by the appellants. There were no unreasonable delays caused by the appellants. The only delay in this case actually caused by the appellants resulted from their refusal to answer the appellee’s supplemental interrogatories. Their decision to do so, however, was of at least arguable merit. (See fn. 2).

To complete and clarify the record in this case, the lower court may hold a hearing to determine whether or not the appellants have shown good cause why this case should not be dismissed pursuant to the 240 Day Rule. If the court concludes, on review, that “good cause” exists, it may discharge the rule and reinstate the complaint.

The Order of the lower court dismissing the appellants’ complaint is vacated and the case is remanded to the lower court for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The “240 Day Rule” was promulgated by the Pennsylvania Supreme Court on November 19, 1979, No. 161 E.D.Misc.Docket 1979, and vacated on March 6, 1981. The applicability of the Philadelphia rule is not discussed in the briefs filed with this Court.

      . The appellee was the appellants’ no-fault carrier. The appellants sued the appellee to recover no-fault payments that were allegedly due to the appellants under the terms of their insurance contract with the appellee. The supplemental interrogatories dealt with questions concerning who the appellants’ no-fault carrier was and what the terms of their no-fault insurance contract were.

      . Interestingly, the order allowed appellants until September 5, 1980 to file the answers which was five (5) days after the August 31, 1980 deadline under the 240 day rule.

      . The memorandum opinion was apparently filed in response to Pa.R.A.P. 1925(a).


author: McEWEN, Judge: HOFFMAN, Judge,

text:
    445 A.2d 521
    Samuel BASSION v. Frances JANCZAK, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1981.
    Filed May 7, 1982.

      Susan V. Edwards, Philadelphia, for appellant.
    Abe Lapowsky, Philadelphia, for appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

Appellant contends that the Common Pleas Court erred in dismissing her petition to open a default judgment for her purported failure to file a timely supporting brief in compliance with Montgomery County Rule of Civil Procedure 302(d).

On April 23, 1979, a confession of judgment was entered on a judgment note in the amount of $20,000 against appellant and Thomas Janczak in favor of appellee. Appellant filed a petition to open judgment on August 7,1980 in which she averred inter alia, that her purported signature on the note was a forgery.

The Common Pleas Court dismissed the petition of appellant to open judgment because of her apparent failure to file, pursuant to Montgomery County Rule of Civil Procedure 302(d), a supporting brief within thirty days of the date upon which the petition to open judgment was filed. This appeal followed.

Appellant argues that she did comply with Rule 302(d) by filing a brief contemporaneously with the petition to open judgment and, thus, the court abused its discretion by dismissing her petition to open judgment. While the record does not reflect that appellant filed a brief with the petition, counsel for appellant stated during the presentation of oral argument that the required brief had been affixed to the petition and filed as part of the petition but that the brief was detached from the petition by the Prothonotary and returned to her office. Through inadvertence on the part of the secretarial staff of the office of counsel for appellant, the fact that the brief was misfiled with the Prothonotary and subsequently returned was not brought to her attention.

There is an arguable basis for the decision of the hearing judge to dismiss the petition to open judgment since appellant failed to comply with Montgomery County Rule of Civil Procedure 302(d) by (1) failing to make a separate filing of a brief (2) in triplicate (3) with the Court Administrator. On the other hand, the record (1) reflects that the appellant proposes to offer the defense of forgery; (2) reflects that the brief was misfiled rather than not filed; and (3) does not reflect a contention by the appellee that the appellant failed to forward a copy of the brief to the appellee. Pennsylvania Rule of Civil Procedure 126 suggests that the rules be liberally construed so as to secure a just determination of every action.

We believe that in this specific situation and under these narrow circumstances this objective is better achieved if the appellant is permitted to offer a defense. We are, therefore, compelled to vacate the order of the Common Pleas Court dismissing the petition to open judgment and remand the case for further proceedings consistent with this opinion. Jurisdiction of this case is relinquished.

Order vacated and case remanded.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

I dissent. I would affirm the lower court’s order dismissing appellant’s complaint pursuant to Montgomery County Rule of Civil Procedure 302(d) because: (1) contrary to the majority’s conclusion, the record contains no evidence that the brief was ever filed anywhere; and (2) appellant’s only excuse avers nothing more than the mere inadvertence of counsel.

Appellant’s brief and oral argument to this Court stated that the required brief was filed with the prothonotary’s office rather than the court administrator’s office as required. Mere allegations in a party’s written and oral arguments, however, do not place otherwise omitted facts on the record for appeal. “An appellate court may not consider facts or materials referred to in a party’s brief but not of record.” Guy v. Eberle, 279 Pa.Superior Ct. 101, 122, 420 A.2d 1050, 1062 (1980). Accord, Marine Bank v. Huhta, 279 Pa.Superior Ct. 130, 420 A.2d 1066 (1980); In the Interest of Carroll, 260 Pa.Superior Ct. 23, 393 A.2d 993 (1978). Accordingly, the alleged fact that the brief was misfiled is not properly before us, and the majority’s reliance upon appellant’s self-serving, non-record statements is manifestly improper.

Astonishingly, even if we could consider the allegations in appellant’s brief, they do not assert a reasonable excuse for violation of the local rule, because they aver nothing more than the mere inadvertence of counsel. Although this Court has willingly afforded procedural and substantive relief to parties presenting a reasonable excuse for noncompliance with Montgomery County Rule of Civil Procedure 302(d), in all cases “the reason given for the noncompliance [must be] more than mere inadvertence of counsel.” Haney v. Sabia, 59 Pa.Commonwealth Ct. 123, 129, 428 A.2d 1041, 1044 (1981). See generally Horan v. R. S. Cook & Associates, Inc., 287 Pa.Superior Ct. 265, 430 A.2d 278 (1981). Appellant admits in her brief that her counsel’s office staff was notified promptly of the correct procedure for filing the required brief, and that her counsel’s office staff failed to follow those instructions. She thus avers nothing more than mere inadvertence of counsel as her only excuse. Consequently, the lower court did not abuse its discretion in dismissing her complaint, and I would thus affirm its order.

      . Pennsylvania Rule of Civil Procedure 126. Liberal Construction and Application of Rules. The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Adopted May 1, 1939, effective November 6, 1939; amended and effective April 18, 1975.

       Though rule 302(d) is silent as to the procedure to be followed after a sanction has been imposed, this Court has held that the lower court may vacate an order imposing a sanction if the noncomplying party, by timely petition, offers a reasonable excuse for its failure to file a timely brief. Hesselgesser v. Glen-Craft Contractors, Inc., 287 Pa.Superior Ct. 319, 325, 430 A.2d 305, 308 (1981). If the lower court abuses its discretion in deciding upon such a petition to vacate, this Court may reverse upon appeal, id., or it may remand if the record is inadequate to support meaningful appellate review, Seidel v. Great Factory Store, 291 Pa.Superior Ct. 255, 435 A.2d 896 (1981). Cf. Pa.R.Civ.P. 209. If the noncomplying party does not petition the lower court to vacate its order, but instead appeals directly to this Court, we may reverse if the “record before us clearly reveals a reasonable excuse for appellants’ failure to file their brief,” Shapiro v. Albright, 287 Pa.Superior Ct. 414, 421, 430 A.2d 672, 675 (1981), or may remand if the record is unclear, id., or may affirm if the record on appeal fails to set forth a reasonable excuse, Dunham v. Temple University, 288 Pa.Superior Ct. 522, 432 A.2d 993 (1981); Hesselgesser v. Glen-Craft Contractors, Inc., supra.


author: CIRILLO, Judge:

text:
    445 A.2d 523
    The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES v. Michael W. STITZEL, Louis F. Dixon, Administrator of the Estate of Valerie L. Stitzel, Deceased, Louis F. Dixon and Elaine Dixon. Appeal of Louis F. DIXON, Administrator of the Estate of Valerie L. Stitzel, Deceased, Louis F. Dixon and Elaine Dixon.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1982.
    Filed May 7, 1982.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.

      James D. Flower, Carlisle, for appellant.
    John Michael Eakin, Assistant District Attorney, Mechanicsburg, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Cumberland County whereby the appellee, Michael W. Stitzel, was found to be the beneficiary of a group insurance policy and was awarded the proceeds from the policy.

The Equitable Life Assurance Society insured the life of Valerie L. Stitzel, deceased, under a group insurance policy issued to employees of PPG Industries, Inc. On June 1, 1977, the deceased designated the appellee, her husband, as the revocable beneficiary of the life insurance policy. The deceased also named the appellee the beneficiary for her employee savings plan and for a plan authorizing deductions from her pay for the purchase of U. S. Savings Bonds. In the fall of 1978, the deceased and her husband began experiencing marital difficulties. In October 1978, the deceased changed the designated beneficiary of her payroll savings bond plan from the appellee to her father, Louis F. Dixon. Subsequently, the deceased and the appellee executed a property settlement agreement which provided in part that each party would relinquish his or her inchoate intestate right in the estate of the other, and that each relinquished “any and all claims, .. . actions, causes of action ... of whatsoever kind or nature, for or because of any matter or thing done, omitted, or suffered to be done by said other party prior to and including the date hereof...” On May 5, 1980, the deceased and her husband were granted a divorce. However, the designated beneficiary on the insurance policy remained unchanged, even after the divorce decree.

On May 16, 1980 Valerie L. Stitzel died of accidental causes and Equitable became liable on the insurance policy in the amount of $22,800.00. The appellee filed a claim for the proceeds as the named beneficiary on the policy. The appellant, Louis F. Dixon, filed a claim for the proceeds, contending that the property settlement agreement between the deceased and the appellee revoked the beneficiary designation.

Equitable instituted an action for interpleader against the parties to determine who should receive the proceeds. Equitable then paid the proceeds into court and was excused as a party to the action.

On March 24, 1981, upon stipulation of the facts by the parties and after argument, the Honorable Harold E. Sheely decreed that Michael W. Stitzel was entitled to the insurance proceeds in question and entered a Decree Nisi. The appellants filed Exceptions and, after argument, the Exceptions were dismissed and the final Decree was entered in favor of the appellee. This appeal now follows.

The appellants raise two issues on appeal. First, the appellants contend that the property settlement agreement which purported to constitute a complete division of all property rights, revoked the beneficiary designation of the insurance policy.

In order to change one’s beneficiaries on an insurance policy, one must comply with the policy’s terms. Cody v. Metropolitan Life Insurance Company, 334 Pa. 137, 5 A.2d 887 (1939). The only exception to strict compliance in Pennsylvania arises where the insured has done everything possible to comply with the policy terms, then such an attempt will be given effect. Prudential Insurance Company of America v. Bannister, 448 F.Supp. 807 (W.D.Pa.1978); Gannon v. Gannon, 88 Pa.Superior Ct. 239 (1926). However, there must be shown a positive, unequivocal act toward such change, the mere declaration of intent to change the beneficiary is not enough. Garland v. Craven, 156 Pa.Super. 351, 41 A.2d 140 (1945).

The property settlement agreement in question in this matter concerns the resolution of certain property rights between the deceased and the appellee. It does not deal with claims against third parties such as insurance companies. We are unwilling to hold that the broad language of the property settlement agreement clearly deprived the appellee of his interest in the insurance proceeds. Instead, we require a party to explicitly waive his interest in the life insurance proceeds in the property settlement agreement.

The deceased kept the appellee as beneficiary of the insurance policy after the divorce. Since there is no express language in the property settlement agreement by which the beneficiary designation was revoked, we find that the appellee remains the beneficiary and is entitled to the proceeds.

The appellants also contend that the divorce of the parties operated as an automatic revocation of the beneficiary designation.

The Decedents, Estates and Fiduciaries Code provides the following:

If the conveyor is divorced from the bonds of matrimony after making a conveyance, all provisions in the conveyance which were revocable by him at the time of his death and which were to take effect at or after his death in favor of or relating to his spouse so divorced shall thereby become ineffective for all purposes.

Act of June 30, 1972, P.L. 508, No. 164 § 2, as amended by the Act of April 18, 1978, P.L. 42, No. 23 § 8; 20 Pa.C.S.A. § 6111.1.

The Code then goes on to define “conveyance” as:

An act by which it is intended to create an interest in real or personal property whether the act is intended to have inter vivos or testamentary operation. It shall include an act by which a power of appointment whenever given is exercised.

Id. as amended by the Act of April 18, P.L. 42, No. 23 § 6; 20 Pa.C.S.A. § 6101.

In Henderson Estate, 14 Pa.D&C 2d 638 (Phila.1958), aff’d. 395 Pa. 215, 149 A.2d 892 (1959), the latest Supreme Court decision dealing with the definition of “conveyance”, the term was defined as, “. . . an act by which it is intended to create an interest in real or personal property whether the act is intended to have an inter vivos or testamentary operation.” 395 Pa. at 221, 149 A.2d 892.

It is clear that the mere naming of a beneficiary on a life insurance policy vests nothing in that person, so there is no inter vivos conveyance. As the Court in Henderson held:

We decide that the naming of a third-party beneficiary in a life insurance policy—in the light of the history of the law of this Commonwealth with respect to life insurance which, as we have seen, is sui generis, and in the light of the statutory and public policy of our State is to protect named third-party beneficiaries—was not “a conveyance of [a husband’s] assets...”

395 Pa. at 226, 149 A.2d 892.

Also, the Code provides the following:

(a) In general.—The designation of beneficiaries of life insurance, annuity or endowment contracts, or of any agreement entered into by an insurance company in connection therewith, supplemental thereto or in settlement thereof, and the designation of beneficiaries of benefits payable upon or after the death of a participant under any pension, bonus, profit-sharing, retirement annuity, or other employee-benefit plan, shall not be considered testamentary and shall not be subject to any law governing the transfer of property by will. . . .

Supra.; Pa.C.S.A. § 6108(a).

Therefore, by the express terms of the Decedents, Estates and Fiduciaries Code, the designation of a revocable beneficiary is not a testamentary conveyance. The designation in this instance creates a mere expectancy in the beneficiary and is neither a testamentary nor inter vivos conveyance. Since this is not a conveyance, Section 6111.1 of the Code is not applicable. Therefore, the second contention of the appellants is without merit.

Accordingly, we affirm the order of the court below.

      . The appellants, Louis F. and Elaine Dixon, are the surviving parents of the deceased. Their claim to the insurance proceeds is based upon the following language in the policy:
      Any part of the insurance payable for loss of life for which there is no designated beneficiary living at the death of the employee will be payable in a single sum to the first surviving class of the following classes of successive preference beneficiaries: The employee’s a) widow or widower; b) surviving children; c) surviving parents; d) surviving brothers and sisters; e) executors or administrators.
      The deceased had no widow or surviving children, so the surviving parents constitute the first class entitled to receive the proceeds if it is found that no beneficiary is designated.