author: CERCONE, President Judge:

text:
    473 A.2d 1383
    COMMONWEALTH of Pennsylvania v. Larry RUSSELL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 8, 1983.
    Filed March 30, 1984.

      Robert H. Steinberg, Middleburg, for appellant.
    Graham C. Showalter, District Attorney, Lewisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and MONTEMURO, JJ.
   CERCONE, President Judge:

Appellant was arrested and charged with four counts each of delivery of a controlled substance and possession of a controlled substance with intent to deliver. He proceeded to trial before a jury. Appellant admitted selling the controlled substances, but claimed that, as a result of pressure applied by a Mr. Walburn, he had been coerced and entrapped to do so. He was convicted on all counts and sentenced to two (2) to four (4) years in prison on each count, to be served concurrently. He here appeals the judgment of sentence.

On appeal appellant raises five (5) assignments of error all of which pertain to his entrapment defense. The first three claims address evidentiary ruling of the trial court. Finding merit to one of such claims, we are constrained to reverse and remand for a new trial. We choose to briefly address the other issues so to provide guidance to the trial court on remand.

Appellant contends that the trial court improperly restricted his cross-examination of an undercover investigator. He attempted to question the witness regarding the role of the Lewisburg Police Department in the investigation and the investigation’s goal of apprehending appellant’s supplier. The court found such inquiries irrelevant to the charges at hand and to the claim of entrapment. We agree.

Evidence is relevant if it in some degree advances the inquiry, making the desired inference more probable than not. Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976); Commonwealth v. Miller, 268 Pa.Superior Ct. 123, 407 A.2d 860 (1979). The admission of such evidence rests with the discretion of the trial court. Id., 268 Pa.Superior Ct. at 133, 407 A.2d at 866. We find no error in excluding the above evidence for we fail to see how the proposed inquiry could further appellant’s claim that he was entrapped or coerced by the conduct of an alleged agent of the Commonwealth.

Next appellant argues that the court should have allowed him to introduce evidence as to the violent propensities of Walburn, who first brought appellant and the undercover agent together. He contended that it was out of fear of this person that he sold the illicit drugs. The trial court found the proffered evidence irrelevant. Appellant argues here, as he did in the court below, that such testimony was necessary to support his contention that he acted under duress, 18 Pa.C.S.A. § 309, and that he was entrapped due to his justifiable fear of Mr. Walburn. We agree.

In Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975), the court was faced with a claim by the defendant that she had participated in the drug trade only because she had been coerced by her husband. The court held:

If in fact a person is acting under duress or coercion, this provision, as under prior law, provides a defense. We can find no reason to employ a fiction which is without basis today. To do so would be to abort truth and to subvert the basic purposes of the adjudicative process. Thus, the issue for the trier of fact to resolve was whether [the defendant] was acting of her own volition or whether, in fact she was being coerced by her husband or any other person in her participation in this criminal activity.

Id., 462 Pa. at 228, 340 A.2d at 446. Santiago in effect recognized the defense of duress in a prosecution for selling controlled substances, therefore, the issue becomes whether the proposed testimony should have been admitted for the purpose of showing duress.

While there is little controlling precedent regarding duress, Commonwealth v. Smith, 490 Pa. 380, 385-86, 416 A.2d 986, 988 (1980), specifically addressed the absence of prior case law.

There is a lack of authority in the Commonwealth on the manner of establishing the defense of duress; however, the law on self-defense assists us in the disposition of this issue.
In Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), we said testimony as to the victim’s character is admissible for the following purposes: (1) to corroborate the defendant’s alleged knowledge of the victim’s violent character to corroborate the defendant’s testimony that he had a reasonable belief his life was in danger and (2) to prove the allegedly violent propensities of the victim to show he was the aggressor. We further noted that, generally, character can be proved only by reputation evidence. In Commonwealth v. Darby, 473 Pa. 109, 373 A.2d 1073 (1977), we held that convictions and violent acts of a victim which did not result in conviction, of which the defendant had knowledge, could be introduced for the first purpose mentioned in Commonwealth v. Amos, supra.

(Footnote omitted.) Where self-defense is raised as a defense, the trial court should allow the defendant, who claims to have been aware of the victim’s alleged violent propensities, to present evidence of specific acts of violence by the victim, of which the defendant was aware; the fact finder must then assess such evidence and determine if the defendant reasonably believed his health was in danger. Commonwealth v. Stewart, 483 Pa. 176, 394 A.2d 968 (1978); Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79 (1978); Commonwealth v. Darby, supra. Therefore, following the rationale of Smith, supra, when a defense of duress is proposed, the defendant should be permitted to present evidence of violent acts, known to the defendant, committed by the alleged intimidating figure.

In the current case appellant proposed to have a witness testify that the witness observed Walburn physically assault another, when that individual refused to sell Walburn drugs. Contrary to the court’s ruling, such information was pertinent, under the holdings of the above case, as to whether appellant was coerced into participating in the drug transactions. This prior incident was sufficiently similar to the facts at hand that is should have been brought to the jury’s attention. Therefore, as the jury should have been allowed to hear and weigh such a testimony a new trial is in order.

The third evidentiary ruling that appellant questions is the court’s refusal to allow him to put his good character into evidence. Appellant attempted to testify, on his own behalf, concerning his lack of any prior criminal record. He was prevented from doing so when the court sustained the Commonwealth’s objection thereto.

A defendant may introduce evidence of his own good character in order to demonstrate his innocence. Commonwealth v. Farrior, 312 Pa.Superior Ct. 408, 458 A.2d 1356 (1983). As in the current case, in Farrior, the defendant attempted to demonstrate his reputation for being law abiding. However, in Commonwealth v. Boone, 467 Pa. 168, 180, 354 A.2d 898, 904 (1976), as quoted in Commonwealth v. Hoang Khai Tran, 307 Pa.Superior Ct. 489, 498, 453 A.2d 993, 997 (1982), it was stated: “reputation evidence is established by testimony of the community opinion of the individual in question, not through specific acts or mere rumor.” (Emphasis in original, citations omitted.) Here appellant did not offer the community opinion as to his law abiding nature, but instead offered the absence of any specific infractions. Consequently, we can not find error with the trial court’s ruling.

Appellant in his fourth complaint argues that the trial court erred in denying his requested charge on entrapment. While trial counsel requested a charge on entrapment, he did not make a specific objection to the court’s refusal to so charge. Even after the charge, when the court inquired if counsel was satisfied with the charge, no complaint was aired. In Commonwealth v. Rineer, 310 Pa.Superior Ct. 241, 249, 456 A.2d 591, 595 (1983) we stated:

Therefore, we hold that in order to preserve an issue regarding the charge to the jury, a specific objection must be made pursuant to Pa.R.Crim.P. 1119(b), even where jury instructions have been timely offered and refused. [T]his will absolutely ensure that the trial court is given an opportunity to avoid error.

Appellant having failed to preserve his fourth claim, we may not address it.

Appellant’s last contention raises trial counsel’s effectiveness in failing to request an instruction on duress and in failing to elicit evidence of Walburn’s relationship with the undercover agent. As we find a new trial is warranted on other grounds, we need not concern ourselves with counsel’s stewardship at the first trial.

Judgment of sentence is reversed and the case is remanded for a new trial. We do not retain jurisdiction.

      . § 309. Duress
      (a) General Rule. — It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
      (b) Exception — The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged. 1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973.

      . Both the trial court and the prosecutor emphasized that as there were several transactions, appellant had the opportunity to inform the authorities of the circumstances. Furthermore, it is noted that Walburn was only actually present at the initial meetings. While such considerations may be properly presented to the jury, such do not justify removing the entire claim from the province of the jury.

      . Since we award a new trial on another basis, we feel bound to offer the following guidance to the court to follow on remand. Whether an entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, however, where the defendant presents evidence of entrapment, no matter how unreasonable the court may believe the claim to be, a charge on entrapment should be given. Commonwealth v. Clawson, 250 Pa.Superior Ct. 422, 378 A.2d 1008 (1977).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    473 A.2d 1386
    CITY OF PHILADELPHIA v. Margaret TAYLOR and Rita Jackson. Appeal of Rita JACKSON.
    Superior Court of Pennsylvania.
    Argued March 24, 1983.
    Filed March 30, 1984.

      David E. Shapiro, Philadelphia, for appellant.
    Henry Jacobson, Philadelphia, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

This is the second opinion filed in this appeal; originally we remanded the matter to the lower court for the purpose of perfecting the record. See City of Philadelphia v. Taylor, 318 Pa.Super. 435, 465 A.2d 33 (1983).

The facts of the case are as follows:

On December 2, 1974, a municipal lien for unpaid real estate taxes in the amount of eight hundred seventy-one dollars and forty-eight cents ($871.48) was recorded by the City of Philadelphia in the Prothonotary’s Office, against the property owned by appellee, Margaret Taylor, at 2603-2617 Poplar Street, Philadelphia. Thereafter, on April 3, 1978, the property was exposed for sale by the Sheriff of Philadelphia County and purchased by appellant. A deed by the Sheriff conveying the premises to appellant was duly acknowledged on April 10, 1978.

On March 12, 1979, appellee filed a Rule to Show Cause why she should not be permitted to redeem the property in question. Judge Gelfand, of the Court of Common Pleas of Philadelphia County, granted appellee’s Rule to Show Cause, and a hearing was set for May 7, 1979. Appellant was served with a copy of appellee’s Rule and was given notice of the hearing date.

On May 7, 1979, Judge Gelfand conducted the hearing ex parte due to appellant’s absence and appellee was given until July 7, 1979, in which to complete the acts necessary to redeem the property.

On July 5, 1979, appellee filed another Petition to Extend, requesting an additional twenty days in which to redeem the property. Appellant filed an Answer to the Petition, requesting the following relief: 1) that the Order of May 7, 1979, permitting appellee to redeem her property be rescinded; 2) denial of appellee’s request for extension of time; and 3) termination of appellee’s right of redemption.

On July 18, 1979, Judge Gelfand granted appellee’s Rule to Show Cause and scheduled a hearing for September 10, 1979, which was thereafter continued to December 3, 1979.

Following argument, the Honorable Stanley M. Green-berg granted appellee’s Petition to Extend and entered an Order granting appellee until December 27, 1979, to redeem the property.

From this order, appellant filed the present appeal. On August 26, 1983, we filed an opinion which addressed the issue as to whether the lower court erred in granting two extensions to the appellee, one to July 7,1979, and the other to December 27, 1979, well after the April 10, 1979 expiration of the redemption deadline. We first analyzed the law as it relates to this subject, specifically 53 P.S. § 7293(a), which provides:

§ 7293. Redemption
(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may except as provided in subsection (c) of this section, redeem the same at any time within one year from the date of the acknowledgement of the sheriff's deed therefor, upon payment of the amount bid at such sale; the cost of drawing, acknowledging, and recording the sheriff’s deed; the amount of all taxes and municipal claims, whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other income therefrom, and a sum equal to interest at the rate of ten per centum per annum thereon, from the time of each of such payments. If both owner and creditor desire to redeem, the owner shall have the right so to do only in case he pays the creditor’s claim in full. If more than one creditor desires to redeem, the one who was lowest in lien at the time of sale shall have the prior right, upon payment in full of the claim of the one higher in lien. Within the year, one who was lower in lien may redeem from one higher in lien who has already redeemed, and the owner may redeem from him; and so on throughout, in each case by paying the claim of the one whose right was higher; and one higher in lien may redeem from one lower in lien, unless his claim is paid; but in each case the right must be exercised within the year.
(b) Any person entitled to redeem may present his petition to the proper court, setting forth the facts, and his readiness to pay the redemption money; whereupon the court shall grant a rule to show cause why the purchaser should not reconvey to him the premises sold; and if, upon hearing, the court shall be satisfied of the facts, it shall make the rule absolute, and upon payment being made or tendered, shall enforce it by attachment.
(c) Uninhabited residential property sold to a city of the first class at a sale under a tax or a municipal claim may be redeemed within three months from the date of the acknowledgment of the sheriffs deed therefor subject to compliance with the other requirements of this act with respect to redemption.

Appellant specifically contended that the one year redemption period in 53 P.S. § 7923 was mandatory and not discretionary, thus the lower court erred in granting the two extensions previously mentioned after the April 10, 1979, expiration of the redemption deadline. In continuing our analysis of this issue, we determined that this issue appeared to be a question of first impression regarding the time restriction of 53 P.S. § 7293. We then observed that under 1 Pa.C.S.A. § 1928(c), this redemption statute was to be liberally construed so as to effect its object and to promote justice. Finally, in ascertaining the meaning of this redemption statute, we noted that “when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

After applying these statutory interpretation requirements, we held that “the objective of the one year redemption is clear, this is, the purchaser of the property would not be able to obtain a clear title if the one year limitation for redemption were not enforced.” City of Philadelphia v. Taylor, supra, 318 Pa.Superior Ct. at 440, 465 A.2d at 35. We observed that the lower court cited to appellant’s alleged failure to supply the necessary financial information under 53 P.S. § 7293(a), thus preventing appellee from completing the acts necessary for redemption. Thus, we noted that “if this is true, appellant cannot now object to the delay which she, herself caused.” 318 Pa.Superior Ct. at 440, 465 A.2d at 35. However, nothing appeared of record to substantiate this allegation. Id.

We therefore remanded, while retaining jurisdiction, to the court below for a hearing in order to ascertain whether appellee was prevented from complying with the requirements of the Redemption Act by conduct of appellant or appellant’s counsel.

Pursuant to our order, the lower court held a hearing on January 13, 1984. The only witness presented, at the hearing was the appellee herself, Margaret Taylor. However, before Mrs. Taylor testified, both counsel offered an agreed statement of facts and appellee’s counsel entered a series of letters which he had sent to appellant and appellant’s former and present trial counsel on January 12, 1979, February 22,1979, and December 19,1979, requesting the specific amount that would be necessary to redeem the property. These letters were sent certified mail and the receipts were signed.

Mrs. Taylor testified that in January, 1979, some three months prior to the redemption expiration, she directed her trial counsel to write the afore-mentioned letters and also to file her petition to redeem.

While Mrs. Taylor did not remember a specific time when she garnered the $9,000.00, it was stated that neither appellant nor her counsel would answer any requests made of them to disclose the redemption amount applicable under 53 P.S. § 7293(a). In that appellant was the major contributor to the delay in the redemption process, we hold that she cannot now object to this delay.

Order affirmed.

POPOVICH, J., concurs in the result.


author: JOHNSON, Judge: CAVANAUGH, Judge,

text:
    474 A.2d 41
    COMMONWEALTH of Pennsylvania ex rel. Nancy A. TOKACH, Appellant, v. John P. TOKACH.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1983.
    Filed March 2, 1984.

      Jack H. France, Charleroi, for appellant.
    Thomas B. Kostolansky, Donora, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

On February 23, 1982 the parties to this litigation, then husband and wife, signed an agreement which provided for the support of the couple’s two minor children. The child support provision was one element in the agreement which was a comprehensive property settlement plan. The agreement was drawn in anticipation of a forthcoming divorce which was actually decreed on June 18, 1982. The divorce decree expressly incorporated the February 23, 1982 agreement in its entirety. The agreement provided, inter alia, that the husband (appellee here) would pay $350.00 per month toward the support of his two children and that said payment was to be based on the husband’s net earnings being approximately $1,200.00 per month. It does not mention the possibility that the wife (appellant) might work or what, if any, adjustments should be made in that event.

At the time the agreement was signed, the appellee was actually netting more than $1,200.00 per month and the appellant was not employed. Appellee filed his request to modify the support agreement after he experienced a change in employment which reduced his gross income to a disputed amount between approximately $1,280.00 and $1,550.00, per month. The appellant gained employment which affords her $789.00 gross income per month. The issue before us is whether under all the circumstances the hearing judge was correct in reducing appellee’s monthly support payment from $350.00 to $225.00.

Appellant relies upon the decisions in Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981) and Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983), to support the argument that since the child support agreement was part of a total private property settlement it should be treated as a private contract and not altered by the court. In fact, these two decisions are distinguishable from the case before us. Both Brown and Millstein involved agreements which had not been incorporated into any order of the court and were, therefore, separate contractual agreements. In the instant case the agreement was expressly incorporated into the divorce decree of June 18, 1982.

Although some jurisdictions recognize a distinction between incorporation of a settlement agreement and merger of an agreement into a divorce decree, no such distinction has ever been held by a Pennsylvania appellate court to affect the power of the trial court to modify the amount of child support. We therefore hold that once a settlement agreement is incorporated into a divorce decree, either by reference or set out in full, the settlement agreement merges into the decree and should no longer be given independent effect. See Millstein v. Millstein, 311 Pa.Super. at 506, 457 A.2d at 1296 (“... we agree that Brown does imply that a separation agreement that has merged into an order will not be given effect.”)

Where there is only a court-ordered support payment obligation, the general rule is that the amount of support payments is not final and may be increased or decreased where the financial conditions of the parties change. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983); Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981). Where, as here, the contractual agreement is merged into the court’s order, the agreement takes on the identity of a court order and the contract as a separate entity ceases to exist. The hearing judge therefore was within his authority to consider the request by appellee to reduce the required monthly child support payments.

An additional question raised by the appellant is whether the appellee met the burden of proof necessary to modify a support order. It is true that in a proceeding to modify a support order, it is the petitioner who has the burden of proving that there has been a material change in circumstances sufficient to warrant modification of the existing order. Commonwealth v. Vogelsong, supra; Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982). At the hearing before the Honorable Charles G. Sweet on December 16, 1982, the petitioner, here appellee, produced current pay slips to document his earnings at that time. (H.T. pg. 4). In addition, although the appellee did not submit any evidence on the question, it was agreed by appellant’s counsel that appellant was then earning a gross salary of $789.00 per month (H.T. pg. 4) and that at the time the agreement was made, appellant was not employed (H.T. pg. 8). We have previously held that in light of the mutual duty to support minor children, the mother’s earning capacity is material to any court hearing on a petition for modification. Shank v. Shank, supra; Berry v. Berry, 278 Pa.Super. 30, 419 A.2d 1340 (1980). Hence, we believe that the appellee/petitioner did meet his burden of proof regarding a material change in the financial circumstances of the two parties.

In accordance with the above, and finding no abuse of discretion by the trial court, we affirm the support order of January 13, 1983.

CAVANAUGH, J., files a concurring statement.

CAVANAUGH, Judge,

concurring:

I concur in the result reached by the majority. The contractual provision in question is as follows:

Husband has agreed, or is about to agree, to a consent amount, based upon his net earnings being approximately $1200.00 per month and such arrangements are being made through the Domestic Relations Office of Washington County, Pennsylvania, for $350.00 per month for two (2) children, with payroll deductions being made in the amount of $175.00 from two (2) pays each month.

Clearly, by stating that the basis of the $350.00 per month figure was husband’s $1,200.00 per month income, the parties evidenced their intent that changes in economic status might precipitate changes in husband’s support obligation. To construe this provision otherwise would be to treat the $1,200.00 reference as mere surplusage. Since I feel the contract itself is modifiable, I see no need to decide whether it was made modifiable by the subsequent reference to it in the divorce decree.

      . The decree stated “I[t is further ordered that] the ‘Agreement’ dated the 23rd day of February, 1982, by and between the said parties be incorporated in this final decree by reference as if set forth in full.”

      . See Johnston v. Johnston, 297 Md. 48, 465 A.2d 436 (1983) (settlement agreement incorporated, but not merged, into divorce decree remains a separate, enforceable contract).


author: HOFFMAN, Judge:

text:
    474 A.2d 44
    Richard KELLEY and Rita Kelley, Appellants, v. Ann E. THOMPSON and Hansel Fuller.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1983.
    Filed March 30, 1984.

      Allen L. Feingold, Philadelphia, for appellants.
    David M. McCormick, Philadelphia, for appellees.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   HOFFMAN, Judge:

The sole issue on appeal concerns appellant’s challenge to the lower court’s imposition of a $100 sanction. We find that the lower court acted within its discretion in assessing the fee and, accordingly, affirm.

Appellant, counsel for the plaintiffs in the underlying action, had effectuated a $26,000 settlement with both the defendant and the additional defendant in early 1981. After the settlement, appellant provided the defendant’s counsel with an order to settle, discontinue and end the matter, which was filed with the lower court. On March 18, 1981, however, appellant informed the defendant’s counsel that the order had been returned because the additional defendant’s attorney had failed to sign it. The order was then forwarded to the additional defendant’s counsel, who subsequently told the defendant’s attorney that the order had been lost. On January 5, 1982, the defendant’s counsel requested appellant’s signature on a newly prepared order, already signed by the additional defendant’s counsel. After appellant refused to sign the order, the defendant’s counsel motioned to compel appellant to sign the order and to assess counsel fees of $100. The lower court ordered the case settled, discontinued and ended, and imposed the $100 sanction. This appeal followed.

42 Pa.C.S.A. § 2503(7) provides:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.

In the instant case, the lower court determined that appellant’s refusal to sign the order constituted such “obdurate or vexatious” conduct as to warrant the sanction, and stated:

In these circumstances, to have required an attorney to file the within motion, together with a proposed order, memorandum of law and all other accompanying documents, was, in the opinion of the Court, outrageous, being both disrespectful to opposing counsel and without regard for the court.

(Lower Court Op. at 4). Appellant contends that he declined to sign the order because he lacked access to his file on the case and, hence, was unable to verify if the new order had been correctly formulated. We agree with the lower court that appellant’s refusal to sign the new order, after it had been prepared by the defendant’s counsel and after appellant had signed the original settlement order, constituted wholly unreasonable behavior under the circumstances.

Appellant’s arguments in favor of reversal are without merit. Firstly, his reliance on Murdoch v. Murdoch, 418 Pa. 219, 210 A.2d 490 (1965), and Baumgartner v. Whinney, 156 Pa.Superior Ct. 167, 39 A.2d 738 (1978), is misplaced. Those cases both involved a party’s attempt to strike a settlement after it had been finalized. The parties in the instant case have not petitioned to strike or in any way modify the settlement; rather, they have acted to formally finalize and discontinue the case. Secondly, we agree with the defendant’s counsel that “the term ‘pendancy of a matter’ as used in 42 Pa.C.S.A. § 2503(7) refers to the pendancy of the matter in a court and not the pendancy of a matter in [appellant’s] office.” (Appellant’s Brief at 7). Finally, Common Pleas Court Judge Charles Lord’s exercise of discretion in a companion case does not affect our review of the lower court’s exercise of discretion in the instant case.

Accordingly, we affirm the order entered by the court below, marking the instant case settled, discontinued and ended, and imposing a $100 sanction against appellant.

Moreover, acting pursuant to Pa.R.A.P. 2744 which provides that “[i]f an appellate court shall determine that an appeal is frivolous, it may award as further costs an attorney fee of $25 and damages at the rate of 6% per annum in addition to legal interest,” we impose additional costs against appellant’s counsel consisting of a $25 fee and 6% interest on the initial $100 sanction.

Affirmed and additional costs imposed.

       We wish to note our dissatisfaction that Pa.R.A.P. 2744 limits us to imposing a $25 fee plus interest in situations such as the case on appeal. We believe that either Rule 2744 must be changed or that appellate courts must have the freedom enjoyed by trial courts under 42 Pa.C.S.A. 2503 to impose appropriate sanctions.


text:
    474 A.2d 45
    Millicent L. JAKSTYS, Appellant, v. James W. JAKSTYS.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1984.
    Filed March 30, 1984.

      David Gutin, Philadelphia, for appellant.
    James W. Jakstys, Philadelphia, appellee, in propria persona.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

The sole issue on appeal is whether no-fault grounds for divorce survive the non pros of a divorce action for failure to file a bill of particulars. We hold that a bill of particulars is not required in a no-fault divorce action. Accordingly, we reverse the order of the court below and remand for a full hearing on appellant’s petition for alimony pendente lite, counsel fees and costs.

The parties were married on September 28, 1963, and are currently separated. On May 8, 1981, appellant-wife, Millicent L. Jakstys, filed a Complaint in Divorce based on §§ 201(a)(6) (indignities), 201(c) (irretrievable breakdown and consent), and 201(d) (irretrievable breakdown and three years separation) of the Pennsylvania Divorce Code of 1980. On June 2, 1981, appellee-husband, James W. Jakstys, filed a Praecipe and Rule for a Bill of Particulars, and the Montgomery County Prothonotary ordered appellant to file a bill of particulars within 20 days after service of the rule or suffer a non pros. On July 9, 1981, subsequent to appellant’s failure to file the bill of particulars, the divorce action was non prossed. Despite the non pros, on May 4, 1982, appellant petitioned the lower court for alimony pendente lite, counsel fees and costs. Following a hearing, the court denied appellant’s petition on August 12, 1982, prompting this appeal.

The 1980 Divorce Code, 23 P.S. § 101 et seq., while retaining the previous fault grounds for divorce, also added the following “no-fault” grounds:

[where] the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.
[where] the parties have lived separate and apart for a period of at least three years, and ... the marriage is irretrievably broken.

Id. §§ 201(c) and (d)(1). Rule 1920.21 of the Pennsylvania Rules of Civil Procedure, in effect during the lower court proceedings in the instant case, provided that:

(a) The prothonotary on praecipe shall enter a rule as of course upon the party seeking a divorce or annulment to file a bill of particulars as to such cause of action.
(b) If a bill of particulars is not filed within twenty days after service of the rule or within such further time as the court may allow, the prothonotary upon praecipe shall enter a judgment of non pros against the defaulting party with respect to the cause of action for divorce or annulment and such other claims as have been joined in which relief is dependent upon the granting of divorce or annulment.
(c) No answer to a bill of particulars is required.

Pa.R.Civ.P. 1920.21 (adopted June 27, 1980; effective July 1, 1980). On its face, Rule 1920.21 appears to require the filing of a bill of particulars in a divorce action, regardless of whether fault or no-fault grounds are alleged. We base our conclusion to the contrary, however, upon the following considerations: (1) the purpose of the bill of particulars; (2) the legislative intent embodied in the 1980 Divorce Code; (3) the reason for the promulgation of Pa.R.Civ.P. 1920.1 et seq.; and (4) the 1983 amendments to Rule 1920.21.

Prior to the adoption of the 1980 Divorce Code, parties seeking divorce had to allege one of the fault or illegality grounds contained in the Divorce Law of 1929, 23 P.S. § 1 et seq. (repealed 1980). Section 40 of the Divorce Law provided for the furnishing of a bill of particulars and failure to furnish the bill would result in a judgment of non pros. Esenwein v. Esenwein, 312 Pa. 77, 78-79, 167 A. 350, 351 (1933). In divorce actions based on fault grounds, the bill of particulars serves a valuable purpose:

“A bill of particulars is an amplification or more particular specification of the matter set forth in the pleading. While it need not state more than the party furnishing it is bound to prove under the pleading, it must be as specific as the circumstances of the case will allow, and should fairly apprise the opposite party and the court of the nature of the claim or defense made and the nature of the evidence.” Weedon v. Weedon, 34 Pa.Superior Ct. 358 (1907).
The bill of particulars limits the evidence which a party may introduce inasmuch as such evidence must conform to the averments of the bill: Cantwell v. Cantwell, 179 Pa.Superior Ct. 452, 115 A.2d 801 (1955). A plaintiff who fails to set forth a particular occurrence should not be permitted to prove the occurrence at the hearing: Draves v. Draves, 160 Pa.Superior Ct. 35, 49 A.2d 840 (1947).

Walters v. Walters, 6 Pa.D. & C.3d 269, 271-72 (Dauphin Co.1978). Thus, the rule limiting permissible evidence to the allegations contained in the pleadings (which include the bill of particulars) ensures that the defendant in the fault divorce action is put on notice as to the allegations, i.e. instances of misconduct, against which he must prepare a defense. Cantwell v. Cantwell, 179 Pa.Superior Ct. 452, 456, 115 A.2d 801, 802 (1955). Consequently, courts have focused on whether the bill of particulars contained sufficiently specific factual averments to enable the defendant to prepare a defense. See, e.g., Bowman v. Bowman, 9 Pa.D. & C.3d 241 (Columbia Co.1978) (in divorce action grounded on indignities, bill of particulars alleging courses of conduct sufficient). See also Homme v. Homme, 53 Wash. 173 (1973); Predi v. Predi, 18 Chest. 253 (1969); Miller v. Miller, 17 Chest. 206 (1969). Clearly then, the purpose served by the bill of particulars in fault divorces loses vitality in no-fault divorce actions under the new Divorce Code, which de-emphasizes the adversarial nature of divorce and the apportionment of blame.

The legislative intent behind the 1980 Divorce Code is expressly set forth in § 102 of the Code, and summarized as follows:

[T]he six subsections of § 102(a) [of the Pennsylvania Divorce Code] all express different aspects of a single consistent philosophy on marriage and the family, ...: The family is the basic unit in society and should be preserved and protected. However, when a marriage cannot be preserved, which is to say, when one or more of the grounds for divorce contained in § 201 exist, the dissolution should be accomplished in a manner that recognizes the prior existence of the family as both an economic and a social unit, and that emphasizes the future welfare of each member of the family, instead of in a manner that identifies and punishes guilty parties.

Gordon v. Gordon, 293 Pa.Superior Ct. 491, 510-11, 439 A.2d 683, 692-93 (1981), aff’d, 498 Pa. 570, 449 A.2d 1378 (1982). See also 23 P.S. § 102. Considering this clear pronouncement of Commonwealth policy, we conclude that the bill of particulars, which serves to pinpoint specific acts of alleged misconduct, has no application in a no-fault divorce action.

We next note that Rules 1920.1 et seq. of the Pennsylvania Rules of Civil Procedure were promulgated specifically to implement the 1980 Divorce Code. See Pa.R.Civ.P. 1920.1 et seq. explanatory comment (adopted June 27, 1980; effective July 1, 1980). Thus, our interpretation of Rule 1920.21 must be consistent with the policy expressed in the Divorce Code. Finally, and of great significance, our conelusion that the rule requiring a bill of particulars applies only to fault divorce actions, is confirmed by our Supreme Court’s 1983 amendments to the rule. As amended, Rule 1920.21 expressly limits the bill of particulars requirement to divorce actions based on fault grounds:

(a) The prothonotary on praecipe filed within such time as not to delay the trial shall enter a rule as of course upon the party seeking a divorce under Section 201(a) or (b) of the Divorce Code or an annulment to file a bill of particulars as to such cause of action.

Pa.R.Civ.P. 1920.21(a) (as amended January 28, 1983; effective July 1, 1983) (emphasis added). See also Pa.R.Civ.P. 1920.21 explanatory note (“bill of particulars may not be sought in an action for divorce on the no-fault grounds”).

The lower court, while conceding that “[t]he amendments to Rule 1920.21 ... conform the language of the rule with its intended purposes”, nevertheless concluded that at the time of the instant non pros, the rule required the filing of a bill of particulars in a divorce action, notwithstanding its fault or no-fault basis. (Lower Court Opinion at 4). We disagree. Although the amendment was not in effect at the time appellant’s divorce action was non prossed, the Divorce Code was in effect. Therefore, Rule 1920.21, as originally adopted, should have been read, not in a vacuum, but against the background of the Divorce Code, the policy embodied therein, and the Rules promulgated to implement the Code.

In interpreting the letter of the procedural rules, we must not lose sight of common sense. It would be illogical to uphold the non pros of a divorce action based on no-fault grounds simply because no bill of particulars was filed where such bill serves no useful or necessary purpose in no-fault divorces.

Accordingly, for the considerations stated above, we reverse the lower court’s order and remand for a full hearing on appellant’s petition for alimony pendente lite, counsel fees and costs.

Reversed and remanded.

Jurisdiction is not retained.

      . Appellant does not appeal the non pros of the fault ground, § 201(a)(6) (indignities), for the divorce action and it is not an issue on appeal.

      . 23 P.S. § 102 contains the legislative findings and intent, as follows:
      (a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
      (1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
      (2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
      (3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
      (4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
      (5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.
      (6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
      (b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.

      . The lower court also denied appellant’s petition on the following additional grounds: (1) appellant failed to state a cause of action because appellee never signed an affidavit of consent and the parties had not been separated for at least three years; and (2) appellant did not appeal the judgment of non pros or challenge appellee’s praecipe prior to the instant appeal. We disagree with the lower court’s resolution of these issues. The divorce complaint was non prossed prior to the expiration of the 90-day period required under § 201(c) for consent divorces and Pa.R.A.P. 903 requires only that the notice of appeal be filed within 30 days after the entry of the order from which the appeal is taken. In the instant case, appellant filed the notice of appeal on August 27, 1982 from the lower court’s order of August 12, 1982. We note, however, that appellant may not have stated a cause of action under § 201(d) because she filed the complaint on May 8, 1981, and alleged therein a separation date of January 1981, thus falling short of the required three years separation. This, however, does not change our result in the case.


author: BROSKY, Judge:

text:
    474 A.2d 287
    Edward ANSKIS, Appellant, v. Selma FISCHER and Louis Fischer and Michael Lenahan and Sears, Roebuck & Company.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1983.
    Filed March 9, 1984.
    Reargument Denied May 16, 1984.
    Petition for Allowance of Appeal Granted Sept. 24, 1984.

      Sheldon A. Goodstadt, Philadelphia, for appellant.
    James Marsh, Philadelphia, for appellees.

      Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   BROSKY, Judge:

The sole issue presented to us in this appeal is whether the trial court erred in molding the verdict returned by the jury in this case and marking the judgment satisfied. We affirm.

This action was commenced by appellant who was injured when the automobile in which he was travelling was struck by a vehicle driven by Selma Fischer. At the time of the accident Mr. Anskis was an employee of Sears, Roebuck & Company and was riding in a Sears vehicle which was driven by another Sears employee in the scope of his employment.

Mr. Anskis filed a complaint against Selma Fischer and her husband on June 13, 1972. On August 14, 1972 the Fischers filed an answer and a complaint joining the driver of the Sears vehicle, Michael Lenahan, and Sears as additional defendants.

Approximately twenty-three months after service of the complaint upon them, the additional defendants filed an Answer and New Matter in which they alleged that the cause of action against them was barred by the Pennsylvania Workmen’s Compensation Act.

In preliminary objections to the Answer and New Matter the Fischers alleged that the additional defendants were barred from raising the workmen’s compensation claim as an affirmative defense because their Answer and New Matter were not filed timely.

The preliminary objections were sustained by order of September 23, 1974 and the Answer and New Matter were stricken and dismissed with prejudice.

At trial the jury returned a verdict in favor of appellant and against Mr. Lenahan and Sears in the amount of $150,000.00. The trial judge granted a motion to mold the verdict made by the Lenahans and Sears and the judgment was marked satisfied. Following the denial of post verdict motions and entry of judgment, which was marked satisfied, appellants commenced this appeal.

The trial court granted the motion to mold the verdict on the grounds that since appellant and Mr. Lenahan were employees of Sears, travelling on Sears business, that appellant was barred from recovering damages from either his employer or fellow employee. On appeal Mr. Anskis does not dispute the finding that the Workmen’s Compensation Act would relieve Sears and Mr. Lenahan from liability, but rather argues that the additional defendants have waived the right to rely on that Act. Appellants argue that because the Answer and New Matter filed by appellees were not filed timely, they waived the right to rely on the Workmen’s Compensation Act’s immunity provisions which they raised in the New Matter.

It is true that the Answer and New Matter were not timely filed. See Pa.R.C.P. 1026.

However, we do not believe that their failure to timely plead workmen’s compensation immunity bars appellees from such immunity.

We reach this conclusion based on the decision of our Supreme Court in Socha v. Metz, 385 Pa. 632, 123 A.2d 837 (1956) in which the Court held that an employer had not waived its workmen’s compensation immunity from liability for negligence by raising it for the first time when the plaintiff sought to execute on a judgment she had secured against the employer.

In Socha, the plaintiff was the widow of an employee of the City of Philadelphia who was killed in an automobile accident while he was a passenger on a city owned sanitation truck. Mrs. Socha brought suit against the driver of the other automobile who then joined the deceased’s employer as an additional defendant.

Trial by a jury resulted in entry of a verdict against all the defendants. When the plaintiff tried to execute on the judgment against the employer, the City moved to have the judgment marked satisfied, on the grounds that it was made immune from liability by the Workmen’s Compensation Act. The plaintiff argued that the City had waived the workmen’s compensation immunity by raising it first at the time of execution. In rejecting this claim the Court explained, 385 Pa. at 637, 123 A.2d at 839, 840:

By virtue of the Compensation Act, an employee’s common law right to damages for injuries suffered in the course of his employment as a result of his employer’s negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer’s liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated.

Despite this immunity, however, at the time of the Socka suit and the instant trial, an employer could be named as an additional defendant. As explained by the Socha opinion, 385 Pa. at 638, 123 A.2d at 840:

It so happens, however, just as in the instant case, that an employer may be required to defend his employee’s trespass action for personal injuries received in the course of his employment when the employer is summoned as an additional defendant or is sued jointly with another for such injuries. But, that procedure is for the sole and exclusive purpose of protecting the original or third-party defendant’s right of contribution from the employer and does not ascribe to the employee or his representative a common law right against his employer for damages for injuries suffered in the course of his employment.

The court concluded that the employer-employee relationship could not be proved by the employer at trial and therefore is not to be pleaded. As the court noted:

It would be utterly vain to require a litigant to plead something which, as a matter of law, he will not be permitted to prove or read into evidence at trial. And it would be worse than vain to impale a litigant for not having averred what must not be disclosed to the jury.

Id., 385 Pa. at 642, 123 A.2d at 842.

We must reach the same conclusion in the instant case in which appellees were additional defendants who sought the same relief granted the employer in Socha.

Although the Socha opinion is not a recent decision, we find no indication that our Supreme Court has altered its position on this issue. Nor are we persuaded by appellant’s argument that this Court’s decision in Turner Construction Company v. Hebner, 276 Pa.Super. 341, 419 A.2d 488 (1980) calls for a different result, although in Turner we found that a statutory employer had waived its Workmen’s Compensation immunity by failing to timely plead it as an affirmative defense.

In Turner suit had been instituted against a statutory employer by the injured employee. The employer was not a third party defendant, as is the employer in the instant case. We were careful to distinguish the facts in Turner from those in Socha and we explained that unlike the Socha case, in Turner, there was nothing to prevent the statutory employer, an original defendant, from asserting its Workmen’s Compensation immunity at trial. We therefore were able to conclude that the employer should have raised the defense in its pleadings.

Because the instant case is factually different than the Turner situation and essentially indistinguishable from Socha, we affirm the order of the lower court.

      . 77 P.S. § 1 et seq.

      . The employer may no longer be named as an additional defendant by virtue of the 1974 amendments to the Workmen’s Compensation Act, Section 303(b), Act of December 5, 1974, P.L. 782, No. 263, 77 P.S. § 481(b) effective as to accidents occurring after February 5, 1975. See Brogley v. Chambersburg Engineering Co., 306 Pa.Super. 316, 452 A.2d 743 (1982). In fact, our Supreme Court has recently held that an employer may not be joined even for the limited purpose of determining liability under the Comparative Negligence Act, Act of April 28, 1978, P.L. 202, No. 53, as amended, 42 Pa.C.S. § 7102. See Heckendorn v. Consolidated Rail Corporation, 502 Pa. 101, 465 A.2d 609 (1983).

      . Appellant also argues that our decision in Mackey v. Adamski, 286 Pa.Super. 456, 429 A.2d 28, 32 supports his position. However, in Mackey we held that the Workmen’s Compensation Act does not deprive the Common Pleas Courts of jurisdiction of common law actions against employers and fellow employees, but only provides an affirmative defense. The jurisdictional issue presented in Mackey is not before us in the instant case. As to the holding that the Workmen’s Compensation immunity is an affirmative defense, we note that as in Turner, supra, those seeking to raise immunity were original defendants, not additional defendants as in the present case.


author: CERCONE, Judge:

text:
    474 A.2d 290
    In re Warren R. KIRKANDER, Deceased. Appeal of Carolyn KIRKANDER and Karen Kirkander.
    Superior Court of Pennsylvania.
    Submitted Nov. 8, 1983.
    Filed March 9, 1984.
    Reargument Denied May 16, 1984.

      Douglas G. Linn, II, Butler, for appellant.

      Leo M. Stepanian, Butler, for participating party.
    Before CAVANAUGH, CHULLO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the final decree of the Court of Common Pleas of Butler County, Orphans’ Court Division, dismissing the appeal of appellants, Carolyn and Karen Ann Kirkander (contestants) from the probate of the Will of Warren R. Kirkander (decedent). We reverse.

Decedent passed away on August 9, 1976. His will leaving his entire estate to Jean Lam (proponent), was admitted to probate on August 25, 1976. On August 24, 1978 contestants filed an appeal and challenge to the probate of the will alleging that the will was the product of undue influence or in the alternative was a forgery. The Orphans’ Court dismissed the appeal finding that the statute of limitations for bringing the challenge was one year, and such period had expired. 20 Pa.C.S.A. § 908(a). On appeal to the Supreme Court, the court reversed the decree, finding that while the claim of undue influence was barred by contestants’ untimely petition, the claim of fraud was not. In Re Kirkander’s Estate, 490 Pa. 49, 415 A.2d 26 (1980).

Upon remand, the Orphans’ Court conducted hearings on December 5, 1980 and November 6, 1981. On December 17, 1981, the court entered a decree nisi dismissing appellant’s appeal alleging fraud. Exceptions were filed and by order of March 15, 1982 the exceptions were dismissed and the decree nisi was confirmed as a final decree. From such final decree contestants have taken this appeal raising four contentions. Finding merit to the contestant’s first contention, we need not address the other issues.

The contestants argue that the trial court erred, in prohibiting testimony regarding oral declarations of decedent regarding his estate plan uttered shortly before his demise, in refusing testimony concerning decedent’s and the proponent’s relationship; and in refusing contestants’ proffered testimony regarding the proponent’s suspicious conduct. The Orphans’ Court believed it was limited in conducting the evidentiary hearing to the forgery issue and therefore limited the hearing solely to the execution of the alleged forged will.

The proponent offered testimony from: the scrivener who was also a subscribing witness; the scrivener’s secretary, who typed the will and witnessed its execution; the proponent, who went with the testator when he initially discussed the drafting of the will and was present at its execution; and a bank employee who testified that testator was the only person who had access to the safe deposit box containing the will. The contestants’ case was limited to the cross-examination of the above witnesses and to the testimony of a hand-writing expert. We believe the Orphans' Court placed an unduly restrictive interpretation upon the Supreme Court’s directive. That court after upholding the dismissal of the challenge premised on undue influence, remanded for an evidentiary hearing on the allegation of fraud. The only restriction placed on such hearing was that it be “consistent with this opinion.”

We recognize that rulings on the admissibility of evidence are within the discretion of the trial judge and will not be reversed absent a manifest abuse of that discretion. Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970); Capan v. Divine Providence Hospital, 270 Pa.Superior Ct. 127, 410 A.2d 1282 (1979). However, where the excluded evidence was essential to a party’s case, the reviewing court may find an abuse of discretion. Densler v. Metropolitan, 235 Pa.Superior Ct. 585, 345 A.2d 758 (1975).

The party alleging forgery has the burden of proving the existence of the forged document by clear, direct, precise, and convincing evidence. In Re Estate of Smith, 454 Pa. 534, 314 A.2d 21 (1974); Cline Will, 433 Pa. 543, 252 A.2d 657 (1969); Elias Will, 429 Pa. 314, 239 A.2d 393 (1968); Kadilak Will, 405 Pa. 238, 174 A.2d 870 (1961). In the current case, contestants were limited to producing a handwriting expert, without the benefit of any corroborating circumstantial evidence. As is well established in this Commonwealth, found by the Orphans’ Court and admitted by contestants, expert evidence standing alone concerning the authenticity of an alleged forged signature is of little weight and can not prevail against direct credible evidence regarding the signing of the questioned document. Estate of Smith, supra, Elias Will, supra, Kadilak Will, supra, Snedeker Estate, 368 Pa. 607, 84 A.2d 568 (1951); Pochron Will, 367 Pa. 306, 80 A.2d 794 (1951). See also 42 Pa.C.S.A. § 6111.

However, just as well established is the principle that where the testimony of a handwriting expert is corroborated by probative facts and circumstances surrounding the will, such may overcome the testimony of the subscribing witnesses. Cline Will, 433 Pa. 543, 252 A.2d 657 (1969); Snedeker Estate, supra,; Young’s Estate, 347 Pa. 457, 32 A.2d 901 (1943); De Laurentiis’s Estate, 323 Pa. 70, 186 A. 359 (1936). As the court stated in Young’s Estate, supra 347 Pa. at 463, 32 A.2d at 904:

There is no law requiring that in cases such as this the evidence to be “corroborated” must be of such a “direct and positive” character as to consist of the testimony of some one who was with the decedent at all times when the questioned document could have been executed by [the decedent] and who positively swears that the decedent did not execute the document. In such cases positive and direct evidence is the most nearly positive and direct evidence which the nature of the case will admit.

Young’s Estate, limits the admissibility of such evidence to that evidence admissible under the ordinary rules of evidence. Here, the Orphans’ Court found the proffered, but rejected evidence, was irrelevant to the question of whether the will was genuine.

Evidence is relevant if it tends to establish facts in issue or in some measure advances the inquiry and thus has probative value. Dudash v. Dudash, 313 Pa.Superior Ct. 547, 460 A.2d 323 (1983); Commonwealth v. Sinwell, 311 Pa.Superior Ct. 419, 457 A.2d 957 (1983); Whistler Sportswear, Inc. v. Rullo, 289 Pa.Superior Ct. 230, 433 A.2d 40 (1981). We find that the evidence at issue here was relevant, at least in part, to the controversy over the testator’s signature.

A decedent’s utterance regarding his planned disposition of his estate, said after the questioned will was supposedly executed, has been admitted in a will contest; since, if a will is to be admitted to probate, a decedent must have been aware of its contents. Cohen Will, 445 Pa. 549, 284 A.2d 754 (1971). See also Young’s Estate, supra; De Laurentiis’s Estate, supra; Lappe v. Gfeller, 211 Pa. 462, 60 A. 1049 (1905). Therefore, contestants should have been allowed to introduce testimony concerning statements allegedly made by the decedent regarding his testamentary scheme.

Similarly, we find that court should not have refused testimony of, what is referred to as, “suspicious” conduct on the proponent’s part. While it is true that suspicion and conjecture do not take the place of evidence, Elias Will, supra; Pochron Will, supra; suspicious or unusual conduct of an interested party or otherwise surrounding a will may, when viewed in conjunction with other evidence, raise a question as to the validity of a will. Young’s Estate; supra; De Laurentiis’s Estate, supra. See also Cline Will, supra; Kadilak Will, supra (where the respective Orphans’ Court considered such evidence but found it unpersuasive).

The third type of evidence which the chancellor would not allow contestants to present concerned the relationship between the decedent and the proponent. Evidence of the relationship between a testator or testatrix and a named beneficiary has been admitted where the will is claimed to be a forgery. Snedeker Estate, supra; De Laurentiis’s Estate, supra. However, contestants’ proffered testimony dealt with the deterioration of the relationship between testator and proponent; it focused upon their status at the time of, or shortly before, the testator’s death. We do not find error in the chancellor’s refusal to admit this evidence. Unless such testimony pertains to the point in time when the will was executed, we fail to see how such was relevant. Estate of Bryner, 464 Pa. 10, 345 A.2d 706 (1975); Thomas Estate, 457 Pa. 546, 327 A.2d 31 (1974).

We must conclude that the Orphans’ Court abused its discretion in unduly restricting the hearing before it and hence we are constrained to remand for further proceedings. We do not at this time offer any comment upon the substantive merits of appellant’s challenge to the will. Instead, we conclude, borrowing language from De Laurentiis’s Estate, supra, 323 Pa. at 80, 186 A. at 363-64:

It may, of course, be true that [contestants’] testimony is a fabrication, that the handwriting experts are mistaken, and the seemingly strange provisions of the will are susceptible of satisfactory explanation, but if under such circumstances and evidence a contestant is not to be allowed to have [the fact finder] pass upon his case, it would apparently be impossible to secure the opportunity of establishing that an alleged signature to a will was in fact a forgery, it being only in the rarest cases that direct and irrefutable testimony of a witness to the very act of forgery could be obtained. Considering the personnel of the witnesses, this seems to be peculiarly a case to which there may properly be applied the statement of the court in Sharpless’s Est, 134 Pa. 250, 261 [19 A. 630], that: “So much depends on the means of knowledge, the interest of bias, the manner, the character, and the personal weight which each witness carries as an individual among his neighbors and in the community, that a [fact finder] is the only appropriate tribunal, in such a case, to determine which way the balance inclines. Having the testimony present to [its] eyes as well as [its] ears, the truth may be made manifest beyond any substantial doubt____ To decide it now, as presented, would be to decide it in the dusk, if not in the dark, when full daylight is at hand.”

Decree reversed, case is remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.

      . The other contentions raised are:
      a. the Orphans’ Court should have recused itself and sought the appointment of a special chancellor from outside of Butler County;
      b. the court erred in denying a continuance; and
      c. the evidence does not support the chancellor’s finding.

        As to the question of recusal we note that a moving party must demonstrate the necessity for the disqualification and appellants failed to carry such burden. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976).

      . Proponent was authorized to open the box in case of an emergency but records demonstrated that she never exercised that right.


author: JOHNSON, Judge: BROSKY, Judge,

text:
    474 A.2d 294
    COMMONWEALTH of Pennsylvania, Appellant, v. Samuel J. GEMELLI.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1983.
    Filed March 23, 1984.
    Petition for Allowance of Appeal Denied July 10, 1984.

      Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellant.

      Jay Nedell, Erie, for appellee.
    Before SPAETH, BROSKY and JOHNSON, JJ.
   JOHNSON, Judge:

This is a direct appeal by the Commonwealth from the trial court’s oral order dated September 7, 1982 and written order and opinion filed September 24, 1982, both of which quashed twenty-seven criminal counts instituted against appellee Gemelli. The Commonwealth filed notices of appeal from both the oral and written orders, which appeals were subsequently consolidated.

Finding that the trial court improperly quashed the twenty-seven counts, we vacate the trial court’s order filed September 24, 1982 and remand for further proceedings.

The procedural history discloses that on January 12, 1982 the Erie County Investigating Grand Jury returned a presentment against appellee, a former Erie City Police Chief, recommending that criminal charges be filed in connection with appellee’s alleged improper removal of firearms from the Erie City Police Department Evidence Room. Pursuant to this presentment, criminal complaints were filed on January 19, 1982 consisting of twenty-eight counts of theft by unlawful taking, one count of criminal conspiracy, two counts of intimidating witnesses or victims and one count of obstructing the administration of law or other governmental function.

Following a preliminary hearing in March of 1982, appellee was held for court on all but three of the theft counts. On June 10, 1982, appellee filed an omnibus pretrial motion containing eleven separate grounds for relief. The Commonwealth filed an answer to the motion and a hearing was conducted on August 2, 1982. Thereafter, both parties filed briefs concerning additional issues on August 30, 1982.

On September 3, 1982, the trial court filed its initial opinion and order on the omnibus motion, quashing the two charges of intimidating witnesses or victims, quashing thirteen of the twenty-five theft charges on the basis of the statute of limitations, and denying the remainder of appellee’s omnibus motion. The Commonwealth then petitioned for reconsideration and a hearing was held on September 7, 1982. At the close of testimony, the trial court reinstated the thirteen theft charges it had previously quashed on the basis of the statute of limitations and proceeded to quash all remaining counts of the information on other grounds.

Following the filing of its first notice of appeal and the trial court’s filing of its September 24 written opinion and order, the Commonwealth again petitioned for reconsideration. Prior to the trial court acting on this petition, the Commonwealth filed its second notice of appeal. No action was taken thereafter by the trial court on the reconsideration petition.

The factual history reveals that appellee was Police Chief from 1972 until March of 1980. The investigation into the disappearance of firearms from the Evidence Room began with the arrest of police officer William Perry in January of 1981 on an unrelated charge. During an interrogation of Perry, who was a federally licensed firearms dealer, he told detectives that while employed as a police officer, he had taken weapons from the Evidence Room both with and without appellee’s approval, purchased weapons in the Evidence Room from appellee, registered weapons from the Evidence Room for friends of appellee and provided numerous weapons to appellee from the Evidence Room at appellee’s request. Perry also identified various property tags as being documents kept by the Police Department with respect to the missing firearms. Certain tags bore notations such as “escheat” or “destroyed”. Perry testified that these notations were made, inter alia, for those weapons allegedly stolen by appellee in order to explain their disappearance from the Evidence Room. Perry’s firearms transaction records also revealed appellee’s name.

Pursuant to information obtained from Perry, another firearms dealer, Gary Gerard, was questioned. Gerard eventually conceded that he had dealt in firearms with appellee. Gerard consented to a number of electronic interceptions between himself and appellee in March of 1981 and testified as to the substance of those conversations at the preliminary hearing. Transcripts of these conversations were also introduced at the preliminary hearing. These conversations revealed, inter alia, that appellee had requested Gerard to dispose of certain firearms given to him by appellee and to eliminate all references to appellee in Gerard’s records of his firearms transactions. A statement was also introduced concerning conversations between appellee and one Victoria Ann Rieder in March of 1981, to whom appellee had allegedly sold a stolen handgun in November of 1978 and then requested that she disavow any knowledge of the fact that the handgun had been sold, as • opposed to given as a gift, to Rieder.

Preliminarily, we note that an appeal from these orders by the Commonwealth is proper at this time. Where a trial court’s order, if unreversed, would result in the termination of prosecution, an appeal by the Commonwealth is proper. Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822 (1979).

The Commonwealth presents fourteen issues on this appeal, which we summarize as follows:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RAISING, SUA SPONTE, THE QUESTION OF WHETHER AP-PELLEE SHOULD HAVE BEEN CHARGED WITH VIOLATING THE ESCHEAT LAW INSTEAD OF WITH THEFT BY UNLAWFUL TAKING, AND THEREAFTER QUASHING THE ENTIRE CRIMINAL INFORMATION IN LARGE PART UPON. THIS GROUND?
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN QUASHING THE ENTIRE CRIMINAL INFORMATION ON THE BASIS THAT THE COMMONWEALTH HAD ERRED IN FILING CHARGES OF THEFT BY UNLAWFUL TAKING INSTEAD OF ESCHEAT LAW VIOLATIONS?
III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE ESCHEAT LAWS APPLIED TO ALL TWENTY-FIVE COUNTS OF THE INFORMATION CHARGING THEFT OF FIREARMS?
IV. WHETHER THE TRIAL COURT ERRED IN QUASHING THE CRIMINAL INFORMATION AFTER HAVING PREVIOUSLY RULED THAT THE FACTS OF RECORD DID NOT ALLOW A DETERMINATION TO BE MADE AS TO WHETHER APPELLEE SHOULD HAVE BEEN CHARGED WITH AN ESCHEAT VIOLATION INSTEAD OF WITH THEFT?
V. WHETHER THE CLAIM THAT APPELLEE WAS CHARGED IMPROPERLY WITH THEFT BY UNLAWFUL TAKING INSTEAD OF WITH ESCHEAT LAW VIOLATIONS WAS WAIVED BY TRIAL COUNSEL WHERE HE FAILED TO RAISE IT IN A PRE-TRIAL MOTION?
VI. WHETHER THE TRIAL COURT ERRED IN QUASHING COUNT TWENTY-FIVE OF THE INFORMATION CHARGING INTIMIDATION OF WITNESS OR VICTIM-VICTORIA ANN RIEDER?
VII. WHETHER THE TRIAL COURT ERRED IN QUASHING COUNT TWENTY-SIX OF THE INFORMATION CHARGING INTIMIDATION OF WITNESS OR VICTIM-GARY GERARD?
VIII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RAISING, SUA SPONTE, THE ISSUE OF WHETHER 18 Pa.C.S. 4952, INTIMIDATION OF WITNESSES OR VICTIMS, REQUIRES PROOF OF AN ELEMENT OF COERCION?
IX. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RAISING, SUA SPONTE, THE ISSUE OF WHETHER OR NOT APPELLEE’S CONDUCT COULD BE EXCUSED AS DE MINIMUS UNDER 18 Pa.C.S. 312?
X. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND AN ABUSE OF DISCRETION IN QUASHING THE CRIMINAL INFORMATION, IN PART, UPON THE FINDING THAT APPELLEE’S CONDUCT WAS DE MINIMIS, 18 Pa.C.S. 312?
XI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RAISING, SUA SPONTE, THE ISSUE OF WHETHER THE POSSIBILITY THAT ESCHEATABLE. FIREARMS ARE SUBJECT TO DESTRUCTION MAKES THOSE FIREARMS “VALUELESS” THEREBY PRECLUDING CONVICTION OF AN INDIVIDUAL FOR THEFT OF THOSE FIREARMS?
XII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RAISING SUA SPONTE, THE ISSUE OF WHETHER THEFT IS A CRIME AGAINST OWNERSHIP INSTEAD OF AGAINST POSSESSION?
XIII. WHETHER THE TRIAL COURT ERRED IN QUASHING THE CONSPIRACY COUNT?
XIV. WHETHER THE TRIAL COURT ERRED IN QUASHING THE OBSTRUCTING ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION COUNT?

L — V.

The first five issues raised by the Commonwealth concern the propriety of the trial court’s quashing of the remaining twenty-seven counts against appellee in part on the basis that appellee should have been charged with violating the Escheat Law instead of theft by unlawful taking.

Appellee filed his initial omnibus pretrial motion on June 10, 1982 after being granted an extension of time to file said motion. Nowhere in that omnibus motion is the issue raised that appellee should have been charged with violations under the Escheat Law rather than theft by unlawful taking.

Pa.R.Crim.P. 306 states, in part:

Rule 306. Omnibus Pretrial Motion for Relief
(a) All pretrial motions for relief shall be in writing and, unless otherwise required in the interests of justice, shall be presented together in one omnibus pretrial motion.
(e) All grounds for the relief demanded shall be stated in the motion and failure to state a ground shall constitute a waiver thereof.

The comment to Rule 306 states that the omnibus motion shall include motions to quash any indictment or information. A claim that the information or indictment charges the defendant with the wrong crime must be made by written pretrial motion to quash. See Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980); Commonwealth v. Williams, 252 Pa.Super. 587, 384 A.2d 935 (1978). Also, Rule 306(e) requires that all grounds for claiming indictments or informations defective must be stated in an application to quash, and if not so stated must be deemed waived. Commonwealth v. Williams, supra.

Appellee argues that this issue was briefed and argued by the parties subsequent to the August 12, 1982 hearing on his original omnibus motion. However, no written motion including this issue was filed until September 8, 1982, the day after the trial court’s oral order quashing the remaining counts of the information. Hence, this supplemental omnibus motion was untimely. See Pa.R.Crim.P. 307.

The decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980). However, the record in the instant case clearly reveals that appellee failed to properly preserve this issue by its inclusion in a timely omnibus pretrial motion. Therefore the issue has been waived. As such, the trial court erred in ruling on an issue which had been waived by appellee.

VI. — 'VIII.

The sixth through eighth issues concern whether the trial court erred in quashing the two counts of intimidation of witnesses or victims, 18 Pa.C.S. § 4952.

The record indicates that the trial court quashed these counts by its written order filed September 3, 1982. Although the Commonwealth filed a motion for reconsideration of this September 3 order, no averment was made by the Commonwealth in that reconsideration motion that the trial court had erred in quashing the intimidation counts. The two notices of appeal filed by the Commonwealth were from the trial court’s oral order of September 7 and written order of September 24. Neither of these two orders affirmed or modified the trial court’s previous ruling on the intimidation counts. Therefore, as the Commonwealth failed to either appeal the September 3 order directly or include in its motion for reconsideration the trial court’s alleged error in quashing the two counts of intimidation, these issues have not been properly preserved for appellate review. See Pa.R.A.P. 302(a).

IX. — X.

The Commonwealth next argues that the trial court erred (1) in raising the issue of whether these charges were de minimis infractions sua sponte or, in the alternative, (2) by quashing the entire information based, in part, on the de minimis infraction statute, 18 Pa.C.S. § 312.

The statute sets forth:

§ 312. De minimis infractions
(a) General rule. — The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.
(b) Written statement — The court shall not dismiss a prosecution under this section without filing a written statement of its reasons, except that if the attorney for the Commonwealth is the moving party for such dismissal no such written statement need be filed.

The Commonwealth’s first argument concerning this issue is meritless, as neither the statute nor case law requires a defendant to preserve the issue of de minimus infractions by means of inclusion in an omnibus motion. On the contrary, the language of the statute requires the trial court to dismiss the prosecution on its own accord, upon a determination that the defendant’s conduct involved de minimus infractions. See Commonwealth v. Kindness, 247 Pa.Super. 99, 107 n. 5, 371 A.2d 1346, 1350 n. 5 (1977) (dictum).

Concerning the merits of the issue, the trial court determined that sections (a)(2) and (a)(3) of the statute applied to the instant facts. The court based this holding on, inter alia, (1) the fact that the charges more properly fell under the Escheat Law, rather than theft, (2) that the weapons were valueless and therefore not “property”, as defined by the theft statute, (3) that the Commonwealth’s proof of ownership of the weapons was inconclusive and (4) that, because the Department of Revenue was not interested in taking possession of the weapons as permitted under the Escheat Law, there were presented extenuating circumstances not warranting a criminal conviction. We disagree.

Appellee is alleged to have illegally removed firearms from the Erie City Evidence Room. He is also alleged to have personally profited from his sale of various firearms so removed. Evidence also reveals that appellee attempted to cover up the removal and sale of firearms after appellee became aware of the investigation into the disappearance of the firearms.

We perceive absolutely no basis for dismissing such serious allegations as merely de minimus infractions. This is especially true in light of our holding supra that the issue of the application of the Escheat Law has been waived by appellee’s failure to properly preserve said issue in his omnibus motion. As to the trial court’s determination that appellee’s conduct was de minimus because of the lack of value of the firearms, in Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980), this court determined that defendant’s shoplifting of $1.79 worth of merchandise did not warrant dismissal of retail theft charges as de minimus.

XI. — XII.

The Commonwealth argues, in issues eleven and twelve, that the trial court erred in quashing the theft counts, in part, based on a sua sponte determination (1) that the firearms were valueless and (2) that the Commonwealth’s evidence as to ownership of the firearms was inadequate.

Appellee’s omnibus motion makes no mention of the value or ownership of the firearms; therefore, it is apparent that the trial court improperly raised the issue sua sponte. In any event, the trial court’s determination to quash the theft counts on these bases was improper because the inadequacy, incompetency or even illegality of the Commonwealth’s evidence does not constitute grounds for quashing an information. Commonwealth v. Meoli, 307 Pa.Super. 50, 452 A.2d 1032 (1982). Therefore, whether appellee properly raised these issues in his omnibus motion or not, the trial court erred in quashing the information based on the alleged inadequacy of the Commonwealth’s evidence of value and ownership.

XIII. — XIV.

The final two issues raised by the Commonwealth allege that the trial court erred in quashing the counts alleging conspiracy and obstructing administration of law or other governmental function.

We note that the trial court quashed these counts as related to the theft counts which it had previously determined to quash for reasons discussed supra in this opinion. As the trial court erred in quashing the theft counts, the order quashing these two counts must be vacated as well.

That portion of the trial court’s order filed September 24, 1982 which quashed the remaining 27 counts of the information is vacated and the case remanded to the trial court for further proceedings consistent with this opinion.

Jurisdiction is not retained.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I agree with the result reached by the majority, but wish to address its treatment of appellant’s issues I — V and VI — VIII.

As to issues I — V, the majority holds that the lower court erred in ruling on the issue that appellee should have been charged with violations under the Escheat Law rather than with theft by unlawful taking because that issue had not been preserved by its inclusion in a timely, written omnibus pretrial motion. However, appellee argues that the Commonwealth has waived this claim of error by failing to raise it below. In other words, appellee contends that the Commonwealth has waived the issue of appellee’s waiver.

Case law in this jurisdiction has consistently held that the cornerstone of our waiver doctrine is that issues below not raised in a timely manner are foreclosed for purposes of appellate review. Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976). In the vast majority of cases, the rubric “in a timely manner” requires contemporaneous objection; and our rules and cases rigorously enforce the contemporaneous objection rule.
But contemporaneity of objection is not insisted upon as a value in itself, rather it is required as the most convenient method of preventing a party from permitting error to insinuate itself into the record and complaining thereafter.

Commonwealth v. Griffin, 271 Pa.Super. 228, 236-37, 412 A.2d 897, 901 (1979) (citations omitted); see Pa.R.A.P. 302(a) (issues not raised in the lower court are waived).

What is insisted upon, however, is that appellate review be preceded by an opportunity for the lower court to correct any trial errors. Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978). Therefore, I agree with appellee that if the Commonwealth failed to raise the lower court’s error in considering a waived issue in time for the court to correct that error, then the Commonwealth has not preserved that claim of error on appeal. However, I do not find such to be the case.

As noted in the majority opinion, appellee filed his initial omnibus pretrial motion which did not raise the issue that he had been charged with the wrong crime, on June 10, 1982. This motion was untimely and appellant, in its answer to the motion, objected to consideration of any issue raised in it on this basis. Certainly, then, the lower court was made aware that this pre-trial motion was untimely and thus, that any such future motion would also necessarily be untimely. Moreover, appellant also incorporated its objection in its motion for reconsideration of the trial court’s September 14, 1982 order. Thus, I disagree with appellee’s argument that appellant waived this issue.

As to issues VI — VIII, I agree with that portion of the majority’s discussion holding that we cannot consider appellant’s issues raised in conjunction with the lower court’s order of September 3,1982 because no appeal was ever filed from that order. However, having made that determination, I disagree that appellant’s further failure to raise these issues in its motion for reconsideration of the September 3 order is of any consequence. Although I believe it is somewhat questionable whether appellant would have had to have done so to preserve these issues for appeal, that question is moot since appellant, in fact, did not appeal the September 3 order. Thus, I believe we are unable to consider these issues not because they have not been preserved for appeal in the sense of having been waived under Pa.R.A.P. 302(a), but because we have no jurisdiction to consider the September 3 order since no appeal was taken from it.

      . 18 Pa.C.S. § 3921.

      . Id. § 903.

      . Id. § 4952.

      . Id. § 5101.

      . Disposition of Abandoned and Unclaimed Property Act, Act of August 9, 1971, P.L. 286, No. 74, § 1 et seq., 27 P.S. § 1-1 et seq., repealed, Act of December 9, 1982, P.L. 1057, No. 248, § 5, 72 P.S. § 1301.29. The current act is found at 72 P.S. § 1301.1 et seq.
      The trial court determined, inter alia, that the charges should have been brought under the Escheat Law rather than by 18 Pa.C.S. § 3921. It based this conclusion on a determination that the provisions of the Escheat Law were more specific. See Commonwealth v. Vukovich, 301 Pa.Super. 111, 447 A.2d 267 (1982) ("It is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are applicable special penal provisions available.”)

      . To the extent that the trial court’s opinion filed September 3, 1982 states that the issue was raised in part six of appellee’s omnibus motion, it is incorrect.

      . Pa.R.Crim.P. 307 states, in part:
      Rule 307. Time for Omnibus Pretrial Motion and Service
      Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed and served within thirty (30) days after arraignment, unless opportunity therefor did not exist, or the defendant, or his attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.
      Appellee has not argued that he or his attorney were unaware of the issue at the time of filing his initial omnibus motion. Nor has he argued that the filing of a written motion concerning this issue at a time other than as required by Rule 307 was necessary in the interests of justice. Pa.R.Crim.P. 306(a).

      . The Commonwealth also argues that the trial court raised the issue sua sponte. While the law is clear that the trial court may not raise issues sua sponte, Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980), we need not decide how this issue came before the trial court in light of our determination that it had been waived by appellee by his failure to properly preserve it by means of his written omnibus pretrial motion.

        Also, appellee’s waiver of this issue by his failure to include it in a timely pretrial motion precludes him from asserting it in any subsequent proceeding. See Commonwealth v. Harper, 292 Pa.Super. 192, 197 n. 5, 436 A.2d 1217, 1220 n. 5 (1981).

      . Cf. Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1982), in which the Court in determining that the trial judge had improperly raised an issue sua sponte noted that the prosecutor had continually pointed out that the issue was not raised by the defendant and was consequently not before the court.

      . Appellee states that he first raised the issue in question subsequent to the hearing on his June 10, 1982 original omnibus motion in an oral motion which was followed by a September 8, 1982 written motion. The Commonwealth states that this motion was never served upon it and I note that it contains no affidavit or other proof of service and bears the signature of no judge.