author: KELLY, Judge: ROWLEY, Judge,

text:
    539 A.2d 371
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles FELIX, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued May 28, 1987.
    Filed March 14, 1988.

      Hugh Burns, Jr., Assistant District Attorney, Philadelphia, for Com., appellant.
    Dale G. Larrimore, Philadelphia, for appellee.
    Before ROWLEY, KELLY and WATKINS, JJ.
   KELLY, Judge:

The Commonwealth appeals from a sentence of “time in” (four months) to twenty-three months imposed upon appellee Charles Felix, Jr., following his conviction in a bench trial of burglary and theft. The Commonwealth argues that the trial court abused its discretion by unreasonably sentencing appellee below the applicable mitigated minimum range. Despite the subsequent invalidation of the sentencing guidelines, we find that: the appearance of a substantial question as to the appropriateness of the sentence imposed, considering the Sentencing Code as a whole, is presented; the gravamen of the Commonwealth’s challenge to the discretionary aspects of sentence is that the sentence imposed is excessively lenient under the circumstances; and, the trial court did abuse its discretion by imposing an excessively lenient sentence. We vacate judgment of sentence and remand for resentencing.

I.

The pertinent facts and procedural history may be summarized as follows. Appellee circulated flyers advertising his willingness to complete small home repairs as an independent contractor (handyman). Michael and Rene Klein hired appellee to repair their back door. After the repair work was done and while the Kleins were not home, their home was burglarized. A neighbor reported seeing appellee return to the Klein residence during the time period when the burglary occurred. A warrant was issued to search appellee’s residence and a gold necklace was discovered which was identified as being one of the items taken in the burglary.

A bench trial was conducted on January 5, 1984. Appellee claimed the gold necklace was his and not the one stolen from the Kleins. Appellee also presented an alibi defense. Nonetheless, appellee was convicted of burglary and theft. Post-verdict motions were filed and denied. On May 10, 1984, the trial court sentenced appellee to two concurrent sentences of “time-in” (four months) to twenty-three months imprisonment.

On May 17, 1984, the Commonwealth filed a timely motion for reconsideration of sentence. The Commonwealth contended that the sentence was unreasonable in that: it was substantially below the applicable mitigated minimum range; mitigating circumstances were negligible; appellee’s extensive criminal record including 21 arrests, 13 convictions, and several parole and probation violations were not fully reflected in the prior record score computation and therefore constituted a countervailing aggravating factor; and, the psychiatric evaluation indicated that appellee's prognosis for “adequate adjustment” was “marginal at best.” On May 17, 1984, sentence was vacated pending consideration of the Commonwealth's motion. Following a brief hearing on September 12, 1984, the Commonwealth’s motion for reconsideration was denied and sentence was reinstated. Timely notice of appeal was filed and the case is now properly before us for disposition.

II.

On appeal, the Commonwealth contends that the sentence imposed is excessively lenient and constitutes an unreasonable deviation from the applicable guideline ranges. This is a challenge to a discretionary aspect of sentence.

This Court explained in Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987):

Under Pennsylvania law, neither the defendant nor the Commonwealth may take an appeal as of right from the discretionary aspects of sentence. Rather, “[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa.C.S.A. § 9781(b). Our Supreme Court indicated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal (see Pa.R.A.P. 902 & Note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and, the appellant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(c) (see Pa.R.A.P. 2119(f)). 522 A.2d at 18-19.

366 Pa.Superior Ct. at 601-602, 531 A.2d at 1146.

A.

In the instant case, timely notice of appeal was filed; the Commonwealth’s challenge to the discretionary aspects of sentence was included in the statement of question presented; and, the Commonwealth included in its brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal. Thus, the Commonwealth has satisfied the procedural requirements for properly raising a challenge to discretionary aspects of sentence.

B.

Next, we must determine whether appellant has raised the appearance of a substantial question as to whether the sentence imposed is appropriate under the Sentencing Code as a whole. Under the plain language of 42 Pa.C.S.A. § 9781(b), the appearance of a substantial question determines whether this Court may grant allowance of appeal of the discretionary aspects of sentence, while the sound discretion of this Court determines whether this Court will grant review. Commonwealth v. Darden, supra, 366 Pa. Superior Ct. at 603, 531 A.2d at 1147; see also Commonwealth v. Douglass, 370 Pa.Super. 104, 113-114, 535 A.2d 1172, 1177 (1987) (Kelly, J., concurring).

1.

In order to determine whether the Commonwealth has raised the appearance of a substantial question in the instant case, we must first decide, at least generally, what a “substantial question” is. Our task has been narrowed somewhat by the legislature; 42 Pa.C.S.A. § 9781(c) provides:

Determination on appeal.- — The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

(Emphasis added). Unless an appellant establishes one of these three grounds to vacate sentence, this Court is under a statutory mandate to affirm judgment of sentence. It follows, necessarily, that presentation of at least an arguable claim that the sentence should be vacated under one of these grounds is minimally required to establish a substantial question. Cf. Commonwealth v. Tilghman, 366 Pa.Super. 328, 330-31, 531 A.2d 441, 443-44 (1987); Commonwealth v. Easterling, 353 Pa.Super. 84, 509 A.2d 345 (1986).

In construing the language of 42 Pa.C.S.A. § 9781(c)(2) and 42 Pa.C.S.A. § 9781(c)(3), it is important to note that this Court’s former dictum that “only in exceptional cases and for sufficient reasons may a court deviate from the guidelines,” has been abandoned. In Commonwealth v. Darden, supra, this Court noted that our Supreme Court’s opinion in Commonwealth v. Tuladziecki, supra, eroded, if not overruled sub silentio, any basis for reliance on the former dictum. This Court then concluded:

[W]hile the sentencing court is required to ‘consider’ the applicable guidelines, and while the reasons for any deviation from the applicable standard range of the guidelines must be explained in writing, the determination of whether the sentence is ‘not appropriate,’ ‘clearly unreasonable,’ or ‘unreasonable’ must be made with reference to the Sentencing Code as a whole, not solely with reference to the provisions of the sentencing guidelines.

366 Pa.Superior Ct. at 608, 531 A.2d at 1150. (Emphasis in original). Our analysis in Darden is supported by our Supreme Court’s explanation in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), that:

Most important, the court has no ‘duty’ to impose a sentence considered appropriate by the Commission. The guidelines must only be ‘considered’ and, to ensure that such consideration is more than mere fluff, the court must explain its reasons for departure from them. Viewed in this manner, the guidelines are essentially a sophisticated compilation and distillation of a vast range of factors affecting the sentencing process in the abstract, accomplished by persons of expertise representing a broad spectrum of interests. The legislature with the governor’s approval has deemed it proper that the findings of such a body, assembled to assist it in developing and overseeing a sound sentencing system, be given practical application in individual cases as well. We may say that in directing courts to consider these guidelines, just as they must consider a number of listed though non-exclusive factors in imposing probation, the legislature has done no more than direct that the courts take notice of the Commission’s work.

516 Pa. at 377, 532 A.2d at 781; see also Commonwealth v. Douglass, supra, 370 Pa.Superior Ct. at 110-113, 535 A.2d at 1174-1176; Commonwealth v. Pickford, 370 Pa.Super. 444, 448-451, 536 A.2d 1348, 1350-51 (1987) (Kelly, J., concurring and dissenting).

From the foregoing we conclude that in accordance with the provisions of 42 Pa.C.S.A. § 9781(c), in order to raise the appearance of a substantial question, an appellant must present at least an arguable claim that:

1) the sentencing court purported to sentence within the guidelines, but applied the guidelines erroneously;
2) the sentencing court sentenced within the guidelines (including aggravated or mitigated ranges), but the case involved circumstances which rendered application of the guidelines “clearly unreasonable ” considering the Sentencing Code as a whole; or,
3) the sentencing court sentenced outside the guidelines, and the sentence was “unreasonble ” considering the Sentencing Code as a whole.

Within these general parameters broad discretion remains as to whether allowance of appeal will be granted. A claim may be arguable and yet be deemed to be less than substantial. Moreover, the standards themselves involve such elastic concepts as “appropriateness” and “reasonableness.” Nonetheless, as construed herein, 42 Pa.C.S.A. § 9781(c) provides the basic substantive format within which challenges to the discretionary aspects of sentence must be presented.

2.

Some controversy exists with regard to where this Court must look to determine whether an appellant has raised the appearance of a substantial question. In Commonwealth v. Darden, supra, this Court explained:

In Commonwealth v. Tuladziecki, supra, our Supreme Court made it clear that our determination as to whether a substantial question was presented was to be made separate and distinct from any review of the merits of the petition. 522 A.2d at 19-20.

366 Pa.Superior Ct. at 603, 531 A.2d at 1147. In Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987), this author explained:

[TJhere appears to be some question as to whether the requirement of the separate, concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) required by Pa.R.Crim.P. 2119(f) is jurisdictional or procedural in nature. Compare Commonwealth v. Hawthorne, supra [364 Pa.Super. 125, 527 A.2d 559 (1987)] and Commonwealth v. Lapcevich, supra [367 Pa.Super. 151, 527 A.2d 572 (1987) ] (Del Sole, J., concurring). The distinction, however, may be more one of semantics rather than of substance.
Because timely notice of appeal acts as an initial petition for allowance of appeal in such cases, at least provisional jurisdiction is thereby acquired. See Pa.R.A.P. 902 & Note. However, as Commonwealth v. Hawthorne, supra, demonstrates, the failure to comply with Pa.R.A.P. 2119(f), has a substantive effect in that without at least “substantial compliance” with Pa.R.A.P. 2119(f) (see Commonwealth v. Lapcevich, supra; Commonwealth v. Bogden, supra [364 Pa.Super. 300, 528 A.2d 168 (1987) ]), the appellant/petitioner will be unable to meet his burden to establish the appearance of a substantial question regarding the appropriateness of the sentence imposed. See 42 Pa.C.S.A. § 9781(b).
While an opponent can certainly waive a procedural defect such as this, this Court is clearly not at liberty to ignore the defect and proceed to review of the merits of the claim. This Court stated in Commonwealth v. Hawthorne, supra:
In light of the unequivocal terms in which the Supreme Court views compliance with our Rules of Appellate Procedure, in this area of discretionary appeals (‘precise’ adherence is to be the benchmark and not the exception), we deem the Commonwealth’s failure to provide anywhere in its brief a ‘concise statement of reasons’ for contesting the discretionary aspect of the sentence to be fatal to its appeal.
The fact that the defendant did not raise specifically the matter in her brief is overridden by this Court’s obligation to assure itself that our rules of court are followed. See e.g., Commonwealth v. Drew, 353 Pa. Super. 632, 510 A.2d 1244 (1986); Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1984); Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984); Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982). Such policing of an appellant’s brief is now re-enforced by the remarks and ruling of the Court in Tuladziecki, supra.
364 Pa.Superior Ct. at 135-136, 527 A.2d at 564 (footnote omitted).
Under such analysis, a petition for allowance of appeal of discretionary aspects of sentence may be quashed, dismissed, or denied based upon the existence of a substantial procedural defect. See Pa.R.A.P. 902; Pa.R.A.P. 2101. Nonetheless, whether the petition for allowance of appeal is quashed based upon a jurisdictional defect, or it is quashed, dismissed, or denied based upon a substantial procedural defect, the effect on an appellant is the same — appellant is denied review of the merits of his challenges to the discretionary aspects of the sentence imposed based solely upon the failure of counsel to comply with Pa.R.A.P. 2119(f).
I find the Hawthorne analysis compelling up to the point that it concludes that the appeal from the discretionary aspects of sentence must be quashed. It is at that point, I believe, that Judge Hoffman’s suggestion — that we simply enforce the rule and direct compliance with Pa.R. A.P. 2119(f) — carries the weight of reason.

366 Pa.Superior Ct. at 83, 530 A.2d at 902-03. (Kelly, J. concurring). (Emphasis added).

Nonetheless, a closely divided en banc panel of this Court in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (per Wieand, J.; Rowley, Montemuro, Beck, and Tamilia, JJ., join), purported to reject the Hawthorne analysis outright, and held that the failure to comply with Pa.R. A.P. 2119(f) was a procedural defect which could be waived. 367 Pa.Superior Ct. at 519, 533 A.2d at 138. But see id,., 367 Pa.Superior Ct. at 520, 533 A.2d at 139) (Brosky, J., dissenting; Cirillo, P.J., and Popovich and Johnson, JJ., join). The Krum majority gave no indication, however, how the mandates of 42 Pa.C.S.A. § 9781(b) and Tuladziecki were to be met without at least substantial compliance with Pa.R.A.P. 2119(f); gleaning through the entire argument section of appellant’s brief for indications of the appearance of a substantial question was precisely the practice Tuladziecki condemned. Commonwealth v. Tuladziecki, supra, 513 Pa. at 513, 522 A.2d at 19-20; see also Commonwealth v. Pickford, supra, 370 Pa.Superior Ct. at 452-454, 536 A.2d at 1352-53. (Slip Opinion at 8-9). In light of the foregoing, we note explicitly that in determining whether the appearance of a substantial question has been presented in the instant case, we do not look beyond the Commonwealth’s statement of questions presented and the Commonwealth’s Pa.R.A.P. 2119(f) statement.

3.

The Commonwealth’s statement of question presented asks:

Did the sentencing court err in deviating from the guidelines by imposing a four month sentence for a first degree felony burglary, where the twenty-three-year-old defendant was a chronic recidivist with record of thirteen prior crimes including four burglaries and his latest crime violated one parole sentence and two probation sentences?

(Commonwealth’s Brief at 3). In its concise statement of the reasons for allowance of appeal the Commonwealth explained:

This case presents a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Defendant was convicted of burglary as a first degree felony. He had thirteen prior convictions for adult crimes and juvenile felonies, including four pri- or burglaries. He served only four months imprisonment under the sentence imposed below. The sentencing court gave no proper consideration to the protection of the public, the nature and circumstances of the crime, defendant’s history and characteristics, presentence investigation, or the sentencing guidelines. The sentence imposed also depreciates the serious nature of defendant’s crime. See 42 Pa.C.S.A. §§ 9721, 9722, 9725. Appeal should therefore be allowed.

(Commonwealth’s Brief at 7). Read together, the statement of question presented and the Pa.R.A.P. 2119(f) statement raise the appearance of a substantial question required by 42 Pa.C.S.A. § 9781(b). Succinctly, awarding a youthful career criminal, whose current offense violates current probation and parole sentences, a sentence on a first degree felony conviction of four to twenty-three months (which is far below even the mitigated minimum sentencing range applicable) raises the appearance of a substantial question under 42 Pa.C.S.A. § 9781(c)(3), i.e. the sentence imposed was outside the guideline ranges and was unreasonable considering the Sentencing Code as a whole.

4.

We note, however, that we do not recommend the above Pa.R.A.P. 2119(f) statement as a model for future cases. In Commonwealth v. Douglass, supra, this author explained:

[T]he mandate of 42 Pa.C.S.A. § 9781(b) is not fulfilled by the mere incantation of the language of one of the subprovisions of 42 Pa.C.S.A. § 9781(c). Our former practice was struck down as having improperly enlarged an appellant’s right to appeal. Would a construction of 42 Pa.C.S.A. § 9781(b) and Pa.R.A.P. 2119(f) which merely required the incantation of conclusions of law or particular statutory language have any real or practical effect on the decision of whether to grant allowance of appeal? Assuredly not. Our Supreme Court explained:
Our insistence on separate presentation of these issues is more than mere formalism; important concerns of substance guide this decision. In addition to preserving the respective rights of both parties according to the jurisdictional scheme provided by the legislature, it furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.
Commonwealth v. Tuladziecki, supra, 513 Pa. at 513, 522 A.2d at 19-20. This purpose can only be effectuated if this Court requires that appellant’s concise statement contain specific allegations of fact, rather than mere conclusions of law. Moreover, because the determination as to whether appellant’s allegations are sufficient to raise the appearance of a substantial question must be separate and distinct from the review of the merits of the appeal, the factual allegations in the statement must be accepted as a true and complete statement of the relevant facts for this limited purpose. Only in this way can the requirement of a separate review of the statement rise above mere formalism and achieve its substantive purpose of limiting discretionary review on the merits to “exceptional case[s].”

370 Pa.Superior Ct. at 456-459, 535 A.2d at 1176-1177; see also Commonwealth v. Darden, supra, 366 Pa.Superior Ct. at 603-604, 531 A.2d at 1147.

The Commonwealth’s Pa.R.A.P. 2119(f) statement in the instant case consists primarily of incantations of statutory provisions and pronouncements of conclusions of law; nonetheless, when read together with the statement of question presented, sufficient assertions of fact exist to raise a substantial question under 42 Pa.C.S.A. § 9781(c)(3). In the future, however, reference to the guideline ranges applicable and a complete statement of factual assertions in support of any challenge under 42 Pa.C.S.A. 9781(c)(2) or 42 Pa.C.S.A. § 9781(c)(3) is highly recommended.

C.

Based upon the foregoing, we find the appearance of a substantial question is presented; thus, we may in our discretion grant allowance of appeal in the instant case. See Commonwealth v. Darden, supra, 366 Pa.Superior Ct. at 604, 531 A.2d at 1147. In exercising this discretion, we may look to the record; where the record reveals that appellant’s assertions are unfounded or material omissions have been made with regard to the basis for the sentence imposed, this Court may deny allowance of appeal. Id. In the instant case, however, the record sustains and indeed supplements the Commonwealth's assertions. Accordingly, we grant allowance of appeal of the discretionary aspects of sentence.

III.

Before proceeding to the merits of the appeal, another issue remains to be resolved. While Commonwealth v. Sessoms, supra, clarified substantially the nature of the guidelines and their relation to the Sentencing Code as a whole, the decision, on the other hand, raised new questions regarding appeals challenging a trial court’s deviation from the applicable sentencing guidelines. In Sessoms, our Supreme Court held that the 1982 guidelines were invalid as the result of constitutional defects in the adoption procedures. Where a challenge to the application of the guidelines in a particular case, based upon an assertion that the guidelines were not properly adopted has been preserved at each level of review, sentence must be vacated and the case must be remanded for resentencing. Commonwealth v. Sessoms, supra, 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2.

When, on the other hand, the adoption procedures issue has not been properly preserved, the effect of Sessoms depends upon the appellant’s specific grounds for a challenge to the discretionary aspects of sentence. If appellant challenges the application of the guidelines by the trial court, then the appeal will be decided without reference to the invalidity of the guideline adoption procedures, as the issue is deemed to have been waived. See Commonwealth v. Samuels, 516 Pa. 300, 304 n. 4, 532 A.2d 404, 406 n. 4 (1987). Where the appellant challenges only the trial court’s refusal to apply a guideline provision, the appeal must fail. An appellate court may affirm a lower court for any reason, whether or not that reason was stated as the basis for the decision in the court below; thus, the failure to preserve an adoption procedures challenge would not preclude affirmance on such grounds when appeal is predicated solely on the refusal of the trial court to apply the guidelines or provisions thereof. Succinctly, no prejudice could result from the refusal to apply invalid guidelines. See Commonwealth v. Taylor, 516 Pa. 21, 531 A.2d 1111 (1987); see also Commonwealth v. Pickford, supra, 370 Pa.Superior Ct. at 457 n. 3, 536 A.2d at 1355 & n. 3, citing Commonwealth v. Terry, 513 Pa. 381, 402, 521 A.2d 398, 409 (1987).

A more complicated situation arises with regard to a challenge under 42 Pa.C.S.A. § 9781(c)(3). Such a challenge is predicated, not only upon an assertion that the trial court has deviated from the guidelines, but also upon an assertion that the sentence imposed is unreasonable considering the Sentencing Code as a whole. As a challenge under § 9781(c)(3) does not rest solely on the non-application of the guideline recommendation, the invalidity of the guideline adoption procedures would not provide a basis to affirm the sentence on alternate grounds. Whether or not the guidelines are considered, the basic gravamen of the chailenge to discretionary aspects of sentence remains that the sentence imposed was unreasonable considering the Sentencing Code as a whole. Consequently, we find that, unlike the situation in Commonwealth v. Taylor, supra, a challenge under 42 Pa.C.S.A. § 9781(c)(3) is not controlled by our Supreme Court’s decision in Commonwealth v. Sessoms, supra.

IV.

Our disposition on the merits of the appeal is simple and direct. Upon review of the record we find that the trial court abused its discretion by imposing an excessively lenient sentence.

A.

At age twenty-four this youthful career criminal has amassed a substantial record of criminal activity. As a juvenile, appellee was arrested ten times, adjudicated delinquent four times, and committed once. His juvenile record includes three burglary adjudications. As an adult, appellee has been arrested eleven times and convicted nine times. Six of appellee’s convictions resulted in sentences of probation; appellee has been cited eight times as a probation violator and once as a parole violator. His adult convictions include burglary, forgery, simple assault, theft, and resisting arrest offenses.

A court-ordered psychological evaluation of appellee concluded:

This man is capable of understanding a sentencing procedure. He has had numerous contacts with the law and does not learn from] past experiences which may imply some sociopathic problems____ [W]hen he is released in the community he should be given close supervision____ The prognosis for adequate adjustment, however, seems marginal at best.

(Mental Health Evaluation, dated 1/12/84 at 4).

Appellee's current offenses were burglary and theft. Burglary, the greater offense, is a first degree felony; the statutory limits for such an offense is a minimum sentence of ten years and a maximum sentence of twenty years imprisonment. With an offense gravity score of six and a prior record score of six, the applicable guideline ranges were as follows: mitigated minimum range, 25 to 33 months; standard minimum range 33 to 49 months; and aggravated minimum range 49 to 61 months. Appellee’s actual sentence was “time-in” (four months) to 23 months. The maximum sentence imposed was below the lowest sentence recommended in the mitigated minimum sentence range.

In response to the Commonwealth’s objections that the sentence was too lenient, the trial court explained:

THE COURT: If I am going to gamble, I will gamble the whole way. If I think that is what the sentence ought to be, that is what I mil give him.
On the other charges, on the record note the objection by the District Attorney’s office.
They will be concurrent sentences on the other charges.
All right, I wish you luck.
THE DEFENDANT: Thank you, Your Honor.
[THE PROSECUTOR]: Your Honor, will you state the reasons for the deviations from the guideline?
THE COURT: Yes. I thought I already have.
This Court believes that this change of circumstances on the part of the defendant caused the Court to consider something less than mitigated penalty: That he is presently married, I was responsible for that, I guess, married in court.
Number two, that the young lady to whom he is married is with child —when is delivery date?
MRS. FELIX: June 2nd.
THE COURT: June 2nd.
And there’s been testimony by Mr. Higgins who is with that parole outfit, You-Help, from the archdiocese, who is going to assist in perhaps one of the things that might have caused the trouble, his employment, and he has that, as a painter.
And I believe that having been in there [jail] for four and a half months, he ought to have chilled off from the thrill of your dope thing, right?
THE DEFENDANT: Yes, Your Honor.
THE COURT: I wish you luck.

(N.T. 5/10/84 at 4-5). (Emphasis added).

B.

In Commonwealth v. Tuladziecki, supra, our Supreme Court explained:

It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent that the legislature has provided a thorough, though not exhaustive, outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.

513 Pa. at 515, 522 A.2d at 20. In the instant case, the Commonwealth has properly preserved its challenge to the discretionary aspects of sentence and has articulated specific compelling reasons which persuade this Court that the sentence imposed is excessively lenient and must be vacated.

Balanced in support of the reasonableness of the sentence imposed is the deference this Court must accord the trial court’s evaluation of the sincerity of appellee’s desire to become a responsible husband and father, to secure and continue lawful employment, and to abide by laws which appellee broke with regularity in the past. Although there is great truth in the adage that the best gauge of the future is the past, it is nonetheless the prerogative of the trial court to believe or disbelieve such avowals of conversion to principles of good citizenship. The reasonableness of the sentence imposed is also supported by testimony that employment assistance and counselling would be arranged for appellee through a local social service organization.

Balanced against the reasonableness of the sentence are several factors. The offense involved was burglary, a first degree felony. Appellee had a staggering record of criminal conduct as a juvenile and as an adult; this was appellee’s fourth burglary offense. Previous attempts at rehabilitation were unqualified failures; indeed, the current offense violated two probation sentences and parole. Finally, despite appellee’s avowals of reformation, the court ordered mental health evaluation indicated that appellee’s prognosis for “adequate adjustment” seemed “marginal at best.”

The minimum sentence imposed, “time in” (four months), was far below even the mitigated minimum sentence range applicable. Under the circumstances indicated above, we find that the trial court’s hopeful “gamble” (N.T. 5/10/84 at 4) on appellee’s avowed reformation was an abuse of the broad discretion vested in the trial courts. The mitigating factors identified by the trial court were simply insufficient to justify so excessively lenient a sentence, especially considering the serious countervailing aggravating factors also present in the instant case.

CONCLUSION

Based on the foregoing, allowance of appeal from the discretionary aspects of sentence is granted, sentence is vacated, and the case is remanded for resentencing. Jurisdiction of the Court is relinquished.

ROWLEY, J., files dissenting statement.

ROWLEY, Judge,

dissenting:

I respectfully dissent. The imposition of sentence is a matter vested in the discretion of the trial court, and on appeal, we can vacate the sentence and remand for resentencing only if there has been a manifest abuse of discretion, Commonwealth v. Plank, 498 Pa. 144, 445 A.2d 491 (1982), or if the sentence exceeds the statutorily prescribed limits for a sentence. Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981). An abuse of discretion is more than simply an error of judgment; an abuse of discretion will not be found unless the trial court’s judgment is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. Commonwealth v. Lane, 492 Pa. 544, 424 A.2d 1325 (1981). Ordinarily, an appellate court should not disturb a sentence so long as it is within the statutory limits because the trial court is in a much better position to weigh the factors involved in sentencing. Commonwealth v. Scatena, 332 Pa.Super. 415, 481 A.2d 855, reversed on other grounds, 508 Pa. 512, 498 A.2d 1314 (1985). Moreover, it is not the function of the appellate court to determine whether it agrees with the reasons of the trial court for imposing a particular sentence or whether it would impose the same sentence were it the trial court. Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982); Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981). Our standard for reviewing a sentence is limited to ascertaining whether or not there is a manifest abuse of the trial court’s discretion.

Applying this standard of review to the present case, I conclude that the trial court did not abuse its discretion in sentencing appellee. Regardless of whether I or any of the other judges on this panel might have imposed the same sentence were any of us the trial judge, nevertheless, I perceive nothing in the record to indicate that the sentence imposed is manifestly unreasonable or that is a result of any bias or prejudice. Moreover, the sentence is within the statutory limits. Therefore, I find no basis for concluding that the trial court abused its discretion and I would affirm the judgment of sentence.

Moreover, although the sentence imposed is outside the guidelines, upon remand, there will be no guidelines for the trial court even to consider, regardless of the fact that the constitutionality of the guidelines has not been raised in the present appeal. See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) and Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404, (1987). Therefore, should the trial court reimpose the identical sentence, appellant will not then be able to argue on a second appeal that the sentence is outside the guidelines. The sentence would be within the statutory limits, and in the absence of any evidence of manifest unreasonableness of the sentence or of bias or prejudice, there could be no abuse of discretion and we would have to affirm the sentence imposed by the trial court.

Although I do not join in any portion of the majority’s opinion, I also write separately to express my specific disagreement with the majority’s conclusion that where a Pa.R.A.P. 2119(f) statement has been included in the appellant’s brief, we may look at not only that statement, but also the statement of questions presented to determine whether there is a substantial question that the sentence is inappropriate under the Sentencing Code. Under Pa.R.A.P. 902, the notice of appeal operates as a petition for allowance of appeal from the discretionary aspects of sentence. The exclusive purpose of the statement of reasons for allowance of appeal, which is required to be included in the brief when one appeals from the discretionary aspects of sentencing, is to expand upon the petition and provide the reasons why the petition should be granted. Thus, the notice of appeal and the statement of reasons for allowance of appeal alone constitute the actual petition for allowance of appeal and alone contain the matters which can be considered in determining whether to grant the petition for allowance of appeal. The statement of questions presented, summary of argument, argument, conclusion and the record itself are matters which it is appropriate to examine only after the petition for allowance of appeal has been granted.

Moreover, if the requirement of filing a statement pursuant to Pa.R.A.P. 2119(f) is to have any meaning, then we must be required to look no further than this statement to determine whether or not to exercise our jurisdiction and grant permission to appeal. If we are permitted to examine statements outside the concise statement of reasons for allowance of appeal, such as the statement of questions presented, in order to have sufficient information to rule upon the petition for allowance of appeal, then there is no reason for specifically mandating, as the Supreme Court has done, in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that the concise statement be included to complete the petition for allowance of appeal. If the information contained within the statement of reasons for allowance of appeal lacks adequate specificity for us to determine that there is a substantial question warranting the exercise of our discretionary jurisdiction, it is inappropriate for us to look to any of the materials filed pursuant to an ordinary appeal, such as the statement of questions presented or the summary of the argument to satisfy the inadequacy of the statement of reasons.

Justice Zappala stated in Commonwealth v. Tuladziecki, 513 Pa. 508, 512-15, 522 A.2d 17, 19-20 (1987), that the purpose of the procedure set forth in the appellate rules regarding appeals from the discretionary aspects of sentencing is to limit to exceptional cases challenges to the trial court’s evaluation of the multitude of factors considered at sentencing. It is the obligation of the appellant to set forth in the statement of reasons facts supporting the conclusion that the appellant’s case is one of those exceptional cases. It is not our responsibility, nor our prerogative to search through various portions of an appellant’s brief seeking information to substantiate the petition for allowance of appeal. Furthermore, this court has held that failure to set forth adequate information, such as the length of the sentence and the crimes for which it was imposed, in the statement of reasons relied upon for allowance of appeal prevents us from finding that there is a substantial question that the sentence is inappropriate under the Sentencing Code. Commonwealth v. Cummings, 368 Pa.Super. 341, 534 A.2d 114 (1987). Therefore, I specifically dissent from the majority’s determination that where a Pa.R.A.P. 2119(f) statement of reasons has been included in the appellant’s brief, we may examine not only that statement but also the statement of questions presented to determine whether or not to grant the petition for permission to appeal.

      . An allegation that the trial court failed to set forth the reasons for sentence as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and 42 Pa.C.S.A. § 9721(b) may constitute an additional statutory ground for a challenge to discretionary aspects of sentence. See Commonwealth v. Osborn, 364 Pa.Super. 505, 518-20, 528 A.2d 623, 630-31 (1987); see also Commonwealth v. Douglass, supra, 370 Pa.Superior Ct. at 110 n. 2, 535 A.2d at 1175 n. 2; Commonwealth v. Tilghman, supra, 366 Pa.Superior Ct. at 332 n. 2, 531 A.2d at 443 n. 2.

      . See e.g. Commonwealth v. Fluellen, 345 Pa.Super. 167, 171, 497 A.2d 1357, 1359 (1985), quoting Commonwealth v. Hutchinson, 343 Pa.Super. 596, 598, 495 A.2d 956, 958 (1985).

      . Included in this category would be challenges to the trial court’s construction of guideline provisions and challenges to the provisions themselves.

      . Included in this category would be challenges in cases where the guidelines applied but were not followed, and cases to which the guidelines did not apply (e.g. sentence following probation revocation, 204 Pa.Code § 303.1(f)).

      . Hawthorne, however, did not hold that the opposing party could not waive its objection to the failure to comply with Pa.R.A.P. 2119(f); rather, Hawthorne and Zeitlen both held that any waiver is overridden by the court’s obligation to enforce this particular rule in order to meet the mandate of Tuladziecki.

      . Our comments in this regard should not in any way be construed as disparaging the representation provided by counsel for the Commonwealth. Rather, this case provides a vehicle to resolve common, even universal, questions as to what constitutes a substantial question and what should be contained within a Pa.R.A.P. 2119(f) statement which havé arisen in the wake of Commonwealth v. Tuladziecki, supra, and its progeny.

      . Appellee asserts that Dr. Levitt "specifically recommended a short period of incarceration followed by a long period of regular counsel-ling and therapy under the close supervision of the probation department.” (Appellee’s Brief at 4). In support of this assertion, appellee’s counsel has attached an affidavit, signed by himself, summarizing post-verdict conferences and proceedings. (Appellee’s Reproduced Record at 2A). This supplement is not properly before the court. See Pa.R.A.P. 1926. We note that while both of Dr. Levitt’s written reports recommend that appellee receive counselling and close supervision when he is released from incarceration, neither express an opinion as to how long appellee should be incarcerated before such release. (Mental Health Evaluation 4/19/84 at 2; Mental Health Education 1/12/84 at 4). Additionally, we note that the trial court made no mention of any such recommendation in his statement of the reasons for the sentence imposed. (N.T. 5/10/84 at 1-7).

      . Cf. Commonwealth v. Mills, 344 Pa.Super. 200, 496 A.2d 752 (1985) (multiple burglary offenses, and violation of probation demonstrated aggravating circumstances); Commonwealth v. Darden, supra, 366 Pa.Superior Ct. at 605, 531 A.2d at 1148-49 (prior record score did not begin to take account of appellant’s staggering record of criminal activity; the unincorporated prior record constituted a substantial aggravating factor).

      . We note that we do not consider or give any weight to references in the Commonwealth’s brief to a threat which may or may not have been made by appellee against the Kleins immediately after the verdict was entered. (Compare Commonwealth’s Brief at 4, 11-12, and Appellee’s Brief at 3). Additionally, while there is testimony of record to support the Commonwealth's assertions that the house was "ransacked" (see N.T. 1/5/84 at 19, 32), we do not find this fact to be of particular significance in the disposition of the instant appeal. (Compare Commonwealth’s Brief at 4, 10, and Appellee’s Brief at 2).


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    539 A.2d 383
    Sam IORFIDA, Margaret Pellicia, Grace Mullen, William Rinaldi, Mary Ann Rinaldi, Theresa Rossi, Nicholas Rossi, Eugene C. Donnelly, Cheryl C. Donnelly, Vincent J. Gross, Eugene J. Cameli, Mariane C. Cameli, Leo C. Moran, Mary Ellen Moran, Peter Ridolfi, John Ridolfi, Donald D. Barnhart, Margaret M. Barnhart, Joseph E. Stella, Clare Stella, Recolus Yaniello, Evelyn A. Yaniello, Alba Matteuci Sebastianelli, Donald R. Taroli, Alfonso Zangardi, Mirella Pega, Martin L. Vitcosky, Daisy Vitcosky, Joseph M. Tierney, Helen C. Tierney, Theresa Chiavacci, Daniel Rosencrance, Jeanette Charge, Margaret Rowan, Lucy Valenti, Samuel Pagliamete, Catherine Pagliamete, James A. Pisano, Jr., Mary C. Pisano, Barbara Rose Zangardi, Appellants, v. MARY ROBERT REALTY COMPANY, INC., Michael G. Lefchak, Josephine Lefchak, Salvatore J. Sperrazza and Doris Sperrazza, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1988.
    Filed March 16, 1988.

      Paul A. Barrett, Scranton, for appellants.
    Arthur L. Piccone, Wilkes-Barre, for appellees.
    Before CIRILLO, President Judge, and McEWEN and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal from a final decree of the Court of Common Pleas of Luzerne County disposing of the parties’ exceptions to the decree nisi and making final its denial of the injunctive relief requested by appellants.

Appellants brought an action in equity seeking to enjoin appellees Lefchak and Sperrazza from continuing to obstruct and interfere with appellants’ easement over an alleyway traversing the rear portions of their adjoining properties and an order requiring the removal of fences located there. Appellants claimed, and the court found, an implied easement appurtenant by reference to two maps: one made by Pennsylvania Coal Company, their common source of title, and referred to in their deeds of conveyance, and the other an unrecorded subdivision map, both showing the unnamed alley in question. In appellees’ new matter was this paragraph, numbered forty-four, which is crucial to disposition of this appeal:

That the alley way in question has in fact been blocked for a period of over 46 years, by virtue of the existence of a garage, an ice cream store being located upon the alley way in question, and thereafter being blocked by fences and prior to both of those blockages, by being normally unpassable because of debris, rocks, trees and other fauna [sic] located thereon and as a result thereof, since this condition has existed in excess of 46 years, the Plaintiffs are guilty of laches and therefore are denied any right to proceed either at law or in equity.

After a hearing at which conflicting testimony as to the extent of use of the alley was presented, the chancellor found inter alia that, since the Stellas, two of the appellants in this action, had acted to block the alleyway to a material extent for a minimum of ten years and the alleyway now showed no evidence of vehicular travel, the easement had been abandoned.

The opinion of the chancellor rendered in conjunction with the issuance of the decree nisi does not address the issue of laches, which was specifically raised in appellees’ paragraph forty-four, but deals strictly with the existence of the easement and the finding of abandonment. Based on the duration of a blockage by two appellants (the Stellas had a garage and ice cream store which at least partially encroached on the easement until approximately 1979 when it was demolished) and the acquiescence of the remaining appellants in this blockage, as evidenced by their failure to avail themselves of legal action to oppose such usage on the part of the Stellas, the chancellor found that the easement had been abandoned. Similarly, his opinion explaining the issuance of the final decree adds only that, by permitting the growth of underbrush in the alley, the appellants other than the Stellas actively manifested their intent to abandon the easement and that there was no merit to appellants’ contention that the defense of abandonment was waived by appellees’ failure to include it in their new matter, as a plea of abandonment can be found in appellees’ paragraph forty-four. Based on his finding of abandonment he denied the requested relief. This timely appeal followed.

Appellants raise two issues on appeal: (1) that the chancellor erred in determining that appellees raised the defense of abandonment in paragraph forty-four of their new matter and that, therefore, the defense of abandonment was waived and was not a proper basis for the chancellor’s determination; and, alternatively, (2) that the evidence presented was legally insufficient to support a finding of abandonment as to appellants other than the Stellas.

Our scope of review in equity matters is limited to determining whether the conclusion reached by the chancellor can reasonably be drawn from the evidence, whether an error of law was committed, or whether the findings are demonstrably capricious. District Council 33, AFSCME v. City of Philadelphia, 354 Fa.Super. 176, 511 A.2d 318 (1986).

Appellants’ first argument charges an error of law, namely that the chancellor erred in allowing the defense of abandonment as it was waived by appellees’ failure to plead it in their new matter. It is fundamental that this court will not consider on appeal questions which were not raised by the pleadings. 16 Standard Pennsylvania Practice § 87:1 (1983). Where, however, the parties and the court have treated such questions as having been raised, we may do likewise. Williams v. Philadelphia Transp. Co., 219 Pa. Super. 134, 280 A.2d 612 (1971). The record indicates that both parties proceeded, and the court made its decision, on the theory of abandonment. Therefore, we will first address the issue of whether the chancellor was correct in deciding that the defense of abandonment was not waived.

In addressing this issue, raised by appellants’ exceptions to the decree nisi, the chancellor found that paragraph forty-four contained a. plea of abandonment “despite the absence of the precise word ‘abandonment’.” Appellants argue that the paragraph in question, which, according to Pa.R.C.P. 1022 should as nearly as practicable have contained only one material allegation, clearly raises only the defense of laches and, further, that “reference ... to unattributed blockages of the right of way are legally insufficient to give rise to a plea of abandonment.” We must first decide whether abandonment is an affirmative defense which, if not raised in new matter, is waived, and then, if it is such a defense, whether appellees averred sufficient facts in their new matter to constitute a plea of abandonment.

Appellants correctly point out that affirmative defenses (with exceptions not applicable here) not raised in new matter in accordance with Pa.R.C.P. 1030 are waived pursuant to Pa.R.C.P. 1032. Rule 1030 lists but does not limit what is includable as new matter. In essence, new matter is anything other than a denial, setoff, or counterclaim. Anderson, Pennsylvania Civil Practice § 1030.4 (1969). Abandonment, although not specifically enumerated in Rule 1030, is such a waivable affirmative defense and Rule 1030 should be construed to include it. Until now Pennsylvania case law has not addressed this point directly, but other jurisdictions have stated what we now clarify for this Commonwealth: in the context of easement actions, abandonment is an affirmative defense. Kauble v. Cooley, No. 86AP-822 (Ohio Ct.App. Nov. 5, 1987) [Available on WESTLAW, 1987 WL 19562]; Consolidated Rail Corp. v. MASP Equip. Corp., 67 N.Y.2d 35, 490 N.E.2d 514, 499 N.Y.S.2d 647 (1986); San Jacinto Sand Co. v. Southwestern Bell, 426 S.W.2d 338 (Tex.Civ.App.1968), cert. denied, 393 U.S. 1027, 89 S.Ct. 622, 21 L.Ed.2d 570 (1969); Dawson v. McKinnon, 226 Iowa 756, 285 N.W. 258 (1939). Like its cousins estoppel and adverse possession, the defense of abandonment is of a nature essential to the material issues in this type of action. Therefore, if appellees did not raise the defense of abandonment in their new matter, it was waived.

There is no necessity to name the defense asserted so long as facts sufficient to constitute the defense are pled. Pa.R.C.P. 1019(a). To raise the defense of abandonment, appellees would have to have pled facts which, if proven, would establish the clear intention, both for the present and the future, of all of the dominant owners to abandon the easement and unequivocal affirmative action on their parts on the ground, inconsistent with the further assertion of any rights under the easement, evidencing relinquishment of its possession or use. Philadelphia Music Academy v. Academy House, 345 Pa.Super. 436, 498 A.2d 902 (1985); Sabados v. Kiraly, 258 Pa.Super. 532, 393 A.2d 486 (1978); Accord Hatcher v. Chesner, 422 Pa. 138, 221 A.2d 305 (1966). While providing some evidence of intent to abandon, mere non-use of or failure to maintain an easement, conduct of a servient owner in obstructing the right of way in which a dominant owner acquiesces and/or the duration of any of these are insufficient alone to prove abandonment.

Paragraph forty-four of appellees’ new matter refers to various blockages and evidence of neglect without attribution to any dominant owner, instead focusing on the duration of the alleged un-usability of the claimed easement, and then states a conclusion of law: that the action is barred by the appellants’ laches. No other paragraph in appellees’ new matter specifically or inferentially pleads abandonment. While we recognize that failure to plead an affirmative defense is a defect which cannot be ignored under the guise of liberal interpretation, we find that appellees’ paragraph forty-four is susceptible of the inference that the facts alleged therein, if proven, could establish abandonment. Appellees did not specifically attribute action to any of the named plaintiffs; however, with thirty-nine plaintiffs it would have been tedious at best to do so. It can be fairly inferred that the blockages referred to were attributable to some or all of the named plaintiffs, individual activities to be developed through discovery. Appellees also failed to aver intent to abandon. This allegation would have been a legal conclusion, however, and facts tending to show intent were pled. Therefore, the chancellor did not abuse his discretion in finding that the defense had not been waived. We note that, even if we had been able to sustain appellants on this argument, we would be unable to reverse the finding of abandonment on the ground that all evidence of that defense was improperly before the chancellor since appellants themselves introduced testimony at the hearing as to facts on which the defense could be based, thereby opening the door for appellees to establish the defense they allegedly failed to plead. Nevling v. Commercial Credit Co., 156 Pa.Super. 31, 39 A.2d 266 (1944). Further, the court has the discretion to amend the pleadings at any time to conform to the proof offered. Pa.R.C.P. 1033; Sheppard v. First Pennsylvania Banking & Trust Co., 199 Pa.Super. 190, 184 A.2d 309 (1962). Therefore, had paragraph forty-four not constituted a plea of abandonment, the chancellor could have, based on the evidence presented, amended the pleadings to include abandonment as a defense.

We turn now to appellants’ second argument concerning the sufficiency of the factual basis for the chancellor’s finding of abandonment on the part of appellants other than the Stellas. As the chancellor correctly noted, to sustain a finding of abandonment there must be clear evidence of affirmative conduct on the part of a dominant owner indicating his or her intent to permanently relinquish the easement. The chancellor’s opinion relies on the existence of the Stellas’ building on part of the alleyway between 1945 and approximately 1979; the failure of other owners of the easement to take legal action to object to its existence; the appellees’ placing of pegs, and later fences, on a portion of the easement; the lack of evidence of current vehicular traffic; and, appellants’ acquiescence in allowing trees, rocks, and other debris to occupy portions of the easement, which he found to be affirmative conduct rather than inaction. Appellants argue that the facts as found by the chancellor are legally insufficient to establish abandonment. We agree.

It appears that the chancellor’s reasoning centered on the viability of passage over and through the alley in question. The record contains conflicting testimony as to the use and passability of the alleyway over time and the chancellor as fact finder was free to determine such issues of credibility. Had the easement been one created for a special purpose, evidence of the fulfillment or impossibility of fulfillment of that purpose would be relevant to its extinguishment. However, the passability of the alley is not the primary consideration here as this was not an easement specific to vehicular traffic. Arising by implication by reference to maps in deeds of conveyance, the rights of the dominant owners can be extinguished only on a showing of affirmative conduct or physical obstruction on their parts which is inconsistent with its further enjoyment. Sabados, 258 Pa.Super. at 535, 393 A.2d at 487. It is fundamental that mere nonuse of an easement, no matter how long continued, does not manifest an intent to abandon it; an owner of an easement appurtenant to land is not required to use it in order to maintain ownership of it. Hatcher, 422 Pa. at 140, 221 A.2d at 307; Philadelphia Music Academy, 345 Pa.Super. at 448, 498 A.2d at 908. As this court stated in Sabados, “mere nonuse is but the exercise of ownership, not its surrender.” Id. 258 Pa.Super. at 539, 393 A.2d at 489. Therefore, whether or not appellants had in the past or could presently traverse the alley other than on foot was irrelevant to a finding of abandonment.

The chancellor also pointed to the trees, rocks and other debris which appellants had “permitted” to obstruct the easement. It was his finding that this constituted the requisite affirmative conduct evidencing their intent to permanently abandon the easement. We find this court’s holding in Sabados to be dispositive of this issue:

allowing brush and saplings to grow on a right-of-way area ... is not an act of active or affirmative character; instead, the growth results from merely doing nothing. These circumstances do not involve an affirmative act or placement of a physical obstruction or barrier, as is legally required for abandonment of a granted right-of-way.

Id., 258 Pa.Superior Ct. at 536, 393 A.2d at 488.

The chancellor also cited appellants’ acquiescence in the existence of the Stellas’ building in the alleyway. Testimony at the hearing indicated that the building did not prevent use of the alley since it was possible to use adjacent vacant land to go around the building. Appellants argue that because this encroachment did not obstruct the use of the easement to a material extent, the building’s existence can not be viewed as evidence of an intent on the part of appellants other than the Stellas to abandon the easement. The chancellor, however, determined that the fact that a detour was available was irrelevant to his finding that the alleyway itself, the subject of the easement, was blocked to a material extent. While evidence of acquiescence in the adverse acts of other dominant owners can be relevant to the issue of intent to abandon, requiring a dominant owner to legally complain on pain of extinguishment of his easement rights is repugnant. Forfeiture of possessory rights is “an abhorrence and greatly disfavored.” Sabados, 258 Pa.Super. at 539, 393 A.2d at 489 (citing Hatcher, 422 Pa. at 142, 221 A.2d at 308). Further, acts of acquiescence cannot, by definition, be. affirmative acts, nor can the affirmative acts of one dominant owner be attributed to others who merely stood by. Therefore, the inaction of appellants in opposing the Stellas’ building is irrelevant to a determination of abandonment.

In order for appellees to maintain their fences it must be found that all appellants have abandoned their easement rights as the right to traverse the alley is appurtenant to each parcel. Because the evidence is not legally sufficient to sustain a finding of abandonment on the part of appellants other than the Stellas, we must reverse the decree of the the hearing court and remand for an appropriate decree consistent with this opinion. Jurisdiction is relinquished.

      . Appellants sought to enjoin defendant Mary Robert Realty Company, Inc. from conveying any interest in the alley. This defendant had conveyed to the other defendants, by quitclaim deed, the portions of the alley which appellants asserted included their easement. Mary Robert Realty did not enter an appearance in the action and did not answer the complaint. Appellants asked for and received judgment against this defendant, who is not a party to this appeal.


author: OLSZEWSKI, Judge:

text:
    539 A.2d 389
    COMMONWEALTH of Pennsylvania, Appellee, v. Carl L. KAHLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1988.
    Filed March 15, 1988.

      Charles Rector, Lemoyne, for appellant.
    John T. Robinson, District Attorney, Middleburg, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposing one-to-two years following a guilty plea to driving under the influence. Appellant contends that the trial court abused its discretion in imposing a sentence that is outside the guidelines, consistent with the statutory maximum, unreasonable, and not reflective of the minimum amount of time consistent with the gravity of the offense and therefore manifestly excessive. We affirm the judgment of the trial court.

On January 17, 1987, at about 6:00 p.m., appellant was arrested and charged with driving under the influence (DUI) and the summary offense of failing to stay within a single lane. Appellant subsequently pleaded guilty to DUI and the summary offense was nol prossed. During a sentencing hearing on July 6, 1987, the trial court considered a presentence report, appellant’s driving record, the sentencing guidelines and heard from appellant’s attorney. The trial judge then sentenced appellant to one-to-two years imprisonment for DUI. This appeal followed.

We note, preliminarily, that appellant is appealing from discretionary aspects of his sentence. The Commonwealth contends that appellant’s challenge is waived because he has failed to raise a substantial question with respect to the appropriateness of his sentence. We note that appellant has complied with the mandate of Pa.R.A.P. 2119(f) by setting forth a concise statement of the reasons relied upon for allowance of this appeal. We find, moreover, that appellant has presented us with a substantial question and, therefore, this appeal is properly before us for review.

Appellant claims that the trial court abused its discretion in sentencing appellant to one-to-two years. It is firmly established that sentencing is a matter within the discretion of the trial court which we will not disturb absent an abuse of discretion. Commonwealth v. Plank, 498 Pa. 144, 445 A.2d 491 (1982); Commonwealth v. Cherpes, 360 Pa.Super. 246, 520 A.2d 439 (1987). If the sentence is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Yacoubian, 339 Pa.Super. 413, 489 A.2d 228 (1985), citing Commonwealth v. Gaus, 300 Pa.Super. 372, 377, 446 A.2d 661, 664 (1982).

We have mandated that when a sentencing court deviates substantially from the sentencing guidelines, it is important that the court consider all factors relevant to a determination of the proper sentence. Commonwealth v. Ruffo, 360 Pa.Super. 180, 520 A.2d 43 (1987). The trial court is required, therefore, to consider the sentencing guidelines, Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); the background and character of the defendant and the circumstances of the crime, Commonwealth v. Arent, 352 Pa.Super. 520, 508 A.2d 596 (1986); and to impose a sentence that is consistent with the protection of the public and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9711(b).

Instantly, the trial court provided as follows:

The sentence will be outside the guidelines. The Court is obligated to consider the history, character, and condition of the defendant, circumstances of the crime, rehabilitative needs of the defendant, protection for the public, and the gravity of the offense. In this particular case, although the prior involvement with the criminal justice system was ten years, it involved drinking and involuntary manslaughter. The hope is that persons who kill others while drunk will not repeat incidents of drunk driving.
The rehabilitative needs of the defendant can best be served by the New Values Therapeutic Treatment Center now available through the state.
The history, character and condition of the defendant includes the fact that this particular offense occurred at 6:00 p.m. when people do not anticipate coming in contact with a person having a blood alcohol concentration of .20. .20 indicates a level of tolerance and abuse which predated the specific incident. The public deserves and requires protection, so that the needs for the protection of the public mandate a more severe sentence, and one which can only be accomplished, considering the rehabilitative needs, at the State Correctional Institution with the New Values Therapeutic Session available.
[S]o the record reflects, the Court is aware the mandatory sentence which could have been imposed was 48 hours, inasmuch as the previous offense occurred more than seven years prior to this offense. The Court is aware of that at the time of its imposition of sentence.

Sentencing transcript at 4-6.

In addition, we note that prior to imposing sentence, the court heard from appellant’s attorney who indicated that appellant was married, maintained a household, and “had been staying home while the drinking was taking place.” Sentencing transcript at 4.

It is apparent that the trial court thoroughly considered the requisite criteria. Appellant contends, nonetheless, that the sentence was excessive in part because “[a]fter all, Appellant was to be sentenced for his first DUI conviction albeit in light of is prior record____” Appellant’s brief at 11. We note, however, that the penalties outlined for DUI in 75 Pa.C.S.A. § 3731 are mandatory minimum penalties and should not be regarded by sentencing tribunals as sentencing ranges similar to those found in the Sentencing Guidelines. Commonwealth v. Parrish, 515 Pa. 297 n. 3, 528 A.2d 151 n. 3 (1987) (Larsen, J., dissenting).

We find that, given the circumstances, the sentence imposed was not so manifestly excessive as to impose too severe a punishment. The trial court, therefore, did not abuse its discretion in sentencing appellant to one-to-two years at the state correctional institution that would provide appellant with rehabilitative treatment to benefit himself and to protect the community.

The judgment of sentence is affirmed.

      . The driving record established that ten years before the incident in question, appellant had been convicted of involuntary manslaughter while driving under the influence.

      . Instantly, the sentence falls within the statutory maximum of two years imprisonment for a misdemeanor of the second degree. 75 Pa.C.S.A. § 3731; 18 Pa.C.S.A. § 1104(2).

      . In the instant case, the sentencing guidelines recommended non-confinement in the mitigated range; 0-to-6 months in the minimum range; and 6-to-12 months in the aggravated range.


author: ROWLEY, Judge:

text:
    539 A.2d 391
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. JIM BOWE & SONS, INC. and Plymouth Township Police Department.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1987.
    Filed March 21, 1988.

      Frederick E. Smith, Doylestown, for appellant.
    Thomas A. Landis, Lansdale, for Jim Bowe & Sons, Inc., appellee.
    Arthur Lefkoe, Norristown, for Plymouth Tp. Police, appellee.

      Before ROWLEY, WIEAND and OLSZEWSKI, JJ.
   ROWLEY, Judge:

This is an appeal from a judgment entered in favor of appellee, Jim Bowe & Sons (Bowe) and against appellant State Farm Mutual Automobile Insurance Co. (State Farm), and in favor of appellee Plymouth Township Police (Montgomery County) in a replevin action.

State Farm, the insurer of a car which had been reported stolen to the Philadelphia Police, paid its insured the value of the car and obtained record title to the car in August, 1981. On July 8, 1982, Bowe, pursuant to an agreement with the Plymouth Township Police, towed the stolen vehicle to his place of business. The Plymouth Township Police immediately notified the Philadelphia Police that the stolen car had been found. In July, 1983, State Farm demanded delivery of the car from Bowe, but Bowe refused to relinquish it until the towing charge and approximately one year’s storage fee were paid. State Farm was willing to pay the towing charge and a reasonable storage fee, but denied that it was responsible for an entire year’s storage fee.

In October, 1983, State Farm filed an action in replevin against both Bowe and Plymouth Township Police. At the same time, State Farm filed a Motion for a Writ of Seizure. Bowe filed an answer, new matter and counterclaim asserting a common law garageman’s lien for the year’s storage fee. Plymouth Township Police filed an answer denying that they owed any duty to State Farm to inform it when the car was found. In December, 1983, a writ of seizure was issued. Subsequently, the case was tried without a jury, and the court found in favor of Bowe for $5,005 on its counterclaim, and in favor of Plymouth Township Police. The amount of the judgment represented a storage fee for 496 days, i.e., from the day the car was towed by Bowe until it was seized pursuant to the writ of seizure. Appellant’s post trial motions were denied, judgment was entered on the verdict, and State Farm has appealed. We affirm the judgment in part, vacate the judgment in part, and remand for further proceedings.

On review of a case tried by a judge sitting without a jury, we must accept the factual findings of the trial court, although we are not bound by the trial court’s legal conclusions drawn from those facts. Lawner v. Engelbach, 433 Pa. 311, 249 A.2d 295 (1969). In this case the trial court concluded as a matter of law that Bowe had no affirmative duty to notify State Farm that it was storing the vehicle. As a result, the trial court found that Bowe was entitled to recover the storage fee for the time from when Bowe towed the vehicle until State Farm demanded possession of it on a quasi-contract theory of unjust enrichment. The trial court reasoned that State Farm passively received the benefit of the storage of the vehicle, and that it would be unconscionable for State Farm to retain this benefit without payment for it. The trial court also determined that State Farm would have to pay for the storage of the vehicle from the time it requested the return of the car until the date the car was actually returned pursuant to the writ of seizure (1) because the storage fee charged for the period prior to State Farm’s demand for the car was reasonable, (2) because Bowe had no duty to release the car upon State Farm’s demand therefor without being paid a storage fee for the period from the date Bowe towed the vehicle until the date State Farm demanded possession of the car, and (3) because State Farm continued to receive the benefit of the storage after it had demanded possession of the vehicle, but Bowe had refused to release it. The trial court found that the Plymouth Township Police were not responsible for contacting State Farm about the recovery of the vehicle because it interpreted 75 Pa.C.S. § 7113(b) to impose the obligation on the police department which initially received the report of the theft of the car to notify the owner of a stolen car of its recovery.

On appeal, State Farm argues that quasi-contract and unjust enrichment are equitable theories, and that equity requires it to be responsible, at most, for the storage fees for a reasonable period in which Bowe could have contacted it. State Farm also argues that the Plymouth Township Police were required to notify it within 48 hours of recovering the car, and their failure to do so makes the Plymouth Township Police liable for any storage fee for a period in excess of 48 hours. Finally, State Farm argues that it should not be held liable for the storage fees for the period after it requested the return of the vehicle because Bowe was in “unlawful and illegal possession” of the car during that period.

I. LIABILITY OF STATE FARM

A. Storage Fee Prior To Demand For Car

The doctrine of unjust enrichment is an equitable one, Wolf v. Wolf 356 Pa.Super. 365, 514 A.2d 901 (1986), which permits recovery where the claimant can show that a benefit was wrongly secured or passively received, and that it would be unconscionable for the party receiving the benefit to retain it without payment. Meehan v. Cheltenham Township, 410 Pa. 446, 189 A.2d 593 (1963); Roman Mosaic and Tile Co., Inc. v. Vollrath, 226 Pa.Super. 215, 218, 313 A.2d 305, 307 (1973). However, the most significant requirement for recovery is that the enrichment is unjust, Myers-Macomber Engineers v. M.L.W. Construction Corp. and HNC Mortgage and Realty Investors, 271 Pa.Super. 484, 414 A.2d 357 (1979). Therefore, we must focus not on the intention of the parties but on the extent to which the enrichment is unjust. Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980).

In this case, there is no dispute that State Farm passively enjoyed the benefit of Bowe’s storage of the car. However, the receipt of this benefit, under the unique facts of this case, was not unjust, so as to give rise in equity to an obligation by State Farm to pay for the storage. Bowe had no statutory or legal obligation to notify State Farm that he was storing the vehicle. However, Bowe himself testified that it was his customary practice to notify the owners of towed vehicles within 30 to 90 days of the date the vehicle was towed that the vehicle had been towed. Furthermore, Bowe testified that he was able to ascertain that State Farm was the owner of the particular vehicle in question simply by making one telephone call to the local police.

Under these circumstances, where the garageman who is storing the towed vehicle has a customary practice of notifying owners of the vehicles he is storing, where he can ascertain the identity of the owner simply by placing one, local telephone call, and where the owner of the car is entirely unaware that the car is still in existence, let alone in storage, we hold that the owner of the vehicle has no duty to the garageman for a storage fee until the owner receives notice, from whatever source, that the vehicle is being stored. Until the owner is notified that the garage-man is storing his vehicle, any enrichment to the owner is not unjust enrichment. On the contrary, it is unjust to permit the garageman who can easily ascertain the identity of a vehicle’s owner, and whose custom it is to do so, to receive a storage fee for a period which he alone establishes simply by failing to notify the owner that he is in possession of the vehicle.

We note that by our holding today we are not precluding all recovery to Bowe for his storage services. We are simply precluding recovery to him from the owner who had no notice of the storage. Bowe towed and stored the vehicle in this case pursuant to an agreement which he had with the Plymouth Township Police. The terms of that contractual arrangement are not relevant to the instant replevin action brought by State Farm to recover its property, and there is no claim presently before us by Bowe against the Plymouth Township Police pursuant to their contractual arrangement. Therefore, we do not resolve the question of whether Bowe may recover the storage fee, for the period prior to his notification to State Farm, from some other source.

There is conflicting testimony in this case as to when Bowe notified State Farm that he was storing the vehicle. State Farm contends that it was not notified until May or June, 1983. Bowe too testified at one point that he did not notify State Farm until May, 1983. However, at a different point in his testimony, Bowe stated that he notified State Farm within 90 days of when he towed the vehicle. The trial court did not resolve this factual dispute because it found it unnecessary to do so based on its resolution of the case. Because we hold that State Farm is liable to Bowe for a storage fee from the date when State Farm was notified that Bowe was storing the vehicle, and because we cannot determine that date from this record, we will remand for the trial court to make this factual determination.

B. Storage Fee After Demand and Offer To Pay Reasonable Storage Fee

State Farm also contends that it should not be liable for the storage charges for the period between its demand on Bowe for return of the vehicle, in July, 1983, and its actual recovery of the vehicle pursuant to the writ of seizure. State Farm supports its argument by claiming that Bowe’s continued possession of the car was illegal. Bowe contends that he was entitled to retain it because he had a common law garageman’s lien for the towing and storage charges.

It is the well-settled rule in this Commonwealth that possessory liens are consensual in nature and must arise from an agreement, either express or implied, between the owner of goods and the bailee who provides some service with regard to the goods. Associates Financial Services Co. v. O'Dell, 262 Pa.Super. 584, 396 A.2d 1324 (1979). “The consensual nature of the transaction which gives rise to a possessory lien is an indispensable element of the common law possessory lien as recognized in this Commonwealth____ A garagekeeper’s possessory lien is no different. His common law lien will arise where he has repaired, stored, or otherwise provided service to an automobile at the request of the owner____ However, the lien will not attach as against one who has not authorized, expressly or impliedly, the repairs or services rendered.” Id., 262 Pa.Superior Ct. at 588-589, 396 A.2d at 1326 (citations omitted).

In this case, Bowe had a legitimate garageman’s lien against State Farm’s vehicle only after State Farm learned that the vehicle was being stored. At that time, State Farm offered to pay a reasonable storage fee and a fee for the towing. It properly refused to pay a storage fee for the entire period in which the vehicle had been stored. Because State Farm was willing to pay a reasonable storage fee, which is all that State Farm was obligated to pay, Bowe had no right to assert a garageman’s lien for any further sum and retain possession of the vehicle. State Farm therefore is not liable for any storage fee imposed for a period beyond the time when State Farm offered to pay a reasonable storage fee.

II. PLYMOUTH TOWNSHIP POLICE LIABILITY FOR STORAGE FEE

Finally, State Farm argues that Plymouth Township Police should be liable for all but two days of the storage period because the police had a statutory duty to notify State Farm within 48 hours of recovery of the vehicle. However, because we hold that State Farm is not liable for a storage fee for any period prior to notice to it, from any source, and because State Farm was eventually notified by Bowe that the vehicle had been recovered and was in storage, we need not determine in this appeal by State Farm, whether the Plymouth Township Police had any obligation to notify State Farm that the vehicle had been recovered. Therefore, insofar as judgment has been entered in favor of Plymouth Township Police, the judgment is affirmed.

The judgment in favor of the Plymouth Township Police is affirmed. Judgment in favor of Bowe and against State Farm is vacated, and the case is remanded for the trial court to ascertain the reasonable storage fee to be charged State Farm in accordance with this opinion. Jurisdiction relinquished.

      . No one has questioned the propriety of denominating the defendant in this case "Plymouth Township Police Department”. See Pa.RX.P. 2102(b) and Pa.R.C.P. 76. Therefore, we do not address this issue.


author: CAVANAUGH, Judge: TAMILIA, Judge,

text:
    539 A.2d 395
    Barbara L. GRUVER, Appellee, v. Allen C. GRUVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1987.
    Filed March 21, 1988.

      John E. Huber, Lancaster, for appellant.
    Elizabeth A. Hambrick-Stowe, Lancaster, for appellee.
    Before CAVANAUGH, McEWEN and TAMILIA, JJ.

      . The appeal in this case is from the order of June 5, 1987 and the notice of appeal was filed within 30 days of the entry of the order in compliance with Pa.R.A.P. 903. The fact that we quashed the original appeal by our order of March 23, 1987, as a final decree in divorce had not been entered, does not preclude the appellant from taking an appeal once the final decree was entered in the court below.

   CAVANAUGH, Judge:

The first issue in this case is whether a court in determining equitable distribution of marital property may take into consideration a spouse’s possibility of an inheritance upon the death of his or her parents.

Barbara L. Gruver, the appellee herein, and Allen C. Gruver, the appellant, were married on March 25, 1972 and separated on February 19, 1982. Mrs. Gruver filed a Complaint in Divorce on March 8, 1983 alleging irretrievable breakdown of the marriage, and requesting, inter alia, equitable distribution of marital property. Mr. Gruver subsequently filed a counterclaim in divorce on the ground of indignities.

A special master was appointed by the court who filed a master’s report following hearings. The master recommended that a divorce decree be entered and he submitted a proposed equitable distribution of marital property. Both parties filed exceptions to the report relating only to the issue of equitable distribution. The court sustained all of the appellee’s exceptions and sustained the appellant’s exceptions in part and dismissed them in part and directed equitable distribution. Prior to entry of a divorce decree, Mr. Gruver appealed to this court and we quashed the appeal as a final decree in divorce had not been entered. See Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986). Subsequently, a final decree in divorce was entered on June 5, 1987 and an appeal has been taken.

At the master’s hearing, Mrs. Gruver testified concerning her husband’s parents, both of whom are over age 65, and their assets. According to the appellee, Mr. Gruver’s parents were concerned about the amount of inheritance taxes that were paid when Mr. Gruver’s grandfather died and “his mother and father went to see a lawyer and had their estate changed.” Mr. Gruver has one sister and no brothers and according to Mrs. Gruver, his parents told her that “it would be split 50-50 as far as the inheritance when the time came.” (N.T. 142).

Mrs. Gruver was asked if Mr. Gruver’s parents ever discussed with her the amount of money they thought they would leave at their deaths and she testified:

A. I don’t really know if figures were actually totaled up but after we would have the talks we would go over about how much money was sitting here and how much money was sitting there and just off the top of my head, you know, from what they have sitting in CD’s and with the property they own, I would say in the neighborhood of three hundred, four hundred thousand dollars.

Mr. Gruver testified that he had never, seen his parents’ wills and did not know who had been named executor in the wills. He also did not know if his parents had established any trust funds in which he was named as beneficiary.

The court below considered Mr. Gruver’s possible inheritance in making equitable distribution and this is impermissible. The opinion of Hummer, J. states at page 29:

Contrary to Mr. Gruver’s characterization of Mrs. Gruver’s testimony as mere speculation, the court finds the evidence of the parents’ intent to be specific and concrete. Especially in light of Mr. Gruver’s lack of rebuttal, the court will consider his possibility of inheritance in equitably dividing the marital estate.

The master recommended that the marital assets be distributed on the basis of 55% to Mr. Gruver and 45% to Mrs. Gruver. The court held that an equal division would be equitable, considering “Mr. Gruver’s possibility of inheritance” and other factors.

The Divorce Code, 23 Pa.S. § 401(d) states that the court in making equitable distribution shall consider “all relevant factors” including 10 enumerated factors. One factor is found at 23 Pa.S. § 401(d)(5) which is “the opportunity of each party for future acquisition of capital assets and income.” The court considered Mr. Gruver’s possible inheritance as a factor under 23 Pa.S. § 401(d)(5) and stated at page 3 of its opinion:

Mrs. Gruver’s respectable compensation should provide her with a reasonable opportunity for future acquisitions of capital assets and income. However, the evidence indicates that Mr. Gruver can reasonably anticipate similar, if not greater, opportunities for such acquisitions by way of an inheritance expectancy.

We must read Section 401(d) dealing with factors to be considered in making equitable distribution in light of Section 401(e)(3) which states:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.

It is clear under Section 401(e)(3) that any inheritance that the appellant might have received from his parents during his marriage would not be marital property. It follows, that the legislature did not intend that the court consider as a factor in making equitable distribution the possibility of an inheritance. It is presumed that the legislature does not intend to achieve an absurd result. Hatchard v. Westinghouse Broadcasting Company, 516 Pa. 184, 532 A.2d 346 (1987). See also 1 Pa.C.S. § 1922(1). It would be patently incongruous for the court to properly consider the possibility of an inheritance when such an inheritance would not be marital property. We therefore hold that a court may not consider the mere possibility of an inheritance by a spouse as a factor in the equitable distribution of marital property.

The possibility of an inheritance, even if property inherited during marriage were marital property, and it is not, should not be a factor in making equitable distribution. Any possibility of an inheritance is too tenuous to attribute any weight to it. Parents have no legal obligation to leave property to their children and no matter what a person’s intent concerning his will is today, it may change at any time and a subsequent will is essentially the revocation of an earlier will. Crooks Estate, 388 Pa. 125, 130 A.2d 185 (1957). See also Franey Estate, 436 Pa. 94, 257 A.2d 515 (1969). Every person has the right to dispose of his or her estate in any way that he or she sees fit. Paul Estate, 407 Pa. 30, 180 A.2d 254 (1962). It must also be recognized that in the face of ever increasing costs for the care of the elderly that even what appears to be a substantial estate today, may be quite diminished or even totally dissipated at the time of death, and finally, the actual life expectancies of both parents and child are unknown.

Equitable distribution is within the discretion of the trial court and its decision will not be disturbed in the absence of an abuse of discretion. Kleinfelter v. Kleinfel ter, 317 Pa.Super. 282, 463 A.2d 1196 (1983); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). We find that the court below abused its discretion in including the possibility of the appellant’s inheritance as a factor in making equitable distribution.

The second issue is whether the court below erred in not adopting the master’s recommendation that $4904.00 of a certificate of deposit at the Farmer’s First Bank was non-marital property which belonged to Mr. Gruver. Mr. Gruver inherited $4904.00 from his grandfather. To that amount $96.00 was added from the joint funds of the parties and a certificate of deposit was purchased in joint names in the amount of $5000.00. The master found that $4904.00 of the jointly owned certificate of deposit was not marital property as it represented an inheritance by Mr. Gruver. The court did not accept this recommendation, holding that the inheritance of $4904.00 took on the status of marital property when it was invested in the jointly owned certificate of deposit relying on Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1985). In Madden, a mother purchased United States savings bonds and placed them in the joint names of herself and her son. The mother died and the son, who was married at that time, cashed in the bonds which he now owned and bought new savings bonds in the joint names of himself and his wife. Subsequently, problems arose and the son cashed in the bonds and purchased a certificate of deposit in his name alone. We held that the certificate of deposit became marital property when the husband put the proceeds in new savings bonds in joint names with his wife thereby losing status as an excludable gift from his mother which was not marital property under 401(e)(3). We find that Madden v. Madden, supra, is controlling in this case and the court properly found the entire certificate of deposit to be marital property.

The appellant also raises two other issues on appeal as follows: (1) whether the court below erred by finding that Mr. Gruver dissipated marital assets to the extent of increased tax liability by failing to file joint income tax returns with Mrs. Gruver and (2) whether the court erred by attributing to Mrs. Gruver the rental value of the marital home while the parties were separated. We find that the court below did not abuse its discretion with respect to its order concerning these issues. As to the refusal to file joint returns after 1981, it appears that Mr. Gruver filed an individual tax return in 1982 and 1983, resulting in increased tax liability to the parties. Apparently Mr. Gruver would not file a joint return after 1981 because he claims to have paid the total federal and state tax returns in 1981 as well as the fee of $75.00 to the tax preparer. Both the master and the court below felt that the increased tax liability resulting from filing individual returns rather than joint returns resulted in the dissipation of marital property and we perceive no error in this.

Similarly, the court did not abuse its discretion in attributing the rental value of the marital home to Mrs. Gruver. Mr. Gruver had enjoyed exclusive possession of the marital residence since the parties’ separation. The court properly awarded the rental value of the home to Mrs. Gruver. See Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). The court also reduced the rental value to reflect an amount of a loan owed by Mrs. Gruver to Mr. Gruver’s parents. These are questions of judgment properly left to the court below in the absence of an abuse of discretion. See Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982).

The decree of June 5, 1987, from which an appeal has been taken, decreed that the parties are divorced from the bonds of matrimony and neither party has excepted to that part of the decree. Accordingly, the decree of June 5, 1987 pertaining to the decree in divorce is affirmed as to granting the decree in divorce. While the court below properly determined what was marital property, it erred in making equitable distribution of the property and the decree is reversed to the extent that the court directed an equal division of the marital property under its order of March 4, 1986.

This case is remanded to the court below for equitable distribution of marital property in a manner consistent with this opinion. The court relinquishes jurisdiction.

Motion to quash appeal dismissed.

TAMILIA, J., files concurring statement.

TAMILIA, Judge,

concurring:

I concur in the result. While I agree in this case that determining the inheritance expected by the husband was too nebulous a consideration to effect equitable distribution, I believe the majority has carved out too absolute a rule in relation to inheritance as governed by 23 Pa.S. § 401(d)(5). There, it is stated:

§ 401(5) The opportunity of each party for future acquisition of capital assets and income is to be a consideration in equitable distribution.

The number and variety of possibilities of acquisition of capital assets and income as a result of inheritance are great. To foreclose all of those possibilities goes too far and unreasonably restricts the trial courts in considering factors of inheritance which have a strong, if not absolute, likelihood of vesting as opposed to situations such as the present one, which are rather nebulous.

The majority reads section 401(d)(5) in relation to section 401(e)(3) having to do with gifts and inheritance, which are not marital property except for their increase in value, holding that a potential inheritance could not be considered when, under 401(e)(3), after acquisition of an inheritance by a spouse, it would not be marital property. The conclusion thus drawn misses the point. It is not whether the inheritance, prospective or otherwise is marital property, but whether its presence or anticipation places one spouse in a superior financial position, thereby permitting a different weighing or distribution of marital property to make distribution equitable. I would make that distinction in resolving the issue of consideration of inheritance under section 401(d)(5).

      . In accord with this, see Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978) which pointed out that the expectancy of an inheritance is the bare hope of succeeding to the property of another and it is only an inchoate hope. “The moment of the decedent’s death determines the right of inheritance or testamentary succession.” 174 Conn. 365, 387 A.2d 550.

      . The appellant relies on Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984) to support his argument that $4904.00 of the certificate of deposit was not marital property. However, Estep v. Estep, supra, was reversed by the Supreme Court in Estep v. Estep, 508 pa. 623, 500 A.2d 418 (1985) on the grounds that this court exceeded its scope of appellate review.