author: DEL SOLE, Judge. CAVANAUGH, Judge,

text:
    580 A.2d 361
    Ann BARGERSTOCK, Appellee, v. WASHINGTON GREENE COMMUNITY ACTION CORPORATION and John Wilson, Appellants.
    Superior Court of Pennsylvania.
    Argued March 21, 1990.
    Filed Sept. 7, 1990.

      James E. Kennedy, Pittsburgh, for appellants.
    William M. Radcliffe, Uniontown, for appellee.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge.

Ann Bargerstock, Appellee, was awarded $300,000 in compensatory and punitive damages against Washington-Greene Community Action Corporation (WGCAC) and John Wilson, Appellants, after a jury found that WGCAC and Wilson had defamed her and had violated her civil rights. WGCAC and Wilson appeal raising five issues. We reach the first three issues and reverse and remand for a new trial.

Bargerstock was employed as the manager of the transportation section of WGCAC, a non-profit organization engaged in community service activities including day care, head start centers and the transportation of elderly and low income people. Bargerstock was responsible for the receipt and deposit of monies collected from people who received transportation from the program. She was also responsible for monthly reports on the amount of money received and deposited. Carolyn Ross was Bargerstock’s secretary in this department.

From June, 1986, to September, 1986, no monthly reports were made by Bargerstock’s department to the fiscal office of WGCAC. The fiscal office was made up of John Patterson, fiscal supervisor and procurement officer, and August Stash, fiscal officer. After the third missing report, Stash notified Patterson. In August, 1986, Patterson notified Wilson, the executive director of WGCAC, that no money had been deposited in the transportation account for that month. Patterson also told Wilson that Bargerstock had told him that there were reports and money submitted for filing. Patterson continued to have problems in getting reports from Bargerstock’s department. Wilson told Patterson that if the problems persisted he should contact James Ealy, the operations manager and Bargerstock’s supervisor.

After the four missing monthly reports were submitted, Wilson, Patterson and Ealy discovered that the records did not conform to the bank records. Although deposit slips indicated that money had been deposited into the account, no money had actually been deposited. The bank which held the WGCAC account was of the opinion that the slips were forgeries. Stash, Wilson and Ealy met and determined that the only people who had access to the money involved in the transactions were Bargerstock and Ross. Wilson alerted the president of the WGCAC board of the situation and it was decided that meetings should be held with Bargerstock and Ross separately. If no one admitted guilt after the meetings then the matter would be turned over to the district attorney.

Separate meetings were held with Bargerstock and Ross on December 19, 1986. Present at the meetings were Joan Owens, deputy executive director of WGCAC, Stash and Ealy. At Ross’ meeting a union steward was also present since she was a union member. Neither Ross nor Bargerstock admitted responsibility for the missing funds. The matter was handed over to the district attorney and both women were suspended without pay. Ralph Eisiminger, an employee in Bargerstock’s department was told about the suspensions by Ealy. Within two months Ross was reinstated because Bargerstock had become the focus of the investigation.

Criminal charges were filed against Bargerstock. Soon after that, new evidence was discovered by the police which turned suspicion toward Ross and led to her confession. Charges were then dropped against Bargerstock and she was returned to her former position at her former rate of pay. Her suspension lasted four and one-half months. During this time, the local newspaper ran three small stories about the situation at WGCAC. The only article which mentioned Bargerstock’s name was an article about this defamation lawsuit.

In her complaint against WGCAC, Bargerstock alleged that she was defamed when WGCAC and Wilson told members of the police department that Bargerstock took the missing funds; told members of a “Pereinatal Task Force” that Bargerstock was guilty; told a PennDOT funding representative that Bargerstock was suspended because of a work-related impropriety; told various employees of WGCAC that Bargerstock was guilty and that Ross was suspended only as a formality; told newspaper reporters that two staff members were suspended in connection with a fiscal impropriety; and rehired Ross while Bargerstock remained suspended.

The first issue raised by WGCAC and Wilson has three parts. We will deal only with the third part which asks the question whether the trial court properly charged the jury on the defense of an affirmative privilege. We hold that it did not.

In an action for defamation, the plaintiff has the burden of proving:
(1) The defamatory character of the defamation;
(2) Its publication by the defendant;
(3) Its application to the plaintiff;
(4) The understanding by the recipient of its defamatory meaning;
(5) The understanding by the recipient of it as intended to be applied to the plaintiff;
(6) Special harm resulting to the plaintiff from its publication and, if applicable,
(7) Abuse of a conditionally privileged occasion.
42 Pa. C.S.A. § 8343(a)

A defendant may raise the defense that the communication was privileged and the burden is on the defendant to prove the “privileged character of the occasion on which it was published.” 42 Pa. C.S.A. § 8343(b).

Bargerstock alleged in her amended complaint that she was defamed by WGCAC and Wilson because of remarks made to the local newspaper, the district attorney, police officers, various employees and other people associated with WGCAC. These remarks were allegedly made after the December 19, 1986 meeting during which Bargerstock was initially confronted by members of the WGCAC board. WGCAC and Wilson requested from the trial court an instruction to the jury on the privileged nature of those remarks. The trial court gave the following instruction:

Now I am instructing you as a matter of law that the defendants were privileged to discuss and communicate certain comments, and those comments were the statements that took place at the meeting on the 19th in which Mr. Wilson, Mr. Stash, Mrs. Owens, Mrs. Bargerstock and the gentleman who was the accountant, who had testified that he had called Mrs. Bargerstock for reports. That meeting was, as a matter of law, a privileged conversation. The persons who were at that meeting had a right to be there because they were involved in a business decision and a business investigation. However, when those parties leave that meeting, then any action by any of them must be determined independent of that first meeting. Now that doesn’t mean that there still cannot be privileged communication or privileged statements made at a later date, but it means that each communication must be determined upon its own merit.
The testimony of Mr. Ealy who was also present at the meeting, according to the testimony of Mr. Eisiminger, that he communicated certain comments to Mr. Eisiminger. I believe, as a matter of law, that it was privileged that he would tell Mr. Eisiminger that he had new duties. I don’t think that is in dispute in this case. It is up to you to decide, based upon Mr. Eisiminger’s testimony and the weight you want to give to that testimony, whether or not Mr. Ealy abused any privilege he had and as a result defamed the plaintiff, Anne Bargerstock. That is one of the questions you must decide. Those are the instances in this case that I am holding as a matter of law that were either privileged communications or at least partially privileged communications. It is up to you to decide if there was an abuse of that communication.
(Jury Charge, 8/8/88-8/10/88, pp. 367-368.)

Whether a communication is conditionally privileged is a question for the court and whether that privilege is abused is a question for the jury. Montgomery v. Dennison, 363 Pa. 255, 69 A.2d 520 (1950). “A publication is conditionally privileged if the publisher reasonably believes that the recipient shares a common interest in the subject matter and is entitled to know____ This privilege applies to private communications among employers regarding discharge and discipline.” Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 573 A.2d 1116 (1990). A conditional privilege is abused if the plaintiff can show that the defendant acted with malice. Berg v. Consolidated Freightways, 280 Pa.Super. 495, 421 A.2d 831 (1980). The privilege can also be lost if the plaintiff can show that the defendant acted with negligence. Banas v. Matthews International, 348 Pa.Super. 464, 502 A.2d 637 (1985) This is a jury question that the jury cannot decide without proper guidance from the trial court.

A proper charge on conditionally privileged communications should begin with which communications the trial judge finds are privileged and which privilege they fall under. The judge should then instruct the jury that the privilege can be lost for each communication if the jury decides that the defendant abused the privilege. To find an abuse of the privilege, the jury has to find that the defendant made the defamatory communication intentionally, with the knowledge that it was false, recklessly, without regard to whether it was true or false, outside of the performance of the defendant’s duties which gave rise to the privilege, or that the defendant made a false statement without using reasonable care to determine the truth. (See Pennsylvania Selected Jury Instructions (Civil) § 13.09 Defamation: Defense of Privilege (1980)).

The jury charge given in the present case gives no guidance to the jury about what constitutes an abuse of a conditional privilege. The jury could not have possibly ascertained what a privileged communication is and how it can be abused from the charge that was given. Because of the inadequacy of the charge, we reverse the verdict and remand for a new trial.

The second issue raised by WGCAC and Wilson is whether the trial court erred by failing to grant their post-trial motion for a judgment non obstante verdicto on Bargerstock’s 42 U.S.C.A. § 1983 action. We hold that the trial court did err.

Bargerstock alleged in her amended complaint that the actions of WGCAC and Wilson which made up her defamation count not only constituted state action but also damaged her reputation and her ability to pursue her profession. An action under § 1983 exists when a person, acting under color of state law, deprives a person of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). The United States Supreme Court has held that to establish a claim under § 1983, a person must allege more than simple defamation by a state officer. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Beyond defamation, Bargerstock has alleged that the actions of WGCAC and Wilson have damaged her ability to pursue her profession. And yet, she has been reinstated in her old position with WGCAC at the same salary.

On appeal from a denial of a motion n.o.v., this court must view all evidence in the light most favorable to the verdict winner. Kubacki v. Citizens Water of Washington, Pa., 403 Pa. 472, 170 A.2d 349 (1961). Even in viewing the evidence in the light most favorable to Bargerstock as verdict winner, we can find nothing that supports her § 1983 claim. Her alleged defamation at the hands of WGCAC and Wilson is not enough, according to the U.S. Supreme Court, and she produced no evidence at trial to support her claim that her ability to pursue her profession was damaged. Therefore, we reverse the verdict of the trial court and remand this claim as well.

The third issue raised by WGCAC and Wilson is whether the trial court’s charge on punitive damages was improper. We hold that it was. The trial court instructed the jury on punitive damages as follows:

Now in determining the matter of punitive damages or whether or not you will grant punitive damages, you may determine or must determine whether the conduct of the defendants was so outrageous that in addition to compensatory damages which you may have awarded Mrs. Bargerstock on her negligence action, that you wish to award additional monies in order to punish the defendant or defendants for their conduct, and the purpose of punishing a defendant in a case like this must be looked at as a punishment and not Mrs.’s Bargerstock’s rights to recover. Now if you want to punish a defendant or defendants in order to deter this type of activity from taking place in the future, or to send a message out that this type of conduct will not be tolerated, then and only then will you consider awarding punitive damages. Now I have stated twice that in order to award punitive damage (sic), the conduct must be outrageous. Now a person’s conduct is considered outrageous under the law when he acts with such a bad motive or when he acts with such reckless indifference as to the interest of another party and the actions committed by him, in this case defamation. If you wish and intend to award punitive damage (sic), then you must be able to show or to find that the defendant or defendants had a bad motive or that they acted with reckless indifference to the interest of Mrs. Bargerstock.
(Jury Charge, 8/8/88-8/10/88, p. 370)

The trial court’s instruction is proper as a general instruction on punitive damages for most tortious conduct. (See Pennsylvania Selected Jury Instructions (Civil) § 14.00 Punitive Damages — General Instructions (1980)). In defamation actions, however, punitive damages have required a different formulation. This court has noted that:

[bjecause punitive damages in defamation actions are in effect a punishment for speech, the formulation of the appropriate standard has been influenced by constitutional considerations. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974), the United States Supreme Court held ‘[T]he States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.’ This is, of course, the familiar ‘actual malice’ formulation of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

Geyer v. Steinbronn, 351 Pa.Super. 536, 559, 506 A.2d 901, 913 (1986). The Pennsylvania Supreme Court has held that in order to award punitive damages to a private party plaintiff in a defamation suit, a jury must conclude that there was clear and convincing evidence that the defendants) acted with “actual malice.” Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304 485 A.2d 374 (1984) reversed on other grounds, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986).

A proper instruction on punitive damages in a defamation action would begin with the judge explaining the “clear and convincing” standard to the jury and how it is a higher standard than the “preponderance of the evidence” test used in most civil cases. The judge should then instruct the jury on the meaning of the term “actual malice.” “Actual malice” means “that the defamatory publication was made either with knowledge that it was false or with reckless disregard of whether it was false.” Banas, 348 Pa.Super. at 470, 502 A.2d 637. If it is apparent to the trial judge that there is not clear and convincing evidence to support an award of punitive damages, the trial judge should withdraw the question from the jury’s consideration. See Hepps, 506 Pa. at 330-333, 485 A.2d 374.

The instruction given to the jury in the present case did not give a definition of “actual malice.” Therefore, we reverse and remand this case for a new trial on this count as well. Because we are reversing on the first three issues we do not reach the final two issues.

Reversed and remanded. Jurisdiction relinquished.

CAVANAUGH, J., files a concurring and dissenting opinion.

CAVANAUGH, Judge,

concurring and dissenting:

I respectfully dissent from the majority’s reversal of a jury verdict in favor of Ann Bargerstock for the reasons which follow.

First, I disagree with the majority’s holding which appears in its first footnote. I believe that the rehiring of one employee (Carolyn Ross) after suspending both employees (Ross and Bargerstock) for the same alleged impropriety is capable of defamatory meaning. Furthermore, in light of the jury’s determination that the circumstances of the Bargerstock’s continued suspension otherwise fulfilled the elements for a claim in defamation, WGCAC’s decision to reinstate Ross but . not Bargerstock after both were suspended for the same reason is clearly directed at Bargerstock.

The jury made a determination that the investigation proceeded in a way which falsely and unjustifiably targeted Ms. Bargerstock as the guilty party in the fraud. When it has already been established that a fraud occurred, it is unrealistic to conclude, as a matter or law, that an employer’s decision to reinstate, and therefore exonerate, one of the two potentially guilty individuals does not at least imply that the second individual was the guilty party. It is for the properly instructed jury, and not this appellate court, to determine whether an action is defamatory in fact and to decide whether the defamation was in fact directed at the plaintiff. Moreover, under the circumstances of this case, it was not unreasonable for the jury to have determined that the reinstatement of Ross during Bargerstock’s continued suspension was defamatory by implication.

In its first footnote, the majority implies that the fact that Ross, but not Bargerstock, was a union employee whose union filed a grievance on her behalf is an extenuating circumstance which somehow excuses WGCAC’s actions in reinstating Ross but not Bargerstock. I fail to see why a union employee, who presumably has greater protection against employer misconduct, should enjoy more freedom from defamation by an employer than a non-union employee or, for that matter, why Bargerstock’s cause of action should fail merely because WGCAC chose to avoid conflict with the union at the expense of a non-union employee. WGCAC could very well have avoided problems with the union by reinstating both Ross and Bargerstock until it had determined which was the guilty party. Since WGCAC did not know who had taken the money, it was equally probematic to have reinstated Ross as Bargerstock in any event.

Lastly, with respect to the majority’s sweeping holding in footnote one, I note that employers who in future wish to shield themselves from justifiable suits in defamation, without making reasonable investigation into alleged wrongdoing or using discretion to protect the reputations of their employees, need only temporarily suspend or fire more employees than could actually have committed the alleged improprieties, claim that an investigation is under way, and reinstate those employees who are least suspected, only later using care in carrying out the most significant portions of the investigation. The majority even permits the employer to retain pay withheld during the suspension after a suspended employee is cleared of any wrongdoing.

Second, I disagree with the majority’s assertion that the court’s charge to the jury was insufficient or erroneous so as to warrant a new trial. The entire charge, except for that relating to punitive damages, see infra, was sufficient and substantially correct in all respects.

Where a motion for a new trial is based on the sufficiency of the jury charge, this court must examine the charge in its entirety against the background of the evidence to determine whether error was committed. If the appellate court concludes that the charge was erroneous, a new trial will be granted only if the jury charge might have prejudiced appellant; the extent of the prejudice, however, need not be certain. Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988). A review of the entire charge is necessary to determine whether error has occurred; a new trial will be granted only where the instruction was fundamentally erroneous. Id.; Commonwealth v. Proscodimo, No. 24 W.D. Appeal Docket 1989, Supreme Court of Pennsylvania, (filed August 17, 1990).

The majority finds that the court never adequately defined conditional privilege for the jury in order that they could determine whether a conditional privilege was abused. In fact, the trial court found that a conditional privilege existed as a matter of law and explained why the privilege attached:

Now I am instructing you as a matter of law that the defendants were privileged to discuss and communicate certain comments, and those comments were the statements that took place at the meeting on the 19th ... That meeting was, as a matter of law, a privileged conversation. The persons who were at that meeting had a right to be there because they were involved in a business decision and a business investigation. However, when those parties leave that meeting, then any action by any of them must be determined independent of that first meeting. Now that doesn’t mean that there still cannot be privileged communication or privileged statements made at a later date, but it just means that each communication must be determined upon its own merit.

(Notes of Testimony, p. 367.)

Further instruction in the same vein gave the jury more than adequate guidance as to what a privilege is and how it can be abused by indicating to the jury that communications under certain circumstances are protected because they are motivated by legitimate business concerns — which was the only kind of privilege at issue in this case. Rather than delving into the esoterics surrounding the entire law of privilege, the court communicated to the jury concrete, closely related examples of privilege upon which they could base their determinations with respect to other statements. This was entirely proper and certainly not so fundamentally erroneous as to require a new trial.

The majority also states that the trial court erred in failing to instruct the jury that it could only find an abuse of privilege if it determined that the defendant acted with negligence, that is, knew or should have known of the falsity of the statement. While that portion of the instruction quoted in the majority’s opinion did not contain a clear expression of the level of intent (negligence) necessary to find that a privilege was abused, at another point in the court’s instructions it told the jury that it would need to find that Bargerstock’s employers acted recklessly in order to find an abuse of privilege.

Examining the charge in its entirety, as we are bound to do, reveals that the court instructed the jury that it would have to find a higher level of intent (recklessness) than is actually needed (negligence) in the making of the false statement in order to find that defendants abused their privilege. The court’s instruction, far from inappropriately prejudicing appellants, actually benefitted them. The court’s instruction also included every element which the majority states is necessary for the jury to evaluate properly the plaintiff’s assertion that a conditional privilege was abused. Reversal on this ground is therefore inappropriate.

Third, I disagree with the majority’s reversal of the trial court’s refusal to grant appellants’ post-trial motion for judgment non obstante verdicto on Bargerstock’s 42 U.S. C.A. § 1983 action.

At the outset, I note that judgment n.o.v. should be entered only in the clearest of cases, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper. Any doubts should be resolved in favor of the verdict winner. Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986). On appeal, the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference which can reasonably be drawn from the evidence. Id.

Contrary to the majority’s assertions, Bargerstock had alleged sufficient facts to sustain a Section 1983 action. In addition to proving injury to reputation, Bargerstock proved a change in her employment status at WGCAC. See, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (wherein the Court held that proof of such allegations would be sufficient to sustain a Section 1983 action).

The damages Bargerstock sought to recover were not only, as the majority asserts, her ability to secure future employment, but also damage to her reputation and her inability to work during the five-month period when she was suspended. While loss of wages does not necessarily rise to the level of an infringement of civil rights, as the majority notes, damage to reputation or the inability to pursue one’ career may. See, McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229 (3rd Cir.1978). Contrary to the majority’s assertions, Bargerstock was entitled to be compensated for damage to her reputation and for having been unjustifiably prevented from working and pursuing her career during the five-month suspension period.

The case cited by the majority, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), to support its reversal of the trial grant’s refusal to grant judgment n.o.v. is completely inapposite. First, Paul did not involve defamation of an employee by the state employer and no break in employment was suffered by the defamation plaintiff. Second and more importantly, McKnight v. Southeastern Pennsylvania Transportation Authority, a Third Circuit case which referred to Pennsylvania law in determining the scope of the “liberty” interest to be protected under § 1983, distinguished Paul, in which Kentucky law was at issue, because the Pennsylvania Constitution enunciates a state policy of protecting the right of reputation with which a federally-based cause of action would be consistent. Kentucky law, on the other hand, does not extend to its citizens any legal guarantee of present enjoyment of reputation which was been affected by the actions of government officials in Paul. Therefore, the instant case is governed by McKnight rather than Paul and the majority’s reversal of judgment n.o.v. is inappropriate.

I do concur, however, in the majority’s assertion that the court’s instructions regarding punitive damages were insufficient. While I disagree with the majority’s finding that the court did not give a definition of actual malice, I find that the court did neglect to instruct the jury that it would need to find clear and convincing evidence of actual malice before awarding punitive damages. Because the court failed to instruct the jury that a higher burden of proof is required in order to award punitive damages, I would remand for a trial on that issue alone.

      . As part of their appeal, WGCAC and Wilson question whether this final allegation by Bargerstock can actually be considered defamatory. That is, whether the action of rehiring Ross defamed Bargerstock and can support a claim against WGCAC and Wilson. We hold that it does not. Actions, like the dismissal of an innocent employee for theft, are capable of defamatory meaning and can sustain a cause of action when they are accompanied by verbal communication. Berg v. Consolidated Freightways, 280 Pa.Super. 495, 421 A.2d 831 (1980). Conduct directed at one party by another party can also sustain a cause of action for defamation. Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959). In Pennsylvania, however, conduct by a defendant directed at a third party has never been held to support a plaintiff’s cause of action for defamation. This may be because of the difficulty involved in proving a connection between the conduct of the defendant towards the third party and the harm caused to the plaintiff. In the present case, Bargerstock argues that the rehiring of Ross directly defamed her. We note, however, that Ross was a member of a union and that the union filed a grievance against WGCAC after Ross was suspended. Ross’ reinstatement came after that grievance was filed. (Notes of Testimony, 8/8/88, pp. 206-207). Bargerstock was not a union member. This illustrates the extenuating circumstances involved when we are asked to hold that conduct by the defendant directed towards a third party is actually defaming the plaintiff. Up to this point in time, Pennsylvania has limited defamation actions to communications and conduct directed by one party against another party. We see no reason to extend this cause of action based on the present case. It is only this final allegation against Wilson and WGCAC which does not support a cause of action. The rest of the allegations are not deficient.

      . We also question how the trial court determined that the two occasions mentioned in its charge were privileged while concluding that other communications were not. A close reading of the trial transcript reveals that a number of the "publications” which Bargerstock alleged were defamatory involved the same information that was discussed at the meeting. This information was then given to employees and people associated with WGCAC who were affected by Bargerstock’s suspension.

      . The dissent argues that Bargerstock’s § 1983 claim was based on the damages she suffered during the five months she was suspended from her position at WGCAC. This allegation is not included in her complaint or her amended complaint. The dissent further argues that Bargerstock should at least be compensated for the wages that she lost over the five month period. The trial court instructed the jury that they could consider lost wages as part of her damages under her § 1983 claim. The loss of wages, however, does not necessarily rise to the level of an infringement of Civil Rights. Bargerstock could possibly recover lost wages under a breach of contract or wrongful discharge suit. We note that both of those claims were included in either the complaint or amended complaint but were later withdrawn.

      . This is the clear and explicit import of the majority’s holding.

      . I also note that at the trial court adequately instructed the jury that the defamatory statement must apply to the plaintiff:
      ... You must also consider whether or not the application of that [defamatory] statement was to the plaintiff. Certainly Mrs. Bargerstock would not make up a claim for a defamatory statement made against myself or you; it must be against her____

      . At pages 362-63 of the trial transcript, the court instructed the jury properly that plaintiff has the burden of proving abuse of privilege.
      At page 386, the court instructed the jury as follows:
      “Now if you find that a defamatory communication was made with disregard as to whether it was true or false, then you may find that the privilege which I just discussed was abused.”
      This instruction actually required the plaintiff to produce evidence of recklessness, which is a higher standard than the law requires, before the jury could find liability. Thus the charge unfairly benefitted, rather than prejudiced, appellants.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    580 A.2d 369
    Catherine CORNBLETH v. Terry CORNBLETH, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1990.
    Filed Sept. 6, 1990.
    Petition for Allowance of Appeal Denied Jan. 14, 1991.

      Eric C. Rome, Pittsburgh, for appellant.
    Patricia G. Miller, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and POPOVICH and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order denying appellant's post trial relief in equitable distribution matters. Appellant raises seven numbered issues attacking the valuation of the parties pensions, valuation of the parties’ residence, treatment of tax consequences, inclusion of appellant’s pension in the marital estate and the treatment of a deduction from a money market account. We reverse the trial court’s determination regarding the inclusion of a portion of appellant’s pension in the marital estate and the valuation of the pension, in all other respects we affirm.

Appellant/husband and appellee/wife were married on February 2, 1963 and were divorced on January 13, 1987. Appellant is a clinical psychologist at the Veteran’s Administration Hospital in Pittsburgh and at the time of trial was earning approximately $46,000 per year. Appellee is a professor at the State University of New York at Buffalo and was earning approximately $48,000 at the time of trial. Previously she held a similar position at the University of Pittsburgh. The parties stipulated to a separation date of December 31, 1983 and also stipulated to a seven percent growth rate for a number of assets. Among the assets in the marital estate were a variety of money market accounts and mutual fund accounts, municipal bonds, a residence and the parties’ respective pension plans. The court approved an equitable distribution scheme which allowed each party to maintain possession of the property in their possession. However, this created a substantial imbalance in husband’s favor which the court offset by ordering a payment of $75,000 from husband to wife.

Appellant presents an interesting issue regarding the valuation of his pension. As a civil service employee participating in the Civil Service Retirement System (CSRS), appellant does not participate in Social Security. Furthermore, any eligibility for Social Security would result in a commensurate decrease in his pension annuity under the CSRA. 5 U.S.C. § 8349. Appellant argues that, since,, under federal law, Social Security retirement benefits can not be considered marital property, all or at least a portion of his CSRS pension should be similarly treated. We are inclined to agree that a portion of appellant’s pension should be excluded from the marital estate.

The inclusion of pension benefits as marital property is derived from the fact that a pension is considered to be an asset of its owner. Although the benefit of the pension may be delayed until some future time, its value to the owner is undeniable. Further, a present value can be ascribed .to it using mathematical techniques, thus providing a means for dividing its value. Further support for inclusion of a pension in the marital estate can be garnered from the fact that income earned during the marriage, which would otherwise become disposable to the couple, is most often utilized to fund the pension. Also, any employer contributions to the pension can easily be viewed as a form of delayed compensation. Of course, compensation of the parties during the marriage constitutes marital property. On the other hand, by virtue of federal policy, Social Security benefits, including retirement benefits, are excluded from treatment as marital property despite the fact that there is a tremendous degree of similarity in the nature of a Social Security retirement benefit and a conventional pension.

In assessing appellant’s argument that all or part of his pension should be excluded from the marital estate due to his nonparticipation in Social Security, the trial court focused on the issue of whether federal law requires such an approach and whether there is a preemption of state law by the federal one. However, although, as aptly demonstrated by the trial court, there is no federal preemption obstacle in the way of considering appellant’s pension a marital asset, this is only one part of the required analysis. There still remains a need to determine whether the pension should be considered a marital asset under the governing theories of our domestic relations law. In this respect, we have no difficulty in concluding that to the extent appellant’s pension is similar to that of a conventional pension the portion of appellant’s pension fairly characterized as the equivalent of a conventional pension should be included in the marital estate. However, to the extent part of the pension might figuratively be considered “in lieu of” a Social Security benefit we believe that portion should be exempted from the marital estate.

One of our goals with regard to equitable distribution must be to treat different individuals with differing circumstances in a fashion so as to equate them to one another as nearly as possible, thus, eliminating a bias in favor of, or against, a class of individuals. To the extent individuals with Social Security benefits enjoy an exemption of that “asset” from equitable distribution we believe those individuals participating in the CSRS must, likewise, be so positioned. Consider for example an individual being divorced at approximately age fifty. Assuming a normal work history, that person will likely have accrued a substantial pension as well as a right to Social Security. When the pension is divided in equitable distribution there will be a diminution of the expected retirement income. However, the presence of Social Security will help offset the diminution. In contrast, an individual who was a civil service participant for many years will, if the trial court’s approach is approved, be dealt a double blow of sorts. The pension will become part of the marital estate and, thus, divided, yet there will be no Social Security benefit waiting to cushion this financial pitfall. The situation is exacerbated, thus providing a second “blow”, in that the money that would, in a conventional setting, be routed into Social Security, and thus into an exempt status, would either have been consumed by the couple, thus providing previous benefits enjoyed by both, or, perhaps, routed into the CSRS or another retirement type vehicle, which, of course, would then be included in the marital estate.

In either scenario, a substantial stream of income which would be used to finance a future Social Security benefit, which for most individuals is excluded from equitable distribution, is not similarly shielded for the CSRS participant. Thus, the CSRS participant is at a disadvantage when compared to the majority of the work force. Consequently, should equity prevail, this difference must be negated if we are to equate the CSRS participant with Social Security participants.

The present case itself establishes the inequity of positions. The parties to this action have both been employed for many years. Appellee has amassed a sizable pension along with the appellant. However, a portion of her income has also been routed into social security which is exempt from distribution. Further, she will reap the benefits of this routing of income at retirement. Had there not been a routing of this income into the Social Security program, the parties, as a married couple, would have benefitted either by having an increased disposable income or by saving the additional funds. Had the funds been saved or used to purchase an asset that retained value, then that value would have been subject to equitable distribution. Conversely, had the funds been simply expended by the couple during their marriage there may not have been an asset to equitably divide. However, there would have been a present enjoyment of that stream of income by both parties during the course of the marriage. Thus, the exemption of this future income must be regarded as a benefit to appellee and a detriment to appellant. The approach espoused by appellee allows for an enjoyment of that stream of income by only herself.

To facilitate a process of equating CSRS participants and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the CSRS participant been participating in the Social Security system. This present value should then be deducted from the present value of the CSRS pension at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near as possible, the two classes of individuals for equitable distribution purposes.

Appellant also challenges the method of valuation of his pension adopted by the trial court. Appellant and appellee both presented expert testimony regarding the valuation of the pension. However, the two experts came up with diverse results. Appellant’s expert began with the monthly benefit figure earned through the time of separation, $725, assumed a retirement age of 60, applied the Pension Benefit Guarantee Corporation factor of 2.0951 and applicable tax ramifications and came up with a figure of $17,245. This figure was then appreciated at the agreed upon rate of 7% to arrive at a $23,357 figure at time of trial.

A coverture fraction was unnecessary as all of the pension earned, through the date of separation, was earned during the course of the marriage. Appellee’s expert assumed service till age 60, thus deriving a monthly benefit figure of $2,130, applied the PBGC factor and then applied a coverture fraction to adjust for the “marital” portion of the pension. This method of calculation resulted in a present value of $46,860. The trial court found this method of valuation the more credible. However, it appears that this method of evaluation is in conflict with that set forth in the cases of DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987) and Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988).

In Lowry we reaffirmed a position earlier taken in DeMasi regarding the proper approach to valuing pension plans. That approach called for the evaluation of a pension plan under the assumption that the pensioner was at retirement age at the time of separation. DeMasi, 530 A.2d at 886, Lowry, 544 A.2d at 982. In essence this method provides a value of the pension that had accrued during the márriage up to the time of separation only. It necessarily excludes the additional accruing of benefits and the compounding effect that is generally associated with continuing service and participation in a plan. This is essentially the approach utilized by appellant’s expert witness.

In contrast, appellee’s witness assumed service to normal retirement age which is in direct conflict with the recitations found in DeMasi and Lowry. Mathematically speaking, this will result in a higher figure than if the pension were valued under the DeMasi and Lowry guidelines because it assumes, essentially, that there was an even growth of the value of the pension. However, such an approach ignores the reality that the greater appreciation in value accrues at the tail end of any such plan and that the value of the plan can reach such levels only by including contributions occurring after the separation date. Applying a coverture fraction does not completely remove the valuation problem because such an approach does not take into consideration the compounding effect of the plan.

Consequently, it appears obvious from a review of Lowry and DeMasi that the valuation accepted by the trial court is not in conformity with those decisions. However, we note as well that the present value of the plan benefits under the Lowry guidelines was below the level of his contributions to the plan at the time of valuation. Inasmuch as appellant would be entitled to his contributions had he terminated his employment on the date of separation, we would see no reason that the pension should be valued at below that level for equitable distribution purposes. As our holding will require a remand for a redetermination of value of appellant’s pension, we shall leave for the trial court to determine whether to accept the value of contributions or the present value of the defined benefits, assuming, of course, that this situation will still apply after adjustment for the Social Security factor discussed above.

For the reasons discussed above, we reverse that portion of the order appealed from which denies exempt status to a portion of appellant’s pension which is equal to a Social Security benefit. We further vacate the equitable distribution scheme as presently ordered and remand for a redetermination of appellant’s pension in accordance with this opinion. All other issues raised by appellant are affirmed. Order affirmed in part and reversed in part. The order of equitable distribution is vacated and the case is remanded for the fashioning of a new equitable distribution in accordance with this opinion. Jurisdiction relinquished.

      . Previously, benefits under the CSRA were excluded from equitable distribution. However, in 1978 the Act was amended to allow such division. 5 U.S.C. § 8345(j)(l).

      . Indeed, this principle is firmly established in our law. See, Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985), DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987).

      . Inherent to our disposition here is the realization that Social Security is, in essence, a forced savings plan. Essentially the federal government mandates that a portion of a worker’s income, which as previously observed would otherwise be martial property, be saved away until the worker becomes eligible to collect it. By exempting Social Security from equitable distribution, the federal government has created not only a means where a married individual can shield marital property from division, but, essentially, has mandated such an action. Our decision here simply recognizes this fact and attempts to equate those workers in the CSRS with the rest of the work force.

      . In the present case, it is conceded that at the time of separation appellant had earned, under plan provisions, an annuity of $8,710. However, under appellee’s expert’s calculations the present value of appellant’s annuity if he works to age 60 will be $11,271. (monthly benefit of $2,130 multiplied by the coverture fraction of .441) The difference is directly attributable to the effect that the post separation contributions to the plan have on the overall value of the retirement benefit. However, these additional contributions cannot be considered marital property because they will not be made during the marriage. Under the guidelines of DeMasi and Lowry the effect of these post separation contributions are factored out to represent more closely the true value actually accrued during the marriage.

      . We rely, in affirmance, upon the opinion of the trial court with respect to these issues, which, we find, quite capably disposes of them.


author: BECK, Judge:

text:
    580 A.2d 374
    Charles FRANCISCO and Cecilia Francisco, H/W v. FORD MOTOR COMPANY, Eaton Corporation and Hertz Penske Truck Leasing, Inc. Appeal of HERTZ PENSKE TRUCK LEASING, INC.
    Superior Court of Pennsylvania.
    Argued June 13, 1990.
    Filed Sept. 12, 1990.

      George D. Sheehan, Jr., Philadelphia, for appellant.
    Don P. Foster, Philadelphia, for Francisco, appellees.
    Before BECK, POPOVICH and HESTER, JJ.
   BECK, Judge:

The issue on appeal is whether the trial court erred in granting the plaintiffs’ motion to strike the defendant’s answer and new matter, where the answer and new matter was filed three years and nine months after the plaintiffs filed their complaint. We find that the trial court did not abuse its broad discretion in granting the plaintiffs’ motion to strike and, therefore, affirm that ruling.

Charles Francisco and Cecilia Francisco filed a complaint on October 10, 1985, against Hertz Penske Truck Leasing, Inc. (“Hertz”) for injuries which were allegedly caused by an automobile accident which occurred on February. 15, 1983. On July 19, 1989, approximately three years and nine months later, Hertz filed an answer and new matter. Thereafter, the plaintiffs filed a motion to strike the answer and new matter, which was granted by the trial court. Hertz then requested the court to reconsider its order granting the plaintiffs’ motion to strike. After reconsideration, the trial court again granted the plaintiffs’ motion to strike. Hertz appeals this decision.

On appeal, appellant contends that the trial court abused its discretion in striking appellant’s answer and new matter. Appellant argues that appellees suffered no prejudice as a result of the late filing of the answer and new matter. In addition, appellant asserts that striking an untimely filed answer and new matter is inappropriate. Rather, appellant contends that the appropriate procedure was for appellees to file for a default judgment. Appellant asserts, therefore, that the trial court lacked the authority to strike the answer and new matter.

We must evaluate appellant’s claim of error within the constraints of the abuse of discretion standard. Allison v. Merris, 342 Pa.Super. 571, 574, 493 A.2d 738, 740 (1985); Urban, 332 Pa.Super. at 378, 481 A.2d at 665. Thus, as an appellate court reviewing the ruling of a trial court, we may not substitute our judgment for the judgment of the trial court, absent evidence that the trial court abused its discretion. With this standard in mind we review appellant’s claim of error.

Pennsylvania Rule of Civil Procedure 1026 provides that “every pleading subsequent to the complaint shall be filed within twenty days after the service of the preceding pleading — ” Pa.R.C.P. 1026 (emphasis added). The word “shall” in Rule 1026 has always been interpreted flexibly, thus permitting exception to the rule where justice so requires. Fisher v. Hill, 368 Pa. 53, 57, 81 A.2d 860, 863 (1951). Thus, the twenty day filing rule is said to be permissive rather than mandatory. Urban, 332 Pa.Super. at 378, 481 A.2d at 665. We cannot emphasize strongly enough, however, that the decision of whether or not to grant an exception to the twenty day filing rule is within the trial court’s discretion. A pleading that is not filed within the articulated time period may be stricken by the court. Joyce v. Safeguard Mut. Ins. Co., 362 Pa.Super. 522, 524 A.2d 1362 (1987), rev’d on other grounds sub. nom Safeguard Mut. Ins. Co. v. Joyce, 517 Pa. 488, 539 A.2d 340 (1988) (citing Pa.R.C.P. 1017(b)(2)). As long as the trial court has not abused its discretion, we cannot reverse such a ruling.

Appellant contends that the trial court should have denied appellees’ motion to strike, because the correct procedure required appellees to file a motion for a default judgment, rather than a motion to strike. In order to evaluate this contention, we believe it is necessary to describe the development of Pennsylvania case law in this area.

In Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971), the Pennsylvania Supreme Court observed that a pleading may be filed after the expiration of the twenty day period “ ‘if the opposite party is not prejudiced and justice requires. Much must be left to the discretion of the lower court.’” Id., 442 Pa. at 441, 275 A.2d at 322 (quoting Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951) (emphasis added).

Almost fifteen years later this court in Allison supra, relied upon the principle enunciated in Paulish when it considered whether the trial court properly refused to strike the defendant’s answer and counterclaim filed approximately two weeks after the expiration of the twenty day filing period. The Allison court articulated the general rule that “the late filing of an answer will be ignored where the plaintiff has not acted to take a judgment by default.” Id. 342 Pa.Super. at 574, 493 A.2d at 739. The court based this general rule on the principle that if a party does not take a judgment by default, he or she could not have suffered any prejudice. If a party suffered no prejudice, the Allison court opined, his or her delay in taking a judgment by default would be viewed as impliedly granting an extension of the twenty day filing period. The court concluded, therefore, that because the delay was brief and was promptly cured, the trial court did not abuse its discretion in refusing to strike the answer and counterclaim. Id. 342 Pa.Super. at 574, 493 A.2d at 740.

Several years later this court, in the en banc decision of Joyce, supra, considered whether the trial court correctly denied a party’s motion for leave to file a late answer, where five years had elapsed between the service of the original complaint and the defendant’s attempt to file an answer eight days prior to an arbitration hearing. Initially, the Joyce court articulated the general rule announced in Allison. The court declared, however, that despite this general rule it would not “excuse the abject indifference ... reflected by an intervening period of almost five years between the service of the complaint and the effort to file an answer____” Id., 362 Pa.Superior Ct. at 526, 524 A.2d at 1363 (emphasis added). The court relied, in part, upon Pennsylvania Rule of Civil Procedure 1003, which provides that where a party seeks to file a late pleading, cause must be shown to explain why the statutory filing period should be extended. Pa.R.C.P. 1003. The court ultimately concluded that because the defendant failed to introduce sufficient evidence to meet the “cause shown” requirement of Rule 1003, the party opposing the late pleading was not required to introduce evidence that it had been prejudiced. The court affirmed the trial court’s denial of the defendant’s motion to file a late answer. Id., 362 Pa.Superior Ct. at 528, 524 A.2d at 1365.

With this case law in mind, we turn now to an evaluation of the trial court’s ruling in the instant case. In the case sub judice, appellant filed an answer and new matter three years and nine months after appellees filed their complaint. Appellees objected to this late filing by filing a motion to strike appellant’s answer and new matter. The trial court initially granted this motion and, after reconsideration, affirmed this ruling. We find that based upon this court’s en banc decision in Joyce, the trial court was wholly within the bounds of its discretion in granting appellees’ motion to strike.

We believe that the three year and nine month delay in filing an answer constituted “abject indifference” as recognized in Joyce. The trial court’s refusal to ignore this blatant disregard for the time limits delineated in our rules of civil procedure was wholly within the bounds of its discretion based upon the principles enunciated in Joyce and the Pennsylvania Rules of Civil Procedure. We emphasize that while Pennsylvania Rule of Civil Procedure 126 instructs that we “liberally construef ]” the Rules, this does not require courts to completely ignore them. We decline to interpret Rule 126 as requiring such a result.

Appellant opposes this resolution on several grounds. Appellant asserts that its answer cannot be stricken because appellees have failed to establish that they have been prejudiced by the late filing. While we agree that the prejudice appellees assert they have suffered is not the type of prejudice required under Rule 1026, we find it unnecessary to reach this stage of the analysis. As this court correctly noted in Joyce:

It is true that had appellant simply filed the answer without permission of the court, appellee would have been required to initiate a motion to strike the pleading. Appellee would have done so, of course, by filing preliminary objections in the nature of a motion to strike. Appellant, had appellee been forced to such an initiative, would have been required to file a response to the petition to strike the late answer and new matter, and presented in that response, as well as at the subsequent evidentiary hearing, the basis for an assertion that there was “cause” why the late pleading should be allowed. Had appellant failed to establish such cause, appellee would have been relieved of the burden of establishing the manner in which she was prejudiced.

Joyce, 362 Pa.Super. at 528-29, 524 A.2d at 1365 (emphasis added). Here, appellant failed to establish the basis for the three year and nine month delay in filing. This being so, we conclude that appellant has failed to meet the cause requirement. Thus, the burden has not shifted to appellees to establish how they were prejudiced by the delay. Appellees failure to do so, therefore, cannot constitute grounds for reversal of the trial court and reinstatement of appellant’s answer and new matter.

Appellant also contends that our finding in Allison requires this court to conclude that any time a party fails to seek a default judgment as a result of a late filed pleading, this automatically extends the period within which the party may file its late pleading. Appellant, however, mischaracterizes this court’s opinion in Allison. The Allison court held that where a party does not seek a default judgment, it is within the trial court’s discretion to find that the period within which to file an answer has been extended. Thus, in Allison the court found that because the plaintiff failed to move for a default judgment, the trial court could, within its discretion, refuse to strike the untimely filed answer. Allison did not, however, establish the inverse principle, i.e., that where a party does not seek a default judgment the trial court will be found to have abused its discretion where it strikes an answer where a party has not first moved for a default judgment.

Allison left intact a trial court’s authority to strike an untimely filed answer where justice does not require the twenty day rule to be extended. In the instant case, the trial judge concluded that the appellant’s three year and nine month delay in filing its answer and new matter, despite the appellees having not moved for a default judgment, did not warrant an extension of the twenty day filing requirement. It is clear that his decision to do so was wholly within his broad discretion over this issue.

In addition, we emphasize that Allison is clearly factually distinguishable from the case sub judice. In Allison, the defendant delayed filing its answer only two weeks beyond the twenty day period. The Allison court highlighted this minimal delay as one of the primary bases supporting its decision to extend the filing period. Conversely, appellant in the instant case delayed three years and nine months in filing its answer. Undoubtedly, these cases are factually distinguishable. This court’s holding in Allison does not conflict with the disposition here enunciated.

The order of the trial court granting appellees’ motion to strike appellant’s answer and new matter is affirmed. Jurisdiction is relinquished.

      . The plaintiffs also brought suit against Eaton Corporation and Ford Motor Company, for injuries allegedly arising out of the same accident.

      . The facts surrounding this alleged injury are not important to the disposition of this appeal.

      . While neither party raises the issue, we first consider the appealability of the trial court’s order. Case law clearly dictates that because the trial court’s order striking the appellant’s answer and new matter prevents appellant both from challenging the averments contained in the complaint and from asserting affirmative defenses, it constitutes a sufficiently final order warranting our review. Urban v. Urban, 332 Pa.Super. 373, 378, 481 A.2d 662, 665 (1984).

      . Appellant also argues that appellees extended the twenty day pleading period indefinitely, pursuant to Pennsylvania Rule of Civil Procedure 248. This rule provides that ”[t]he time prescribed by any rule of civil procedure for the doing of any act may be extended or shortened by written agreement of the parties or by order of the court.” Pa.R.C.P. 248. As the basis for this assertion, appellant highlights a letter that its previous counsel sent to appellees' counsel, dated October 21, 1985, which stated: ”[y]ou have kindly given me an extension of time in which to plead.” Letter from appellant’s counsel to appellees’ counsel, Oct. 21, 1985. Appellant contends that this letter constituted a written agreement for purposes of Rule 248, and operated to extend the twenty day response requirement indefinitely. Regarding the letter’s compliance with Rule 248, the trial court determined that "[although Defendant did ask for an extension of time to file the answer on October 21, 1985, no extension was ever granted or agreed to by the parties." Trial Court Op., p. 1. The record contains no evidence to the contrary. Finding no abuse of discretion in this conclusion, we affirm the trial court’s ruling on this issue.

      . Pennsylvania Rule of Civil Procedure 1017 provides that “[pjreliminary objections are available to any party and are limited to ... (2) a motion to strike off a pleading because of lack of conformity to law or rule of court____" Pa.R.C.P. 1017(b)(2). Pennsylvania courts have utilized this rule to strike off pleadings filed outside of the twenty day limitation contained in Rule 1026. Commonwealth of Pennsylvania, Dept. of Transp. v. Kmetz, 129 Pa.Commw. 97, 98-99, 564 A.2d 1040, 1040 n. 2 (1989); Moore v. Clabell-Hickory, 301 Pa.Super. 154, 156-60, 447 A.2d 288, 290-91 (1982). See Standard Pa. Practice 2d § 25:45, p. 198.

      . Appellees assert that they have been prejudiced because appellant’s answer and new matter contains defenses different from those asserted by the other two defendants in the case. To constitute prejudice, an opponent’s delay must cause a party to suffer "any substantial diminution [in their] ability to present factual information in the event of trial____” American Bank & Trust Co. of Pennsylvania v. Ritter, Todd & Haayen, 274 Pa.Super. 285, 287, 418 A.2d 408, 409 (1980). Appellees’ allegations of prejudice do not even address the proofs required to be established in the event of trial. Were we to reach the prejudice step of the analysis, clearly appellees' assertions would prove inadequate.

      . Were we to hold otherwise, as pointed out by the Joyce court, a party could gain an advantage by filing a late answer without first requesting the court's permission to do so under Rule 1003. It would be absurd to articulate a rule whereby a party only has to show cause to file a late pleading where the party requested the court’s permission to do so, but does not have to show such cause where they simply filed the late pleading without the court’s prior approval. We decline to adopt such an absurd approach.

      . Appellant also cites Colonial School Dist. v. Romano’s School Bus Serv., 118 Pa.Commw. 460, 545 A.2d 473 (1988), in which the Commonwealth Court vacated an order by the trial court that struck a defendant’s answer and new matter filed approximately twenty-three months late. This case is not precedential and we decline, therefore, to follow the reasoning articulated therein.


author: HOFFMAN, Judge:

text:
    580 A.2d 379
    COMMONWEALTH of Pennsylvania v. Roger A. WELSHANS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 21, 1990.
    Filed Sept. 19, 1990.

      Deborah A. Weinman, Williamsport, for appellant.
    Thomas A. Marino, Asst. Dist. Atty., Williamsport, for Com.
    Before JOHNSON, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment of sentence for driving under the influence of alcohol, and homicide by vehicle while driving under the influence of alcohol. Appellant argues that (1) the trial court erred in refusing to suppress results of a blood alcohol test; (2) trial counsel was ineffective for failing to object to: (a) the admission of the results of that test and separate blood typing tests; and (b) the presentation of certain expert testimony; and (3) the sentence imposed was illegal. For the reasons that follow, we vacate the judgment of sentence for driving under the influence, and affirm the judgment of sentence on the remaining charge.

Appellant was arrested on July 27, 1988, and charged with the above-mentioned crimes. On February 10, 1989, following a jury trial, he was convicted of those charges. Post-verdict motions were timely filed on February 21, 1989, and denied by order dated May 24, 1989. On September 19, 1989, appellant was sentenced to thirty-seven-to-eighty-four months incarceration for homicide by vehicle while driving under the influence, and one-to-eighteen months incarceration for driving under the influence, those sentences to be served consecutively. At trial, appellant was represented by private counsel. However, on September 21, 1989, he was granted leave to proceed in forma pauperis. Counsel from the Public Defender’s Office of Lycoming County then was appointed to pursue this appeal, notice of which was timely filed on September 29, 1989.

The facts giving rise to this case are as follows. On July 15, 1988, the van appellant was driving crashed into the side of a bridge in Lycoming County. Appellant and his passenger were injured, and the passenger later died as a result of the injuries sustained in the crash. Appellant was removed from the van by police, and paramedics transported him to Jersey Shore Hospital for treatment. At the time he was removed from the van, appellant smelled of alcohol. Hospital personnel drew blood and performed a blood alcohol test for diagnostic purposes. Subsequently, the investigating police officer arrived and requested that a blood alcohol test be performed. Hospital personnel informed him that a test already had been performed, which indicated that appellant’s blood alcohol content (BAC) was .18%. Several days later, police obtained the written results of the test with a search warrant. Appellant then was arrested and charged with the above-mentioned crimes.

Appellant first argues that the trial court erred in refusing to suppress certain evidence. Specifically, appellant argues that the trial court erred in refusing to suppress the results of the blood alcohol test because the results were obtained in violation of the Fourth Amendment.

Our standard of review of a court's denial of a motion to suppress evidence that allegedly was obtained in violation of the Fourth Amendment is well-settled:

[O]ur function as an appellate court reviewing a denial of a motion to suppress is to determine:
[Wjhether the record supports the suppression court’s factual findings and the legitimacy of the inferences and the legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Vinson, 361 Pa.Super. 526, 530, 522 A.2d 1155, 1157 (1987). The implied consent statute, 75 Pa.C.S.A. § 1547(a), is also helpful in evaluating appellant’s claim. Section 1547(a) provides, in relevant part, that:

Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both____

Id. This Court has upheld the constitutionality of a warrantless search and seizure under § 1547(a)(1), interpreting the requirement that the officer have “reasonable grounds” in the belief that the driver was driving under the influence as requiring that the officer have “probable cause” to believe that the driver was under the influence. Commonwealth v. Quarles, 229 Pa.Super. 363, 388, 324 A.2d 452, 466 (1974). Probable cause exists where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance. Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185 (1989) (probable cause existed where defendant smelled of alcohol, had glassy bloodshot eyes). See also Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988) (probable cause existed where appellant had strong odor of alcohol on his breath); Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394 (1987) (probable cause existed where arresting officer observed defendant in one-car accident and defendant smelled of alcohol), allocatur denied, 517 Pa. 604, 536 A.2d 1329 (1987).

Here, Officer Arthur Robinson of the Lycoming County Police testified that “[w]hen I arrived at the scene of the accident the road conditions were good [although] [t]he road was damp in areas____” See N.T., February 8, 1989 at 81. Officer Robinson also testified that there were no accumulations of water on the roadway. Id. Furthermore, at the suppression hearing, Officer Robinson testified that when he arrived at the accident scene he observed that a van had struck the bridge structure. He then approached the vehicle and attempted to remove appellant from the driver’s seat. He stated that, as he was doing so, he “smelled an odor of alcohol.” See N.T. February 8, 1989 at 3-4. Upon further examination, he stated that the odor of alcohol he detected came from “on the defendant.” Id. at 7. The record, therefore, reveals that appellant smelled of alcohol and was involved in a single vehicle accident at a time when the weather was clear, and the road conditions were good. These facts were sufficient to provide the police with probable cause to believe that appellant had been driving while under the influence. Therefore, the police were justified in having a blood test performed upon appellant, and the trial court did not err in refusing to suppress the test results.

Appellant next argues that trial counsel was ineffective for failing to object to the presentation of blood alcohol and typing test results, and certain opinion evidence. We shall address these claims, seriatim.

Our Supreme Court has summarized the law governing claims of ineffective assistance of counsel as follows:

[t]here are three elements to a valid claim of ineffective assistance. We inquire first if the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect on the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant’s first specific claim is that trial counsel was ineffective for failing to object to the presentation of the results of the blood alcohol test because the Commonwealth failed to establish a sufficient chain of custody. We disagree. The law regarding appellant’s underlying claim is well-settled. As we stated in Commonwealth v. Melendez, 326 Pa.Super. 531, 474 A.2d 617 (1984):

[tjhere is no requirement that the Commonwealth establish the sanctity of its exhibits beyond all moral certainty. It is sufficient that the evidence, direct and circumstantial, establish a reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court.

Id., 326 Pa.Superior Ct. at 537, 474 A.2d at 620.

Here, the record reveals that the Commonwealth presented the testimony of the medical technologist who drew the blood from appellant, and the medical technician who actually performed the blood alcohol analysis. The technologist testified that she handled the sample according to routine procedures. This handling included labeling the sample for identification purposes and refrigeration to ensure its preservation. See N.T., February 8, 1989 at 50-52. The technician testified that she had been doing this type of work for twenty-two years. She also stated that she followed routine procedures for identification, handling and analysis of appellant’s blood sample. Id. at 55-59. Furthermore, we have carefully reviewed the record, and we note that appellant has presented no evidence to call into question the accuracy of the witnesses’ testimony. Under these circumstances, we are satisfied that the evidence presented establishes a reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court. Because appellant's argument regarding the chain of custody is meritless, trial counsel cannot be held to have been ineffective for failing to raise it. See Commonwealth v. Blagman, 350 Pa.Super. 367, 504 A.2d 883 (1986).

Appellant next argues that trial counsel was ineffective for failing to object to the presentation of evidence regarding the blood typing tests by which police established that the blood on the driver’s side of the van was his. This claim is meritless.

The Commonwealth presented testimony from both the trooper who collected the blood samples from the driver’s side of the van and the criminologist who performed the typing analysis which established that the blood was appellant’s type. The Commonwealth also presented testimony from the medical technologist whose analysis established that the blood type of the decedent, who appellant alleged was driving the vehicle, did not match that found on the driver’s side of the vehicle. The trooper stated that he followed standard procedures for the collection and identification of blood samples. See N.T., February 9, 1989 at 98. The criminologist, who was qualified as a blood typing expert, in turn testified regarding the procedures he followed in his analysis of the blood samples from the vehicle. Id. at 100-104. The medical technologist testified that she had been working in the field for ten years, and that there was nothing unusual about her handling of the sample that she analyzed. Id. at 105-07. Appellant did not object to this testimony, nor did he offer any evidence to suggest that the tests were not properly performed. Again, we conclude that the Commonwealth has established a reasonable inference that the identity and condition of the samples remained unimpaired until they were surrendered to the court. Therefore, appellant’s claim regarding the chain of custody of the blood typing tests is meritless, and counsel was not ineffective for failing to raise it. See Commonwealth v. Blagman, supra.

Appellant’s next argument is that trial counsel was ineffective for failing to object to the testimony of an expert witness. Specifically, appellant argues that trial counsel should have objected to the testimony of Don Weaver, a clinical pathologist, regarding the behavior of a person with a .18% BAC reading. We disagree.

The situation we are faced with in this case is clearly distinguishable from the situation in Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988), the case appellant cites in support of his argument. In Gonzalez, the appellant was convicted of driving while his BAC was greater than .10%. On appeal, he argued that the trial court erred in admitting a police officer’s statement that, based on appellant’s .09% BAC over three hours after arrest, “appellant’s blood alcohol at the time of the accident could have been .125 percent.” Id., 519 Pa. at 121, 546 A.2d at 28. The Supreme Court held that the officer’s testimony was not admissible to show that appellant had violated § 3731(a)(4) because there was no factual support for finding that appellant’s blood alcohol content was .125% at the time of his arrest, and appellant’s lower BAC at the time of his arrest could not be used to “relate back” or extrapolate a higher BAC at the time of his arrest.

Here, the pathologist did not testify to appellant’s BAC at the time of the accident, or attempt to use a BAC of less than .10% to “relate back” and establish that appellant’s BAC was greater than .10% before the test was administered. He merely testified regarding the effect alcohol would have on an average individual with the BAC appellant had after he arrived at the hospital. Furthermore, we note that approximately two hours after the accident appellant’s BAC was much greater than .10%. Thus, the information upon which the pathologist’s testimony was based clearly was relevant to the issue of whether appellant violated Section 3731(a)(4). See Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986) (BAC measurement of .12% sufficient to support finding appellant guilty of violating § 3731(a)(4) where test administered two hours and forty five minutes after arrest); see also Commonwealth v. Boyd, 373 Pa.Super. 298, 541 A.2d 21 (1988) (where appellant drove in erratic manner and smelled of alcohol, BAC reading of .16% thirty minutes after arrest sufficient to permit finding that appellant violated § 3731(a)(4)). The expert’s testimony, therefore, was properly admitted, and, accordingly, appellant’s argument that trial counsel was ineffective for failing to object to the pathologist’s testimony is meritless.

Appellant's final argument is that the trial court erred in imposing separate sentences for homicide by vehicle and driving under the influence. We are constrained to agree.

75 Pa.C.S.A. § 3731 states, in relevant part, that:
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving____
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

Id.

75 Pa.C.S.A. § 3735 states, in relevant part, that:
(a) Offense defined. — Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death____

Id. This issue is controlled by our recent decision in Commonwealth v. Voshall, 387 Pa.Super. 47, 563 A.2d 936 (1989). In Voshall Judge Brosky stated that:

[In evaluating merger claims] a trial court need not tax itself with the burden of determining what Commonwealth interests are at stake by attempting to sort out the number of offenses actually committed against the Commonwealth or by endeavoring to compartmentalize each harm actually present in a given criminal act. Instead, a sentencer need only determine if any of the crimes necessarily involve each other, i.e., whether any are lesser included offenses of the other charge(s).
Therefore, it should be obvious to anyone reading the ... provisions of the Motor Vehicle Code that the elements of the offense of driving under the influence are intrinsic to the statute regulating the conduct of one who commits the crime of homicide by vehicle while driving under the influence. The language of this latter provision makes it abundantly clear that it applies to those who have violated and have been convicted of Section 3731 [relating to driving under the influence]. The violation and conviction of Section 3731 is an element of homicide by vehicle while driving under the influence. Necessarily and logically, then, the elements of Section 3731 are implicitly included in Section 3735, making the former a lesser included offense of the latter____
The act of driving under the influence is the only basis upon which [defendant] could have [been convicted of] the crime of homicide by vehicle while driving under the influence. He did not commit any other criminal act beyond that which was necessary to establish the bare elements of homicide by vehicle while driving under the influence. Accordingly, we vacate the judgment of sentence imposed pursuant to [defendant’s conviction for] driving under the influence____

Id., 387 Pa.Superior Ct. at 52-53, 563 A.2d at 938-39 (citations omitted).

Here, the trial court imposed separate sentences for driving under the influence and homicide by vehicle while driving under the influence. Under Voshall, this sentence clearly cannot stand, and accordingly, we vacate the judgment of sentence imposed for driving under the influence.

For the foregoing reasons, we vacate the judgment of sentence for driving under the influence and affirm the judgment of sentence for homicide by vehicle while under the influence.

Judgment of sentence affirmed as modified.

      . 75 Pa.C.S.A. § 3731(a)(1) and (4).

      . 75 Pa.C.S.A. § 3735.

      . We note that the argument section of appellant’s brief is not divided into separate sections, and does not have distinctive headings. For this reason, appellant’s brief does not comply with the requirements of Pa.R.A.P. 2119(a). Although we disapprove of appellant’s disregard of the Rule and the resulting lack of clarity and precision in the presentation of his arguments, his failure has not substantially hampered our review, and thus we shall address each of his arguments.

      . We note that § 1547(a)(2) of the implied consent law extends to drivers of vehicles "involved in an accident in which the operator or passenger of a vehicle or a pedestrian required treatment at a medical facility or was killed,” even when there is no cause to believe that the driver was under the influence. Id. This subsection was recently held to be unconstitutional by this court. See Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990) (en banc); Commonwealth v. Kohl, 395 Pa.Super. 73, 576 A.2d 1049 (1990).

      . This evidence was important to the Commonwealth's case because it rebutted appellant’s claim that it was the decedent who had been driving the van.


author: WIEAND, Judge:

text:
    580 A.2d 384
    Samuel Harrison MYERS, Appellee, v. Marion Ward MYERS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed Sept. 27, 1990.

      Rober N. Leather, Philadelphia, for appellant.
    Malcolm W. Berkowitz, Philadelphia, for appellee (Submitted).
    Before WIEAND, McEWEN and HUDOCK, JJ.
   WIEAND, Judge:

This is an appeal from an order dismissing as moot a divorce action after one of the parties died prior to entry of a decree in divorce. Prior decisions and the terms of the Divorce Code of 1980 require that we affirm.

Marion Ward Myers and Samuel Harrison Myers were married on January 14, 1972. A complaint in divorce was filed by Samuel Harrison Myers on September 29, 1982. His wife filed a counterclaim seeking equitable distribution of marital property. A master’s hearing was held on April 25, 1985, when both parties stipulated that their marriage was irretrievably broken. Before a decree in divorce had been entered, however, Samuel Harrison Myers died. Thereafter, the master recommended that an order be entered dismissing the divorce action as moot. When such an order was entered, Marion Ward Myers appealed. Although conceding that the divorce action abated upon the death of her husband, she argues that the ancillary matter of equitable distribution did not abate but remains viable. We disagree.

The Divorce Code of 1980 provides for the distribution of marital property in conjunction with a decree granting a divorce. Bacchetta v. Bacchetta, 498 Pa. 227, 235, 445 A.2d 1194, 1198 (1982); Haviland v. Haviland, 333 Pa.Super. 162, 164, 481 A.2d 1355, 1357 (1984). “The determination of economic claims flows from the divorce decree, which is the sine qua non of any consideration of economic matters.” Pastuszek v. Pastuszek, 346 Pa.Super. 416, 424, 499 A.2d 1069, 1073 (1985) (emphasis in original). “Once the [divorce] decree has been entered, the right of the spouse to the distribution of marital property and other economic claims[,] where these matters have been properly put in issue before the death of the spouse, is vested.” Pastuszek v. Pastuszek, supra, 346 Pa.Superior Ct. at 426, 499 A.2d at 1074. See Divorce Code, supra, § 401(b). See also: Peterson v. Goldberg, 146 Misc.2d 474, 550 N.Y.S.2d 1005 (1990); In re Marriage of Davis, 95 Ill.2d 474, 70 Ill.Dec. 4, 448 N.E.2d 882 (1983); Husband C.E.W. v. Wife H.L.W., 410 A.2d 1024 (Fam.Ct.Del.1979); Olen v. Melia, 141 N.J.Super. 111, 357 A.2d 310 (1976) (where divorce decree is entered, and court retains jurisdiction over ancillary matters previously raised by parties, death of one party prior to determination of ancillary property matters does not abate action). However, “[u]nless and until a valid decree in divorce has been entered, there can be no equitable distribution of marital property.” Reese v. Reese, 351 Pa.Super. 521, 526, 506 A.2d 471, 474 (1986), quoting Drumheller v. Marcello, 351 Pa.Super. 139, 142, 505 A.2d 305, 306 (1986) and Laxton v. Laxton, 345 Pa.Super. 450, 455, 498 A.2d 909, 912 (1985). Therefore, because a divorce action is abated by the death of one of the parties prior to the entry of a decree, economic claims are also abated by the death of one of the parties prior to the entry of a decree. Haviland v. Haviland, supra. See also: Pastuszek v. Pastuszek, supra; Radcliffe v. Radcliffe, 137 Misc.2d 859, 522 N.Y.S.2d 823 (1987); Matter of Estate of Schwartz, 133 Misc.2d 1064, 1065-67, 509 N.Y.S.2d 729, 731 (1986) (as general rule, right to equitable distribution of marital property abates at death of one of parties to divorce proceeding); Castonguay v. Castonguay, 166 N.J.Super. 546, 400 A.2d 130 (1979) (death of husband during pendency of divorce proceeding abates divorce action and any and all claims for equitable distribution).

Appellant’s reliance on Drumheller v. Marcello, 516 Pa. 428, 532 A.2d 807 (1987) is misplaced. There, while a divorce action was pending, the husband shot and killed his wife and then took his own life. Relying on the Slayer’s Act, 20 Pa.C.S. § 8801 et seq., the Court held that the husband could not be permitted to benefit by his own, wrongful act and, therefore, could not avoid a decree of equitable distribution by killing his or her spouse. This was a policy decision which must be limited to its own facts. It does not alter the general rule that a divorce action, as well as ancillary property claims, are abated by the death of one of the parties before a decree in divorce has been entered.

If Marion Ward Myers and Samuel Harrison Myers were validly married, their marriage was terminated by Samuel’s death and not by decree of divorce. The widow’s property rights must be determined accordingly. She is not entitled to pursue equitable distribution in the abated divorce action.

Order affirmed.

      . The original master died following the hearing, and a second master was thereafter appointed by the court.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.

      . Drumheller v. Marcello was reversed on other grounds by the Supreme Court of Pennsylvania at 516 Pa. 428, 532 A.2d 807 (1987).

      . Our decision makes it unnecessary to determine whether the marriage was bigamous and, if so, whether it was void ab initio or merely voidable by an action in divorce. In any event, the husband’s death prior to the entry of a decree in divorce caused the present action to abate.


author: KELLY, Judge:

text:
    580 A.2d 386
    COMMONWEALTH of Pennsylvania v. Michael KEYS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 5, 1990.
    Filed Sept. 28, 1990.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before KELLY, POPOVICH and CERCONE, JJ.
   KELLY, Judge:

In this case, we hold that when counsel of record fails to formally and properly withdraw as counsel after sentence but before the expiration of the time for filing of notice of appeal, yet counsel nonetheless ceases active representation, then quashal of an appeal as the result of a defect in a pro se notice of appeal will be deemed the procedural default of counsel of record. Such was the case here; consequently, we grant appellant the right to appeal nunc pro tunc.

The relevant facts and procedural history may be summarized as follows. Appellant was charged, tried and convicted of murder, conspiracy and various weapons offenses. Appellant was actively represented by privately retained counsel through sentencing. After sentencing and before the time expired for filing notice of appeal, counsel informed appellant that he would no longer represent appellant. However, counsel neither sought nor received leave to court to withdraw as counsel of record.

Appellant attempted to perfect a direct appeal by filing a timely pro se notice of appeal. Unfortunately, the notice contained incorrect bill of information numbers. A panel of this Court exercised its discretion to quash appellant’s pro se direct appeal on the basis of that defect. See Commonwealth v. Keys, 313 Pa.Super. 410, 460 A.2d 253 (1983). But see Commonwealth v. Brown, 264 Pa.Super. 127, 127 n. 1, 399 A.2d 699, 699 n. 1 (1979) (this Court may treat such an error as merely typographical and decline to quash on the basis of such a defect).

Under Pa.R.Crim.P. 302(b):
Rule 302. Attorneys-Appearances and Withdrawals (b) Counsel for a defendant may not withdraw his appearance except by leave of court. Such leave shall be granted only upon motion made and served on the attorney for the Commonwealth and the client, unless the interests of justice otherwise require.

The Official Comment to the rule further explains, “Representation as used in this rule is intended to cover court appearances or the filing of formal applications.” Pa.R. C.P. 302, comment. Careful review of the record reveals that private counsel received no leave of court to withdraw as counsel of record after sentencing.

The importance of the express requirement of formal allowance of withdrawal is well illustrated here. By informally withdrawing, counsel left appellant to seek new private counsel, assignment of court appointed counsel, or to pursue direct appeal pro se during the critical 30 day period during which appellant was required to perfect or waive a direct appeal. Had counsel sought allowance of the court to formally withdraw as counsel, the trial court could have taken steps necessary to prevent the procedural default which occurred in this case by having counsel file notice of appeal before withdrawing, by assigning court appointed counsel, or by ensuring that appellant’s notice of appeal would be effectual.

We in no way suggest that counsel was required to continue as counsel in this matter in perpetuity. For a variety of reasons, from ethical reasons to financial concerns, counsel properly may seek to withdraw from representing a client. See e.g. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) (withdrawal on frivolity grounds); Commonwealth v. Roman, 379 Pa.Super. 331, 333-37, 549 A.2d 1320, 1320-23 (1988) (withdrawal based on non-payment of agreed fees). Regardless of the legitimacy of counsel's grounds for withdrawal as counsel, formal leave of court is nonetheless clearly and unequivocally required before counsel may be deemed to have withdrawn as counsel. Pa.R.Crim.P. 302(b). We find, therefore, that the procedural default must be deemed to be that of prior counsel, rather than that of appellant.

In Commonwealth v. Quier, 366 Pa.Super. 275, 279-82, 531 A.2d 8, 10-11 (1987), this Court held that when counsel’s procedural default denies a defendant the right to a direct appeal, the appropriate remedy is to grant allowance of appeal nunc pro tunc. Similar reasoning was employed to permit post-verdict motions nunc pro tunc in Commonwealth v. Ciotto, 382 Pa.Super. 458, 461, 555 A.2d 930, 931 (1989). See also Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982) (en banc).

We conclude that appellant, here, was denied his right to a direct appeal by prior counsel’s procedural default. Consequently, we reverse the order of the trial court, reinstate appellant’s right to a direct current appeal nunc pro tunc, and direct counsel to file a proper notice of appeal within 30 days of the filing of this opinion.

Order Reversed. Appellant’s right to a direct appeal Reinstated.

      . We note that this is not a case where an appellant waived right to counsel and elected to proceed pro se; rather, our abandoned appellant proceeded pro se of necessity. Compare Commonwealth v. Davis, 393 Pa.Super. 88, 101, 573 A.2d 1.101, 1105-08 & nn. 5-7 (1990) (appellant knowingly waived direct appeal after electing self-representation at trial).

      . Since appellant’s direct appellate rights are being reinstated nunc pro tunc, the remainder of the issues raised in this appeal are rendered moot. See Commonwealth v. Miranda, supra, 442 A.2d at 1140.