author: POPOVICH, Judge:

text:
    550 A.2d 241
    COMMONWEALTH of Pennsylvania, Appellant, v. Charlotte Joann WITMER, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1988.
    Filed Nov. 10, 1988.

      Amy L. Hallenbeck, Assistant District Attorney, Montoursville, for Com., appellant.
    William J. Miele, Williamsport, for appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Lycoming County finding the appellee (Charlotte Joann Witmer) incompetent to stand trial and dismissing the charge of retail theft filed against her. We reverse.

The record indicates that on January 2, 1986, the appellee was arrested and charged with unlawfully taking possession of retail merchandise from K-Mart totalling $61.29 with the intention of converting it to her own use without paying the owner for the value thereof in violation of 18 Pa.C.S. § 3929(a)(1).

A preliminary hearing was held and resulted in the appellee being bound over for court. Formal arraignment was waived by counsel. Next, of relevance here, is an indication in the record that a rule was made absolute granting the appellee’s Motion for Psychiatric Examination to determine her competency to stand trial and sanity.

In furtherance thereof, a hearing was conducted in which the sole witness to appear and testify was Doctor Kastas P. Kratsa, the Director of the Lycoming/ Clinton County Community Mental Health Center (“Health Center”). His credentials as an expert were not challenged by the Commonwealth.

Dr. Kratsa specializes in psychiatry and had known the appellee for over three years, beginning in 1984. She was an outpatient at the Health Center and was having her overall treatment supervised by the doctor.

His assessment of the patient/appellee, in regard to her competency to stand trial, was that she “demonstrated a fair degree of understanding” of the charge brought against her. However, he believed that she was not capable of assisting her counsel in preparing the case. The court below agreed, and, in an order dated February 5, 1988, found the appellee to be unable to aid in her defense, as well as insane at the time of the commission of the crime. Accordingly, under the M’Naghten Rule, the court held the appellee to be incompetent to stand trial. Further, because there was no substantial probability that the appellee would obtain the capacity to stand trial in the foreseeable future, she was discharged and the charges against her were dismissed. This Commonwealth appeal followed.

It is the contention of the Commonwealth that clear and convincing evidence was not presented to find the appellee incompetent to stand trial, nor was a dismissal of the charge warranted since there was no substantial probability that the appellee would not regain her competency in the foreseeable future to stand trial.

As to the initial assertion, it is well-settled in this jurisdiction that the defendant has the burden of proving mental ineompetency to stand trial by clear and convincing evidence, and the decision to determine the same rests with the trial judge whose determination will not be reversed unless it is unsupported by the record. See Commonwealth v. Knight, 276 Pa.Super. 348, 419 A.2d 492 (1980).

The test to be utilized in ascertaining the legal sufficiency of one’s mental capacity to stand trial is not the M’Naghten “right or wrong” test, but rather it is one’s ability to comprehend his position as one accused of a crime and to cooperate with his counsel in making a rational defense. Commonwealth v. Kennedy, 451 Pa. 483, 487-88, 305 A.2d 890, 892-93 (1973).

Thus, a defendant’s history of mental illness does not necessarily preclude his or her ability to stand trial because the test is not the nature of the mental illness, but the defendant’s comprehension of the charges filed and the ability to cooperate in preparing a defense. Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979).

Our scrutiny of the record, against the back-drop of the applicable law, refutes the appellee’s claim, by clear and convincing evidence, that she was not able to comprehend her position as one accused of a crime or that she was incapable to assist her counsel in presenting a rational defense. The basis for such a finding is garnered from the testimony of the appellee’s psychiatrist.

As remarked earlier in this opinion, Dr. Kratsa supervised the appellee’s outpatient treatment at the Health Center for some three years. He also conducted the “mental status examination” on the appellee in conjunction with other clinicians on two separate occasions. The one test denominated “a dull-normal range” of intelligence for the appellee and the second determined that she had a “cerebral vascular” accident, which in lay terms is a stroke. This resulted, according to the doctor, in “left-side cerebral damage, particularly involving the frontal areas which reflect perceptual-cognitive deficits”. And, this type of cerebral injury, in the opinion of the psychiatrist, leads one to have difficulty in understanding, perceiving and being able to integrate information in terms of performing an act or understanding a situation. This conclusion was corroborated by the doctor’s interview with the appellee and was consistent with the long-term “longitudinal” experience he had with the appellee.

Further, the doctor opined that the appellee had an inability to “cognitively understand”, a situation which would and had deteriorated over the years.

As for the “legal” ramifications related to her actions, the doctor spoke to the appellee and testified that she understood she did something wrong and that she was being represented by counsel. In fact, the doctor, in response to the court’s questioning as to whether he felt the appellee understood the nature of the proceedings against her, stated:

I think she can understand the nature of the proceedings ... on the basis of my conversation with her, she was able to demonstrate a fair degree of understanding, she was also well prepared, and also under(stood) that she (was) in some serious difficulty, she had been charged with a crime, she under(stood) that.

However, the doctor did not believe that the appellee had the capacity to participate in the preparation of her defense. Yet, the doctor gave an accounting whereby he and the appellee discussed what occurred on the day in question. Albeit the doctor described the exchange as an “extremely laborious task” for the appellee in which she was fearful and distraught, there is no disputing that the substance of the conversation enlightened the doctor as to the events surrounding the charges filed. As he told it, in relevant part:

... (the) incident ... involved a purchase of an article that (the appellee) was interested in purchasing, ... I think it had something to do with needlepoint or stitching, ... it was an article that had significance to her. She state(d) that when she ... chose the article, it wasn’t priced, it did not have a sticker on it. In an attempt to speed things along, ... she ... state(d) ... she wanted to be able to purchase the article without having a delay at the cash register. She either took a sticker off of another item and placed it, thinking that the two items were congruent, and in doing so, she recall(ed) blacking out, she knows that she was very anxious and as she approached the article she felt flushed, confused, and dazed, and in feeling that way, she wanted to expedite matters, and took matters into her own hands. She realize(d), she did explain to me, it wasn’t a proper thing to do, ... the next time she ha(d) any() recollection ... of what happened (s)he was in the clutches of a security guard and she was being accused of shoplifting. (Emphasis added)

To the inquiry by the attorney for the Commonwealth, “if the appellee could discuss the events of what occurred to the doctor, which the doctor labelled ‘meaningful’, why could she not do the same thing with her attorney”, the doctor candidly responded: “I haven’t had the opportunity to develop that information. I don’t know.” (Emphasis added)

At another stage of the hearing, the doctor characterized the appellee’s accounting of the circumstances surrounding the purported theft as not that of the commission of a crime. On the contrary, she was reconstructing the purchase of an article, and that she tried to put a sticker with a smaller price on an item that was of greater value. In particular, he stated:

She was describing everything that she could remember of a purchase, not a crime, and then there was the black out with the alarming realization that she was being accused of shoplifting which occurred at an interval beyond that point ... For that reason, I don’t think she is capable beyond that point of assisting counsel. (Emphasis added)

Thus, even the doctor who treated the appellee for over three years and conducted the competency evaluation paints a picture of an individual who remembers everything that transpired up to her alleged “black-out”.

We feel, as did the attorney for the Commonwealth, that the appellee can “communicate to her counsel that she had a black out”, and this “may be a defense for her”.

It would appear to this Court that the doctor was allowing his judgment to be clouded by his belief that, “the impact of any trial ... on (the appellee,) from the standpoint of her psychiactric (sic) status ... and her cerebral vascular problems that a stress of the trial (would cause,) would not be in her best interests”.

Even though recounting the events of the alleged theft may be “very traumatic” for the appellee, she had demonstrated, in the words of the doctor, a “fair degree of understanding” that she had been charged with a crime. Also, her recollection of the events, as paraphrased from the doctor’s accounting of his conversation with the appellee, was concise and left little doubt that she was “cognitive” of what transpired. The fact that it may be difficult and painful for her to relate what transpired to counsel and the court should not excuse her from having to defend against the charge made. This much can be gleaned from Commonwealth v. Hazur, 372 Pa.Super. 306, 539 A.2d 451 (1988).

In Hazur, this Court reversed a finding of incompetence and discharge of the crimes lodged against the defendant. In doing so, we wrote:

When questioned as to the appellee’s ability to assist with her defense, Dr. Fiume testified that appellee understood the charges lodged against her and was cooperating by assisting her attorney. Moreover, the trial court also questioned appellee as to her comprehension of the charges and the procedures that she would go through should her case proceed to trial. Appellee answered all of the judge’s questions affirmatively.
While we sympathize with the trauma that befalls appellee as a result of her arrest and charge with the crime of driving under the influence, her mental illness does not rise to the level contemplated by section 7403(a) of the Mental Health Procedures Act. The legal qualifications of incompetency when determining whether a defendant is able to stand trial are not synonymous with those in medicine. Dr. Fiume’s testimony was replete with his medical observations of appellee’s inability to function emotionally during a criminal proceeding but when questioned as to appellee’s comprehension of the charges and ability to cooperate in her defense — the legal test for incompetency — Dr. Fiume acknowledged that appellee was capable of functioning in this manner. Appellee did not demonstrate by clear and convincing evidence her inability to understand the nature and object of the proceedings against her nor an unwillingness or inability to assist with her defense. What appellee did present was a picture of an emotionally distressed but socially functioning defendant. Thus, we hold that the record does not support the lower court’s finding that appellee was not competent to stand trial.

372 Pa.Super. at 311, 539 A.2d at 453-43.

As in Hazur, we find that the “fear” and “distraught” feelings brought about with the knowledge of having to appear in court are not synonymous with “clear and convincing” evidence of incompetency to stand trial. The apprehension and inhibition one may experience in contemplation of trial are not reactions which the law has equated with incompetence. Id. These are emotional and psychological responses the average individual has in having to appear in a trial charged with the commission of an offense.

Therefore, because we find the appellee competent to answer in court the charge brought against her, we are in disagreement with the trial court’s dismissal of the retail theft offense. And, as in Hazur, we shall reinstate the retail theft charge and remand for a trial.

Order reversed, retail theft charge is reinstated and the case is remanded for trial. Jurisdiction is relinquished.

      . The items allegedly taken consisted of: three mugs, one bottle of skin care lotion, seven cassette tapes (audio), one pair of leggins and a child’s two-piece clothing outfit.

      . See Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955).

      . As to the trial court’s conclusion that the appellee was insane at the time the crime was committed, we note, first, that the hearing below elicited testimony limited to the ascertainment of the appellee’s competency to stand trial, and not her sanity at the time of the alleged offense. Different standards are applicable to both. See Hazur,
        supra. Secondly, our review of the record does not evidence support for the conclusion that the appellee was insane, other than the bald assertion by the psychiatrist, unsubstantiated by any medical evidence, that such a finding was properly drawn from the facts presented at the hearing held below.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: POPOVICH, Judge,

license: Public Domain

text:
    550 A.2d 537
    Thomas A. MANZITTI and Patricia Manzitti, Appellants, v. Dr. Fred R. AMSLER, Jr. and Williamsport Orthopedic Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1988.
    Filed Oct. 3, 1988.
    Reargument Denied Nov. 21, 1988.

      John C. Youngman, Jr., Williamsport, for appellants.
    Joann Drust, Wilkes-Barre, for appellees.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

Appellants, Thomas A. and Patricia Manzitti, appeal from the trial court’s order granting appellees’ petition to enforce a settlement agreement for personal injuries and loss of consortium. Appellants present two issues for our review: (1) whether settlement of an injured spouse’s claim for personal injuries disposes of the non-injured spouse’s loss of consortium claim, and (2) whether a settlement agreement is enforceable where an attorney wrongfully settles a case without first obtaining the consent of his/her client. For the reasons stated below, we affirm the trial court’s order enforcing the settlement agreement.

Appellant Thomas Manzitti filed this medical malpractice action against appellees for injuries arising out of an operation performed by appellee, Dr. Fred Amsler, M.D., on August 19, 1982. Mr. Manzitti’s injuries included, inter alia, severed spinal nerves, permanent loss of bowel and bladder control, and sexual impotency. Appellant Patricia Manzitti, wife of Thomas', jointly filed a claim for loss of her husband’s consortium.

Originally, appellants were represented by John Kocsis, Esquire. In early February 1986, appellees’ insurance carrier, through its general agent, negotiated a settlement directly with Attorney Kocsis and offered $150,000.00 to settle the claims of both appellants. Attorney Kocsis indicated to the insurance agent that he had authority to settle the case and, on February 6, 1986, accepted the settlement offer on behalf of both appellants. Appellees tendered the settlement draft to appellants on several occasions, and appellants, expressing their intention to abrogate the oral settlement agreement, refused to accept the settlement and sign the releases.

On April 18, 1986, appellants, through new counsel, filed a motion for continuance, withdrawal of counsel, and removal of the case from the trial list. In the motion, signed and verified by appellants, the following statements were made:

10. Patricia Manzitti was never consulted by Attorney Kocsis with respect to giving authority to settle her case and never authorized settlement of her case at any time or for any price.
11. The offer of the defense for One Hundred Fifty Thousand and 00/100 ($150,000.00) Dollars was not an offer to settle the case of Thomas Manzitti alone, but was an offer to settle both the case of Thomas Manzitti and Patricia Manzitti for a total payment of One Hundred Fifty Thousand and 00/100 ($150,000.00) Dollars, and no division between the two cases was made in said offer.
12. Thomas Manzitti authorized the settlement of his case for One Hundred Fifty Thousand and 00/100 ($150,-000.00) Dollars on the belief as represented by Attorney Kocsis that the most he could obtain in a jury verdict was Two Hundred Thousand and 00/100 ($200,000.00) Dollars.

The trial court subsequently granted the motion and removed the case from the trial list.

Appellees thereafter responded with a petition to enforce settlement which was argued before the trial court on March 9, 1987. At that hearing, the trial court ruled that paragraphs 11 and 12 of appellants’ April 18, 1986 motion were judicial admissions by appellants of Thomas Manzitti’s express authorization to settle his personal injury claim. The trial court, however, refused to hear evidence on whether Attorney Kocsis actually acquired express authority for Patricia Manzitti to settle the case prior to accepting appellees’ offer. The trial court found that the settlement of Mr. Manzitti’s claim extinguished the right of Mrs. Manzitti to proceed any further with her cause of action because her loss of consortium claim was derivative of her husband’s personal injury claim. In addition, relying on Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983), the trial court concluded that the settlement agreement was enforceable regardless of whether Attorney Kocsis had appellants’ express authority to settle their claims. Thus, the trial court ordered appellants to comply with the settlement agreement and this timely appeal followed.

Appellants’ first contention is that the trial court erred by finding that a non-injured spouse’s loss of consortium claim is barred by an injured spouse’s settlement of his/her personal injury claim. For the purpose of discussing this issue, we find that the trial court properly determined that Mr. Manzitti authorized settlement of his personal injury claim. In addition, since the trial court refused to hear evidence on Mrs. Manzitti’s alleged authorization of her claim, we will assume, for review purposes, that she did not authorize settlement of her loss of consortium claim.

Initially, we note that it is well-settled in Pennsylvania that an action for loss of consortium is derivative of the injured spouse’s claim. See, e.g., Winner v. Oakland Township, 158 Pa. 405, 27 A. 1110 (1893); Linebaugh v. Lehr, 351 Pa.Super. 135, 505 A.2d 303 (1986); Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452, 495 A.2d 552 (1985); Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974); Little v. Jarvis, 219 Pa.Super. 156, 280 A.2d 617 (1971); Elser v. Union Paving Co., 167 Pa.Super. 62, 74 A.2d 529 (1950). The rationale for considering the claim derivative has been explained as follows:

The consortium claim and the personal injury claim are closely interconnected; together, they represent the total, compensable damages — direct and indirect — suffered as a result of the principal plaintiffs injury. Viewed in this light, it makes little sense to hold that an injured party’s negligence would bar or limit his recovery for direct injury, but would not affect his spouse’s recovery for indirect injury.
The consortium plaintiff ... has suffered no direct injury____ [His/Her] right to recover is derived, both in a literal and legal sense, from the injury suffered by [his/her] spouse.

Scattaregia, 343 Pa.Super. at 455-456, 495 A.2d at 553-554 (quoting Maidman v. Stagg, 82 A.D.2d 299, 304, 441 N.Y. S.2d 711, 715 (1981)).

The question of whether the non-injured spouse’s claim for loss of consortium is barred by the injured spouse’s settlement and release of his/her personal injury claim has yet to be directly addressed by a Pennsylvania appellate court. Several Pennsylvania decisions, however, support our holding today that a loss of consortium claim is a separate and distinct cause of action from the injured spouse’s claim from which it was derived; and, consequently, that a claim for loss of consortium is not barred by the settlement and release of the injured spouse’s personal injury claim. See Nunamaker v. New Alexandria Bus Co., 371 Pa. 28, 88 A.2d 697 (1952); Walker v. Philadelphia, 195 Pa. 168, 45 A. 657 (1900); Buttermore v. Aliquippa Hospital, 368 Pa.Super. 49, 533 A.2d 481 (1987); Vickodil v. Pennsylvania Ins. Guar. Ass’n, 356 Pa.Super. 325, 514 A.2d 635 (1986), allocatur denied, 514 Pa. 639, 523 A.2d 346 (1987); Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974); Kowal v. Com., Department of Transp., 100 Pa.Cmwlth. 593, 515 A.2d 116, allocatur denied, 514 Pa. 649, 524 A.2d 496 (1987).

As early as 1900, our Supreme Court intimated that loss of consortium is a separate and distinct cause of action. In Walker v. Philadelphia, 195 Pa. 168, 45 A. 657 (1900), our Supreme Court, commenting on a husband’s claim for loss of consortium, stated: “His action now is on his own common-law right to compensation for the loss of his wife’s services. No settlement or disposition of her claim could affect his without his consent.” Walker, 195 Pa. at 174, 45 A. at 657.

In Vickodil v. Pennsylvania Ins. Guar. Ass’n, 356 Pa. Super. 325, 514 A.2d 635 (1986), this Court was presented with a situation where a husband and wife attempted to collect insurance proceeds for personal injury and loss of consortium damages through the Pennsylvania Insurance Guaranty Association Act, 40 Pa.S.A. § 1701.101, et seq. The insurance policy, which was issued by an insolvent insurer, expressly provided that compensation for loss of consortium damages was included in the personal injury claimant’s recovery. This Court agreed with the Insurance Guaranty Association that it was only obligated to pay the individual claim of husband. As a part of the analysis, this Court stated:

[W]e must attempt to reconcile the opposing interpretations of the nature of a loss of consortium claim, one of which is proper for one purpose, namely the right of recovery of a spouse as “separate,” and the other which is proper when a limitation of liability unites the two separate claims under the “persons injured” language [of an insurance policy], as in this case.

Vickodil, 356 Pa.Super. at 331, 514 A.2d at 638. While our purpose in Vickodil, supra, was to enforce the contractual provisions of the insurance policy in accordance with the statutory provisions of the Pennsylvania Insurance Guaranty Association' Act, this Court acknowledged its willingness to allow a “separate” and distinct loss of consortium claim.

Recently, this Court, in Buttermore v. Aliquippa Hospital, 368 Pa.Super. 49, 533 A.2d 481 (1987), again recognized the possibility of an independent loss of consortium claim which is not eliminated by the settlement of the personal injury claim. Ruling on an issue similar to that currently before us, this Court stated:

Finally, we must briefly address the Appellants’ contention that the lower court erred in dismissing the claims of Mrs. Buttermore when it granted summary judgment in favor of the Appellees. We agree with this contention. Mrs. Buttermore was never a party to the release which her husband signed, and we find no basis in the present record to foreclose her right to proceed on her loss of consortium claim.

Buttermore, 368 Pa.Super. at 60, 533 A.2d at 487.

Further, our Supreme Court, in Nunamaker v. New Alexandria Bus Co., 371 Pa. 28, 88 A.2d 697 (1952), stated:

Injury to a wife, not resulting in death, confers upon her and her husband separate and distinct rights of action for which (when both are sued for) separate verdicts must be returned and separate judgments entered. So independent of each other are the substantive rights of a husband and wife in the indicated circumstances that, at common law, the two causes could be sued for only in separate actions: see Fries v. Wiser, 62 Pa.Super. 218, 220 [1915]. Their joinder in one action was not permitted. A statute was necessary to effect our procedural change to that end. See Act of May 8, 1895, P.L. ’54 12 P.S. § 1621 et seq.

Id. 371 Pa. at 32, 88 A.2d at 699 (emphasis added). Similarly, in Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974), this Court unequivocally stated: “The infliction of a non-fatal injury upon one spouse now confers separate and distinct rights of actions upon both spouses.” Id. 224 Pa.Super. at 121, 302 A.2d at 858 (emphasis added). Thus, Nunamaker and Hopkins expressly support our current position that a loss of consortium claim is a separate and distinct cause of action from the personal injury claim from which it was derived.

In addition, our legislature has also indicated that loss of consortium is compensable independently of the injured spouse’s settlement and release of the personal injury claim. Under 42 Pa.C.S.A. § 8528(c), damages are recoverable against the Commonwealth for, inter alia, loss of earnings, pain and suffering, medical expenses and loss of consortium. In Kowal v. Com., Dept. of Transp., 100 Pa.Cmwlth. 593, 515 A.2d 116 (1986), the Commonwealth Court interpreted Section 8528(c) to authorize separate recoveries from the Commonwealth by the injured spouse and loss of consortium claimant. The facts of Kowal are similar to the case at bar in that the injured husband settled his personal injury claim against the Commonwealth but his wife did not expressly settle her loss of consortium claim. The Commonwealth Court stated:

The Kowal’s concede, as they must, that a loss of consortium claim is derivative since it arises from the impact of one spouse’s physical injuries upon the other spouse’s marital privileges and amenities. This does not, however, alter the uninjured spouse’s status as a plaintiff in her own right since her damages, although derivative, are personal to her.

Id. at 597, 515 A.2d at 119.

Furthermore, we are persuaded by the opinions of our sister states which support the position that a claim for loss of consortium accrues to the non-injured spouse alone and is not barred by the settlement and release of the injured spouse’s personal injury claim. See, e.g., Crouch v. West, 29 Colo.App. 72, 477 P.2d 805 (1970); Deese v. Parks, 157 Ga.App. 116, 276 S.E.2d 269 (1981); Brown v. Metzger, 118 Ill.App.3d 855, 74 Ill.Dec. 405, 455 N.E.2d 834 (1983), aff'd, 104 Ill.2d 30, 83 Ill.Dec. 344, 470 N.E.2d 302 (1984); Rosander v. Copco Steel and Engineering Co., 429 N.E.2d 990 (Ind.App.1982); Oldani v. Lieberman, 144 Mich.App. 642, 375 N.W.2d 778 (1985); Huffer v. Kozitza, 361 N.W.2d 451 (Minn.App.1985), aff'd, 375 N.W.2d 480 (Minn.1985); Neely v. Kossove, 198 N.J.Super. 503, 487 A.2d 788 (1984); Whittlesey v. Miller, 572 S.W.2d 665 (Texas 1978). See generally Gillespie v. Papale, 541 F.Supp. 1042 (D.C.Mass.1982); Fleischman v. Harwood, 10 F.R.D. 139 (D.C.N.Y.1950); Annot., 29 A.L.R. 4th 1200 (1984).

Two of the above-cited opinions are very similar to the case at bar. In Rosander v. Copco Steel and Engineering Company, 429 N.E.2d 990 (Ind.App.1982), appellant’s husband settled his personal injury claim against Copco Steel. Subsequently, appellant filed suit against Copco Steel for her loss of consortium resulting from her husband’s injuries. The trial court, in granting Copco Steel’s motion for summary judgment, reasoned:

“Inasmuch as the right of the wife is derivative of her husband’s right, it appears to this Court that a settlement by the husband of his claim is likewise a settlement of his spouse’s derivative suit and that the failure to settle both causes at the same time should bar a spouse from subsequently maintaining an independent action for loss of consortium.”

Id. at 991 (quoting trial court opinion). The analysis of the trial court in Rosander is almost identical to that used by the trial court in the case sub judice. The Indiana Court of Appeals reversed the trial court and held:

It cannot be denied that a claim for loss of consortium is derivative in that without an injury to one spouse, the other spouse would have no action. As such, it is subject to some of the same defenses as the action from which it is derived. Arthur v. Arthur (1973), 156 Ind.App. 405, 296 N.E.2d 912. Nevertheless, placing actions in a derivative posture doe not give one party the right to waive the rights of another. Shirley was not a party to the settlement and release negotiated by Darwin, this she is not bound by it and is free to pursue her separate cause of action. See, Gimbel, Administrator v. Smidth (1856), 7 Ind. 627.

Id. at 991. We adopt the analysis used by the Indiana Court of Appeals in Rosander, and hold that, absent authorization by the non-injured spouse to settle the consortium claim, settlement of the injured spouse’s claim does not bar subsequent prosecution of the loss of consortium claim by the non-injured spouse.

Under facts strikingly similar to the case before us, the Superior Court of New Jersey ruled that a loss of consortium claim is not barred by the settlement of the injured spouse’s claim. Neely v. Kossove, 198 N.J.Super. 503, 487 A.2d 788 (1984). The Neely court addressed the “derivative” issue as follows:

Defendants further contend that plaintiff’s claim is derivative and entirely dependent upon her husband’s cause of action. Without it her claim may not be prosecuted. To conclude that because it is derivative it may not be instituted unless her husband’s claim is still actionable would ignore the fact that her claim is a separate and distinct cause of action. Derivative means “come from another — owing its existence to something foregoing.” Black’s Law Dictionary 530 (rev. 4th ed. 1957); thus it is the husband’s injury and not his cause of action that accounts for the creation of the wife’s right to litigate. To succeed in her action she would still have to establish through credible evidence the liability of the tortfeasor as well as her damage loss. Her right to do so cannot be affected by the injured spouse’s release of his claim since her right to a recovery is separate and distinct.

Id. 487 A.2d at 789. Following this reasoning, we hold that the non-injured spouse’s claim for loss of consortium is vested in the non-injured spouse personally and may only be released by the spouse who owns it. The loss of consortium claimant has separate and independent status as a plaintiff in his/her own right. Accordingly, a derivative claim for loss of consortium is not barred by the settlement and release of the injured spouse’s claim. As stated in Neely, “[w]ere it otherwise, a husband [or wife] who refuses to litigate for whatever reason could effectively eliminate a claim that is not possessed by him [or her].” Id. 487 A.2d at 790.

In the past, courts have expressed concern that allowing a derivative but independent claim for loss of consortium to continue after settlement of the injured spouse’s action will create the problems of double recovery and inconsistent verdicts. These concerns, however, are unfounded. The prospect that a knowledgeable insurer, securing a bargain for release, would permit double recovery through payment of a settlement greater than the value of the claims actually released is untenable. Additionally, to prevent double recovery, the loss of consortium claimant is not entitled to recover for loss of support. See Troue v. Maker, 253 Ind. 284, 252 N.E.2d 800 (1969). Inconsistent verdicts are not a problem in the instant situation as a release is not dispositive of the merits of an action. Consequently, under the instant facts, concerns about double recovery and inconsistent verdicts are not worth of consideration. After careful analysis, we find that the non-injured spouse’s loss of consortium claim, though derivative, is separate and distinct from the injured spouse’s personal injury claim. Therefore, the derivative posture of the consortium claim does not give the injured party the power to waive the rights vested in the non-injured spouse. Settlement of the consortium claim must be expressly authorized by the loss of consortium claimant.

Having ruled that a lawsuit for damages based on a loss of consortium claim may continue despite the settlement of the underlying personal injury claim, we will now address appellants’ second contention that the trial court erred by enforcing a settlement agreement where the attorney wrongfully settled the case without first obtaining the consent of his/her client. We find that the trial court correctly relied on our Supreme Court’s decision in Roth-man v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983), which is controlling in such a situation.

In Rothman, the Court was confronted with the question of who must bear the burden of loss between two innocent parties where the attorney for one of the parties has acted beyond the scope of his/her authority and has misappropriated the settlement proceeds. The facts of Rothman are as follows: Philip Rothman was involved in an automobile accident and, as a result, sustained personal injuries. Roth-man retained Irving Madniek, Esquire, to institute suit to recover damages. A complaint was subsequently filed against Gloria and Ronald Fillette. The Fillettes* insurer, Liberty Mutual Insurance Company, agreed to settle the case for $7,000.00. Attorney Madniek accepted the offer without Rothman’s authorization, returned a release to Liberty Mutual purportedly signed by Rothman, and absconded with the money. On order of Attorney Madniek, the case was marked settled, discontinued, and ended. Unaware of these events and believing that his case would eventually go to trial, Rothman maintained contact with his attorney. Five years later, Rothman discovered that his attorney had “settled” the case and misappropriated the the settlement proceeds. Rothman hired new counsel and petitioned the trial court to remove the order marking the case settled, discontinued, and ended. The trial court granted the petition and reinstated Rothman’s action against the Fillettes. That ruling was affirmed on appeal by this Court. See Rothman v. Fillette, 305 Pa.Super. 28, 451 A.2d 225 (1982).

On appeal to our Supreme Court, Justice Nix (now Chief Justice), writing for the majority, reversed this Court and explained:

The law in this jurisdiction is quite clear that an attorney must have express authority to settle a cause of action of the client. International Organization Masters, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, Inc., 456 Pa. 436, 318 A.2d 918 (1974); Archbishop v. Karlak, 450 Pa. 535, 299 A.2d 294 (1973); McLaughlin v. Monaghan, 290 Pa. 74, 138 A. 79 (1927); Lipschutz v. Lipschutz, 124 Pa.Super. 380, 188 A. 556 (1936).
The issue that is presented here relates to where the allocation of loss should fall as a result of the agent’s unfaithful performance. It must be emphasized that in our judgment both of the parties of this action were innocent and free of any fault. Mr. Rothman in selecting his counsel, a person at that time certified to practice law by this Court had no reason to suspect misconduct. Likewise, the Fillettes and their insurer bargained in good faith with appellee and Mr. Madnick under circumstances that would not reasonably give rise to any inference that counsel was breaching a trust to the client. The Fillettes and their insurer had every reason to believe under the facts presented that the purported settlement had been expressly approved by Mr. Rothman.
Under these circumstances, we believe applicable her the long recognized principle that where one of two innocent persons must suffer because of the fraud of a third, the one who has accredited him must bear the loss. Keller v. N.J. Fidelity and Plate Glass Insurance Co., 306 Pa. 124, 159 A. 40 (1932); Mundorff v. Wickersham, 63 Pa. 87 (1869). As was stated in Rykaczewski v. Kerry Homes, Inc., 192 Pa.Super. 461, 465, 161 A.2d 924, 926 (1960):
Where one of two innocent persons must suffer, the loss should be borne by him who put the wrongdoer in a position of trust and confidence and thus enabled him to perpetrate the wrong.
Our case law has expressed that a principal acting through an agent in dealing with an innocent third party must bear the consequences of the agent’s fraud. Keller v. N.J. Fidelity and Glass Incurance [sic] Co., supra.; Williams v. Cook, supra; Mundorff v. Wickersham, supra; Rykaczewski v. Kerry Homes, Inc., supra. In such instances the lack of authority of the agent has been rejected as a basis for shifting the principal’s losses onto the innocent third party. See Keller v. N.J. Fidelity and Glass Insurance Co., supra.; Williams v. Cook, supra; Mundorff v. Wickersham, supra; Rykaczewski v. Kerry Homes, Inc., supra; Himes v. Herr, 3 Pa.Super. 124 (1896). The fact that the agent has wronged his principal through the agent’s unlawful act does not provide a predicate for insulating the principal against the harm caused by the agent at the expenses of the innocent third party who had no responsibility for the conduct of the agent. See Keller v. N.J. Fidelity and Glass Insurance Co., supra.; Williams v. Cook, 289 Pa. 207, 137 A. 232 (1927); Mundorff v. Wickersham, supra; Rykaczewski v. Kerry Homes, Inc., supra. We believe that this view is consistent with fundamentally sound principals of agency and equity and that there were no other additional factors here present to justify ignoring its applicability.
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The next step in the analysis must address the question as to whether the unauthorized actions of the agent bars Rothman’s further pursuit of the claim.4 Logical consistency would not be offended by a finding that although the Fillettes were entitled to a credit for the payment made, the unauthorized settlement should be set aside and Rothman provided an opportunity to establish that the damages exceeded the amount received. However, such a view must be rejected as being inescapably disruptive of established settlement policies.
There is a strong judicial policy in favor of parties voluntarily settling lawsuits. Pennwalt Corporation v. Plough, Inc., 676 F.2d 77 (3d Cir.1982); Castillo v. Roger Construction Co., 560 F.2d 1146 (3d Cir.1977); Autera v. Robinson, 136 U.S.App.D.C. 216, 419 F.2d 1197 (1969).
# sjc * # sic #
We cannot design our rules on the assumption that the members of our Bar will participate in criminal behavior. We must rely upon the fidelity of our Bar and in the main, experience has demonstrated the justification for that reliance. Where the unusual and unfortunate case of breach of trust occurs, such as here, we must rely upon the other procedures established in our law to provide punishment and to serve as a deterrent against repetition of such conduct.
4 The harshness of this result is to some extent ameliorated by this Court’s establishment of a client security fund which was designed to assist clients of defalcating attorneys. Pennsylvania Client Security Fund, Rules of Disciplinary Enforcement, Rule 502 et seq.

Id. 503 Pa. at 264-265, 469 A.2d at 545-547 (footnote omitted).

Instantly, appellants concede that Mr. Manzitti expressly authorized Attorney Kocsis to settle his personal injury claim. Appellants argue, however, that Mrs. Manzitti did not expressly authorize Attorney Kocsis to settle her separate and distinct loss of consortium claim. Even assuming that Mrs. Manzitti did not expressly authorize Attorney Kocsis to settle her claim, the settlement agreement nonetheless was still enforceable.

As in Rothman, the parties to this action were innocent and free of fault. Appellees and their insurer had a reasonable belief that the oral settlement agreement had been expressly authorized by both Mr. and Mrs. Manzitti. By failing to obtain Mrs. Manzitti’s express consent to settle her claim, Attorney Kocsis acted beyond the scope of his authority and wrongfully settled her claim. Our Supreme Court explained in Rothman that “ ‘[w]here one of two innocent persons must suffer, the loss should be borne by him who put the wrongdoer in a position of trust and confidence and thus enabled him to perpetrate the wrong.’ ” Id., 503 Pa. at 265, 469 A.2d at 545 (quoting Rykaczewski v. Kerry Homes, Inc., 192 Pa.Super. 461, 465, 161 A.2d 924, 926 (I960)). Accordingly, we find that the trial court did not err by enforcing the settlement agreement. We must be mindful that in the rare and unfortunate case where such a breach occurs, as in the instant case, the client “must rely upon the other procedures established in our law to provide punishment and to serve as a deterrent against repetition of such conduct.” Id. 503 Pa. at 268, 469 A.2d at 547.

Accordingly, the order of the trial court is affirmed.

POPOVICH, J., files concurring and dissenting Opinion.

POPOVICH, Judge,

concurring and dissenting:

While I wholeheartedly agree with the majority’s learned holding that a lawsuit for damages based on a loss of consortium claim may continue despite the settlement of the underlying personal injury claim, I respectfully dissent from the majority’s application of Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983) to enforce the settlement agreement.

In Rothman, supra, our Supreme Court unequivocally stated:

At the outset, it must be understood that under the facts of this case there is no question of an implied or an apparent agency. The law in this jurisdiction is quite clear that an attorney must have express authority to settle a cause of action of the client, (emphasis added) International Organization Masters, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, Inc., 456 Pa. 436, 318 A.2d 918 (1974); Archbishop v. Karlak, 450 Pa. 535, 299 A.2d 294 (1973); McLaughlin v. Monaghan, 290 Pa. 74, 138 A. 79 (1927); Lipschutz v. Lipschutz, 124 Pa.Super. 380, 188 A. 556 (1936). Rothman, 503 Pa. at 264, 469 A.2d at 545.

However, the Court continued, stating:

Under these circumstances, we believe applicable here the long recognized principle that where one of two innocent persons must suffer because of the fraud of a third, the one who has accredited him must bear the loss. Keller v. N.J. Fidelity and Plate Glass Insurance Co., 306 Pa. 124, 159 A. 40 (1932); Mundorff v. Wickersham, 63 Pa. 876, (1869). As we stated in Rykaczewski v. Kerry Homes, Inc., 192 Pa.Super. 461, 465, 161 A.2d 924, 926 (1960):
Where one of two innocent persons must suffer, the loss should be borne by him who put the wrongdoer in a position of trust and confidence and thus enabled him to perpetrate the wrong.
Our case law has expressed that a principal acting through an agent in dealing with an innocent third party must bear the consequences of the agent’s fraud. Keller v. N.J. Fidelity and Glass Insurance Co., supra; Williams v. Cook, 289 Pa. 207, 137 A. 232 (1927); Mundorff v. Wickersham, supra; Rykaczewski v. Kerry Homes, Inc., supra. In such instances the lack of authority of the agent has been rejected as a basis for shifting the principal’s losses onto the innocent third party. See Keller v. N.J. Fidelity Glass Insurance Co., supra; Williams v. Cook, supra; Mundorff v. Wickersham, supra; Rykaczewski v. Kerry Homes, Inc., supra; Himes v. Herr, 3 Pa.Super. 124 (1896). The fact that the agent has wronged his principal through the agent’s unlawful act does not provide a predicate for insulating the principal against the harm caused by the agent at the expense of the innocent third party who had no responsibility for the conduct of the agent. Keller v. N.J. Fidelity and Glass Insurance Co., supra; Williams v. Cook, supra; Mundorff v. Wickersham, supra, Rykaczewski v. Kerry Homes, Inc., supra. We believe that this view is consistent with fundamentally sound principals of agency and equity and that there were no other additional factors here present to justify ignoring its applicability. Rothman, 503 Pa. at 265, 469 A.2d at 545-546.

Applying this rationale, the Supreme Court reversed our affirmance of the lower court’s decision. Clearly, the two passages from the Supreme Court’s decision quoted above are inconsistent, and, consequently, the legal effect of the Rothman opinion is vitiated by that inconsistency.

I am bemused by the Supreme Court’s application of agency by estoppel in the context of an attorney-client relationship. Normally, “[ajuthority by estoppel occurs when a principal by his culpable negligence, permits an agent to exercise powers not granted to him, even though the principal did not know or have notice of the agent’s conduct.” Apex Financial Corp. v. Decker, 245 Pa.Super. 439, 369 A.2d 483, 486 (1976); Reifsnyder v. Dougherty, 301 Pa. 328, 152 A. 98 (1930). Obviously, the logical consequence of applying that principal of “agency law” to the Rothman facts is to overrule prior Pennsylvania case law and to establish, as Pennsylvania law, the rule that settlement of a client’s cause of action by his attorney is enforceable against the client where the attorney had either express, apparent or implied authority to settle. I, however, do not believe our Supreme Court intended such a result, since prior Pennsylvania case law regarding the need for express authority to create an enforceable settlement was not expressly overruled, and, in fact, precisely that case law was cited in support of the court’s decision.

Though I am unable to explain the conundrum that the Rothman, supra, creates, I assume that our Supreme Court did not intend to depart from the long established Pennsylvania tradition which mandates invalidation of the settlement or release of a claim by an attorney not expressly authorized by his client so to do. And indeed, the Supreme Court, in citing Archbishop v. Karlak, supra, and McLaughlin v. Monaghan, supra, inter alia, reinforced that very principle. Inexplicably, however, the Supreme Court proceeded to depart from its own statement of the law, applying “fundamentally sound principles of agency and equity,” to enforce a settlement where there was admittedly no express authority to settle. Clearly, Pennsylvania case law commands that “principle of agency and equity” do not apply when adjudicating an attorney’s unauthorized settlement of a client’s claim. Therefore, I would follow the mandate of prior case law as stated in McLaughlin v. Monaghan, supra:

An attorney as such cannot release a client’s cause of action ..., or surrender his substantial rights in whole or in part ..., or compromise or settle his client’s litigation, without special authority so to do. McLaughlin, 138 A. at 80.

See also Archbishop, supra, 299 A.2d 294 (1973); International Organization Masters, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, Inc., supra, 456 Pa. 436, 318 A.2d 918 (1974); Tucker v. Tucker, 370 Pa. 8, 87 A.2d 650 (1952); Starling v. West Erie Avenue Building & Loan Association, 333 Pa. 124, 3 A.2d 387 (1939); Lipschutz v. Lipschutz, supra, 188 A. 556 (1936); Garnet v. D’Alonzo, 55 Pa.Cmwlth.Ct. 263, 422 A.2d 1241 (1980).

Moreover, the Court of Appeals for the Third Circuit, in Garabedian v. Allstates Engineering Co., 811 F.2d 802 (3rd Cir.1987), recently held:

In general, an attorney has no authority to settle his client’s case solely by virtue of his general power to handle the case. Holker v. Parker, 11 U.S. (7 Cranch) 436, 452, 3 L.Ed. 396 (1813). Instead, an attorney can only enter a binding compromise if the client has authorized him to do so. While there is a presumption that a settlement entered into by an attorney has been authorized by the client, rebuttal of the presumption renders any purported settlement ineffective. See generally, Annotation, Authority of Attorney to Compromise Action, 30 ALR2d 944 (1953). Garabedian, supra, 811 F.2d at 803.

See also Smith v. Delaware Valley Auto Spring Co., 642 F.Supp. 1112, 1115 (E.D.Pa.1986) (cited Rothman, supra, 469 A.2d 543 for the sole proposition that an attorney must have express authority to settle).

Instantly, the lower court concluded that paragraphs 11 and 12 of the appellants’ brief (quoted in the majority opinion) constituted judicial admissions of both appellants’ express authorization of settlement. However, even a cursory review of those “admissions” clearly reveals that neither statement was an admission by Mrs. Manzitti of her express authorization to settle. As the above discussion indicates, I would apply to the case sub judice only that portion of Rothman, supra, which states: “The law in this jurisdiction is quite clear that an attorney must have express authority to settle a cause of action of the client, (citations omitted).” Rothman, 503 Pa. at 264, 469 A.2d at 545. Therefore, I would find that, if Mrs. Manzitti did not expressly authorize Attorney Kocsis to settle her claim, then the settlement agreement is unenforceable as the appellees’ offer was to settle both appellants’ claims not merely that of Mr. Manzitti. Instantly, Mrs. Manzitti contends that she did not authorize her attorney to settle her loss of consortium claim. Consequently, I would remand the case for an evidentiary hearing on the question of whether Patricia Manzitti gave Attorney Kocsis her express authority to settle her claim.

      . Appellees would pay $100,000.00 while the Medical Professional Catastrophe Loss Fund would contribute the additional $50,000.00.

      . The Act of 1895 has been superseded by Pa.R.Civ.P. Rules 2228 and 2232. Cases interpreting the Act and prior versions of Rules 2228 and 2232, however, retain their validity because the new versions of those Rules merely restate the provisions of the Act while recognizing a woman’s right to pursue a loss of consortium cause of action. Presently, the Pennsylvania Rules of Civil Procedure mandate joinder of related plaintiffs.

        It is undisputable that Pennsylvania law, in order to promote judicial economy and avoid inconsistent verdicts, requires that the personal injury claim and the loss of consortium claim must be brought in a single action. We emphasize that our disposition of the case sub judice does not alter the aforementioned joinder rules. As this Court stated in Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973): "The failure of one spouse to join the other spouse’s action will forever bar the claim of the non-joining spouse. Donoghue v. Consolidated Traction Company, 201 Pa. 181, 50 A. 952 (1902); Todd v. Bercini, 371 Pa. 605, 609, 92 A.2d 538 (1952).... Thus, the rights of both spouses must be redressed in one suit.” Id. 224 Pa.Super. at 121, 302 A.2d at 858.

      . 42 Pa.C.S.A. § 8528, Limitations of Damages, in pertinent part, reads:
      (c) Types of damages recoverable. — Damages shall be recoverable only for:
      (1) Past or future loss of earnings and earning capacity.
      (2) Pain and suffering.
      (3) Medical and dental expenses including----
      (4) Loss of consortium.
      (5) Property losses....

      . In their motion for continuance, withdrawal of counsel, and removal from the trial list, however, appellants alleged that Attorney Kocsis, through fraudulent misrepresentation of the value of their claims, convinced Mr. Manzitti to settle his case unwisely. Appellants maintained that Attorney Kocsis intentionally misrepresented the value of the claims to be a maximum of $200,000.00 recovery at trial. This contention, however, is not currently before us for review.

      . In Rothman v. Fillette, 305 Pa.Super. 28, 451 A.2d 225 (1982), we held that, absent express authority from the client, an attorney cannot compromise his client’s claim, release his cause of action or settle litigation. Thus, we affirmed the lower court’s holding that the settlement agreement entered into by Mr. Rothman’s attorney without his express authority was unenforceable.


author: PER CURIAM:

text:
    550 A.2d 547
    COMMONWEALTH of Pennsylvania, Appellant, v. Burton KAUFMAN.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1988.
    Filed Oct. 5, 1988.
    Reargument Denied Nov. 22, 1988.

      Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellant.
    Harold Gondelman, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   PER CURIAM:

This is an appeal by the Commonwealth from the Order of the court below dismissing, on the grounds of double jeopardy, Information No. CC 8512795A which included counts of obstructing administration of law or other governmental function and criminal conspiracy.

The pertinent events giving rise to this appeal are as follows. On September 5, 1984, defendant-appellee entered a plea of guilty to one count of driving under the influence of alcohol or controlled substance, 75 Pa.C.S. § 3731(a)(2). That same day, appellee was sentenced to undergo a term of imprisonment of forty-eight hours at ARC House commencing on November 2, 1984. Appellee was also sentenced to pay a fine of $300; the costs of prosecution; a one year period of probation; attend alcohol safe driving school; undergo evaluation; and pay a $250 fee. This plea was received, and the sentence imposed by the Honorable Bernard L. McGinley.

Sometime thereafter, it was learned that appellee had failed to personally appear at ARC House to serve his sentence and another person appeared in his stead. As a result, a hearing was scheduled before Judge McGinley. At that hearing, on January 18, 1985, it was revealed appellee failed to report for his sentence on November 2, 1984 and had also failed to report to serve his sentence on December 7, 1984, January 4, 1985 and January 11, 1985. To explain this failure, appellee informed the court his attorney obtained a postponement of the first date because of family illness, that he didn’t know about the date of reporting in December, that January 4th was his son’s birthday and he was given permission not to report that day; and on January 11, one Riccardo Smith took it upon himself to find someone else to serve appellee’s sentence. After hearing appellee’s explanation, Judge McGinley stated he was not going to change his position and implemented the same sentence as before with the exception that appellee was to serve his forty-eight hours in the Allegheny County Jail rather than ARC House.

On November 11, 1985, a complaint was filed against appellee charging him with obstructing administration of law or other governmental function, 18 Pa.C.S. § 5101, and criminal conspiracy, 18 Pa.C.S. § 903. The complaint alleged appellee “did actively solicit, and pay one Riccardo Smith the sum of fifty dollars, ($50.00), for the purpose of a partial payment to one Russell Kunkle, so that Kunkle would serve the actor’s sentence at the A.R.C. House____” Named as co-conspirators were Anthony Lagattuta and Riccardo Smith. Both charges were held for court and the information charging both offenses was filed on January 7, 1986.

On May 23, 1986, appellee filed a “Motion to Dismiss and/or Quash the Criminal Information.” The motion alleged, inter alia, that the information should be dismissed “as jeopardy has attached due to the earlier sentence of the Honorable Bernard McGinley.” It was contended the actions charged in the information constituted contempt of court and had been the subject of a contempt hearing before Judge McGinley who punished appellee for his conduct at the hearing of January 18, 1985.

Following a hearing, the Honorable James R. McGregor granted the motion to dismiss on grounds of double jeopardy finding appellee had been sentenced by Judge McGinley as a “probation violation” for the same offense. This timely appeal followed.

Citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), as discussed and applied in Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980), Judge McGregor concluded a prosecution for obstruction and conspiracy was barred because the facts underlying that prosecution were adjudicated at the hearing before Judge McGinley on January 18, 1985. As stated in Hude, supra at 613, 425 A.2d at 320, Ashe entails a three-step approach:

(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was ‘litigated’ in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case. United States v. Hernandez, 572 F.2d 218, 220 (9th Cir.1978); United States v. Dipp, 581 F.2d 1323, 1325 (9th Cir.1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979); United States v. Sarno, 596 F.2d 404, 408 (9th Cir.1979).

With respect to the first step in the analysis, it is readily apparent that prosecution for obstruction and conspiracy involve proof of a variety of elements which are different from and immaterial to the proceeding before Judge McGinley. The January 18, 1985 proceeding was not a probation violation hearing as characterized by Judge McGregor but, instead, was held to investigate appellee’s non-compliance with Judge McGinley’s original sentence. Pertinent to Judge McGinley’s inquiry was the fact that on four occasions appellee had failed to appear to serve his sentence. The hearing before Judge McGinley was brief and did not address whether appellee’s conduct amounted to obstruction and conspiracy. Secondly, it is evident nothing was “litigated” at that proceeding. Indeed the only testimony presented was appellee’s explanation for his failure to appear. Lastly, the obstruction and conspiracy charges were not decided at the January 18, 1985 hearing. Judge McGinley was able to determine that appellee failed to serve his driving under the influence sentence without examining any of the issues necessary for proof of the obstruction and conspiracy charges.

In addition to relying on Ashe, supra, appellee contends the present prosecution is barred because at the proceeding before Judge McGinley “[n]o indication was made by the prosecuting attorney that the sentence should not be changed because a subsequent criminal prosecution would be brought to punish appellee for the conduct which he candidly admitted to the court. No discussion was held on possible subsequent prosecution, but the matter was treated as if it were concluded” (appellee’s brief at 4). In essence, it appears appellee argues the present or subsequent prosecution is barred under 18 Pa.C.S. § 110 and Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) (Campana I), and Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (Campana II). The difficulty with this position is that the conduct giving rise to the obstruction and conspiracy charges obviously did not occur until after the initiation of the driving under the influence prosecution. It was a distinct offense demanding a separate prosecution and a separate sentence arising from criminal avoidance of a sentence already imposed. Appellee has not cited any case holding that a prosecution under circumstances such as the case at bar amounts to double punishment. Although Judge McGinley did change the location where appellee would serve his sentence, the length of that sentence remained the same, forty-eight hours. Mere change of the location of where a sentence is to be served does not constitute a new sentence. As such, his actions consisted of neither a contempt finding, a sentence nor a resentence for a probation violation. Judge McGinley simply provided that the original sentence be served at a time and place which could not be circumvented by the defendant.

While research has not disclosed any case directly on point, the analogy submitted by the Commonwealth, Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), appears instructive although not on point. In Allen, the Court held that a criminal prosecution for rape, criminal trespass and simple assault by defendant against his ex-wife was not barred by a proceeding finding defendant in indirect criminal contempt for violating a court Order entered pursuant to the Protection From Abuse Act, 35 P.S. §§ 10181-10190. In reaching its decision, the Allen Court stated:

Thus in the present case, the indirect criminal contempt proceeding involves elements not necessary to a finding of simple assault, even though assaultive behavior was involved in the contempt. Defendant could have willfully violated the court order by any number of actions, many of which would not have involved assault, or even physical contact or presence. Moreover, the contempt order’s purpose was protection of the court’s dignity and enforcement of its order, not punishment for criminal assault.

Id., 506 Pa. at 514, 486 A.2d at 370 (footnote and citation omitted). Similarly, in the case at bar, appellee’s non-appearance would not necessarily have involved the conduct alleged in the obstruction and conspiracy charge. Judge McGinley’s action was directed at enforcement of his sentencing Order, not punishment for obstruction or conspiracy. Thus appellant’s arguments are both strained and inappropriate to the facts of this case.

Accordingly, Order reversed. We remand for reinstatement of the criminal information and further proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . 18 Pa.C.S. § 5101, Obstructing administration of law or other governmental functions:
      A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

      . 18 Pa.C.S. § 903, Criminal conspiracy (in pertinent part):
      (a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
      (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
      (2) agrees to aid such other person or persons in planning or commission of such crime or of an attempt or solicitation to commit such crime.

      . 18 Pa.C.S. § 110, When prosecution barred by former prosecution for different offense (in pertinent part):
      Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
      (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution is barred by former prosecution for the same offense) and the subsequent prosecution is for:
      (i) any offense of which the defendant could have been convicted on the first prosecution;
      (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separated trial of the charge of such offense; or
      (iii) the same conduct, unless:
      (A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
      (B) the second offense was not consummated when the former trial began.


author: WIEAND, Judge:

text:
    550 A.2d 550
    Donald A. GILBERT, Appellee, v. Harry J. OTTERSON, d.b.a. Gettysburg Exterminating and Lawn Care Company, Appellant.
    Superior Court of Pennsylvania.
    Argued June 14, 1988.
    Filed Oct. 11, 1988.
    Reargument Denied Nov. 30, 1988.

      Lovette M. Mott, Gettysburg, for appellant.
    Jeffery M. Cook, Harrisburg, for appellee.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Donald Gilbert was employed as a pest control technician by Harry J. Otterson, t/a Gettysburg Exterminating & Lawn Care Company. On August 12, 1977, Otterson borrowed two thousand ($2,000.00) dollars from Gilbert, giving as evidence of the indebtedness a promissory note payable within six (6) months after the termination of Gilbert’s employment by Otterson. The note also provided for the payment of interest on unpaid principal at the rate of fifteen (15%) percent per annum. Between 1978 and 1984, Otterson paid Gilbert the sum of three hundred ($300.00) dollars per year as interest, but the principal indebtedness was not reduced. In August, 1985, Gilbert left Otterson’s employ and started a competing business known as Fair-field Pest Control Corp.

On March 21, 1986, Gilbert recovered a judgment against Otterson for the principal of the note, as well as unpaid interest, before a District Justice. Otterson appealed to the Court of Common Pleas of Adams County where he defended against liability on grounds that the rate of interest contained in the note had been usurious. He also filed a counterclaim in which he alleged that Gilbert had tortiously interfered with existing and prospective contractual relations by soliciting Otterson’s customers and had stolen trade secrets. The trial court determined that interest of fifteen (15%) percent was usurious and granted partial summary judgment by applying excessive interest payments in the amount of seven hundred twenty ($720.00) dollars in reduction of the principal indebtedness. Otterson was also granted leave of court to amend his counterclaim to include a demand for treble damages on account of the usury.

At trial, Otterson’s evidence was that the loan had been made by Gilbert to help Otterson over a business slump so that Gilbert would not have to be laid off. The rate of interest, according to Otterson and his wife, had been set by Gilbert. Gilbert, on the other hand, testified that his employer had asked him to invest in the business and that Otterson had set the rate of interest. In any event, it is clear that the note was prepared by an attorney employed by Otterson. The trial court instructed the jury, inter alia, that estoppel was a defense to Otterson’s claim for treble damages. The jury disallowed Otterson’s claim for treble damages and returned a verdict in favor of Gilbert for the unpaid balance of the loan. Otterson filed post-trial motions in which he contended that the trial court had erred in charging the jury that estoppel was a defense to a claim for treble damages. The trial court denied Otterson’s motion for post-trial relief. On appeal, Otterson renews his argument that estoppel is not a defense to a claim for treble damages under the usury law.

With few exceptions, the maximum lawful rate of interest chargeable for the loan or use of money in an amount of fifty thousand ($50,000.00) dollars or less is six (6%) percent per annum. Act of Jan. 30, 1974, P.L. 13, No. 6, § 201, 41 P.S. § 201. Section 501 of the Act, 41 P.S. § 501, provides further that:

When a rate of interest for the loan or use of money, exceeding that provided by this act or otherwise by law shall have been reserved or contracted for, the borrower or debtor shall not be required to pay to the creditor the excess over such maximum interest rate and it shall be lawful for such borrower or debtor, at his option, to retain and deduct such excess from the amount of such debt providing the borrower or debtor gives notice of the asserted excess to the creditor.

Section 502 of the Act, 41 P.S. § 502, provides further:

A person who has paid a rate of interest for the loan or use of money at a rate in excess of that provided for by this act or otherwise by law or has paid charges prohibited or in excess of those allowed by this act or otherwise by law may recover triple the amount of such excess interest or charges in a suit at law against the person who has collected such excess interest or charges: Provided, That no action to recover such excess shall be sustained in any court of this Commonwealth unless the same shall have been commenced within four years from and after the time of such payment. Recovery of triple the amount of such excess interest or charges, but not the actual amount of such excess interest or charges, shall be limited to a four-year period of the contract.

The statute prohibiting usury is a part of the public policy of this Commonwealth, and it has been the practice of the courts in Pennsylvania not to allow the law to be evaded by circumvention. See: Richman v. Watkins, 376 Pa. 510, 515, 103 A.2d 688, 691 (1954); Simpson v. Penn Discount Corp., 335 Pa. 172, 175, 5 A.2d 796, 798 (1939); Saunders v. Resnick, 142 Pa.Super. 457, 461, 16 A.2d 676, 678 (1940). The defense of usury cannot be waived by the debtor. Simpson v. Penn Discount Corp., supra; Olwine v. Torrens, 236 Pa.Super. 51, 56, 344 A.2d 665, 668 (1975); 19 P.L.E. Interest and Usury § 25. See also: Section 408, Act of Jan. 30, 1974, supra, 41 P.S. § 408.

Whether an estoppel defense is available in an action for treble damages under section 502 of the Act is an issue of first impression in the appellate courts of this Commonwealth. However, in 1891, in Stayton v. Graham, 139 Pa. 1, 21 A. 2, the Supreme Court considered a similar issue under an earlier law and placed its imprimatur on the use of the estoppel defense. The Court there said that the “doctrine of estoppel is applied to prevent statements of intended abandonment of existing rights from operating as a fraud upon a party who has been led to rely on them, and thereby change his conduct and alter his condition____ The defen[s]e of usury is no exception to this rule.” Id. at 12, 21 A. 2 (citations omitted). See generally: 17 P.L.E. Interest and Usury § 25. Courts in other jurisdictions have concluded that a borrower who has initiated, or been guilty of fraud in contributing to, a usurious transaction may not claim statutory penalties for usury. See: Massie v. Rubin, 270 F.2d 60 (10th Cir.1959); Short v. Skipwith, 1 Brock 103, F.Cas. No. 12809 (C.C.Va. 1806); Re Pillon-Davey & Associates, 52 B.R. 455 (Bankruptcy N.D.Cal.1985); McClung v. Saito, 4 Cal.App.3d 143, 84 Cal.Rptr. 44 (1970); Builder’s Bond & Mortgage Co. v. Bickley, 262 Ill.App. 603 (1931). See also: Perry v. Shelby, 196 Ark. 541, 118 S.W.2d 849 (1938); Nikkel v. Lindhorst, 85 Colo. 334, 276 P. 678 (1929); Nelson v. Dorr, 239 Minn. 423, 58 N.W.2d 876 (1953); Schanz v. Sotscheck, 167 App.Div. 202, 152 N.Y.S. 851 (1915); U.T. Hungerford Brass & Copper Co. v. Brigham, 47 Misc. 240, 95 N.Y.S. 867 (1905). See generally: Annotation, Borrower’s Initiation of, or Fraud Contributing to, Usurious Transaction as Affecting Rights or Remedies of the Parties, 16 A.L.R.3d 510.

We have determined to follow those decisions which hold that estoppel is a defense to a claim for treble damages. This is the better view and is consistent with the earlier decision of the Supreme Court of Pennsylvania in Stayton v. Graham, supra. A borrower who initiates an excessive interest rate and induces an uninformed lender to accept a rate higher than that permitted by statute will not be permitted to benefit by his own wrong by recovering treble damages. The merit in such a rule can readily be understood when it is applied to the facts of the instant case. Appellant-employer, in order to induce his employee to lend him two thousand ($2,000.00) dollars, promised to pay interest at the rate of fifteen (15%) percent to his employee so long as the principal of the loan remained unpaid. Repayment was not necessary so long as appellee continued in appellant’s employ. The loan was evidenced by a note prepared by an attorney employed by appellant-employer. Under these circumstances, the trial court did not err when it instructed the jury that estoppel was a defense to an action by the debtor for treble damages.

The trial court refused to submit to the jury Otterson’s claims that Gilbert had intentionally interfered with Otter-son’s existing and prospective contractual relations with his customers. Otterson contends that this was error.

After Gilbert left Otterson’s employ and started his own business, he solicited some of the customers with whom he had become acquainted while in Otterson’s employ. There was no evidence, however, that he had caused any customer of Otterson to breach an existing contract. Therefore, the trial court properly refused to submit to the jury Otterson’s counterclaim for intentional interference with existing contractual relations.

In order for Otterson to prove a cause of action for interference with prospective contractual relations, it was essential for him to prove that Gilbert’s conduct was improper. Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978). As a general rule, “[o]ne who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor ... does not interfere improperly with the other’s relation if

(a) the relation concerns a matter involved in the competition between the actor and the other and
(b) the actor does not employ wrongful means and
(c) his action does not create or continue an unlawful restraint of trade and
(d) his purpose is at least in part to advance his interest in competing with the other.”

Restatement (Second) of Torts, § 768. The effect of this rule is more fully explained in comment (b) as follows:

The rule stated in this Section is a special application of the factors determining whether an interference is improper or not, as stated in § 767. One’s privilege to engage in business and to compete with others implies a privilege to induce third persons to do their business with him rather than with his competitors. In order not to hamper competition unduly, the rule stated in this Section entitles one not only to seek to divert business from his competitors generally but also from a particular competitor. And he may seek to do so directly by express inducement as well as indirectly by attractive offers of his own goods or services. The only limitations upon this are those stated in Clauses (a) to (d).

The courts in Pennsylvania have adopted this view. In Spring Steels, Inc. v. Molloy, 400 Pa. 354, 162 A.2d 370 (1960), the Supreme Court said:

“The rule is quite clear that the solicitation of customers and use of customers lists is permissible unless there is a breach of an express contract or violation of some confidence. There must be some element of fraud ©r trade secrecy involved ...
... ‘But equity is not protecting mere names and addresses easily ascertainable by observation or by reference to directories.’ ”

Id., 400 Pa. at 359, 162 A.2d at 372-373 (emphasis by Supreme Court), quoting Wiegand Co. v. Trent Co., 122 F.2d 920 (3d Cir.1941).

In the instant case, there was no evidence of a restrictive covenant which could have been enforced to prevent Gilbert from competing with Otterson upon termination of the employment relationship. Therefore, Gilbert could properly compete with Otterson after he was no longer employed by him. See: Restatement (Second) of Agency § 393, comment e. This right to compete included the right to divert business from Otterson. There was no evidence that Gilbert had exceeded the privilege of competing with his employer by tortiously interfering with the prospective contractual relations of his employer. The trial court did not err when it refused to submit to the jury Otterson’s claim for intentional interference with his prospective contractual relations.

The trial court did submit to the jury the claim that Gilbert had been guilty of violating Otterson’s confidence by stealing trade secrets consisting of his customer lists. The jury, however, returned a verdict which denied recovery. Otterson moved post-trial for the entry of judgment n.o.v., but his motion was denied. He argues on appeal that the denial of his motion was error. We disagree.

“In asserting [a] ... right to protection against the misuse of a trade secret, the burden is on the plaintiff to show that it held a trade secret and that the defendant had misappropriated it in violation of a confidential relationship.” Fidelity Fund, Inc. v. DiSanto, 347 Pa.Super. 112, 121, 500 A.2d 431, 436 (1985), citing Spring Steels, Inc. v. Molloy, supra; Pittsburgh Cut Wire Co. v. Sufrin, 350 Pa. 31, 38 A.2d 33 (1944). The jury in this case could find that Otterson failed to meet this dual burden as to customers who had been contacted by his former employee. It could find that the identity of Otterson’s customers did not constitute a trade secret — they were not the product of any special work on the part of Otterson — and that Gilbert had not misappropriated such information in violation of a confidential relationship. See: Spring Steels, Inc. v. Molloy, supra; Fidelity Fund, Inc. v. DiSanto, supra.

Finally, appellant contends that the trial court erred when it allowed Gilbert to call four witnesses at trial who had not been listed in Gilbert’s several pre-trial memoranda. These witnesses were not expert witnesses but fact witnesses. Although appellant argues that a local rule required that witnesses be disclosed prior to trial, he does not argue that the local rule required the court to preclude their testimony. The sanction, therefore, was discretionary with the trial court. To preclude the relevant testimony of a witness is a drastic step which should not be taken except for weighty reasons. See: Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa.Super. 15, 19, 488 A.2d 284, 287 (1985), aff'd, 512 Pa. 567, 517 A.2d 1270 (1986). In this case we find no abuse of the trial court’s discretion.

JUDGMENT AFFIRMED.

      . The trial court rejected Gilbert's argument that it should reverse its earlier grant of partial summary judgment in favor of Otterson for the usurious interest paid and hold that estoppel was also applicable to prevent the setoff. Gilbert has not appealed from this ruling.

      . Appellant did not contend or offer evidence to show that appellee had solicited his employer’s customers before terminating his employment. Although Gilbert had told several customers of his intention to terminate his employment and go into business for himself, the evidence does not show that he then solicited their business. Appellant's argument on appeal is that appellee engaged in unfair competition by soliciting his employer's customers after terminating the employment relationship while new people were being trained to take appellee’s place.


author: CAVANAUGH, Judge:

text:
    550 A.2d 555
    COMMONWEALTH of Pennsylvania, Appellee, v. Andre SHAW, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 18, 1988.
    Filed Nov. 7, 1988.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, MELINSON and WATKINS, JJ.
   CAVANAUGH, Judge:

The appeal is from the denial of a request for relief pursuant to the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. Appellant challenges the length of sentences imposed after his second trial for murder and robbery. He argues that his current aggregate sentence of twenty to forty years is in fact harsher than his original sentence of life imprisonment and a concurrent term of ten to twenty years. Additionally, appellant takes issue with the sentence credit for the amount of time spent in custody prior to imposition of his second sentences. Finally, in a pro se supplemental brief, appellant seeks a new sentence based upon the trial court’s consideration of impermissible factors.

Appellant was originally tried for murder, aggravated robbery, and burglary in March, 1973 and was convicted by a jury of these charges. He was sentenced to a life term of imprisonment for first degree murder and a concurrent term of ten to twenty years imprisonment for the aggravated robbery. On appeal of these convictions, the Pennsylvania Supreme Court awarded appellant a new trial on the basis of the illegality of appellant’s arrest. Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978).

The second trial was held before the Honorable Edwin S. Maimed and a jury in June, 1978. The result of this trial was convictions of second degree murder and robbery. After the filing of post-verdict motions, and argument thereon, Judge Maimed sentenced appellant to maximum terms of imprisonment, i.e., ten to twenty years on the second degree murder and a consecutive term of ten to twenty years on the aggravated robbery.

Appellant took a direct appeal from his second convictions, which were affirmed. Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981).

Appellant sought PCHA relief, and for the first time raised the issues currently before us. As stated in the brief for appellant, those issues are as follows:

1. Was appellant given an increased sentence following his retrial in violation of the double jeopardy clauses of the state and federal constitutions, and was trial counsel ineffective for failing to object to the sentencing on these grounds and was appellate counsel ineffective for failing to raise these arguments via ineffectiveness of trial counsel allegations on direct appeal?
2. Should appellant have been given full credit for the time he served on both the murder and robbery convictions when resentenced and were not both trial counsel and appellate counsel ineffective for failing to raise these arguments at sentencing and on direct appeal respectively?

Additionally, the following issue is raised in the pro se supplemental brief for the appellant:

3. [Were] appellant’s sentences imposed after a successful appeal based upon impermissible factors and were both trial and appellant counsel ineffective for failing to raise this issue when each should have raised it?

A claim of ineffectiveness of counsel requires a determination whether the claim is of arguable merit, and, if so, whether the course chosen by counsel had a reasonable basis designed to serve the client’s interests. Finally, a showing that counsel’s performance caused actual prejudice is required before counsel is considered constitutionally ineffective. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988).

The first issue provides no basis upon which to find a claim of arguable merit since it is directly controlled by the case Commonwealth v. Brenizer, 477 Pa. 534, 384 A.2d 1218 (1978). As noted by the PCHA court, Brenizer presented a nearly identical issue where a defendant, who had received concurrent terms of life and ten to twenty years for murder/robbery convictions, after retrial received consecutive ten to twenty year terms. The Supreme Court rejected the argument that the later sentence was actually harsher than the first because it delayed defendant’s eligibility for parole. Since a life sentence precludes parole, the court found that the second sentence, which provided for the opportunity of parole after expiration of the minimum sentence, was not more severe than the first sentence.

Appellant attempts to distinguish Brenizer by stating that his case does not deal with parole eligibility. As articulated in appellant’s counselled brief:

Brenizer argued that these consecutive sentences were “harsher” because they “required him to wait longer before he became eligible for parole.”
The court rejected this argument as well it should since it was clear that parole eligibility was not the critical factor involved. As to parole eligibility, it was, and is, clear that with life sentence, there is no parole eligibility and that only the Governor, upon the Board of Pardons recommendation, may commute a life sentence. See Article 4, Section 9, Pa. Constitution. Thus, parole eligibility, delayed parole, and anything to do with parole is irrelevant when a life sentence has been imposed, and the Court had no choice in Brenizer but to reject the arguments as made. See Justice Roberts’ dissent in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 at 1191 (1981).
Appellant’s position herein is simply that his present sentence of 20-40 years is harsher than a life sentence with a concurrent 10-20 year term. This is so since appellant is eligible for parole only after having served his minimum sentence of 20 years. See Act of August 6, 1941, 61 P.S. Section 331.21.
Appellant’s life sentence was subject to commutation at any time, and the average time served on a life sentence imposed when appellant’s was imposed was far less than 20 years. See “Time Served by Commuted Lifers, 1971-1980,” Dept, of Justice Bureau of Corrections, Planning & Research Division, Harrisburg, 1981.
Thus, appellant’s consecutive sentences which totalled 20-40 years violated both the state and federal constitutions.

Brief for Appellant at 10-11. (Emphasis added.)

We are not persuaded by this argument that appellant is not basing his claim for relief upon parole eligibility. As the emphasized sentence from his brief indicates, appellant’s position reduces to an assertion that his new sentence requires him to serve a longer term since he is not eligible for release from prison as quickly as he was under his original sentence. As such, we are obligated to apply the holding of Brenizer.

Were we writing upon a clean slate, we would be inclined to agree with appellant that there is an issue that his new sentence may indeed be harsher than his original one. As noted by the appellant, a life sentence may be commuted by the Governor. We further agree that the average term a person sentenced to life might expect to serve may be a period of less than twenty years. Statistics demonstrate that the grant of commutation in this Commonwealth has much to do with the philosophy of the incumbent governor. However, we are without authority to fail to follow Brenizer, and for this reason find appellant’s first claim to be without merit.

The second issue relates to the proper computation of credit for time served to which appellant is entitled. Appellant contends that since six and a half years elapsed between the time of his being taken into custody and his being sentenced after the second trial, a portion of which period he was serving concurrent sentences, he is entitled to a credit of six and a half years on each sentence. That is, that his original murder sentence and robbery sentence were being served concurrently, and, therefore, he should be afforded six and half years credit for each sentence since the time spent in jail was being counted against each sentence.

The calculation of credit for time served is provided for by statute:

§ 9760. Credit for time served
After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a reult of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.
(3) If the defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based.
(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.
1974, Dec. 30, P.L. 1052, No. 345 § 1, effective in 90 days. As amended 1980, Oct. 5, P.L. 693, No. 142, § 401(a), effective in 60 days.

42 Pa.C.S.A. § 9760, replacing 19 P.S. § 898.

The basic law regarding credit for time served is contained in Commonwealth v. Ulmer, 211 Pa.Super. 193, 238 A.2d 38 (1967). In that case this court considered for the first time whether a person granted a new trial and resentenced should be given credit for time served under an invalid sentence for the same acts. In answering this question in the affirmative, we stated as follows:

The principle underlying this statute [19 P.S. § 898, predecessor to 42 Pa.C.S.A. § 9706] is that a defendant should receive credit for time spent in custody prior to the imposition of sentence for a particular offense. See Commonwealth ex rel. Bleecher v. Rundle, 207 Pa.Super. 443, 217 A.2d 772 (1966). If the first sentence is subsequently invalidated and a person is retried and convicted for having committed the same act, he should not be denied credit merely because a new trial is required. Although the trial and conviction may be voided on appeal, the time illegally exacted is an indisputable fact ... A prisoner seeking review of his case should not be required to do so at the risk of having a new sentence imposed which, aggravated with the time already served, would greatly exceed the maximum sentence which the court might originally have imposed.
We therefore conclude that § 898 of the Penal Code, noted above, requires that a defendant convicted after a new trial shall receive credit for time served under the invalid sentence for the same criminal acts.

Id., 211 Pa.Superior Ct. at 196, 197, 238 A.2d at 39-40.

Ulmer, however, did not present a situation involving concurrent sentences. Subsequent caselaw also leaves open the question posed in the instant case. See e.g., Common wealth v. Bailey, 258 Pa.Super. 364, 392 A.2d 836 (1978); Commonwealth v. Meise, 225 Pa.Super. 524, 312 A.2d 48 (1973).

There has evolved the principle that there is no entitlement to double credit for time spent in custody. See, Lantzy v. Commonwealth, 44 Pa.Comm.Ct. 396, 403 A.2d 1069 (1979). However, again, the context does not involve prior serving of concurrent sentences.

The PCHA court disposed of this issue on the basis that there was insufficient evidence presented regarding the number of years for which credit had been given to appellant. We note that the record reflects that at sentencing, before Judge Maimed, sentence on the murder charge was imposed and credit time was to be computed by the prison authorities. Sentence on the aggravated robbery was imposed to run consecutively. The only other evidence of record consists of appellant’s testimony at the PCHA hearing. His direct testimony provides in relevant part:

Q. Incidentally, sir, after you were sentenced were you given credit for time served prior thereto?
A. No, sir.
Q. You were given credit, you had served six years and approximately six months prior, am I correct?
A. Yes.
Q. And that was given to you or one of your two ten year sentences, is that correct?
A. Right.
Q. But not given to you as to the other sentence, am I correct?
A. No, sir.
Q. When you first served that six years and six months both of those sentences were concurrent, am I correct?
A. Yes.

Notes of Testimony, 7/24/85 at 5-6.

We are constrained to agree with the PCHA court’s finding that on this record appellant failed to sufficiently show the actual period of time for which he has received credit. Indeed, such computation may not have already been made since the question most often appears at time of application for parole. We find that absent sufficient reliable evidence concerning the computation by the prison authorities or state parole board, or both, of appellant’s credit for time served we can find no error by the PCHA court, without prejudice to appellant’s rights to appropriately raise this issue.

The final argument raised relates to whether the lower court considered improper factors in the imposition of sentence. Appellant points to the following statements by the sentencing court as indication of improper motivation:

Mr. Shaw, I have considered your situation very carefully and I am going to state some very brutal facts to you.
It is my feeling, it has been my feeling since the jury returned its verdict, that you were indeed a very lucky man and that you were indeed lucky that you have such capable counsel as Mr. O’Donnell who somehow was able to persuade the jury to come in with a verdict of second-degree murder. If ever there was a case of first-degree murder, this was it, but the jury gave you a break, a break that I do not understand, but we cannot, and I haven’t any inclination to fight the jury’s verdict.
Now, you have not shown any remorse at any time. As I understand it, you still insist on an alibi to the effect you were not present during this occurrence at all, didn’t participate in it, but instead, you were at your home at the time of the occurrence.

Notes of Testimony, 11/28/78 at 42.

We agree with appellant to the degree that the court at sentencing made improper commentary upon the jury verdict and expression of its personal belief that the crime charged constituted first degree murder rather than second degree murder as found by the jury. We are further concerned that implicit in these remarks is a negative comment upon the exercise of appellant’s right to appeal his first judgment of sentence. Nonetheless, we find that the sentence imposed, the maximum lawful sentence, was not improper in light of all the circumstances which were before the court. Judge Maimed considered appellant’s prior record and experience with the criminal justice system. He stated that he had had the opportunity to look at the presentence reports and the mental health evaluation. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). We are convinced that the lower court, despite its commentary upon appellant’s maintenance of his innocence of the crime and the leniency of the jury verdict, evidenced a consideration of all relevant factors before it imposed sentence. Under the circumstances we are powerless to overturn the judgment of the sentencing court. Therefore, we do not find prior counsel ineffective for not raising this issue.

ORDER AFFIRMED.

MELINSON, J., concurs in the result.

      . At the time of the commission of the offense the maximum punishment for second degree murder was twenty years incarceration.

      . We consider this issue, although contained in a pro se brief filed after a counselled brief, upon the authority of Commonwealth v. Gaerttner, 518 Pa. 452, 543 A.2d 1091 (1988). In a per curiam, single paragraph order, the Supreme Court remanded a case to this court for consideration of the issues raised in a pro se brief. This court, in an unpublished decision, declined to consider on the basis of Superior Court precedent, those issues in the pro se brief since appellant was represented by counsel on appeal and the pro se brief was filed before the counselled brief. We see no legal reason to distinguish the holding of Gaerttner, and, therefore, consider the issue in the pro se brief. See also, Commonwealth v. Kibler, 294 Pa.Super. 30, 439 A.2d 734 (1982) (court considered pro se brief where appellant filed it after counselled brief was filed; appellant had not made a choice as to whether he wanted to act on his own behalf or through counsel). (The first issue in the pro se brief is identical with the second issue in the counselled brief, and we treat these issues together.)