author: SHERTZ, Judge:

text:
    442 A.2d 767
    MORAINE VALLEY FARMS, INC., Robert Kwalwasser and his wife, Barbara Kwalwasser; Joseph Kudamik, Jr., and his wife, Melody Kudamik; William Cahill and his wife, Grace Cahill; David Irwin and his wife, Constance Irwin, Appellants, v. CONNOQUENESSING WOODLANDS CLUB, INC., John Getze, John Miller, Edward Sharak, Lee Fry, Elizabeth Gaitens, Robert Bollen, Catherine Moffat, Marie Harper, and Raymond Urbash.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1981.
    Filed March 5, 1982.

      Robert J. Stock, Butler, for appellants.
    Robert A. Lebovitz, Pittsburgh, for appellees.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SHERTZ, Judge:

This is an appeal from an Order sustaining Appellees’ preliminary objections and dismissing Appellants’ petition for declaratory judgment and other relief. Appellees filed preliminary objections, questioning petitioner’s legal right to have the disputed matter determined in a declaratory judgment proceeding, inasmuch as all of the property owners and the current governing body of the Connoquenessing Woodlands Club, Inc. (hereinafter Club) were not made parties to the action. The Chancellor held that all persons holding regular or transferable memberships, and non-member landowners, should have been joined since they might have interests adverse to the parties. We agree and therefore affirm.

In considering preliminary objections in the nature of a demurrer to a petition for a declaratory judgment, the truth of all well-pleaded averments of fact made in the petition must be accepted as true. See Melnick v. Melnick, 147 Pa.Super.Ct. 564, 25 A.2d 111 (1942). The court below properly disregarded factual matters set forth in Appellees’ preliminary objections and considered only the averments in Appellant’s petition. Those averments disclose the following pertinent facts. Connoquenessing Resorts, Inc. originally owned tracts of land in Butler County, laid out as Connoquenessing Woodlands Plan of Lots, Plans one through seven inclusive. To provide recreational facilities for the lot owners, the Club was chartered in 1961, and its charter was amended in 1969. The original charter provided that authorized membership “shall be limited to lot owners of lots located in Connoquenessing Resorts, Inc. Plan of lots 1 through 7”. In 1969, a court appointed receiver of Connoquenessing Resorts, Inc. conveyed all remaining unsold lots in the Connoquenessing Woodlands Plan of Lots to Moraine Manor, Inc. and the latter subsequently conveyed most of those lots to Appellant, Moraine Valley Farms, Inc. Additionally, the receiver conveyed certain real estate, including club house facilities, to the Club, the deed of conveyance reserving to Connoquenessing Resorts and Moraine Manor, Inc., their successors and assigns, and all future lot owners, the right to use the Club facilities.

The by-laws of the Club provide as follows: two classes of membership, regular and transferable; transferable memberships are available to owners of lots in the Plan who contribute $500.00 to the Club; transferable members are eligible to vote on all matters concerning the affairs of the Club; the Board of Governors elects the officers of the Club who must be transferable members; a transferable membership may be sold to another lot owner and resident upon approval by a two-thirds majority of the Board of Governors; upon dissolution of the Club, all assets and property are to be distributed among transferable members; regular memberships are available to owners of lots in the Plan who pay annual dues of $50.00; no transfer option is available to regular members; a regular member may vote only in the election of members of the Board of Governors; upon dissolution of the Club, none of the assets or property are to be distributed to holders of regular memberships.

Appellants all own lots in the subject Plan. Appellants Mr. and Mrs. Kudamik and Mr. and Mrs. Irwin are regular members of the Club. Appellants Mr. and Mrs. Cahill are transferable members of the Club. Appellants Moraine Valley Farms, Inc. and Mr. and Mrs. Kwalwasser own property in the Plan but are not Club members.

Appellants’ petition requested that the Chancellor declare the by-laws of the Club to be invalid. Appellant Moraine Valley Farms, Inc. ¿vers that when it wished to exhibit the premises to prospective purchasers, it was denied access to the Club’s facilities. All Appellants aver that the Club’s by-laws are in conflict with its charter and the Pennsylvania Non-Profit Corporation Law of 1972, 15 Pa.Cons.Stat.Ann. § 7751(a) (Purdon Supp.1981); that Appellees Getze, Miller, Sharak, Fry, Gaitens, Bollen, Moffat, Harper and Urbash, acting as the Board for the Club, refused to permit recent or prospective purchasers to apply for or become Club members and terminated existing members who disagreed with the Board’s policies; and that the individual Appellees threatened to dissolve the Club to benefit themselves as transferable members.

Appellants contend that the Chancellor erred in concluding that all members of a non-profit corporation must be joined in a declaratory judgment action. This is a substantial misstatement of the Chancellor’s holding. Rather, the Chancellor concluded that all persons, other than Appellees, owning property to which the alleged right to membership inured, and all persons holding regular and transferable memberships, might be affected by the grant of a declaratory judgment. T.C. Slip Op. at 4. Inherent in this conclusion is the premise that such persons might be adversely affected by the declaration. The Chancellor noted that Appellants have not asserted that they are acting as representatives of the class of parties who may be affected by a declaratory judgment, Id. at 5. The Chancellor also concluded that, because the rights of all are so intertwined, a decree could not be formulated so that parties not present would not be affected. Id. at 5.

The Uniform Declaratory Judgments Act did not authorize a court to act unless all interested persons are joined as parties. See, Mains v. Fulton, 423 Pa. 520, 224 A.2d 195 (1966); Bracken v. Duquesne Electric & Manufacturing Co., 419 Pa. 493, 215 A.2d 623 (1966); Carlsson v. Pennsylvania General Insurance Co., 417 Pa. 356, 207 A.2d 759 (1965). The burden of proving that all interested persons have been made parties to the action, or have received reasonable notice, is on the petitioner. See, Sloane-Wheeler Corp. v. Odeseos, 154 Conn. 705, 226 A.2d 508 (1967).

The mere failure to join interested parties, however, does not necessarily bar a declaratory judgment action. Where the parties, either plaintiffs or defendants, who would be affected by a judgment are so numerous that it would be impracticable to bring them all before the court, it has been recognized that the bringing of a declaratory judgment action as a class action, in which the parties appear by representation, is permissible under Section 841. Anno: Declaratory Judgments Parties, 71 ALR 2d 723, 735 (collecting cases); See e.g., Lozoff v. Kaisershot, 11 Wis.2d 485, 105 N.W.2d 783 (1960) (In action for declaration of proper construction of deed restrictions in subdivision, plaintiff not precluded from maintaining class action against twenty-four lot owners as representative defendants).

We agree with the Chancellor that it is an over-simplification to conclude that all other property owners have the same interests and are adequately represented by the Club. Absent certification of the Club and/or the Appellants as a class representing the interests of property owners and Club members not parties to this action, we conclude that the Chancellor did not abuse his discretion in declining to hear the matter in a declaratory judgment proceeding.

Without reaching the merits of the allegations set forth in Appellant’s petition for declaratory judgment, it is apparent that there are Club members and property owners, not parties to this action, who may have conflicting interests in the resolution of this issue. For example, persons holding transferable memberships might favor a limited right of access to the Club for purposes of displaying the facilities to prospective purchasers. That position may be in conflict with the position of both Appellants and Appellees. Some holders of regular memberships may oppose Appellants’ efforts to obtain access to the Club for “display” purposes, yet agree with Appellants in opposing dissolution of the Club. Some nonmembers who currently own property in the plan of lots may oppose Appellants’ efforts to obtain the right for prospective purchasers to join the Club while wishing to retain their rights as existing property owners to join the Club. This partial list of potential conflicts between the named parties and other lot owners makes it clear that all lot owners must be joined to protect the rights of all persons who might be adversely affected by a declaratory judgment.

Appellants’ second contention, that the Chancellor erred in relying on the availability of an adequate statutory remedy as a basis for declining to hear the matter is likewise without merit. Although the Chancellor noted the availability of a remedy pursuant to the Corporation Not for Profit Code, 15 Pa.Cons.Stat.Ann. § 7101 (Purdon Supp.1980), the Chancellor did not sustain the preliminary objections on that ground.

Affirmed.

The decision in this case was reached prior to the expiration of Judge SHERTZ’s commission on the Superior Court of Pennsylvania.

      . Appellants did not seek leave to amend their petition in the court below.

      . Appellees’ preliminary objections were filed pursuant to 12 Pa.Stat. Ann. § 851 (Purdon 1953), which was repealed by the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, P.L. 202, No. 53, § 2(a) effective June 27, 1980. At the time Appellees’ preliminary objections were filed, however, Section 851 was still effective.

      . 12 Pa.Stat. § 841 provided, inter alia:
      —When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.
      Section 841 was repealed by JARA, supra. The Act of July 9, 1976, P.L. 586, No. 142 § 2, effective June 27, 1978, 42 Pa.Cons.Stat.Ann. § 7540 (Purdon 1981), which is derived from 12 Pa.Stat. § 841, retains the above stated requirement regarding parties to a declaratory judgment proceeding.

      . Thus, in Mains, our Supreme Court concluded that the fact that all other owners in a development were not joined precluded the developer’s declaratory action against lot owners who refused to permit the power company to relocate its lines through their property.

      . Pa.R.C.P. 1701 et seq. governs the procedure for class actions. Appellant did not proceed in accordance with these rules and did not attempt to seek certification of this case as a class action. See Pa.R.C.P. 1707.


source: Caselaw Access Project

license: Public Domain

text:
    442 A.2d 770
    Rudy V. DeSANTIS, Samuel C. Rice and Kenneth W. Rankin and Nicholas G. Vallas v. Barbara J. SWIGART. Appeal of Rudy V. DeSANTIS, Samuel C. Rice & Kenneth W. Rankin.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1981.
    Filed March 5, 1982.

      Leo M. Stepanian, Butler, for appellants.
    Douglas G. Linn, II, Butler, for Valias, appellee.
    Richard W. Givan, Butler, for Swigart, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

This is an action in libel wherein Appellants contend that the court below erred in sustaining Appellee’s preliminary objections in the nature of a demurrer and dismissing the complaint on the ground that the communication in question enjoyed absolute privilege. We agree and therefore reverse.

Initially we note the applicable standard of review is expressed in Donnelly v. DeBourke, 280 Pa.Super.Ct. 486, 489, 421 A.2d 826, 828 (1980) (citations omitted):

[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom .. . [Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

See also Bickell v. Stein, 291 Pa.Super.Ct. 145, 149, 435 A.2d 610, 612 (1981).

A demurrer is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Del Boring Tire Service, Inc. v. Barr Mach., Inc., 285 Pa.Super.Ct. 66, 426 A.2d 1143 (1981). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. Barto v. Felix, 250 Pa.Super.Ct. 262, 378 A.2d 927 (1977). In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint. Linda Coal and Supply Co. v. Tasa Coal Company, 416 Pa. 97, 204 A.2d 451 (1964). Any doubt as to whether a demurrer should be sustained should be resolved against the moving, party. Commonwealth, Dept. of Environmental Resources v. Peggs Run Coal Co., 55 Pa.Cmwlth.Ct. 312, 423 A.2d 765 (1980).

We must apply these standards to the complaint herein, which contains the following allegations: (1) on March 18, 1978, Appellee, Barbara J. Swigart, an individual, prepared, wrote and caused to be printed and published, in a local daily newspaper, an advertisement which was defamatory per se; (2) the paid advertisement was an unprivileged publication; (3) in the alternative, the publication was an abuse of privilege; (4) the advertisement and publication was malicious because the same was false and imputed to Appellants the commission of a crime involving moral turpitude, accused Appellants of a breach of fiduciary duty as school board members and impugned Appellants’ integrity as school board members; and (5) the publication was made without just cause or legal excuse.

Based upon the foregoing “well pleaded facts”, the lower court concluded that Appellee was a “high public official” entitled to absolute privilege for a defamatory communication made in her official capacity and that the publication of the article was closely related to Appellee’s official duties and was therefore protected. The complaint, however, does not support these conclusions.

The Supreme Court has defined the parameters of the privilege as follows:

Absolute privilege, as its name implies, is unlimited, and exempts a high public official from all civil suits for damages arising out of false defamatory statements, and even from statements or actions motivated by malice, provided the statements are made or the actions are taken in the course of the official duties or powers and within the scope of his authority, or as it (is) sometimes expressed within his jurisdiction . . . (emphasis in original). Montgomery v. City of Philadelphia, 392 Pa. 178, 182, 140 A.2d 100, 103 (1958), quoting Matson v. Margiotti, 371 Pa. 188, 193-194, 88 A.2d 892, 895 (1952). See Barto v. Felix, supra.

Absolute privilege in a libel case may be raised by demurrer where the defendant’s privilege appears on the face of the complaint. Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1976). Here, however, the complaint does not demonstrate that Appellee was entitled to absolute privilege as a high public official acting within the scope of her official duties. In fact, the complaint does not identify Appellee as a public official of any kind. Assuming, arguendo, that an inference can properly be drawn from the advertisement that the Appellee was a school board member, and therefore a “high public official”; it is nevertheless impermissible to read into the complaint that Appellee was acting within her official capacity.

Since the Appellant’s complaint stated a cause of action upon which relief could be granted and since Appellee’s privilege does not appear on the face of the complaint, the complaint should not have been dismissed.

The order of the lower court is reversed and the case is remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

This case was decided prior to the expiration of SHERTZ, J.’s, commission of office.

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

      . Plaintiffs attached a copy of the advertisement to their complaint. See Pa.R.Civ.P. No. 1019(h).

      . We need not, and do not decide whether a school board member is a “high public official”.


author: SUGERMAN, Judge: SPAETH, Judge,

text:
    442 A.2d 773
    COMMONWEALTH of Pennsylvania v. Jeffrey R. ROONEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed March 5, 1982.
    Petition for Allowance of Appeal Denied June 30, 1982.

      Robert T. Gownley, Jr., Assistant Public Defender, Lackawanna, for appellant.
    Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Pres. Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   SUGERMAN, Judge:

Appellant has appealed an order of the lower court denying his motion for reconsideration of sentence. Appellant contends on appeal, as he did below in support of his motion, that the sentence imposed upon him was manifestly excessive and thus constituted an abuse of the lower court’s discretion. We affirm.

On May 10, 1977, Appellant, then a juvenile seventeen years of age, was arrested and charged in a series of juvenile petitions with two counts of robbery, five counts of burglary and two counts of criminal attempt. On May 21, 1977, following a certification hearing, Appellant’s cases were transferred by the juvenile court to the criminal division for trial. Appellant was thereafter indicted on all charges by a grand jury and the cases were listed for trial.

On January 26, 1978, Appellant pleaded guilty to the indictments and on May 12, 1978, following the preparation of a Presentence Investigation Report, Appellant was sentenced to serve a term of imprisonment of six months to one year upon each of the five counts of burglary and one to two years upon each of the two counts of robbery. All sentences were ordered by the court to be served consecutively, resulting in a total period of confinement of 4V2 to 9 years.

The record of the guilty plea proceeding indicates that Appellant, while engaged in what is best characterized as a “crime spree”, was an active participant in a series of burglaries and robberies committed in Lackawanna County during a five-day period. In the first of these incidents, Appellant and a co-defendant twice burglarized a used car lot on the same day, and removed an automobile and other property following each entry. Again, on the same day, Appellant and his co-defendant committed an armed robbery at a service station. During the course of the robbery, Appellant held a rifle or sawed-off shotgun to an attendant’s head while removing approximately $350 from the station. Yet again on the same day, Appellant burglarized a drive-in restaurant, and his co-defendant removed property valued at more than $250. On the following day, Appellant and others burglarized an automobile dealership and stole another automobile along with cash and other property. Again, on the same day, Appellant and a co-defendant attempted to rob another service station. Appellant was armed with a 12-gauge shotgun and wore a disguise. The service station attendant refused to comply with a demand for money, causing Appellant to apparently “freeze”, and both thereupon fled.

During the same period, the record reveals that Appellant attempted to burglarize a drug store, burglarized a mobile home, causing extensive damage, and stole another automobile. Appellant’s activity during this “spree” resulted in the return of nine separate indictments, containing sixteen counts and charging Appellant, inter alia, with the theft of many thousands of dollars in movable property.

As we have observed, Appellant was sentenced to a total period of confinement of 4V2 to 9 years upon his pleas to five counts of burglary, two counts of robbery and one count of attempted burglary. The remaining counts that did not merge were the subject of a nolle prosequi.

Our scope of review when confronted by a challenge to the severity of a sentence is well known and has been oft-repeated. Where no statutorily mandated sentence is implicated, trial judges in this Commonwealth are vested with broad discretion in sentencing. We will not disturb a judgment of sentence unless an abuse of discretion is shown, and in order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be manifestly excessive. Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981); Commonwealth v. Michenfelder, 268 Pa.Super. 424, 408 A.2d 860 (1979). In addition, at the date the instant sentences were imposed, the court was required by the Sentencing Code to impose a sentence for the “minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant,” 18 Pa.C.S.A. § 1321(b); Commonwealth v. Campolei, supra, 284 Pa.Super. at 297, 425 A.2d at 822. The sentencing court must also state on the record the reasons underlying the sentence it imposes, Commonwealth v. Riggins, 474 Pa. 115, 133, 377 A.2d 140, 149 (1977); Commonwealth v. Weaver, 280 Pa.Super. 481, 421 A.2d 824 (1980); Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980). The sentencing court must also indicate on the record at the time of sentencing that the guidelines of the Sentencing Code were considered in the sentencing process. Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Stufflet, 291 Pa.Super. 516, 436 A.2d 235 (1981); Commonwealth v. Williams, 274 Pa.Super. 461, 418 A.2d 499 (1980); Commonwealth v. Skinner, 275 Pa.Super. 251, 418 A.2d 707 (1980).

Appellant does not and indeed could not argue that the sentence imposed upon him exceeded the statutory limits. See, 18 Pa.C.S.A. §§ 3502, 3701, 901(a), 905 and 1103. We must therefore determine whether the sentences imposed are for some other reason manifestly excessive. Common wealth v. Campolei, supra, 284 Pa.Super, at 297, 425 A.2d at 822.

Prior to sentencing, the lower court directed that a Presentence Investigation Report be prepared. At the sentencing proceeding, Appellant’s counsel referred to the Report and addressed a number of mitigating factors contained in it, including Appellant’s admission of his complicity in the crimes, his ultimate cooperation with the police, and his exemplary record while incarcerated.

Counsel also invited the court’s attention to a number of Appellant’s personal attributes, and certain aspects of Appellant’s participation in the crimes which were mitigating in counsel’s view. Nearly all such factors directly implicated the guidelines of the Sentencing Code and were clearly before the Court.

Prior to imposing the instant sentences, the court set forth its reasons on the record thusly:

“THE COURT:
I have examined the defendant’s presentence investigation [] very, very carefully taking into account all of the facts contained therein and, of course, in light of the seriousness of the crimes involved here, these crimes, of course, are perhaps the most serious we have on the books today. I’ve also taken into consideration in addition to the seriousness of these incidents, the well being of the people and the protection of the people in Lackawanna County because we certainly have to have that in mind in all of these types of proceedings, the protection of our people. Of course, you have evidenced by these incidents a great disregard for life and property. I’ve taken this into consideration. It was very evident in these incidents which include two robberies and five burglaries your criminal disposition. In addition to these, the criminal disposition you have throughout your life which is evidenced by your juvenile court record. As a result of the concern that the court has for you and the possibility of rehabilitation programs, taking all of these matters into consideration and based upon . .. [sentences were thereupon imposed].”

At the hearing convened upon Appellant’s Motion for Reconsideration of Sentence, the court amplified its earlier remarks:

“THE COURT: I might add just paraphrasing, there were other matters I took into consideration in addition to what you mentioned, Mr. Gownley [defense counsel]. The first of which was that I gave very careful consideration to the pre-sentence investigation. Secondly, I took into consideration his criminal disposition involved in these acts. I took into consideration his criminal disposition throughout his life as was evidenced by his juvenile court record. I also mentioned in that proceeding [sentencing proceeding] that I was concerned about the possibility of rehabilitation programs.” N.T. 4-5, June 9, 1978.

It is not our function to determine whether we agree with these statements of the sentencing court, “in the sense that if we had been the sentencing court, we should have said the same thing and imposed the same sentence.” Commonwealth v. Campolei, supra, 284 Pa. Super. at 299, 425 A.2d at 822. Rather, we must evaluate three factors: whether the confinement imposed on Appellant is consistent with the protection of the public, the gravity of the offenses, and the rehabilitative needs of Appellant. Id. And see, Commonwealth v. Edrington, 490 Pa. 251, 256, 416 A.2d 455, 457 (1980); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976).

At bar, it is apparent that the sentencing judge placed great emphasis upon the Presentence Investigation Report. Appellant’s counsel advised the court that he and his client had reviewed the report. During argument, Appellant’s counsel discussed the report and informed the court of Appellant’s prior juvenile offenses, including an escape from a juvenile detention facility, all of which were contained in the report. There is no indication in the record that the report was in any respect inaccurate.

The court itself, in its brief statement at the time of sentencing quoted above, reflects a consideration of the gravity of Appellant’s offenses, Appellant’s prior contact with the juvenile justice system, and the facts concerning Appellant’s individual characteristics and background as set forth in the Presentence Investigation Report. The court’s statement also exhibits its concern for Appellant’s rehabilitative requirements.

While we should perhaps have taken greater comfort in a more detailed statement of reasons underlying the sentences imposed, including those aspects of the Presentence Investigation Report upon which the court relied, we cannot say that the court failed in its obligation to consider the factors iterated in Campolei, supra, or the Sentencing Guidelines, 18. Pa.C.S.A. § 1301 et seq. Rather, it appears to us that the sentencing court considered and applied the guidelines of the Code and we are thus unable to say on this record that the court manifestly abused its discretion.

Affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I find myself unable to agree with the majority that the lower court has adequately stated its reasons for the sentence imposed. I should therefore vacate the sentence and remand for resentencing.

I acknowledge the majority’s full and careful statement of the cases defining the sentencing judge’s responsibilities. On another occasion I tried to summarize those responsibilities, and it may be useful to refer to that summary now:

The first responsibility of the sentencing judge is a fact-finding responsibility; the judge must be sure that he has before him “sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant.” Commonwealth v. Doyle, 275 Pa. Superior Ct. 373, 281, 418 A.2d 1336, 1340 (1979) citing Commonwealth v. Wicks [265 Pa. Superior Ct. 305, 401 A.2d 1223 (1979) ]. The second responsibility of the sentencing judge is an application-and-explanation responsibility; the judge must apply to the information he has gathered the statutory guidelines specified in the Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, 18 Pa.C.S. § 1321 et seq. (Supp.1977), and then explain on the record how that application has resulted in the sentence imposed. Commonwealth v. Doyle, supra, 275 Pa.Super. at 383, 418 A.2d at 1341. See Commonwealth v. Farrar, 271 Pa. Superior Co. 434, 447-453, 413 A.2d 1094, 1101-1104.
Commonwealth v. Kostka, 276 Pa. Superior Co. 494, 419 A.2d 566, 573-574 (1980) (SPAETH, J., concurring).

Here, we cannot tell whether the sentencing judge fulfilled his fact-finding responsibility. While the judge says that he “examined the defendant’s presentence investigation very, very carefully taking into account all the facts contained therein ....,” At 776, he does not tell us what those facts were. Nor did he make the report of the presentence investigation part of the record. We therefore cannot know whether the judge had before him “sufficient information to enable him to make a determination ... of the character of the defendant.”

Also, the sentencing judge failed to fulfill his application- and-explanation responsibility. His very brief statement makes at best only an oblique reference to the guidelines specified in the Sentencing Code, and there is no explanation of why the judge believed his sentence consistent with those guidelines. The statement is only a series of conclusions, with no specificity or concreteness being added by any reference to the record. Indeed, the statement raises more questions than it resolves. What did the judge mean by his reference to “the criminal disposition you have throughout your life?” What was “evidenced by [the] juvenile court record?” What was “the possibility of rehabilitation programs?”

At the sentencing proceeding, counsel for appellant offered several arguments in mitigation of appellant’s offenses; counsel argued to the following effect. Appellant was 17 years old when the offenses were committed. He was not the only person involved; others were with him, and one of them was an adult who had fled the jurisdiction. In some of the cases, appellant did not break in but acted as a lookout. In one case, he took a gun away from one of the others, saying, “I can’t do this.” He gave detailed statements to the police and juvenile authorities, freely admitting his involvement, and pleaded guilty to all of the offenses. He further demonstrated his change in attitude when he was in jail, awaiting trial. He had risen to the position of trustee and was permitted to leave his wing to work as a cook in the kitchen, where he had access to knives. According to counsel, the pre-sentence report showed that appellant’s juvenile offenses had not been “in the same vein” as the offenses to which he had pleaded guilty, and appellant “was never involved with guns before.” N.T. 4.

It was the sentencing judge’s responsibility to respond to this argument. The essence of the Pennsylvania law of sentencing is that the sentence be individualized. Commonwealth v. Riggins, supra. The point of requiring a statement of reasons for the sentence is to ensure that it is an individualized sentence, consistent with the Sentencing Code. Id. Here, the sentencing judge’s statement amounts only to a few brief, conclusory remarks, which could have been uttered in virtually any robbery case. In Commonwealth v. Farrar, 271 Pa. Superior Ct. 434, 413 A.2d 1094, we said:

[T]he responsibilities [the Sentencing Code] imposes on the sentencing judge do not fade away and disappear upon utterance of the formula that ‘a lesser sentence would depreciate the seriousness of the crime.’ The judge must state, with reference to the record, why he believes that would be so. Only thus will the ‘appellate courts [be enabled] to ascertain whether the sentence was based upon accurate, sufficient and proper information [citing Commonwealth v. Riggins, supra.]

The judgments of sentence should be reversed and the case remanded for re-sentencing according to law.

      . The Sentencing Code has since been amended and the operative provision, deleting the words “minimum amount of” now provides:
      “... In selecting from the alternative set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community and the rehabilitative needs of the defendant ...” 42 Pa.C.S.A. § 9721(b).

      . The statement of reasons must:
      “... demonstrate that the court has considered the factors specified in the Code, and that it has balanced the specific background, character, and circumstances of the defendant with the circumstances of the crime, the need for incarceration, to prevent future
        offenses by the defendant and by others, and the possibility of rehabilitation ...”

        Commonwealth v. Wicks, 265 Pa.Super. 305, 314, 401 A.2d 1223, 1227 (1979).

      . We have held that in the absence of a statement of reasons for the sentence imposed, we are unable to review a sentence and must remand. Commonwealth v. Weaver, supra, 280 Pa.Super. at 483, 421 A.2d at 825.

      . While we have said that it is better practice for the court to articulate some reference to the guidelines specified in the Sentencing Code, with an explanation of how consideration of those guidelines affected the determination of sentence, Commonwealth v. Williams, 274 Pa.Super. 464, 477, 418 A.2d 499, 506 (1980); Commonwealth v. Backert, 271 Pa.Super. 72, 412 A.2d 580 (1979); Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978), this court has not required the trial judge to list those criteria of the Sentencing Code and detail his response to each. Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980); Commonwealth v. Williams, supra; Commonwealth v. Wicks, supra. We have also said in the past that no case has held that the Sentencing Code states the exclusive and inflexible criteria in the sentencing process. Indeed our cases hold that a statement of reasons should not be held insufficient when it is apparent that the court considered and applied the Code even though it made no explicit reference to those guidelines. Commonwealth v. Walton, 289 Pa.Super. 411, 417, 433 A.2d 517, 519 (1981) (quoting Commonwealth v. Zimmerman, 282 Pa.Super. 286, 299, 422 A.2d 1119, 1125 (1980)).

      . The Presentence Investigation Report is not part of the record.

      . Unfortunately, the lower court has failed to provide us with an opinion as mandated by Pa.R.A.P. 1925(a). •

      . Compare the statement of reasons at bar with those found deficient in Commonwealth v. Butch, supra, and Commonwealth v. Kostka, supra.

      . It is, of course clear that a court may not rest a sentence upon the seriousness of the crime alone. Commonwealth v. Butch, supra; Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Stufflet, supra; Commonwealth v. Walton, supra. It must be borne in mind, however, that Appellant at bar pleaded guilty to his complicity in seven felonies of the first degree and one felony of the second degree. The maximum term of imprisonment for a felony of the first degree is 20 years, and for a felony of the second degree, 10 years. 18 Pa.C.S.A. § 1103.


author: PER CURIAM:

text:
    442 A.2d 778
    James B. WINPENNY, III v. Carol M. WINPENNY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1980.
    Filed March 5, 1982.

      Carol M. Winpenny, appellant, in pro. per.
    Bernard Berman, Media, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

This appeal by Carol Winpenny, who appeared before this court pro se, is from the interlocutory order of May 16,1979, denying exceptions filed to the order of April 12, 1977 and February 5, 1979, wherein partition of real estate at Six Prince Edward Lane, Middletown Township, Delaware County, Pennsylvania, was granted and partition of any additional property was denied. This is an interlocutory appeal as of right. Pa.R.A.P. 311(a)(6).

The parties were married on September 20, 1958. On January 2, 1962, they purchased and became tenants by the entireties of real estate located at Six Prince Edward Lane, Middletown Township, Delaware County, Pennsylvania. The parties were divorced by Final Decree in Divorce A.O.M. granted to James B. Winpenny on February 19, 1975 by the Court of Common Pleas of Delaware County. We affirmed that decision. Winpenny v. Winpenny, 234 Pa.Super. 725, 342 A.2d 426 (1975), allocatur refused.

Carol Winpenny presents several questions in this appeal. First, she asserts that her husband should not be permitted to benefit from perjured testimony. Second, she argues that her request for a change of venue should have been granted. Third, she challenges the propriety of the decision of the trial court as to what property was to be considered entire-ties property and how that property was to be divided.

James Winpenny’s complaint for partition was filed pursuant to the Act of 1927, May 10, P.L. 884, as amended, 1949, May 17, P.L. 1394, § 1, 68 P.S. § 501 which provides:

Whenever any husband and wife, hereafter acquiring property as tenants by entireties shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit in the Court of Common Pleas, sitting in equity, of the county where the property is situate, against the other to have the property sold and the proceeds divided between them.

First, we note that the issue of James B. Winpenny’s perjured testimony has already been resolved by the court below, Winpenny v. Winpenny, 62 Del.Co.R. 360 (1975), which we affirmed at 234 Pa.Super. 725, 342 A.2d 426 (1975), allocatur refused. Our decision therein is res judicata. Lebeau v. Lebeau, 258 Pa.Super. 519, 393 A.2d 480 (1978). Thus, we need not discuss this issue any further.

Second, Carol Winpenny asserts that the trial court erred in refusing her request for a change of venue. It is clear that venue was in Delaware County pursuant to 68 P.S. § 501. The contested property was located in Delaware County. However, Carol Winpenny raised a preliminary objection to venue in the form of a petition to change venue. Pa.R.C.P. 1509(a), 1017(b)(1), 1006(e). We have held that a decision of a trial court concerning a request for a change in venue is within the discretion of that court. Pennsylvania Power & Light v. Gulf Oil Corporation, 270 Pa.Super. 514, 411 A.2d 1203 (1979), allocatur refused, cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980).

Our General Assembly has provided some guidelines as to when a request for a change of venue should be granted in 12 P.S. § 111 (repealed and replaced by 42 Pa.C.S.A. § 5106). It provides that a trial court may grant a change of venue when:

§ 111. Change of venue for interest or prejudice
Changes of venue shall be made in any civil cause, in law . or in equity, depending in any of the courts of this Commonwealth, in the cases following; namely,—
First. Whenever the judge, who by law is required to try or hear the same, shall be personally interested in the event of such cause, or in the question to be determined thereby.
Second. Whenever the title under which the parties, or either of them, claim, in any such cause, shall have been derived from or through such judge, and he shall be liable thereunder, or whenever he shall hold under the same title with either of the parties in the said cause.
Third. Whenever any near relative of such judge shall be a party to any such cause, or interested in the event thereof, unless the judge so interested shall select another judge, learned in the law, not so related, to hear and determine the same.
Fourth. Whenever the county in which such cause is pending, or any municipality therein, or the officials of any such county or municipality, are parties thereto, and it shall appear to the court that local prejudice exists and that a fair trial cannot be had in such county.
Fifth. Whenever a large number of the inhabitants of the county, in which cause is pending, have an interest in the question involved therein, adverse to the applicant, and it shall appear to the court that he cannot have a fair and impartial trial. 1875, March

Carol Winpenny raised 94 separate reasons why a change of venue should be ordered. Her allegations complained among other matters, about the police, mental health officials, county personnel, county officials, the Commonwealth Department of Public Welfares, the Office of the Attorney General of Pennsylvania, the Governor of Pennsylvania, and among others, members of the Court of Common Pleas of Delaware County. However, no claim of prejudice was leveled at the judge presiding in the lower court in the instant case. Our review of the entire record in this case leads us to conclude that although Carol Winpenny asserts that she has had difficulty in her dealings with numerous persons in Delaware County that she has not presented facts which would require us to conclude that the trial court abused its discretion in dismissing Carol Winpenny’s petition for a change of venue.

Third, Ms. Winpenny argues that the trial court erred in its decision as to what property constituted entireties property and therefore the trial court erred as to how that property should be divided. A master’s hearing was held to determine what property, if any other than real property already ordered partitioned, should be partitioned. Initially, we note that our scope of review is limited. We will only reverse the trial court if its findings are not supported by sufficient evidence or when the court committed an error of law. Livingston v. Livingston, 288 Pa.Super. 22, 430 A.2d 1193 (1981).

Carol Winpenny, as the proponent claiming the existence of these unpartitioned properties of the entireties had the burden of proving what properties were subject to partition. A good cause of action if stated by the counterclaiming party avers that the properties were owned by him and his former wife as tenants by the entireties and that he and his former wife are divorced. Olivieri v. Olivieri, 242 Pa.Super. 457, 364 A.2d 361 (1976). Carol Winpenny asserted in her counterclaim that the property which should have been partitioned included:

1. Stocks and bonds

2. Insurance Policies

3. Household furnishings

4. Funds held in trust by First Pennsylvania Bank

5. James Winpenny’s Earning Capacity

6. Pensions

7. Hidden Assets

The trial court concluded that Carol Winpenny had not proved that the insurance policies, and stocks and bonds were owned by the parties by the entireties prior to their divorce. The only proof was that they were purchased by James Winpenny at an early date in their marriage and sold before the divorce occurred. Carol Winpenny testified at the master’s hearing:

Q. The General Electric stock and United States Bonds were purchased in the. name of James Winpenny. They were not in your name?
A. Yeah, but I didn’t know it at the time.
Q. At this time do you even know if the stocks and bonds still exist?
A. I know that he sold the bonds after he promised he would not.
Q. And this was in 1969?
A. Yes.

Then testimony was missed by the stenographer.

A. No, he sold them in ’64 or ’65 when I was in the hospital. I still have the certificates (referring to G. E. stock). If you can sell it without the certificate, you bet he has, but if you can’t he hasn’t.
Q. You don’t know for sure whether he has sold the General Electric stock?
A. Well, they can’t be sold without the certificate, but he had duplicate certificates, I don’t know what he’s done. If you tell him, he’ll sell them.

Thus, Carol Winpenny stated the bonds were sold before the divorce and indicated that she did not know whether the stocks had been sold. Under the circumstances, we are unwilling to disturb the master’s findings that the stocks and bonds were entireties property subject to partition.

James Winpenny owned three life insurance policies which he acquired prior to the marriage. Carol Winpenny testified that these policies were all acquired by her husband and were in his name only. Furthermore, the record does not support a finding that the policies existed at the time of the divorce and even if it did there is no evidence that the policies were ever transferred into entireties property. Hengst v. Hengst, 491 Pa. 120, 420 A.2d 370 (1980).

As to household furniture, the record indicates that James Winpenny possesses some of the furnishings presently, but that Carol retained possession of most of the household items. Thus, we are satisfied that the parties have already affected a partition of these goods. Cf. DeLuca v. DeLuca, 388 Pa. 167, 130 A.2d 179 (1967); Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979). Accordingly, we find no basis upon which to grant Ms. Winpenny’s request that her husband be ordered to pay her for use of the furnishings.

The trial court discussed the issue involving the partition of trusts owned by James Winpenny in its opinion as follows:

As to her alleged entireties’ interest in certain funds in a spendthrift trust for the sole benefit of the Plaintiff Defendant has acknowledged that: the trust was created when the Plaintiff was a little boy; it is not subject to alienation by Plaintiff until the funds are actually received by him; Defendant has previously filed sworn Complaints in Assumpsit and in Equity in this County in which she has alleged that the Trust belongs solely to Plaintiff, and has conducted extensive litigation in this County and on appeal under the same premise. Against this, Defendant testified that Plaintiff promised to alienate his interest in the Trust in consideration for Defendant’s promise to remain married to him. If this promise was ever made, it would have occurred during the period of the parties’ marriage when husband’s cause of action in divorce was accruing. We find that Plaintiff’s testimony as to this promise is not believable. Furthermore, even if the promise were made, a promise to remain married can only be valuable consideration if the promisor had a just cause for divorce. Young v. Cockman, [182 Md. 246], 34 A.2d 428. In the instant matter, the alleged promise to remain married could not be considered valuable consideration inasmuch as it has already been ruled by the Court of Common Pleas of Delaware County and by the Superior Court of Pennsylvania that Plaintiff only, not Defendant, had a cause of action for divorce.
Neither does Defendant’s testimony show receipt of an interest in Plaintiff’s trust by way of a gift. To establish a gift inter vivos, two essential elements must be met: “an intention to make the donation then and there, and an actual constructive delivery at the same time of an [sic] nature sufficient to divest the giver of dominion and invest the recipient therewith.” ... In the instant matter, however, Plaintiff had no ability to alienate the spendthrift trust, never delivered the trust funds to Defendant and never executed or delivered to Defendant any trust documents.

This result is dictated by the decision of our Supreme Court in Hengst v. Hengst, supra. The trusts were created for James Winpenny. During the marriage there is no evidence that the trusts were treated during the marriage as property of both the husband and wife. Thus, no tenancy by the entireties was created.

There was created also no tenancy by the entireties as the result of a gift. In Yohe v. Yohe, 466 Pa. 405, 409, 410-411, 353 A.2d 417, 420 (1976), our Supreme Court held that where “a husband purchases real or personal property with his own funds and .. . transferred such property to his wife without consideration, there is a factual presumption that a gift was intended. . . . ” quoting from Lapayowker v. Lincoln College Preparatory School, 386 Pa. 167, 171, 125 A.2d 451, 454 (1956). Here, the trust was obtained for the husband, he does not have the right to alienate the trust and no evidence appears on the record indicating the existence of an intention to transfer such property to his wife.

Carol Winpenny claims that the earning capacity of her husband became entireties property and should therefore be partitioned. She states that she and her family helped in substantial part for her husband to obtain a college degree and that as a result of that degree his earning capacity was increased. Furthermore, he asserts his earning capacity was greatly enhanced by her performance of domestic responsibilities in the household. We need not discuss the law in this regard. We are satisfied that the contribution made by Carol Winpenny to her husband’s education was not sufficient to entitle her to any of her husband’s future earnings via a partition order. Olivieri v. Olivieri, supra. Therefore, we make no determination herein concerning the merits of Carol Winpenny’s argument that James Winpenny’s earning capacity became entireties property which is subject to partition. See Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975); Krauskopf, 28 Kan.L.Rev. 379 (1980). Thus, we cannot hold, as Ms. Winpenny argues we should, that she should have received an accounting for her husband’s earnings.

Finally, we are unable to find any facts in the record to support Carol Winpenny’s claim of a right to partition of James Winpenny’s pension or social security. There is also no evidence to support her contention regarding the existence of hidden assets. Accordingly, Carol Winpenny’s asserted interests in this property finds no support in the record. We will not disturb the trial court’s decision under these circumstances. Olivieri v. Olivieri, supra. No accounting shall be ordered.

The order of the trial court is affirmed and the case is remanded for further proceedings under Pa.R.C.P. 1551 et seq.

      . The decree and order of the trial court which ordered partition of the real property and denied partition of all other properties described in Carol Winpenny’s counterclaim and amended counterclaim was filed on February 13, 1979. Exceptions to that order were filed on February 23, 1979. On April 22, 1979, Pa.R.A.P. 311(a)(6), (Pa.Bull. 3637) became effective, providing that an appeal as of right existed from an interlocutory order directing partition. The trial court dismissed the exceptions filed by Carol Winpenny in its order of May 16, 1979. The trial court correctly described this order as interlocutory. Notice of appeal to the Superior Court was not filed until June 13, 1979. The exceptions and notice of appeal were properly filed according to the time constraints found in Pa.R.C.P. 1557. We hold that this appeal from an interlocutory order is one of right and therefore we address the merits of the case herein.


text:
    442 A.2d 783
    COMMONWEALTH of Pennsylvania v. Leonard SIMS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed March 5, 1982.

      Anthony J. Seneca, Washington, for appellant.
    Stephen L. White, Assistant District Attorney, Waynesburg, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   PER CURIAM:

Leonard Sims, Jr., appellant herein, was charged with a violation of the Pennsylvania Vehicle Code relating to maximum gross weight of vehicles, 75 Pa.C.S. § 4941(a).

The case originally was heard October 13, 1978 before District Justice Ruth Hughes in Waynesburg, Greene County and, following the taking of an appeal, was heard de novo before the Honorable Glenn Toothman, President Judge of Greene County March 23, 1979. On January 17, 1980, President Judge Toothman filed a two page opinion and an order in which he found appellant guilty and imposed a sentence of a fine and costs.

On February 12, 1980, Leonard Sims, Jr. filed a notice of appeal to the Superior Court of Pennsylvania “from an Opinion and Order of the Court of Common Pleas of Greene County, dated January 16, 1980, finding the Defendant guilty of the Summary Offense of violating Section 4941(a) of the Vehicle Code.”

The state of this record is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.P. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, 292 Pa.Superior Ct. 224, 437 A.2d 16; Commonwealth v. Williams, 290 Pa.Superior Ct. 158, 434 A.2d 179 (1981). Cf. cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Walton, 289 Pa. Superior Ct. 411, 433 A.2d 517 (1981); Commonwealth v. Koziel, 289 Pa.Superior Ct. 22, 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Superior Ct. 92, 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the de novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence, in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123. The proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions. Appellant Picker, however, should not be faulted for his failure to do so because of the confusion which existed before Koch and the recent amendments to the Comments to Rules 67 and 1123 of the Rules of Criminal Procedure. See Commonwealth v. Johnston, supra, 292 Pa.Superior Ct. at 227 n.3, 437 A.2d 16 n.3.
For all of the foregoing reasons, the judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc within 10 days of the filing of this order. Jurisdiction is relinquished.

Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981).

For all of the foregoing reasons, the judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc within 10 days of the filing of this order. Jurisdiction is relinquished.

      . The issues raised in appellant’s brief are as follows:
      STATEMENT OF QUESTIONS INVOLVED
      I. Whether the lower court erred in failing to dismiss the charges; in that the citation was defective.
      a) Whether the citation containing a substantive defect as to the date of the incident, should have been dismissed.
      b) Whether the citation, as allegedly amended, should have been dismissed for failure to comply with the Pennsylvania Rules of Criminal Procedure for summary offenses.
      II. Whether the lower court erred in admitting evidence of the weight of the vehicle against the defendant.
      a) Whether probable cause existed to stop the defendant and order his truck to be weighed?
      b) Whether the procedure followed by the Pennsylvania State Police in re-loading the vehicle was proper?
      Brief for Appellant at 3.

      . Although appellant’s notice of appeal indicates that this is an appeal from the lower court’s order, we will consider it to be an appeal from judgment of sentence.


text:
    442 A.2d 785
    COMMONWEALTH of Pennsylvania v. Barry Edward BESLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1981.
    Filed March 5, 1982.
    William F. Scarpitti, Jr., Erie, for appellant.
    Thomas P. Agresti, Assistant District Attorney, Erie, for Commonwealth, appellee.

      Before WIEAND, JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

Appellant was convicted of aggravated assault and sentenced to one and one half to four years imprisonment. No direct appeal was filed. On August 18, 1980, Appellant filed a Post-Conviction Hearing Act Petition alleging ineffective assistance of trial counsel. On October 28, 1980, the lower court permitted Appellant’s appeal nunc pro tunc to this court.

Where the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted. Where, on the other hand, it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken.

Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976) (footnotes omitted).

The record in the instant case is insufficient to resolve Appellant’s contentions of ineffective assistance. Therefore, judgment of sentence is vacated and the case remanded to the trial court to conduct an evidentiary hearing on all claims of ineffective assistance. Should the trial court conclude that counsel was ineffective, then a new trial shall be granted. If it is determined that counsel was not ineffective, judgment of sentence shall be reinstated and appellate rights preserved. See Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975).

Jurisdiction is not to be retained by this court.

      . 18 Pa.C.S.A. § 2702.


author: CERCONE, President Judge:

text:
    442 A.2d 786
    COMMONWEALTH of Pennsylvania, v. Bruce Anthony CLARK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed March 12, 1982.

      Arthur J. King, Assistant Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and CAVANAUGH, JJ.
   CERCONE, President Judge:

Appellant entered an open plea of guilty to the charges of robbery and conspiracy to commit robbery and was sentenced to five to fifteen years. A petition to reconsider the sentence was filed and denied. Appellant did not file a motion challenging the validity of the guilty plea pursuant to Rule 321 of the Pennsylvania Rules of Criminal Procedure nor was a direct appeal taken in the case. Subsequently, however, appellant filed a petition under the Post Conviction Hearing Act (hereinafter PCHA) challenging his convictions. Within this petition, appellant faulted trial counsel for failing to file a suppression motion and for failing to take a direct appeal. Following an evidentiary hearing, the PCHA court determined that the claim asserting the denial of appellate rights was meritorious and granted appellant the right to file an appeal nunc pro tunc. The PCHA court also reviewed and denied the suppression issue raised in the petition. Thereafter, appellant filed a nunc pro tunc appeal from the Judgment of Sentence and a second appeal from the order of the PCHA court insofar as it had denied relief on the suppression issue. These two appeals were then consolidated by our Court for briefing and argument.

Procedurally, it was incorrect for appellant to take an appeal from the order of the PCHA court denying relief. As' stated in Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133:

[OJnce the PCHA court decides the accuracy of the deprivation of appellate rights claim and grants the nunc pro tunc appeal, its review of any remaining claims would not be considered final review of the issues, but would only be seen as serving the evidentiary purpose of completing the record. As such, the evidentiary review would not result in a separate appealable order, (emphasis supplied).

See also Commonwealth v. May, 296 Pa.Super. 435, 442 A.2d 1129. This appeal must, therefore, be quashed.

Second, we must reverse the order of the PCHA court granting the right to file an appeal nunc pro tunc. Instead, the case is to be remanded to the trial court to permit appellant to file a motion pursuant to Rule 321 of the Pennsylvania Rules of Criminal Procedure, challenging the validity of the guilty plea. Because this case involved a guilty plea situation, appellant has waived his right to challenge anything but the validity of his sentence and the voluntariness of his plea. See Commonwealth v. Montgomery, 485 Pa. 110, 401 A.2d 318 (1979); Commonwealth v. Arndt, 269 Pa.Superior Ct. 578, 410 A.2d 852 (1979). In order to preserve these two issues for appellate review, it was necessary that appellant challenge his plea by filing a Rule 321 motion. See Commonwealth v. Ford, 484 Pa. 163, 398 A.2d 995 (1979); Commonwealth v. Rosmon, 477 Pa. 540, 384 A.2d 1221 (1978); Commonwealth v. Cooper, 276 Pa.Superior Ct. 86, 419 A.2d 107 (1980). Rule 321 parallels the procedure outlined under Rule 1123, which deals with the necessity for filing post-verdict motions following trials. Under Rule 321 the trial court is to have the first opportunity to review challenges either to the validity of the guilty plea or to the denial of a motion to withdraw the guilty plea. Such review not only permits the trial court to correct any errors alleged, but also provides a complete record should the case proceed to the appellate court. Where the PCHA court finds a deprivation of appellate rights claim to be meritorious, and there has been no post verdict motions filed, we have said that the proper remedy is to permit the filing of such motions nunc pro tunc. Commonwealth v. Miranda, supra, See also Commonwealth v. Morris, 486 Pa. 391, 406 A.2d 337 (1979); Commonwealth v. Stackpole, 275 Pa.Superior Ct. 255, 418 A.2d 709 (1980). Correspondingly, in a guilty plea situation where the deprivation of appellate rights claim has been found meritorious and no Rule 321 motion has been filed, then the proper remedy is to permit the filing of this motion nunc pro tunc. Herein, by granting the nunc pro tunc appeal, the PCHA court precipitously placed this case on the appellate level. Because appellant failed to file a Rule 321 motion below, we are without the benefit of a complete record on appeal.

Order of lower court granting appellant the right to file an appeal nunc pro tunc is reversed. We remand this case to the trial court for the filing of a motion pursuant to Rule 321. Appellant is to be permitted to file such a motion within thirty (30) days from the date of the entry of this order. In the event that the court below dismisses such motion, appellant shall be permitted to file an appeal from the judgment of sentence, as though timely filed, in the appropriate court.

Appeal from the order of the PCHA court denying relief at No. 2198 October Term, 1979, is quashed.

      . Crimes, Code, 18 Pa.C.S. § 3701 (1973).

      . Crimes Code, 18 Pa.C.S. § 903 (1973).

      . Appellant is not prejudiced in any way by our quashing of this appeal from the denial of PCHA relief. Appellant has also filed in this case a nunc pro tunc appeal, and our disposition of that appeal ensures that appellant will enjoy his full appellate rights with regard to an appeal following a guilty plea situation.

      . This result is consistent with the result reached in cases where no post-verdict motions have been filed, and the PCHA court determines that petitioner has been denied his appellate rights. When faced with this procedural background, the PCHA court is to permit the filing of post-verdict motions nunc pro tunc rather than grant the petitioner the right to file an appeal nunc pro tunc, for absent post-verdict motions, there are no issues to pursue on appeal. See Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133.


author: HESTER, Judge:

text:
    442 A.2d 788
    KELSEY-BARBER CORPORATION v. Jeffrey T. CAMPBELL, Geraldine Campbell, Charles P. Curcio, Philomena M. Curcio. Appeal of Philomena M. CURCIO.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1981.
    Filed March 12, 1982.

      Maurino J. Rossanese, Norristown, for appellant.
    Marc S. Weisberg, Philadelphia, for appellee.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   HESTER, Judge:

Presently before the court is appellant’s appeal from the order of the lower court dated April 18, 1980, dismissing her Petition to Set Aside Sheriff’s Sale.

On December 17, 1975, the residence owned by appellant Philomena M. Curdo known as 562 Gibson Avenue, Abington Township, Pennsylvania was sold at Sheriff’s Sale to Raymond Biddle for the purchase price of $2,500.00. Said sale was also subject to a then existing mortgage in the amount of $9,500.00.

On May 14, 1976, appellant filed a Petition to Set Aside the Sheriff’s Sale, alleging that she never received notice of the Sheriff’s Sale until her mortgagee bank notified her of same approximately four (4) months later, when it refused to accept her monthly mortgage payment. Following a deposition, the court ordered the sale set aside from which the Sheriff’s vendee, the appellee herein, appealed. The Superior Court remanded the case to the lower court on December 28,1977 for further proceedings. See Kelsey-Barber Corporation v. Campbell, et al., 252 Pa.Super. 321, 381 A.2d 938 (1977).

Pursuant to the Superior Court’s remand, an evidentiary hearing was held on February 1, 1980, at which time testimony was taken. On April 18, 1980, the lower court dismissed appellant’s Petition to Set Aside the Sheriff’s Sale. It is from this Order that the instant appeal has been taken. We affirm the order of the lower court.

The issue presently before us is whether the lower court committed a manifest abuse of discretion or an error of law when it entered its April 18, 1980 Order dismissing appellant’s Petition to Set Aside Sheriff’s Sale. We believe that the record supports the action of the lower court.

The threshold issue before us is whether the lower court properly ruled that the notification procedures employed by the appellee in apprising the appellant of the pendency of the Sheriff’s Sale were constitutionally adequate so as not to deny the appellant due process of law. Were the notification procedures employed by the appellee as the record demonstrates, sufficient to apprise the interested parties, specifically the appellant herein, of the Sheriff’s Sale? We concur with the lower court that they were sufficient.

The chronology of certain events complicates the resolution of the present appeal. The Writ of Execution issued on September 11, 1975, subsequent to Luskey v. Steffron, Inc., 461 Pa. 305, 336 A.2d 298 (1975) (Luskey No. 1), which held that former Pennsylvania Rule of Civil Procedure No. 3129 contained a constitutionally inadequate notice procedure and, denied the judgment debtor due process of law. On reargument, our Supreme Court in Luskey v. Steffron, Inc., 469 Pa. 377, 366 A.2d 223 (1976) (Luskey No. 2) held that Luskey No. 1 is applicable to all Sheriff’s Sales initiated after April 17, 1975.

Thereafter, Rule 3129, as we know it today, was amended; the effective date of amended 3129 being November 6, 1975. See Luskey No. 2. Hence, the Writ of Execution in this case which issued on September 11, 1975 occurred during the hiatus between April 17, 1975, the effective date of Luskey No. 1 which declared former Pa.R.C.P. 3129 constitutionally infirm and the effective date of the amended Rule 3129 (November 6, 1975). Therefore, since there was no applicable rule then in effect, in order to evaluate the sufficiency of the judgment creditor’s notice of the impending Sheriff’s Sale in the instant case, we must evaluate the sufficiency of the Notice actually given without the guidance of a statewide rule of procedure. See Kelsey-Barber Corporation v. Campbell, et al., (supra) (1977).

This court in its Kelsey-Barber remand opinion at 943 (supra) directed:

Because we believe the lower court had an inadequate basis for reaching its conclusion, we remand this case for a clarification and completion of the record. Specifically, the lower court should make findings as to the form and date of the notice sent and the information contained therein. Further, the introduction of confirmatory evidence in the form of return receipts and copies of written notices, publications, and/or handbills, if available, should be entered into the record.

Pursuant to said remand order, the lower court convened an evidentiary hearing for the purpose of determining whether there were sufficient measures taken by the appellee herein to satisfy the due process standards of notification in compliance with the United States Supreme Court’s directives found in Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306 at 314, 70 S.Ct. 652 at 657, 94 L.Ed. 865 (1950) to the effect that a fundamental requirement of due process is “notice reasonably calculated under all of the circumstances to apprise interested parties of the pendency of the action.”

We agree with the lower court that the record in the instant case clearly demonstrates that there were more than sufficient measures taken by appellee to advise the appellant of the pendency of the Sheriff’s Sale so as to satisfy the due process standards of notification or . . . “notice reasonably calculated under all of the circumstances to apprise interested parties of the pendency of the action.”

The lower court’s Findings of Fact are supported by the credible and believable evidence of record. On the issue of notification, the lower court found as a matter of fact that: (1) On September 13,1975, the creditor’s attorney sent to the appellant Notice of the Sheriff’s Sale, by certified mail, return receipt requested, to her home address of 562 Gibson Avenue. The Notice contained the requisite information, specifically that on September 11, 1975, a Writ of Execution was filed with the Sheriff directing him to sell appellant’s property and that the sale was scheduled for November 26, 1975, at 1:00 p. m., in the Courthouse in Norristown, Montgomery County, Pennsylvania. The receipt acknowledgement (the green return card) went unclaimed by the appellant and was therefore returned unsigned to the office of the creditor’s attorney; (2) Notice of the sale of appellant’s real estate was also given by posting the premises by Sheriff’s handbills. This posting was done prior to the scheduled sale in November of 1975; (3) In addition thereto, Notice of the sale was advertised in the Montgomery County Law Reporter for three (3) consecutive weeks before the sale; (4) Further, Notice of the sale was published in “The Breeze”, a newspaper of general circulation in Montgomery County on November 6, 13 and 20, 1975. Said Notice contained all relevant facts; (5) On November 26, 1975, the day of the sale, the Sheriff’s Office publicly announced to the bidders assembled at the time and place fixed for the sale that the sale was postponed until December 17, 1975; and (6) On December 12, 1975, the creditor’s attorney mailed a letter by regular mail to appellant at her residence informing her of the voluntary November postponement and of the fact that a new sale date had been scheduled for December 17,1975 at 1:00 p. m. in the Norristown Courthouse. That letter which was sent by regular mail was never returned to its sender.

We conclude by the preponderance of the credible and believable evidence adduced at the evidentiary hearing which was convened by the lower court in accordance with Superior Court’s Kelsey-Barber Remand Order that the diverse forms of notification procedures set forth above were reasonably calculated under all attendant circumstances to apprise the appellant of the pendency of the Sheriff’s Sale. The cumulative effect of all notification procedures employed herein were constitutionally adequate and did not deny appellant due process of law. The fundamental requirement of due process of law set forth in Mullane (supra) has been completely satisfied in the instant case.

Finally, the adequacy or the inadequacy of the sale price was not presently an issue before this court. Pursuant to the Kelsey-Barber Remand Order, the lower court properly limited its evidentiary hearing to the issue of the notification procedures.

Order affirmed.

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

      . Originally there was ambiguity concerning appellant’s address. Originally said property was designated as 920 Gibson Avenue; however, at some point in time, the address was changed from 920 to 562 Gibson Avenue. In 1968, a Deed was recorded from the appellant and her husband to appellant alone, thus explaining why appellant Philomena M. Curdo is going this appeal alone.

      . On February 2, 1981, we dismissed appellee’s Motion to Quash the instant appeal for appellant’s failure to post bond.


author: HESTER, Judge: SPAETH, Judge,

text:
    442 A.2d 791
    COMMONWEALTH ex rel. Gaynelle MONTGOMERY, now known as Gaynelle Duda, Appellant, v. Ray A. MONTGOMERY.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1981.
    Filed March 12, 1982.

      Sanford S. Finder, Washington, for appellant.
    Janet Moschetta, Washington, for appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   HESTER, Judge:

Presently before the court is appellant’s appeal from the order of the lower court dated November 12, 1980, wherein the lower court granted general custody of the parties’ three minor sons to appellee father.

The record herein consists in excess of 500 pages of testimony clearly evidencing a situation which we are asked to resolve in numerous cases; that is, to decide which of two loving, caring parents should be awarded general custody of the parties’ minor children.

The lower court convened six separate hearings: October 11, 1979, November 27, 1979, February 13, 1980, March 18, 1980, August 13, 1980 and September 29, 1980, following which the court issued a 25-page Opinion and Order dated November 12, 1980 granting custody of the three minor children to their natural father, the appellee herein. It is from this Order that the instant appeal has been taken.

We affirm.

It is undisputed that our paramount concern in a child custody proceeding is to determine what is in the best interest and welfare of the child involved considering his or her spiritual, emotional, physical and intellectual well-being. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979); Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979); Wenger v. Wenger, 267 Pa.Super. 134, 406 A.2d 555 (1979); In re Jennifer Lynn Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981). In a contest between the child’s parents, both mother and father bear the affirmative burden of proving that an award of custody to them would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977).

As this court aptly stated in Lewis v. Lewis, supra, at 783-4:

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions of the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra, Scarlett v. Scarlett, supra. In conducting this review the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra.

Additionally, and assuming that the lower court has fully discharged its responsibilities to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself, and then and only then, file a comprehensive opinion containing its findings of fact and conclusions of law, we thereafter adopt the reasoning of Judge Price contained in Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa.Super. 444, 448, 427 A.2d 1370, 1372 (1981), that:

“. . . since the trial judge is in the best position to evaluate the attitudes, sincerity, credibility, and demeanor of the witnesses involved, his ‘determination of custody should be accorded great weight.’ Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972) (citation omitted). See, e.g., Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1973); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Super. 114, 117, 245 A.2d 663, 665 (1968). Thus, although we are not duty bound to accept the trial court’s determination, we will defer to it, absent an abuse of discretion, if the judge has thoroughly investigated the facts, that investigation is documented by a complete record, and a comprehensive analysis of the judge’s findings is contained in a written opinion. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. at 597-98, 296 A.2d at 841. See Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977). ...”

We have engaged in a comprehensive review of this voluminous record and have made our own independent judgment based upon our careful review of the evidence. In discharging this duty, we are satisfied that all relevant facts and circumstances have been fully explored and developed by the parties and where necessary, by the lower court.

With these responsibilities as our guideposts, we have concluded that the lower court has made a penetrating and comprehensive inquiry in order to develop a complete record. In support thereof, the lower court has filed a detailed Opinion consisting of 25 pages, replete with numerous Findings of Fact, a detailed review of the applicable law, and the reasoning behind its Conclusions.

The record discloses that the parties were married on September 1, 1961, and that three sons were born of the marriage; Mark, on December 16, 1967; Douglas, on July 9, 1971; and Greg, on April 10, 1973. At the time of the first hearing, the appellant was 36 years old and the appellee, 41. In 1966, the parties built a three-bedroom home at 41 Willow Drive, in Washington, Pennsylvania, where they resided together with their three minor children until their first separation in August of 1978. At that time, the appellant removed himself and the boys and stayed nearby with his parents for approximately one week. At the end of that one week separation, he returned the boys to their mother at the Willow Drive property. For approximately the next five to eight weeks (depending upon whose recollection one accepts), the three boys resided at the Willow Drive property with the appellant while the appellee stayed at his parents’ home. However, during this period the appellee had a three-week vacation from work and therefor was able to spend the majority of his time during the day with his sons while sleeping at his parents’ home.

On September 13, 1978, the appellee moved back into the marital residence after allegedly finding appellant’s present husband (Alex Duda) in the living room at four o’clock that same morning. The parties resided at Willow Drive (although not living as husband and wife) until April of 1979, at which time the appellant moved to a two-bedroom townhouse like structure known as Carriage Hill in McMurray, Pennsylvania. She moved by herself; the three boys stayed in the Willow Drive home with their father, the appellee.

The parties were divorced by Decree dated April 25, 1979. Previous thereto, the appellant wrote a letter (Exhibit 1-A) dated February 26, 1979, which provided: “Ray, I promise to give you custody of the boys if you don’t contest this divorce. (Signed) Gay” (R. 78a).

The appellant married Alex Duda on June 16, 1979. The appellee married Mary Montgomery on July 18, 1979. Following appellee’s remarriage, Mary Montgomery and her two minor sons by a previous marriage moved into the Willow Drive residence with the appellee and his three sons.

From that point in time until the issuance of a Visitation Order, dated October 11, 1979, the appellant did not see her three sons on a regular basis, although she did speak to them often by telephone. In July of 1979, the appellant filed the instant Petition for Writ of Habeas Corpus. As previously noted, there were six hearings pursuant thereto, the first one being held on October 11, 1979. Following the hearing on October 11, 1979, the court issued the visitation order referred to above.

We have carefully reviewed the voluminous record before us and concur with the ultimate finding of the lower court that, on balance, the best interests of the parties’ three minor sons will best be served if they remain in the general custody of their father, the appellee herein.

We agree with the lower court that both parents are fit and proper persons to care for, and have general custody of, their three boys. Both appellant mother and appellee father have demonstrated their love and present commitment to the welfare of their children; for example, see appellant’s sincere statements of her love and commitment contained at R. 42-43a, 45a and 58a; similarly, see appellee’s statement at R. 236a.

Additionally, the record supports the lower court’s findings that there were numerous factors which did not favor an award in favor of either party for the reason that those factors were substantially equal. They included:

(a) The preferences of the boys: In this regard, each of the three boys had two in camera interviews and at no time did any of them express a strong preference;

(b) The residences of both parties : Based upon the court ordered Children and Youth Social Agency caseworker testimony;

(c) The financial status of each family (appellant and Alex Duda and appellee and Mary Montgomery) was properly determined to be comparable;

(d) A positive attitude by the parties’ respective new spouses: Both Alex Duda and Mary Montgomery demonstrated a very positive willingness to care for the three boys in the event that general custody was awarded to their spouse;

(e) Involvement with the boys’ activities: Both nuclear families spend as much time as is available with the children and are involved with the children’s extra-curricular activities such as basketball, swimming, baseball, etc.;

(f) Religious influence: Prior to the onset of domestic problems in 1978-79, the appellant repeatedly took the boys to church; thereafter while in the custody of the appellee and Mary Montgomery, all five boys (his three, her two) attended church services and church-related activities;

(g) Other witnesses: Each of the parties had numerous witnesses testify in their behalf. Notwithstanding their obvious biases, each of the witnesses spoke with a sincerity and an apparent forthrightness.

In sum, we concur with the lower court that both parties ■and their present spouses are fit and proper to have custody of the boys, and both sets of spouses have presently created an equally positive and favorable environment to raise the boys.

We feel required at this time to comment on the letter which appellant wrote during the parties’ divorce litigation in February of 1979 which promised custody of the boys to the appellee if he would not contest the divorce. We feel that this letter in and of itself has no probative value and thus has no bearing on the ultimate decision of what is in the best interest and welfare of the children at this time. However, we are compelled to note that many months lapsed between the February letter and appellant’s action (actually inaction) to obtain custody of her children or, at least, to have them on extended overnight visits. We feel that this lapse of time is significant.

We are also most impressed by the commitment which the appellee and his present wife, Mary Montgomery, have made towards the individual maturation of Mark, Douglas and Greg—emotionally, scholastically, morally and socially. In addition, it appears from the record that Mary Montgomery’s two sons by her prior marriage, Russell and Christopher, get along well and form a family unit with Mark, Douglas and Greg. “They get along basically fairly well. They fight like any brothers do. There is no more fighting between the two sets of brothers than there is between all of them.” (R. 246a).

“Q. What are your feelings about Ray’s three sons?
A. I love them very much ....
A. I love them and I think that they have returned that love.” (R. 259a).

Mary Montgomery also convinced the court that the social life which she and Ray enjoy is primarily centered around the boys’ activities.

Previously we have touched upon those factors which we feel have been “too close to call” in favoring either of the parties. However, there are certain factors which convince us that the best interests of the three minor boys will best be served if their general custody remains with their father. They include:

(a) That the boys have, in fact, resided continuously with their father in a stable and loving relationship during a very stressful period;

(b) Appellee’s total commitment to his sons during that stressful and trying period (1978-79), whereby he clearly placed the welfare and well-being of his three sons far above his own; whereas the record does not demonstrate the same degree of commitment on the part of the appellant; and finally,

(c) At the present, the boys’ academic, emotional, moral and physical welfare is better served and more highly promoted by an award in favor of the appellee.

In this very close and difficult case for all parties concerned, we, after carefully reviewing the entire record, and after discharging our responsibilities as previously detailed, concur with the lower court that the best interests of the parties’ three minor children will better be served by awarding general custody of them to their father, the appellee herein.

Order affirmed.

SPAETH, J., files a concurring opinion.

SPAETH, Judge,

concurring:

I concur in the majority’s conclusion that the order of the lower court should be affirmed. I am unable to join the majority’s opinion because of its announced premise that whenever the lower court has thoroughly investigated the facts and filed a comprehensive opinion, we “will defer to it[s] [determination], absent an abuse of discretion.” At 793-794. This is an inaccurate statement, and is contrary to settled authority that we are bound to follow.

It is of course true that we must not nullify the lower court’s fact-finding function. Thus we must defer to its resolution of issues of credibility. But from the facts as found by the lower court we must draw our own inferences, and then decide for ourselves what is in the best interests of the children. As stated by our Supreme Court in Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 296, 426 A.2d 555, 557 (1981):

Our scope of review in a custody matter is of the broadest type, and we are not bound by deductions or inferences made by the trial court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977). We must exercise an independent judgment based on the evidence and make such order on the merits as right and justice dictate. Adoption of Farabelli, 460 Pa. 423, 433, 333 A.2d 846, 851 (1975); Snellgrose Adoption Case, 432 Pa. 158, 163, 247 A.2d 596, 599 (1968).

Accord, Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). And see Commonwealth ex rel. Berman v. Berman, 289 Pa.Superior Ct. 91, 432 A.2d 1066 (1981).

Having undertaken such a review of the record here, I have concluded that the order of the lower court should be affirmed. The decisive factor for me is that since the parties’ separation, the children have lived with their father. “There can be no question that stability is important to a child’s welfare.” In re Custody of Hernandez, 249 Pa.Superior Ct. 274, 296, 376 A.2d 648, 660 (1977). Stability is not all important, id.; and see Commonwealth ex rel. Grimes v. Yack, 289 Pa.Superior Ct. 495, 433 A.2d 1363 (1981). But here, where so many other factors are equal, I find it decisive.

      . “ORDER
      AND NOW, this 12th day of November, 1980, it is ORDERED, ADJUDGED AND DECREED that custody of the three minor children shall and is hereby granted in favor of their natural father, Ray A. Montgomery, with reasonable visitation rights in the natural mother as heretofore established. The petition of the natural mother for custody is hereby dismissed.
      Thomas J. Terputac, Judge’

      . Following the March 18, 1980 hearing, the record was closed. Before the lower court issued its order, however, appellant in July of 1980, petitioned the court alleging a change of circumstances sufficient to justify the reopening of the record. By Order dated July 28, 1980, the petition was granted and the lower court interviewed the three minor children in camera on August 13, 1980. Thereafter, by still another order dated August 28, 1980, the court pursuant to another petition, reopened the record yet another time and took additional testimony on September 29, 1980.