author: WICKERSHAM, Judge: CIRILLO, President Judge,

text:
    505 A.2d 331
    COMMONWEALTH of Pennsylvania v. Nevin George SWEGER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1985.
    Filed Feb. 26, 1986.

      Frederick I. Huganir, Norristown, for appellant.
    Kevin A. Hess, Assistant District Attorney, Carlisle, for Com., appellee.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   WICKERSHAM, Judge:

Nevin George Sweger, Jr., facing a life sentence following his conviction for the murder of his wife Nancy, filed this direct appeal from the judgment of sentence of the Court of Common Pleas of Cumberland County. We affirm.

The facts, viewed in the light most favorable to the Commonwealth as verdict-winner, may be summarized as follows: Nevin and Nancy Sweger were married in July 1975. A son, Nevin W. Sweger, nicknamed “Bubb,” was born in August 1980. The Swegers’ marriage was turbulent, and the parties separated and reconciled several times. Appellant had a history of physically abusing his wife, and a severe beating on October 18, 1983 culminated in Nancy leaving the marital home with Bubb and filing an action in divorce. Appellant was very upset by this separation and a few days prior to his wife’s death, he told a friend that he wanted his wife and son back, but that if “he couldn’t have Nancy no one would,” and that “he ought to ... go up and shoot her.” N.T. at 106. Numerous witnesses testified that Nancy was terrified of appellant, because of the beatings which she had suffered and repeated threats which he had made to her.

On the morning of December 31, 1983, appellant began drinking. He met some friends, went to a bar that afternoon and continued drinking. He went to a friend’s house and left there around 3:15 p.m. Sometime between 3:15 p.m. and 4:10 p.m., he arrived at his mother-in-law’s residence in West Pennsboro Township, where Nancy and Bubb were then living. He was armed with a .12 gauge shotgun, which he used to shoot out the back window of Nancy’s parked car and then to shoot open the locked door. He found Nancy in the bedroom, on the bed, holding Bubb. No one else was home. Nancy pleaded with him not to hurt Bubb, and he told her to put the child down. After she did so, he shot her four times at close range. Bubb was not shot, but suffered a head wound requiring stitches.

Appellant called his mother at 4:10 p.m., told her he had shot Nancy, and asked her to come and get Bubb. Upon arriving at the scene, appellant’s mother called an ambulance. Shortly after the ambulance arrived, appellant shot himself in the head. He was taken by ambulance to the Carlisle Hospital. The following day, he was interviewed by a police officer in the intensive care unit. At that time, and in the presence of his mother, he admitted going to the victim’s home, shooting open the door, and “blasting” his wife. His subsequent statements were later suppressed by the court below before trial.

Appellant was charged with murder. His motion to suppress the statements made on January 1, 1984 at the hospital was granted in part, as noted above, on May 10, 1984. A jury trial before the Honorable Edgar B. Bayley on May 14-16, 1984 resulted in appellant’s conviction of murder in the first degree. Post-trial motions were timely filed and denied by the court en banc on September 5, 1984. On October 11, 1984, appellant was given a mandatory sentence of life imprisonment. This appeal timely followed.

Appellant raises the following issues before us:

A. Was the charge to the jury an incorrect and confusing statement of law concerning degrees of homicide?
B. Did the court fail to properly instruct the jury as to the elements and burden of proof for the intoxication defense?
C. Did the court err by allowing hearsay testimony evidence as to the state of the mind of the deceased?
D. Did the court err by admitting into evidence statements obtained from the defendant without benefit of counsel under questioning by police officers?
E. Did the court err by failing to arrest judgment on the basis that there was insufficient evidence to support the verdict beyond a reasonable doubt?

Brief for Appellant at 3.

Appellant argues that the evidence was insufficient to support a verdict of guilty of first degree murder beyond a reasonable doubt. “When sufficiency of the evidence claims are raised, an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Hart, 348 Pa.Super. 117, 122, 501 A.2d 675, 677, (1985), quoting Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983). After thoroughly examining the evidence presented, and taking from it all reasonable inferences favorable to the Commonwealth and resolving all conflicting evidence in its favor, Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985), this argument fails.

A person is guilty of criminal homicide if he intentionally, knowingly, recklessly, or negligently causes the death of another. 18 Pa.C.S. § 2501(a). A criminal homicide becomes a murder of the first degree when it is committed by an intentional killing. 18 Pa.C.S. § 2502(a); Commonwealth v. Pacell, 345 Pa.Super. 203, 497 A.2d 1375 (1985). We find the evidence presented at trial to be more than sufficient to sustain the jury’s verdict of murder of the first degree. It is well-settled that the use of a gun on a vital part of the deceased’s body raises the presumption that the defendant shot with the intent to kill the deceased. Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970). It is equally well-settled that the period of premeditation necessary to form the specific intent to kill may be very brief. Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981). The evidence herein proved beyond a reasonable doubt that appellant intentionally murdered his wife. As fact finders, the jury had the right to not believe appellant’s version of the murder, as presented by his defense. Commonwealth v. Pacell, supra. See also Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144 (1985); Commonwealth v. Vedam, 349 Pa.Super. 270, 502 A.2d 1383 (1985). Because the evidence was sufficient to support a conviction of first degree murder, the trial court did not err by failing to grant appellant’s motion in arrest of judgment.

Appellant’s argument that the trial court erred by admitting into evidence the statements obtained from appellant the day after the shooting, while he was hospitalized due to his suicide attempt, must also fail for the reasons expressed by the suppression court in its opinion dated May 10, 1984. A careful reading of the transcript of the suppression hearing shows that the suppression court’s findings of fact were well-supported by the evidence. The statements made before Trooper Brennan asked the question “why” were admissible because they were not in response to any police interrogation, but instead were voluntary “blurt-outs.” The statements made after the trooper asked “why” were correctly suppressed by the court as products of interrogation without benefit of counsel or waiver of that benefit. Appellant’s current allegation in his brief that Trooper Brennan coerced the first statements by threats against appellant’s son Bubb are simply unsupported by the record. See Finding of Fact 6, Lower ct. op., May 10,1984 at 2. Moreover, this allegation was not raised during the suppression hearing or at trial and so cannot be raised here on appeal. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978). Accord Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985).

Appellant’s remaining issues, which are thoroughly addressed by the lower court en banc in its opinion dated September 5, 1984, concern the charge given the jury by the trial court and the admission of certain hearsay evidence as to the state of mind of the victim. In reviewing jury instructions for reversible error, we must read the charge as a whole. Error cannot be predicated on isolated excerpts of the charge; it is the general effect of the charge that controls. Commonwealth v. Drexel, 349 Pa.Super. 335, 503 A.2d 27 (1986); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984). We have examined the entire charge, including those portions covering the degrees of murder, specific intent, malice, and intoxication, and conclude that the court’s instructions were proper and adequate. A trial court is not required to accept requested points for charge verbatim, but is free to use its own form of expression so long as the applicable law is clearly, adequately, and accurately explained to the jury. Commonwealth v. Frederick, 327 Pa.Super. 199, 475 A.2d 754 (1984). Such was the case herein.

Finally, questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of that discretion. Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985). Furthermore, not only must a clear abuse of discretion be shown but there must be a showing that actual prejudice has occurred. Id. After examining the transcript, we cannot say that the trial court clearly abused its discretion in its various rulings on the evidence concerning the deceased’s state of mind. Additionally, appellant has not convinced us that any actual prejudice occurred because of the court’s rulings. See Dean Witter Reynolds, Inc. v. Genteel, 346 Pa.Super. 336, 499 A.2d 637 (1985).

Finding no merit to appellant’s issues, we affirm the judgment of sentence.

CIRILLO, President Judge, files a concurring opinion.

CIRILLO, President Judge,

concurring:

I agree completely with the holding here today and the analysis employed in reaching that result. I write separately only to amplify a concern of the trial court regarding the proper components of a jury charge on first-degree murder.

The courts of this Commonwealth, this Court being no exception, have long used the words “malice” and “malicious” in describing the specific intent necessary to support a first-degree murder conviction. See e.g., Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144 (1985); Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007 (1980); Commonwealth v. Person, 345 Pa.Super. 341, 498 A.2d 432 (1985) (Opinion by Cirillo, J.)

To be convicted of murder in the third-degree, the defendant must have acted with malice. Commonwealth v. Dennis, 506 Pa. 460, 485 A.2d 1097 (1984). Herein lies a potential source of confusion for the courts, and more importantly, for jurors. Malice is a technical term, a mens rea in and of itself, as it relates to third-degree murder. At the same time, however, the word malice is used as an adjective in describing the specific intent which supports a conviction of murder in the first-degree.

As amended in 1974, 18 Pa.C.S. § 2502 dictates that first-degree murder is an intentional killing; malice is nowhere mentioned as a requisite element. Surely, this is because an intentional killing is necessarily malicious. In my view, when a jury is being instructed on the meaning of first-degree murder, use of the word “malice” should be avoided entirely, lest during deliberations the distinction between first and third-degree murder becomes blurred. The trial court should simply borrow from the statute itself, explaining that an intentional killing is that which is the result of poison, lying in wait, or any other willful, deliberate, premeditated act.

In the present case, there is no indication that the jury was actually confused on this point. Hence, I join in today’s holding.

      . During the period of the last separation, the victim also obtained a Protection from Abuse order against appellant.

      . Shots were also fired at various inanimate objects in the living room, such as a television and a lamp.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    505 A.2d 335
    COMMONWEALTH of Pennsylvania, Appellee, v. Dennis Carlisle BRYNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Feb. 26, 1986.

      Jay Y. Rubin, Indiana, for appellant.
    William J. Martin, District Attorney, Indiana, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

A jury found appellant guilty of burglary, theft by unlawful taking or disposition, and receiving stolen property. Appellant was sentenced to two (2) to four (4) years imprisonment, and this appeal was taken. Appellant raises three assignments of error for our consideration:

1. the trial court erred in prohibiting appellant from cross-examining the juvenile witness co-conspirator as to bias;
2. the trial court erred in prohibiting cross-examination of the juvenile witness co-conspirator concerning prior delinquency adjudications for crimes of crimen falsi to impeach his credibility; and,
3. the trial court erred in permitting the Commonwealth during its closing argument to incorrectly relate the time at which the juvenile witness gave his statement to the police.

In accordance with the provisions of 42 Pa.C.S. § 6354(b) , a juvenile record may not generally be used for impeachment purposes. Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973). However, the United States Supreme Court has since held that the state’s interest in protecting the confidentiality of a juvenile’s record must yield to the accused’s constitutional right to cross-examine an adverse witness to show bias. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In applying Davis to cases within the Commonwealth, our Supreme Court has indicated that something more than a mere assertion of possible bias is necessary before the defense can take advantage of the holding in Davis, i.e., sufficient facts must be presented which will permit a clear and direct inference of bias to be drawn. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Case, 322 Pa.Super. 24, 469 A.2d 162 (1983). Specifically, there must be a logical connection between the facts to be proven and the inference to be drawn from those facts. Commonwealth v. Case, Id., 322 Pa.Superior Ct. at 29, 469 A.2d at 165.

The record in the matter before us includes the following sidebar discussion immediately before defense counsel cross-examines the juvenile witness.

THE COURT: You want to make a motion?
MR. RUBIN [DEFENSE COUNSEL]: Your Honor, I would like to be able to ask the questions of the witness as to his juvenile record including everything that he has been involved with as to show bias in accordance with the Commonwealth versus Slaughter and there are several cases for which he was adjudicated a delinquent between the time of the event which we are concerned with today and his statements to the police and I believe that those statements, though [sic] adjudications should come in to show bias for getting a better deal for himself and against the defendant.

Trial Transcript, pp. 43-44.

A fair reading of the above excerpt from the trial transcript in conjunction with testimony received from various prosecution witnesses reveals that defense counsel was concerned about facts which might have inferred bias: (1) the time lapse between the commission of the offense and appellant being named as a perpetrator; and, (2) the juvenile’s detention and adjudication on unrelated charges prior to his statements to the police involving appellant in the instant matter. It thus becomes clear that a logical connection between the facts defense counsel wished to prove and an inference of bias existed herein. The trial court, therefore, erroneously denied appellant’s request to cross-examine the juvenile witness, the only prosecution witness to directly implicate appellant, about prior relevant adjudications as they might relate to an inference of bias. Davis v. Alaska, supra. Cf., Commonwealth v. Slaughter, supra; and, Commonwealth v. Case, supra.

We find appellant’s remaining claims to be meritless. As noted hereinbefore, a juvenile record may not be generally used for purposes of impeachment. 42 Pa.C.S. § 6354(b); Commonwealth v. Katchmer, supra. The legislative prohibition particularly applies to attempt to use adjudications for offenses of crimens falsi to generally impeach credibility. Commonwealth v. Dombrauskas, 274 Pa.Super. 452, 457, 418 A.2d 493, 496 (1980); Commonwealth v. Mines, 321 Pa.Super. 529, 532, 468 A.2d 1115, 1117 (1983), citing, United States v. Ong, 541 F.2d 331, 342 (2d Cir.1976).

Our review of the record as it relates to appellant’s final assignment of error evinces that the trial court did not abuse its discretion in permitting the challenged remark and overruling defense counsel’s objection to the same. See, Commonwealth v. Maxwell, 505 Pa. 152, 165-166, 477 A.2d 1309, 1316-1317 (1984).

Judgment of sentence is reversed, and the case is remanded for a new trial consistent with this opinion. Jurisdiction is relinquished.

      . 42 Pa.C.S. § 6354(b) provides:
      The disposition of a child under this chapter may not be used against him in any proceeding in any court other than at a subsequent juvenile hearing, whether before or after reaching majority, except:
      (1) in dispositional proceedings after conviction of a felony for purposes of a presentence investigation and report; or
      (2) if relevant, where he has put his reputation or character in issue in a civil matter.


author: OLSZEWSKI, Judge:

text:
    505 A.2d 337
    COMMONWEALTH of Pennsylvania, Appellee, v. Frank G. COSTAL, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Feb. 19, 1986.

      Harry O. Falls, New Castle, for appellant.
    Annette M. Hutchison, Assistant District Attorney, New Castle, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

This is a challenge to the judgment of sentence upon appellant’s conviction of two counts of first degree murder. Appellant alleges that the admission of photographs of the victims and irrelevant and prejudicial evidence concerning satanism deprived him of an objective and unbiased jury. Because we find that the evidence was properly admitted, we reject these arguments and affirm the judgment of the court below.

Appellant was convicted of the murder of Kathy Kadunce and her four year old daughter, Dawn, on the morning of July 11, 1978. The murders took place in the victims’ home and were discovered several hours later. At trial, appellee proceeded under the theory that the killings were performed in a ritualistic manner, and were motivated by Kathy Kadunce’s interference in the homosexual relationship between her husband and appellant, and her interference in appellant’s drug dealing.

Photographs admitted at trial revealed that the victims were stabbed 17 times in a similar fashion and in the same pattern. Ceremonial robes, books, posters, plastic skulls and bats, and marriage licenses drawn up by appellant and signed by him as a “high priest” of Satan were seized from appellant’s apartment pursuant to a warrant. Expert testimony was offered providing information on satanism and linking these items to satanism. Additional evidence linked appellant with satanism, including testimony that he told a witness of his attendance at human sacrifices and that 17 was the number of stab wounds required at these ritualistic killings.

An expert witness testified to the prominant role of mind control in satanism and the practice of causing others to commit crimes and perform homosexual acts to further such control. Appellee offered testimony regarding appellant’s control of the people around him. Appellant apparently surrounded himself with younger, naive people who committed crimes, such as shoplifting, for him and engaged in homosexual relations with him.

Evidence was introduced regarding the intimate relationship between appellant and Kathy Kadunce’s husband, and revealing appellant’s use of and dealing in drugs. Specifically, evidence was offered to show that a drug sale was to take place shortly before the killings. The sale was thwarted when the victim discovered the drugs, which appellant had given to her husband, and flushed them down the toilet.

The appellant lists five issues on appeal. The first is whether appellant’s trial was held in violation of Pa.R. Crim.P., Rule 1100 — the 180 day rule. The remaining four attack the propriety of evidence admitted at trial. Our discussion is limited to the objections to evidence on satanism and the admission of photographs of the victims. A careful review of the record reveals that the remaining issues are without merit and were adequately disposed of by the court below. No further discussion of them is necessary.

Appellant challenges the admissibility of evidence concerning satanism and photographs of the victims as unduly prejudicial. Appellant cites several cases holding against the admissibility of evidence as to religious belief. See Commonwealth v. Greenwood, 488 Pa. 618, 413 A.2d 655 (1980); Commonwealth v. Mimms, 477 Pa. 553, 385 A.2d 334 (1978). In these cases the Pennsylvania Supreme Court found that the religious beliefs of the defendants were irrelevant to the charges against them. Greenwood 488 Pa. at 622, 413 A.2d at 657 (defendant chased and shot man who broke into his house); Mimms 477 Pa. at 558, 385 A.2d at 336 (defendant’s religious affiliation with Islam irrelevant to carrying concealed deadly weapon and carrying a firearm without a license). The Court did not issue a blanket prohibition against evidence of a criminal defendant’s beliefs, but only held that such evidence is inadmissible if it is irrelevant. In Mimms the Court acknowledged that circumstances could exist “in which religious affiliation would be of relevance____” Mimms, 477 Pa. at 558, 385 A.2d at 336. Such circumstances exist in the instant case.

It is clear that the evidence under consideration is relevant. However, even relevant evidence “is inadmissible if the trial court, in its discretion, determines that its prejudicial impact outweighs its probative value.” Commonwealth v. Ulatoski, 472 Pa. 53, 63 n. 11, 371 A.2d 186, 191 n. 11. Evidence of appellant’s affiliation with satanism is prejudicial. See Iowa v. Tate, 341 N.W.2d 63 (Iowa Ct.App.1983). If such evidence were believed, we cannot imagine it endearing appellant to the average juror. However, the jury was not compelled to accept this evidence. Testimony was also offered to show that appellant was not a satanist, that he was just play acting, and viewed his involvement in satanism as a joke.

It would be difficult to conceive of a trial at which the prosecution’s evidence was not prejudicial to the defendant. See Carter v. Hewitt, 617 F.2d 961 (3d Cir.1980). The difficulty arises when the evidence is so prejudicial that it sweeps the jury “beyond a rational consideration of guilt or innocence of the crime on trial.” Ulatoski, 472 Pa. at 63, 371 A.2d at 191 n. 11, quoting J. McCormick, Evidence Sec. 185, at 438-440 (2d Ed.1972). The evidence concerning satanism was not of this type and was properly admitted.

Appellant’s beliefs were highly probative regarding the manner of the slayings. Expert testimony about satanism, specifically objected to by appellant, was accompanied by jury instructions containing the standard caveat to such testimony. The judge instructed the jury that they were free to accept or reject any expert opinion and emphasized that they were not bound to accept it. The expert testimony was carefully limited by the trial judge and admitted only after an in camera hearing.

The trial judge also carefully examined and ruled on the admissibility of all photographs of the victims. The photographs offered by appellee were culled by the court below to remove those that were cumulative or merely inflamatory. The record reveals that appellee was forced to justify each photograph finally admitted. The judge instructed the jury on photographs and inflamatory evidence, cautioning them not to “let such things stir up your emotions to the prejudice of the defendant. Your verdict must be based on a rational and fair consideration of all of the evidence in this case and not on passion or prejudice against the defendant, the Commonwealth or anyone else associated with this case.” (N.T. Vol. XII, p. 222). Given the nature of the slayings, the photographs were important to illustrate the positions of the bodies and the patterns of the wounds inflicted. Their probative value outweighed their prejudicial impact. See Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978). That impact was further diffused by the judge’s instructions.

We find that the trial judge carefully and responsibly exercised the discretion entrusted to him in admitting evidence at appellant’s trial.

Judgment of sentence affirmed.

      . We do not address the issue of whether satanism is a religion for First Amendment purposes. See Kennedy v. Meacham, 540 F.2d 1057 (10th Cir.1976).


author: HESTER, Judge:

text:
    505 A.2d 601
    Betty TRUMPP, Appellant, v. Stanley TRUMPP.
    Superior Court of Pennsylvania.
    Submitted Oct. 23, 1985.
    Filed Dec. 27, 1985.
    Reargument Denied March 10, 1986.

      Peter J. Hill, Assistant Public Defender, Bloomsburg, for appellant.
    Michael J. Irey, Berwick, for appellee.
    Before ROWLEY, HESTER and LIPEZ, JJ.
   HESTER, Judge:

The question raised by this appeal is whether wife-appellant can assert the validity of a separation agreement containing a provision for child support when she had failed to raise such a defense in prior support modification proceedings. The lower court held that she had waived such an argument by failing to demand adherence to the terms of the agreement in previous actions, and reduced husbandappellee’s support obligation below the amount specified in the agreement. We disagree and, for the following reasons, we reverse.

On April 17, 1980, the parties, who were at that time married and residents of New York, entered into a separa- tion agreement for the disposition of their respective property rights and for the custody and support of their two minor children. Specifically, the agreement provided that appellant would retain custody of the children and appellee would pay $80 per week for their support and $20 per week for appellant’s support. The agreement further stipulated that the obligations set forth therein would survive and would not merge into a subsequent divorce decree, and that it could be enforced independently of such a decree.

Approximately one year later, appellant filed a petition for support in Luzerne County, alleging that appellee ceased making support payments as of September, 1980. An order was thereafter entered on June 22, 1981, directing appellee to pay $150 per month for two months and thereafter $350 per month for the support of appellant and her two children.

Alleging changed circumstances, appellee thereafter filed a petition to modify the order, which was granted on September 23, 1982. That order reduced appellee’s support payments to $240 per month for six months and thereafter to $140 per month, plus $30 per month toward arrearages.

On October 7, 1982, appellant filed a petition for modification and appellee cross-filed. Before a hearing was held on the parties’ cross-petitions, a divorce decree was entered in New York on January 9, 1984. The decree provided that the separation agreement of 1980 would survive and would not be merged into the divorce decree.

A hearing on the. cross-petitions was held on February 7, 1984. For the first time, appellant asserted the applicability of the separation agreement and argued that the trial court lacked authority to set aside or reduce the amount of support called for in the agreement. The court rejected appellant’s contentions and entered an order directing appellee to pay $350 per month for support of appellant and her children until January 15, 1984, when the support payments would be reduced to $100 per month. Appellant thereafter perfected this appeal.

The lower court, in its opinion, conceded the validity of the separation agreement. The elements of an enforceable separation agreement were recently discussed in Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983). Therein, we ruled that a separation agreement containing support provisions precludes any later reduction in the specified amount if it is a detailed agreement covering all aspects of the economic relationships of the parties, it is not one-sided, both spouses are adequately counselled, the agreement does not merge into the divorce decree, and the amount of support provided is not inadequate. Id., 311 Pa.Superior Ct. at 507, 457 A.2d at 1297.

We concur with the trial court that the agreement in this case clearly meets these criteria. It is an extensive document, with twenty-eight articles covering forty-five pages. Both parties were represented by counsel and the resultant document protects the rights of each party. The support provisions cannot be considered inadequate, and the agreement covers all contingencies relating to the education and emancipation of the minor subjects. Finally, the agreement provides in precise language for a non-merger in the event of a divorce decree.

In spite of the agreement’s facial validity, the trial court held that appellant had waived its enforceability by failing to advance that argument in earlier proceedings. The court applied contract law to this factual setting and concluded that appellant’s failure to raise the enforceability of the separation agreement in the two earlier actions constituted a waiver of that defense. The court reasoned that appellant’s conduct indicated an intention to relinquish her rights pursuant to that agreement, and concluded that it would be inequitable to find otherwise in light of appellee’s reliance upon that waiver.

Unarguably, the application of contract law was appropriate in this instance. It is well settled that property settlement agreements between husband and wife will be enforced by the courts in accordance with the same rules of law which are used in determining the validity of contracts generally. Vankirk v. Vankirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984); DeWitt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121 (1984); Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981); Schmitz v. Schmitz, 305 Pa.Super. 328, 451 A.2d 555 (1982). To that end, we must look to the terms of a contract when called upon to enforce rights pursuant thereto. The contract must be construed only as written. If an agreement contains clear and unambiguous terms, a court may not modify the plain meaning of the words under the guise of interpretation. Mears, Inc. v. National Basic Sensors, Inc., 337 Pa.Super. 284, 486 A.2d 1335 (1984).

The court chose to base its decision upon the prior conduct of appellant, who never asserted the enforceability of the contract in the past. Undeniably, contract provisions can be waived, expressly or impliedly. Black Top Paving Co. v. Com., Dept. of Transportation, 77 Pa.Cmwlth. 612, 466 A.2d 774 (1983). See 8 P.L.E. § 366. However, we disagree that appellant acquiesced in or sanctioned appellee’s petitions to modify the terms of the separation agreement.

In the prior support actions, appellant did not consent to appellee’s requests for reductions in his support obligations. Although she did not raise the terms of the agreement as a defense or seek specific performance, the filing of answers to appellee’s petitions cannot be construed as express or implied waiver of the contract.

In Madnick v. Madnick, 339 Pa.Super. 130, 488 A.2d 344 (1985), a similar situation arose. The husband agreed, as part of a separation agreement, to pay $200 weekly for child support. The court later suspended the original court order entered pursuant to the agreement, and reinstated it at a reduced rate. When the wife thereafter sought to enforce the original terms of the agreement, we held that the intent of the parties, as manifested by the terms of the agreement, was to be bound by the contractual obligation irrespective of an interim reduction.

Herein, the plain terms of the separation agreement evince an intent to enter into binding contractual obligations. Moreover, the parties expressly provided in Article XXIV that:

Neither this Agreement nor any provision thereof shall be amended or modified or deemed amended or modified, except by an agreement in writing duly subscribed and acknowledged with the same formality as this Agreement. Any waiver by either party of any provision of this Agreement, or any right or option hereunder shall not be deemed a continuing waiver, and shall not prevent or estop such party from thereafter enforcing such provision, right or option, and the failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this agreement by the other party shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect.

This language can only be construed as clear and unambiguous and, as such, must be given full force and effect. DeWitt v. Kaiser, supra. No agreement in writing was signed by the parties amending or modifying the separation agreement. Moreover, even if appellant’s conduct could be construed as a waiver, and we rule that it does not so operate, the terms of the above-cited article explicitly empower her to later enforce the provisions so waived. If appellant chooses to demand strict performance, she has that right in accordance with the terms of the separation' agreement and as supported by the result in Madnick. Consequently, we are constrained to reverse the trial court decision and remand for the entry of an order directing appellee to pay the amounts of support embodied in the separation agreement.

Reversed and remanded for entry of order directing appellee to pay $80 per week for child support and $20 per week for support of appellant. Jurisdiction is relinquished.

      . Although it is unclear from the record, we surmise that appellee moved to Pennsylvania in 1981, and appellant pursued her support action in our jurisdiction.

      . Once a separation agreement is incorporated into a divorce decree, the separation agreement merges and is no longer given independent effect. Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Super. 359, 362, 474 A.2d 41, 42 (1984).


author: WICKERSHAM, Judge:

text:
    505 A.2d 604
    COMMONWEALTH of Pennsylvania v. Tracy L. SHEFFY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 19, 1985.
    Filed Feb. 25, 1986.

      John C. Tylwalk, Assistant Public Defender, Lebanon, for appellant.
    John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com., appellee.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   WICKERSHAM, Judge:

Tracy L. Sheffy was tried before the Honorable G. Thomas Gates, President Judge, and a jury, in July 1983 and was found guilty of arson, damage to property, and arson, injury to person, and murder in the third degree.

On July 27, 1984, Judge Gates sentenced Tracy L. Sheffy to prison for a term of not less than 10 years nor more than 20 years. This direct appeal, in which appellant is represented by trial counsel, John C. Tylwalk, Esquire, brings the following issues before us:

A. Did the trial court err in refusing to suppress Miss Sheffy’s statement?
B. Did the trial court err in refusing Miss Sheffy’s request to sequester the jury?
C. Was the verdict against the weight of the evidence?
D. Did the trial court err in permitting testimony concerning a previous fire which occurred at 15-19 South Railroad Street, on December 9, 1982?
E. Did the trial court err in permitting Thomas Brough to testify about acts and conduct of Tracy Sheffy which occurred prior to the fire on December 24, 1982?
F. Did the trial court err in permitting testimony concerning various incidents that were reported to Palmyra Police by Tracy Sheffy prior to December 24, 1982?

Brief for Appellant at 27.

The Commonwealth filed a motion to modify sentence and took an appeal from the trial court’s refusal to do so, and has filed a cross-appeal, with the following issue:

G. Did the sentencing court impose an unlawful sentence when it failed to impose a separate sentence for each of four (4) counts of third degree murder and two (2) counts of arson and instead imposed one sentence for all six (6) offenses by holding that all of the offenses merged for purposes of sentencing?

Brief for the Commonwealth at 2.

In his opinion dated July 3, 1984, Judge Gates reviewed the facts underlying this appeal. He said:

“The evidence adduced at trial discloses that around 3:30 a.m. on December 24, 1982, someone poured a flammable liquid on the brick floor of the foyer of the Palm Plaza Apartment Building situate[d] at 15-19 South Railroad Street in the Borough of Palmyra, Lebanon County, Pennsylvania, and set it on fire. The result was devastating; the building, which consisted of two floors, with four offices and one apartment on the first floor and seven apartments on the second floor, was completely destroyed. Four persons, Marlin Slaybaugh, Blanche Lingle, Ruth Ann Falco and John Falco, lost their lives as a result of smoke inhalation. They had been tenants of the second floor apartments. The defendant, an eighteen (18) year old single woman, was also a resident tenant of the building from October 9 of 1982. We can infer that she was aware that the building was occupied by other tenants and they were sleeping at the time the fire started.

“The investigating officers determined that the fire was of incendiary origin and began an investigation to determine the perpetrator. During the course of the search, the defendant became a suspect. It was discovered that she had an undifferentiated amorous relationship with a boyfriend named Thomas Brough. Toward the end of 1982 her relationship with Brough became strained and Brough was attempting to sever it. Brough was an ambulance aid with the Palmyra Fire Department. He resided at the fire station which was located about a block from the destroyed apartment building.

“Brough testified that on November 21, 1982 he and the defendant has a disagreement after which the defendant left the fire station. She returned to the fire station sometime later and told Brough that she had been attacked in the hallway of her apartment building by a man. Brough told her to call the police. Although claiming to have been attacked, the defendant did not think she could identify the individual and did not scream or holler, even though the attack allegedly occurred inside the apartment building where several other people were residing. Then, she claimed, she forced herself free, waited five minutes and ran to the fire station. A police investigation was fruitless.

“Brough disclosed another incident which occurred on or about November 27, 1982 when he and the defendant argued. Again she left the fire station. At about 2:30 a.m. she came to the fire hall, aroused Brough and related to him that someone had broken into her apartment and tried to rape her. A subsequent police investigation failed to substantiate her allegations. Once more she could not identify the individual. Again she had not screamed. There were no signs of a struggle in the apartment and no signs of forced entry even though her doors were supposedly locked. Her description of the attack and subsequent escape was remarkably similar to the prior one and equally implausible.

“Brough related that on December 1, 1982, after he had dropped the defendant off at her apartment, she appeared at the fire station with a threatening note which she claimed to have found slipped under her door.

“On December 9, 1982 Brough and the defendant had another disagreement resulting in the defendant’s leaving the fire station in anger. About midnight, Brough was dispatched to a fire call in the Palm Plaza Apartments. That fire was discovered in a small storage area opposite the defendant’s apartment by a tenant of the building who noticed smoke as he entered the building about 11:00 p.m. The tenant ran[] to his apartment on the second floor, called the fire department and made about four or five trips up and down the steps with buckets of water. On his third trip, he found the defendant also throwing water on the fire which they extinguished before the firemen arrived.

“On December 23, 1982 at or about 11:30 p.m. Brough revealed that he received another telephone call from the defendant. She wanted to talk to him and was insistent that he come to her apartment and talk to her. He countered that they could talk in the morning, at which point the defendant became rather angry and hung up. At 3:45 a.m. Brough was dispatched to the Palm Plaza Apartments to respond to the fatal fire call.

“By December 28, 1982, the Pennsylvania State Police Fire Marshalls had determined that the cause of the fire was incendiary. Due to the previous [attention]-getting police contacts, the defendant became a suspect and the Fire Marshalls sought to speak with her and Brough. Before the police were able to make contact with either, the defendant appeared at the Palmyra Police Station with her mother on the afternoon of December 28, 1982.

“The Fire Marshalls were summoned and the defendant agreed to speak to them. Before any questions were asked, she was advised of her Miranda rights and she acknowledged that she understood them. She related to the Fire Marshalls her knowledge of the events of the night of the fire. The Fire Marshalls thereafter asked her to go through it again and relate the episode starting earlier in the afternoon. To this version the defendant added the fact that she had gone to the front foyer and checked her mailbox. Also, at this point she became emotionally upset, started to cry and appeared to be in a distraught condition. The Marshalls then asked whether she would like to call somebody to be with her. They suggested calling her mother or her boyfriend Brough. She requested that Brough be called and asked to come down and bring cigarettes for her.

“When Brough arrived, the Marshalls advised him that the defendant was close to giving a confession. Brough spoke with her alone for about fifteen minutes. The Fire Marshalls went back into the interrogation room, reminded the defendant of her rights after which the defendant admitted having put a match down inside the foyer entrance to the hallway against the wood paneling. It had been previously determined by the Marshalls that the point of origin of the fire was from six to eight inches from the spot she supposedly placed the match. She told the Marshalls that she set the fire, not to hurt anybody, but to get Brough’s attention and to get him to come down to the apartment, knowing he would respond with the fire company, if not to her [entreaties]. Brough told the jury that after talking to the defendant for several minutes, she said ‘something to the effect of yes, I set it.’ She then began crying.

“Other witnesses testified that, once the fire was started, the defendant was seen running to a convenience store about a block from the apartment building. Her slippers were found in an alley. They were later analyzed and found to have kerosene on them.

“Another witness testified that about 7:00 a.m. on December 24, 1982, shortly after the deaths became known, he was interviewing the defendant who ‘was really nervous, scared, I’d say and she was crying, more or less in a state of shock.’ He testified that as he walked away, the defendant said, ‘I killed them, I killed them, God killed them.’

“The Commonwealth established that a short time before the fire, the two entrances to the apartment building were locked. When the firemen first arrived at the scene all of the windows were down and in place. The rear door assembly was found to still be in a locked position after the fire. The reasonable inference from this testimony is that the person who started the fire had to have a key to the building. The defendant was one of the few people who had a key.”

Lower ct.op. at 5-10.

In his erudite opinion for the court en banc the learned President Judge properly and adequately answers those issues on appeal, including issue A (Suppression), issue B (Sequestration), issue D,E,F (Various areas of evidence allowed by the trial judge). We have examined the Record, briefs of counsel and applicable law. We have independently examined the issues presented by appellant, including issue C (Sufficiency of the evidence) and find them all to be without merit.

We have also examined the issue raised by the Commonwealth. In its brief, the Commonwealth argues that:

On July 27, 1984 the defendant was sentenced, regarding four (4) counts of third degree murder and two (2) counts of arson (one based upon endangering persons, 18 Pa.C.S.A. § 3301(a) and one based upon endangering property, 18 Pa.C.S.A. § 3301(c)). At the time of sentencing the Commonwealth requested the sentencing court to impose a separate sentence for each count of third degree murder and for the arson endangering person count. (N.T. Sentencing 7/27/84 pp. 10-11) The sentencing court responded that the law in this Commonwealth restricted the court to imposing one sentence. (N.T. Sentencing 7/27/84 pp. 11 and 15)
When the Commonwealth requested separate sentences, it was aware of the panel decision of the Pennsylvania Superior Court in Commonwealth v. Frisbie, 318 Pa.Super. 168, 464 A.2d 1283 (1983). The sentencing court indicated that it felt the Superior Court decision in Frisbie, supra, controlled the sentencing in the subject case. It then proceeded to impose the single sentence.
On December 18, 1984 the Supreme Court of Pennsylvania filed an Opinion which reversed the decision of the Superior Court and held that a single unlawful act which affects multiple victims may support multiple sentences without violating the double jeopardy clause of the Fifth Amendment of the United States Constitution. Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984). The Supreme Court not only reversed the Superior Court’s decision in the Frisbie case, but also expressly overruled Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) to the extent it was inconsistent with its decision in Frisbie supra. The Superior Court had relied upon Walker, supra., when it rendered its decision in the Frisbie case.
In the subject case the defendant started a fire, and as a result of that fire, four people died. Those four deaths were the bases for the four counts of criminal homicide that were listed as Counts II, III, IV, and V in the Information filed to Lebanon County Action No. 96, 1983. The Frisbie Supreme Court decision was based upon the legislative intent to define crimes and fix penalties. [Frisbie, supra at 318 Pa.Super. 465-66,] 485 A.2d at 1100. In Frisbie the charges were nine counts of recklessly endangering another person. (18 Pa.C.S.A. § 2705) Since the definition of “recklessly endangering another person” stated “another person” in the singular, the Supreme Court held that the Legislature intended a separate offense for each person who was a victim of that criminal conduct. [Frisbie, supra, 318 Pa.Superior Ct. at 465-66, 485 A.2d at 1100.
The same legislative intent would apply in the case of Criminal homicide. “Criminal homicide” (18 Pa.C.S.A. § 2501(a)) is defined,
A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being. ” (Emphasis ours)
The singular is used by the Legislature when it defined “Criminal homicide” as when it defined “Recklessly endangering another person.” Thus, this case should be remanded to the sentencing court for the imposition of a separate sentence for each of the four counts of third degree murder.
The Commonwealth also submits that a separate sentence should have been imposed for the offense “arson endangering persons,” 18 Pa.C.S.A. § 3301(a). In Lebanon County Action No. 96, 1983, Count I Arson, the defendant was charged as follows:
COUNT # I — ARSON, in that she feloniously, unlawfully and intentionally did start a fire or cause an explosion on the property of another person, to-wit, the property of Edward Russek, located at 15-19 South Railroad Street, in the Borough of Palmyra, Lebanon County, Pennsylvania, and did recklessly place the lives of Betty Shepler, Donald Bankus, and Marlin Lehman, in danger of death or bodily injury, and also by starting this fire the defendant did cause the deaths of four (4) persons, namely, Blanch Lingle, Marlin Slaybaugh, John Falco, and Ruth Ann Falco, this being in violation of Section 3301(a) of the Crimes Code of Pennsylvania.
That Count included the allegation that by starting the fire she recklessly placed in danger of death or bodily injury the lives of Betty Shepler, Donald Bankus and Marlin Lehman, who survived the fire, as well as Blanch Lingle, Marlin Slaybaugh, John Falco and Ruth Ann Falco, who died in the fire. The latter four were persons listed in the four criminal homicide counts of the Information.
Since the arson endangering person count included victims other than those who died in the fire, a separate sentence is authorized under Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984).

Brief for Commonwealth (appellee) at 24-27.

At sentencing on July 27, 1984 the Commonwealth requested the Court to impose a separate sentence for each of the four counts of third degree murder and for the two counts of arson. In its motion to modify sentence the same request was renewed. By Order of July 31, 1984 Judge Gates considered and refused such request. At the sentence hearing Judge Gates said, inter alia:

THE COURT: Sentence will be imposed in Count No. 2. In accordance with the law, the Court rules that all other counts are merged since they result in a single act. And the sentence of the Court is that you pay the costs. I am not ordering restitution since it’s a judgment of the Court that you will never be able to pay it. That you be imprisoned in a state institution for an indefinite term, the minimum of which shall be ten years, and the maximum of which shall be 20 years, and stand committed in the hands of the Sheriff until the sentence be complied with.

Transcript of Proceedings, dated July 27, 1984 at 15.

In Commonwealth v. Frisbie, 318 Pa.Super. 168, 178, 464 A.2d 1283, 1288 (1983) the trial judge had imposed ten consecutive one-year terms of probation on the defendant who had driven his car into an intersection injuring multiple pedestrians. We vacated the sentences, holding that defendant’s “single action” could “support but one sentence.” We were reversed in Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984) decided December 18, 1984, five months after Judge Gates sentenced Tracy L. Sheffy.

Accordingly Judge Gates may, but does not have to, desire to change his sentence.

In fairness to President Judge Gates we hereby Remand this case for further sentencing hearing. We affirm the judgment of sentence as originally imposed in all other respects and we relinquish jurisdiction.

Remanded for proceedings consistent with this opinion.

      . Justice Larsen, speaking for our supreme court, held that:
      The issue presented by the case is whether a single unlawful act which affects multiple victims may support multiple sentences without violating the double jeopardy clause of the Fifth Amendment of the United States Constitution. We hold that it may.
      ******
      Whether the double jeopardy clause of the Fifth Amendment prohibits multiple sentences based upon a single unlawful act which affects multiple victims is an issue of first impression before this Court. The Superior Court, however, believed that its decision in the instant case was controlled by this Court's decision in Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). In Walker, the defendant had been sentenced for both rape and statutory rape based on a single act of sexual intercourse. Since rape is, by definition, an act performed without the consent of the victim and statutory rape is by definition, an act performed with the consent of the victim, this Court held that it was possible for the defendant’s conduct to have constituted but one of the two offenses for which he had been sentenced, i.e. rape, and therefore set aside the sentence for statutory rape. In that case, this Court did not face the issue of whether a single act which injures a number of people can be the basis for multiple sentences. This Court did state, however, that “[wjhere there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, ...’’ Id., 468 Pa. at 331, 362 A.2d at 231, and that "it is beyond the power of a court imposing sentence to impose multiple sentences on a defendant for a single act.” Id., 468 Pa. at 330 n. 3, 362 A.2d at 230 n. 3. To the extent that the above-quoted language from Walker conflicts with our holding today, Walker is hereby expressly overruled.
      ******
      Therefore, we hold that the imposition of multiple sentences upon a defendant whose single unlawful act injures multiple victims is legislatively authorized and, consequently, does not violate the double jeopardy clause of the Fifth Amendment. Thus, the trial court did not err in sentencing appellee to one term of probation for each of the nine victims injured by appellee’s reckless act.
      Accordingly, the order of the Superior Court is reversed, and the sentences imposed by the trial court are reinstated.

        Commonwealth v. Frisbie, 506 Pa. 461, 463, 464-465, 467, 485 A.2d 1098, 1099-1101 (1984).


author: MONTEMURO, Judge:

text:
    505 A.2d 610
    Leroy ATWATER, Sr. and Sarah J. Atwater, Appellees, v. TERMINIX INTERNATIONAL, INC., and Bob Yost’s Repair Service, Inc. Appeal of TERMINIX INTERNATIONAL, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1985.
    Filed Feb. 28, 1986.

      Michael J. Brillhart, York, for appellant.
    Daniel W. Shoemaker, York, for appellees.
    Before ROWLEY, OLSZEWSKI and MONTEMURO, JJ.
   MONTEMURO, Judge:

On March 22, 1982, appellees filed a complaint in trespass and assumpsit against appellant, Terminix International, Incorporated. Briefly stated, appellees allegations were that, in anticipation of obtaining a mortgage and thereafter purchasing their current residence, appellant was contracted to perform a wood infestation inspection. Following the inspection, appellant allegedly prepared a report representing that the property was free of termites and/or other wood destroying insects. The bases of appellees’ complaint were the claimed negligent failure of appellant to discover the property’s actual infestation and appellees’ alleged detrimental reliance upon appellant’s representations.

Appellees’ case was subsequently tried before the Honorable James E. Buckingham, of the Court of Common Pleas of York County, and a jury. On June 22, 1984, the jury returned a verdict in favor of appellees in the amount of $22,000.00 with an additional award of $2,050.00 representing the value of appellees’ loss of the use of their property. In response to appellant’s motion for post-trial relief, the court below filed an opinion and order on December 4, 1984, directing the entry of judgment in appellees’ favor for $22,000.00, yet remitting the loss of use award. This timely appeal followed.

Appellant instantly frames five issues for our consideration and we shall address each ad seriatim.

Appellant first argues that the jury erred in assessing damages in the amount of $22,000.00 in that the evidence adduced at trial was inadequate to support such a verdict. We disagree. Appellant specifically contends that appellees’ recovery should have been limited to compensation for only those damages that were demonstrated by direct, non-circumstantial evidence.

At trial, appellees presented the expert testimony of John Roth, a building contractor, with regard to the cost of repairing the damage to appellees’ home. Based on his inspection of the damage, Roth offered an itemized estimate of $2,950.00. This estimate took into account only the readily ascertainable extent of damage, i.e., that damage which was discoverable without “tearing things apart.” N.T. June 21 and 22, 1984, at 234. However, Roth also offered a second estimate of $22,000.00 as the cost of repair. Roth testified that this latter amount was necessary to properly diagnose the actual extent of termite damage, beyond that which was visible, and to make the requisite repairs. Roth further responded affirmatively when asked whether $22,000.00 was “the fair and reasonable cost for all material and all labor to repair what [Roth] believe[d] may be a problem in [appellees’] house.” Id. at 238.

Clearly, in calculating their damage award, the jury was influenced by Roth’s testimony and his $22,000.00 assessment. In Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427 (1984), this court observed that, to be recoverable, damages need not be capable of “exact ascertainment ”, reiterating that, “[o]ur law only requires that a reasonable quantity of information must be supplied by plaintiff so that the jury may fairly estimate the amount of damages from the evidence.” Id., 328 Pa.Superior Ct. at 30, 476 A.2d at 437, quoting, Ashcraft v. C.G. Hussey and Co., 359 Pa. 129, 132-33, 58 A.2d 170, 172 (1948) (original emphasis).

We have carefully reviewed the record in this regard. We are cognizant that termite damage, by its nature and in the absence of destructively invasive examination, is not subject to exacting assessment. Determining the extent of damage, and accordingly computing an award for the cost of repair, unavoidably involved herein at least a modicum of speculation. Furthermore, we note that a significant body of circumstantial evidence was adduced below to the effect that the actual damage may indeed extend well beyond that which was immediately visible. See e.g., N.T. June 21 and 22,1984, at 19, 38, 41, and 211-16. Therefore, we are of the opinion that, given the circumstances before us, the jury’s award was a fair estimate of damages premised upon a reasonable quantity of information.

Appellant’s next contention is that the court below erred in submitting the issue of damages to the jury based upon the $22,000.00 repair estimate. In essence, appellant is reasserting the contentions previously posited with regard to the first issue. For the same reasons that we have found the jury’s award of $22,000.00 to have been supported by the evidence, we also find the court below to not have erred in permitting the jury to consider that estimate.

Appellant’s third contention is that the court below erred in permitting testimony regarding the subject property’s “before and after” value.

A consideration of the record demonstrates that trial proceeded upon the theory that the proper measure of damages was the fair market value of appellees’ property before and after the infestation. In an attempt to establish this comparative differential, appellees introduced the testimony of an expert real estate appraiser. After appellees had rested their case-in-chief, the court below, on its own motion, reconsidered the appropriateness of the “before and after” valuation. Thereafter, the court instructed the jury as follows:

THE COURT: Ladies and gentlemen of the jury, I want to bring you up to date on something. I have ruled that the measure of damage in this case is not the before and after value of the property. And that, therefore, I am striking from the record and direct you disregard the testimony of anybody, including the Plaintiff and any of the experts who testified as to what the value of the residence was before the property was purchased by the Plaintiffs and at the time they discovered the termites. I have made a ruling on that, that that is not relevant. The measure of damages I have ruled in this case and we are going to be bound by that is what the cost to repair the premises, the reasonable costs to repair the premises are. We all concede that the house involved in repairable and therefore, I am charging you that the damage to which the Plaintiffs would be entitled, if they recover, would be the cost to repair the premises, not to exceed the value of the property at the time that they purchased it, which I understand to be $43,500.
Now, I am not trying to tell you what the reasonable costs of repair are. That’s still a jury question, ladies and gentlemen, which will eventually have to be decided in the case. But I want you to understand that the before and after value test, fair market value test, is not the test, and I am striking any of that testimony from the record.

N.T., June 21 and 22, 1984, at 190-91. The court accordingly permitted appellees to reopen their case to present the Roth deposition with regard to the cost of repair.

We are of the opinion that this instruction, compounded with the court’s subsequent charge to the jury just prior to their verdict, adequately cured any perceived prejudice. In addition, we note that it is somewhat disingenuous for appellant to now complain of prejudice from the subject testimony when, in fact, prior to the court’s ruling, appellant appears to have concurred in the general propriety of the “before and after” formula for damages. See, e.g., id. at 44-46.

Appellant’s fourth assignment of error is that the court below erred in admitting the deposition of the expert Roth as an unavailable witness. Because the court below found that appellees were unable to procure the attendance of Roth by subpoena, we find this issue to be controlled by Pa.R.Civ.P. 4020(a)(3)(d) and that the deposition was properly admitted. See N.T., June 21 and 22, 1984, at 94, 191-92. Additionally, we note that appellant raised no objection when the deposition was accepted into evidence by the court below, see id. at 190-93, and, indeed, appellant and its co-defendant had previously indicated an intention to offer the identical deposition. See id. at 161.

Appellant’s final contention is that the court below erred in refusing to charge the jury with respect to the issues of negligence and breach of contract. However, at sidebar during appellees’ case-in-chief and again during the charge itself, the court below characterized this case as presenting the limited issue of damages. See id. at 89, 254, 257, 263. The court below relied upon appellant’s apparent admission as to liability and appellant at no time attempted to dispel the court’s perception with respect to this issue. Again, it is therefore seemingly disingenuous for appellant to now complain of the court’s refusal to instruct the jury with regard to theories of liability when in fact appellant induced the court to consider liability a nonissue.

Nevertheless, waiver with respect to any challenge to the charge of court below results from appellant’s failure to raise a timely objection. See id. at 265-66; Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

Based upon the foregoing, we affirm the order of the court below entering judgment.

Order affirmed.

      . We note that John Roth was in fact unavailable at the time of trial and that his prior deposition testimony was permitted to be read into the record.

      . Appellant further argues in this regard that the $22,000.00 estimate was not based upon costs as of when the damage occurred but instead was calculated as of the date the estimate was provided. In its opinion, the court below adequately addressed this argument and we see no need for further comment.


author: DEL SOLE, Judge: WIEAND, Judge,

text:
    505 A.2d 613
    UNITED PLATE GLASS COMPANY, DIVISION OF CHROMALLOY AMERICAN CORPORATION, Appellant, v. METAL TRIMS INDUSTRIES, INC. and the Travelers Insurance Company.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed Feb. 25, 1986.

      Charles E. Bobinis, Pittsburgh, for appellant.
    David A. Scott, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

This appeal follows the trial courts dismissal of Appellant’s exceptions filed to an order directing judgment against Appellant and in favor of both Appellees.

The underlying action concerned a dispute which developed as a result of the construction of the Pittsburgh Convention Center, a public works project. The Commonwealth of Pennsylvania Department of General Services, as owner, contracted with Frank Brisco Company (Brisco) as the “prime contractor”. Brisco then entered an agreement with Appellee, Metal Trims Industries, Inc. (Metal) whereby Metal was obligated to supply and install all metal window walls, glass, doors, frames, and glazing for the project. Thereafter, Metal subcontracted some of its work to Appellant. Appellee, Travelers Indemnity Company (Travelers) provided a performance and payment bond in favor of the Department of General Services, as required by the Public Work Contractors’ Bond Law. 8 P.S. § 191 et seq. In July of 1982, Appellant brought suit against both Metal and Travelers for $41,541.22, the amount alleged to be the unpaid balance under the contract, plus interest and costs. A non-jury trial was held and the court found in favor of both Appellees. Subsequently, Appellant’s exceptions were denied and the judgment was entered from which this timely appeal was filed.

Because the instant appeal raises an issue involving the interpretation and application of a statute which regulates the affairs of political subdivisions, municipalities, local authorities or public corporation, we find that it is appropriate to transfer this case to the jurisdiction of the Commonwealth Court.

The applicable section of the Judicial Code which establishes the jurisdiction of Commonwealth Court provides:

§ 762. Appeals from the Courts of Common Pleas
(a) General Rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(4) Local government civil and criminal matters.—
(i) All actions or proceedings ... where is drawn in question the application, interpretation or enforcement of any;
(A) statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof ...
42 Pa.C.S.A. § 762(a)(4)(i)(A). Emphasis added.

The trial court in entering judgment in favor of Metal and Travelers based its decision, in part, on its finding that Appellant’s claim was barred by the applicable statute of limitations, and that Appellant failed to supply written notice to the contractor within 90 days from the date the last labor or materials was furnished as required by the Public Works Contractors’ Bond Law, 8 P.S. § 194(b).

The interpretation and/or application of the Bond Law was also drawn in question in Valley Forge Industries v. Armand Const., 248 Pa.Super. 53, 374 A.2d 1312 (1977). The Valley Forge court was specifically considering that portion of the Bond Law which contained a statute of limitations, and the court stated:

The Public Works Contractors’ Bond Law contains a carefully constructed set of relationships between the various parties to public works contracts executed by governmental units of this Commonwealth. The law serves two main purposes. First, it is designed to protect the contracting body by assuring faithful performance of the contract. Second, the law provides a substitute remedy for subcontractors who supply labor and materials and who are excluded from the protections afforded by the Mechanics’ Lien Law of 1963. (citations omitted) An interpretation of this statutory scheme will necessarily affect both existing and future bonds required by the act. We conclude that the Public Works Contractors’ Bond Law is an ‘act of the General Assembly regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or the officers, employes or agents thereof, acting in their official capacity, ... ’ within the meaning of § 402 of the Appellant Court Jurisdiction Act. Thus, jurisdiction over this appeal properly lies with the Commonwealth Court.
248 Pa.Super. at 58, 59, 374 A.2d at 1315.

The instant case contains two issues which concern application of the Bond law. First is the question of Appellant’s compliance with the notice requirements of 8 P.S. § 194. Secondly, this case also requires application of the statute of limitations previously contained in the Bond Law.

Although the trial court ruled that the suit was untimely filed, citing 42 Pa.C.S.A. § 5523(4), the appropriate statute of limitations is that which was contained in the Bond Law. In Manganas Printing Co., Inc. v. Joseph Bucheit & Sons Co., 601 F.Supp. 776, D.C. 1985, it was held that a contractors bond which incorporated the Pennsylvania Public Works Contractor’s Bond Law of 1967, 8 P.S. § 191 et seq., incorporated statutory provision as they existed at the time the bond was executed. If a bond is executed after June 27, 1978, the effective date of 42 Pa.C.S.A. § 5523, the one year statute of limitation found therein controls, and the action or proceeding is barred if not brought within one year from the time the cause of action accrued. However if a bond is executed prior to June 27, 1978 the application of 8 P.S. § 197 (now repealed) would be called into question, and the statute of limitations would begin to run as of the day the last labor was performed or material was supplied.

The Bond in this case specifically incorporates the Bond Law of 1967, however, the trial court made no finding as to the date the Bond was executed and the copy of the Bond contained in the record is not dated. Nevertheless, attached to the Bond is the corporate acknowledgement of the Vice-President of Brisco. The acknowledgment is notarized by a notary public whose commission expired May 9, 1978. This leads us to conclude that the document was executed some time prior to May 9, 1978. Lending support to this conclusion is the Power of Attorney attached to the Bond document, which was executed April 1, 1976. Since we find that the Bond was executed prior to the repeal of 8 P.S. § 197, the statute of limitations contained therein, which provided that no action could be commenced after the expiration of one year from the day on which the last labor was performed or material was supplied, controls.

Although we conclude that this appeal raises issues involving the application of the Bond Law, an act whose application and interpretation is properly a matter for the Commonwealth Court we have considered whether to exercise our discretionary powers to decide the case since neither party has objected to our jurisdiction. We have considered (1) whether the case has already been transferred; (2) whether conflicting line of authority might develop; and (3) whether the transfer would disrupt the legislatively ordained division of labor. Karpe v. Borough of Stroudsburg, 315 Pa.Super. 185, 461 A.2d 859 (1983).

While this case has not been previously transferred, this factor alone does not resolve the matter for we recognize the delay in the resolution of this case that the transfer necessitates. However, as noted by the court in Valley Forge Industries v. Armand Const., supra, in considering the Public Works Contractors’ Bond Law, we must guard against the possibility that two inconsistent lines of authority might develop concerning the same subject matter. (See also: Travelers v. Rexnord, 37 Pa.Cmwlth. 20, 389 A.2d 246 (1978), which considers 8 P.S. § 197). Finally we conclude that the division of labor between this court and our sister court would be served rather than disrupted if the Commonwealth Court heard all appeals involving the application and interpretation of the Pennsylvania Public Works Contractors’ Bond Law.

Case transferred to Commonwealth Court.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. Because neither party has objected to the jurisdiction of this Court, our jurisdiction has been perfected. Pa.R.A.P. 741(a). It is true, of course, that we nevertheless have discretion to decide the case on its merits or transfer it to Commonwealth Court. Pa.R.A.P. 752(a). However, I believe the interests of the parties would best be served by retaining jurisdiction and deciding the appeal on its merits. One of the issues raised on this appeal presents a question of pure contract law, i.e., whether all of the preconditions to payment of appellant on its subcontract have been satisfied. The statute of limitations, issue, moreover, does not contain the potential for a novel interpretation of a legislatively adopted statute of limitations. The resolution of the issue depends upon a relatively straightforward, factual determination regarding the lapse of time; and our sole responsibility is to determine whether the facts found by the trial court are supported by the evidence.

I would retain jurisdiction and decide the appeal on its merits.

      . Recently, a panel of our Court filed an opinion which held that 42 Pa.C.S.A. § 8542 precluded municipal liability for injuries caused by the criminal acts of third person on property under the municipality’s ownership and control. Casey v. Geiger and the Borough of Camp Hill, 346 Pa.Super. 279, 499 A.2d 606, (1985) (Hoffman, J. dissenting). One month earlier, the Commonwealth Court filed an opinion which seems to reach the opposite result. Johnson v. SEPTA, 91 Pa.Cmwlth. 587, 498 A.2d 22 (1985), (Craig, J. dissenting); (Barry, J. concurring). It is this sort of problem we hope to avoid by transferring this case.