author:
      CAVANAUGH, Judge:
      HOFFMAN, Judge,

text:
    500 A.2d 860
    COMMONWEALTH of Pennsylvania, Appellee, v. Sherman McGETH, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 4, 1985.
    Filed Nov. 8, 1985.

      Aaron C. Finestone, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This appeal is from a final order of the Court of Common Pleas of Philadelphia County dismissing appellant’s petition for PCHA relief without a hearing and permitting appointed PCHA counsel to withdraw. This case arises from the rape and robbery of a fifty-seven year old woman occurring on February 11, 1978. The appellant was charged with robbery, burglary and rape. On June 6, 1978, he appeared before Judge Samuel Smith, pleaded guilty to the charges and was sentenced to an aggregate of not less than ten nor more than twenty-five years imprisonment. No post-verdict motions were filed nor was a direct appeal taken.

Four years later, in April of 1982, appellant filed a pro se petition for relief under the Post Conviction Hearing Act. He claimed that (1) he was denied a right to representation by a competent lawyer; (2) his guilty plea was unlawfully induced; (3) exculpatory evidence subsequently became available; and (4) he was denied his right to appeal because he was not informed of this right. Counsel was appointed to represent the appellant in this PCHA petition. On April 28, 1983, after a review of the record, PCHA counsel submitted to the court a letter indicating that no issues of arguable merit could be found. It was at this time that the court dismissed appellant’s PCHA petition and allowed counsel to withdraw.

On this appeal from the order of the PCHA court appellant raises the following single issue:

Was PCHA counsel ineffective for filing a purported Anders brief which did not refer to anything in the record which would arguably support an appeal.

Specifically appellant asserts that there are two issues raised in his pro se PCHA petition which his PCHA counsel did not address in her Anders brief. The first of these relates to the alleged availability of exculpatory evidence which became available after sentencing. The second issue concerns the inability of the appellant to understand the consequences of his guilty plea. Appellant now claims that PCHA counsel’s failure to brief these issues was prejudicial to him because the PCHA court could not make a full and informed examination of the record and therefore was unable to find in appellant’s favor.

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court addressed the issue of the indigent defendant’s right to counsel on appeal. The Court recognized the fundamental notion of justice that the impecunious appellant is entitled to just as spirited a defense as the man who can retain private counsel. The Court also acknowledged, however, that even the most diligent counsel might justifiably believe that an appeal would be wholly frivolous. Accordingly, the Court in Anders offered appointed counsel two choices: (1) file briefs as an advocate (not an amicus curiae) and argue the client’s case, or (2) seek to withdraw as counsel. In the latter instance, the Anders Court directed the following:

Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498.

The Anders teachings were expressly adopted in Pennsylvania in Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968) and have been re-affirmed on a number of subsequent occasions. See, e.g., Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981); Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974); Commonwealth v. Jones, 451 Pa. 69, 301 A.2d 811 (1973); Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984), petition for allowance of appeal granted January 7, 1985. In interpreting Anders, our courts have noted that

[t]he core of Anders’ reasoning is that where an accused is entitled to a counselled appellate review, that right should not be denied or diminished solely because of indigency. However, Anders does not require that counsel be forced to pursue a wholly frivolous appeal just because his client is indigent. The major thrust of An-ders was to assure a careful assessment of any available claims that an indigent appellant might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record and also by placing the responsibility on the reviewing court to make an independent determination of the merit of the appeal.

Commonwealth v. McClendon, 495 Pa. at 473, 434 A.2d at 1188. In further interpreting Anders and the situations in which appointed counsel may withdraw his services, it has been opined:

It should be emphasized that lack of merit in an appeal is hot the legal equivalent of frivolity. Anders “appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.”

Commonwealth v. Greer, 455 Pa. at 108-09, 314 A.2d at 514 (quoting ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 8.3, commentary at 297 (Approved draft, 1971)).

The standard therefore is fairly well settled for the court which initially reviews counsel’s request to withdraw and the accompanying Anders brief. However, our appellate courts have not resolved the standard to be employed when reviewing appeals from the tribunal which has ruled on the Anders motion. In Commonwealth v. Lowenberg, 493 Pa. 232, 425 A.2d 1100 (1981), for example, an equally divided supreme court considered an appeal from the denial of that appellant’s second petition for relief under the PCHA. In an Opinion in Support of Affirmance joined by Justices Flaherty and Kaufman, Justice (now Chief Justice) Nix suggested that the holding of Anders is limited to first direct appeals from criminal convictions and implicitly does not control in “a collateral attack under a state statutory provision.” Justice Roberts, on the other hand, in an Opinion in Support of Reversal joined by then Chief Justice O’Brien and Justice Larsen, found that Mr. Lowenberg had been denied the effective representation of counsel at the PCHA level guaranteed by Anders. Justice Roberts further opined that “it is clearly not our duty at this point to speculate on the possible merit, if any, of appellant’s claims [which counsel failed to present at the PCHA level]. That task should be undertaken initially by the PCHA hearing court, ‘but only after it has had a chance to review the facts and applicable law as presented by an advocate. Id., 493 Pa. at 245, 425 A.2d at 1107 (quoting Commonwealth v. Baker, 429 Pa. 209, 214, 239 A.2d 201, 203 (1968) (emphasis in original)).

In Commonwealth v. Finley, supra, a panel of this court reviewed an appeal from an order denying PCHA relief and granting appointed counsel’s petition to withdraw. The Finley court concluded initially that Anders applied to the case before it. The court then reviewed the brief filed by the withdrawing attorney and found that it “does not satisfy the requirements of Anders in that it does not set forth any issues of arguable merit____” Id., 330 Pa.Superior Ct. at 319-21, 479 A.2d at 571. Additionally the Finley court noted that appellant’s present counsel had been able “to list several issues which may have arguable merit.” Accordingly, the case was remanded for an evidentiary hearing on the claims raised in Finley’s appellate brief and any other issues discerned by counsel following an exhaustive search of the record.

These cases provide only indirect guidance to us in assessing the present appellant’s claim that his court-appointed PCHA counsel was ineffective in failing to brief certain issues in the Anders brief-petition to withdraw. We therefore choose to apply general precepts of ineffectiveness law. Since the seminal case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), our standard for finding ineffective assistance of counsel has evolved to the point where it requires that the claimant demonstrate that he has been prejudiced by counsel’s alleged failures. See, e.g., Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Therefore counsel will not be found ineffective for failing to pursue a meritless claim. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Schreiber, 319 Pa.Super. 367, 466 A.2d 203 (1983).

Our ineffective assistance of counsel analysis must be applied in the present case against the background of Anders and its progeny. “Anders requires that counsel’s brief should refer to ‘anything in the record that might arguably support the appeal.’ ” Commonwealth v. McClendon, 495 Pa. at 472, 434 A.2d at 1187 (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498). Garvin and Strickland read in light of Anders therefore would require a claimant of ineffectiveness to demonstrate that his counsel failed to brief an issue which would “arguably support the appeal.”

In the case at bar appellant claims that his PCHA counsel failed to refer to two such issues in her Anders brief. The first of these is that exculpatory evidence has become available which would have affected the outcome of his trial if introduced. At no point, however, has the appellant revealed what type of evidence has been discovered nor what effect it might have had upon his conviction. Moreover, he has not averred that his PCHA counsel was ever made aware of the nature of this alleged exculpatory, new-found evidence. This court therefore cannot find PCHA counsel ineffective, for “[ajssertions of ineffectiveness in a vacuum cannot be ineffective. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that [prior] counsel may have, in fact, been ineffective.” Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

Appellant also avers that his PCHA counsel failed to brief a second issue, i.e. that appellant did not understand the consequences of his guilty plea. Again appellant provides this court with no showing from the record that this issue would arguably support his claim for PCHA relief. Additionally, since appellant did not file a timely request to withdraw his guilty plea, the issue had been waived. Appellant thus has failed to sustain his burden in demonstrating that he has been prejudiced as a result of his former counsel’s alleged omissions. His counsel will not be found ineffective.

Appellant places significant reliance in his present brief on Commonwealth v. Finley, supra, in which this court found that the proposed Anders brief was deficient. As stated above, “[t]he major thrust of Anders was to assure a careful assessment of any available claims that an indigent appellant might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record....” McClendon, 495 Pa. at 473, 434 A.2d at 1188. In Finley, however, this court observed that there was no allegation of an “exhaustive search” nor the required finding that the case was wholly frivolous. Satisfaction of this requirement was particularly belied by appellate counsel’s ability to list several issues of arguable merit. Therefore, in order to ensure that Finley’s right to a spirited defense was protected, this court in Finley was constrained to remand. Similarly, in his Concurring Opinion, Judge Hoffman would find that the procedure employed by appellant’s PCHA counsel does not comport with appellant’s constitutional guaranties. Although he would not reverse on this ground, Judge Hoffman writes that “ ‘counsel seeking to withdraw from such proceedings should “file[ ] a brief referring to anything in the record that might arguably support the appeal” but which “does not resemble a no-merit letter or amicus curiae brief.’ ” Concurring Opinion by Hoffman, J., at 867.

In Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), the Commonwealth expressly adopted the rule set forth in Anders. The court noted, as outlined in Anders, that counsel appointed to represent an indigent client has two choices: he may file briefs and argue the case as an advocate, not as an amicus curiae, or he may choose to withdraw his services. In Baker, counsel did not make a formal request to withdraw, but rather filed a brief which stated that “no meritorious argument” could be made on Baker’s behalf. The court correctly held that such a brief failed to satisfy the obligations imposed upon counsel who selects the first option of arguing the case as an advocate. However, viewing the brief in terms of the second alternative, requesting to withdraw, the Baker court opined: Baker, 429 Pa. at 214, 239 A.2d at 203. Thus, the court in Baker did not require that the brief to withdraw be couched in terms of an “advocate” as such.

Although we believe that the more desirable practice would be for counsel to submit a separate withdrawal request to the court, we may still, in the present case, treat counsel’s “memorandum” in the brief itself as such a request. As a withdrawal request the memorandum satisfies Anders insofar as it recites that the problem has been thoroughly researched, that counsel finds no merit in the appeal, and that he has discussed the case with his client. So also, can we consider counsel’s statement of the voir dire issue tantamount to a “brief referring to anything in the record that might arguably support the appeal”, although we wish to emphasize that a somewhat more substantial treatment of the arguable issue would be preferred hereafter.

The lower court cases following Baker, however, began to develop a change in the requirements of a withdrawal brief. This evolution culminated in cases such as Commonwealth v. Bellamy, 251 Pa.Super. 165, 380 A.2d 429 (1977), Commonwealth v. Turner, 248 Pa.Super. 306, 375 A.2d 110 (1977) and Commonwealth v. Brockington, 268 Pa.Super. 54, 407 A.2d 433 (1979), which interpreted the supreme court cases “to require virtually identical, advocate-type briefs whether counsel is attempting to withdraw or to prosecute the appeal on the merits.” Bellamy, 251 Pa.Super. at 169, 380 A.2d at 431.

In 1981, however, the supreme court clarified the obligations of counsel who seeks to withdraw. The court in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), pronounced:

The role of an advocate, insisted upon in Anders, refers to the manner in which the record was examined in an effort to uncover grounds to support the appeal. Where counsel has in good faith satisfied that obligation and found the appeal to be wholly frivolous, he can do no more. We reject the view that his explanation of why there is no basis for an appeal should be interpreted as reflecting counsel’s lack of concern in the client’s cause. Nor can that fact be assigned as a reason for concluding that the client did not receive this constitutionally protected right of representation.

McClendon, 495 Pa. at 473-74, 434 A.2d at 1188. Thus, contrary to the holdings of Bellamy and its progeny, infra, “[n]o longer are virtually identical advocate-briefs required when there is a petition to withdraw as are required where their argument is on the merits.” Commonwealth v. Reese, 293 Pa.Super. 44, 49, 437 A.2d 982, 984 (1981).

In Mr. McGeth’s case, the requirements of Anders— McClendon have been satisfied. In her Anders brief, appellant’s PCHA counsel attested:

Pursuant to [my court] appointment I reviewed the Quarter Sessions file in Room 660 City Hall, interviewed petitioner and reviewed all notes of testimony pertaining to the case. After having completed the foregoing, I have concluded that, in my professional opinion, the issues raised in petitioner’s pro se petition are without arguable merit and that there are no other issues or arguable merit which could be raised in a counselled Amended Petition.

Subsequently, the PCHA court itself engaged in a “careful review of the entire record” and concluded that the appellant’s petition alleged no grounds upon which to grant post-conviction relief. Counsel, therefore, properly discharged her duties as set forth in McClendon.

Finally, we take note of the significant delay in the present case of over four years between the date of sentencing and appellant’s petition for post-conviction relief. This unexplained lapse of time may be properly considered in assessing the merits of appellant’s claims and, under the present circumstances, suggests that his contentions at the PCHA level were wholly frivolous as his appointed counsel had concluded. See Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983); Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1982).

Order affirmed.

HOFFMAN, J., files a concurring opinion.

HOFFMAN, Judge,

concurring:

I agree with the majority that appellant’s PCHA counsel was not ineffective for failing to raise the issues of the alleged after-discovered evidence and the inability of appellant to understand the consequences of his guilty plea. I write separately, however, because I cannot agree with the majority’s conclusion that counsel’s “purported Anders brief,” Majority Opinion at 336 n. 1, satisfies the dictates of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

The PCHA judge below instructed appellant’s counsel that, if she sought to withdraw from this case, she “should write this Court outlining the extent of her review and listing each issue [appellant] himself wished to raise followed by an explanation why each issue was meritless.” (Lower Court Opinion at 3) (emphasis added). Counsel, in her letter “brief” to the court, did just that; she demonstrated why the issues of the (1) involuntariness of appellant’s guilty plea, (2) ineffectiveness of his trial counsel, and (3) failure to advise appellant of his right to withdraw his guilty plea and his right to appeal, were meritless. I do not believe that this procedure comports with Anders.

In Anders, Justice Clark stated that

[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.
This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain.

Anders v. California, supra, 386 U.S. at 744-45, 87 S.Ct. at 1400-01 (footnote omitted) (emphasis added). Thus, assuming that the Anders requirements apply to collateral proceedings, as I believe they should, see also Commonwealth v. Finley, 330 Pa.Superior Ct. 313, 479 A.2d 568 (1984) petition for allowance of appeal granted January 7, 1985, counsel seeking to withdraw from such proceedings should “file[] a brief referring to anything in the record that might arguably support the appeal” but which “does not resemble a no-merit letter or amicus curiae brief.” Commonwealth v. Wallace, 322 Pa.Superior Ct. 157, 160-62, 469 A.2d 230, 232 (1983). Otherwise, as is typified by the instant case, “the role of appellant’s ... PCHA counsel might more aptly be characterized as that of assistant to the prosecutor.” Commonwealth v. Lowenberg, 493 Pa. 232, 242, 425 A.2d 1100, 1105 (1981) (ROBERTS, J., dissenting). I am not, of course, suggesting that counsel should never be permitted to withdraw. If counsel, after thoroughly reviewing the record, believed that a petitioner’s PCHA claims were frivolous, he or she could simply “set[] forth in an amended petition, in acceptable, intelligible legal terms, those claims which appellant wished to advance, as well as any additional claims, ... necessary to the effective presentation of appellant’s primary claims....” Id., 493 Pa. at 244, 425 A.2d at 1106. Counsel could also include relevant case citations and references to the record in aid of the reviewing judge. In this way, a petitioner will not be “ ‘sandbagged when the counsel appointed by one arm of the Government seems to be helping another to seal his doom.’ ” Commonwealth v. Jones, 451 Pa. 69, 75, 301 A.2d 811, 815 (1973), quoting Suggs v. United States, 391 F.2d 971, 974 (D.C.Cir.1968).

      . The purported Anders brief to which appellant refers is in the form of a letter which appointed PCHA counsel sent to the PCHA court on April 28, 1983, stating that there were no issues of arguable merit.

      . See also Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984) petition for allowance of appeal granted January 7, 1985. In Finley this court observed:

        Progeny of Anders have provided us with a continuum of degrees of “meritless”. Counsel’s request to withdraw may only be granted if the court finds the case to be “wholly frivolous”; it may not be entertained if the appeal merely has “arguable merit” nor if it lacks merit. Mere absence of merit is not enough to support a request to withdraw or the granting of it.

        Id., 330 Pa.Superior Ct. at 322 n. 2, 479 A.2d at 572 n. 2 (citing Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974); Commonwealth v. Worthy, 301 Pa.Super. 46, 446 A.2d 1327 (1982)).

      . In the majority of instances in which the Anders issue has arisen in this Commonwealth, it has been the appellate court which has been faced with the initial petition to withdraw. See, e.g., Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) (Anders brief filed on direct appeal to supreme court); Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230 (1983) (petition and brief filed on appeal to superior court following PCHA dismissal). See also Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (first direct appeal). But see, e.g., Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968) (petition and brief filed in superior court reviewed on appeal to supreme court).

      . Cf. Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). In Lohr, the defendant appealed from an order of the PCHA court denying him relief without a hearing. Lohr argued, inter alia, that his appointed PCHA counsel was ineffective for failing to amend the defendant’s first pro se PCHA petition. The supreme court ruled that the appointed counsel’s actions in declining to file an amended petition should not be judged by the requirements of McClendon — Anders. Nevertheless, the Lohr court continued, noting that "the goal pursued by McClendon, review of the merit of the appeal, is fulfilled by the instant review, negating the possibility of prejudice inuring to appellant from the omissions of counsel.” Id., 503 Pa. at 138-39, 468 A.2d at 1379.

      . The only two issues addressed in counsel’s Anders brief were the two issues initially raised in the appellant's pro se PCHA petition. Both of these issues had been previously reviewed on direct appeal from the conviction to the Pennsylvania Supreme Court.

      . Additionally we must note that appellant pleaded guilty to the charges on which he was sentenced. “The only permissible challenges to a guilty plea, whether on direct appeal or in a collateral proceeding, are the jurisdiction of the court, the validity of the plea and the lawfulness of the sentence...." Commonwealth v. Alexander, 495 Pa. 26, 36, 432 A.2d 182, 187 (1981) (citing Commonwealth v. Alexander, 435 Pa. 33, 255 A.2d 119 (1969); Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967)). The appellant does not suggest to us that the allegedly exculpatory evidence would support a challenge on any of these grounds nor does he indicate how the evidence influenced his decision to plead guilty to the charges.

      . Appellant does not now challenge the conclusions reached by PCHA counsel or the PCHA court that the issues raised in the withdrawal brief were without arguable merit. His contention on appeal is simply that there were other issues which counsel ought to have briefed.

      . We also note that although appointed PCHA counsel did not address in her Anders brief two issues raised by the appellant in his pro se PCHA petition, this is not itself per se ineffectiveness. It is well settled that “[a]ppointed counsel is of course not required to accept a client's view by asserting points his good conscience would reject even at the loss of a handsome fee.” Suggs v. United States, 391 F.2d 971, 974 (D.C.Cir.1968). See generally Code of Professional Responsibility Canon 7 (1984).

      . I would not reverse here, however, because appellant does not argue that the issues PCHA counsel did raise were improperly briefed, and, contrary to appellant’s assertion, Anders does not require that the brief filed in support of a petition to withdraw must give a court some basis on which to find in favor of a defendant. My only purpose in writing is to take exception to the practice of attorneys who, in seeking to withdraw, argue against their clients.

      . Appellant has never had a direct appeal.

      . The majority impliedly so finds.

      . When petitioning the court to withdraw, counsel must also explain his or her position to petitioner, provide petitioner with a copy of the amended petition, and inform him or her of the right to proceed in propia persona. See Commonwealth v. Lowenberg, supra, 493 Pa. at 244, 425 A.2d at 1106 (ROBERTS, J., dissenting).

      . Compare the Massachusetts procedure:
      In summary, we adopt the following guidelines in order to avoid the fragmentary and circuitous steps of the procedure suggested in Anders yet still achieve the Anders goal of assuring that indigent appellants receive treatment substantially equal to that enjoyed by those able to retain private counsel. Once counsel is appointed to represent an indigent criminal defendant on appeal, no withdrawal will be permitted solely on the basis of the frivolousness or merit-lessness of the appeal. Even if counsel has doubts about the merits of the appeal, he or she must prepare and submit a brief arguing any issues that are arguable. Counsel need not espouse unsupportable contentions insisted on by the defendant, but should present them sketchily, simply designating pertinent portions of the trial transcript and citing any relevant cases. If counsel feels ethically compelled to dissociate himself or herself from contentions presented in the brief, counsel may preface the brief with a statement that it is filed pursuant to Anders and to the guidelines of this case. In that event, counsel must so notify the defendant, who will have thirty days to respond should he so choose. Beyond such a preface, counsel should not inject disclaimers of personal belief in the merits of the case or otherwise argue against the defendant's interests.

        Commonwealth v. Moffett, 383 Mass. 201, 216-17, 418 N.E.2d 585, 596 (1981) (footnotes omitted) (emphasis added).

      . To the extent that Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), permits an attorney to argue against his or her client, that is, to show that the issues a defendant wishes to raise are lacking in merit, I believe that it is in derogation of Anders. See id., 495 Pa. at 474-77, 434 A.2d at 1188-90 (O’BRIEN, C.J., dissenting). McClendon may go even further and stand for the proposition that no discussion of the issues is necessary, in that it holds that once counsel finds "the appeal to be wholly frivolous, he [or she] can do no more.” Id., 495 Pa. at 474, 434 A.2d at 1188. Such a result would render Anders meaningless. A court would have to conduct its own independent review of the record, making it, in effect, a defendant’s "counsel” searching for possible trial errors, or, if the court accepted counsel's conclusion (as may happen in practice), counsel would become the “court” determining the merits of a defendant’s appeal.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    500 A.2d 868
    COMMONWEALTH of Pennsylvania v. Clarence William IRVING, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Nov. 8, 1985.

      James P. Gannon, Media, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Wayne, for Commonwealth, appellee.
    Before MONTEMURO, ROBERTS and BLOOM, JJ.

       Judge Louis A. Bloom, Senior Judge, of the Court of Common Pleas, of Delaware County, Pennsylvania, is sitting by designation.

   MONTEMURO, Judge:

On January 5,1984, appellant pled guilty to two counts of aggravated assault. At a pre-trial conference prior to appellant’s plea, the Commonwealth gave appellant notice of its intention to proceed according to the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712. Appellant informed the court of his intention to challenge the constitutionality of section 9712 of the Act. Following his guilty plea, appellant was sentenced to concurrent terms of five (5) to ten (10) years imprisonment on each count of aggravated assault and was ordered to pay restitution and costs of prosecution. Appellant’s timely filed motion to modify sentence was denied and this appeal followed.

In the court below, the Honorable Clement J. McGovern, Jr., of the Court of Common Pleas of Delaware County, concluded that appellant had not waived his right to challenge section 9712 of the Act by pleading guilty to the aggravated assault charges. The court concluded he had standing to challenge the section, given appellant’s early indication of his intention to do so and the Commonwealth’s acquiescence thereto. Judge McGovern rejected the arguments that the section violates the separation of powers principle; that it constitutes cruel and unusual punishment; and that it violates equal protection. The court additionally decided, sua sponte, and without basing its decision in this case on the issue, that the section denies substantive due process by permitting proof of an element (visible possession) of a crime to be made by a mere preponderance of the evidence.

Appellant first argues the court below erred in concluding that section 9712 of the Act does not unconstitutionally deny a defendant’s right to equal protection. We disagree.

The equal protection clauses of the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Pennsylvania Constitution require the state to afford its citizens equal protection of the laws. The Commonwealth is not, however, absolutely restricted from treating different classes of people in different ways, so long as the differential treatment is not based on criteria wholly unrelated to the purpose of the legislative enactment. In Re Estate of Cavill, 459 Pa. 411, 415, 329 A.2d 503, 505 (1974) (citing Eisenstadt v. Baird, 405 U.S. 438, 446-47, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349, 358 (1972), quoting Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225, 229 (1971)).

When a legislative enactment is challenged on constitutional grounds it is presumed to be constitutionally valid. Commonwealth v. Covert, 322 Pa.Super. 192, 196, 469 A.2d 248, 250 (1983). Generally, regarding an equal protection challenge, differential treatment of a class of persons will not be deemed violative of equal protection rights if the differential treatment may be reasonably supported by facts justifying the distinction. Commonwealth v. Bottchenbaugh, 306 Pa.Super. 406, 411-12, 452 A.2d 789, 791-92 (1982) (citing Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974)). Nonetheless, the presumption of constitutional validity is not absolute. Bottchenbaugh, supra, 306 Pa.Super. at 412, 452 A.2d at 792.

In order to overcome the presumption of constitutional validity, appellant bears the burden of refuting the presumption by a plain, clear, palpable showing that section 9712 of the Act is a denial of equal protection. James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 142-43, 477 A.2d 1302, 1304 (1984). See also, Milk Control Commission v. Battista, 413 Pa. 652, 659, 198 A.2d 840, 843 (1964); Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975). Any doubt regarding constitutional validity is to be resolved in favor of sustaining the statute. Estate of Cox, 327 Pa.Super. 479, 485, 476 A.2d 367, 371 (1984) (citing Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981)); See also, Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978).

In raising his equal protection challenge, appellant asserts that the test of constitutionality is whether the distinction drawn by section 9712 of the Act is reasonable and has a fair and substantial relationship to the object of the legislation. Appellant argues the object of the legislation is to deter those who would commit certain crimes with firearms. The sentencing guidelines, appellant reasons, have the legitimate object of deterring aggravated assaults, and since the statute in question does not deter aggravated assaults which are not committed with firearms, the legislation fails to accomplish its object of deterrence and thus results in unequal treatment of a defendant.

Under the “rational relationship” test, in order for section 9712 of the Act to pass constitutional muster on equal protection grounds, the classification drawn by the statute “ ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the legislation so that all persons similarly circumstanced shall be treated alike.’ ” Stottlemyer v. Stottlemyer, 458 Pa. 503, 513, 329 A.2d 892, 897 (1974) (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990-91 (1920)). See also, Baird, supra; Reed, supra.

In Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), while deciding the constitutionality of section 9712 of the Act on other grounds, our supreme court considered the legislature’s objectives in passing the statute. The court recognized that the legislature seeks to protect the public from armed criminals, to deter violent crime and illegal use of firearms, and to vindicate its interest in punishing those who commit serious crimes with the visible possession of a firearm. Wright, supra, 508 Pa. at —, 494 A.2d at 362. It remains for us to determine whether these objectives are fairly and substantially met by the provisions of section 9712 of the Act. We believe they are.

Appellant faces a five year minimum sentence for his conviction of aggravated assault and violation of section 9712 of the Act. Because appellant, or any defendant, who is convicted of one of the enumerated crimes and is found to have visibly possessed a firearm during the commission of the crime, faces a five year minimum jail sentence under section 9712 of the Act, the sentence sends a warning to all potential criminals contemplating a crime enumerated in the statute. The sentence places all potential criminals on notice that they will be subject to a five year jail sentence if they are convicted of an enumerated crime, and if visible possession of a firearm is proven. Such notice acts to deter violent crime and illegal use of firearms. Wright, supra.

By deterring the commission of violent crime and the illegal use of firearms, section 9712 of the Act protects the public by decreasing the risk of death or serious injury when a member of the public falls victim to an enumerated crime. Furthermore, when an enumerated crime does occur, the legislature properly vindicates its interests by punishing the convicted defendant with a stiff penalty. Accordingly, we find that the provisions of section 9712 of the Act fairly and substantially serve the legislature’s objectives in passing the statute, and therefore do not deny equal protection in violation of the United States and Pennsylvania Constitutions.

Appellant further argues that section 9712 of the Act denies a defendant substantive due process by allowing proof of visible possession of a firearm to be made by a preponderance of the evidence, and that he did not waive his right to litigate this issue on appeal by not presenting it to the court below. Although we agree appellant has not waived his right to raise the due process issue on appeal, we do not agree that appellant was denied substantive due process.

Because the due process issue challenges the legality of his sentence under section 9712, appellant has not waived his right to raise the issue simply because it was raised for the first time on appeal. Commonwealth v. Norris, 498 Pa. 308, 318-19 n. 9, 446 A.2d 246, 251 n. 9 (1982) (citing Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976)).

In Wright, our supreme court held that section 9712 of the Act does not unconstitutionally deny substantive due process by requiring proof of visible possession to be made by a preponderance of the evidence. Wright, supra. Since the issue has been finally decided in this Commonwealth, we need not consider it further.

Judgment of sentence affirmed.

      . We note here our disapproval of trial court's sua sponte consideration of the substantive due process issue. In Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) our supreme court stated that sua sponte consideration of constitutional issues by this court exceeds our proper appellate function. In several instances the supreme court has applied the reasoning of Wiegand to trial courts that have wrongfully considered issues raised sua sponte. For our purposes we cite Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980) as sufficient authority. Although we find the trial court improperly considered the substantive due process issue, we address the issue below as it questions the legality of appellant’s sentence.

      . Appellant reasserts his claim that he has standing to attack the validity of section 9712 of the Act because it concerns the legality of his sentence. We note the court below concluded appellant had standing to raise the constitutional challenges and both parties presently agree. We, therefore, will assume appellant has standing to raise his constitutional challenge. Additionally, we note that the separation of powers, and cruel and unusual punishment arguments are not raised on appeal.

      . When a statute is constitutionally challenged on equal protection grounds we recognize three levels of review. "Strict scrutiny” is applied when a statute in question affects a "suspect class,” or a "fundamental right” or “liberty interest." "Heightened scrutiny" is appropriate when a “quasi-suspect” class is affected. Estate of Cox, 327 Pa.Super 479, 486, 476 A.2d 367, 371 (1984). Appellant argues under the "rational relationship” level of review. Explained, infra.

      While we have fully considered the application of either the "strict scrutiny” or "heightened scrutiny” levels of review, we remain satisfied that the "rational relationship” test is the proper level of review. Section 9712 of the Act does not affect a "suspect class,” or a "fundamental right" or "liberty interest” (requiring "strict scrutiny”) in a manner different from that of other convicted defendants awaiting sentence. Commonwealth v. Wright, 508 Pa. 25, —, 494 A.2d 354, 361 (1985); Cox, supra, 327 Pa.Super. at 485, 476 A.2d at 371. Nor does the section affect a "quasi-suspect” class (requiring "heightened scrutiny”). Thus, the "rational relationship" test is appropriate.

      . See Commonwealth v. Cooke, 342 Pa.Super. 58, 69, 492 A.2d 63, 70 (1985).


author: BECK, Judge: POPOVICH, Judge,

text:
    500 A.2d 872
    HARLEYSVILLE INSURANCE COMPANY, Appellant, v. Michael WOZNIAK, John Wozniak, and Allstate Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed Nov. 8, 1985.

      William D. March, Media, for appellant.
    E. Lawrence Hannaway, Philadelphia, for Wozniak, appel-lees.
    Owen W. Nash, Assistant Public Defender, Media, for Allstate, appellee.
    Before BECK, POPOVICH and TROMMER , JJ.

       Judge Evelyn Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   BECK, Judge:

In this appeal we are confronted with an issue of first impression concerning the interaction of Section 305 of The Pennsylvania Workmen’s Compensation Act (Workmen’s Act) and Section 204 of the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act) where an employee has been injured in the scope of his employment by a vehicular accident and the employer has not provided workers’ compensation coverage. Under these circumstances is the injured worker’s or the employer’s no-fault carrier primarily liable for coverage?

Employer-appellee John Wozniak failed to carry workers’ compensation insurance. His employee, appellee Michael Wozniak, sustained injuries as the driver of a truck owned by his employer John. The truck was insured by John’s no-fault carrier, appellant Harleysville Insurance Company. Michael brought an action for No-fault Act benefits against appellant Harleysville and against his personal no-fault carrier, appellee Allstate Insurance Company.

Harleysville moved for summary judgment on the ground that, pursuant to the Workmen’s Act, Michael’s exclusive remedy for an injury during the course of his employment was against his employer John and his employer’s Workmen’s Act insurer, if any. The trial court denied Harleys-ville’s motion, and in accordance with Section 702(b) of the Judicial Code, 42 Pa.C.S. § 702(b), certified its interlocutory denial for immediate appellate review.

It is well established that where an employee is injured in a motor vehicle accident while operating his employer’s vehicle during the course of his employment, the employee’s recovery is limited to workers’ compensation and an action against his personal no-fault insurer or the Pennsylvania Assigned Claims Plan for any loss in excess of the coverage provided by the Workmen’s Act. Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980); Mumma v. Pennsylvania Assigned Claims Plan, 331 Pa.Super. 205, 480 A.2d 316 (1984); Ellisor v. Allstate Insurance Co., 325 Pa.Super. 318, 472 A.2d 1138 (1984); Motley v. State Farm Mutual Automobile Insurance Co., 303 Pa.Super 120, 449 A.2d 607 (1982); Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa. Super. 43, 389 A.2d 591 (1978).

Thus, when an employee has received workers’ compensation, the Workmen’s Act has been construed to preclude a suit against the employer’s no-fault insurer on the ground that the employer’s liability is limited to the provision of workers’ compensation. Motley.

Should the same rule appertain where the employer fails to carry workers’ compensation insurance? Should the employer’s failure to obtain coverage under the Workmen’s Act shift the entire burden of compensation to the employee’s carrier and thus insulate the employer’s no-fault insurer from liability where the employee’s vehicular injury occurred in the scope of his employment? Citing Section 303 of the Workmen’s Act, as amended, 77 P.S. § 481, appellant Harleysville contends that the Workmen’s Act is the employee’s sole remedy against the employer, and concomitantly, any insurer of the employer, for an injury incurred during the course of employment.

To support its contention, Harleysville interprets Section 305 of the Workmen’s Act, as amended, 77 P.S. § 501, as affording an employee relief exclusively within the terms of the Workmen’s Act whether or not the employer obtains workers’ coverage for an employee. We agree that the employee must look to Section 305 for his remedy. However, we disagree with appellant’s interpretation of the statute and find that the statute clearly makes the employer’s carrier primarily liable.

In pertinent part, Section 305 states that “[w]hen any employer fails to secure the payment of [workers’] compensation ..., the injured employee ... may proceed either under ... [the Workmen’s Act] or in a suit for damages [against the employer] at law as provided by ... [Sections 201, 202, 203 and 204 of the Workmen’s Act, as amended, 77 P.S. §§ 41, 51, 52 & 71, and Section 205 of the Workmen’s Act, as added by the Act of August 24, 1963, P.L. 1175, 77 P.S. § 72].’ (Emphasis added.) The statute is framed in the disjunctive. Where an employer has not supplied workers’ compensation, the clear language in Section 305 offers the employee an election either to proceed under the Act by accepting the compensation schedules of Article III of the Workmen’s Act or, alternatively, to secure relief outside the Act by an action at law for damages against his employer. Nothing in Section 305 permits an interpretation restricting the liability of an employer and his insurers where the employer has not complied with the terms of the Act.

Consequently, where an employer does not supply workers’ compensation, an injured employee may present a claim to the employer’s no-fault insurer in accordance with Subsection 204(a)(1) of the No-fault Act, and bring an action at law against the employer., Our statutory interpretation establishes that in such a circumstance, the employee shall first look to the employer’s no-fault carrier. Our statutory interpretation is supported by sound policy. An employer’s no-fault carrier can inform itself as to whether the employer carries workers’ compensation insurance and can contractually protect itself in dealings with an employer who does not provide workers’ compensation.

Therefore, because Michael may have a valid claim against Harleysville as his employer’s no-fault insurer, we affirm the trial court’s denial of appellant’s motion for summary judgment.

POPOVICH, J., files a concurring statement.

POPOVICH, Judge,

concurring statement:

I concur in the result only. An employee’s remedy for his employer’s failure to secure workers’ compensation insur-anee is to either accept the compensation schedule under the Workmen’s Act or file suit at law.

By allowing the employee to collect no-fault benefits through the employer’s automobile insurer and also sue the employer, I believe is to exceed the clear language of the Act in terms of the scope of his recovery.

The Act’s allowance of a suit at law on the part of the employee would permit him to sue the employer for injuries and damages sustained. Perforce, the employer would seek joinder of the insurance carrier for indemnification purposes. Thus, although I agree with the result, I find the logic to divert from the clear language of the statute in tacitly condoning a dual suit not contemplated by law.

      . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 501.

      . Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.204.

      . " ‘In ruling on a motion for summary judgment the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom.’ ” Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 404, 446 A.2d 914, 917 (1982) (citation omitted). Summary judgment is appropriate only where there exists no genuine issue as to any material fact, and the movant is entitled to a judgment as a matter of law. Id.; Pa.R.C.P. No. 1035(b).

      . Sections 201, 202, 203 and 204 of the Workmen’sAct abolish certain defenses which an employer might wish to assert in an action at law. Among the eliminated defenses are the following: the negligence of a fellow servant, assumption of the risk, and contributory negligence.

      . We note, parenthetically, that in this case there was no written agreement between the employer and the employee for exclusion from coverage by the Workmen’s Act. Section 302(a) of the Workmen’s Act, as amended, 77 P.S. § 461.

      . In significant part, Subsection 204(a)(1) states that "the security for the payment of basic loss benefits ... to an employee ..., if the accident resulting in injury occurs while the victim ... is driving ... a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle ...."

      . We deem the fact pattern of this case to constitute another exception to the applicability of Section 204 in situations involving injuries to employees. See, e.g., exceptions enumerated in Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980); Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa.Super. 43, 389 A.2d 591 (1978).

      . Since we view an action at law under Section 305 of the Workmen’s Act as permitting an employee relief outside the Workmen’s Act, we conclude that any award obtained by an employee in an action at law allowed by Section 305 need not be subtracted from an employee's loss in calculating the employee’s net loss under the No-fault Act since such an award is not workers’ compensation but is a judgment in lieu of workers’ compensation. See Section 206 of the No-fault Act, 40 P.S. § 1009.206, which enumerates those benefits received outside the No-fault Act (such as workers’ compensation) that shall be subtracted from loss in calculating net loss under the No-fault Act. Section 206 does not specify deduction from net loss of any amount recovered in a permissible action at law.

      . See footnote 4, infra, on the employer’s liability in the action at law under Section 305 of the Workmen's Act.


author: TAMILIA, Judge:

text:
    500 A.2d 876
    Robert J. McNULTY, Appellant, v. Joan E. McNULTY.
    Superior Court of Pennsylvania.
    Argued May 2, 1985.
    Filed Nov. 8, 1985.

      J. Ross McGinnis, York, for appellant.
    Keith R. Nonemaker, Hanover, for appellee.

      Before TAMILIA, MONTGOMERY and ROBERTS, JJ.
   TAMILIA, Judge:

This appeal lies from an Order awarding appellee alimony pendente lite, counsel fees and all expenses, including Master’s and stenographer’s costs.

The parties were married in 1979 and after chronic marital discord, separated in 1982. There were no children. In 1979, appellee, who had been working as a full time phlebo-tomist in a local hospital at a salary approximately one-half that of appellant’s, reduced her hours to part time in order to return to school for her B.S. in nursing. Her eventual goal was to undergo two years graduate training as well, in order to become a nurse anesthetist. Because of appellant’s disapproval of this ambition, it was agreed that appellee should undertake to satisfy her educational expenses, car payments, and medical bills out of her part time income. At the time of separation, two years after she entered training, appellee had nineteen credits to complete at a local (York) college. Appellant’s refusal to supply any financial assistance subsequent to his filing of the divorce complaint necessitated appellee’s return to the home of her parents in Milwaukee, Wisconsin, for which she incurred moving expenses. Her attendance at a college there resulted in considerable increase in expenditure for tuition, since the school required her to complete an additional 40 credits for graduation, at a greater cost per credit.

The parties lived together until May, 1982, when appellant filed for divorce alleging indignities to the person under section 201(a)(6) of the Divorce Code. In her answer, the appellee requested alimony pendente lite, alimony, counsel fees, costs, and equitable distribution of marital property pursuant to section 401 of the Code. Ultimately, the parties agreed to sign the consents necessary to obtain a 201(c) no-fault divorce and to have all matters regarding support and property determined by a court-appointed master.

In reviewing awards or denials of alimony pendente lite, counsel fees and expenses, we are limited to a determination of whether the trial court abused its discretion. Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984). Appellant has raised four issues, a separate challenge to each provision of the ordered award on abuse of discretion grounds.

It is first alleged that because the court ordered payment of alimony pendente lite on the basis of guidelines provided in section 501 of the Divorce Code when section 502, provides none, the award order should be reversed and remanded for determination under the latter section. We agree that there is a problem concerning the order, but it is one of semantics alone, a point overlooked entirely by appellant and in part by the lower court.

The trial judge awarded alimony pendente lite as opposed to alimony, following the recommendations of the master, who divided the order between support, alimony and alimony pendente lite, presumably because the parties were not yet at the point wherein a divorce decree could be entered. There was no difference in the amount ordered for the period payable except as to designation. A support order was previously entered in the amount of $108 per week, but was suspended with all amounts collected being placed in escrow, pending the outcome of the divorce. This amount formed the basis, subsequently, for the alimony award. By stipulation, the parties agreed that all matters would be heard and determined by the Master, including support, alimony pendente lite, alimony, costs and counsel fees, and distribution of marital property. Those determinations were made by the Master, and after denial of exceptions, affirmed by the court as to the amount. While the Master failed to delineate the support and alimony categories under distinct headings as required by Pa.R.C.P. 1920.54, as properly determined by the trial court, the findings were made and adequately supported by the record. The court then combined the categories into alimony pendente lite. We do not agree with the award of costs, as will be discussed below. Since the Master’s award provided for $108 per week support from August 8, 1982 until November 15, 1982, and $108 per week alimony pendente lite until the divorce and $108 per week alimony from the divorce until August, 1983, the date of completion of appellee’s schooling, the result was that alimony pendente lite was in effect until August, 1983, as the divorce did not occur until much later, and therefore, no actual “alimony” became payable. This was recognized by the court and resulted in the award being limited to alimony pendente lite. Support could have been awarded but as alimony pendente lite was requested, it more realistically applied to the divorce proceeding. “The obligation of support arises out of the marital relationship itself while alimony pendente lite is awarded only to enable the dependant spouse to maintain or defend the divorce litigation.” Id,., 327 Pa.Superior Ct. at 331, 475 A.2d at 823 (citations omitted). This does not mean, however, that alimony is not support and therefore not governed by the same considerations relevant to a support order.

A brief discussion of the relationship between support, alimony and the legislative intent of the Divorce Code of 1980, will serve to clarify the issues raised in this case. There are five procedural means provided by statute by which obligations to pay support are determined and enforced: 1) Support Proceedings, 42 Pa.C.S.A. § 6701 et seq., suspended by Actions for Support, Pa.R.C.P. 1910.1 et seq.; 2) The willful separation or nonsupport section of the Crimes Code, 18 Pa.C.S. § 4321; 3) Alimony pendente lite, counsel fees and expenses, 23 P.S. § 502; 4) Alimony, 23 P.S. § 501. The fifth procedure, which the support rules have not suspended, is an in rem procedure against real property under the provisions of Actions for Support and Maintenance, 48 P.S. § 131-141. None of the above affect private agreements between parties not incorporated into the divorce decree pursuant to 23 P.S. § 501(f), which are enforced pursuant to the laws of contract in an assumpsit action. See Hollman v. Hollman, 346 Pa.Super. 289, 500 A.2d 837 (1985).

The substantive law which creates the support obligation pursuant to statute is found in the Support Law, 62 P.S. § 1971 et seq.; Nonsupport, 18 Pa.C.S. § 4321 et seq.; Actions for Support and Maintenance, 48 P.S. § 132; Alimony, 23 P.S. § 501; Alimony pendente lite, 23 P.S. § 502; Definitions, 23 P.S. § 104. There is one unique characteristic of all of these statutory provisions in that they provide for enforcement of a duty of support arising at common law as an incidence of marriage. The duty to support is an incident of the marriage which is enforceable by operation of law. Commonwealth ex rel. Smith v. Smith, 260 Pa.Super. 203, 393 A.2d 1224 (1978). Alimony is a species of support and is defined at 23 P.S. § 104:

“Alimony.”
An order for support granted by this or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.

Alimony pendente lite is, likewise, by definition, support as defined in 23 P.S. § 104:

“Alimony pendente lite”
An order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.

It has in common with “support” and “alimony” that it is a duty which is an incident of marriage. Smith, supra. It likewise is in common with “support” in that it terminates with marriage. “Alimony” has in common with “support” and “alimony pendente lite” that it is a duty arising out of marriage but is distinguished in that it continues after divorce when fixed in conjunction with a divorce or annulment decree. Its purpose is not to reward one party and to punish the other, but rather to ensure that reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met. Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984).

Thus, all three are species of support and as such, the relevant considerations in arriving at the amount are those elemental to any support order: duty of the obligor, need of the obligee, and ability to pay on the part of the obligor. The section on alimony (23 P.S. § 501) provides an extensive, though not exclusive, list of considerations the court may review in arriving at an alimony order. These same considerations most certainly are appropriate, with others, to be taken into account when considering any spousal support order, and since 23 P.S. § 502, Alimony Pendente Lite, is silent as to relevant considerations other than it being temporary in nature, there is no reason not to have these matters considered. Orders of support and alimony pendente lite, while not exclusive of each other, must be considered in conjunction with each other as they relate to the obligor’s ability to pay, when both procedures are utilized. Prozzoly, supra; Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Likewise, while the rules, Actions for Support, Pa.R.C.P. 1910.1 et seq., apply to enforcement of support proceedings and 23 P.S. §§ 501, 502, 503 and 504 apply to alimony and alimony pendente lite, the enforcement procedures are identical. Also, pursuant to Pa.R.C.P. 1920.31(b)(1) relating to divorce or annulment actions, orders of alimony or alimony pendente lite may be enforced by the practice and procedure in actions for support (Pa.R.C.P. 1910.1 et seq.) and in the Divorce Code. The major differences in procedure are tactical; when child support and/or spousal support is desired, and divorce is not contemplated, the support proceeding under Rule 1910.1 et seq. is the preferred procedure. When spousal support alone or with child support is sought, in conjunction with a divorce proceeding and a need exists for payment of lawyers fees and expenses, alimony pendente lite is suggested, whereas at the time a divorce decree appears imminent and continued spousal support is necessary, following divorce, a claim for alimony is in order. Pursuant to Pa.R.C.P. 1920.31, claims for child support, alimony, alimony pendente lite, counsel fees, and expenses may be joined. The difference in case posture controls the procedure but does not alter the underlying considerations and assessment of the support amount, except for the duration. While it is arguable that a consideration for alimony pendente lite, under section 502, without taking into account the factors listed under section 501, would favor the appellant, the likelihood that the order would be less is not justified. Section 502 is designed to sustain the spouse on a basis of equality with the other spouse while pursuing the divorce action, and those factors to be considered in section 501 might very well result in a nominal or nonexistent award at the time of divorce, whereas under section 502, without those considerations (such as section 501(a)(1), (b)(4), (10), (13)), the duty to support would warrant a substantial award. Remiek, supra. Here, the wife was maintained in a position of relative equality with her situation prior to the filing of the divorce complaint, which is exactly what the code contemplated by section 502, provided the husband could sustain it in a nonconfiscatory fashion. Appellant, in his brief, argues precisely what we have discussed above, that alimony under section 501 may not have been justified as rehabilitative (which we do not accept) but he has no basis to make that argument for alimony pendente lite, pursuant to section 502. To return this case for consideration under section 502 of the Divorce Code, eliminating any application of factors listed in section 501, would be redundant and a waste of judicial time, particularly since the considerations merge and the claims are joined. Applying the mandate of the legislature, as expounded in the Divorce Code, § 102, Legislative findings and intent, we cannot accept, as an abuse of discretion, the consideration by the court of some of the factors set forth under section 501, on a claim for alimony pendente lite under section 502, when the award of support was otherwise appropriate. In this instance, it would be elevating form over substance to no avail. It is clear from the trial court’s discussion of the factors enumerated in section 501 to justify an award of support/alimony, that the award was prompted by a recognition of appellant’s obligation to his spouse. Appellee’s need for support was temporary consisting of a period of about one year to complete education embarked upon long before the divorce complaint was filed. In context, therefore, those factors enumerated under section 501 considered by the trial court are equally applicable in a given situation under section 502. Section 501 considerations in this case apply equally to an alimony, or alimony pendente lite award, and as seen above, appellee could also have maintained a separate support action with the same result. Prozzoly, supra. Section 502, however, is the sole basis for the award of counsel fees, expenses and costs which we address below.

Appellant next argues that the support award was an abuse of discretion because it contravened an oral agreement between the parties to the effect that appellant would not be responsible for appellee’s educational expenses, and because appellee had a proven earning capacity as a phlebo-tomist. The assumption underlying appellant’s claim is that because his wife had some employable skills and because he has, from the outset, disapproved of her increasing them, his marital obligation is obviated. The other facet of this argument is that even if it was appropriate to consider this award pursuant to section 501, appellee should not prevail.

As the lower court points out, the “appropriate employment” referred to in section 501(c) does not refer to “any” employment. “It means employment that is suited to the expectancies and abilities of the parties.” (Lower Court Slip Op. at 6) To decide otherwise would, in fact, undermine the intent of rehabilitative maintenance since nearly all dependant spouses who win such awards could, theoretically, obtain employment in some menial and unskilled capacity. The award is of fixed duration, and its object is to achieve an approximation of parity, both of which are goals described by our case law. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983); Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). Such an award is intended to have long term effect in that it looks to the spouse’s ability, by developing a potential for self-support, to obtain complete autonomy. We agree with the maxim that “rehabilitative alimony is most appropriate where the dependant spouse is still young, the marriage of relatively short duration, and the dependant spouse has the ability to develop or redevelop qualifications for self-support.” 24 Am.Jur.2d Divorce and Separation, § 746. Such a factual situation obtains here.

The amount of time necessary for appellee to educate herself into appropriate employment as a registered nurse (rather than her eventual goal as an anesthetist) was amply demonstrated and the award fashioned accordingly. There was no abuse of discretion by the court in so doing.

Appellant next argues that the award of counsel fees and expenses was improperly made. His argument is the same upon which he would have denied appellee support. Our basis for review in deciding whether the court has properly awarded counsel fees and expenses is also an abuse of discretion standard. Remick, supra. The trial court found these were reasonable, directly related to the action under consideration, and that such an award facilitated economic justice. We, too, find this case to be a proper one for such payments under section 502.

Finally, it is contended that the court should not have assessed appellant for the Master’s and stenographer’s charges, citing Fried v. Fried, 326 Pa.Super. 271, 473 A.2d 1087 (1984) in support. In that case, we held that such costs, defined to include Master’s and stenographic fees by Pa.R.C.P. 1920.62(a), could only be assessed upon final resolution of the case under section 401(b) of the Divorce Code.

Appellee argues that the award was proper since funds had been placed in escrow by appellant with the agreement of both parties that they could be expended for such purpose. However, given the specificity of section 401(b), that provision governs. The escrow funds therefore become available for support or may be retained for the award of Master’s fees and stenographer’s costs as determined by the court “upon final disposition” of the case which usually occurs when the decree is entered. It may well be that by the time we have filed this Opinion these matters may be capable of disposition. They are, however, beyond our purview.

It is hereby ordered that the Order of the court below as to alimony pendente lite and counsel fees be affirmed and the Order as to Master’s and stenographic fees be vacated. Case remanded for such further orders required as to the escrow account consistent with this Opinion.

Jurisdiction is relinquished.

      . 23 P.S. § 501. Alimony
      (a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
      (1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
      (2) is unable to support himself or herself through appropriate employment.
      (b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
      (1) The relative earnings and earning capacities of the parties.
      (2) The ages, and the physical, mental and emotional conditions of the parties.
      (3) The sources of income of both parties including but not limited to medical retirement, insurance or other benefits.
      (4) The expectancies and inheritances of the parties.
      (5) The duration of the marriage.
      (6) The contribution by one party to the education, training or increased earning power of the other party.
      (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
      (8) The standard of living of the parties established during the marriage.
      (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
      (10) The relative assets and liabilities of the parties.
      (11) The property brought to the marriage by either party.
      (12) The contribution of a spouse as homemaker.
      (13) The relative needs of the parties.
      (14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

        (c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
      (1) obtaining appropriate employment; or
      (2) developing an appropriate employable skill.
      (d) In an order made under this section the court shall set forth the reason or reasons for its denial or award of alimony and the amount thereof.
      (e) Any order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon such order may be modified, suspended, terminated, reinstituted, or a new order made. Any such further order shall apply only to payment accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.
      (f) Whenever the court shall approve an agreement for the payment of alimony voluntarily entered into between the parties, such agreement shall be deemed the order of the court and may be enforced as provided in section 503.

      1980, April 2, P.L. 63, No. 26, § 501, effective in 90 days.

      . 23 P.S. § 502. Alimony pendente lite, counsel fees and expenses
      The court may, upon petition, in proper cases, allow a spouse reasonable alimony pendente lite and reasonable counsel fees and expenses.


author: HOFFMAN, Judge:

text:
    500 A.2d 882
    COMMONWEALTH of Pennsylvania v. Dennis Patrick CATAPANO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1985.
    Filed Nov. 8, 1985.

      Frank R. Bartle, Lansdale, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Nor-ristown, for Commonwealth, appellee.
    Before JOHNSON, HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for burglary (eight counts), auto theft, and driving while under the influence of alcohol. Appellant contends that the lower court failed to state reasons on the record for sentencing him outside of the sentencing guidelines. For the following reasons, we vacate in part and affirm in part.

On July 18, 1984, appellant pled guilty to three counts of burglary, auto theft, and driving while under the influence of alcohol. On October 19, 1984, the day scheduled for appellant’s sentencing, he pled guilty to five additional counts of burglary. The same day, the court below sentenced appellant to the following terms of imprisonment: Bill of Information 3560-84 (burglary), three-to-ten years; 3560.1-84 (burglary), three-to-ten years, consecutive to 3560-84; 3560.2-84 (burglary), one-to-two-years, consecutive to 3560.1-84; 3560.3-84 (burglary), one-to-two years, concurrent to 3560.2-84; 3560.4-84 (burglary), one-to-two years, concurrent to 3560.3-84; 2104-84 (burglary), two- and-one-half-to-five years, consecutive to 3560.2-84; 4179-83 (burglary), one-to-two years, concurrent to 3560.3-84; 2416-84 (burglary), one-to-two years, concurrent to 4179-83; 4180-83 (auto theft), suspended sentence; and 4192-83 (driving while under the influence of alcohol), three-to-twenty-four months, concurrent to 4179-83. Appellant thus received a total term of nine-and-one-half-to-twenty-seven years imprisonment. His motion for modification of sentence was timely filed and, following a January 9, 1985 hearing, was denied. This appeal followed.

Appellant contends that his sentences on Bills of Information 3560-84, 3560.1-84, and 2104-84, “overstep the bounds” of the sentencing guidelines, 204 Pa.Code §§ 303.-1-.9, reprinted following 42 Pa.C.S.A. § 9721. We agree. Appellant’s prior record score is zero. See N.T. October 19, 1984 at 53; id. January 9, 1985 at 15-16. The burglaries charged in bills 3560-84 and 3560.1-84 have an offense gravity score of seven. 204 Pa.Code § 303.8(d) (“Burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present”); see also N.T. October 19, 1984 at 54. The sentence ranges for a prior record score of zero and an offense gravity score of seven are as follows: eight-to-twelve months (minimum range), four-to-eight months (mitigated minimum range), and twelve-to-eighteen months (aggravated minimum range). 204 Pa. Code § 303.9. Appellant received minimum sentences of three years (thirty-six months) on bills 3560-84 and 3560.1-84, twice the maximum suggested under the aggravated range. The burglary charged in 2104-84 has an offense gravity score of five. Id. § 303.8(d) (“Burglary of a structure not adapted for overnight accommodation in which at the time of the offense no person is present”); see also N.T. October 19, 1984 at 54-55. The applicable sentence ranges, with a prior record score of zero, are as follows: zero-to-twelve months (minimum range), non-confinement (mitigated minimum range), and twelve-to-eighteen months (aggravated minimum range). Appellant received a minimum sentence of two-and-one-half years (thirty months) on bill 2104-84, a minimum twelve months greater than the maximum suggested under the aggravated range. Therefore, appellant correctly states that the sentences imposed on bills 3560-84, 3560.1-84, and 2104-84 exceed the guidelines. (Brief for Appellant at 10).

A sentencing court can, of course, sentence a defendant to the maximum period authorized by statute, 42 Pa.C.S.A. § 9756(a), and the “minimum sentence ... shall not exceed one-half of the maximum sentence imposed.” Id. 9756(b). However, “where the court imposes a sentence outside the sentencing guidelines ..., the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.” Id. § 9721(b) (emphasis added); see also 204 Pa.Code § 303.1(h). Therefore, “two issues are raised [here]: (1) was the statement of the court made at sentencing in [appellant’s] presence, and recorded, a ‘contemporaneous written statement’; and if so then, (2) is the statement sufficient to meet the requirements of [§ 9721(b) ].” Commonwealth v. Royer, 328 Pa.Superior Ct. 60, 68, 476 A.2d 453, 457 (1984).

Here, the first requirement is satisfied. The sentencing judge gave his reasons for imposing sentence at the sentencing proceedings, see N.T. October 19, 1984 at 56-62, in appellant’s presence, and such statement was recorded and transcribed. See Commonwealth v. Royer, supra, 328 Pa.Superior Ct. at 69, 476 A.2d at 457.

It is the second requirement, however, which we find unsatisfied here. Royer requires the sentencing court to “set forth ... the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.” Id., 328 Pa.Superior Ct. at 71, 476 A.2d at 458. At the October 19, 1984 sentencing hearing, the sentencing judge did not refer to the guideline ranges or the reasons he deviated from them in imposing sentences on bills 3560-84, 3560.1-84, and 2104-84. The court’s only reference to the guidelines was this: “And defense counsel and the Commonwealth agree that the guidelines are merely guidelines, they are not binding in any way?” (N.T. October 19, 1984 at 55). See Commonwealth v. Royer, supra, 328 Pa.Superior Ct. at 70, 476 A.2d at 458 (“Nowhere does the record indicate that the judge was aware of the guideline range.”).

Furthermore, after appellant’s counsel brought the applicable guidelines to the court’s attention at the hearing on appellant’s motion to modify sentence, see N.T. January 9, 1985 at 11-12, the court again failed to state why it was deviating from them. A review of the hearing transcript indicates that the court may not have considered the guidelines at all:

[DEFENSE COUNSEL]: For that reason, Your Honor, I would suggest that we have set forth many, many reasons why this Court should reconsider its prior ruling. Also [the District Attorney] says, “I don’t say ignore the guidelines,” and then he tells you they are totally inappropriate. I suggest that they are not inappropriate in this case. Guidelines are guidelines. They are to be followed in every case where they are appropriate and I would submit to the Court that there are many mitigating circumstances in this case.
THE COURT: The guidelines, of course, are not mandatory.
[THE DISTRICT ATTORNEY]: Your Honor, that is the import of my argument. I have a couple of brief comments, Your Honor. If you give him a zero and look at the Pre-Sentence Investigation which is only a document you are effectively, in my judgment, ignoring 25 contacts. That is just as a juvenile.
THE COURT: But I have to—
[THE DISTRICT ATTORNEY]: You don’t have to, because you just said they are not mandatory.
THE COURT: But I can’t give him a prior record score.
[THE DISTRICT ATTORNEY]: No, but if you want to—
THE COURT: Well, we don’t have to argue the guidelines, although the District Attorney’s office and I have differed over the guidelines at various times. In spite of the guidelines and in spite of the prior record score, if I had wanted to I could have given him the maximum permitted by law. To that extent, I could ignore the guidelines.
[THE DISTRICT ATTORNEY]: That’s my point, Your Honor.
THE COURT: Or I could go under the guidelines and give him probation if I wanted to, in spite of the guidelines. I think we probably have heard enough on the guidelines.
[DEFENSE COUNSEL]: Your Honor, my only point with respect to that, Your Honor, is that if the guidelines are to be applied, they should then be applied appropriately. The guidelines themselves set down the rules and regulations for what the prior record score should be.
THE COURT: That’s why I consider it a zero.
[THE DISTRICT ATTORNEY]: If you take all that, on the residential burglary alone in which there was someone present, the one that is a seven, on that alone if you find that in the mitigated minimum he gets four to eight months, if you find that in the minimum range he gets eight to twelve and if you find that in the aggravated minimum range it’s twelve to eighteen on that one, you have unfettered discretion, Your Honor, as far as this case goes. I think that’s the point that I’m trying to make. With regard to [appellant’s] intoxication—
THE COURT: I wouldn’t go quite so far as to say it’s unfettered discretion.
[THE DISTRICT ATTORNEY]: Well, Your Honor, I think in this particular case under the circumstances you can do anything that you feel is appropriate under the circumstances. That’s as close to unfettered discretion that I think you can get in the law. Obviously you are going to have to answer to the Superior Court at some point in time somewhere down the line; however, I think the point that I’m trying to make is that the ranges that I have just quoted on one, and you multiply those out by seven you can pretty much do what you will.
[DEFENSE COUNSEL]: Your Honor, I object. That’s a misstatement. That’s a misstatement. If he’s talking about multiplying by seven, there are only two house burglaries that we are talking about and I think that is the error in [the District Attorney’s] argument. If he’s talking about multiplying by seven, with respect to a four to eight or an eight to twelve, whatever it was, I think that’s inappropriate.
THE COURT: Not to cut either counsel off, but I think we have heard more than enough about the guidelines.

Id. at 27-30. We note that 42 Pa.C.S.A. § 9721(b) provides that a sentencing court “shall ... consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing____” (Emphasis added).

Because the court below failed to explain on the record, in appellant’s presence, why it sentenced him outside the guidelines on bills 3560-84, 3560.1 — 84, and 2104-84, then, the sentences on those bills must be vacated and this case remanded for resentencing on them. 42 Pa.C.S.A. § 9721(b). The other sentences are affirmed.

Judgment of sentence on Bills of Information 3560-84, 3560.1-84, and 2104-84 is vacated and case is remanded for resentencing. Judgment of sentence on all other bills is affirmed. Jurisdiction is relinquished.

      . Burglary is a felony of the first degree carrying a maximum term of twenty years, See 18 Pa.C.S.A. §§ 1103(1), 3502(c).

      . "The purpose of the contemporaneous written requirement [is] to advise the defendant of the reasons for deviating from the guideline and provide a memorial for his [or her] use and for appellate review.” Commonwealth v. Royer, supra, 328 Pa.Superior Ct. at 69, 476 A.2d at 457.

      . Appellant was present at this hearing.

      . Even if a sentencing court sentences a defendant within the aggravated or mitigated minimum ranges, it must state reasons on the record therefor. 204 Pa.Code § 303.3(2).

      . Appellant also contends that his sentence is (1) excessive and (2) disproportionate to the crimes committed and thus violative of the Eighth Amendment to the United States Constitution. Because the sentences we have vacated today total eight-and-one-half-to-twenty-five years imprisonment, the bulk of appellant’s ultimate sentence, we need not address these contentions. If necessary, appellant can raise these issues after his resentencing.


author: HESTER, Judge:

text:
    500 A.2d 886
    Henri Haim ZERBIB v. NATIONWIDE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Nov. 8, 1985.

      James C. Haggerty, Philadelphia, for appellant.
    Edwin P. Smith, Philadelphia, for appellee.
    Before SPAETH, President Judge, and HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the January 16, 1985, order granting summary judgment in favor of appellee, Henri Haim Zerbib, on his claim for No-fault motor vehicle benefits. Appellee’s complaint alleged that appellant insurer wrongfully refused to pay for vocational rehabilitation in the form of educational expenses for an intensive English language program. We hold that summary judgment was improper, and remand for trial to resolve material issues of fact as to the reasonableness and necessity of the educational expenses.

On October 20, 1982, appellee was injured in an automobile accident which disabled him in his occupation of constructing swimming pools. Dr. Samuel Romirowsky, a clinical psychologist, one of the physicians who had treated appellee following his accident, wrote to appellee’s attorney on April 15, 1983. The letter stated:

As you know, I have been treating Mr. Henry Zerbid [sic ] for the treatment of severe depression. This letter is to document that from an emotional standpoint, work, that is employment, would be excellent therapy in as much [sic ] as his poor self esteem and depression is [sic ] exacerbated by his unproductivity. Because he is physically unable to do the kind of work he was doing prior to his accident, vocational rehabilitation is essential in order to obtain retraining and other employment.
In order for Mr. Zerbid [sic ] to obtain maximum benefits from a vocational rehabilitation program, he must have a better command of the English language, both verbal and written. It is my feeling, therefore, that an intensive English language program would also serve to, in the longrun, [sic ] reduce Mr. Zerbid’s [sic ] depression.

Reproduced record at 39a.

Appellee, aged thirty-three, had been a resident of Israel and France prior to emigrating to America. Dr. Romirow-sky referred him to Dr. Irwin Farbman for a psychological evaluation. Dr. Farbman noted that appellee’s “speech was heavily accented. Although he was able to communicate effectively, it was apparent that he often was forced to substitute a related word for the one he would have preferred in order to express his precise thought since his vocabulary skills were insufficient to the task.” Id. at 18a. It is not in dispute that appellee’s command of the English language has not been diminished in any degree as the result of the accident. Appellee’s use of the English language was just as limited prior to the accident as it was afterwards.

Appellee used his language training to enroll in a chef’s program.

Appellant rejected appellee’s claim for payment of educational expenses and filed a motion to compel an examination of appellee by Dr. Philip Spergel, a vocational rehabilitation psychologist. After the examination, Dr. Spergel made the following finding, as detailed in a letter to appellant’s counsel. “Even if Mr. Zerbib was not provided with a remedial English course at Temple University, he still would be employable in a number of entry level, sedentary positions where literacy is not particularly important.” Dr. Spergel cited the following appropriate jobs:

1) Armature Connector (electrical equipment)
2) Ampule Examiner (drug preparation and related products)
3) Braiser-Assembler (welding)
4) Solderer-Assembler (welding)
5) Tile Sorter (brick & tile)
6) Thermostat Assembler (instruments and appliances)
7) Inspector, General (any industry)
8) Patcher (electrical equipment)
9) Assembler (electronics)

Id. at 99a.

An arbitration hearing was held on the matter, and an award for appellee was entered in the amount of $1,237.90, the cost of his educational expenses, plus eighteen per cent interest and counsel fees of $656.15. Appellant filed an appeal, and a jury trial was scheduled for January 16, 1985. Prior to trial, appellant filed a motion in limine requesting the court to rule on its request to introduce Dr. Spergel’s testimony and other evidence developed during discovery.

Appellee filed an answer to appellant’s motion in limine and a motion for summary judgment. Appellee contended that since appellant had no evidence disproving the need for vocational retraining at the time it denied his claim, the only issue was whether appellee had provided sufficient documentation of his claim. Immediately prior to the scheduled trial, argument was heard on both appellant’s motion in limine, and appellee’s motion for summary judgment.

The court asked appellant what was the basis for the denial of appellee’s claim. Appellant’s counsel responded:

The reasonable basis was that Nationwide was paying the wage loss. From October ’82 until September of ’83 Nationwide paid the wage loss benefits to this individual. That’s almost a year. In May of ’83 the Plaintiff went to Temple for this language retraining.
It is our position that we acted reasonably because when Nationwide made the decision they didn’t have information as to permanent disability to require retraining. They paid the wages, and they paid the wages for a period of what they considered they had documentation for a disability.
During this period from October to September we also had the period in it from May to September when he was going to school. So we are paying his wages when he is disabled, and he is disabled for a certain period of time. We don’t feel it is necessary that we should also have to pay to retrain him if it is necessary to return to work. He got another job in a restaurant school, which is a work study program where you go to school and work in a restaurant.
If I may, as far as the reasonableness and necessity, we feel that’s a situation where expert testimony is needed. It is not a situation where it is so obvious to a layman that he can say that someone who is injured in an automobile accident needs vocational rehabilitation training. And in order to prove that he needs expert testimony. That’s why we are bringing Dr. Spergel, who is an expert, to testify that it wasn’t necessary.

N.T. 1/16/85, 7-8.

Appellee’s counsel responded to appellant’s assertion as follows:

If Your Honor please, the No-fault Act creates almost a separate system of law from that which ordinarily is used in trying civil cases. The No-fault Act says an obligator [sic ] must pay a claim within 30 days of the date of submission of reasonable proof of the fact and amount of the loss. It does not say by a preponderance of the evidence. It does not say beyond a reasonable doubt. It says submit [sic ] from the date he submits reasonable proof.
So the true issue as to the liability of the obligor insurer in this matter is whether Plaintiff submitted reasonable proof of the fact and amount of the loss. So you must look to what was submitted to the insurance carrier. It wasn’t just one little letter from Dr. Romirow-sky. You had numerous medical reports all stating he was disabled from the date of the accident and even beyond the point where they continued to pay ....

Id. at 9-10.

The trial court, unmoved by appellant’s prior argument, again asked what reasonable proof appellant had for denying appellee’s claim. Appellant’s counsel replied that an obligor may deny an obligee’s claim at the obligor’s risk. The court responded:

Isn’t that contrary to the nature of No-Fault? Isn’t that contrary to the whole intent of that Statute, even though the thing never worked? Isn’t that exactly why they shoved No-Fault down everybody’s throat? — because we were supposed to obviate the lawsuits, not create them, not give insurance companies the subjective right to deny claims.
If you can deny that claim, you can deny any claim. They will always have an argument as to why a claim shouldn’t be paid. That’s why No-Fault was put into existence.

Id. at 23.

Based on this reasoning, the court denied appellant’s motion in limine and granted appellee’s motion for summary judgment.

Appellant raises three issues: 1) whether the trial court erred in granting summary judgment when it was alleged that factual disputes existed with respect to the merits of appellee’s claim for No-fault basic loss benefits; 2) whether the trial court erred in finding, as a matter of law, that appellee’s educational expenses were reasonable and necessary when appellant contended it would introduce testimony establishing that the educational expenses were not reasonable and necessary; and 3) whether the trial court erred in its interpretation of the relevant provisions of the No-fault Act.

We must examine the relevant provisions of the now repealed No-fault Act. Appellee’s claim for educational expenses is founded upon sections 102 and 103 of the Act which provide that allowable expenses are included under the basic loss provision of the Act. Allowable expense is further defined as, “reasonable charges incurred for ... medical and vocational rehabilitation services.” 40 P.S. § 1009.103. The Act defines medical and vocational rehabilitation services as those which are:

necessary to reduce disability and to restore the physical, psychological, social, and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology and audiology, optometric services, nursing care under the supervision of a registered nurse, medical social services, vocational rehabilitation and training services, occupational licenses and tools, and transportation where necessary to secure medical and vocational rehabilitation services____

Id. The Act further sets forth what proof is necessary to sustain a claim for vocational rehabilitation services:

§ 405. Court order; rehabilitative training.
(a) Court order. — After a hearing upon application by any interested person and reasonable notice to all other interested persons, and upon findings supported by evidence, a court of competent jurisdiction may enter an order determining that an obligor of basic loss benefits applicable to an injury is responsible, subject to the limits and other terms and conditions of the coverage, for the cost of a specified course of rehabilitative occupational training that the injured person has taken or does hereafter take.
(b) Findings. — The findings required to support such an order are:
(1) that the specified course of occupational training is a recognized form of training and is reasonable and appropriate for the particular case;
(2) that it has contributed or will contribute substantially to rehabilitation; and
(3) that the cost of such training is reasonable in relation to its probable rehabilitative effects.

40 P.S. § 1009.405.

The other two provisions of the No-fault Act that concern the issues here are 40 P.S. §§ 1009.106(a)(5) and 1009.107(3):

§ 106. Payment of claims for no-fault benefits.
(a) In general.—
(5) An obligor who rejects a claim for basic loss benefits shall give to the claimant written notice of the rejection promptly, but in no event more than thirty days after the receipt of reasonable proof of the loss. Such notice shall specify the reason for such rejection and inform the claimant of the terms and conditions of
his right to obtain an attorney____
§ 107. Attorney’s fees and costs.
Fees of claimant’s attorney.—
(3) If, in any action by a claimant to recover no-fault benefits from a obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

The trial court granted summary judgment because at the time of the denial of appellee’s claim, appellant possessed no evidence for denying the claim other than the adjuster’s belief that appellee’s English classes were not necessary for his rehabilitation.

We hold that the entry of summary judgment was improper in this instance. Issues of fact exist as to the inquiries set forth in section 405(b), supra, pertaining to whether appellee’s English language course was reasonable and appropriate, and was necessary to restore his physical, psychological, social, and vocational functioning. These issues must be resolved at trial. If appellee prevails, and the court again determines that appellant denied the claim without reasonable foundation, the award of attorneys fees would be appropriate, together with the interest payable on overdue benefits.

We reverse the order granting summary judgment and remand for trial in accordance with the relevant provisions of the No-fault Act. Jurisdiction is not retained.

      . 40 P.S. § 1009.101 et seq. Repealed February 12, 1984, P.L. 26, No. 11 § 8(a), effective October 1, 1984.


author: WATKINS, Judge:

text:
    500 A.2d 890
    COMMONWEALTH of Pennsylvania v. Deanna Kay HOLMES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Nov. 15, 1985.

      John P. Campana, Williamsport, for appellant.
    Jo Ann Dittman, Assistant District Attorney, Milton, for Commonwealth, appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

This appeal comes to us from a judgment of sentence entered November 15, 1984 in the Court of Common Pleas of Northumberland County sentencing appellant to total confinement for a period of three to six (3 to 6) years, fines in the amount of $500.00 and costs.

The appellant, Deanna Kay Holmes, entered a plea of guilty to two counts of delivery of a controlled substance, one count of driving under the influence and one count of driving under suspension. A motion for reconsideration was filed and denied. This timely appeal followed.

On appeal, the appellant presents the following questions:

1. Did the court below err when it failed to enunciate its reasons for total confinement as required by the Sentencing Code.

2. Were the sentences imposed unduly harsh?

In her first issue, the appellant contends that the lower court erred in failing to enunciate its reasons for the sentences. Appellant also contends that the lower court erred in failing to inquire into appellant’s ability to pay before imposing the fine.

Although the judge later wrote a brief statement of his reasons for imposing the sentence when denying appellant’s Motion for Reconsideration, our review of the sentencing transcript indicates that he did not disclose reasons at the time of sentencing. Accordingly, we are compelled to vacate the sentence and remand for resentencing. Commonwealth v. Harris, 311 Pa.Superior Ct. 216, 457 A.2d 572 (1983); Commonwealth v. Giles, 303 Pa.Superior Ct. 187, 449 A.2d 641 (1982). We do not reach the merit of appellant’s remaining claims.

Sentence is vacated and case remanded for resentencing. Jurisdiction is relinquished.