author: TAMILIA, Judge:

text:
    543 A.2d 566
    Marie Theresa BURKE, Appellee, v. Mary Modesto POPE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1988.
    Filed June 3, 1988.
    Petition for Allowance of Appeal Denied Aug. 31, 1988.

      Harry M. Byrne, Jr., Philadelphia, for appellant.
    Joyce A. Monaco, Media, for appellee.
    Before MONTEMURO, TAMILIA and JOHNSON, JJ.
   TAMILIA, Judge:

This appeal brings before us for the second time a child custody dispute between a parent and an unrelated non-parent. Mrs. Mary Modesto Pope appeals a March 17, 1988 Order of the Court of Common Pleas of Delaware County implementing a plan to restore to her custody of her three minor daughters. The trial court’s Order was a result of our Court’s decision in Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987), petition for allowance of appeal filed, No. 821 E.D. Allocatur Docket (Oct. 20, 1987), in which we vacated an Order of custody entered in the trial court, which awarded Dr. Marie Theresa Burke sole custody with certain visitation and partial custody rights remaining in Mrs. Pope, and remanded with directions to implement a plan designed to restore custody of the children to Mrs. Pope within six months to one year.

The first part of the rather arduous procedural history of this case was summarized in our earlier Opinion as follows:

This case commenced on March 25, 1985 when Dr. Burke, a former obstetrician-gynecologist, filed a petition seeking custody of Mrs. Pope’s three children, Amanda Marie, Rebecca Ann and Abigail Leigh Pope. On April 23, 1985, Mrs. Pope filed a petition for visitation and partial custody and on April 29, 1985, a response to Dr. Burke’s original petition and a cross-petition for custody. The parties entered into stipulations, eventually adopted as Orders of court, on May 10, 1985 and July 2, 1985, which temporarily placed physical custody of the children with Dr. Burke and allowed Mrs. Pope visitation four hours a weekend on alternate Saturdays and Sundays. On December 12, 1985, Mrs. Pope filed a petition for special relief, pursuant to Pa.R.C.P. 1915.13, requesting modification of the temporary custody Order and requesting an emergency Order for Christmas visitation. On December 18, 1985, the Honorable Howard F. Reed, Jr., ordered that Mrs. Pope have special visitation time with her children on Christmas day, 1985. On January 15, 1986, Dr. Burke filed a response to the December 12,1985 petition and a cross-petition for special relief pursuant to Pa.R.C.P. 1915.13. On January 27, 1986, Mrs. Pope filed an answer.
In all, five hearings were held before the Honorable John V. Diggins, on January 28, February 27, April 21, June 5 and October 1,1986. On June 12,1986, Mrs. Pope filed a motion, pursuant to Pa.R.C.P. 1915.13, requesting entry of a partial custody Order. On June 18, 1986, Judge Diggins entered a temporary Order for partial custody, decreeing that Mrs. Pope have partial custody of her children each weekend from 12:00 noon on Saturday until 5:00 p.m. on Sunday. On August 27, 1986, Mrs. Pope filed a petition for contempt of the partial custody Order. Following the October 1, 1986 hearing, Judge Diggins directed Dr. Burke to comply with the previous temporary Order for partial custody. Finally, after the submission of post-trial briefs, on February 10, 1987, Judge Diggins filed an Opinion and Order awarding sole physical custody to Dr. Burke with visitation and partial custody rights to Mrs. Pope.

Burke at 490-491, 531 A.2d at 783 (footnotes omitted). Mrs. Pope appealed and on September 21, 1987, we vacated the February 10, 1987 Order and remanded for a new custody Order, consistent with our Opinion, to implement a plan to restore custody to Mrs. Pope. See Burke, supra.

On remand, the trial court acted promptly to set a rehearing date of October 8,. 1987; however, on October 1, 1987, in response to a petition by Dr. Burke, the trial court continued the rehearing until after the Pennsylvania Supreme Court rendered a decision on Dr. Burke’s petition for allowance of appeal. In effect, this stayed the judgment entered by our Court on September 21, 1987. Mrs. Pope appealed the stay Order to the Superior Court on November 12, 1987, which resulted in a per curiam Order by our Court, dated December 24, 1987, directing the trial court “to comply forthwith with this court’s judgment and [OJrder of September 21, 1987.” Subsequently, on February 3, 1988, the trial court heard argument for the purpose of establishing a schedule to return custody of the children to their mother. Both parties submitted their own proposals for compliance with the directives contained in this Court’s Order of September 21, 1987. Finally, on March 17, 1988, the trial court filed the Order which is the subject of the instant timely appeal by Mrs. Pope.

The question now on appeal is whether the trial court’s implementation Order of March 17, 1988 is in substantial compliance with the standards set forth in our Opinion in Burke, supra. This calls for a review of the earlier custody Order, the parties’ proposed arrangements, and the Order now in question.

Under the February 10, 1987 Order we vacated, Dr. Burke was awarded sole physical custody. Mrs. Pope was given the right to the children every other weekend from 12:00 noon on Saturday until 5:00 p.m. on Sunday, as well as for two weeks in the summer. The holiday schedule began in 1987 with Mrs. Pope having the right to the children on Easter, Memorial Day, Fourth of July, Labor Day and Thanksgiving from 9:30 a.m. to 9:00 p.m. and from 12:00 noon on Christmas day until 9:00 p.m. This holiday schedule would alternate yearly, giving Dr. Burke the children on the enumerated days thereafter, except as to Christmas, when Mrs. Pope, on the alternate year, would have the children from noon on December 24th until noon on December 25th.

Both parties submitted their respective plans to transfer full custody to Mrs. Pope at the rehearing on February 3, 1988 and in proposed Orders to the trial court. Mrs. Pope proposed a comprehensive plan that would increase her custody rights to shared legal and physical custody of the children over a five month period ending with full legal and physical custody of the children in Mrs. Pope when school lets out at the end of June, 1988. Specifically, Mrs. Pope proposed the children would first be in her custody three out of four weekends per month from Friday at 6:00 p.m. until school began on Monday morning—Mrs. Pope would take the children to school on Monday morning. Also, Mrs. Pope would have the children two nights a week from 6:00 p.m. to 8:00 p.m. for dinner and reasonable unlimited telephone access—apparently, Mrs. Pope felt Dr. Burke’s answering machine greatly hampered her right to telephone the children in the past. Mrs. Pope felt this initial period of custody should last six to eight weeks. After this period, Mrs. Pope proposed that in addition to the previous custody proposal of three out of four weekends and two dinners a week, she would have the children for one full week a month in the next month, two full weeks in the month after that, then three full weeks in the following month, ending in full custody after the fifth month which would coincide with summer vacation from school. During the summer vacation, Mrs. Pope proposed that Dr. Burke would get custody one weekend per month from Friday at 6:00 p.m. to Sunday at 6:00 p.m., with telephone access twice a week. This schedule would last until the end of summer and at that time no Order would exist as to Dr. Burke’s visitation rights; if necessary a hearing could be held at that time to determine what’s appropriate with respect to Dr. Burke. Lastly, Mrs. Pope requested “full access” to all school events and involvement in decisions concerning the children’s education, to start immediately. See (N.T. 2/3/88, pp. 4-17). Additionally, Mrs. Pope feels any and all counselling should be conducted by the Delaware County Family Services, with costs shared equally between the parties.

In comparison, Dr. Burke proposed a more indefinite schedule for returning the children to the mother. Dr. Burke recommended full legal custody remain with her until such time as Mrs. Pope shall have regained sole physical custody. Dr. Burke would also restrict the transfer of legal custody to Mrs. Pope on the contingency that the mother demonstrate proof of her ability to adequately maintain and support the children. The method for determining this would be to have Mrs. Pope and the children assessed, evaluated and counseled by Dr. Harold J. Byron, a psychiatrist of Dr. Burke’s choosing, and that all costs of counselling be borne by the mother. Dr. Burke would require all of the evaluating and counselling be done before Mrs. Pope could get any increase in custody rights. After Dr. Byron’s initial assessment and assuming a favorable report, Dr. Burke suggested Mrs. Pope obtain partial custody on alternate weekends from Friday at 6:30 p.m. to Sunday at 5:00 p.m., plus Tuesday evenings from 6:30 p.m. to 8:30 p.m. for dinner until the end of the 1987-88 school year and, after that time, add Thursday nights for the same time and purpose. The holiday schedule of the February 10, 1987 Order would continue. At the end of the school year, Mrs. Pope would receive the children for nine days, then the children would attend an overnight camp, of Dr. Burke’s choosing, known as Camp Good News in Cape Cod, Massachusetts, for approximately two months. Upon return from camp, Dr. Burke would have the children evaluated again by Dr. Byron and they would be enrolled in the private school they currently attend. Dr. Burke’s proposal did not mention any specific date upon which full legal custody would be returned to Mrs. Pope, but it did request that upon return of legal custody Dr. Burke receive partial custody one weekend each month from Friday at 6:30 p.m. to Sunday at 6:30 p.m., four weeks vacation during the summer, one week during Christmas vacation, and unlimited telephone access at all times.

The trial court’s March 17, 1988 Order set forth its plan to restore custody to Mrs. Pope as follows:

ORDER
AND NOW, to wit, this 17th day of March, 1988, the following plan leading to restoring custody to the Respondent is hereby adopted by this Court:
1. Legal custody of the three children as the term is defined in the Shared Custody Act, 23 P.S. 101 et. seq. shall remain with [Dr. Burke] until such time as [Mrs. Pope] has demonstrated to the Court proof of her ability to adequately maintain and support the children. Whenever practical, [Dr. Burke] shall confer with [Mrs. Pope] in making decisions.
2. Mother and children shall be initially analyzed and evaluated by Dr. Harold J. Byron to determine the fitness of these parties to comply with the custodial and visitation provisions of this Order and to continue counselling mother and children regarding the effects of the original separation of the mother and the children and a reconciliation among them. The cost of this service is to be borne 75% by mother and 25% by Dr. Burke, Respondent and Petitioner respectively. All financial arrangements with Dr. Byron to be made directly by [Dr. Burke] and [Mrs. Pope].
3. The parties shall share physical custody of the children as defined in the Shared Custody Act as follows:
a. Immediately the mother shall have custody of the children every other weekend from Friday at 6:30 p.m. to Sunday at 6:30 p.m.
b. Mother shall have custody every Tuesday and Thursday eveningfs] from 6:30 p.m. to 8:30 p.m. for the purpose of a family dinner.
c. At the end of the spring school term, the children to vacation with mother for nine consecutive days.
4. Children shall attend overnight camp at Camp Good News in Cape Cod, Massachusetts for the regular two sessions. Cost to be borne by [Dr. Burke].
5. During summer camp as detailed above, either party may visit the children.
6. Immediately upon return from camp, children shall be evaluated by Doctor Byron. Doctor Byron to concentrate on the issues as detailed in paragraph 3 above. Cost to be borne by [Dr. Burke].
7. During the month of May, 1988, [Mrs. Pope] shall have custody of the children for the first weekend of the month to include Mother’s Day. Said visitation to be from Friday at 6:30 p.m. to Sunday at 6:30 p.m.
8. Mother shall have the children for a two week vacation after summer camp and before the beginning of the school year.
9. The remaining holidays shall be apportioned equally between the parties.
10. Children shall be enrolled in the County Day School of the Sacred Heart for one year. Cost to be borne by [Dr. Burke].
11. Matter to be reviewed by this Court in September of 1988.

Mrs. Pope argues that the trial court erred in continuing “legal custody” in Dr. Burke for an indefinite period of time because such an arrangement does not affirmatively move forward restoration of full legal and physical custody of the children in herself as directed by our Court in Burke, supra. In addition, she contends the trial court’s granting of partial custody rights in her was too restrictive and too closely mirrors the previous Order which we found inadequate in Burke. Lastly, Mrs. Pope argues the appointment of Dr. Burke’s hand-picked psychologist to report on issues already decided or in some cases not previously raised, was an abuse of discretion which is counterproductive to the goal of returning full custody to herself within a year. After a thorough review of the trial court’s action, we find the Order of March 17, 1988 to be inadequate, fundamentally flawed in some respects, and contrary to the directives we set forth in our earlier Opinion in this case.

We view the trial court’s making the shifting of legal custody contingent upon Mrs. Pope’s demonstrating “proof of her ability to adequately maintain and support the children” as adding a factual issue which has already been decided in the case and which serves only to maintain and prolong the mother’s inability to become a controlling influence in the children’s lives. Failing to give the mother immediate meaningful control of the children’s lives will only serve to continue the present situation without allowing a natural parent-child relationship to develop. In our earlier Opinion, we called for “[formulation of a plan leading to custody in the mother and minimizing harm to the children with partial custody of increasing duration accompanied by counselling over a stated period of time____” Burke at 502, 531 A.2d at 789. We have already found that the record supports the trial court’s earlier determination that the mother is fit and that a reciprocal loving bond exists between the mother and children. Id. Having the entire plan to restore custody in the mother contingent on a psychologist’s reevaluation of the previously determined fitness of the mother is counterproductive and unnecessary and only serves to maintain the situation established by the February 10, 1987 custody Order we vacated. This is not to say that counselling is unnecessary. Professional assistance will greatly facilitate not only the mother’s capacity to parent, but also afford the children a medium for dealing with the growing relationship.

We stated in our earlier Opinion that a definitive plan should be established to “1) affirmatively move toward reunification as a goal, 2) provide psychological counselling to facilitate this progress, 3) gradually increase partial custody and 4) establish a time frame within which this process will be completed and full custody in the mother established,” and concluded that six months to one year would be an appropriate time frame under these circumstances. Id., 366 Pa.Superior Ct. at 503, 531 A.2d at 789. The trial court’s Order fails to take this course in a number of aspects.

First, as already stated, by failing to increase Mrs. Pope’s control and authority over the children, a move towards reunification is wholly incomplete. No provision was made for Mrs. Pope to have either access to her children’s school nor influence on their education. Considering the previous obstructions Dr. Burke placed on this crucial aspect of the children’s lives, by instructing school officials not to deal with the natural mother and not to keep her abreast of their school activities, we find this omission fatal. Mrs. Pope should have immediate and complete access to all school events and involvement in decisions concerning the children’s education. In short, in order to move towards reunification, shared legal custody must be established immediately; this will pave the road to full legal custody in the near future.

Next, although the trial court’s Order does provide for greater physical custody in the mother than previously existed, it is not enough. The new Order spans a period of five and one-half months, providing for a review by the court in September of 1988. While it does provide an increase in the mother’s custody rights from the previous vacated Order, we find the increase marginal at best considering the span of time the new Order contemplates. The addition of Friday nights on the alternative weekends and two nights for dinner a week are good short-term increases in custody, but a more final schedule with greater rights over the same span of time would be more appropriate. We feel an Order granting Mrs. Pope greater physical custody rights in increasing increments more in line with Mrs. Pope’s proposal would better serve to bring about full custody in the mother. This will act to dispel the doubts these extensive legal proceedings may have instilled in the children as to their future. Therefore, on remand the trial court should firmly establish a plan which brings about full legal and physical custody in the next six months. We set the period of six months as a time frame due to the fact that eight months have already passed since our earlier decision in which we called for a period of six to twelve months for complete transfer of custody. Because Mrs. Pope has already been given some increase in custody rights since that decision, completion of the transfer should not take as long.

Particularly disturbing is the extremely long summer camp called for in the new Order which takes up most of the children’s summer. We find it perplexing how Dr. Burke, who is the original petitioner in this case, is willing to pay for private schooling and private out-of-state camp for all three children, but would have the less financially fortunate mother pay for the counselling which is necessary and truly in the best interest of the children. The financial roller coaster the children experience between the parties may be a major detriment to the establishment of a better relationship with the mother. Not only does the summer camp pose an added expense—because the mother must travel to Massachusetts to enforce her visitation rights under the Order—but it seriously curtails the valuable and irreplaceable time the mother and children will have together. The summer vacation poses an opportunity for allowing the children to have extensive time with their mother without outside pressures such as school work. Sending the children to an out-of-state camp which the mother cannot afford, and will be unlikely to afford next summer, can render no long-term benefits to the children. There is even some question that a two-month camp experience is desirable under any circumstances. The children should spend a more typical summer with their mother as soon as possible and a decision to place them in camp is one in which she should participate and the time at camp should be minimized to allow her greater access to the children. Unless Mrs. Pope agrees otherwise, we suggest no more than a two-week camp experience.

Lastly, we find the trial court’s appointment of Dr. Harold J. Byron and the apportionment of costs with respect to his services to be unsound. The record discloses that in the past, Dr. Burke’s privately procured psychologist had never talked to the mother and had reported findings in contravention to the jointly-chosen neutral psychologist. In order to alleviate any possible animosity the mother may understandably have towards being subjected to Dr. Burke’s hand-picked experts, the appointment of a completely neutral psychologist for counselling would be better not only for the mother but also for the children. We realize that reappointing the neutral psychologist may not be practical following the trial court’s previous determination towards him; however, since appointment of a neutral counselor is essential, the Delaware County Family Services can be turned to for assistance. Apportionment of costs between the parties should be on an equal basis.

While the trial court provided this Court with an Opinion to aid us in our understanding of his ruling in this matter, we find the explanation provided confirms the thrust of appellant’s position that there was de minimis compliance with implementation of our Order. There should be no further difficulty in this respect following this Opinion and remand.

The custody and visitation Order is, therefore, vacated and the case remanded for imposition of an Order consistent with this Opinion.

Jurisdiction relinquished.

      . At the time of this writing Dr. Burke’s petition for allowance of appeal and an application for stay pending appeal with the Supreme Court of Pennsylvania are still pending. Because the Supreme Court has not taken action on Dr. Burke’s petition, we are able to address the merits of this appeal. See Pa.R.A.P. 1701(b)(2). Pennsylvania Rule of Appellate Procedure 2591(b) provides that an appellate court, upon its own motion or upon application, “may issue any appropriate order requiring obedience to or otherwise enforcing its judgment or other order.”

      . In an Order dated April 22, 1988, President Judge Vincent A. Cirillo of the Superior Court established an expedited schedule for the filing of briefs, reproduced record, and listing for argument on May 10, 1988. In conformity with the “Fast Track” schedule for custody cases, this matter has received priority in our review after oral argument.

      . We note that Amanda Marie was born June 8, 1974, Rebecca Ann was bom September 25, 1976 and Abigail Leigh was born April 1, 1979, making their respective ages approximately 11, 9 and 6 at the time of the petition for custody, 13, 11 and 8 at the time of the last appeal, and 13, 11 and 9 at the time of this appeal.


source: Caselaw Access Project

author: ROWLEY, Judge: TAMILIA, Judge,

license: Public Domain

text:
    543 A.2d 572
    COMMONWEALTH of Pennsylvania v. James R. STEWART, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1986.
    Filed June 1, 1988.

      Dean N. Livermore, Jersey Shore, for appellant.
    Kenneth Osokow, Assistant District Attorney, Williams-port, for Com., appellee.

      Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.

       President Judge Cirillo replaced Judge Wickersham, who was originally a member of this panel, upon Judge Wickersham’s resignation from the Court in March, 1987.

   ROWLEY, Judge:

This case presents the question of whether a custodial parent’s mere knowledge of an impending custody hearing and an order entered thereat, in the absence of valid service of process on the parent, is sufficient to bring the parent within the “jurisdiction” of the trial court so as to deprive the parent of the defense provided in section 2904(b)(3) of the Crimes Code to the offense of Interfering with Custody of Children, 18 Pa.C.S. § 2904(a). We hold that it does not.

Appellant was convicted by a jury of violating 18 Pa.C.S. § 2904(a), “Interference with Custody of Children.” He appeals the judgment of sentence. Because we hold that the trial court that issued the custody order in question never obtained personal jurisdiction over appellant and hence, the defense under § 2904(b)(3) is a bar to the prosecution, we vacate the judgment of sentence.

The relevant facts are as follows. Bonnie Stewart and appellant were married on September 1, 1977. They had two children: Bugsy, born in 1978 and B.J., born in 1980. During late 1980 and early 1981 the couple experienced marital problems. Bonnie Stewart testified that on January 5, 1981 she left the marital residence to move back with her mother. As she was leaving, appellant asked her if he could take Bugsy on a trip to Maryland. She agreed, so long as appellant would deliver Bugsy to the home of Bonnie Stewart’s mother as soon as he returned.

Appellant offered contradictory testimony, insisting that he did not say he was taking a trip, and asserting, rather, that he and Bonnie Stewart agreed at separation that appellant would keep Bugsy. Whichever witness the jury believed, Bugsy was not delivered to his mother.

When appellant failed to return Bugsy after the trip to Maryland, Bonnie Stewart called the home of appellant’s parents. After some difficulty in reaching appellant, she finally was able to speak to him by telephone. She testified that during this conversation, appellant told her she would never see Bugsy again. After this conversation, Bonnie Stewart consulted an attorney.

Bonnie Stewart’s counsel filed a Petition for Primary Custody alleging that on or about January 5,1981 appellant took Bugsy and refused to return him to her. On January 20, 1981, the trial court issued an Order directing appellant to show cause “why primary custody rights should not be established for [Bonnie Stewart] regarding the minor children.” The last line of the Order stated: “Pending further Order of Court, the status quo, as alleged herein, shall be maintained.” A preliminary conference before a hearing officer was set for February 6, 1981. It is undisputed that appellant was never served with the Petition or the Order.

Bonnie Stewart testified that between January 5th and February 6th she called the home of appellant’s parents “often” and that “[a] lot of times I would talk to Bugs.” Early in the evening the night before the preliminary conference she called appellant again at his parents’ home. When appellant would not allow her to speak with Bugsy, she replied: “[T]hat is all right, because I am getting him tomorrow, tomorrow is the custody hearing.”

Appellant did not attend the custody hearing. Rather, he left the Commonwealth, taking Bugsy with him. Appellant’s failure to appear at the February 6th hearing resulted in the entry of an order by the hearing officer, placing primary custody of the two Stewart children with their mother, Bonnie Stewart, pending a “hearing on the merits by the Court.” On February 17, no exceptions having been filed, the trial court “Approved” the order. Thereafter, for four years appellant and Bugsy lived under assumed names in various locations until appellant was arrested in Texas on December 12, 1984.

Following his return to Pennsylvania, appellant was charged with violating 18 Pa.C.S. § 2904(a) which prohibits interference with custody of children. Appellant was convicted and sentenced to nine to twenty-four months imprisonment. On this, his direct appeal from the judgment of sentence, he raises nine issues. We address only the issue of whether the trial court had jurisdiction to enter the custody order of February 6, 1981.

The statute creating the offense of interfering with the custody of a child provides, in relevant part:

(a) Offense defined.—A person commits an offense if he knowingly or recklessly takes or entices any child under the age of 18 years from the custody of its parent, guardian or other lawful custodian, when he has no privilege to do so.
(b) Defenses.—It is a defense that:
(1) the actor believed that his action was necessary to preserve the child from danger to its welfare; or
(2) the child, being at the time not less than 14 years old, was taken away at its own instigation without enticement and without purpose to commit a criminal offense with or against the child; or
(3) the actor is the child’s parent or guardian or other lawful custodian and is not acting contrary to an order entered by a court of competent jurisdiction.

18 Pa.C.S. § 2904 (emphasis added). Appellant argues, inter alia, that he is entitled to have the judgment of sentence imposed on him arrested because the order of February 6, 1981, granting custody of Bugsy to Bonnie Stewart was not “an order entered by a court of competent jurisdiction.” Therefore, he contends, as Bugsy’s father he is entitled to the defense established by the legislature in 18 Pa.C.S. § 2904(b)(3). We agree.

The term “jurisdiction” comprises both subject matter and personal jurisdiction. As our Supreme Court noted in Simpson v. Simpson, 404 Pa. 247, 172 A.2d 168 (1961):

Jurisdiction of subject matter relates to the competence of a court to hear and determine controversies of the general nature of the action before the court; jurisdiction of the person is ordinarily acquired by service upon him of the court’s process within the territorial limits of his authority.

Id., 404 Pa. at 251, 172 A.2d at 171. Section 2904(b)(3) of Title 18 provides a defense to a parent or guardian not acting in contravention of an order entered by a court of competent jurisdiction. Although the statute does not specify that “competent jurisdiction” includes both subject matter and personal jurisdiction, words used in legislation are to be accorded their common meaning and usage. Brinkley v. Pealer, 341 Pa.Super. 432, 491 A.2d 894 (1985). Moreover, penal provisions must be strictly construed, 1 Pa.C.S. § 1928, so as to favor life and liberty. Commonwealth v. Capitolo, 324 Pa.Super. 61, 471 A.2d 462 (1984). Had the legislature wished to exclude from § 2904 the requirement that the court entering the order obtain personal jurisdiction, it would have so stated. We therefore construe the term “jurisdiction” as set forth in 18 Pa.C.S. § 2904 to encompass both subject matter and personal jurisdiction.

Our Court has held that “[¡jurisdiction of the person may only be obtained ... through consent, waiver or proper service of process.” Slezynger v. Bischak, 224 Pa.Super. 552, 553, 307 A.2d 405, 406 (1973) (emphasis added). In this case there is not a scintilla of evidence in the record to show that appellant either consented to the trial court’s jurisdiction or waived the requirement of proper service. Thus, the only method by which the trial court could have obtained personal jurisdiction over appellant was by means of service of process as required by the law of this Commonwealth.

The means by which personal jurisdiction is obtained over a party by service of process are enumerated in Pa.R.C.P. 402:

(a) Original process may be served
(1) by handing a copy to the defendant; or
(2) by handing a copy
(i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or
(ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.
(b) In lieu of service under this rule, the defendant or his authorized agent may accept service of original process by filing a separate document which [certifies that the agent is authorized to accept service on behalf of the defendant].

Pa.R.C.P. 412 provides for an additional means of service:

In addition to the manner of service prescribed by Rule 402(a) in an action for custody, partial custody or visitation or in an action for divorce or annulment of marriage, original process may be served within the Commonwealth in the manner prescribed by Rule 403 governing service by mail.

It was established at trial that service of the petition for custody was attempted under Pa.R.C.P. 402(b). However, testimony revealed that such service was unsuccessful because the attorney served had not entered his appearance on behalf of appellant.

Attorney Richard Callahan testified that he had accepted service of the petition on January 23, 1981. Mr. Callahan did not recall why he accepted service of that particular petition. However, he stated that he would accept service of a petition if he recognized that his partner previously had done work for the party. Attorney Anthony Miele, Mr. Callahan’s partner at the time, testified that he had represented appellant’s parents and two of appellant’s sisters on various matters since the 1960’s. But neither Mr. Miele nor Mr. Callahan had entered an appearance on behalf of appellant when service was accepted.

Soon after Mr. Callahan improperly accepted service, counsel for Bonnie Stewart stopped him outside the court house and asked why he had accepted service. Mr. Callahan testified:

[Counsel for Bonnie Stewart] was a little upset about it, that I accepted service and yet we did not represent the fellow I had accepted service for, and I told her at the time if she was that concerned about it, that she should have had the sheriff take it and give it to him because someone would have had to give instructions to the prothonotary’s office to ask us to accept service, and that would have had to been her or whoever filed that petition.

It is abundantly clear that service of process was not achieved. The trial court recognized as much during the trial, when it charged the jury:

[T]he Rules of Court would require that the Defendant be personally notified of the February 6th proceeding. The notice should be personally delivered to him. There was testimony, and I think it is uncontested that an attorney or law firm accepted service of the papers. However, the testimony I think is also uncontested that those attorneys had not been specifically authorized by the Defendant to accept service, and they did not, and in fact, had not entered their appearance on his behalf. The question arises then as to what is the effect of that defective service, as you would have to find, the Court would have to find the service was not proper, what is the effect of that on the existence of the custody orders that came out dated the 17th of February.

(Emphasis added.) Despite the finding that appellant was not properly served, the trial judge subsequently held, “knowing of the [January 20th] Order, [appellant] would not be entitled to simply ignore it.”

The dissent, too, is of the opinion that actual notice, in the absence of proper service, is sufficient to bring a respondent within the jurisdiction of the trial court. This position is untenable for the reason that it ignores the crucial importance service of process plays in our judicial system. Our Supreme Court has held that “[t]he rules relating to service of process must be strictly followed, and jurisdiction of the court over the person of the defendant is dependent upon proper service having been made.” Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 127, 221 A.2d 185, 187 (1966). Therefore, under the law of this Commonwealth we must find that the “effect” of the defective service is that the trial court never obtained personal jurisdiction over appellant. Particularly when a person’s liberty is at stake, as here, courts must uphold the fundamental concept that a party need answer only those actions against him in which jurisdiction over his person is properly obtained.

At the time Bonnie Stewart filed her Petition for Primary Custody in January, 1981, the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. § 5841 et seq. (“UCCJA”), had recently been adopted by the legislature of this Commonwealth. In 1981, the Civil Procedural Rules Committee of our Supreme Court drafted proposed new rules governing custody, partial custody and visitation of minor children. The proposed rules appeared in the Pennsylvania Bulletin on January 31, 1981. Our legislature adopted the new rules on December 10, 1981, effective July 1, 1982.

The UCCJA primarily addresses the elements necessary for the courts of Pennsylvania to assume subject-matter jurisdiction over a case, particularly where other states are involved in the matter. The Rules of Civil Procedure, by contrast, specifically addressed the requirements of service in custody actions which are a necessary prerequisite to obtaining personal jurisdiction:

Rule 1915.4. Service. Proof of Service.
(a) Within the Commonwealth, the complaint and order may be served upon the defendant
(1) by the sheriff or a competent adult in the manner provided for the service of a writ of summons in assumpsit; or
(2) by the sheriff or a competent adult sending the defendant a copy of the complaint and order by registered mail, restricted delivery, return receipt requested. Service by mail is complete upon the return of the of the registered mail receipt personally signed by the defendant or other evidence of delivery to the defendant satisfactory to the court; or
(3) in such manner, including publication, as the court by special order shall direct.

Pa.R.C.P. 1915.4(a) (repealed, 1985). This Rule was rescinded after three years and a note immediately thereunder now refers attorneys to Pa.R.C.P. 412. See, infra. Although Rule 1915.4 as quoted was not yet in effect at the time Bonnie Stewart filed her petition, we rely upon it to show that our Supreme Court and legislature never had the intention to do away with the procedural requirements of service of process in custody cases.

We would add that the dissent’s reliance on the case of Fatemi v. Fatemi, 371 Pa.Super. 101, 537 A.2d 840 (1988) for the proposition that actual notice is sufficient to bring appellant within the jurisdiction of the court, is misplaced. Personal jurisdiction over the father was never an issue in Fatemi. In that case both parents had been within the court’s jurisdiction for at least four years. See Fatemi v. Fatemi, 339 Pa.Super. 590, 489 A.2d 798 (1985). Moreover, the actual notice, which our Court found to be sufficient, related only to notice of a contempt proceeding, held only after several orders had been entered by the trial court during the protracted history of litigation between the parties. The case at bar, by comparison, was at the earliest stages of litigation, and personal jurisdiction had not yet attached.

The record in the case at bar is replete with evidence that Bonnie Stewart knew of appellant’s exact whereabouts during the one-month period between separation and the preliminary conference. It flies in the face of our system of justice to penalize appellant for Bonnie Stewart’s failure, or more accurately, failure of her counsel to have appellant properly served.

We strongly condemn appellant’s actions in depriving Bugsy’s mother of a relationship with her child. By his unilateral decision to remove Bugsy from the Commonwealth, appellant robbed his wife and child of the nurturing love, support and companionship which is the core of the parent-child relationship. Nevertheless appellant has not committed an offense actionable under 18 Pa.C.S. § 2904. A court without personal jurisdiction over a defendant is powerless to act, and any order entered thereby must be rendered a nullity. Under the unique facts of this case, the orders were not entered by a court of competent jurisdiction, i.e. one which has obtained personal jurisdiction over the parties. Therefore, appellant has established a valid defense to the crime with which he was charged, under 18 Pa.C.S. § 2904(b)(3).

Judgment of sentence vacated. Appellant discharged.

TAMILIA, J., files a dissenting opinion

TAMILIA, Judge,

dissenting:

I respectfully dissent to the holding of the majority and would affirm the judgment of sentence imposed by the trial court.

Appellant was convicted by a jury of interfering with Custody of Children, 18 Pa.C.S. § 2904, as a result of taking his child and keeping him for a period of four years in violation of a custody Order. Following the jury verdict, he was sentenced to a period of incarceration of nine to twenty-four months. The thrust of the charge was that appellant, the father of a male child known as “Bugsy” and born May 3,1978, took Bugsy from the jurisdiction in violation of temporary and final Orders awarding custody to the mother. Appellant held the child in various locations in the states of Maine, Pennsylvania, New York and Texas from January of 1981 through July of 1984.

The appellant raises nine issues in his appeal, all of which were considered and properly resolved by the court below. I would rely on the decision of the Honorable Thomas C. Raup in the trial court but believe further amplification to be in order on the issue of the existence of the court Order and appellant’s knowledge of it, the issue as to the statute of limitations as a defense and appropriateness of sentence. The majority would find no valid Order existed as personal notice was never given of the pendency of a custody action.

As to the first issue, appellant maintains there could be no “taking” within the intent of the statute (18 Pa.C.S. § 2904) if there had been no court Order in existence prior to the time the child was taken. The rationale is that prior to the existence of a court Order, both parents have an equal right to custody of the child. That argument is sound except where the court has acquired jurisdiction to enter an Order by the filing of a complaint with notice to the respondent and thereafter a valid Order was entered. Notice can be established by personal service on the party or his counsel or by proof of actual knowledge by the party that he knew of the time, place and nature of the proceeding. The night before the hearing of February 6, appellant was told by appellee (by phone) of the hearing.

The evidence in this case was clear and convincing, if not overwhelming, that appellant knew there was to be a custody hearing on February 6, 1981, and that a preliminary Order of January 1981 had preserved the status quo by keeping primary custody with the mother. This case is very similar to Fatemi v. Fatemi, 371 Pa.Super. 101, 537 A.2d 840 (1988) as to notice, as in that case, personal notice was never given but actual notice was attributed to the father, who absconded with the child (Majority Opinion, Cirillo, P.J.; Concurring Opinion, Tamilia, J.). Neither appellant or his counsel appeared before the master or court, and on that date, February 6, the court entered a custody Order in favor of the mother.

The subsequent behavior of appellant and his family in traveling from state to state and surreptitiously slipping in and out of Pennsylvania after appellant’s mother, May Stewart, was notified by Lenore Urbano, appellee’s attorney, of the Order prior to February 27, 1981, (May Stewart was later correctly designated by the court as an unindicted co-conspirator) is convincing evidence of actual notice of the court Order and retention of the child in face of that Order. The Order itself must be considered unassailable as having been properly entered. The appellant had his opportunity to be heard and chose flight and concealment to avoid its implications. For four years he concealed himself and the child in Maine, New York and Texas and would only permit brief visits with the child by the mother, under his absolute control, until he was arrested by the F.B.I. in Texas. The taking occurred once the Order was entered and he acquired knowledge of it. Once it became clear that appellant had actual knowledge of the Order, “a taking” is established, as was correctly concluded by the trial judge and jury-

The second issue flows from the first in that the appellant alleges the taking occurs, for purpose of the two-year statute of limitations, as of the initial physical control exercised in January 1981. I do not agree. The interference with custody legislation was implemented to stop child snatching. This restrictive interpretation of the statute of limitation posited by appellant would encourage it. The personality capable of taking a child and concealing it from the other parent is motivated by obstinacy, hate and anger and frequently control over the child becomes the core of his existence and the greatest revenge that can be extracted is deprivation of the child from the other party. To hold that the statute runs two years from the initial taking, rather than when the taking ceases by return, places the wrongdoer at risk for only two years, a risk many would consider well worth the effort. The trial court correctly held this to be a continuing offense. The trial court referring to the comments of the Joint State Government Commission, concerning section 2904, held that the conduct which was to be prevented by the statute was long term interference and not sporadic brief acts; therefore, the statute of limitations would not begin to run until the defendant’s course of conduct is terminated. Finally, the trial court held that the appellant was notified of the Order in July 1984 while in New York, which brings him within two years of the statute at any rate. It was at that time that he fled from New York, stopping in Pennsylvania, thereafter alighting in Texas.

Finally, appellant alleges an excessive sentence. While appellant has failed to comply with the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) in presenting a statement of reasons necessary for this Court to review the discretionary aspects of the sentenee, because the Commonwealth has raised no objections, I would consider it.

The range of sentence employed by the court is within the guideline ranges and does not exceed the statutory limits. The sentencing record discloses that the court considered the gravity of the offense and its impact on appellee and her children. This crime is one of extreme emotional cruelty to the mother and the devastation psychologically that it imposed on the child, to deny him contact with his mother, alienate him from her and his sibling, deny him important educational opportunities, and surround him with an atmosphere of concealment, subterfuge and flight, is incalculable. Many crimes of violence do not leave this emotional impact lingering in the lives of their victims. I believe the trial court considered the appellant and his past, his violence physically and psychologically and agree with his belief that a strong impact must be made on appellant to prevent future behavior of a similar nature. I find no error in this sentence. I believe the trial court has carefully disposed of the remaining substantive and legal issues and would affirm the judgment of sentence.

      . We note parenthetically that although the petition states that appellant "took” Bugsy from his mother, there is no indication on the record that she ever had physical custody of Bugsy after the separation. See Warman v. Warman, 294 Pa.Super. 285, 439 A.2d 1203 (1982) (opinion by Montemuro, J., with two Judges concurring in the result) ("custody is in the parent with physical possession of the child”).

      . The order also stated: “Respondent was duly served on the 23rd day of January, 1981, by the Sheriff of Lycoming County, personally." However, the uncontradicted evidence shows that this statement of the Hearing Officer was inaccurate. Moreover, the trial court in the criminal proceedings found that service was not proper (see discussion infra, p. 486) and on appeal the Commonwealth does not argue that it was.

      . Adopted June 20, 1985, effective January 1, 1986. While this rule was not in effect at the time Bonnie Stewart initiated the custody action, it continues the prior practice within this Commonwealth. See Explanatory Comment preceding Pa.R.C.P. 400.

      . The only basis of record of appellant’s knowledge was Bonnie Stewart’s statement to her husband over the telephone on February 5th that a custody hearing would be held the following day. We note that there is no indication of record that appellant was ever informed of the time and place of the proceeding.

      . Act of October 5, 1980. P.L. 693, No. 142, § 201(a), et seq., as amended.

      . See Note, JURISDICTION—Uniform Child Custody Jurisdiction Act, 51 Temple L.Q. 139 (1978).

      . We deliberately focus our attention on the basic issues in this case as appellant is in violation of Pa.R.A.P. 2116(a) which limits Statement of Questions Involved to one page.


author: POPOVICH, Judge:

text:
    543 A.2d 579
    COMMONWEALTH of Pennsylvania, Appellee, v. D’Angelo JONES, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. D’Angelo JONES, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 17, 1988.
    Filed June 15, 1988.

      Thomas A. Dill, Sharon, for appellant (at 1413) and appellee (at 1499).
    James P. Epstein, District Attorney, Mercer, for Com., appellee (at 1413).
    Lorinda L. Hinch, Assistant District Attorney, Mercer, for Com., appellant (at 1499).
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This case involves consolidated appeals. At 1413 Pittsburgh 1987 the defendant questions the order denying his motion to dismiss for alleged violations of his right to a speedy trial under Pa.R.Crim.P. 1100. At No. 1499 Pittsburgh 1987 the Commonwealth challenges the order granting the defendant a new trial, which is appealable under Pa.R.App.P. 311(a)(5). We affirm in both instances.

As for the facts attendant to No. 1413 Pittsburgh 1987, a review of the record indicates that the defendant was charged by criminal complaint on June 6, 1987, with Theft by Unlawful Taking and Criminal Conspiracy. This made the Rule 1100 rúndate December 3, 1986. Because the defendant was not tried until December 8, 1986, five (5) days need to be excluded from the run-period to render the defendant’s trial date timely under Rule 1100.

Instantly, no one disputes that the originally scheduled trial of the defendant was to occur during the October, 1986, term of court. However, the case was continued by the court from October, 1986 to November, 1986 trial term because of an overcrowded docket. Since court-related delay is, in itself, a justification for an extension (see Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 499 A.2d 381 (1985)), the five (5) day delay in prosecuting the defendant was subsumed by the period elapsing between the October—November, 1986 trial term. Therefore, we need not examine the defendant’s Interstate Agreement on Detainers argument since we find that the trial of the accused, having taken place following the grant of a timely extension to the Commonwealth, was timely and not violative of Rule 1100.

We next turn our attention to the issue raised at No. 1499 Pittsburgh 1987, i.e., the Commonwealth contests the lower court’s grant of a new trial to the defendant on the ground that the prosecution’s peremptorily striking the sole black person from the jury panel was not violative of the standards enunciated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The Supreme Court in Batson allowed a defendant claiming discrimination in selecting the venire to prove a prima facie case of the same by establishing that:

... he is a member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

476 U.S. at 97-98, 106 S.Ct. at 1723-1724 (Citations omitted). Also, the Court went on to set forth some of the indicia reflective of a purposeful exclusion of a racial class from the jury, as well as the rebuttal available to the prosecution once a prima facie establishment of the same has occurred; to-wit:

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose____

Once the defendant makes out a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race.

The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race. Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or “affirming his good faith in individual selections.” * * * The prosecutor ... must articulate a neutral explanation related to the particular case to be tried. The trial court will then have the duty to determine if the defendant has established purposeful discrimination.

476 U.S. at 96-98, 106 S.Ct. at 1723-1724 (Citations omitted; footnote omitted).

The facts at bar, viewed in light of the aforesaid, indicate that once the prosecuting attorney excluded a Ms. Savage from the list of prospective jurors, she was called to side bar to give her reasons for the action she took, and the following exchange ensued:

Mrs. Barr: Your Honor, in selecting the jury panel, there is a juror, number 15, Mary Savage, she is a black juror, as well as there is a black defendant in this case. My reason for striking her is that her address is on Wallis Avenue. Mr. Chapman, a codefendant in this case, gave as an alibi a Michelle Ferguson who lives at Spearman. To my knowledge* Spearman and Wallis are very close together, as well as Farrell is a very closeknit community. The other consideration is, Mrs. Savage has 10 children between the ages of 17 and 29, and I would be striking her in the consideration that some of her children may know either Mr. Chapman, Michelle Ferguson’s boyfriend, or Michelle Ferguson herself.
The Court: Do you have any objection?
Mr. Dill: I object Your Honor. On the objection, the streets aren’t close enough. She would strike most of the people that had a Farrell address then.
Mrs. Barr: There is one other juror that has a Farrell address that is not close.
Mr. Dill: Also, Your Honor, those questions should have been asked for that knowledge. There is no showing that her—that they know each other or anything else. These two codefendants live in Youngstown. The only knowledge they may have of the witness, she is not going to testify, the one witness for Chapman is not going to testify.
Mrs. Barr: Mr. Chapman is going to testify and it was asked whether she knew him and there was no response on that, but I don’t feel I can take the chance. I don’t feel the Supreme Court says I’m not permitted to strike any ...
The Court: No, I think you have to have a particular reason, and I think there is an adequate particular reason. We recognize your objection.
Mr. Dill: I would like to ask the question, whether she knows' a certain person then.
Mrs. Barr: I don’t believe that’s necessary Your Honor.
Mr. Dill: Yes, I believe it is. Basically she lives in Farrell.
The Court: I think there are additional reasons, and one of the primary considerations, Mrs. Savage has how many children.
Mrs. Barr: Ten children between the ages of 17 and 29 which would be in the area of Mr. Chapman, Mr. Jones and Michelle Ferguson.
The Court: I think that’s an adequate reason.
Mr. Dill: But if she doesn’t know the people.
The Court: How does she know her children don’t?
Mr. Dill: So what if her children do, it’s whether she knows them. If her children—Your Honor if her children know him, but she doesn’t know if they know them, what difference does it make?
The Court: If she doesn’t, what’s to stop her from this evening, I’m sure the Court cautions people not to discuss the cases at home.
Mr. Dill: I think it’s—you can’t specifically dismiss a person because they live in Farrell.
Mrs. Barr: I think the Court is well aware there are cases where you even ask a person if they vaguely know someone and the next day they come in and say they know someone. I don’t feel I can take that risk considering the circumstances.
The Court: We’ll permit the strike. We certainly recognize your objection.
Mr. Dill: Okay. Thank you Your Honor.

Initially, the trial court denied the defendant’s Batson claim. It was only with the filing of post-trial motions, and the trial court’s reassessment of the prosecution’s explanations for striking Ms. Savage, that the trial court reversed its position. In so doing, it stated:

In the instant case there was only one black person on the venire. Following the lead of United States v. Cha lan, [812 F.2d 1302 (10th Cir.1987)], and Garrett v. Morris, [815 F.2d 509 (8th Cir.1987)], we hold that the prosecution’s use of a peremptory challenge to eliminate the only member of the defendant’s race raises inference of discrimination and entitles the defendant to an explanation. Moreover, we believe that the explanation offered by the Commonwealth is evidence of racial motivation since it challenged the black, but not the white, venireperson from Farrell.
The Commonwealth’s reasons for striking Ms. Savage from the jury suffer two infirmities. First, the danger envisioned by the prosecution seems pretty remote. Second, the challenge of a black woman because she lives in a certain city and the acceptance of a white man who lives in the same city raises the specter of racial discrimination.
The prosecution’s concern that Ms. Savage or one of her children might know Ferguson is remote because Ferguson was not a party or a witness in this case____ In the instant case we have only an alibi witness from a companion case who would not be called to testify. Moreover, the individual for whom Ms. Ferguson gave alibi evidence was himself a witness for the prosecution against Defendant Jones. We do not see how Ms. Savage’s or her children’s knowledge of Ms. Ferguson could therefore be prejudicial to the Commonwealth’s case.
Even if it were relevant if a prospective juror knew Ferguson, however, we are troubled by the fact that the prosecution struck Ms. Savage but not Mr. Kauffman, the white man who lived in the same area as Ms. Savage and Ms. Ferguson. The only differences between the two that we can see are their respective races and the fact that Ms. Savage has children but that Mr. Kauffman does not. The Commonwealth also stated at side bar that Mr. Kauffman does not live as close to Ms. Ferguson but the Defendant stated during oral argument of the post-trial motions that Mr. Kauffman actually lived closer and the prosecution did not dispute it.
There is no reason which we can see which would indicate that Savage is more likely to know Ferguson than is Kauffman. And as for the children, the Court counsels the jurors not to speak to anyone about the case before its conclusion. We are reticent to find that jurors would disregard this instruction when we have no evidence to suggest that they would. Consequently, we believe that their is no articulable difference between prospective jurors Savage and Kauffman but race. We, therefore, reverse our former ruling and grant Defendant’s request for a new trial.

The eloquence with which the trial court stated its assessment of the facts need not be embellished by this Court. However, we would add that Batson’s requirements that a defendant challenging an empaneled jury be a member of a cognizable racial group (instantly, the race is negro) and that the prosecution’s reasons for peremptorily excluding a member of a racial group were satisfied in the trial court’s evaluation of the defendant’s claim of racial discrimination in the selection of the jury.

Moreover, it would appear that the prosecution was merely “assuming” that Ms. Savage’s proximity to Ms. Ferguson’s residence created the potential for partiality in favor of the defendant. Carrying the presumption to its logical end, which we note is not condoned by Batson, we ponder why Mr. Kauffman’s impartiality was not rendered suspect because of his proximity to the defendant’s residence. It is obvious to this Court, as it was to the court below, that the reasons proffered by the prosecution for its actions were merely veiled attempts to exclude the only black person on the list of prospective jurors because of her race and not because of her residence or the number of siblings she had who might know of Ms. Ferguson—transparent reasons not justifying the action taken in removing Ms. Savage from the juror selection process.

Accordingly, we join in the actions of the court below and affirm the appeal of the order docketed at No. 1413 Pittsburgh 1987 and the order docketed at No. 1499 Pittsburgh 1987.

       Mr. Chapman was not tried along with Mr. Jones, although he was also charged criminally for his participation in the purse snatching incident. Mr. Chapman was a Commonwealth witness against Jones. Mr. Jones had given notice of an alibi defense and had listed Ms. Ferguson as the alibi witness, but that defense had apparently been abandoned by trial time.


author: KELLY, Judge:

text:
    543 A.2d 583
    Carol BURR, Appellee, v. Darrell CALLWOOD and Cheryl Callwood, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1988.
    Filed June 13, 1988.

      Patrick J. Shannon, Pittsburgh, for appellants.
    Deborah L. Lesko, Bethel Park, for appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   KELLY, Judge:

In this landlord/tenant action, the defendants, Darrell and Cheryl Callwood (“Tenants”) appeal an order granting summary judgment in favor of the plaintiff, Carol Burr (“Landlord”). The issue presented is whether a defendant who files a counterclaim in a district justice action properly preserves the issues raised in the counterclaim where he files an appeal to the court of common pleas from only the adverse judgment rendered against him on the complaint filed by the plaintiff. We find that in order to preserve the issues raised in the counterclaim, the defendant must file an appeal from the adverse judgment entered on the counterclaim. Here, the defendant filed a notice of appeal from the adverse judgment entered on the claim of plaintiff against defendant, but failed to file a notice of appeal from the adverse judgment entered on the counterclaim. The trial court therefore properly concluded that, on appeal to the court of common pleas, defendant was precluded from raising the issues previously raised in the counterclaim. Accordingly, we affirm.

On January 15, 1987, Landlord filed a district justice complaint against Tenants, seeking to recover rents allegedly due under a residential lease agreement and possession of the property. On January 20, 1987, Tenants filed a district justice complaint against Landlord, seeking $2,000.00 plus costs; the complaint stated that “[pjlaintiff [Tenant] is suing for breach of implied warranty of inhabit-ability [sic] and intentional infliction of emotional distress.” On February 10, 1987, following a hearing, the district justice entered two separate judgments. On the claim brought by Landlord against Tenants, the district justice entered judgment in Landlord’s favor for $1,168.50. On the claim brought by Tenants against Landlord, the district justice entered judgment in favor of Landlord and against Tenants. A standard notice appeared on each judgment notification, informing the parties that any appeal must be filed within 30 days.

Tenants filed a timely appeal to the Allegheny County Court of Common Pleas, with rule upon Landlord to file a complaint, from the judgment entered on the claim of Landlord against Tenants. Tenants at no time appealed the adverse judgment entered on their claim against Landlord. In response to the rule to file complaint, Landlord filed a complaint, again seeking the rent and late payment charges allegedly due under the lease agreement. Tenants filed an answer; the sole defense asserted was that Landlord was not entitled to payment of rent because Landlord had breached the implied warranty of habitability. In a counterclaim, Tenants sought return of double the security deposit, in accordance with 68 P.S. § 250.512.

On May 18, 1987, Landlord filed a motion for summary judgment on the complaint and the counterclaim. The motion alleged that Tenants were collaterally estopped from presenting a breach of implied warranty of habitability claim, since the issue was previously determined in Landlord’s favor in the claim of Tenants against Landlord, and Tenants had not appealed that determination. Since the sole defense alleged for non-payment of rent was a breach of the implied warranty of habitability, Landlord claimed she was entitled to judgment on the claim for rent as a matter of law. As for the counterclaim, Landlord alleged she was entitled as a matter of law to retain the Tenants’ security deposit in light of Tenants’ admitted non-payment of rent. By order dated June 16, 1987, the trial court granted the motion for summary judgment on the complaint and the counterclaim. This appeal by Tenants followed.

On appeal, Tenants allege that (1) the trial court erred in granting summary judgment on the Landlord’s claim, since Tenants’ appeal from the district justice level entitled Tenants to relitigate all issues de novo in the court of common pleas; (2) the trial court erred in granting summary judgment in favor of Landlord on Tenants’ claim for return of the amount equal to double the security deposit, since Tenants had a possibly meritorious defense for the failure to pay rent—breach of the implied warranty of habitability.

I.

Tenants first challenge the order granting summary judgment in favor of Landlord on the underlying claim of Landlord for the overdue rent. Appellant’s brief presents two arguments on this issue which we shall address separately.

A.

In granting Landlord’s motion for summary judgment on the underlying claim, the trial court reasoned that the doctrine of collateral estoppel applied to prevent Tenants from asserting their sole defense to non-payment of the rent, the claim that Landlord had breached the implied warranty of habitability. Under the doctrine of collateral estoppel, the determination of a fact in a prior action is deemed conclusive between the parties in a subsequent action even though the cause of action is different, where the fact was actually litigated in the prior action, was essential to the judgment in the prior action, and was determined by a valid and final judgment. Oaklane Shopping Center v. Flame, 264 Pa.Super. 9, 398 A.2d 721 (1979). In the instant case, the trial court noted that the Tenants’ counterclaim in the district justice action had asserted breach of implied warranty of habitability; the district justice had entered judgment in favor of Landlord on the counterclaim, and this judgment had not been appealed. Thus, the trial court concluded that Tenants were precluded from again asserting the claim of breach of implied warranty of habitability.

On appeal to this Court, Tenants argue that their counterclaim before the district justice was “for damages for intentional infliction of emotional distress resulting from Landlord’s breach of implied warranty of habitability.” (Appellant’s Brief at 10). Tenants assert that the district justice may have denied their counterclaim for failure to prove all the elements of intentional infliction of emotional distress rather than a failure to prove the elements of breach of implied warranty of habitability. Tenants assert that the issue of the breach of implied warranty of habitability was not necessarily actually litigated in the district justice action, and therefore the doctrine of collateral estoppel does not apply. We disagree.

Examination of Tenants’ complaint filed in the district justice action reveals that Tenants asserted they were entitled to damages on two separate and independent causes of action: intentional infliction of emotional distress and a breach of the implied warranty of habitability. The district justice entered judgment in favor of Landlord on the complaint filed by Tenants, thus rejecting both the claim of intentional infliction of emotional distress and breach of the implied warranty of habitability. The issue of the alleged breach of the implied warranty of habitability was therefore actually litigated in the district justice action. We therefore reject appellants’ first argument.

B.

In their second challenge to the order granting judgment in favor of Landlord on the underlying complaint, Tenants allege that they preserved all issues raised at the district justice level by filing an appeal from the judgment entered on the Landlord’s complaint. According to Tenants, the mere fact that a counterclaim asserted in a district justice action must be included on a separate complaint form does not result in the counterclaim becoming a separate action from the underlying claim. Moreover, Tenants compare the situation to an arbitration case, and they point out that a counterclaimant in a common pleas arbitration case needs only to appeal the adverse result entered on the underlying claim in order to preserve the issues raised on the counterclaim. Again, we reject appellants’ contentions.

Preliminarily, we note that appellants’ district justice/arbitration analogy ignores several formal yet significant differences between a counterclaim presented at the district justice level and one presented at the arbitration level in the court of common pleas. At the district justice level, the rules require the filing of a separate complaint form, while the counterclaim at the arbitration level may be included with the answer and new matter to the underlying claim. Further, the decisions on the claims at the district justice level are entered upon two separate judgment forms, while the arbitration panel enters but one judgment, disposing of both the claim and the counterclaim.

More importantly, the rules of procedure regulating appeals from district justices clearly treat the decisions entered at the district justice level as separate judgments, and require the counterclaimant at the district justice level to appeal the adverse judgment entered on the counterclaim in order to preserve the issues raised in the counterclaim for appeal. Pa.R.DJ. No. 1004(C) sets forth the procedure to be followed for appeals from the district justice:

Rule 1004. Filing Complaint or Praecipe on Appeal; Appeals involving Cross-Complaints
A. If the appellant was the claimant in the action before the district justice, he shall file a complaint within twenty (20) days after filing his notice of appeal.
B. If the appellant was the defendant in the action before the district justice, he shall file with his notice of appeal a praecipe requesting the prothonotary to enter a rule as of course upon the appellee to file a complaint within twenty (20) days after service of the rule or suffer entry of a judgment of non pros.
C. When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within thirty (30) days after the date on which the appellant served a copy of his notice of appeal upon the appellee.

(Emphasis added).

The rule clearly treats the judgments entered on the two cross-complaints as separate judgments; the rule requires any party who wishes to challenge an adverse judgment to appeal that judgment. The rule makes no mention of any circumstances where a separate notice of appeal is not required. A party who wishes to challenge the findings made in reaching the adverse judgment must file a notice of appeal from that judgment.

Here, the appellants were counterclaimants in the action before the district justice. They failed to file a notice of appeal from the adverse judgment entered on their claim. Thus, they failed to preserve that claim for appeal, and the judgment became final. The trial court properly determined that the appellants were bound by the issues necessarily determined in reaching the final judgment. Under the principle of collateral estoppel, Tenants were precluded from raising the issue of the breach of implied warranty of habitability.

II.

Tenants also challenge the award of summary judgment in favor of Landlord on the Tenants’ counterclaim made at the district justice level, which requested return of an amount equal to double the security deposit. Appellants contend that because the Landlord breached the implied warranty of habitability, Tenants were justified in withholding the rent such that a non-payment of rent did not occur, and Tenants were entitled to return of the security deposit. As we determined in Section I, supra, however, because Tenants failed to appeal the adverse judgment, they are precluded from raising the breach of implied warranty of habitability issue. As this was the only defense raised for the non-payment of rent, Tenants are not entitled to return of the security deposit. The trial court properly entered summary judgment in favor of Landlord on the counterclaim.

CONCLUSION

Accordingly, the judgment entered in favor of appellee is affirmed.

Judgment AFFIRMED.

      . Section 512 of the Landlord Tenant Act entitles Tenants to an amount equal to double the security deposit where Landlord fails to return the security deposit or provide written notice of damages to the premises within 30 days after Tenants have vacated the premises.

      . A breach of the implied warranty of habitability may serve as the basis for a complaint by tenant, as well as an affirmative defense to a landlord’s suit for rent or possession. Kuriger v. Cramer, 345 Pa.Super. 595, 498 A.2d 1331 (1985); see also Fair v. Negley, 257 Pa.Super. 50, 390 A.2d 240 (1978). Under either scenario, the Tenant holds the burden of proof.

      . See Pa.R.D.J. 315 A.

      . Of course, once the parties have properly appealed, the procedure on appeal is conducted de novo, and “[t]he action upon appeal shall not be limited with respect to amount in controversy, joinder of cause of action or parties, counterclaims, added or changed averments or otherwise because of the particulars of the action before the district justice.” Pa.R.D.J. 1007(B).


author: WIEAND, Judge:

text:
    543 A.2d 587
    COMMONWEALTH of Pennsylvania v. Kenneth Earl REED, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1988.
    Filed June 20, 1988.

      John M. Pray, Ellwood City, for appellant.
    J. Craig Cox, Assistant District Attorney, New Castle, for Com., appellee.

      Before BROSKY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a defendant who unlawfully receives some of the property taken in a burglary can be ordered, as part of his sentence, to make restitution for all property taken in the burglary.

In one information (# 253A of 1983), Kenneth Earl Reed was charged with theft by receiving stolen property as follows: “brake fluid, engine cleaner, spray paint, antenna, floor jack and stereo the property of M and A Distributors with a value in excess of $50.00 but less than $200.00.” In another information (# 254 of 1983), Reed was charged with theft by receiving the following stolen property: “scubapro watch the property of B & B Marine with a value in excess of $200 but less than $2000.”

In neither instance was Reed charged with committing the burglary in which these items had been taken.

In a consolidated trial before a jury, Reed was found guilty of both charges of receiving stolen property. The evidence at trial tended to fix the value of the scubapro watch at $280.00. The value of the items found in Reed’s possession from the M & A Distributors burglary was not specifically determined, although the criminal complaint had fixed their value at $118.10.

Reed was sentenced for receiving the stolen property taken in the M & A Distributors burglary to serve a term of imprisonment for not less than six months nor more than twelve months and to make restitution in the amount of $6,205.71. For receiving the stolen scubapro watch, which had been taken in the B & B Marine burglary, Reed was sentenced to serve a consecutive term of imprisonment for not less than six months nor more than twelve months and to make restitution in the amount of $5,796.96. In each instance, the restitution which Reed was ordered to make was based upon the total loss sustained in the burglary in which the property unlawfully received by Reed had been taken.

Restitution is an authorized part of a sentence for theft. It has been authorized by 18 Pa.C.S. § 1106 as follows:

(a) General Rule.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
(c) Authority of sentencing court.—In determining whether to order restitution as a part of the sentence or as a condition of probation or parole, the court:
(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.
(2) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution shall not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted.
(3) May at any time alter or amend any order of restitution made pursuant to this section providing, however, that the court state its reasons and conclusions as a matter of record for any change or amendment to any previous order.

In determining the amount of restitution to be ordered, a sentencing court must consider three factors: the loss or damage directly caused by the defendant's criminal act, the amount of restitution he can afford to pay, and the method by which he should pay it. Commonwealth v. Galloway, 302 Pa.Super. 145, 161, 448 A.2d 568, 576-577 (1982); Commonwealth v. Fuqua, 267 Pa.Super. 504, 510, 407 A.2d 24, 27 (1979). Because restitution is a sentence, the amount ordered must be supported by the record; it may not be speculative or excessive. Commonwealth v. Balisteri, 329 Pa.Super. 148, 156, 478 A.2d 5, 9 (1984). In a case of theft by receiving stolen property, a reviewing court will not countenance a sentence provision which requires restitution “for property which the Commonwealth has not proven was either stolen or received by the [defendant].” Commonwealth v. McFarland, 452 Pa. 435, 441, 308 A.2d 592, 595 (1973).

In the instant case, Reed had been charged with and convicted of theft by receiving stolen property having a combined value of not more than $480.00. However, he was ordered to make restitution in the total amount of $12,002.67. This was improper. Although the total amount was equal to estimated losses sustained in the burglaries occurring at M & A Distributors and B & B Marine, there was no evidence to show a causal connection between the total losses sustained and Reed’s role in receiving some of the property stolen. The evidence showed that the loss caused by Reed’s conduct did not exceed $480.00.

The Commonwealth argues that the excessive restitution ordered by the sentencing court was waived by Reed’s failure to file a timely post-sentencing motion for reconsideration in accordance with Pa.R.Crim.P. 1410. Reed was sentenced on June 12, 1984. Shortly thereafter, trial counsel was permitted to withdraw, and new counsel was appointed. He did not file a motion to reconsider sentence. It was not until December 31, 1985 that Reed’s third attorney filed a petition to modify the amount of restitution which had been ordered by the sentencing court. This was denied on June 19, 1987, and the present appeal followed.

In Commonwealth v. Balisteri, supra, this Court held that an order of restitution which was not supported by the record was illegal. “The illegality of a sentence of restitution is not a waivable issue____” Id., 329 Pa.Superior Ct. at 152, 478 A.2d at 7. See also: Commonwealth v. Kerr, 298 Pa.Super. 257, 444 A.2d 758 (1982). Similarly in the instant case, the portion of the sentence ordering Reed to make restitution for a loss which he, according to the record, did not cause was illegal. An illegal sentence can be corrected at any time. It is not waived by a failure to file a petition to modify the sentence. Commonwealth v. Walker, 468 Pa. 323, 330, 362 A.2d 227, 230 (1976), overruled on other grounds, Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984); Commonwealth v. Balesteri, supra, 329 Pa. Superior Ct. at 152, 478 A.2d at 7; Commonwealth v. Kerr, supra, 298 Pa.Superior Ct. at 259, 444 A.2d at 759.

The orders of restitution contained in the sentences imposed at Nos. 253A and 254 of 1983 are vacated. These orders are remanded for modification in accordance with the foregoing opinion. Jurisdiction is not retained meanwhile.

      . In the same trial, Reed was convicted of a separate burglary (# 255 of 1983) and an additional count of theft by receiving stolen property (# 255A of 1983). The sentences imposed for those crimes have not been questioned in this appeal.

      . This figure represents the $280.00 value of the scubapro watch and the maximum alleged value of the other items.


author: TAMILIA, Judge: POPOVICH, Judge,

text:
    543 A.2d 590
    John A. LEWIS, Administrator of the Estate of Mark E. Lewis, Deceased, on Behalf of the Estate of Mark E. Lewis, and John E. Lewis, Administrator of the Estate of Mark E. Lewis, Deceased, on Behalf of the Next of Kin of Mark E. Lewis, Deceased, Appellants, v. Charles B. MILLER.
    Superior Court of Pennsylvania.
    Argued March 16, 1988.
    Filed July 1, 1988.

      Keith M. Pemrick, Franklin, for appellants.
    Louis C. Long, Pittsburgh, for appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   TAMILIA, Judge:

Appellant, administrator of the estate of Mark E. Lewis, appeals judgment entered on September 3, 1987 based on the grant of compulsory non-suit against appellants.

This unfortunate action exemplifies the tragic and fully foreseeable consequences of racing on our public highways. Just before midnight on October 28, 1983, Mark Lewis agreed to pit his 1982 Pontiac Firebird TransAm against Charles Brian Miller’s Camaro Z-28, by racing up a steep bill on U.S. Route 322 in Clarion Township, Clarion County. As might be expected, the race concluded, not with a winner, but instead, with a fatality, as the Camaro Z-28 became airborne, clipping off the tops of pine trees some seven feet high, finally coming to rest against a camping trailer, and the TransAm skidded and rolled up against a stone wall. Mark Lewis, the 23-year old driver of the TransAm, was ejected from the car and later died, as a result of a fractured skull and broken neck, en route to the hospital.

Appellant filed a complaint in trespass on May 16, 1984 alleging the direct and proximate cause of the accident between decedent’s TransAm and appellee’s Camaro to be the “careless, negligent, wanton, reckless grossly negligent” operation of the auto operated by the appellee. Appellant sought damages on behalf of the estate for loss of wages and earnings and accumulations during the natural life expectancy of the decedent, and for pain, suffering and inconvenience sustained by decedent, as well as loss of property for the damaged automobile. On behalf of the next of kin of decedent appellant sought damages for loss of his companionship and also loss of his earnings and income. The case proceeded to trial on January 27-28, 1987.

Two witnesses, Millene Childs and Lori Switzer, present with the decedent and appellee shortly before the accident, testified the two young men had agreed to a race (N.T., 1/27/87, pp. 40, 50). Switzer said the men started the race at the bottom of a hill (N.T. at 50). Trooper Morosky of the Pennsylvania State Police, who investigated the accident, described the scene as a steep inclined hill with a sharp right hand curve, containing two eastbound lanes for traffic proceeding up the hill and one westbound lane for downhill traffic (N.T. at 8). The trooper testified that as the men had proceeded eastbound with Lewis in the inner lane, Miller encountered a slow-moving vehicle in the outer lane causing him to swerve to his left to avoid hitting that vehicle. The path of Lewis’s TransAm was cut off by Miller, causing him. to swerve left, skid and hit a stone wall. As noted above, Lewis was thrown from the vehicle and died as a result of his injuries (N.T. at 60-62). Trooper Morosky estimated the traveling speed of the two vehicles to have been 75 m.p.h. at the time of the incident, although the hill area has a posted speed limit of 45 m.p.h. (N.T. at 25). He also testified each vehicle left about 200 to 220 feet of skid marks on the road.

The parties stipulated that shortly after his death decedent’s blood alcohol level was .169 percent; appellee’s blood alcohol was .17. At the close of plaintiff’s case, defendantappellee moved for compulsory non-suit, which the trial judge granted.

On appeal, the decedent’s administrator contends the court erred in granting Miller’s motion for compulsory non-suit. He urges the evidence does not unequivocally establish the decedent desired the accident to occur, that he realized it was substantially certain to occur, or that he actually perceived the risk that appellee-defendant would drive his car in such a manner as to force him from the road. Instead, he argues the evidence would establish both drivers were negligent but the immediate cause of the accident was the defendant’s sudden lane change which forced the decedent from the roadway.

Additionally, appellant contends the jury should have been permitted to decide what type of misconduct was the immediate cause of the accident and to then allocate the relative fault between the two parties. He says merely because it is inappropriate to compare wanton and willful misconduct by a defendant against simple negligence of a plaintiff, see Krivijanski v. Union R.R. Co., 357 Pa.Super. 196, 515 A.2d 933 (1986), does not preclude the court from comparing equal levels of misconduct where both parties may be guilty of wanton or willful misconduct.

Our standard of review of the grant of non-suit is found in Speicher v. Reda, 290 Pa.Super. 168, 434 A.2d 183 (1981):

On appeal from a compulsory non-suit the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiffs favor. A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion. Paul v. Hess Brothers, 226 Pa.Super. 92, 94-95, 312 A.2d 65, 66 (1973) (citations omitted). In trespass case, a plaintiff need not exclude every other reasonable accident. “It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.” Jones v. Treegoob, 433 Pa. 225, 230, 249 A.2d 352, 355 (1969).

Id., 290 Pa.Superior Ct. at 171, 434 A.2d at 185 (1981) (emphasis in original) quoting Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 135, 359 A.2d 822, 825 (1976). See also Baker v. Township of Mt. Lebanon, 98 Pa. Commw. 422, 512 A.2d 71 (1986).

In the January 28, 1987 Opinion the trial judge found, as a matter of law, the actions of both parties in this case were wanton conduct. We agree. In Krivijanski, supra, we outlined the meaning of wanton conduct in Pennsylvania as follows:

Wanton conduct has been defined as “something different from negligence, however gross, different not merely in degree but in kind and evincing a different state of mind on the part of the tort feasor.” Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943); Zawacki v. Pennsylvania Railroad Company, 374 Pa. 89, 97 A.2d 63 (1953); Geelen v. Pennsylvania Railroad Company, 400 Pa. 240, 161 A.2d 595 (1960); Stubbs v. Frazier, [308 Pa.Super. 257, 454 A.2d 119 (1982)] supra. “Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.” Kasanovich, supra, 348 Pa. at 203, 34 A.2d at 525. Wanton misconduct
... means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences.
Prosser, Torts § 33 at 151 (2d ed. 1955) cited in Evans [v. Philadelphia Transportation Company,] supra [418 Pa. 567] at 567, 212 A.2d [440 (1965) ] at 443; Moss v. Reading Company, 418 Pa. 598, 212 A.2d 226 (1965). Antonace, supra. See also 57 Am.Jur.2d § 102.

Id., 357 Pa.Superior Ct. at 201-205, 515 A.2d at 936-37.

Both the decedent and the appellee clearly were engaging in wanton conduct when they agreed, after imbibing alcohol, to drag race on a dangerous blind curve. In fact, their conduct involved several acts which are so unreasonable that they have been deemed crimes by our legislature, see, e.g., Driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(4); Racing on highways, 75 Pa.C.S. § 3367; Maximum speed limits, 75 Pa.C.S. § 3362; Reckless driving, 75 Pa.C.S. § 3714. Under the circumstances of this case, while these are per se violations of the law, the activities also show a conscious indifference for the actor’s own safety and for public safety in general. The unreasonable character of the risk posed by racing on this particular blind curve, while legally intoxicated, was so obvious the decedent must necessarily have been aware of it, and was of such a magnitude it was highly probable that someone would be injured if not killed, whether it be one of the young men involved or an innocent bystander.

The trial judge was correct in his observation that in going 75 m.p.h. in a 45 m.p.h. zone, the men found, as they rounded the curve, precisely what they could have anticipated, that is, a slower moving vehicle. Thus, we see no reason to disturb the trial court’s determination that both men were engaged in wanton conduct. We cannot accept as reasonable the appellant’s contention that the evidence could establish the immediate cause of the accident was the defendant’s sudden lane change which forced the decedent from the roadway, since that was just one isolated action of the continuing wanton act of drag racing. Neither will we find that the issue of the degree of wantonness of each party should have been submitted to the jury for determination, since our legislature has not provided an act similar to the Comparative Negligence Act which would permit a jury to compare relative degrees of wantonness on the part of each party.

Judgment affirmed.

Concurring Statement by POPOVICH, J.

POPOVICH, Judge,

concurring:

I join in the well-reasoned Opinion by Judge Tamilia. But I write separately to emphasize the egregious nature of this law suit that the casual reader may not perceive. As Judge Tamilia points out, the appellant was guilty of committing four separate crimes: drunken driving, drag racing, speeding and reckless driving, and yet he has the unmitigated temerity to demand financial redress for injuries received as a direct consequence of his wanton commission of those crimes. Shall we now award monetary verdicts in civil court to a robber for injuries he received in a thwarted attempt to rob a convenience store? And one wonders about the ethical standards of an attorney who would accept and prosecute such a case. In the name of justice, we corrupt it.

      . The parties agree the two young men involved, decedent Mark Lewis and appellee Charles “Brian” Miller, were engaged in a high-speed race or drag race at the time of the accident. See 75 Pa.C.S.A. § 3367, Racing on highways.