author: TAMILIA, Judge: CIRILLO, President Judge, MONTEMURO, Judge,

text:
    532 A.2d 1212
    Frederick F. REILLY, Appellant, v. STROEHMANN BROTHERS COMPANY.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed Oct. 21, 1987.

      Stephen D. Wicks, Altoona, for appellant.
    David P. Andrews, Hollidaysburg, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

On September 9, 1965, appellant, Frederick F. Reilly, was hired by appellee, Stroehmann Brothers Company, after entering into a written employment contract for a position as a wholesale route salesman. Appellant was dismissed from appellee on November 12, 1983 for alleged wrongful misconduct. Relying on an employment handbook, published by appellee on April 26, 1982, appellant requested binding arbitration to review the matter of his discharge. This request was denied by appellee and appellant brought the instant action seeking specific performance of the binding arbitration provisions. The lower court sustained appellee’s preliminary objection in the nature of a demurrer and appellant timely appeals that Order.

Our scope of review to a challenge to the sustaining of a preliminary objection in the nature of a demurrer is limited. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983); Swidzinski v. Schultz, 342 Pa.Super. 422, 493 A.2d 93 (1985). As an appellate court reviewing the approval of a demurrer, we must accept as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom. Mahoney, supra; Toolan v. Trevose Federal Savings and Loan Association, 501 Pa. 477, 462 A.2d 224 (1983); Leach v. Hough, 352 Pa.Super. 213, 507 A.2d 848 (1986). This Court is concerned only with determining the legal sufficiency of appellant’s complaint; we must decide whether sufficient facts have been plead which would permit recovery if ultimately proven. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa.Super. 253, 489 A.2d 1364 (1985).

Appellant argues that the provisions of the employment handbook, specifically the arbitration section, were incorporated into the September 9,1965 written contract of employment between the parties by operation of paragraph 7 of the contract, which reads as follows:

NOW THIS AGREEMENT WITNESSETH, that said employee agrees:
7. That said employee will faithfully observe all rules and regulations of said Company now in effect, or such as May hereafter be adopted by Company, and that the posting of such rules and regulations at the plant of the Company shall be notice to said employee of the same, and he shall be bound by the same terms and conditions as though embodied herein.

Appellant claims that the handbook falls within the definition of “rules and regulations” which paragraph 7 contemplates. Therefore, appellant argues that the handbook, including the arbitration procedure therein, became part of the employment contract and is subject to specific enforcement.

Alternatively, appellant argues that even if the handbook was not incorporated into the employment contract, the arbitration provisions should be enforceable as a unilateral promise by appellee. Appellant maintains that the arbitration provisions requirement for “final” and “binding” arbitration must be read as implicitly imposing a “just cause” requirement upon appellee when discharging employees. By this, appellant avers that implied in the arbitration provision of the handbook is the employer’s declaration that its employees could only be discharged for just cause as determined by the arbitrator.

The well-settled rule in Pennsylvania is that: “[ajbsent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.” Geary v. United States Steel Corporation, 456 Pa. 171, 175, 319 A.2d 174, 176 (1974); Betts v. Stroehmann Brothers, 355 Pa.Super. 195, 512 A.2d 1280 (1986); Banas v. Mathews International Corporation, 348 Pa.Super. 464, 502 A.2d 637 (1985). The at-will presumption, uniquely present in employment contracts, is that an employment agreement is presumptively terminable at will by either party; meaning, an employee may leave a job for any or no reason and an employer may discharge an employee for any or no cause. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986).

We find the terms of the instant employment contract made appellant an at-will employee. In paragraph 3 of his complaint, appellant admits his contract did not provide for a definite term of employment. Paragraph 4 of the complaint admits that appellant was terminated based upon an allegation of willful misconduct. The employment contract specifically states in paragraph 11(2) that appellee has the right to summarily terminate the employment relationship for misconduct:

2. Said Company agrees to give said employee 7 days notice, in writing, of its intention to sever his employment, except that said Company reserves to itself the right to summarily terminate said employment at any time, without notice, for any breach of trust or such serious misconduct on the part of said employee as would be detrimental to the interests of said Company.

By the terms of the agreement, appellee could terminate appellant for any or no cause, the only restriction placed upon appellee is that it must give appellant seven days notice of a termination if the cause of the termination, if any, is anything other than misconduct on appellant’s part. Since appellant has not averred a statutory remedy nor a violation of public policy, Darlington, supra, his recovery must depend on a contractual remedy.

We reject appellant’s claim that the arbitration provisions in the employment handbook were incorporated into the employment contract by virtue of the contract’s paragraph 7, above, which provides that the employee agrees to be bound by all “rules and regulations” of the company posted at the plant as though they were embodied in the employment contract. Upon a thorough review of the handbook we find that it was not a “rule” nor “regulation” as contemplated by paragraph 7. Rules and regulations relate to the day to day operation of the business and the employee’s responsibility thereto. They do not alter the contract of employment except that he is on notice as to what his employer expects of him. The handbook merely outlined the existence of diverse topics of benefits and policies appellee provides its employees, such as various types of insurance and retirement benefits, the credit union, personnel policies in general, a method of determining full or part-time job status, how work shifts and time off are handled, employee meetings, and a complaint procedure for non-union employees, as well as neutral third party arbitration for discharged non-union employees. Appellant failed to aver that the handbook was posted in appellee’s plants in conformance with the procedure stipulated by paragraph 7 of the contract as the proper means of notice of all rules and regulations. Nothing in the handbook can be construed to be a part of the employment contract or a “rule and regulation.” A handbook, to be construed as a contract, must contain unequivocal provisions that the employer intended to be bound by it and, in fact, renounced the principle of at-will employment.

An examination of the handbook’s benefits and policies, including that provision on arbitration which reads in part:

Stroehmann’s management feels strongly about maintaining fairness in its hiring and disciplinary practices. That is why we have designed a free and completely neutral third party arbitration procedure for all non-union employees. Under this program, if you are discharged for any reason, you may have an Arbitrator appointed by the AMERICAN ARBITRATION ASSOCIATION to hear and decide whether you have been discharged properly. The decision of the Arbitrator appointed to hear the case will be FINAL and BINDING on both sides....
If the Arbitrator decides that you have not been properly discharged, he may reinstate you in your previous job, with back pay.
This program is presented as a means of insuring fair, consistent and completely impartial handling of such matters. (Emphasis in original),

demonstrates they were never intended to be “rules” or “regulations” that the employees were to follow, but instead, they were meant to provide a general outline of benefits and procedures available to the employees. In the employment context a “rule” or “regulation” carry with them a connotation of requirement and are normally considered to be principles designed to govern the behavior of employees while at work. For example, a rule against alcoholic beverages or a rule requiring pay stubs for reimbursement of traveling expenses. A description of an arbitration program for discharged non-union employees must not be construed as a rule or regulation anymore than the life insurance benefits or other benefits described in the handbook. The arbitration provision does not require that employees submit discharges to binding arbitration, instead, non-union employees “may” submit to arbitration if they so choose. Consequently, we cannot find that the employmént contract incorporated the contents of the handbook.

We find equally meritless appellant’s alternative argument that the handbook’s arbitration provisions constitute an implicit unilateral promise by appellee to only terminate employees for “just cause.” Appellant relies upon our en banc decision in Bañas, supra, where we held, inter alia, that an employee was properly discharged as an at-will employee where no statutory exception to the at-will rule existed, no definite term of employment was established and no “just cause” provision was present in the employee handbook issued by the employer. In passing, we stated in Bañas:

If the handbook had contained, if not expressly at least by clear implication, a just cause provision, then appellee’s claim might have merit____ Since here the handbook did not contain, expressly or by clear implication, any just cause provision, appellee has shown nothing to take his case out of the settled employee-at-will rule. (Emphasis in original).

Bañas, supra 348 Pa.Super. at 484-85, 502 A.2d at 647-648. Although these statements do indicate that under the right circumstances a just cause provision may be found in a handbook by implication, in Bañas, we expressly refused to answer the question of whether a handbook should be accorded contractual significance.

In Richardson v. Charles Cole Memorial Hospital, 320 Pa.Super. 106, 108, 466 A.2d 1084, 1085 (1983), we held that an employer’s “unilateral act of publishing its policies” in an employee handbook “did not amount to the ‘meeting of the minds’ required for a contract” when “[t]he terms of the handbook were not bargained for by the parties and any benefits conferred by it were mere gratuitous.” See Muscarella v. Milton Shoe Manufacturing Company, Inc., 352 Pa.Super. 158, 162, 507 A.2d 430, 432 (1986) (“[I]t is well established that failure to adhere to a company personnel policy does not create a cause of action for breach of an employment contract”); Darlington, supra (quoting Rich ardson with approval). In Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 212, 511 A.2d 830, 836-38 (1986), we affirmed our holding in Richardson when concluding that a handbook should not be accorded contractual significance, stating that:

We believe that the holding in Richardson, supra, is more in keeping with the philosophy of the at-will presumption than is the line of cases finding contractual significance in handbooks. And, we might add, it is more in keeping with our analysis in Darlington, supra, wherein we cautioned against further burdening of the judicial process with expanding the bases for recovery ip this field. Richardson held that handbooks are not contracts because they lack consideration. We need not analyze whether there is consideration here because we find that a reasonable employee in appellant’s position would not have understood that in distributing the handbook, the employer intended to be legally bound.
We also believe that cases which find contractual significance in handbooks have bypassed an important inquiry. Before we can decide whether there is a valid offer and acceptance with the distribution of a handbook, a threshold question must be asked: With the distribution of the handbook, does the at-will employee reasonably understand that the employer intended to alter the pre-existing at-will status?
In analyzing an employer’s publication and distribution of an employee handbook, we should not necessarily presume that the employer intended to alter the previous existing contractual relationship between the parties; nor should we assume that the employee believed that the handbook was a legally binding instrument____
... [I]n deciding whether the employer newspaper intended to recontract with all employees who received the handbook, we must ask whether the employment handbook evidences an intent that it became a legally binding contract that replaces the pre-existing at-will status. This is a question of interpretation and is therefore left to the court.

We find that a reasonable employee in appellant’s position would not understand that in distributing the handbook appellee intended to be legally bound by its terms. As in Martin, it can be said that this handbook “covers” the employment relationship because of the wide range of topics it discusses. We said in Martin: “It is perfectly reasonable to say that this document ‘covers’ the employment relationship. It is, however a quantum leap in logic to assert that because the handbook in some way ‘covers’ the employment relationship, the terms of the handbook limit discharges for objective just cause only.” Martin, supra, 354 Pa.Superior Ct. at 215, 511 A.2d at 838. Appellant had a written contract of employment with appellee which firmly established an at-will relationship between the parties. Reading the handbook as a whole, we do not believe a reasonable person in the appellant’s position would have interpreted the benefits and policies it contains as converting appellant from an at-will employee to an employee with an indefinite contract who could never be dismissed without objective cause. Additionally, appellant has not alleged any specific consideration in addition to his services which could change his status from an employment at-will relationship.

Accordingly, we affirm the lower court’s granting of a demurrer to the plaintiff’s complaint.

Order affirmed.

CIRILLO, President Judge, concurs with opinion.

MONTEMURO, J., dissents with opinion.

CIRILLO, President Judge,

concurring:

I join the majority’s opinion but write separately to emphasize the following matters. The appellant was covered by a written contract in this case. In interpreting a contract, a court is bound by that contract, and absent fraud, mistake or ambiguity, cannot look outside its terms, or redraft it under the guise of interpretation. Borrell v. Borrell, 346 Pa.Super. 1, 10, 498 A.2d 1339, 1344 (1985); Trumpp v. Trumpp, 351 Pa.Super. 205, 209, 505 A.2d 601, 603 (1985). The plain terms of the contract in question lack a provision specifying the amount of time appellant was to work for Stroehmann’s. In an employment situation, as the majority correctly points out, there is a presumption that if the parties fail to set out the duration of the employment relationship, that relationship is terminable at any time by either party. Greene v. Oliver Realty Inc., 363 Pa.Super. 534, 541, 526 A.2d 1192, 1196 (1987). As there has been no showing of fraud, ambiguity or mistake, we must consider only the language of the contract, and cannot resort to the employee handbook for guidance in interpreting it. According to those provisions, Reilly was an at-will employee of Stroehmann’s, subject to discharge at any time.

Further, Reilly has been unable to overcome the presumption of at-will employment raised by his contract. The presumption may be overcome if the party seeking to destroy it can present clear evidence that both employer and employee intended to allow the employee greater rights than the at-will relationship provides. Greene, 363 Pa.Super. at 543, 526 A.2d at 1202. The presence of consideration is only a single factor in the court’s determination of intent. The dissent finds consideration in the fact that Reilly continued to work during the period following the publication of the handbook. I see no need to discuss that issue. Considering the facts and the inferences to be drawn therefrom, no meeting of the minds occurred between Stroehmann’s and Reilly that would allow Reilly to overcome the at-will presumption raised by his contract.

In his dissent, Judge Montemuro contends that the arbitration provisions outlined by the handbook provide that meeting of the minds. He argues that a reasonable employee would have understood the arbitration provisions to create a subjective “just cause” standard for discharge. I disagree. In the instant case, it is reasonable to infer that the employer did not intend to create an employment relationship that could not be altered absent a finding of “just cause” by a neutral arbitrator. The arbitration provision was offered only to non-union employees. Clearly the inference may be drawn that the provision was intended by the employer to keep them non-union, not to provide them with a settled term of employment. No meeting of the minds can be said to have occurred here, and thus the at-will presumption is not overcome.

Although we may deplore the use of such methods by Stroehmann’s, and although Stroehmann’s may indeed be reaping the benefits of the bargain without fulfilling its obligations, the proper forum to rectify these injustices is the National Labor Relations Board, not the courts of this Commonwealth.

I therefore concur in the opinion of the majority.

MONTEMURO, Judge,

dissenting:

I believe that a reasonable employee in Mr. Reilly’s position would have construed Stroehmann’s promise to arbitrate employee dismissals as a promise to alter the existing at-will employment relationship. I further believe that Stroehmann received valuable consideration for this promise. For these reasons, I dissent.

The handbook language at issue here differs from the more vague policy pronouncements at issue in past cases. For example, the handbook before us in Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986), contained nothing more than an illustrative list of typical employee misconduct that would warrant dismissal. We concluded that the handbook was “an aspirational statement by the employer listing actions that generally will not be tolerated.” Martin, supra, 354 Pa.Superior Ct. at 214, 511 A.2d at 838. We added that the book served only “an informational function.” Id. Likewise, the handbook at issue in Richardson v. Charles Cole Memorial Hosp., 320 Pa.Super. 106, 108, 466 A.2d 1084, 1085 (1983), contained the bare promise that the employer would “provide continual employment to all employees whose work proves satisfactory.” This promise, as we later observed in Banas v. Matthews Int’l Corp., 348 Pa.Super. 464, 469 n. 1, 502 A.2d 637, 648 n. 1 (1985) (en banc), was “hardly a promise at all” because it reserved to the employer the discretion “to determine what measure of performance was satisfactory.” On the other hand, the neutral arbitration provision in the Stroehmann handbook is more than merely a statement of general employment policy or an aspirational pledge to abide by a subjective standard of “fairness” or “just cause.”

Stroehmann could not have relinquished more thoroughly its right to dismiss its employees at-will. The company promised to subject all non-union employee dismissals to the objective and independent scrutiny of a third party. It further promised to abide by that third party’s determination of whether the dismissal in question was “fair.” Under the terms of the neutral arbitration provision, the arbitrator has “final and binding” authority to order the reinstatement of an improperly discharged employee. Stroehmann neither retained control over the ultimate decision nor reserved to itself the power to veto the arbitrator’s order. It expressly abandoned its right to discharge its employees “for any or no reason.” In place of that right, it established a specific “program” that would ensure “a fair, consistent and completely impartial handling of such matters.”

The neutral arbitration provision, moreover, is not a mere gratuity. Stroehmann expressly limited availability of the procedure to non-union employees. Thus, in exchange for the neutral third-party arbitration of discharge disputes, Stroehmann expected its employees to continue their employment without the benefits of union representation or membership. A reasonable employee would understand the terms of the bargain: Stroehmann promised to forego one of its rights as a means of inducing its employees to forego one of theirs. We can reasonably infer from the allegations in the complaint that Mr. Reilly continued to work for Stroehmann as a non-union employee during the period between publication of the handbook and termination of the employment relationship. We should not allow Stroehmann to reap the benefits of the bargain without also requiring it to fulfill the obligations of the bargain.

As our President Judge recently observed in Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987), the at-will employment doctrine is nothing more than a presumption. It enables the fact-finder to assume the existence of an at-will employment relationship only in the absence of evidence to the contrary. It does not allow us to ignore the parties’ intent, which remains the lodestar of all contract analysis and construction. If a court fails to enforce that intent, “it violates the cannons of contract law as well as the very policies upon which the doctrine of at-will employment is based.” Greene v. Oliver Realty, Inc., supra, 363 Pa.Superior Ct. at 555, 526 A.2d at 1202. I would therefore reverse the order of the Blair County Court of Common Pleas in this case.

      . We note that appellant did not plead the existence of a unilateral contract, in the form of the handbook, in his complaint. Instead, in paragraph 7 of the complaint, appellant averred that appellee amended the employment contract with the handbook. It is only in response to appellee's preliminary objections that appellant has raised an argument that a unilateral contract existed in the handbook.

      . As the majority points out, in reviewing the grant of a preliminary objection in the nature of a demurrer, the appellate court must accept as true all well-pleaded facts of the complaint as well as the reasonable inferences which may be drawn from them. Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-2 (1983).

      . As the majority correctly observes, Mr. Reilly is entitled to the benefit of all favorable inferences that we can reasonably deduce from the complaint.

      . Of course, Mr. Reilly appears to have worked as a non-union employee since he began with Stroehmann in 1965. We can only speculate about the reasons why Stroehmann decided in 1982 to offer neutral arbitration of employee dismissals. Perhaps the company sought to discourage an attempt to unionize its employees. A performance is adequate consideration for a promise "if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.” Restatement (Second) of Contracts § 71 (1981). Courts ordinarily do not pursue the highly speculative inquiry into the adequacy of consideration. See id. at § 79 comment


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    532 A.2d 1218
    In re J.G.J., Jr. Appeal of John Gary JOSE.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1987.
    Filed Oct. 28, 1987.

      James T. Owens, West Chester, for appellant.
    Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.
   MONTEMURO, Judge:

J.G.J., Sr., father of the minor child, J.G.J., Jr., appeals from the final decree of the Court of Common Pleas of Chester County denying his petition for involuntary termination of the parental rights of L.H., mother and appellee herein. This later decree reverses an earlier decree nisi, dated August 8, 1986, which terminated the parental rights of appellee, L.H. Upon a thorough review of the record, and application of the appropriate standard of review, we affirm.

J.G.J., Sr. and L.H. lived together sporadically from June 1979 to December 1981. J.G.J., Jr. was born September 26, 1979. Following the separation of his parents in December, 1981, J.G.J., Jr. resided with L.H. during the week and spent weekends with J.G.J., Sr. However, following a weekend visit in May of 1982, J.G.J., Sr. refused to return the child to L.H.’s custody after he discovered a burn on the child’s back. From May of 1982 to present, J.G.J., Jr. has resided with his father and his father’s wife.

Between May of 1982 and June of 1983, L.H. testified that she visited her son five times and made approximately ten phone calls to him. (N.T. at 126.) However, she stopped calling her son when she was told that the calls were upsetting the child. (Id. at 125-126 and 142.) She testified that she visited her son only five times during this period because further visitation was not permitted by J.G.J., Sr. (N.T. 125-126 and 142.) On June 30, 1983, L.H. filed an action for custody of J.G.J., Jr. After a conciliation conference on August 1, 1983, the court issued a temporary order allowing L.H. to visit her son on alternating Sundays for two hours at the home of J.G.J., Jr.’s paternal grandmother. The court further directed that both parties attain the services of a psychologist in connection with the pending custody action.

From August 1983 to November 1984 L.H. did travel from her home in Delaware County to visit J.G.J., Jr. at the home of his paternal grandmother in Chester County. The trial court found that out of thirty-seven scheduled visits in this time period, L.H. was not able to attend thirteen. L.H. testified that she missed some of the visits because she gave birth to a child in July, 1984. L.H. further explained that she was not always able to arrange transportation for the visits. Although there was testimony to the contrary, L.H. testified that she telephoned J.G.J., Jr.’s grandmother when she had to cancel a visit.

On November 14, 1984, counsel for J.G.J., Sr. wrote to L.H.’s counsel stating, inter alia:

For reasons which shall become obvious, I have instructed my clients to preclude visitation with the youngster by your client. My reason is that on several occasions there have been threatening phone calls including one phone call wherein my client’s fiance was advised that the child would be killed rather than arrangements continuing as they are presently.

As a result of this letter, L.H. received the following letter dated November 16, 1984 from her attorney:

On November 15, 1984, I was telephoned by James Owens, [J.G.J., Sr.’s] attorney, concerning your case. At that time, Mr. Owens stated that his client had told him that you have recently threatened your son’s life. Based on these threats, [J.G.J., Sr.] will no longer permit you to visit with your son until other arrangements are made between Mr. Owens and myself.

At the termination hearing, J.G.J., Sr.’s wife testified that in October 1984 she had received the threatening phone calls at home. Although she knew that the voice was female, she did not recognize the voice. (N.T. at 88.) L.H. testified that she never had the home address or home phone number of J.G.J., Sr. and his wife and L.H. denied making the threatening phone calls. (N.T. at 135.)

In December of 1984, L.H.’s attorney informed her that the custody action could not proceed until L.H. paid the outstanding bill for the court ordered psychological examination. L.H. testified that she did not pay the bill because she could not afford to do so. It is undisputed that between October 14, 1984 and July 22, 1985, there was no contact between L.H. and her son. As a result, on July 22, 1985, J.G.J., Sr. filed a petition to terminate the parental rights of L.H.

Parental rights may not be terminated in the absence of evidence which is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 166, 465 A.2d 642, 642-643 (1983). In Pennsylvania, courts applying this standard have required that the evidence be “so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue.” In re Jackson, 267 Pa.Super. 428, 431, 406 A.2d 1116, 1118 (1979) (citation omitted).

Our scope of review in termination of parental rights cases is limited to a determination of whether the decision is supported by competent evidence. In re Adoption of Faith M., 509 Pa. 238, 501 A.2d 1105, 1106 (1985); In re Shives, 363 Pa.Super. 225, 525 A.2d 801 (1987). If our comprehensive review of the record does not reveal an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s findings, the order must stand. Lookabill v. Moreland, 336 Pa.Super. 520, 523, 485 A.2d 1204, 1205 (1984); See also In re Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984); In re Stickler, 356 Pa.Super. 56, 58, 514 A.2d 140, 141 (1986).

J.G.J., Sr. petitioned for termination of appellee’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1):

The right of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: The parent by conduct continuing for period of at least six months ... has refused or failed to perform parental duties.

In the case at bar, it is undisputed that between October 14, 1984 and July 22, 1985, there was no contact between J.G.J., Jr. and his mother, L.H. However, this court has recognized that even where it is conclusively established that a parent has failed to perform parental duties for a period in excess of six months, such a finding does not, in and of itself, support an order terminating parental rights. In re T.L.G., 351 Pa.Super. 256, 505 A.2d 628 (1986). Rather, the nonperformance of parental duties must be evaluated under the totality of the circumstances confronting the particular parent. Consideration must be afforded to any explanation offered by the parent for his failure to perform parental obligations. Indeed, in In re Burns, 474 Pa. 615, 379 A.2d 535 (1977), our supreme court stated:

A finding of abandonment, which has been characterized as “one of the most severe steps the court can take,” Sarver Adoption Case, 444 Pa. 507, 509, 281 A.2d 890, 891 (1971), will not be predicated upon parental conduct which is reasonably explained or which resulted from circumstances beyond the parent’s control. It may result only when a parent has failed to utilize all available resources to preserve the parental relationship. (Citations omitted.)

Id., 474 Pa. at 625, 379 A.2d at 540. It is well established that before parental rights may be terminated, the parent’s performance must be measured in light of what would be expected of an individual in circumstances which the parent under examination finds himself. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981); In re Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978).

We find that the circumstances confronting the mother of J.G.J., Jr. in this case are closely analogous to those circumstances in Matter of Adoption of Barnett, 304 Pa.Super. 514, 450 A.2d 1356 (1982). In Barnett, appellant’s son was detained in a Children’s Services’ foster home after appellant was found to be truant from school and sent to Waynesburg Juvenile facility. Upon her release, Children’s Services gave appellant “goals” that she had to meet before her son would be returned to her. Children’s Services later filed a petition to involuntarily terminate appellant’s parental rights because the agency believed appellant had not made sufficient progress toward reaching her “goals.” The trial court terminated appellant’s parental rights to her son, and we reversed. At the time of filing the petition, Children’s Services advised appellant that she could not longer visit her son pending disposition of the petition. We noted in Barnett that the trial court’s decision to terminate parental rights was based primarily on the fact that during the year between the filing of the termination petition and the final hearing, appellant made no attempt to call Children’s Services to inquire about her son. In Barnett, we stated:

We find that this basis for the court’s decision must be rejected as a ‘Catch-22’. Alice was forbidden by Children’s Services from contacting her child; Alice cannot, therefore, be held accountable for her failure to continue visiting her child as she had been doing. Neither do we find the court’s latter conclusion to be a basis upon which to terminate parental rights. The rule is that a parent is to maintain a place of importance in his child’s life, which means that the parent has an affirmative duty to ‘love, protect, and maintain communication and association with that child.’ In re Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975). It must not be forgotten, however, that the measures taken by the parent to demonstrate his or her interest in a child must be viewed in light of the existing circumstances. In re Adoption of Infant Male a/k/a J.P.M., 485 Pa. 77, 401 A.2d 301 (1979). In the instant case, owing to the position of Children’s Services regarding appellant’s visitation rights, communication and association with the child by appellant was prohibited. In this respect, appellant’s case is more akin to those cases where the court found that the custodian of the child prevented the natural parent from performing the duties, such as communication and association, that otherwise would have been required. See e.g., In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In re Adoption of Vaders, 444 Pa. 428, 282 A.2d 359 (1971). More pertinent conclusions can be deduced from an examination of appellant’s conduct during that period in which visitation was permitted, which would be from March 1979 to March 1980. During this time, Alice saw her child at least once a week, for half a day.

Matter of Adoption of Barnett, supra, 304 Pa.Superior Ct. at 523, 450 A.2d at 1360. (Citation omitted.) L.H. was in a similar “Catch-22” position during the period of October 14,1984 through July 22,1985, when it is claimed that she failed to perform her parental duties. L.H. testified that when she received the November 16, 1984 letter from her attorney, she believed it meant that the court had decided she could no longer visit her son. (N.T. at 102). Even though the letter did not state that the court had terminated L.H.’s visitation rights, the letter clearly communicated to L.H. that she could no longer visit her son as she had been doing pursuant to the June 1983 court order. L.H. explained that she did not make any phone calls during this period to inquire about the well-being of her son because she was afraid she would again be accused of making threatening phone calls. (N.T. at 123.) Finally, L.H. testified that she did not send cards to her son during this period because she believed he was not being given the cards and gifts she sent to him. Before November of 1984 and following July of 1985, L.H. testified that she did send her son cards on holidays. (N.T. at 108 and 122.)

The trial court, in refusing to terminate L.H.’s parental rights, relied on In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979). There, the parents of the minor child were separated and the child resided with paternal grandparents. The appellee and her husband were later reunited. Appellee continued to visit her son at the home of his grandparents because her husband told her that the grandparents had legal custody of the child but assured her that he planned to resume custody when he was financially able. The couple separated again. Appellee’s husband arranged for appellee to visit their son once following this latter separation. Appellee testified that the gifts she sent for her son were not given to him by his father or his grandparents. The trial court, affirmed by the supreme court, declined to terminate appellee’s parental rights, finding that the actions of appellee’s husband and the paternal grandparents thwarted appellee’s efforts to remain a positive force in her son’s life.

We find that in this case, as in In re D.J.Y., barriers thwarted L.H.’s efforts to manifest a continuing interest in J.G.J., Jr. We recognize that the parental duty is an affirmative duty, requiring a continuing and genuine effort to maintain communication and association with the child. However, as of November 16, 1984, J.G.J., Sr. expressly prohibited L.H. from physically visiting with her son. Further, we believe that L.H.’s failure to telephone to inquire about her son after being accused of making threatening phone calls is understandable. We emphasize that a parent’s efforts in maintaining a relationship with her child must be evaluated in light of obstacles confronting that parent. In re Adoption of Jr., 492 Pa. 313, 424 A.2d 878 (1981). Finally, we reject appellant’s argument that this case is controlled by the decision of our supreme court in Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978). In Matter of David C., the court suggests that an attorney’s advice that a court probably would not award custody or visitation to his client would not justify his client’s failure to visit his child. Id., 479 Pa. at 11, 387 A.2d at 809. See also In re Adoption of Baby Boy J, 354 Pa.Super. 575, 512 A.2d 689 (1986). The case at bar does not involve any advice on the part of counsel that L.H. not visit her son. Counsel’s letter to L.H. dated November 16, 1984 simply informed her client that J.G.J., Sr. had decided to terminate L.H.’s visitation with her son.

Appellant, J.G.J., Sr., argues that L.H. took a passive stance with regard to the custody proceeding she had initiated in June of 1983 and that this evidenced a failure to make a genuine, sincere effort to maintain a place of importance in J.G.J., Jr.’s life. We disagree. During October of 1984 and July of 1985, L.H. did not proceed further with the custody proceeding because her attorney advised her that she had to first pay the outstanding bill for psychological services. We note that the attorney for the minor child J.G.J., Jr. filed a brief in support of exceptions filed by counsel for L.H. following the trial court’s initial order terminating the parental rights of L.H. In his brief, counsel for J.G.J., Jr. stated:

However, it is my opinion after interviewing the respondent and listening to her testify in Court, that she clearly lacked the requisite sophistication to realize that she could have proceeded despite her lack of financial resources. If, as in a case like this, a lay person who is obviously lacking in any legal sophistication is advised by her attorney that she needs to pay money to a psychologist in order to proceed, how can we expect her to be sophisticated enough to inquire about alternatives? I am convinced that had her counsel advised her at that time that a petition was going to be filed on her behalf to have a court appointed psychologist at no cost to her that she would have cooperated in the process and the custody/visitation case would have proceeded.

Where a parent makes reasonable attempts to overcome obstacles created by the party seeking to terminate parental right, “a mere showing that the [parent] could conceivably have pursued legal action more promptly cannot justify termination of parental rights.” In re D.J. Y, 487 Pa. 125, 132, 408 A.2d 1387, 1390 (1979) (quoting Adoption of S.H., 476 Pa. 608, 616, 383 A.2d 529, 533 (1978)). In this case, we find it significant that it was L.H. who filed for legal custody of J.G.J., Jr. in June of 1983. Following this, she traveled on numerous occasion to visit J.G.J., Jr., as she was permitted to do by temporary court order. After J.G.J., Sr. refused to permit the visitation to continue in November of 1984, L.H.’s hands were tied. She knew she could not visit her son, and she was afraid to make phone calls concerning him. Her attorney advised her that she could not proceed with the custody action until L.H. paid the outstanding bill for psychological services. Counsel for L.H. apparently never attempted to seek any payment for this bill by court petition.

This court is mindful of the irreversible nature and serious emotional impact which necessarily follow an involuntary termination of parent rights. In re Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1975). Our supreme court has recently stated that the requirement that a parent’s right to a relationship with his child can only be terminated on clear and convincing evidence “arises out of our deep conviction that the bond of family love will enable most parents to give better care to their children than the best that anyone else can provide.” Baby Boy A. v. Catho lic Social Services, 512 Pa. 517, 523, 517 A.2d 1244, 1247 (1986).

We have very carefully examined the record in this case before us, and we find, as did the trial court, considering the totality of the circumstances, that the record does not support a determination that appellant, J.G.J., Sr., has proved by clear and convincing evidence that appellee, L.H., has exhibited such unexplained failure to perform parental duties as would justify involuntary termination of parental rights. We therefore affirm.

Order affirmed.

      . It is uncontroverted that the burn occurred accidentally when L.H.’s sister spilled hot tea on the child's back. During the termination hearing, J.G.J., Jr.'s paternal grandmother testified that she had observed the burn on the weekend that J.G.J., Sr. discovered it and she testified that the burn "was healing with'scabs.” She testified that there was no infection. (N.T. at 60). We believe that it is significant that this case did not involve allegations of child abuse or neglect on the part of L.H.

      . J.G.J., Sr. and his wife were married in July, 1985. J.G.J., Sr.'s wife testified that it was her intention to adopt J.G.J., Jr. if this became possible. (N.T. at 89).

      . L.H.’s outstanding bill was for $225.00. Although L.H.’s financial status in 1984 was not clearly established at the termination hearing, L.H. had been receiving Public Assistance during 1982-1983 and she was being represented by Legal Aid of Chester County in both the custody action and the termination proceeding. In November of 1984, L.H. was caring for her two other children and residing with her boyfriend who was working as a plumber but not on a steady basis.


author: TAMILIA, Judge:

text:
    533 A.2d 96
    COMMONWEALTH of Pennsylvania, Appellant, v. Caesar MONTEVECCHIO.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed Sept. 14, 1987.
    Reargument Dismissed Nov. 6, 1987.

      Timothy J. Lucas, Assistant District Attorney, Erie, for Com., appellant.
    Philip B. Friedman, Erie, for appellee.

      Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

Appellee was originally charged with five counts of burglary and related offenses and possession of cocaine with intent to deliver. A motion to dismiss on the part of appellee, under Pa.R.Crim.P. 1100, was granted by the court from which the Commonwealth appeals.

Although some five continuances and/or specific Rule 1100 waivers were entered into by appellee during the course of the two and one-half (2V2) year period between appellee’s arrest and the granting of appellee’s motion to dismiss, the only waiver at issue is the one dated September 8, 1984. The trial court found that this waiver, which extended from “September 14, 1984 to the next regularly scheduled criminal term of the court after rulings on defendant’s pre-trial motions” (Defendant’s Exhibit. D), was invalid because it was a waiver for an indefinite time and a specific date for expiration of the continuance was required. Further, the court found the application for continuance defective because it was never entered as an Order of Court, filed with the Clerk of Courts or made part of the record.

Factually, the Commonwealth initially mailed the motion for continuance on August 28, 1984, before the run date, to counsel for the defendant, to be completed and returned for filing. When returned by defense counsel on September 12, 1984, the date was altered for beginning the continuance from September 8 to September 14, 1984 and, according to the Commonwealth, this would have permitted a gap in time of six days which would have been detrimental to the Commonwealth. The Commonwealth, therefore, returned the original executed Rule 1100 waiver to appellee and asked him to sign a second one which he never did. Instead, counsel for defendant destroyed both documents. To protect itself, on September 7, 1984, the Commonwealth filed a petition to extend time and obtained a rule to show cause returnable September 12, 1984. Defendant did not reply nor did he or his counsel attend the hearing scheduled for September 12, 1984.

The Commonwealth now contends the waiver that was executed was sufficiently definite to stop the running of Rule 1100. Further, the Commonwealth asserts it had nothing to gain by the extensions in time which were the result of extensive pre-trial motions made by appellee and appellee was not prejudiced because he was free on bail most of the time. The Commonwealth argues the court applied Rule 1100 in too restrictive or mechanical a fashion and that proper resolution of the proceeding under Rule 1100, considering the circumstances of this case, now requires a reversal.

The Commonwealth also contends that because the petition to extend time, filed by the Commonwealth on September 7, 1984, was not answered or responded to by the defendant/appellee at the hearing set by the court, in which no one on behalf of appellee attended, the defense is deemed to have consented to the petition to extend time. The Commonwealth alleges it was error for the court to hold that because there was no ruling on the Commonwealth’s petition to extend time, it was ineffective.

Lastly, the Commonwealth contends it should have been permitted to call the trial judge as a witness to testify as to the parties’ understanding with respect to the continuance and that the court erred in limiting its examination of appellee’s trial counsel with respect to his availability.

Appellee counters that the record clearly supports the trial court’s dismissal under Rule 1100. No waiver was ever placed on record and the Commonwealth’s contention that an open-ended agreement existed to indefinitely toll Rule 1100 is meritless and unsupported. The Commonwealth’s petition to extend time could not extend or stay Rule 1100 indefinitely because no action was ever taken on it by the Commonwealth. Appellee argues that no abuse of discretion was present in the court’s refusal to allow the trial judge to be called as a witness because the offer of

proof as to the judge’s proposed testimony showed it was not relevant. The trial judge would not have signed the rule to show cause on the motion to quash, for violation of Rule 1100, filed by the defendant in November 1984 (subsequently withdrawn), or the motion for continuance of November 15, 1984, had any “understanding”, to which he was to testify been present. As the court pointed out, cross-examination of appellee’s trial counsel was not limited but directed to certain relevant time periods. Lastly, appellee contends the Commonwealth needlessly delayed this case by refusing to provide mandatory discovery material.

The lower court found that while a waiver form was executed between the defendant/appellee and the Commonwealth, effective September 14, to the next criminal trial term following disposition of pre-trial motions, it was invalid because it was not filed of record and it was not specific as to date of termination. Secondly, he concluded the motion of September 7 and hearing scheduled on the motion for September 12, to which the appellee failed to respond, were ineffective to preserve the Commonwealth’s right to an extension.

This case presented to the hearing judge serious problems and his reluctance to dismiss was rightfully expressed throughout his Opinion. Applying strict legal principles to the facts presented to him, he was hard put to decide the matter differently.

However, after exhaustively reviewing the record in this case, Rule 1100 and its comments and the case law interpreting the Rule over several years, we conclude that the dismissal of these charges was improper, that they must be reinstated and the cases proceed to trial.

At the outset, it appears the initial problem which resulted in the trial court being placed in a position of attempting to make a difficult decision in an extremely complex case was the fact that the motions judge was not the judge who had spent a year and one-half hearing multiple motions and passing on the prior continuations presented by defendant/appellee. We are convinced that had the original motions judge passed on this motion, the result would have been otherwise simply because he had a total grasp of all the prior proceedings and would have been able to review the case in its totality with an understanding as to what had transpired before, in court and between counsel, and thereby, would have been in a far better position to determine whether the Commonwealth lacked due diligence or not and to what extent the defendant/appellee produced the resulting confusion and delay. The reason this motion was not heard by the original motions judge was because the Commonwealth, in a move to have the original judge place on record his understanding of what had transpired between the Commonwealth and the defense for purposes of making a record, obtained the recusal of Judge Juliante so he could appear as a witness at the hearing on the motion. This procedural move proved to be a tactical error as the motions judge hearing the present motion refused to permit Judge Juliante to be called as a witness. The result was that the Commonwealth could not present evidence to support its position as to what had transpired, off the record in many cases, and what the court’s understanding was as a result of the various proceedings between the trial judge, counsel and the district attorney’s office. In his findings, the motions judge believed that the testimony to be presented by Judge Juliante would be irrelevant and, therefore, refused to call him. We agree with the motions judge that such a proceeding is undesirable and probably should not have been undertaken by the district attorney’s office. Conversely, however, had the original judge maintained his activity in the case and dealt with this motion, he would have been in a far better position to evaluate the testimony and evidence presented on both sides, as to diligence and as to the defense role in creating the delay and the opportunity for such a motion to dismiss to be presented.

For that reason, we have exhaustively reviewed this record and all of the prior proceedings and testimony and have concluded the motions judge did not put sufficient weight on the totality of circumstances leading to the motion to quash under Rule 1100. In failing to do so, he gave undue weight to a strict technical interpretation of the Rule 1100 proceeding and did not give adequate weight to the role of the defense in bringing about a situation in which it benefited by its own continuations, delays and opportunism.

The defense, in a perverse fashion, attempts to attribute the delay to the Commonwealth’s refusal to go along with it on various discovery motions to obtain extensive materials arising out of wiretaps and files of the district attorney’s office. Judge Juliante had hearings on these matters and was in the best position to understand to what degree the Commonwealth was dilatory, if at all, and to what degree it was the defense which brought about the delays and he was also in the best position to determine if this case was, in fact, ready to go to trial at the time the motion to quash, pursuant to Rule 1100, was presented to the court. These are factors which are absolutely essential in determining whether or not the Commonwealth was lacking in diligence and whether or not the defendant was in any way prejudiced by the delay. In fact, from this careful review of the record, it would appear inescapable that the Commonwealth received positively no benefit and in every respect the defense benefited and, in fact, capitalized on this delay. It is safe to say that if the case never came to trial, no one would be happier than the defendant. As we will discuss below, Rule 1100 and the speedy trial provisions are not meant to be a unilateral boon to defendants to be used in any fashion that benefits them, whether to arrive at a speedy trial or to delay a speedy trial. Society also has an interest in speedy trials which requires that persons charged with serious crimes should be brought to trial in an expeditious fashion and not be permitted to delay justice and that cases should not be dismissed summarily or on technical considerations when the totality of the circumstances would require, in justice, that the case not be dismissed.

To further the analysis of this case, it is absolutely necessary that the factual and procedural history be detailed. On July 28, 1983, the defendant was arrested, at No. 1296 of 1983, and charged with one count of burglary, one count of receiving stolen property and one count of conspiracy. On August 2, 1983, the defendant was arrested, at No. 1589 of 1983, and charged with two counts of burglary. On August 8, 1983, the defendant was arrested, at No. 1298 of 1983, and charged with the violation of the Pennsylvania Controlled Substance, Device and Cosmetic Act. On August 11, 1983, the defendant was arrested, at No. 1100 of 1984, and charged with two counts of burglary, one count of theft and one count of receiving stolen property. On August 28,1983, the defendant was arrested, at No. 1297 of 1983, and charged with one count of burglary and one count of conspiracy. Preliminary hearings were held on all five cases between August 25, 1983 and January 24, 1984. Appellee’s arrest was the accumulation of a long and exhaustive police investigation into crimes with which the appellee was charged, as well as numerous additional investigations involving two homicides, one of which involved the shooting death of an Erie police officer.

After the charges were held for court, defense counsel filed extensive pre-trial motions on each of the five cases requesting pre-trial relief, including, but not limited to, severence of the cases and suppression of evidence, including both hard and soft wire interceptions. Part of the information leading to arrest was gathered through legally authorized wiretaps which produced evidence relating to the burglaries as well as to the homicides, including that of the Erie police officer which had been under investigation for several years. Charges filed against the defendant were vigorously opposed with the preliminary hearings on the five separate charges lasting in excess of eight days. All of the motions outstanding were defense filed pre-trial motions which would only inure to the benefit of the defendant if he prevailed.

Reviewing the record, it appears the Commonwealth was prepared to go to trial within a reasonable time after the charges were filed and that it could in no way benefit from the extensions or continuations obtained by the defendant. The vigorously pursued discovery motions appeared to be an attempt by appellee’s counsel to obtain information, particularly wire tap information, which the Commonwealth could properly maintain, was either not relevant to the defendant or which was not permissible to release because it involved persons protected under the wire tap laws. Part of appellee’s exploration extended into attempting discovery as to whether the judge of the Superior Court, who authorized the wire tap, held hearings on the record, in an attempt to obtain transcripts of those hearings if such were available.

In addition, appellee, once he was arrested, was incarcerated for another charge unrelated to those involved in the Rule 1100 motion, that being unlawful possession of an automobile. On May 7, 1984, after serving the minimum sentence, a parole hearing was held before Judge Juliante and the appellee was paroled for the remainder of his eighteen month term while at the same time bond was approved on the outstanding charges. During that parole hearing, testimony was received that there were outstanding charges against the defendant in Erie, dated November 18, 1967, for two counts of robbery which were never brought to trial because the appellee never appeared for his hearings. It was also discovered in the course of the presentence investigation that he had charges pending against him in the states of Massachusetts and Michigan. This information is relevant to the Rule 1100 proceeding as it reflects on the defendant’s desire to prolong the time before trial as once he was finished with these proceedings, not only would he have had to serve his back time on the parole, if it had not run before conviction, and the charges presently before the court, but he would also be subject to return to other jurisdictions for trial on outstanding charges there. Since the defendant was released on bond, any delay, rather than being prejudicial to him, would provide an extremely substantial benefit in relation to the other outstanding matters. Whether Judge Nygard, the motions judge, was fully aware of this does not appear on the record but it most certainly was within the range of knowledge of Judge Juliante and could have been a consideration by him, had he ruled on this motion, in determining whether or not, under the totality of the circumstances, there was prejudice to the defendant.

Other hearings held in this case involved the proceeding béfore Judge Nygard in 1983 for the return of contraband seized at the defendant’s home which Judge Nygard ruled was evidence and could not be returned. On October 19, 1984, there was an extensive hearing in a discovery proceeding on behalf of the defendant. The March 8th omnibus motions included motions to suppress heard on March 6, 1985 involving items seized from the defendant’s house by the police after his arrest, evidence in a cocaine case resulting from the search of Mr. Montevecchio’s car, material received relating to a search of the defendant’s locker at his place of work and the seizure of certain documents and/or records from his employer. In addition to these motions was a motion for change of venue dated March 8, 1984, containing several hundred exhibits relating to the notariety produced by the various cases involving the defendant in this and other matters. This motion was subsequently granted on November 15, 1984 by Judge Juliante; subsequently, by Order dated December 7, 1984, signed by Pennsylvania Supreme Court Chief Justice Nix, the trial of the case was transferred to Beaver County in compliance with Pa.R.Crim.P. 312.

With that factual and procedural background, it is now appropriate to proceed with an evaluation of this matter and the application of the Rules of Criminal Procedure and case law. As a starting point, we look to the sixth amendment right to a speedy trial and how the United States Supreme Court has addressed this issue. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), it was held that the right to speedy trial does not per se prejudice the accused’s ability to defend himself as does the denial of the right to counsel and the right against self-incrimination. There, it was held that the defendant has some responsibility to assert his rights and the assertion or failure to assert the right is a factor to be considered by the court. A fixed time period goes further than the Constitution requires and a balancing test on an ad hoc basis must be applied. To be considered are the length of delay, the reason for the delay, the defendant’s assertion of his rights and the prejudice to the defendant. It was held in Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976) that Barker provides only minimum standards and the Pennsylvania Constitution requires more. See Pa.Const. Art. I, Sec. 9. It was held in Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) and Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), that a significant consideration, whether or not there, is prejudice to the defendant. After reviewing a plethora of cases, any attempt to establish a per se rule in Pennsylvania is futile. As a general proposition, it may be stated that not one day shall be excluded from the computation of time under the speedy trial Rule 1100, which is due to prosecutorial impropriety or lack of diligence, when a defendant is proceeding normally to obtain his rights to trial. Not one day shall be included when the defendant, for practical or other reasons, has caused the delay and is unwilling or unprepared to proceed to trial. How this balance is ascertained is to be determined on an ad hoc basis and is established by a preponderance of the evidence. It is necessary for the Commonwealth to move forward with proof as to its diligence, in the face of the allegation by the defendant that his speedy trial rights have been violated. It is the duty of a prosecutor to move a case to trial, but if part of the blame is attributable to privately retained counsel, the entire burden would not be placed on the Commonwealth. Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637 (1979).

It is clearly established on the record the defense procured all of the continuations and despite allegations that it was the Commonwealth’s refusal to provide mandated discovery materials, the record shows that short of total capitulation to the demands of defense counsel, the Commonwealth had a right to resist many of these claims and a right to a hearing and a determination by the court as to which claims should be honored. It is apparent this was a hard fought intensely adversarial proceeding, throughout, in which trial counsel attempted to gain every advantage possible pursuant to the rules and to the law. The Commonwealth cannot be charged with creating a delay when procedures were available to the defendant to resolve these matters and if the Commonwealth failed to comply with the rules and the law, to obtain sanctions by the court. When the defendant procures extensions or continuations for the purpose of trial strategy, defense counsel cannot complain of lack of due diligence by the Commonwealth. Commonwealth v. Guldin, 502 Pa. 66, 463 A.2d 1011 (1983); Commonwealth v. Fisher, 334 Pa.Super. 449, 483 A.2d 537 (1984). Delay attributed to defendant’s requested continuances was excludable delay and is measured from the date the continuances were requested to the end of delay. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Robinson, 488 Pa. 379, 446 A.2d 895 (1982).

Thus we come to the central considerations involved in this appeal. First is whether the waiver form sent to the appellee on August 28, dated September 8, 1984, with continuance until the trial term following the completion of pre-trial motions, could be an effective waiver of time for purposes of Rule 1100; and secondly, whether the petition for extension filed by the district attorney on September 7, with rule to show cause and hearing date set for September 12, could work as either a waiver or an extension of time within the requirements of Rule 1100.

Admittedly, both considerations present problems and if a strict technical approach is applied, as opposed to a totality of circumstances and consideration of prejudice to the defendant, then dismissal is in order. Whether or not these procedures by the Commonwealth fail to mitigate the strictures of Rule 1100, as we have said before, must be based on the total record and whether the Commonwealth has effectively established that it did not lack due diligence by a preponderance of the evidence, and whether the defendant was, at least in part, the cause of the failure to technically comply with the rule. Our review of the record indicates that without question the Commonwealth was proceeding with due diligence and that it did what was appropriate to obtain continuations as required by the procedures in Erie County. When there appeared to be a failure on the part of the defendant to respond appropriately to its requests for completion of waiver form, the Commonwealth again proceeded with due diligence to obtain an extension of time from the court. The primary failure here, was ministerial in nature and, as to the Commonwealth, shows neither a lack of diligence or procedural due process nor intent or purpose to delay in obtaining the continuations or extension. Rather, it would appear the defendant cooperated neither in his responsibility to complete the continuation or waiver form nor in the alternative, by responding to the notice of hearing in a timely fashion to present any answer or defense that he might have. For at least some purposes this constituted a waiver of any contest he might have presented at a hearing on the Rule 1100 motion in September of 1984. The opportunistic nature of the defense strategy is abundantly evident considering that, in November of 1984, the defense presented a motion to quash three of the five complaints when it calculated, according to its formula, that the time had run under Rule 1100. The defensive response by the district attorney to obtain a waiver at that time, approved by the court, would now be used by the appellee to indicate that the prior waiver and extensions processed in September were thereby superseded. If the prior waiver was valid, and if the extension hearing was duly filed and pending, the subsequent motion and/or Order could not effect their validity. The Commonwealth provided ample reasons for returning the completed waiver to the defendant in September when it was returned late and with a changed date which would, in effect, have nullified, accordingly to the Commonwealth’s computations, some of the time provisions under Rule 1100. A September 7th filing of a motion to extend was a protective act by the Commonwealth against what appeared to be defense counsel’s strategy to force error that would result in dismissal of at least some of the cases. In Commonwealth v. Singleton, 313 Pa.Super. 224, 459 A.2d 821 (1983), we said the Commonwealth must take every reasonable step that may be expected to move the case to trial and would show by preponderance of the evidence that it exercised due diligence. Also, in Commonwealth v. Manley, 282 Pa.Super. 370, 422 A.2d 1340 (1980), we held that a defendant is not required to remind the district attorney about standing petitions to extend time. In Commonwealth v. Stickle, 269 Pa.Super. 419, 410 A.2d 327 (1979), this Court held that where the defendant fails to file written answers to a petition by the Commonwealth to extend time in which to commence trial under the speedy trial rule, and the defendant does not appear at an evidentiary hearing on that petition, the defendant has waived his right to contest the extension. Where the defendant fails to file an answer, the Commonwealth’s allegations are admitted and due diligence is thereby shown as a matter of law. Commonwealth v. Hollingsworth, 346 Pa.Super 199, 489 A.2d 381 (1985). Thus in the motion for extension of time, the Commonwealth at least established that the reason required for an extension of time was due to the defendant’s need for more time to proceed with the pre-trial motions. The waiver form signed by the defendant and returned to the Commonwealth, although once again returned by the Commonwealth with an additional copy to have the correct date applied, can be construed to be a binding waiver until and unless the defendant completed a new form with the corrected date. The act of destruction of both forms, and failure to respond to the Commonwealth’s attempt to put this waiver on record, can be treated only as a failure of proper recording of the appropriate motions due to the actions of the defendant. Granted, the district attorney should have proceeded to obtain court sanctions or Orders to be entered on the record, but the district attorney cannot be charged with bad faith and lack of diligence in the face of the actions of the defendant. This case, therefore, falls under that class of cases where the law will not permit a defendant to take advantage of his own actions to delay, interfere or interrupt the normal legal process by either absenting himself from the jurisdiction, having counsel unavailable or in any other way refusing to participate in the proceeding. By his actions, defense counsel failed to assert defense rights to the degree that was required and cannot be heard now to complain that the Commonwealth failed to fulfill its obligations under the speedy trial rule. The Supreme Court of Pennsylvania has held that where there is inadvertent judicial delay, a district attorney’s timely filed application may not be rejected when there wás a failure to process the complaint by the judiciary. Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346 (1986). See also Commonwealth v. Sheldon, 469 Pa. 8, 364 A.2d 694 (1976). We perceive no difference in this case from those in which Pennsylvania appellate courts have said that a defendant who fails to make a scheduled appearance when on bail is willfully absent and precluded from relying on the concept of due diligence. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978); Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982). See also Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295 (1986). As we have said before, if part of the blame is on privately retained counsel, the entire burden for failing to proceed to a speedy trial cannot be placed on the Commonwealth. Cooley, supra.

As to the holding by the trial court that the time provided for in the waiver in request for extension was too indefinite and, under Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), could not be a basis for extension of time, we disagree. In Commonwealth v. Zabala, 310 Pa.Super. 301, 456 A.2d 622 (1983), it was found that a defendant executed a valid waiver of a speedy trial under the rules until close of a certain trial term and this could not thereafter be revoked. In this case, there was a time period that was certain and in compliance with the rules which do not require that it be to a date certain but to a certain period. A trial term of court following the resolution of the pre-trial procedures is a definite period of time within the rules. In each of the waiver forms supplied by the Commonwealth, there is contained a description of each term of court as to its length, when it begins and when it ends. A term of court in this context is a specific period of time. The present case is distinguishable from Commonwealth v. McLaughlin, 338 Pa.Super. 615, 488 A.2d 63 (1985) as there no date or period was selected and the defendant could not make a voluntary informed consent to waiver as he was unable to determine the scope thereof. Here, the scope of the waiver is limited only by the resolution of the pre-trial proceedings. In the totality of the circumstances of this case, it was quite evident that the pre-trial procedures would not be completed for several terms of court, and to avoid the constant problem of attempting to locate the defendant to get his signed waiver at the end of each of the preceding periods of waiver, with defense counsel unavailable because of extensive commitments in other trials in other places, a reasonable and prudent expedient was to provide for such a waiver that was tied directly to the end of the discovery procedures.

The provision in Rule 1100 that the record shall so indicate is inapplicable here as it was due to defendant’s action that the waiver was unrecorded. The motions judge placed emphasis on the fact that the delay was over two and one-half years, but under the circumstances of this case, that is not a significant factor. In Commonwealth v. Dowd, 472 Pa. 296, 372 A.2d 705 (1977), the Supreme Court approved a delay of thirty-one months under the circumstances of that case. A delay of two and one-half years was not considered excessive in Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). In Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979), this Court held the Commonwealth was not remiss in not filing a petition for extension of time pursuant to a speedy trial statute although 271 days had passed between the filing of the complaint against the defendant and the commencement of his trial, where delay was caused by defendant’s unavailability for trial. As we said before, the speedy trial rule is not a per se rule and must be considered in terms of the totality of the circumstances. The right to a speedy trial is one of the most basic rights preserved by the Constitution and in determining whether there has been violation of that right, each case requires analysis of the circumstances and considerations of the rights of society as well as the accused which are protected. U.S.C.A. Const. Amends. 6, 14; P.S. Const. art. 1, § 9 as cited in Commonwealth v. Roundtree, 496 Pa. 241, 364 A.2d 1359 (1976). In Commonwealth v. Briggman, 325 Pa.Super. 333, 472 A.2d 1145 (1984), we held factors such as severity of the offenses, availability of witnesses, availability of counsel and whether defendant is incarcerated must be considered along with age of the case in determining whether the prosecutor exercised due diligence in bringing the case to trial within the statutory period mandated by the speedy trial rule. In Commonwealth v. Fooks, 345 Pa.Super. 145, 497 A.2d 1346 (1985), we held that failure to file speedy trial motions to dismiss prior to commencement of the trial rendered speedy trial claims waived and, in effect, superseded any alleged impropriety on part of the Commonwealth. We might extend that holding to this case in that the failure of the defendant for over one year to move in any way to contest, what apparently was a belief by the Commonwealth that it had an effective long-term extension, was not an assertion of his rights in a prudent fashion.

After careful consideration of the concepts of the totality of the circumstances of the case, due diligence, prejudice to defendant and protection of society, we believe the Commonwealth effectively moved to provide for exclusion of time within the mandate of the statute. We find that since the defendant was not prepared to go to trial at the time this motion was filed, and in a large measure is responsible for the circumstances presented in the motion, he has not been prejudiced by the technical lack of recording and filing of the September motion to continue.

As to the petition to extend time filed by the Commonwealth, while technically it remained open for imposition of a rule absolute and grant of the Commonwealth’s request for an extension, it is unnecessary for us to consider whether it was appropriate for the motions judge to enter an extension Order on that petition in light of our finding above.

The Order of the trial court is vacated; the charges against defendant/appellee are hereby reinstated and the case is remanded for trial.

Jurisdiction relinquished.

      . Pa.R.Crim.P. 1100(c) provides:
      (4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.


author: CIRILLO, President Judge: TAMILIA, Judge,

text:
    533 A.2d 105
    COMMONWEALTH of Pennsylvania v. Janet A. BUTLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1987.
    Filed Sept. 29, 1987.
    Reargument Denied Sept. 29, 1987.

      Robert F. Pappano, Assistant Public Defender, Chester, for appellant.
    Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Delaware County following a jury trial. We reverse.

The instant conviction stems from an earlier arrest for prostitution and related charges. Appellant Janet Butler testified in her own behalf at a trial in 1984 where she was subsequently acquitted of the prostitution charges. During the trial, Butler’s attorney asked if she had ever been convicted of a crime, to which she responded, “No, sir.” Following her acquittal, Butler filed a civil action against a police detective and various other county officials based on an allegedly coercive body cavity search. Shortly after the civil suit was filed, Delaware County authorities discovered that Butler in fact did have a prior conviction for prostitution in the State of Delaware and was in violation of her Delaware probation. She was then arrested and tried for perjury based upon her allegedly false testimony at her 1984 trial. During the course of the trial for perjury, Butler attempted to explain that she was not lying when she stated under oath that she had no prior convictions. She contended that she thought that since an appeal had been taken in the Delaware case, her conviction was not final. She indicated that she had lost track of her attorney and was unaware of the status of her appeal.

Butler’s Delaware probation officer contradicted this testimony. He stated that she had violated her probation and after a June, 1985 hearing, her probation was revoked and she was resentenced to a prison term. He also stated that at the June, 1985 probation revocation hearing, Butler had testified that she was aware since 1982 that her appeal had been denied. This testimony was corroborated by a tape of the hearing.

During the trial, appellant sought to impeach the testimony of Dennis O’Leary, a Delaware County Detective who is a defendant in Butler’s civil suit. The detective was called by the Commonwealth to corroborate that Butler had in fact testified under oath that she had never been convicted of a criminal offense. O’Leary also testified that he was the person who had learned of Butler’s Delaware conviction and that he had informed the District Attorney’s office. Out of the jury’s presence, he claimed that it was merely coincidence that this information came to his attention after the civil suit was filed. He stated that he was going through' Butler’s file sometime in 1985 and noticed a Department of Justice report indicating that she had been arrested in Delaware for prostitution in 1982. O’Leary then investigated the matter, eventually learning of the conviction. He denied that the Department of Justice report had been in her file at the time of the 1984 trial. However, he did admit that such reports are routinely requested at the time of arrest. In this case, according to O’Leary’s testimony, the report was not received for at least a year after the initial request. The policeman stated that he was unaware of any other instance where the process took longer than three months. O’Leary also testified that he could not recall why he was looking through Butler’s file at the time he noticed the Justice Department report.

Defense counsel wished to show that O’Leary’s testimony was biased because he was a defendant in the civil suit. Butler claimed that O’Leary’s testimony was naturally tainted by his position as her adversary in the other proceeding. She also argued that he had a personal interest in the outcome of the perjury trial because if she were convicted of perjury, she would be statutorily precluded from testifying in her civil suit. The trial court’s opinion properly rejected this assertion based upon the applicable statute, which states:

In a civil matter, a person who has been convicted in a court of this Commonwealth of perjury ... shall not be a competent witness for any purpose ... unless the matter is one to redress or prevent injury or violence attempted, done or threatened to his person or property, in which cases he shall be permitted to testify. (Emphasis supplied.)

42 Pa.C.S.A. § 5922.

Because of the exception for personal injuries, Butler would not be precluded from testifying. However, the trial court also ruled that the Commonwealth’s motivation was not at issue in the penury trial and therefore, evidence of the civil suit was inadmissible. Butler also attempted, with a similar lack of success, to introduce such evidence to demonstrate prosecutorial vindictiveness.

Following the trial, appellant was convicted of perjury and false swearing. Post-trial motions were filed and denied. Butler was sentenced to three (3) to twenty-three (23) months imprisonment. She then filed this timely appeal.

The sole issue presented for our review is whether the trial court abused its discretion in refusing to allow appellant to introduce evidence of the civil action during the cross-examination of the police detective (Detective O’Leary) for purposes of showing personal bias or interest in the outcome of the trial.

Criminal defendants have a constitutional right to cross-examine witnesses against them. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Cross-examination may be used to test a witness' story, to impeach credibility, and to establish the witness’ motive for testifying. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 A.2d 347 (1974).

In Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978), this court stated that “It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial. Id., 262 Pa.Superior Ct. at 325, 396 A.2d at 777. See also Commonwealth v. Cheatham, 492 Pa. 198, 239 A.2d 293 (1968). In Ervin, the trial court prevented the defendant from showing, during cross-examination, that there was “bad blood” between the witness (the victim) and the defendant. This court held that the defendant was deprived of his right to inquire into the possible prejudice or bias of the witness, and found this to be reversible error. Ervin, 262 Pa.Superior Ct. at 325, 396 A.2d at 777.

In Commonwealth v. Robinson, 507 Pa. 522, 491 A.2d 107 (1985), our supreme court reiterated this well settled rule. In Robinson, co-defendants Douglas Robinson and Rebecca Coleman shared an apartment in a building owned by Debra Carolina. The parties were involved in a bitter rent dispute during the course of which Robinson and Coleman accused Carolina of stealing from them, Carolina turned off their utilities, and the tenants withheld payment of rent. Carolina was also convicted of aggravated assault for throwing lye on Coleman. Because of this ongoing dispute, Robinson and Coleman moved out of the apart ment. Carolina claimed that she saw them steal various items from her apartment before they left. She filed charges with the police causing Robinson and Coleman to be arrested and prosecuted. At trial, the pair claimed that they had never taken anything from Carolina’s apartment and had not even been in the vicinity on the day in question. They sought to impeach Carolina’s testimony by bringing out proof of the various incidents described above for the purpose of showing that Carolina had a motive to fabricate the charges. The trial court refused to allow cross-examination as to any of these areas. On appeal, the Pennsylvania Supreme Court reversed, holding that a criminal defendant has the right to cross-examine a witness for the purpose of demonstrating that the witness has a motive to give false testimony. The court stated that the disallowance of such questioning is particularly prejudicial in cases which hinge on credibility. Id., 507 Pa. at 528, 491 A.2d at 110.

However, in Commonwealth v. Ross, 345 Pa.Super. 571, 498 A.2d 972 (1985), defendant Ross was convicted of raping a twelve year old girl. At trial, Ross’s attorney sought to cross-examine the victim to determine if she had fabricated her story to get attention. The trial court refused to allow this line of questioning. On appeal, a panel of this court affirmed, holding that though a witness may be cross-examined to show bias or interest, the scope of that examination is within the discretion of the trial judge. In Ross, the defendant’s counsel admitted that he had no evidence to substantiate his allegation that the girl was attempting to gain attention through her story. Id., 345 Pa.Superior Ct. at 574, 498 A.2d at 973. Thus, a trial judge may limit cross-examination as to motive if the attorney is admittedly engaged in a fishing expedition.

In this case, Butler’s attorney was not engaged in a fishing expedition based merely on surmise, conjecture and hope. He was pursuing well substantiated matters in order to attack O’Leary’s credibility. Counsel wished to show that the detective had a motive to lie. Even if Butler could not be statutorily precluded from testifying at her civil trial, O’Leary certainly may have been motivated by personal animus arising out of appellant’s suit against him.

The importance of credibility in this matter is underscored by the very reason O’Leary was called to testify The “two witness” rule states that a conviction for perjury cannot rest on the uncorroborated testimony of a single witness. Commonwealth v. Katafanas, 318 Pa.Super. 143, 166, 464 A.2d 1270, 1282 (1983). Detective O’Leary’s testimony was necessary to corroborate that of Danette Caveliere, the court reporter who transcribed the notes of testimony of the 1984 prostitution trial. The purpose of the rule is to protect a defendant from honest mistakes or harassment. Id. This purpose is hardly served if the corroborating party is biased making their testimony unreliable. Thus, O’Leary’s credibility is important in this case much like the situation in Robinson. Similarly to Ervin, O’Leary’s testimony may have been tainted by the “bad blood” between he and appellant. The trial court erred in limiting Butler’s cross-examination of the policeman on the issue of bias.

This error was compounded during the trial judge’s charge to the jury: “You should consider whether the witness has anything to gain or lose from the outcome of the case____ In weighing the testimony, however, you may consider the fact that [appellant] has a vital interest in the outcome of this trial. You may take the [appellant’s] interest into account just as you would the interest of any other witness along with all the other facts and circumstances bearing on credibility in making up your minds what weight the testimony deserves.”

This instruction emphasized the importance of each witness’ credibility. The trial judge pointed out that Butler’s own testimony might not be credible because of her obvious self-interest. Yet the jury was left with the impression that it was only Butler whose credibility may have been at issue. Not only did the court restrict the cross-examination of O’Leary, it instructed the jury in a manner designed to reinforce the impression that the witnesses other than Butler were impartial and unbiased. The court allowed O’Leary to hide his bias and then, de facto, pronounced him a credible witness. The court’s failure to allow the cross-examination at issue constitutes reversible error.

Appellant also argues that the trial court erred in precluding evidence concerning her civil suit because it was relevant to the issue of “prosecutorial vindictiveness.”

In our criminal justice system, prosecutors have broad discretion as to whom to prosecute. United States v. Goodwin, 457 U.S. 368, 380, 102 S.Ct. 2485, 2492, 73 L.Ed.2d 74 (1982); Goodman v. Kennedy, 459 Pa. 313, 329 A.2d 224 (1974). “So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978).

Courts have long recognized that the charging function is uniquely within the competence of the prosecutor and is particularly ill-suited for judicial review. The strength of the case, its deterrence value, and its importance in relation to other criminal matters and the Government’s crime-fighting resources are all best judged by the prosecutors whose jobs entail making these decisions. Judicial micro-management of this area would be cumbersome and inevitably lead to delay and inefficiency.

Though the government enjoys wide discretion in making its prosecutorial decisions, that authority is not unfettered. As the Supreme Court has stated: “Selectivity in the enforcement of criminal law is ... subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979).

Under the equal protection clause of the Fourteenth Amendment of the United States Constitution, the government must afford similarly situated persons similar treatment. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). Thus, the government may not prosecute someone based upon race, religion or another unjustifiable classification. Bordenkircher 434 U.S. at 364, 98 S.Ct. at 672. Nor in retaliation for the exercise of protected statutory and constitutional rights. Goodwin 457 U.S. at 372, 102 S.Ct. at 2488. See also Thigpen v. Roberts, 468 U.S. 27, 30, 104 S.Ct. 2916, 2918, 82 L.Ed.2d 23 (1984). Similarly, it is unconstitutional for the government to prosecute an individual because the prosecutor has a personal animus against the defendant. United States v. DeMichael, 692 F.2d 1059, 1061 (7th Cir.1982).

Because it is constitutionally repugnant, selective prosecution constitutes a valid defense to a criminal charge. In order to establish a case of prosecutorial vindictiveness, the defendant must prove that: (1) others who are similarly situated to the defendant are not generally prosecuted for similar conduct; and (2) the defendant has been intentionally and purposefully singled out for prosecution for an invidious reason. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985).

In Wayte, a young man who was required to register with the Selective Service System failed to do so and notified government officials that he was not going to register in the future. The government warned him that he would be prosecuted but he continued to refuse to register It was government policy to prosecute only those persons who notified their respective draft board that they would not register. The government claimed that it used such notification to identify non-registrants, thereby saving resources which otherwise would be devoted to investigation. The District Court dismissed the indictment on the grounds of selective prosecution. The court concluded that Wayte was prosecuted because he had spoken out in opposition to the Draft. The Court of Appeals reversed and the Supreme Court affirmed the circuit court. The Court held that the government’s policy of prosecuting only those individuals who protest registration did not amount to “selective prosecution.” The Court ruled that the policy may have had a discriminatory effect but there was no showing of discriminatory purpose. Id. at 610, 105 S.Ct. at 1532. The Court stated that discriminatory prosecution requires more than “awareness of consequences.” A defendant must show that he was selected for prosecution because of an unjustifiable reason. Id. Wayte demonstrated that the government prosecuted those individuals who notified the authorities that they would not register. This was the means of selection but it was not the reason. The government actually attempted to convince such persons to register so it would not have to prosecute.

In this case, Butler claims that Delaware County prosecuted her for perjury because of her civil suit which is based upon an allegedly unconstitutional search. Certainly, the proximity in time between the filing of the civil suit and Detective O’Leary’s re-awakening of interest in Butler’s case has a suspicious air. It is also suspicious that O’Leary mysteriously found a Justice Department report in Butler’s file soon after she filed her civil suit. As noted, the detective claimed that he had never before seen this report, as it was not in the file prior to Butler’s original trial. However, O’Leary agreed that based upon the time frame in which such reports are routinely forwarded, it should have been in the file at that time.

It is arguably logical that the County re-investigated Butler and dredged up previously ignored information in retaliation for her lawsuit. The effect was then to single out Butler. The purpose was to retaliate for her exercise of protected constitutional rights. Unlike the defendant in Wayte, Butler’s allegations do make out a prima facie case of selective prosecution. She has asserted both discriminatory effect and discriminatory purpose.

Prosecutorial discretion is an awesome power which our society necessarily vests in certain trusted public servants. Those persons may destroy lives and cause financial ruin by virtue of a mistaken judgment. An innocent person who has been charged with a crime may be found not guilty but nonetheless find their life shattered. An individual of ordinary means must deplete their entire net worth to defend against the limitless resources of the government. A lifetime of work and thrift will be extinguished whether the person is innocent or not. The individual’s name will be forever muddied. The community remembers the charge, not the acquittal.

Though the vast majority of prosecutors are dedicated and able public servants who would never misuse their tremendous power, our legal system strives to prevent even the occasional injustice. Thus, the defense of selective prosecution provides a check upon the arbitrary exercise of governmental power. When all else has failed, an individual victimized by governmental wrath is still protected by judicial vigilance.

Because her claims have arguable merit, the trial court should have held an evidentiary hearing and given Butler the opportunity to present her defense. Commonwealth v. Contakos, 492 Pa. 465, 472, 424 A.2d 1284, 1288 (1981).

Based on the foregoing, the judgment of sentence of the Court of Common Pleas of Delaware County is reversed and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

McEWEN, J., concurs in result.

TAMILIA, J., files a dissenting statement.

TAMILIA, Judge,

dissenting:

I respectfully dissent. The majority, in its well reasoned Opinion, makes out a case that is not before the Court. The issue of the police officer’s credibility or bias are collateral to the charge of penury against the appellant. Appellant was acquitted of criminal charges after trial, during which she falsely alleged she had never been convicted of a crime. The perjured statement was on record and simply had to be corroborated by persons present at the time the statement was made. Bias or collateral civil actions involving the appellant and the police had no bearing on whether or not the appellant made the statement. The police officer’s credibility could not be attacked for those extraneous considerations. I would affirm the jury verdict.