author: BROSKY, Judge: SPAETH, Judge, JOHNSON, Judge,

text:
    469 A.2d 186
    COMMONWEALTH of Pennsylvania v. John EGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1982.
    Filed Nov. 18, 1983.

      Warren R. Hamilton, Philadelphia, for appellant.
    Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH, CAVANAUGH, WICKERSHAM, BROSKY, BECK and JOHNSON, JJ.
   BROSKY, Judge:

This appeal is from judgment of sentence for robbery. Appellant árgues that he should be allowed to withdraw his guilty plea for three reasons: First, because his counsel informed him that he would receive a lesser sentence than the one he ultimately received. Second, because he was in a “poor mental condition” at the time the plea was made. Third, because he was coerced into making his guilty plea through the court’s refusal to grant a continuance to allow him to obtain new counsel. We find none of these arguments convincing and, accordingly, affirm.

I.

Appellant stated in his pro se petition, and argues on appeal, that he should be permitted to withdraw his guilty plea because his counsel (Mr. Rubin) informed him that he would receive a two to ten year sentence, but in fact he received two consecutive three to ten year sentences. Mr. Rubin refuted this allegation in his sworn testimony at the March 13, 1980 hearing.

... I was instructed by Mr. Egan to ask the assistant district attorney assigned to the case — that would be you — if you would recommend a two to ten year sentence on a plea to all three bank robberies.
At that point I approached you and I questioned you concerning the instruction given to me by Mr. Egan. You at that point refused to make such a recommendation. I advised Mr. Egan of your refusal.

However, even if appellant’s allegation was credited, it would avail him nothing. The statements of a defense counsel, without more, regarding the sentence that will be received establish no firm right. Nonconformity with such a statement could certainly result in the defendant’s chagrin; but it does not create grounds for the withdrawal of a guilty plea.

The fact that in the finding of the Court as to the degree of defendant’s guilt and the sentence imposed, the expectations or hopes of appellant and her counsel were not realized is not the kind of “mistake of misapprehension” which in the interest of justice, justifies the withdrawal of a plea of guilty.

Commonwealth v. Kirkland, 413 Pa. 48 at 56, 195 A.2d 338 at 341-2 (1963). See also Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976); Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973).

II.

Appellant also argues that he was in “poor mental health” at the time he entered his guilty pleas and that this justifies the withdrawal of those pleas. It is true that appellant was found to be incompetent at the time of his arrest and that this resulted in an 11-month delay in his being brought to trial. Also, there was testimony that he was incompetent at the second hearing on his petition to withdraw his plea on July 3, 1980. However, the psychologist limited his testimony to appellant’s condition when examined several months after the entry of the plea. He specifically declined to venture any opinion on appellant’s mental condition at the time of the entry of the guilty pleas. It is also the case that appellant’s sentence included his initial placement at Philadelphia State Hospital.

None of this relates to appellant’s mental condition at the pertinent time — when he entered his guilty pleas. Prior to that time, he was adjudicated competent. There are no other facts of record regarding appellant’s mental condition at the relevant instant other than his statement that he was “under pressure.”

Being “under pressure” at the time one enters a guilty plea cannot in and of itself establish the mental state of incompetency. If this were the case, it would be impossible to ever have a valid guilty plea.

Our treatment of appellant’s “poor mental condition” has been in terms of incompetency, even though it was presented by appellant in terms of his “poor mental condition” and not in terms of incompetency. This is becáuse such incompetency is the only basis for invalidating the guilty plea on his mental state. Considering the requisite mental condition to support a finding of incompetency, this is eminently reasonable.

Definition of Incompetency. — Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues.

50 P.S. § 7402(a). See also Commonwealth v. Harper, 479 Pa. 42 at 45-6, 387 A.2d 824 at 826-7 (1978).

These are precisely the factors which would prohibit appellant from entering a valid guilty plea vis-a-vis his mental state. Thus, our focus must be on appellant’s competency or incompetency.

One of the requirements for a finding of incompetency is the placement of the burden of proof. “The moving party shall have the burden of establishing incompetency to proceed by clear and convincing evidence.” 50 P.S. § 7403(a). See also Commonwealth v. Knight, 276 Pa.Super. 348 at 354, 419 A.2d 492 at 495 (1980) (Spaeth, J.). “The decision as to a defendant’s competency to stand trial rests within the discretion of the trial judge.” Id., 276 Pa.Superior Ct. at 359, 419 A.2d at 497. Since it is appellant who is arguing, in effect, his incompetency, it is he who has the burden of proof on this issue. Appellant has not met this burden of proof.

Absent any proof of his incompetency — much less a satisfaction of his burden of proof in this regard — we cannot invalidate appellant’s guilty plea on the grounds of his incompetency.

III.

Appellant’s last argument is that he should have been allowed to withdraw his guilty plea because his request for a continuance to obtain new counsel was denied. He contends that this put him in the position of either proceeding to trial with counsel in which he did not have confidence or pleading guilty. This created, he says, a form of coercion which rendered his guilty plea involuntary.

As presented in the abstract, this argument is a convincing one. As applied to the facts of this case, it is unconvincing.

Notwithstanding the fact that an indigent defendant does not have a right to counsel of his choice, Commonwealth v. Simpson, 222 Pa.Super. 296, 294 A.2d 805 (1972), it is certainly conceivable that a defendant could be placed in a situation in which a lack of confidence in his court-appointed counsel could result in an unwillingness to go to trial. This could, in turn, result in the entry of an involuntary guilty plea. The questions before us are what the parameters are in which we will recognize that this has occurred and whether they are present here.

A recent United States Supreme Court decision, Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), is most helpful in setting these boundaries. In the opinion of the Court, the Chief Justice wrote:

The Court of Appeals’ conclusion that the Sixth Amendment right to counsel “would be without substance if it did not include the right to a meaningful attorney-client relationship,” [Slappy v. Morris] 649 F.2d [718] at 720 [ (9th Cir.1981) ] (emphasis added), is without basis in the law. No authority was cited for this novel ingredient of the Sixth Amendment guarantee of counsel, and of course none could be. No court could possibly guarantee that a defendant will develop the kind of rapport with his attorney — privately retained or provided by the public — that the Court of Appeals thought part of the Sixth Amendment guarantee of counsel. Accordingly, we reject the claim that the Sixth Amendment guarantees a “meaningful relationship” between an accused and his counsel.

Morris v. Slappy, supra, 461 U.S. at _, 103 S.Ct. at 1617.

The lesson to be gained from this holding is simple. Appellant’s mere dissatisfaction with counsel does not work a violation of his Sixth Amendment right to counsel. Without more, such dissatisfaction could not create a situation which we would recognize as coercing a guilty plea.

This is in accord with the law regarding continuances. The decision whether to grant a continuance is within the discretion of the court below. Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). An appellate court cannot disturb a continuance decision absent an abuse of that discretion. The United States Supreme Court also addressed this area in Morris.

Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the right to the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589 [84 S.Ct. 841, 849, 11 L.Ed.2d 921] (1964).

Morris, supra, 461 U.S. at_, 103 S.Ct. at 1616.

Only if there was a “justifiable request for delay,” which was not granted, could appellant’s right to counsel have been violated and the guilty plea have been coerced.

What would make such a request justifiable? All such requests cannot be per se justifiable. That would enable a criminal defendant to indefinitely delay his going to trial. He would simply have to announce to the court at every trial date that he was dissatisfied with his counsel and wanted a continuance to obtain new counsel. Nor, as noted above, can all such requests be considered per se unjustifiable. A- standard is necessary to separate the justifiable from the unjustifiable request for a continuance due to dissatisfaction with counsel.

In determining the applicable standard, we have looked to the test applied in a similar context: whether a confession can be suppressed because it was given in a custodial interrogation setting without constitutional safeguards, rooted in voluntariness, having been met. The situation before us has many parallel features: whether a guilty plea cán be withdrawn because it was given in a situation without constitutional safeguards, rooted in voluntariness, having been met.

The standard to be applied to the former situation in this Commonwealth was announced in Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971) (Eagen, J.).

It is our view that the proper test was applied in Myers v. State, 3 Md.App. 534, 240 A.2d 288 (1968), wherein the court stated:
* * * [Cjustody occurs if a suspect is led to believe, as a reasonable person, that he is being deprived or restricted of his freedom of action or movement under pressures of official authority. * * * whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action of movement is restricted by such interrogation.” Id. at 537, 240 A.2d at 290.
The above test has the element of objectiveness since we look at what the suspect could believe as a reasonable man, and by focusing on the suspect, compliance with the thrust of the Miranda decision is achieved.

Commonwealth v. Marabel, supra, 445 Pa. at 441-42, 283 A.2d at 288.

The rationale supporting this standard applies to the legal issue before us.

11. Professor Kamisar has recently characterized the “reasonable belief” standard as the “best approach.” See Remarks of Professor Kamisar at the First Annual Supreme Court Review and Constitutional Law Symposium reprinted in The Supreme Court 1978-79 Ch. 12 p. 184 (1979).
“This approach seems most consistent with Miranda and it avoids reliance on self-serving statements either by the police or by the suspect himself. This approach also avoids the need to determine the police interrogator’s state of mind and frees the police officers from the responsibility for the idiosyncrasies of various suspects.”

Commonwealth v. Meyer, 488 Pa. 297 at 307 n. 11, 412 A.2d 517 at 522 n. 11 (1980).

The standard announced in Marabel is transferable to the situation before us: whether a guilty plea can be withdrawn on the grounds that the guilty plea was coerced through the denial of a continuance, forcing appellant to plead guilty rather than go to trial with counsel in whom he had no confidence.

We hold that this standard is that the criminal defendant must have a reasonable belief that his counsel will not adequately represent him. At the risk of explaining the obvious, we note that this requirement consists of two parts. First, that the criminal defendant must actually have such a belief. Second, that this belief is reasonable. The facts of this case satisfy neither element.

There is room for considerable doubt that appellant was actually dissatisfied with his counsel at the time of entering his guilty plea. Three events lead to this conclusion. Prior to his arrival in court, appellant had indicated his intention to plead guilty. While in court, he announced that he had changed his mind and had 'decided to go to trial. Then, a few hours later, he again changed his mind and requested a continuance to obtain new counsel. When this request was denied he entered the guilty pleas in question. We do not find it credible that appellant was dissatisfied with counsel on the day in question when he wanted, that very day, to go to trial with him as his counsel.

Second, in his pro se petition requesting permission to withdraw his guilty plea, appellant made no mention of his dissatisfaction with counsel or the effect that had on his pleading guilty.

Third, at sentencing appellant stated on the record that he had made a mistake in obtaining new, post-plea counsel and asked the Court to arrange for Mr. Rubin to represent him in this appeal.

After the entry of the plea, a court-appointed psychologist characterized appellant as a “manipulative” person. The events described above support that description and do not lend credibility to appellant’s alleged dissatisfaction with counsel.

The facts of this case also lead to the conclusion that any such belief, even if actually held, would have been unreasonable. There is no evidence on the record that counsel was not able to adequately represent appellant.

The basis for appellant’s alleged dissatisfaction with counsel was that he had visited appellant in prison only once in the preceding year. Once again, the opinion in Morris is on point.

Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel. See Chambers v. Maroney, 399 U.S. 42, 53-54 [90 S.Ct. 1975, 1982-83, 26 L.Ed.2d 419 (1970)]

Id.

This case is not governed by other similar, but distinguishable, cases. Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976), held that “irreconcilable differences” between counsel and a criminal defendant would justify a continuance. No such “irreconcilable differences” have been alleged here. Nor does Commonwealth v. Ross, 465 Pa. 421, 350 A.2d 836 (1976), apply. Ross held that it was an abuse of discretion to not grant a continuance where counsel had inadequate time to prepare. Again, there is no indication of record that this was the situation here. Commonwealth v. Atkins, 233 Pa.Super. 202, 336 A.2d 368 (1975), presents yet another distinguishable set of facts. There, error was found in forcing appellant to go to trial with counsel’s associate. Mr. Rubin, to the contrary, was appointed as appellant’s counsel after appellant had requested, through Mr. Rubin, that he be appointed.

We conclude that there was no justifiable reason for the court to have granted appellant’s request for a continuance due to his alleged dissatisfaction with counsel. It is doubtful that appellant was dissatisfied and, even if he was, such dissatisfaction would have been unreasonable. Since the court did not err in refusing to grant the continuance, it would be inconsistent to hold that an invalid guilty plea resulted from the denial of the continuance request.

Prior to sentencing, petitions to withdraw guilty pleas “are to be liberally allowed for any ‘fair and just reason’ unless the prosecution has suffered substantial prejudice.” Commonwealth v. Hayes, 462 Pa. 291 at 300, 341 A.2d 85 at 90 (1975). This standard does not result in the automatic granting of such petitions. Commonwealth v. Dorian, 314 Pa.Super. 244, 460 A.2d 1121 (1983). Following our analysis above, we find that a “fair and just reason” was presented — but in an unconvincing manner, considering the particular facts of this case.

Thus, none of the three arguments appellant advances in support of the reversal of the denial of the petition to withdraw his guilty plea are persuasive. Judgment of sentence is, accordingly, affirmed.

CAVANAUGH, J., concurs in the result.

SPAETH, J., files a dissenting opinion.

JOHNSON, J., files a dissenting statement.

SPAETH, Judge,

dissenting:

I believe that appellant’s petition to withdraw his guilty plea should have been granted because the plea was not voluntarily entered. I should therefore reverse.

The majority says that “[a]s presented in the abstract, [appellant’s] argument is a convincing one [but that] [a]s applied to the facts of this case, it is unconvincing.” Maj. op. 189. Let us see, therefore, what the facts are.

On January 24, 1980, appellant pleaded guilty to three robberies. On March 13, the trial court denied appellant’s pro se petition to withdraw the guilty plea, and on May 22, imposed consecutive sentences of three to ten years imprisonment for each of the robberies. On June 3, appellant filed a counseled petition to withdraw the guilty plea; counsel was not the same as counsel who had appeared when appellant entered the plea. On July 3, the trial court denied the petition.

At the beginning of the January 24 proceeding, the trial court began a jury trial waiver colloquy with appellant. Moments later, the following exchange took place between the court, Mr. Rubin, who was appellant’s court-appointed counsel, and appellant:

“THE COURT: Mr. Rubin has consulted with you in reference to this waiver of a right to a trial by jury; is that correct?
You have talked about it?
MR. RUBIN: Yes, Your Honor, I have talked to the defendant about that on several occasions. He has indicated to me on most of the occasions that he would waive a jury trial.
I would like to bring to the Court’s attention and for the record, that when Mr. Egan came into court this morning and I attempted to discuss that same issue with him this morning, he indicated to me that he would not discuss anything with me, he wanted another attorney and he wanted me discharged as his lawyer. I am court appointed, sir.
THE COURT: Is that true, Mr. Egan?
THE DEFENDANT: Yes.
THE COURT: Why do you want to do that? Mr. Rubin is a good lawyer.
THE DEFENDANT: I am not satisfied, sir.
THE COURT: Why aren’t you satisfied?
THE DEFENDANT: He only came to see me once in a year. He had himself appointed on the case. He came to me, I didn’t approach him.
I called him from Holmesburg and he told me he is too busy. He doesn’t have an interest in the case. I would feel better with a lawyer I don’t know. I thought I knew this guy.
THE COURT: Before I came out here, Mr. Rubin did talk to the district attorney and I in the back room. I know he has a very extensive file. I know he has a complete understanding of the case. He knows a great deal about you and the witnesses and everything and he can anticipate everything that will come up in the trial. I know he is prepared. He is a good lawyer. At this juncture we could not very well substitute another lawyer for you.
THE DEFENDANT: You don’t have to substitute. I will make some kind of arrangements to get somebody else. I don’t want him. I don’t have any confidence in him.
THE COURT: You have to do that immediately.
THE DEFENDANT: I will do something.
THE COURT: What will you do?
THE DEFENDANT: I don’t know. I was thinking of writing Daniel Preminger.
THE COURT: He won’t represent you unless you have a lot of money.
THE DEFENDANT: I don’t know. Maybe I can work something out. If not, I will have to take a PD. I don’t want this guy, I really don’t want him.
If I am going to go to jail, I want it to be with somebody I know.
THE COURT: He has been in this case from the very beginning, hasn’t he?
THE DEFENDANT: And it was a mistake from the beginning. It was my mistake. I am going to state right now that I don’t want him.
THE COURT: I can’t remove him right now.
THE DEFENDANT: Well, I don’t want to go to trial with him. I will put it in the record.
THE COURT: All right, it is in the record. He will remain here and he will be your attorney. You don’t have the right to choose your attorney, that is what I am trying to tell you.
THE DEFENDANT: I don’t have a right to hire my attorney?
THE COURT: If you pay for him, yes. But your attorney is court appointed you don’t have the right to pick and choose. An attorney has been provided to you.
THE DEFENDANT: I didn’t pick this guy. He came to me. I don’t think he has any right to do that. He solicited it.
THE COURT: He was court appointed.
THE DEFENDANT: No. He came to me at City Hall and he said, “Do you want me to have myself appointed?” And he did that. I had him in the past.
THE COURT: We won’t continue this.
MR. RUBIN: May I make a statement? Based upon what Mr. Egan has said and my experiences with him in the last year, I would move at this point to be permitted to withdraw from the case as well, under the circumstances.
THE COURT: I won’t let you withdraw Mr. Rubin.
MR. RUBIN: Yes, sir.
THE COURT: Mr. Rubin, have you explained to your client all the consequences of a decision to waive a jury trial?
MR. RUBIN: Yes, sir; on numerous occasions.
THE COURT: And he understands it?
THE DEFENDANT: Your Honor, I want a jury trial.
THE COURT: You want a jury trial?
THE DEFENDANT: Yes, sir.
THE COURT: Very well, you will get a jury trial. Let us recess and call for the jury.
THE DEFENDANT: Your Honor, I want to subpoena a lot of people to this trial. And I want him to do it.
THE COURT: Very well. We will get the witnesses. Sure, we will help you.
THE CRIER: This court will stand in recess to the call of the crier.
(Recess held.)
(Whereupon, a jury panel was brought to the courtroom, duly sworn and voir dire of the jury panel commenced.)
(Luncheon recess.)
(During the afternoon session, voir dire of the jury panel continued. The following occurred during the afternoon session, in the courtroom and out of the presence of the jury panel:)
THE COURT: Are we going to do that, gentlemen, take a plea?
MR. RUBIN: Your Honor, could we approach the bench one more time?
THE COURT: Sure. Mr. Egan, would you come up, please. Swear him in, please.
THE CRIER: He was sworn in this morning, Your Hon- or.
THE COURT: He was sworn?
THE CRIER: Yes.
THE COURT: Mr. Egan, it has been indicated to this Court that you wish to enter pleas of guilty only to the robbery charges, and I think there are three of them; is that correct?
MR. CARPENTER: Three Bills, yes, three robberies.
# sje >}: sfc * *
THE COURT: Are you now suffering from any physical, mental or emotional problem which might affect your understanding of everything that is said here today?
THE DEFENDANT: I feel like I am under a lot of pressure.
THE COURT: But do you understand everything?
THE DEFENDANT: Yeah.
THE COURT: I can understand the pressure you are under. Are you satisfied with the representation so far?
THE DEFENDANT: Yes, sir.”

N.T. 1/24/80, 4-13.

Following this exchange, the trial court entered into a colloquy with appellant, advising appellant of his right to a trial before , a judge and jury or before a judge alone. At the end of the colloquy, appellant entered his plea. Appellant does not claim that the colloquy was incomplete.

On these facts, the majority holds that to be permitted to withdraw a guilty plea entered after a request for a continuance to obtain new counsel has been denied, the “defendant must have [had] a reasonable belief that his counsel [would] not adequately represent him.” Maj. op. at 81. It then goes on to find “considerable doubt that appellant was actually dissatisfied with his counsel.” Id. at 81.

Initially, I acknowledge my difficulty in understanding the basis of the majority’s new test. Whether one is in “custody” under Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971), is determined by an objective test: What would a reasonable person in the defendant’s position at the time of interrogation believe? Contrary to the majority, there is no requirement of showing “that the criminal defendant must actually have [had] such a belief.” Maj. op. at 81 (emphasis added). The majority’s deduction of a subjective standard, maj. op. at 80-83, from an objective one is, I submit, a non sequitur and is unsupported by the majority’s own citations. However, any extended comment on the majority’s test seems unnecessary. For settled precedent provides the basis for deciding this appeal, and I can only suppose the majority has fashioned its new test because it is dissatisfied with the result to which application of this precedent leads.

To support its conclusion that appellant did not actually believe that his counsel would not adequately represent him, the majority relies on “[t]hree events.” Maj. op. at 81. It notes that appellant did not cite his dissatisfaction with counsel in his pro se petition to withdraw his guilty plea; that at sentencing he indicated dissatisfaction with his post-guilty plea counsel and requested that Mr. Rubin represent him on appeal; and that appellant’s actions on the day he pleaded guilty do not show that he was dissatisfied with counsel.

The first two events occurred after appellant’s plea of guilty. They are therefore of little, if any, help in deciding, either whether the trial court should have granted appellant a continuance so that appellant might obtain new counsel, or whether appellant’s guilty plea was voluntary. Thus, the United States Supreme Court has said:

There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.
Ungar v. Sarafite, 376 U.S. 575, 589-90 [84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964)] (citations omitted) (emphasis added).

See also Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). Since the trial court could not have based its denial of appellant’s request for a continuance on events that occurred after its order, we should not consider such events in reviewing its order.

With regard to appellant’s actions on the day he pleaded guilty, three comments seem required.

First, the record does not support the majority’s description of appellant’s actions. At least, I find nothing in the record to support the majority’s statement that “[p]rior to his arrival in court, appellant had indicated his intention to plead guilty.” Maj. op. at 81. When the proceeding began, appellant participated in a jury-trial waiver colloquy, which ended only when his counsel advised the court that appellant desired a new attorney.

Second, the majority states that given appellant’s actions on the day he pleaded guilty, “[w]e do not find it credible that appellant was dissatisfied with counsel....” Maj. op. at 81. I should have supposed that a finding of credibility was for the trial court, to be made after a hearing on the issue of what appellant did or did not think. There has been no such hearing or finding in this case.

Finally, and in any event, appellant’s actions must be examined in the context in which they occurred. I have quoted the relevant portion of the record in its entirety, above, and in what follows I shall refer only to the salient features.

Immediately upon appearing before the trial court, appellant made it plain that he did not wish to proceed because he had lost confidence in Mr. Rubin and needed time to get new counsel. He explained that Mr. Rubin had sought him, asking appellant whether he wanted Mr. Rubin to have himself appointed by the court to represent him, but that then, after being appointed, Mr. Rubin had said he was too busy to come to the prison, and had seen him only once in a year.

While neither agreeing nor disagreeing with this account, Mr. Rubin confirmed appellant’s dissatisfaction, informing the court that appellant “would not discuss anything with me.” N.T. 4-5. The court’s reaction to Mr. Rubin’s statement was to try to persuade appellant to continue with Mr. Rubin as his counsel. Thus the court told appellant, “I know he [Mr. Rubin] has a complete understanding of the case____ I know he is prepared. He is a good lawyer. At this juncture we could not very well substitute another lawyer for you.” N.T. 6. When appellant replied, “You don’t have to substitute. I will make some kind of arrangements to get somebody else,” the court said, “You have to do that immediately.” N.T. 6.

There ensued a sort of tug-of-war between the court and appellant. When appellant said, “I was thinking of writing Daniel Preminger,” the court replied, “He won’t represent you unless you have a lot of money.” N.T. 7. When appellant said that if necessary, he would “Take a PD [Public Defender],” but that in any event, he didn’t want to be represented by Mr. Rubin, the court replied, “I can’t remove him right now.” Id. When appellant said, “Well, I don’t want to go to trial with him,” the court said, “You don’t have the right to choose your attorney----” N.T. 7-8. When appellant said, “I don’t have the right to hire my attorney?”, the court said, “If you pay for him, yes. But your attorney is court appointed. You don’t have the right to pick and choose. An attorney has been provided for you.” N.T. 8. When appellant protested that he had not picked Mr. Rubin, the court said, “We won’t continue this,” and followed this statement by refusing Mr. Rubin’s request that he be permitted to withdraw. N.T. 9.

Appellant then announced that he wanted a jury trial. A panel was summoned, and voir dire commenced. During voir dire Mr. Rubin informed the court that appellant wished to plead guilty, and the guilty plea colloquy then commenced. N.T. 9-12.

I think it clear from this record that the trial court should not have compelled appellant to proceed with Mr. Rubin as his counsel, first to trial and then to the guilty plea proceeding. Instead, the court should have granted appellant’s request for a continuance to enable him to try to obtain either private counsel, or, failing that, the Public Defender.

Although whether to grant a continuance for the defendant to obtain new counsel is within the discretion of the trial court, Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981), in exercising its discretion the court must apply a balancing test. Id; Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980); Commonwealth v. Atkins, 233 Pa.Super. 202, 336 A.2d 368 (1975); Commonwealth v. Simpson, 222 Pa.Super. 296, 294 A.2d 805 (1972). On one side of the balance is the accused’s right to counsel of his choice. On the other side is the fact that the accused’s right to counsel is not unqualified. He may not, by demanding particular counsel, unreasonably impede the efficient administration of justice. Commonwealth v. Simpson, supra.

In Commonwealth v. Nicolella, 307 Pa.Super. 96, 452 A.2d 1055 (1982), this court held that the trial court had abused its discretion in failing to grant appellant’s request for a continuance to obtain new counsel. In Nicolella, the defendant had requested the continuance because his attorney had previously represented a co-defendant and the co-defendant was the principal witness against him. We noted that the Commonwealth had not argued that it would have been prejudiced by granting the continuance, nor was it claimed that witnesses would become unavailable, or evidence lost if the continuance were granted. We further noted that the defendant had made no previous requests for new counsel, and that defendant’s counsel admitted that he did not have his client’s confidence.

The circumstances here are at least as compelling as in Commonwealth v. Nicolella, supra. Application of the balancing test reveals that appellant should have been granted a continuance to obtain other counsel, for the balance comes down almost entirely on appellant’s side. Appellant has a “constitutional right to choose at his own cost and expense any lawyer he may desire,” Commonwealth v. Kittrell, supra, 285 Pa.Super. at 467, 427 A.2d at 1381; it was appellant’s first request for new counsel; and no evidence suggests that appellant’s request was an attempt to impede the administration of justice. At no point did the Commonwealth object to appellant’s request for a continuance, or indicate that a continuance would result in any inconvenience to it or its witnesses. Whether justified or not, appellant’s dissatisfaction with Mr. Rubin was evidently sincere — and Mr. Rubin did not question its sincerity; indeed, he requested permission to withdraw as appellant’s counsel. Nor did appellant insist upon any particular person to represent him, saying that if necessary, he would accept the Public Defender. To be sure, granting a continuance would have resulted in some delay. But the trial court could have readily specified that the continuance would be for only a brief period.

In Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976), the Supreme Court held that it was reversible error for the trial court to refuse to grant the defendant’s request for a continuance for appointment of new counsel after the defendant had stated in open court, and defense counsel had agreed, that they had “irreconcilable differences.” The Supreme Court said that by refusing to grant a continuance, and compelling the defendant to proceed to trial pro se, the trial court had presented the defendant with a “Hobson’s choice” — he was forced “to either accept court appointed counsel with whom an irreconcilable difference as to the manner in which the trial should be conducted had arisen, a difference which was corroborated by counsel, or to represent himself.” Id., 468 Pa. at 199, 360 A.2d at 620. See also Commonwealth v. Ross, 465 Pa. 421, 350 A.2d 836 (1976) (abuse of discretion to refuse continuance where defendant was forced to trial with defense counsel who had inadequate time to prepare); Commonwealth v. Atkins, supra (abuse of discretion to refuse continuance where defendant mistakenly believed chosen counsel would represent her at trial but was forced to trial with chosen counsel’s associate).

Here, by refusing to grant appellant’s request for a continuance, the trial court confronted appellant with the necessity of choosing among three possible courses of action: 1) he could proceed to trial and represent himself; 2) he could proceed to trial, represented by counsel whom he did not want and who did not want him; or 3) he could plead guilty. In the event, appellant first tried going to trial — the record does not disclose to what extent Mr. Rubin represented him — and then, giving up on that, decided to plead guilty. In these circumstances appellant’s decision to plead guilty cannot fairly be regarded as having been any more voluntary than was the defendant’s decision to proceed pro se in Commonwealth v. Tyler, supra. See also Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978) (guilty plea not voluntary or knowing where trial court did not explain charges in understandable fashion); Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978) (guilty plea not voluntary or' knowing where trial court did not explain requirement of unanimous jury).

Indeed, this case is a stronger case than Tyler. For if it is a denial of due process to compel a defendant to go to trial represented by counsel with whom the defendant has irreconcilable differences, a fortiori it is a denial of due process to compel a defendant to enter a guilty plea represented by such counsel. As the United States Supreme Court has explained:

Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and is shielded by the Fifth Amendment from being compelled to do so — hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge.
Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970).

See also Commonwealth v. Ammon, 275 Pa.Super. 324, 331 n. 4, 418 A.2d 744, 747 n. 4 (1980) (“guilty plea involves the surrender of a panoply of constitutional rights”); Commonwealth v. Landi, 280 Pa.Super. 134, 141, 421 A.2d 442, 445 (1980) (guilty plea is waiver of “a number of significant constitutional rights”).

I have not overlooked the Commonwealth’s argument that when a defendant seeks to withdraw his plea after sentence is imposed, manifest injustice must appear. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Mitchell, 262 Pa.Super. 268, 396 A.2d 748 (1978). Here, however, not only did appellant attempt to withdraw his plea before sentence, by proceeding pro se, but manifest injustice does appear. As I have tried to show, on balance virtually every consideration dictated granting appellant a brief continuance so that he could obtain new counsel, who could advise him whether he should make so extensive a waiver of his constitutional rights as a guilty plea represents.

The judgments of sentence should be reversed and the case remanded with instructions to permit appellant to withdraw his guilty plea.

JOHNSON, Judge,

dissenting:

I respectfully dissent on the basis of my opinion in Commonwealth v. Wolfe, 301 Pa.Super. 187, 447 A.2d 305 (1982). The trial court failed to balance appellant’s request for new counsel, and the related request for a continuance against society’s interest in the prompt and efficient administration of justice. I believe the failure to balance the competing interests is an abuse of discretion in itself. Therefore, I see no need to address the substantive merits of the request for a continuance nor appellant’s motivation in seeking new counsel. I would reverse the order of the trial court and allow appellant to withdraw his plea.

      . The pressure on appellant in terms of his alleged dissatisfaction with his counsel is treated infra.

      . Considering the issue before us here, it is just as well that this request was not granted.

      . This Court noted recently that the right of a defendant to have the assistance of counsel of his own choice is not absolute. Commonwealth v. Boettcher, 313 Pa.Super. 194 at 202, 459 A.2d 806 at 809 (1983).

      . I find no such petition in the record. It is true, however, that at the pre-sentencing hearing on appellant’s petition to withdraw his guilty plea appellant did not testify that he had been dissatisfied with counsel. See N.T. 2/20/80; 3/13/80.

      . In addition to the matters cited by the majority, it may be noted that at the hearing on his petition to withdraw his guilty plea, appellant stated that the "main reason” he entered it was his impression that his counsel had obtained an agreement from the judge that appellant would be sentenced to no more than two to ten years in prison. N.T. 3/13/80 12-13. But see id. at 75.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    469 A.2d 199
    Joanne FOX, Administratrix of the Estate of Shirl Morrissey, Deceased and Joanne Fox, in her own right v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1983.
    Filed Nov. 18, 1983.
    Petition for Allowance of Appeal Granted May 25, 1984.

      Richard T. Abell, Philadelphia, for appellant.
    Stephen C. Josel, Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   ROWLEY, Judge:

This is an appeal from an order of the trial court granting appellee’s motion for summary judgment and awarding the estate of the minor decedent work loss benefits in the amount of $15,000.00 plus eighteen percent annual interest under the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. §§ 1009.101 et seq. (Supp.1983-84).

Appellee Joanne Fox is the administratrix of the estate of Shirl Morrissey who died from injuries sustained when she was struck by an automobile driven by an insured of Appellant, State Farm Mutual Automobile Insurance Company. At the time of her death, the decedent was either three or five years old; the record is not clear on the point. Appellee presented a claim to State Farm for medical expenses, funeral costs, and survivor’s and work loss benefits under the No-Fault Act. State Farm paid the first two items, but denied liability for survivor’s loss and work loss benefits. The claim for survivor’s loss benefits was later abandoned. Appellee commenced this action against State Farm by filing a complaint in assumpsit alleging that State Farm was liable to the estate for the payment of No-Fault work loss benefits. Following the filing, by State Farm, of an answer and new matter denying liability, appellee filed a motion for summary judgment. The trial court granted the motion, stating that the maximum work loss benefits of $15,000.00, provided for by the Act were due and payable in twelve equal monthly installments commencing thirty days after the date of the decedent’s death. The court also directed State Farm to pay the statutory rate of interest of eighteen percent per year. This appeal followed.

State Farm raises five issues for our consideration: (1) May the estate of a minor collect post-mortem work loss benefits under the No-Fault Act although the child never worked and there is no showing of dependency? (2) “[I]f any No-Fault wage loss benefits must be paid are the work loss payments due without regard to the time when the particular decedent would have had a probable annual income?” (3) Is summary judgment an appropriate method of determining the amount of No-Fault work loss benefits when the decedent’s probable annual income is in dispute? (4) “Is the Pennsylvania Supreme Court decision in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), to be applied retroactively to a case where the death occurred prior to the decision of the Supreme Court?” (5) If any benefits are or have been due, what is the proper method of calculation of interest in this case?

I.

The first and fourth issues raised by State Farm have been previously raised and decided ádversely to it. In Allstate Insurance Company v. Heffner, supra, the Supreme Court of Pennsylvania held that the estate of a deceased adult victim of a motor vehicle accident was entitled to recover work loss benefits under the Act. In Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), allocatur granted 11/5/82, an en banc panel of our court, following Heffner, held that the estate of a deceased eleven year old with no work history was entitled to recover work loss benefits. The Court said that there need be no showing of dependency because that issue is “more properly a question concerning survivor’s loss benefits.” Id., 301 Pa.Superior Ct. at 354 n. 9, 447 A.2d at 1004 n. 9. Furthermore, there is no necessity that the deceased have an actual work history because § 205(c) of the Act, 40 P.S. § 1009.205(c) (Supp.1983-84), specifically sets forth a formula by which work loss benefits may be calculated for “a victim who is not employed when the accident resulting in injury occurs.” See also: Hartleb v. Ohio Casualty Insurance Co., 305 Pa.Super. 231, 451 A.2d 506 (1982); Miller v. United States Fidelity and Guaranty Co., 304 Pa.Super. 43, 450 A.2d 91 (1982), allocatur granted, and Chester v. Government Employees Insurance Co., 302 Pa.Super. 356, 448 A.2d 1080 (1982), allocatur granted November 5, 1982.

As to State Farm’s claim that Heffner should not be applied retroactively to accidents which occurred prior to the decision in that case, our Court, in Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), held otherwise. Also see: Shomper v. Aetna Life & Casualty Co., 309 Pa.Super. 97, 454 A.2d 1101 (1982); Keaten v. Aetna Life & Casualty Insurance Co., 309 Pa.Super. 101, 454 A.2d 1102 (1982); Thomas v. Aetna Casualty & Surety Co., 309 Pa.Super. 105, 454 A.2d 1105 (1982); Freeman v. Allstate Insurance Co., 309 Pa.Super. 108, 454 A.2d 1106 (1982); Giles v. Allstate Insurance Co., 309 Pa.Super. 111, 454 A.2d 1108 (1982); Rittner v. Aetna Life & Casualty Insurance Co., 309 Pa.Super. 114, 454 A.2d 1109 (1982). As Judge Johnson stated for the court in Baker:

[I]n Heffner we decided an issue of statutory construction. We created no new right, and made no change in the law.
309 Pa.Super. at 91, 454 A.2d at 1097.

For these reasons, the trial court correctly held that appellee was entitled to claim work loss benefits from appellant and, when the claim was denied, commence an action to compel such payments.

II.

Appellant next argues that summary judgment was improperly granted because there is a genuine issue as to a material fact on the record before us. We agree.

It is important to note that Heffner, Freeze and their progeny do not stand for the proposition that payment of the statutory maximum $15,000.00 work loss benefits to the estate of a deceased minor is automatic once the death of the child and the identity of the administrator of the estate are established. Those decisions may rightfully be understood as establishing the right of estates of deceased victims of motor vehicles accidents to submit, and be given the opportunity to prove, a claim for No-Fault work loss benefits. Averments of fact which properly invoke the rule of those cases are not in themselves sufficient to establish entitlement to such an award. Such averments show only that the party before the court is a proper claimant.

While § 301(a) of the No-Fault Act states that the concept of “tort liability is abolished,” 40 P.S. § 1009.301(a) (Supp. 1983-84), this Court has held that other portions of the Act continue to require that claimants prove certain tort-type elements of their claim as a prerequisite to recovery. For example, under §§ 103 and 301 of the Act, a claimant must show that the injuries for which benefits are claimed have “arise[n] out of the maintenance or use of a motor vehicle.” 40 P.S. §§ 1009.103 (definition of “Loss”), 1009.301(a). Thus, the Act has been held to require a showing of “but for” causation. Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982); Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982); Rife v. State Farm Mutual Automobile Insurance Co., 304 Pa.Super. 359, 450 A.2d 720 (1982).

Similarly, in cases dealing with survivor’s loss under §§ 103 and 202(d) of the No-Fault Act, 40 P.S. §§ 1009.103 and 1009.202(d) (Supp.1983-84), this Court has ruled that “a party that has qualified as a ‘survivor’ must still plead and prove the loss ...” incurred by reason of a motor vehicle accident. McClaine v. Allstate Insurance Co., 317 Pa.Super. 154, 157 n. 2, 463 A.2d 1131, 1132 n. 2 (1983). In Wercoch v. Liberty Mutual Insurance Co., 287 Pa.Super. 45, 429 A.2d 712 (1981), the Court ruled that the trial court improperly awarded survivor’s loss benefits to decedent’s spouse without having required the spouse to prove the losses she sustained. Mrs. Wercoch’s status as a spouse did “not relieve her of the burden of proving the damages provided by the Act for survivor’s loss.” Id., 287 Pa.Superior Ct. at 52, 429 A.2d at 715. Similarly, in Chesler v. Government Employers Insurance Co., 302 Pa.Super. 356, 448 A.2d 1080 (1982) (en banc), it was observed that the status of the claimant under the Act as a proper party to collect no-fault benefits “is an issue separate and apart from the amount of... benefits ... available ...” to that claimant. Id., 302 Pa.Superior Ct. at 363 n. 14, 448 A.2d at 1083-1084 n. 14.

Similar logic compels the conclusion that claimants qualifying under the decisions in Heffner and Freeze as parties who may rightfully claim work loss benefits under the Act, must likewise bear the burden of proving to a reasonable certainty that the decedent would have earned income and the amount thereof, at least up to the maximum amount provided by the Act. In Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. at 354-355, 447 A.2d at 1004-1005, our court set forth the following method of determining the amount of work loss sustained by a deceased minor victim of a motor vehicle accident:

Finally, although the “deceased victim” in the instant case is a minor child who had never worked, we see no difficulty in calculating his work loss. Section 205(c) sets out the method by which the work loss of one not employed at the time of the accident is to be calculated:
(c) Not employed. — The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period;
40 P.S. § 1009.205(c). Because the victim was never employed the “probable annual income” referred to in Section 205(c)(1) will be “the average annual gross income of a production or nonsupervisory worker in the private nonfarm economy in the state in which the victim is domiciled for the year in which the accident resulting in injury occurs” as required by Section 205(d)(C). See Marryshaw v. Nationwide Mut. Ins., 13 Pa.D. & C.3d 172 (1979) [affirmed, 306 Pa.Super. 233, 452 A.2d 530 (1982) ]. In addition, it has been suggested that the fact that the victim never worked creates a problem about determining the proper “accrual period” to be utilized in fixing the work loss amount; we think the existence of such a problem illusory. The “accrual period,” instantly, the number of years the deceased victim would have worked had he survived the accident, can be readily established by reference to actuarial tables and other relevant statistical compilations. This is true even though the deceased victim was never actually given the chance to work and that, therefore, we cannot precisely fix the date of his entry into the working world. (Footnotes omitted.)

Appellee must therefore present evidence to establish the likelihood of Shirks having sustained a “work loss” as well as the necessary elements to prove the amount of the loss. Appellant should be given an opportunity to rebut such evidence by presenting contradictory evidence if such exists.

We have little doubt that in the vast majority of cases, recovery can be had at no great cost and with no arduous effort on the part of the estate. Reference to income data for the various geographical regions and socioeconomic groups, actuarial tables and other statistical studies will reveal in short order whether or not an individual would probably have earned more than the statutory work-loss maximum of $15,000.00 in his or her lifetime. Most healthy individuals, regardless of their level of education, would be likely to earn income far in excess of that amount. Furthermore, as the deceased minor’s age decreases, any required specificity of proof would also be reduced. However, some showing of good health, working-life span and possible or probable earnings, but for the victim’s death due to the accident, is required.

In light of the foregoing, we conclude that summary judgment was improperly granted in this case.

Summary judgment is made available by Pa.R.C.P. 1035 ... when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. This severe disposition should only be granted in cases where the right is free from doubt. To determine the absence of a genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment____ The moving party bears the burden of demonstrating clearly that there is no genuine issue of fact.
Acker v. Palena, 260 Pa.Super. 214, 218-219, 393 A.2d 1230, 1232 (1978) (citations omitted).

See also: First Mortgage Company of Pennsylvania v. McCall, 313 Pa.Super. 54, 459 A.2d 406 (1983). Appellee has submitted no evidence of any kind to support the motion for summary judgment or to demonstrate clearly that there is no genuine issue of fact regarding the amount of work loss benefits to which the estate may be entitled. There are no affidavits, exhibits, depositions, admissions, interrogatories or anything else of an evidentiary nature. The pleadings disclose only that State Farm has paid funeral and medical expenses as defined by the Act. State Farm has specifically denied any other liability. There is nothing of record to show the deceased’s physical and mental condition prior to the accident that caused her death, that she probably would have sustained an actual work loss within the meaning of the Act, or how much that work loss might have been. We do not know how long Shirl might have worked or how much she might have earned or that this sum was equal to or greater than the maximum allowable under the Act. It appears that nearly every material fact is as yet still the subject of genuine dispute and that neither party is as yet clearly entitled to judgment as a matter of law.

We will therefore reverse the order of the trial court granting summary judgment in favor of appellee.

III.

Although our determination that summary judgment should not have been granted is in and of itself sufficient to require a remand, in the interests of judicial economy and for the guidance of the parties we will also consider the second issue raised by State Farm and decided by the trial court.

State Farm argues that no benefits could presently be due because No-Fault benefits are payable only as actual economic detriment occurs. Such detriment would occur, it is argued, only at such time as the decedent would have experienced a probable annual income. The trial court held, however, that the work loss accrues in these cases “at the time of death.” We agree with the trial court.

Section 106(a)(1) of the No-Fault Act, 40 P.S. § 1009.-106(a)(1) (Supp.1983-84), states that “[l]oss accrues not when injury occurs but as allowable expense, work loss, replacement services loss, or survivor’s loss is sustained.” State Farm recognizes that formulas for the calculation of work loss are set forth in § 205 of the Act, 40 P.S. § 1009.205 (Supp.1983-84), including one formula for the calculation of such loss if the victim is “not employed when the accident resulting in injury occurs____” § 205(c). However, State Farm argues that, under § 205(d), it is permitted to show that the decedent’s “probable annual income ... is or would be some other amount” than that prescribed by the formula contained in the Act. In this case, the minor decedent was admittedly not employed nor, contends State Farm, would she have become employed for the forseeable future. Therefore, State Farm concludes, “[ujntil such time as the decedent actually has a probable annual income, no income has been lost and no work loss [has] occurred.” Brief for Appellant at 19. At oral argument, counsel for appellant suggested that it would not be until the decedent would have reached the age of eighteen or, perhaps, even twenty-one that such actual probable annual income could be established.

Such an argument is not entirely without logical cohesion or force. Our court has recently held that an alteration of the minimum wage rate under the federal Fair Labor Standards Act, 29 U.S.C.A. §§ 201 et seq., may be grounds upon which a claimant may require an insurer to adjust the rate at which work loss benefit payments are made. Goebel v. Hartford Accident And Indemnity Co., 312 Pa.Super. 15, 458 A.2d 212 (1983). We there held that, circumscribed by the time limits and maximum dollar amounts placed on work loss benefits by the No-Fault Act, “any party to the insurance contract can require an alteration to be made in the payment schedule upon a showing that the claimant’s ‘probable annual income ... is or would be some other amount’ ” than that calculated under one of the formulas of § 205. We stated that “this issue is not etched in stone” but that either the claimant or the insurer may come forward with proof sufficient to support a departure from the statutory formulas, recognizing at the same time that “the ephemeral quality of the issue is itself a substantial barrier to the success of such a claim.” Our ruling was “based upon the twin principles of accrual and actual loss” embodied in Sections 103 and 106 of the No-Fault Act, as well as on the language of § 205(d) upon which State Farm here relies. Id., 312 Pa.Superior Ct. at 26-28, 458 A.2d at 217-218.

However, we do not believe that our decision in Goebel requires the result sought in this case by State Farm. The factor distinguishing the two cases is that in Goebel the claimant remained alive while the victim in the present case has died'. It is true that in Goebel “the accident rendered Mr. Goebel permanently and totally disabled; he will never be able to return to gainful employment of any kind.” Id., 312 Pa.Superior Ct. at 18, 458 A.2d at 213. However, permanent and total disability is not the equivalent of death under the No-Fault Act. While the claimant lives, medical advances and the human body’s own sometimes miraculous regenerative powers hold out the possibility, however slim, that the motor vehicle accident victim may recover. Furthermore, therapy may open to an injured person some new ' door leading to a field of gainful activity which had hitherto been unnoticed or ignored. Finally, we must note that there are those few individuals who will attempt to defraud an insurer by claiming disability although they are capable of performing available substitute work if not fully able to return to their former employment.

In the context of an injury not resulting in death, application of the principles of accrual and actual loss so as to delay the payment of benefits serves the purposes set forth in § 102 of the Act, 40 P.S. § 1009.102 (Supp. 1983-84), namely, to provide “prompt and adequate basic loss benefits” intended to “compensate” or “restore” those injured in motor vehicle accidents or their survivors.

Instead of attempting to calculate all the possible elements of damages and loss which a victim suffers and paying for them in advance in one lump sum, expenses and losses are paid out by the insurer as they are incurred by the victim. There is no speculation as to what medical attention will be necessary, how much these costs will increase over time nor how much an individual would have earned over his lifetime. The Act’s wait-and-see approach is thus more definite and more accurate.
Goebel v. Hartford Accident And Indemnity Co., 312 Pa.Super. at 26, 458 A.2d at 217.

The No-Fault Act is thus designed to forestall the possibility that the compensatory benefits would go beyond the intended maintenance or restoration of the injured claimants and their families to become a subsidization or improvement in economic condition.

In stark contrast, where the motor vehicle accident victim dies as a result of the accident, the uncertainty inherent in the recovery from bodily injury is entirely eliminated. The decedent will never return to work of any kind regardless of medical advances. There is no possibility that future events of any sort will alter the amount of damage done or the amount of losses sustained. The victim’s death closes the books of account, supplying all the certainty sought through the application of the principles of accrual and actual loss. The proof of how much earnings have been lost becomes static; no future events will alter the accuracy of the statistical prediction of such loss. In short, we hold that the economic detriment necessary to support a claim of “loss” and “work loss”, as defined in § 103 of the No-Fault Act, accrues within the meaning of those definitions and within the meaning of § 106(a)(1), at the moment death occurs due to the operation or maintenance of a motor vehicle.

We pause to observe that if we were to hold as appellant asks, the result would be to impede progress toward achieving the legislatively defined goal of a “low-cost, comprehensive and fair system of compensating and restoring motor vehicle accident victims and the survivors of deceased victims----” § 102(a)(4). Appellant’s position would also require us to disregard the General Assembly’s desire that payment of benefits be “prompt”. § 102(b). Appellant’s desire to have the appellee and those in similar circumstances come forth with proof that a decedent child would have had “an actual probable income” would impose a burden to bring forth a substantially higher order of proof not required of other litigants in like circumstances. State Farm would thus in effect have us significantly impair the availability of work loss benefits to the estates of deceased minor children. Such a result would implicitly overrule Freeze v. Donegal Mutual Insurance Co., supra, a course which we have neither the desire nor the power to take.

The other result following from State Farm’s argument is that, at best, No-Fault benefits would not be paid for fifteen years or more. Such delay certainly cuts against the grain of the General Assembly’s desire to require “prompt” payment of basic loss benefits. Furthermore, this waiting period would substantially delay proceedings in the Orphans’ Court Divisions of the Commonwealth’s trial courts, leaving a large number of estates open and unsettled for long periods of time. Such cases could clog court dockets and impose a difficult supervisory or case-management task on the courts and practitioners alike, without any concomitant gain in efficient use of resources, fairness or justice. Such delay would also materially decrease the value of the benefits paid, in effect denying the full amount of benefits the legislature provided for in its estimation of fair and adequate restoration. We cannot find in the Act itself nor in the legislative history any foundation for requiring the extremely negative consequences attendant upon adoption of appellant’s position. Finally, because the legislature is presumed not to intend an unreasonable result, 1 Pa.C.S.A. § 1922(3), and because we believe the results advocated by State Farm are unreasonable, we do not adopt the position advanced by State Farm.

Finally, appellant has not challenged that part of the trial court’s order stating that the sum due appellee would be considered as having been due in twelve equal monthly installments of $1,250.00 each. However, an en banc panel of our Court, in Antanovich v. Allstate Insurance Compa ny, 320 Pa.Super. _, 467 A.2d 345 (1983), held that “postmortem work loss benefits are to be paid in a lump sum.” Thus, assuming that the estate proves that some work loss occurred in accordance with Freeze v. Donegal Mutual Insurance Co., supra, the insurer’s obligation is to pay the loss in one lump sum rather than in installment payments.

For all of the foregoing reasons, the order of the trial court granting summary judgment in favor of appellee is reversed and the case is remanded for proceedings not inconsistent with this opinion.

Jurisdiction is not retained.

      . No-Fault Act Sections 103 and 202(a), 40 P.S. §§ 1009.103 and 1009.202(a) (Supp.1983-84).

      . Id.

      . Id., §§ 103, 202(d); 40 P.S. §§ 1009.103, 1009.202(d) (Supp.1983-84).

      . Id., §§ 103, 202(b) and 205; 40 P.S. §§ 1009.103, 1009.202(b) and 1009.205 (Supp.1983-84).

      . There are substantial doubts concerning the constitutionality of denying such a recovery. See: Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 191-193, 401 A.2d 1160, 1164-1165 (1979).

      . Because of our disposition of this case, we will not consider the propriety of the interest awarded by the trial court. However, at oral argument, counsel for both parties had reached agreement as to how the interest should have been calculated.


author: POPOVICH, Judge: ROWLEY, Judge,

text:
    469 A.2d 206
    COMMONWEALTH of Pennsylvania v. John W. McDONALD, Appellant.
    Superior Court of Pennsylvania.
    Argued April 26, 1983.
    Filed Nov. 18, 1983.

      Claude V. Falkenhan, Jr., Zelienople, for appellant.
    Robert Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

Appellant, John McDonald, was convicted by a jury of rape , involuntary deviate sexual intercourse, burglary, and simple assault. Post-verdict motions were denied, and appellant was sentenced to concurrent terms of imprisonment of not less than three nor more than six years on all charges, with the exception of the simple assault conviction for which appellant received a concurrent term of imprisonment of not more than one nor more than two years. This appeal followed. We reverse and remand for proceedings consistent with this opinion.

Appellant contends inter alia that the trial court erred at sentencing when it failed to articulate properly the reasons for its sentence. We agree.

The standard which this Court has applied in sentencing cases has been summarized in the following manner:

“It is settled that the imposition of a proper sentence is a matter vested in the sound discretion of the sentencing judge. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). In exercising this discretion, however, the judge must rely on full and accurate information and must state on the record the reasons for the Sentences imposed. Commonwealth v. Riggins, [474 Pa. 115, 377 A.2d 140 (1977) ]; Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). This statement of reasons must show that in imposing sentence, the judge attached weight to the factors set forth in the statutory guidelines for sentencing, and carefully considered the facts concerning the circumstances of the offense and the character of the defendant. Commonwealth v. Wicks, supra. If the sentencing judge fails to state the reasons for the sentences on the record, we will vacate the sentences and remand for resentencing. See Commonwealth v. Young, [272 Pa.Super. 82, 414 A.2d 679 (1979)]; Commonwealth v. Wicks, supra. Commonwealth v. Maxwell, 280 Pa.Super. 235, 242, 421 A.2d 699, 703 (1980).”

Commonwealth v. Bryner, 285 Pa.Super. 305, 307-308, 427 A.2d 236, 237 (1981). Accord Commonwealth v. Walters, 287 Pa.Super. 53, 55-56, 429 A.2d 716, 717 (1981).

Against this framework, we must examine the following transcript which contains the complete record of the sentencing proceeding:

“[The Prosecutor] MR. HEPTING: John W. McDonald, number fifteen on the list, Your Honor. John W. McDonald, case number 696 of 1981. Following trial by jury, the defendant was found guilty of burglary, rape, involuntary deviate sexual intercourse and simple assault.
THE COURT: Mr. Doerr?
[Defense Counsel] ATTORNEY WAYNE DOERR: Your Honor, the defendant would like the Court to consider that, first of all, Mr. McDonald [appellant] has no prior record, that he is a responsible young man. He’s been employed all of his adult life. While in prison he complet: ed, successfully completed his G.E.D. program and has participated in counseling and at the present has been a model prisoner and has helped clean up down there, and we can ask the Court to consider, also, that he’s spent seven months and twenty days down there so far already, and we would ask that this also be considered.
THE COURT: Mr. McDonald, I have considered your past arrest history. I have considered your good behavior at the Butler County Prison. These are points in your favor, but I have also considered the seriousness of these offenses, and the fact that you were found guilty by a jury after full trial. I have also considered the need of the protection of the public from this type of offenses and in addition I have considered the circumstances involved such as the use of violent force in this case and the trauma or effect it has on the victim. In determining your rehabilitative needs I have considered the alternatives in sentencing such as probation, total or partial confinement, a fine, or just plain guilt without any further court action. The Court finds that any lesser sentence than that could be imposed would depreciate the seriousness of the crimes involved and that you are definitely in need of correctional treatment that can best be provided in a state institution. Now, take this sentence: On the offense of burglary, the sentence of the Court is that you pay the costs of prosecution, be imprisoned for a term of not less than three years nor more than six years, and on the charge of rape, I sentence you to imprisonment for a term of not less than three years nor more than six years. On the charge of involuntary deviate sexual intercourse, I sentence you to be imprisoned for a term of not less than three years nor more than six years, and on the simple assault charge, I sentence you to be imprisoned for a term of not less than one year nor more than two years. The imprisonment on all charges is to be concurrent, and you are to be given credit for seven months, seventeen days already served. You are committed to the custody of the Bureau of Correction for confinement in such state penal or correctional institution or facility as the Bureau of Corrections shall determine and shall be delivered to the western correctional diagnostic and classification center located at the state correctional institution at Pittsburgh. Now, you have the right to file motions challenging the propriety of this sentence. You also have the right to file a motion to modify this sentence which shall be in writing and filed with the sentencing court. Such motions must be filed within ten years. You are entitled to be represented by counsel in preparing and litigating such motions.”

Sentencing Transcript at 2-4.

In the instant case, the sentencing proceeding was defective because the trial court’s statement of reasons concerning the character of the accused and the circumstances of the offense “fall short of complying with the dictates of Commonwealth v. Riggins, supra.” Commonwealth v. Bryner, 285 Pa.Super. at 309, 427 A.2d at 237.

The evidence indicative of the character of the accused, was referred to by defense counsel when he stated that appellant had no prior record, had been employed, and successfully completed his G.E.D. program. To this remark, the trial court said that he considered appellant’s “past arrest history” and his “good behavior at the Butler County Prison.” Sentencing Transcript at 2-3. These references made by the trial court were not sufficiently detailed. See Commonwealth v. Taylor, 290 Pa.Super. 362, 363, 434 A.2d 794, 795 (1981) (“the decisions of our court and the Supreme Court insist that the trial judge explain in detail the reasons for the sentence imposed____”) (Emphasis added). Furthermore, arguments of counsel are not a substitute for dispensing with a statement of reasons to be made by the trial court. See Commonwealth v. Bryner, supra.

In his brief, appellant contends that:

“the pre-sentencing investigation contains information the trial [jjudge never should have considered, such as an unsupported and detailed allegation by an unidentified and unqualified ‘expert’ that [djefendant ‘failed’ a polygraph examination concerning unstated, but assertedly ‘relevant’, questions____ In the same vein, the pre-sentence investigation contained allegation(s) by unidentified hearsay informants that [djefendant had earlier been charged with certain other offenses.”

Brief for Appellant at 22.

We are unable to examine the merits of appellant’s claims because the trial court failed to state on the record what information it was relying upon when it imposed appellant’s sentence. In fact, no mention is made of a presentence investigation. As a result, we are unable to state whether the trial court “relpedj on full and accurate information.” Commonwealth v. Bryner, 285 Pa.Super. at 308, 427 A.2d at 237.

Although the trial court did state in its opinion that “the court found the [appellant’s] criminal record to be basically favorable, and did not consider the polygraph tests at all,” trial court’s opinion at 12, this statement cannot cure an otherwise deficient record. See Commonwealth v. Mullen, 321 Pa.Super. 19, 24, 467 A.2d 871, 874 (1983); Commonwealth v. Taylor, 290 Pa.Super. at 364 ftn. 3, 434 A.2d at 795 ftn. 3.

The reason why we have insisted upon requiring the trial court to articulate its reasons at the time of sentence is because

“without a statement of reasons at the time of sentencing, the defendant lacks an opportunity at that time to bring to the court’s attention any erroneous facts or conclusions upon which it may have relied and is unable thereafter to file a petition for resentencing challenging, the court’s reasons for imposing sentence. Young, supra, at [272 Pa.Super.] 84, 414 A.2d at 681.
Additionally, in our Concurring Opinion to Young, we noted four major policy reasons of American Bar Association Standards, Appellate Review of Sentences, for the holding in Riggins.
First, the requirement will force the trial judge to focus on the exact issues involved and improve the rationality of the sentence imposed. Second, a statement of the reasons will be of value to the correctional institution to which defendant is committed. The statement can help the administration place a particular person in the proper program as far as possibilities for rehabilitation are concerned. Third, the statement of reasons may be therapeutic to the defendant. Although such a statement should not be bitter or berating, the defendant should be advised of why a judge has decided upon a certain course of conduct in his sentencing procedure. Fourth, a statement of reasons on the record is essential for our appellate review of the case. Id. § 2.3, Comment e, pp. 44-47 (1967), in Young, supra, 272 Pa.Superior Ct. at 86, 414 A.2d at 681-2.”

Commonwealth v. Mullen, 321 Pa.Super. at 24, 467 A.2d at 874.

At the same time, however, that the trial court stated in its opinion that it “did not consider the polygraph tests at all”, the trial court went on to say that “information used by the trial court in sentencing need not necessarily meet the standards of admissible evidence at trial. Commonwealth v. Shoemaker, 226 Pa.Superior Ct. 203, 313 A.2d 342 (1973); Com. ex rel. Hendrickson v. Myers, 393 Pa. 224, 144 A.2d 367 (1958).” Trial Court’s Opinion at 12. Although we recently have reaffirmed this principle, we also have said that “a sentencing judge may neither request nor consider the results of a polygraph examination in imposing sentence.” Commonwealth v. Puchalski, 310 Pa.Super. 199, 210, 456 A.2d 569, 575 (1983).

In the instant case, the trial court did state that he had “considered [appellant’s] rehabilitative needs ... the need of protection of the public ... the alternatives in sentencing such as probation, total or partial confinement, a fine, or just plain guilt without any further court action.” Sentencing Transcript at 3. However, these boilerplate reasons also are insufficient to rescue this deficient record. In a similar case, we commented:

“the boilerplate reasons listed by the trial court ... fall far short of ‘reasoned basis’ discussed by the Riggins court. Although the trial court at sentencing alluded to all the important considerations that are involved in sentencing a defendant, it gave no consideration of how these considerations applied to appellant. In short, this record does not supply this Court with sufficient information for a meaningful review of the sentence imposed. See Commonwealth v. Fisher, 261 Pa.Super. 82, 395 A.2d 953 (1978); Commonwealth v. Fornataro, 257 Pa.Super. 399, 390 A.2d 1297 (1978).”

Commonwealth v. Mahan, 271 Pa.Super. 396, 398, 413 A.2d 725, 726 (1979).

Appellant next contends that the crime of simple assault and rape merge for purposes at the time of sentencing. We also must reject this argument. See Commonwealth v. Jones, 274 Pa.Super. 162, 418 A.2d 346 (1980), cert. denied Jones v. Pennsylvania, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980).

Appellant has raised a number of other issues in this direct appeal. He contends that (1) the trial court erred when it denied appellant access to hospital records of the prosecutrix’s commitment for mental and/or drug rehabilitation; (2) the trial court erred in denying appellant motion for a new trial and in arrest of judgment; and (3) the appellant was denied the effective assistance of counsel.

To begin with, the trial court only considered those issues that appellant had raised in post-verdict motions because it stated the following:

“The defendant retained different counsel, who filed ‘post-sentencing motions’, seeking a reduction in sentence. The court treated the motion as one to modify sentence, and denied it without a hearing pursuant to Pa.R.Crim.P. Rule 1410 and its official commentary. Commonwealth v. Ziomek, 291 Pa.Superior Ct. 251, 435 A.2d 894 (1981). The defendant, through his new counsel, appealed ‘from the sentence ... and from the underlying conviction.’ The defendant was ordered to forthwith file a concise statement of the matters complained of on the appeal pursuant to Pa.R.A.P., Rule 1925(b). The order has not been complied with, and the court can only address those issues which it can effectively review, i.e., those raised in the original counsel’s motions for a new trial and in arrest of judgment and in the new counsel’s post-sentencing motions, all other issues being deemed waived. Commonwealth v. Crowley, 259 Pa.Superior Ct. 204, 393 A.2d 789 (1978).”

Trial Court’s Opinion at 1-2. (Footnote added).

Because appellant’s claim that the trial court erred when it denied appellant access to records of the prosecutrix’s commitment for mental and/or drug rehabilitation was addressed adequately by the trial court’s opinion, there is no need to comment further.

With respect to appellant’s claim that a motion for a new trial should not have been denied, appellant states that a new trial could have been granted considering the grounds stated in his motion and other grounds and in view of the prosecutor’s prejudicial remarks. The trial court properly disposed of the grounds appellant raised in his motion for a new trial, with the exception of the sentencing issue which we have previously discussed. However, because the conduct of the prosecutor was not raised at the post-verdict motion stage, that claim is waived. See Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Appellant additionally raises a number of ineffectiveness issues which occurred at the pre-trial, trial, and sentencing stages. In view of our disposition, we need not address the ineffectiveness issues which appellant states occurred at the sentencing stage. However, we note that the other ineffectiveness issués are not addressed either in the prosecution’s brief or in the trial court’s opinion. However, because appellant is represented by new counsel on appeal and because this direct appeal is “the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represents the defendant,” Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977), the trial court on remand should allow appellant an opportunity to address these issues in the interest of judicial economy. Otherwise, judicial delay would result since appellant could file a PCHA petition contending that appellate counsel was ineffective for failing to preserve certain issues pursuant to Rule 1925(b). We reiterate that the record at this stage is insufficient to resolve the issues appellant raises since the prosecution has not addressed the issues in its brief and also because the manner in which they were framed in appellant’s brief were not sufficient to apprise this Court of the facts involved.

Accordingly, the judgment of sentence is vacated and the matter is remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

If counsel is found to be ineffective, then a new trial should be granted.

If counsel is not found to be ineffective, appellant should be re-sentenced.

ROWLEY, J., files a concurring and dissenting opinion.

ROWLEY, Judge,

concurring and dissenting:

I agree with the majority that the record is inadequate to determine the merits of appellant’s claims of ineffective assistance of trial counsel. Therefore, the case should be remanded to the trial court for an evidentiary hearing on that issue.

I also agree with the majority’s disposition of the other issues raised in this appeal, with the exception of the sentencing question.

I do not agree that the court failed to comply with Riggins at sentencing. The court need not specifically refer to the sentencing code so long as it is clear that the court did consider and apply those guidelines. Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980). In this case, it is clear to me that the court considered the sentencing guidelines. Furthermore, the court’s statement of reasons for the sentence imposed is more than adequate. See Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982).

' The court was informed by appellant’s counsel that appellant had no prior record, had been continuously employed and was a model prisoner. In imposing sentence, the court stated that it had considered appellant’s past arrest history, bis good behavior in prison and his rehabilitative needs. However, it had also considered the seriousness of the offenses, the need of the public for protection, and the use of violence against the victim. The court concluded that any lesser sentence would deprecate the seriousness of the offenses and that appellant was definitely in need of correctional treatment that could best be provided in a state institution. I do not agree that this statement of reasons “fall(s) short of complying” with Riggins.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 2701.

      . Additionally, we note that the trial court failed to articulate its reason for dispensing with a pre-sentence report. Id., 285 Pa.Superior Ct. at 309 ftn. 2, 427 A.2d at 238 ftn. 2. Although one might have been used by the trial court, we are unable to make such a conclusion because the record of this Court does not contain such a report and the trial court never referred to the presence or absence of this report. Hence, on remand, this error should be corrected. Id.

        . Rule 1925(b) of our Appellate Rules provides:
      (b) Direction to file statement of matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of. Our Supreme Court has applied this rule and said that the "[t]he
      waiver provision of Rule 1925(b) is clearly discretionary.....The waiver provision of the Rule is properly invoked only where failure to file a statement or omission from a statement of issues raised on appeal defeats effective appellate review.” Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982).

      . Appellant was represented by his trial counsel at the time the court ruled on his motion for a new trial. Appellant’s new counsel only represented him on his motion to modify sentence which the court denied without a hearing. As a result, this is the first stage at which appellant could have challenged the underlying conviction upon which his sentence was based.


author: BROSKY, Judge:

text:
    469 A.2d 212
    Anne ZIMMERMAN, v. Ivan ZIMMERMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1983.
    Filed Nov. 25, 1983.

      Robert W. Kurland, West Chester, for appellant.
    Anne Zimmerman, in propria persona.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This case is before us following the grant of summary judgment to appellee Anne Zimmerman, the plaintiff below. Mrs. Zimmerman instituted the action to recover sums which she claims are owed to her by virtue of a divorce judgment granted by the Supreme Court of New York. That decree severed the marriage of the parties to this action and directed the payment by appellant to appellee of the sum of $50 per week as alimony and $30 per week for the maintenance of the couple’s minor child. Mrs. Zimmerman contends that appellant failed to pay alimony for the period 1975 to April 1, 1978 in the total amount of $7,290.00. She sought summary judgment on that claim as well as claims to medical expenses and a sum to recompense her for her counsel fees which she argues are due her under the terms of a stipulation entered into by the parties.

Appellant filed no response to the motion for summary judgment, but in New Matter filed in response to appellee’s complaint, he denied liability on the grounds that his obligations to his former wife had been discharged by reason of his having been declared bankrupt.

The lower court rejected this argument finding that the debt to Mrs. Zimmerman lies in the nature of alimony, maintenance or support and was therefore non-dischargeable pursuant to the terms of the Bankruptcy Act, 11 U.S.C. § 523(a)(5).

The sole issue before us is whether the lower court erred in finding that there is no genuine issue of material fact as to appellant’s liability. Because we believe that the lower court did not have before it sufficient information to determine the nature of appellant’s obligation, we reverse and remand for further proceedings.

It is well settled that summary judgment is to be entered only in the clearest of cases where there, is no doubt as to the absence of a triable issue of fact. William J. Heck Builders, Inc. v. Martin, 315 Pa.Super. 395, 462 A.2d 253 (1983); Dippold v. Amherst Insurance Co., 290 Pa.Super. 206, 208, 434 A.2d 203, 204 (1981). The burden of demonstrating that there exists no genuine issue of material fact rests on the moving party. William J. Heck Builders, Inc. v. Martin, supra; Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977). The record is to be read in the light most favorable to the non-moving party. William J. Heck Builders, Inc. v. Martin, supra.

Pa.R.C.P. 1035(d) provides that
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

See also Amabile v. Auto Kleen Car Wash, supra.

Appellant filed no response even though Mrs. Zimmerman filed an affidavit in support of her motion. Nevertheless, we decline to uphold the grant of summary judgment. In Marchese v. Marchese, 457 Pa. 625, 630, 326 A.2d 321, 322 (1974) our Supreme Court explained:

The mere fact that a party, fails to submit counter-affidavits does not automatically render summary judgment appropriate under Rule 1035(d) or Phaff [Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973) ]. It is preliminarily imperative that the moving party’s affidavit evidence clearly dispel the existence of any general factual issue as required by Rule 1035(b). We hold that the affidavits submitted by appellees do not satisfy this requirement. Thus, the present situation is more appropriately governed by the maxim that doubtful cases should go to trial.

Similarly, we conclude that the affidavit submitted by appellee does not dispel the existence of any genuine issue of material fact.

In her affidavit appellee describes the alimony and maintenance orders entered by the New York Court and in fact, a copy of the decree is attached to the affidavit. Attached also is a copy of a stipulation which is undated, but which was apparently entered into pursuant to the divorce action. That stipulation provides that after the payment of certain fees, the proceeds from the sale of a jointly owned residence are to be given to appellee; that the furnishings and personal property in the residence are to be given to appellee; that appellant is to pay to appellee a sum in satisfaction of her counsel fees and “other claims”; that appellant is to make payments on a vehicle in the possession of appellee; that alimony and maintenance be paid by appellant in the sums of $50 and $30 per week respectively; and, that as part of alimony and child support, that appellant provide medical coverage to appellee and the minor child. The stipulation also contained other provisions not relevant here.

The Bankruptcy Act provides at 11 U.S.C. § 523 “Exceptions to Discharge” as follows:

(a) A discharge under section 727, 1141 or 1328 (b) of this title does not discharge an individual debtor from any debt—
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement, but not to the extent that—
(b) such debt includes a liability designated as alimony, maintenance or support, unless such liability is actually in the nature of alimony, maintenance or support.

What constitutes alimony, maintenance or support is to be determined according to federal bankruptcy law, not state law. Matter of Lesher, 20 B.R. 543 (Bkrtcy.1982); In Re: Burchett, 22 B.R. 818 (Bkrtcy.1982); In Re: Brace, 13 B.R. 551 (Bkrtcy.1981).

The case of In Re: Thomas, 21 B.R. 571 (Bkrtcy.1982) presented the U.S. Bankruptcy Court with the question of whether mortgage payments which a debtor is obligated to pay pursuant to a divorce decree are part of the property settlement and dischargeable or whether they are in the nature of alimony or support and therefore non-dischargeable.

The Court explained that the burden of proving that the payments were in the nature of alimony rested on the plaintiff. If she made out a prima facie case, the debtor would then have to show that he is entitled to a discharge.

The Court outlined the test to be applied in determining the nature of the debt in the following terms:

In determining whether the debt in question is in the nature of support or a property settlement, the substance of the liability must be examined, rather than the form. In short, one must look beyond the four corners of the document, especially for evidence of the relative financial needs and abilities of the parties.

See also In Re: Burchett, supra; Van de Zande v. Van de Zande, 22 B.R. 328 (Bkrtcy.1982) (consider the form of the award and whether, according to the parties’ circumstances, the need for support exists).

In her complaint appellee sought recovery of $7,290.00 in arrearages for the “alimony” and “maintenance” weekly payments; $3,500.00 in payment of her counsel expenses and “any other claims”; and $1,950.00 in medical expenses.

In her motion for summary judgment appellee again alleged the $7,290.00 in support and maintenance arrearages. She claimed that appellant was in arrears in payments due under the terms of the stipulation, but she was not clear as to when payments had not been made, except that she contended that insurance coverage had not been provided as required by the agreement.

In the affidavit in support of her motion, appellant outlined the $7,290.00 figure and also listed as due her $2,307.80 for payment of medical expenses. Although she again mentioned the $3,500.00 counsel fee figure, it was not included in the total which she claimed was due. That figure represents only $7,290.00 and $2,307.80 for a total of $9,597.80.

It is clear that the complaint, motion and affidavit all claimed different sums were owed by appellant. The order granting the motion (which did not contain a total figure) provided that the Prothonotary was to enter judgment in favor of appellee and against appellant “in the amount prayed for.”

At all times appellee sought $7,290.00 for payment of alimony and maintenance which had been awarded in the New York decree. While the record is devoid of any evidence as to the circumstances surrounding that award or as to the relative financial positions of the parties, we are inclined to agree with appellee and the lower court that these payments truly are in the nature of support and therefore are not dischargeable.

In Van de Zande v. Van de Zande, supra, the court looked at the following circumstances in determining whether an award represented support or a property settlement. The court observed that the award looked more like a property settlement than alimony payment because it was to be made in a lump sum and was not terminated upon remarriage or death, as alimony payments are. Also, there was in that case no mention of the need for support by the divorce court.

In contrast, the decree in the instant case provided for weekly payments to appellant’s wife and child to terminate upon death or remarriage. The decree specifically awarded $30 per week for the maintenance of the child.

We find appellee to have adequately shown the weekly payments to be in the nature of alimony and maintenance and affirm the award of summary judgment in the amount of $7,290.00. We find the record less clear as concerns the other claims.

We note first that we are unable to determine exactly what was awarded to appellee, given the inconsistencies in the complaint, motion and affidavit. For that reason alone we would remand for entry of an order specifying on what claims summary judgment was entered. Furthermore, the record does not contain sufficient information to discern the nature of those claims.

Appellee apparently sought recovery of $3,500.00 which the stipulation provided she should receive as payment of her counsel fees and “other claims.” While attorney fees may be recoverable if they are closely associated with a support order, (See Stanzione v. Stanzione, 27 B.R. 187 (Bkrtcy.1982)), we do not know what the “other claims” are and whether they represent a property settlement or support. In short, summary judgment should not have been entered as to this claim since the record is unclear as to its nature.

We are likewise unsure of the basis of appellee’s claim that she should be reimbursed for her medical expenses. We find no provision in the decree or stipulation that refers to the payment of medical expenses. Nor can we assume that the expenses would have been covered by medical insurance had it been provided. To the contrary, it seems at least possible that some of these expenses would not have been covered by insurance. We find no basis in the record for this award. Summary judgment as to medical expenses would be improper based on the present record.

The order granting summary judgment is affirmed as to the $7,290.00 sum, but reversed as to any other relief claimed by appellee and the case is remanded for further proceedings on those claims. We do not retain jurisdiction.

      . Although appellee filed no brief with this Court and neither party challenges our jurisdiction to consider the effect of the bankruptcy, we note that the Advisory Committee Note to Bankruptcy Rule 4007 states that jurisdiction over the issue of the dischargeability of a debt like the one before us is held concurrently by the bankruptcy court and any appropriate non-bankruptcy forum.

      . Appellee claims that contrary to the terms of the stipulation, appellant has failed to provide medical insurance for her and the parties’ minor child. Since no relief was asked with regard to this alleged deficiency, we assume the summary judgment did not cover it. We note also the U.S. Bankruptcy Court's decision in Willet v. Willet, 16 B.R. 75 (Bkrtcy.1981) in which the Court said that a requirement that children be maintained as beneficiaries of a life insurance policy does not involve a "debt” within the terms of the Bankruptcy Act. The Court therefore declined to make a determination of dischargeability.