author: POPOVICH, Judge:

text:
    476 A.2d 919
    Howard H. HUMPHRIES v. PITTSBURGH AND LAKE ERIE RAILROAD COMPANY, Consolidated Rail Corporation and the Baltimore & Ohio Railroad Company. Appeal of PITTSBURGH & LAKE ERIE RAILROAD COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1984.
    Filed April 27, 1984.
    Reargument Denied July 6, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Alan M. Shapiro, Pittsburgh, for appellant.
    John P. Gismondi, Pittsburgh, for appellee.
    David P. Helwig, Pittsburgh, for Consolidated, participating party.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Judgment of the Court of Common Pleas of Allegheny County, entered following an en banc Order denying appellant’s (Pittsburgh & Lake Erie Railroad Co.’s) motion for judgment non obstante veredic-to. Pa.R.App.P. 301(a). We affirm in a case of first impression.

On October 6, 1978, plaintiff-appellee (Howard H. Hum-phries) filed a complaint in trespass alleging, in relevant part, that:

THIRD: At all times relevant to this suit, the defendant[appellant] was a common carrier of freight for hire and by rail and was engaged in interstate commerce.
* * * * * *
FIFTH: Jurisdiction is conferred upon this court under and by virtue of the provisions of the Federal Employers’ Liability Act of Congress____
SIXTH: On or about May 19, 1978, at approximately 12:30 p.m., the plaintiff was performing his duties as a track laborer for the defendant on the defendant’s single main track, Mon River Bridge, Homestead, Pennsylvania. Plaintiff was engaged in work which was within the scope of his employment. The plaintiff, along with three other servants of the defendant, was using a rail stretcher to perform his assigned duties. During the course of this activity, a bolt that was attached to the rail stretcher broke and the plaintiff was caused to fall to the ground by reason of the defendant’s negligence with the result that the plaintiff suffered severe injuries and damages

In conclusion, a claim for damages in an amount in excess of $10,000.00 was sought.

Thereafter, following the disposition of various pretrial items (e.g., interrogatories, statements and depositions), the case proceeded to trial and a jury found for the plaintiff in the amount of $12,400.00. The plaintiff followed this with a submission of a motion seeking prejudgment interest pursuant to Pennsylvania Rule of Civil Procedure No. 238. The court entered an order that remolded the verdict by “adding delay damages in the amount of $3,203.00, reflecting a total award of $15,603.00.” What ensued was the filing of an appeal questioning the propriety of the award as to the delay damages.

More particularly, the issue preserved for our review concerns whether Pennsylvania’s Rule 238 may be invoked in a Federal Employers’ Liability Act suit heard in a court of common pleas. We believe it can be.

Our discussion starts with the proposition that state courts are forbidden from discriminating against a federal cause of action. This prohibition is manifested in the supremacy clause of Article VI of the United States Constitution, see Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947), and requires state courts to enforce federal law. Household Consumer Discount Co. v. Vespaziani, 490 Pa. 209, 415 A.2d 689 (1980). Since Congress has made available the state courts, as well as federal ones, for the vindication of that right, it is our task to determine whether federal or state law governs the resolution of a given question concerning the federally created cause of action. Id.

Instantly, this means that “[s]ince [Humphries’] claim arises under a federal statute, whether prejudgment interest will be allowed is initially a question of federal law and not the law of the forum state. See Wallis v. Pan American Petroleum Corporation, 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966); 1A Moore’s Federal Practice §§ 0.318, 0.323[12] (2nd ed. 1959).” Southern Pacific Co. v. Miller Abattoir Co., 454 F.2d 357, 362 (3rd Cir.1972).

Thus, we wish to emphasize that, albeit a federal court sitting in diversity must look to local law to determine the availability of prejudgment interest, see Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 855 (U.S.App.D.C.1981), cert. denied, 455 U.S. 994, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982), such is not the rule in cases arising under federal law. See Furtado v. Bishop, 604 F.2d 80, 97 (1st Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980). Applying this precept to the case sub judice, we find “[i]t has long been settled that questions concerning the measure of damages in an FELA action are federal in character. This is true even if the action is brought in state court.” (Citations omitted) Norfolk and Western Railway Co. v. Liepelt, 444 U.S. 490, 493, 100 S.Ct. 755, 757, 62 L.Ed.2d 689 (1980). Our own decisional law on the subject is not inconsistent with such a pronouncement. See, e.g., Hogarty v. Philadelphia & Reading Railroad Co., 255 Pa. 236, 240, 99 A. 741 (1916) (“The Federal Employers’ Liability Act of 1908 super-cedes the laws of the states upon all matters within its scope, and, in cases involving accidents to the employees of railroad companies, when engaged in interstate commerce, the state laws must be regarded as nonexistent.” (Citations omitted)); Snyder v. Penn Central Transportation Co., 296 Pa.Super. 69, 73, 442 A.2d 300, 302 (1982) (“In a F.E.L.A. case, federal rather than state law governs____”); Ignacic v. Penn Central Transportation Co., 291 Pa.Super. 431, 436 A.2d 192 (1981) (semble); see also Schnars v. Union Railroad Co., 410 Pa. 538, 189 A.2d 884 (1963) (Although under Pennsylvania law an employee could not sue his employer, such is not the case under federal law because of the Federal Employers’ Liability Act).

However, as is conceded by all concerned, and a review of the statute confirms this, the Federal Employers’ Liability Act makes neither a provision allowing nor forbidding prejudgment interest such as was awarded by the trial court here. Despite this absence of an unequivocal prohibition against interest in the Act itself, we have been directed to the general interest statute governing federal civil actions, 28 U.S.C. § 1961. See Murphy v. Lehigh Valley R. Co., 63 F.Supp. 928 (E.D.N.Y.1945). Section 1961 reads, in relevant part:

Interest shall be allowed on any money judgment in a civil case recovered in a district court____ Such interest shall be calculated from the date of the entry of the judgment, at the rate allowed by State law.

It is true that the preceding has been construed, in the context of the Federal Employers’ Liability Act in Louisiana & Arkansas Ry. Co. v. Pratt, 142 F.2d 847 (5th Cir.1944), to encompass post judgment interest, or, at the most, an award of interest tabulated from the date a verdict is rendered to the date judgment is entered. This fact has been seized upon by the defendant-appellant as the cornerstone for its proposition that the Act’s silence on the question of “interest”, even reading Section 1961 liberally, does not sanction the awarding of prejudgment interest. Id.

Although the Fifth Circuit’s position in Pratt has been followed in a number of state courts, we notice that most recently this stance, as it affects Section 1961 and federal causes of action in regard thereto, has been altered. For example, in Olsen v. Shell Oil Co., 708 F.2d 976 (5th Cir.1983), an employee brought suit against his employer under the Outer Continental Shelf Lands Act (OCSLA) for injuries he sustained while on the job. The employer contended, inter alia, that the district court should not have awarded prejudgment interest in light of Section 1961’s prohibition against same, and he cited a number of Fifth Circuit cases in support of the contention. Circuit Judge Patrick E. Higgenbotham, speaking for the Court, admitted that there existed a conflict in the circuit as to the law on this point.

In response to this diversity of opinion that had manifested itself in the circuit, the Court opted to renounce its former, unfavorable position on the issue of prejudgment interest and adopted, instead, a posture consonant with that espoused in Ellis v. Chevron U.S.A. Inc., 650 F.2d 94 (5th Cir.1981). In doing so, the Court made statements that are quite germane to the case at bar; viz.:

[I]n Ellis, an OCSLA wrongful death case, we upheld a denial of prejudgment interest once again, but only on the ground that the district court had “properly exercised its discretion.” 650 F.2d at 98. The panel there read 28 U.S.C. § 1961 as mandating postjudgment interest but also permitting prejudgment interest. Thus, it concluded that the district court “could have left intact its award of prejudgment interest if it found ‘other principles of law’ which justified the award ...” Id. (quoting Illinois Central Railroad Co. v. Texas Eastern Transmission Corp., 551 F.2d 943, 944 (5th Cir.1977).
We think Ellis is the better view. Ellis reads the federal interest statute as permissive on the matter of prejudgment interest; Berry [v. Sladco, Inc., 495 F.2d 523 (5th Cir.1974)] and Aymond [v. Texaco, Inc., 554 F.2d 206 (5th Cir.1977) ] read it as prohibitory. The problem with the latter reading is that 28 U.S.C. § 1961 governs all civil actions in federal district courts, Gele v. Wilson, 616 F.2d 146, 148 (5th Cir.1980), except diversity cases, Degelos Bros. Grain Corp. v. Fireman’s Fund Insurance Co. of Texas, 498 F.2d 1238, 1239 (5th Cir. 1974), yet prejudgment interest has frequently been awarded in nondiversity cases without express statutory authority (for example, suits in the admiralty). Indeed, Berry and Aymond appear to contravene the almost universal view that “section 1961 does not by its silence bar the awarding of prejudgment interest ...” Bricklayers Pension Trust Fund v. Taiariol, 671 F.2d 988, 989 (6th Cir.1982) (citing cases).
Ellis indicated that an award of prejudgment interest in an OCSLA case might be justified by “other principles of law. ” We think the Louisiana statute providing for interest from the date of judicial demand, La.Rev.Stat. § 13:j203, is such a principle. Accordingly, we hold that where, as here, a district court awards prejudgment interest to a prevailing OCSLA plaintiff whose remedy is based on surrogate state law, the award should not be disturbed on appeal if supported by that state law.
This holding, we believe, is consistent with the precepts of Rodrigue [v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969)] and [Chevron Oil Co. v.] Huson, [404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)]. Prejudgment interest, and inflationary measures, ought to be regarded as integral to each other and to the state law remedy, particularly when the final judgment is being entered, as it is here, more than a decade after the suits were originally filed. See General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-656 n. 10, 103 S.Ct. 2058, 2062-2063, 76 L.Ed.2d 211 (1983). (Emphasis added) (Footnote omitted)

708 F.2d at 984. We read Olsen to endorse the awarding of prejudgment interest to a plaintiff, who sues under a federal statute, when the remedy is based upon and supported by the state law where the district court sits. This would seem to sound the death knell, sub silentio, for Pratt, since Pratt also dealt with a cause of action premised upon a federal statute (FELA) that relied upon 28 U.S.C. § 811 (now Section 1961) to conclude that a Louisiana law on prejudgment interest did not apply to avail the plaintiff the opportunity to secure interest from the date of judicial demand, i.e., the date suit was filed in federal court.

Drawing such a corollary from Olsen is not at odds with, and in fact seems to have been forecasted by, two United States Supreme Court rulings, Louisville & Nashville Railroad Co. v. Stewart, 241 U.S. 261, 36 S.Ct. 586, 60 L.Ed. 989 (1916) and Massachusetts Benefit Association v. Miles, 137 U.S. 689, 11 S.Ct. 234, 34 L.Ed. 834 (1891).

In Stewart, a cause of action under the FELA was brought in state court against the railroad company for negligently causing the death of the plaintiffs intestate, her husband. Two trials took place in which a lesser amount was obtained by the plaintiff after the second proceeding. Because a review by the state court proved unsatisfactory to the railroad company and plaintiff, cross-appeals were filed to the Supreme Court. The railroad company complained that, among other things, the Kentucky court of appeals was not authorized to add 10% in damages to the amount of the award. In dismissing this averment, the Stewart Court held:

The first of the other objections is that the court of appeals was not authorized to add 10 per cent damages on the amount of the judgment, as it did. But the railroad company obtained a supersedeas, and the law of the state makes 10 per cent the cost of it to all persons if the judgment is affirmed. There was no obligation upon the state to provide for a suspension of the judgment, and nothing to prevent its making it costly in cases where ultimately the judgment is upheld. So, the state may allow interest upon a judgment from the time when it is rendered, if it provides appellate proceeding and the judgment is affirmed, as, but for such proceedings, interest would run as of course until the judgment was paid.

241 U.S. at 263, 36 S.Ct. at 588. Accord Louisville & N.R. Co. v. Holloway, 246 U.S. 525, 38 S.Ct. 379, 62 L.Ed. 867 (1918); Locke v. Allstate Insurance Co., 696 F.2d 1340 (11th Cir.1983) (Alabama 10% damages added to unsuccessful appeal regarding money judgment).

In Miles, the Supreme Court was elaborating upon the precursor to 28 U.S.C. § 1961, Section 966 of the Revised Statutes, originally enacted August 23, 1872, c. 118, § 8 (5 St. at Large, 518), and its scope of authority in the area of prejudgment interest; more succintly, assimilating into the federal statute state laws that condone the entry of “interest upon verdicts.” It stated its approval in the following terms:

At common law neither verdicts nor judgments bore interest; but by Revised Statutes, § 966, “interest shall be allowed on all judgments in civil cases, recovered in a circuit or district court, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the law of the state in which such court is held, interest may be levied under process of execution on judgments and recovered in the courts of such state, and it shall be calculated from the date of the judgment, at such rate as is allowed by law on judgments recovered in the courts of such state.” Did the case rest solely upon this statute, it is difficult to see how interest could be computed upon this verdict, inasmuch as the specific allowance of interest upon judgments would seem to exclude the inference that interest should be allowed upon verdicts before judgment. But by an act of the legislature of Pennsylvania, passed in 1859, it is declared to “be lawful for any party or parties in whose favor any verdict may be rendered for a specific sum of money to collect and receive interest upon such sum from the date of the verdict; and every general judgment entered upon such verdict, whether by a court of original jurisdiction or by the supreme court, shall be deemed and held to be a judgment of the sum found by the verdict, with interest thereon from the date of such finding.” We regard this statute as settling the question in favor of our jurisdiction. Section 966, while providing only for interest upon judgments, does not exclude the idea of a power in the several states to allow interest upon verdicts, and, where such allowance is expressly made by a state statute, we consider it a right given to a successful plaintiff of when he ought not to be deprived by a removal of his case to the federal court. The courts of the state and the federal courts sitting within the state should be in harmony upon this point. Both in Holden v. Trust Co., 100 U.S. 72 [25 L.Ed. 567], and in Ohio v. Frank [103 U.S.] 697 [26 L.Ed. 531] it was held that the question of interest is always one of local law. (Emphasis added).

137 U.S. at 691, 11 S.Ct. at 235.

Instantly, we are confronted, as was the Court in Miles, with assessing the impact of a Pennsylvania law (Rule 238 here, an 1859 statute there) upon the general interest statute governing federal actions. Consistent with the thinking implicit in Miles, we favor an approach that does not exclude the idea, notwithstanding Section 1961’s reference to interest on judgments only, of a state, which in our case would be the judiciary by constitutional mandate, promulgating a rule of law that permits the recoupment of prejudgment interest. In point of fact, our Supreme Court has done just that by forging Rule 238 into use. Thus, as did the Court in Miles, we equate this with a right given to a successful plaintiff, of which he ought not to be deprived of by an overly constrained reading of a federal statute on the subject of interest. And, “[t]he courts of the state and the federal courts sitting within the state should be in harmony upon this point.” Massachusetts Benefit Association v. Miles, supra, 137 U.S. at 691, 11 S.Ct. at 235. We think it not too presumptuous to remark that we are at the cross-roads on this issue, given the Third Circuit’s endorsement of Rule 238 by the district courts sitting in Pennsylvania hearing diversity cases. See Jarvis v. Johnson, 668 F.2d 740 (3rd Cir.1982) and Osborne v. Baker, 528 F.Supp. 387 (W.D.Pa.1981).

At this stage it also requires mention that even the author of the Pratt decision, which seems to be the polestar for defendant’s denunciation of Rule 238, refused to give the federal statute such a judicial glossing that it could not be read to accommodate “interest after verdict.” This is borne out by the following:

State statutes are superseded by the Federal Employers’ Liability Act only in so far as they are in conflict therewith, and said Liability Act does not legislate upon interest after verdict; hence it is not in conflict with any state statute that allows interest from the verdict. State and federal courts exercise concurrent jurisdiction over causes arising under the Federal Employers’ Liability Act; interest is essentially a question of local law; and, for purposes of harmony and uniformity of administration, state statutes relating to interest should be applied whenever it is practicable to do so. (Footnotes omitted)

142 F.2d at 849-850.

We believe that the logic expressed in the preceding passage comports with the thinking of the United States Supreme Court in Stewart and Miles, which is that Section 1961 “does not exclude the power in several states to allow [prejudgment] interest ... where such allowance is expressly made by a state statute ____” Massachusetts Benefit Association v. Miles, supra, 137 U.S. at 691, 11 S.Ct. at 235. In accordance therewith, we find it proper for the Commonwealth to provide for prejudgment interest against those defendants who make no attempt to settle a dispute or whose offer falls 25% short of the award secured by the plaintiff at trial. Cf. Louisville & Nashville Railroad Co. v. Stewart, supra. In either instance, under the rationale initially expressed in Miles, paraphrased in Stewart and undeniably evident in both Olsen and Pratt, Section 1961 is neither affronted nor contravened, but, rather, coexists harmoniously with Rule 238.

Accordingly, after assiduously scrutinizing the subject at hand in adherence with accepted practice, see Rodgers v. United States, 332 U.S. 371, 68 S.Ct. 5, 92 L.Ed. 3 (1947); Household Consumer Discount Co. v. Vespaziani, supra, we conclude that while the FELA does not fix the rate of prejudgment interest, the allowance of such interest pursuant to Rule 238 comports with our understanding of the federal decisional law on the matter. See Reed v. Director General of Railroads, 267 Pa. 86, 89, 110 A. 254 (1920) (“the Supreme Court of the United States ... is, of course, the final arbiter in construing the Federal Employers’ Liability Act[.]”); cf. Royal Indemnity Co. v. United States, 313 U.S. 289, 297, 61 S.Ct. 995, 998, 85 L.Ed. 1361 (1941) (“While the New York statute fixing the rate of interest is not controlling, the allowance of interest does not conflict with any state or federal policy and we think that in the circumstances of this case a suitable rate is that prevailing in the state where the obligation was given and to be performed.” (Citations omitted)).

Further, we believe that cases which declare that the acts of Congress supersede all state legislation on the subject of liability of railroad companies to their employees have nothing to do with the matter at hand. The Pennsylvania procedural rule does not meddle with that. It deals only with interest on the monetary loss resulting from the damage or injury “compute[d] ... from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the ... verdict or decision [at 10% per annum.]” Pa.R.Civ.P. 238(a)(1) & (2). Additionally, it cannot be seriously contended that Congress did not anticipate suits in state courts on the question of interest under the FELA. Given Section 1961, and its interpretation by the federal courts, it seems plausible that Congress contemplated and accepted state procedure in advance. See Louisville & Nashville Railroad Co. v. Stewart, supra; Massachusetts Benefit Association v. Miles, supra; see generally Dickinson v. Stiles, 246 U.S. 631, 38 S.Ct. 415, 62 L.Ed. 908 (1918); Note, Prejudgment Interest: An Element of Damages Not to be Overlooked, 8 Cumberland L.Rev. 521 (1977).

Therefore, we do not perceive the Pennsylvania rule to be adverse to federal policy, for a state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to secure prejudgment interest. See Robertson v. Wegmann, 436 U.S. 584, 593, 98 S.Ct. 1991, 1996, 56 L.Ed.2d 554 (1978). Remaining with this subject for a little longer, we wish to respond to defendant-appellant’s prophecy that if we were to sanction the use of prejudgment interest we would pervert the “uniform” application of the FELA, which is essential to effectuate its purpose. See note 8, supra. In answer, we firmly believe that whatever the value of nationwide uniformity in a particular area of the law may be, e.g., FELA, where Congress has not spoken clearly, state law will often provide the content for the federal remedial rule. No less is this true here, where Congress makes reference in Section 1961 to state law in fixing the rate of interest on judgments. See Turner v. Japan Lines, Ltd., 702 F.2d 752, 757 (9th Cir.1983). Consequently, this statutory reliance upon state law obviously means that there will not be nationwide uniformity on this issue. See Robertson v. Wegmann, supra, 436 U.S. at 593 n. 11, 98 S.Ct. at 1997 n. 11; cf. Klaxon Co. v. Stentor Electric Mfg. Co., supra, 313 U.S. at 496, 61 S.Ct. at 1022.

Notwithstanding the aforesaid, as touched upon earlier in this Opinion, the Third Circuit’s acceptance in Jarvis v. Johnson, supra, of Rule 238 as a “substantive” appendage to Pennsylvania law goes a long way to discount defendant-appellant’s prophetic remarks, at least in this jurisdiction. Cf. Murphy v. Lehigh Valley R. Co., supra, 63 F.Supp. at 930 (“The Court of Appeals has refused to apply the State statute dealing with interest (in that case New York State Decedent Estate Law § 132, Consol.Laws N.Y. c. 13); and if the federal courts follow the statute applicable, 28 U.S.C.A. § 811 [now 28 U.S.C. § 1961], then, at least in New York, there will be harmony between the forms of judgment in the State and federal courts in cases under the [F]ederal Employers’ Liability Act.”).

Based on the above, we deem it unnecessary to embark on an extended discussion of the procedural/substantive dichotomy that has pervaded the courts of this land since the Supreme Court’s decision in Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). See, e.g., Moore-McCormack Lines v. Amirault, 202 F.2d 893, 896-897 (1st Cir.1953); Hill, Substance and Procedure in State FELA Actions — The Converse of the Erie Problem?, 17 Ohio St.L.J. 384 (1956).

Judgment affirmed.

      . Pennsylvania Rule of Civil Procedure No. 238 provides, in pertinent part:
      [I]n an action seeking monetary relief for bodily injury, death, or property damage, or any combination thereof, the court or the arbitrators ... shall
      (1) add to the amount of compensatory damages in the ... verdict of the jury ... damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict, or decision;
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of the action, which ever is later, up to the date of the award, verdict, or decision.
      ******
      Except as provided in subdivision (3), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in this action.
      ******
      (e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.

      . To the extent that the defendant demands that this Court resolve the constitutionality of Rule 238, we decline the invitation. Since this issue was not presented to the court below, we find the issue waived. See Benson v. Penn Central Transportation Co., 463 Pa. 37, 41, 342 A.2d 393, 395 (1975). However, we do note that this question has been ruled upon in a manner that is not favorable to the defendant. See Marks v. Mobil Oil Corp., 562 F.Supp. 759 (E.D.Pa.1983).

      . 45 U.S.C. § 51 et seq. (hereinafter referred to as the Act or FELA).

      . The Federal Employers’ Liability Act, which imposes liability upon railroad companies engaged in interstate commerce for injuries or wrongful death of their employees, provides that jurisdiction of the federal courts over actions brought under the Act shall be concurrent with that of the courts of the several states. 45 U.S.C. § 56.

      . Accord Robinson v. Watts Detective Agency, 685 F.2d 729, 741 (1st Cir.1982) ("Because Count I of the complaint stated a cause of action arising under the Bankruptcy Act, whether or not the trustee is entitled to prejudgment interest as an element of damages is a matter of federal law.” (Citations omitted)); Moore-McCormack Lines, Inc. v. Amirault, 202 F.2d 893, 896 (1st Cir.1953) (In discussing prejudgment interest, the court observed that "quite a different situation is presented when action is brought on a claim arising under federal, not state, law. See Brooklyn Savings Bank v. O’Neil, 1945, 324 U.S. 697, 714-716, 65 S.Ct. 895 [905-907], 89 L.Ed. 1296[.]”); cf. Unique Systems, Inc. v. Zotos International, Inc., 622 F.2d 373, 381 (8th Cir.1980) (Interest was allowed on a debt before it was reduced to judgment "[i]n this diversity case where the right of action ar[o]se[ ] under state law ....”).

      . It is to be observed that our Supreme Court in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 66, 436 A.2d 147, 154 (1981), remarked, as to Rule 238, "[although the award for delay of time may be ‘in the nature of interest,’ in reality, it is merely an extension of the compensatory damages necessary to make a plaintiff whole.” This, of necessity, undermines plaintiff-appellee's argument that "equating interest with damages is erroneous” and that "Rule 238 interest — apart from other prejudgment interest rules — is not compensatory and, as such, should not be considered to be an element of ‘damages’ as that term is commonly used.” (Appellee’s Brief at 3 & 8)

      . Section 1961 was amended April 2, 1982, Pub.L. 97-164, Title III, § 302(a), 96 Stat. 55; September 13, 1982, Pub.L. 97-258, § 2(m)(l), 96 Stat. 1062; January 12, 1983, Pub.L. 97-452, § 2(d)(1), 96 Stat. 2478. However, because of the dates of the amendments, no more need be said than that they do not impact on the 1978 cause of action here.

      . Wicks v. Central Railroad Company of New Jersey, 129 N.J.Super. 145, 322 A.2d 488 (1974), cert. denied, 66 N.J. 317, 331 A.2d 17 (1974) (Citing a New York case and other circuit court decisions). Accord Felder v. Union Pacific Railroad Co., 660 P.2d 911, 914-915 (Colo.App.1982) (Prejudgment interest may not be awarded in a Federal Employers' Liability Act case); Bennett v. Atchison T. & S.F. Ry. Co., 187 Iowa 897, 174 N.W. 805, 807 (1919) (The action of the court in refusing to allow interest before judgment affirmed); contra Leitch v. Chesapeake & O. Ry. Co., 97 W.Va. 498, 125 S.E. 370, 373-374 (1924); Sweet v. Chicago & N.W. Ry. Co., 157 Wis. 400, 147 N.W. 1054, 1058 (1914) (“Where an act of Congress [FELA] commits to the state court the duty of trying cases arising thereunder such cases may be tried according to the state rules of procedure.”).

      . We would like to mention that Rule 238 has been referred to by our Supreme Court, in the course of sustaining its constitutional authority to enact same, in procedural terms. Yet, it has not been labelled as being totally devoid of substantive attributes. See Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). On the other hand, the Third Circuit, in Jarvis v. Johnson, 668 F.2d 740 (3rd Cir.1982), has viewed Rule 238 as substantive in nature, and, therefore, applicable in federal diversity suits under the Erie doctrine. We point this out to show that the line of demarcation between what is procedural vis-a-vis substantive is not static and requires analysis under the particular case to make such a determination. See Anno., Comment note. — Applicability of state practice and procedure in Federal Employers’ Liability Act actions brought in state courts, 79 A.L.R.2d 553; see generally Anno., Interest on amount of recovery under Federal Employers’ Liability Act, 153 A.L.R. 857.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    476 A.2d 928
    Ardeth C. THORSEN, Appellant v. IRON AND GLASS BANK v. Reed B. COYLE, III.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed May 4, 1984.

      William H. Difenderfer, Pittsburgh, for appellant.
    Robert W. McClure, Pittsburgh, for Iron & Glass, appel-lee.
    John B. Nicklas, Jr., Pittsburgh, for Coyle, appellee.
    Before ROWLEY, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

Ardeth C. Thorsen, appellant, filed a complaint in assump-sit against Iron and Glass Bank alleging that the Bank had breached its contract when it allowed appellant’s former husband to terminate an entireties savings account without notice to her. The Bank caused the former husband, Reed B. Coyle, III, to be joined as an additional defendant. Pretrial discovery disclosed that the termination of the entireties account had been the subject of prior litigation between appellant and her former husband. This litigation had resulted in an order requiring that appellant be reimbursed for one-half of the account balance on the date her former husband terminated the joint account. This amount, the record further disclosed, had been paid. Because of the prior litigation and the satisfaction of the award there made, the court entered summary judgment against appellant in the instant action. This appeal followed.

Ardeth Thorsen (then Coyle) and Reed Coyle, husband and wife, opened a joint savings account with Iron and Glass Bank on May 11, 1971. They signed a signature card which contained the following provision:

This account shall be subject to all applicable banking laws, clearinghouse regulations, recognized banking practices and customs, the charge schedule and such reasonable rules and regulations as the Bank may make from time to time governing Savings Accounts.

The card also provided that the depositors were to own the account as tenants by the entireties, but that as a matter of convenience to the Bank, monies were subject to withdrawal upon order of either party. On November 15, 1974, Reed Coyle sought to close the account, which then contained $8,281.71, without the consent or knowledge of his wife. He requested that he be permitted to open another account in his name alone. At Coyle’s request, but in derogation of the Bank’s normal procedure, Bank personnel crossed off Mrs. Coyle’s name from the passbook, thus permitting Coyle to continue use of the same passbook and account number. The bank altered its own records to reflect the change, the signature card for the old account was marked “closed,” and a new signature card agreement was executed by Coyle alone. Husband and wife separated on July 17, 1976. Two days later, Reed Coyle closed his account, which then contained a balance of $46,445.49. A divorce decree was entered on August 19, 1977.

Before the divorce became final, appellant commenced an action against her husband in which she sought to recover, inter alia, one-half of the account balance withdrawn by her husband on July 19, 1976. The trial court held that she could recover one-half of $8,281.71, the balance in the account on November 15, 1974, plus one-half of a gift of cash given to husband and wife jointly in 1975 and deposited into the account. The Court explained:

[T]he operative date for purposes of computing exclusion is November 15, 1974____ It was from that day forth which defendant [Reed Coyle] ousted plaintiff from sharing in the entireties property. Similarly, it is from that date that defendant’s deposits into the account were no longer intended by him to be contributions to entireties funds.

With the exception of the joint gift of cash in 1975, all deposits in the account after November 15, 1974 had been the separate property of the defendant. This Court affirmed on appeal.

In the present action against the Bank, appellant once again sought to recover one-half of $46,445.49, the balance in the joint account on July 19, 1976. She alleged that if the Bank had followed its normal practices she would have become aware of the termination of her interest in the account on November 15, 1974 and would not have “detrimentally relied upon the appearance that the account remained intact and believed the joint savings had grown from $8,281.71 to $46,445.49.” In addition to one-half of the larger sum, less certain enumerated credits, she asked that she be awarded punitive damages.

After the pleadings had been closed and discovery completed, all parties moved for summary judgment. The trial court entered summary judgment against appellant, explaining:

Since it is admitted in plaintiffs complaint that she was not aware of the closing of the account until, not only after the account was closed the first time but also the second time, there cannot possibly be any detrimental reliance by her on the further existence of the account after it was initially closed on [November 15], 1974. Even assuming for this argument a breach of contract and, indeed, that the defendant and additional defendant engaged in fraudulent and outrageous conduct, the plaintiff at no time could have changed her position as a result of such activities. Therefore, the action of the defendant in closing the account gave rise only to a claim for one-half of that account as of November 15, 1974, which matter has already been litigated and has been decided by this court and the Superior Court.

Trial Court opinion at 3-4.

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977).

If a plaintiff is able to prove a breach of contract but can show no damages flowing from the breach, the plaintiff is entitled to recover nominal damages. See: Freedom Oil Works Co. v. Williams, 302 Pa. 51, 56, 152 A. 741, 743 (1930); Nemitz v. Bell Telephone Co., 225 Pa.Super. 202, 207, 310 A.2d 376, 379 (1973); 5 A. Corbin, Corbin on Contracts § 1001 (1964). A grant of summary judgment on the sole basis of absence of provable damages, therefore, is generally improper. However, “we will not ... reverse on this ground alone where no request was made for [nominal damages] ... and no establishment of a property right is involved.” Nemitz v. Bell Telephone Co., supra, 225 Pa.Superior Ct. at 207, 310 A.2d at 379, quoting Elia v. Olszewski, 368 Pa. 578, 582, 84 A.2d 188, 191 (1951). Because appellant did not request nominal damages in the instant case, we will affirm if, as the trial court held, it is clear that appellant suffered no harm from the alleged breach.

In Harman v. Chambers, 358 Pa. 516, 57 A.2d 842 (1948), the Supreme Court said: “Generally speaking, the measure of damages applicable in a case of breach of contract is that the aggrieved party should be placed as nearly as possible in the same position [she] would have occupied had there been no breach.” Id., 358 Pa. at 521, 57 A.2d at 845. See also: Maxwell v. Schaefer, 381 Pa. 13, 21, 112 A.2d 69, 73 (1955); Ready v. Motor Sport, Inc., 201 Pa.Super. 528, 531, 193 A.2d 766, 768 (1963); Emerman v. Baldwin, 186 Pa.Super. 561, 572, 142 A.2d 440, 447 (1958); Stephenson v. Butts, 187 Pa.Super. 55, 60, 142 A.2d 319, 321 (1958). However, the injured party may recover only such damages as would naturally and ordinarily flow from the breach, as were reasonably foreseeable and within the contemplation of the parties at the time they made the contract, and as can be proved with reasonable certainty. Keystone Diesel Engine Co. v. Irwin, 411 Pa. 222, 224, 191 A.2d 376, 378 (1963), overruled on other grounds, R.I. Lampus Co. v. Neville Cement Products Corp., 474 Pa. 199, 378 A.2d 288 (1977); Taylor v. Kaufhold, 368 Pa. 538, 546, 84 A.2d 347, 351 (1951).

If the Bank had been guilty of breaching the contract of deposit by terminating appellant’s interest in the joint account without following established banking practices, appellant’s loss would have been the value of her interest in the account at the time it was terminated. It was this amount which represented the foreseeable damages flowing from the breach of contract. It was the value of one-half of the account at the time of termination which would have returned appellant to the same position which she would have occupied if there had been no breach. The Bank could have no liability for the manner in which Coyle dealt with his separate property after the alleged breach of contract had occurred. Appellant cannot recover moneys from the Bank which belonged solely to her husband and in which she had no property right after the joint account had been closed.

The issue of appellant’s damages was adjudicated in the prior action between appellant and her former husband. See: Coyle v. Coyle, supra. Because that issue was adjudicated in an action to which appellant was a party, the Bank could properly raise the defense of collateral estoppel. Collateral estoppel is issue oriented. It operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236, 464 A.2d 1313, 1318 (1983). There is no requirement that the parties be the same. It is necessary only that the party against whom the defense is invoked be identical to or in privity with the party in the first action. Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 265, 323 A.2d 341, 344 (1974).

Not only had the nature and extent of the loss caused by the wrongful termination of the account been fully litigated and adjudicated in the former action, but the damages adjudicated therein had also been paid. Appellant cannot recover again in this action the same damages. She has sustained no loss.

Finally, appellant cannot recover punitive damages against the Bank. The law is clear that punitive damages are not recoverable in an action for breach of contract. DeLuca v. Fidelity Bank, 282 Pa.Super. 365, 368, 422 A.2d 1159, 1161 (1980); Gurnick v. Government Employees Insurance Co., 278 Pa.Super. 437, 440, 420 A.2d 620, 621 (1980), overruled on other grounds, Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981).

The judgment is affirmed.

      . Coyle v. Coyle, 282 Pa.Super. 221, 422 A.2d 1085 (1980) (reargument denied December 24, 1980). We affirmed but modified the award to include an additional joint gift which the trial court had inadvertently failed to include in its order.

        . The depositions of appellant and her former husband were not filed of record and, therefore, could not be considered in determining the motions for summary judgment. See: Erie Indemnity Co. v. Coal Operators Casualty Co., 441 Pa. 261, 272 A.2d 465 (1971). The trial court’s opinion makes it clear that the depositions of appellant and her former husband were not considered.


text:
    476 A.2d 932
    COMMONWEALTH of Pennsylvania v. William Patrick MIDDLETON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1983.
    Filed May 4, 1984.

      Jon Stuart Pushinsky, Pittsburgh, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Wil-liamsport, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the court which denied appellant’s petition for Post Conviction Hearing Act relief, 42 Pa.C.S.A. § 9541 et seq. We affirm.

Appellant raises the following issues: (1) whether the trial court erred when it failed to explain on the record during appellant’s guilty plea colloquy the essential elements of a jury trial; (2) whether the trial court erred when it failed to advise appellant of his right to file a motion to withdraw his guilty plea; and (3) appellant’s guilty plea counsel was ineffective for failing to advise appellant of the defective colloquy, for failing to appeal attacking the defective colloquy, and for failing to advise appellant of his right to file a motion to withdraw his guilty plea. We affirm.

On May 25, 1977, appellant was convicted of murder of the second degree, kidnapping, and robbery for the fatal stabbing of Wanda Marie Geho. On May 23, 1977, appellant and defense counsels, Peter Campana and Waring Fincke, commenced jury selection. This procedure continued for a period of three days, at which time the prosecution presented its chief witness, Frances Hunt, who was appellant’s female companion. Hunt testified that she assisted appellant in his escape from Lewisburg Penitentiary on September 30, 1976, the day before the murder. She also stated that appellant had arranged to meet her in order to “drive him into the Williamsport area and let him off.” N.T. 5/26/77 at 684. Hunt also was instructed to bring appellant a change of clothes and utensils, including a knife. After the appellant and Hunt met in the woods, Hunt drove appellant to a shopping center at which time appellant departed. The appellant then made arrangements to contact Hunt at a certain time each day.

The next day Hunt was driving and stopped at the same spot “[t]o where [she] had dropped him[, the appellant,] off the day before.” N.T. 5/26/77 at 698. The witness noticed that the weeds were trampled and then noticed that the victim was seriously wounded. The witness called the police. The testimony continued. However, a recess was taken, and appellant elected to enter pleas of guilty to murder, kidnapping, and robbery. In exchange for the plea, the prosecution agreed to take no position on whether the plea would be concurrent or consecutive to any sentence appellant was serving, would indicate to the court that appellant’s plea of guilty was a plea of guilty to murder of the second degree, robbery, and kidnapping, would agree that appellant should serve his federal sentence in a state penitentiary and would nol pros the other charges pending against appellant.

The plea was accepted, and appellant was sentenced to concurrent terms of imprisonment of not less than ten years nor more than twenty years each on the murder charge, the robbery charge, and the kidnapping charge. The court also ordered these terms to run concurrent with the federal sentence appellant already was serving. No direct appeal was taken.

On July 20, 1981, appellant filed a counselled PCHA petition which was denied after a hearing. This appeal followed.

There is no dispute that the colloquy was defective because it failed to advise appellant that the jurors would be members of the community, failed to advise appellant of his right to participate in the jury selection process, and also failed to advise appellant that a unanimous verdict must be rendered in a jury trial. See Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973); Commonwealth v. Weiss, 289 Pa.Super. 1, 5, 432 A.2d 1020, 1022 (1981). Despite this defect, we are not persuaded that appellant is entitled to relief.

Appellant raises essentially two issues. He contends that the trial court erred when it gave a defective colloquy and in failing to advise appellant of his right to file a motion to withdraw his guilty plea. Appellant also raises counsel’s ineffectiveness as a separate ground for relief in connection with these two issues.

At the outset, we note that an issue is waived if:

“(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) Presumption. — There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.”

42 Pa.C.S.A. § 9544.

Additionally, at the time of appellant’s guilty plea, May 25, 1977, a challenge to the validity of the guilty plea must have been raised first before the trial court in a written motion for withdrawal. Commonwealth v. Ford, 484 Pa. 163, 165, 398 A.2d 995, 996 (1979).

However, in the instant case, because appellant was at no time informed of his right to file a petition to withdraw his plea or of the consequences attending his failure to so file, an effective waiver did not occur. Commonwealth v. Frankhouser, 491 Pa. 171, 175, 420 A.2d 396, 398 (1980). Thus, appellant’s failure to file a direct appeal did not constitute a knowing and understanding waiver in the instant case.

Thus, we will treat appellant’s appeal before us as a motion to withdraw his guilty plea since there is no indication that appellant would raise any other issues not presently before us. See Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). Additionally, there is no need to remand because the issues appellant raises can be addressed on the present record. See Commonwealth v. Miranda, 296 Pa.Super. 441, 456, 442 A.2d 1133, 1141 (1982) (“Moreover, we have a complete record and can address each of the specific allegations raised by appellant”).

Turning to the merits of appellant’s attack on the validity of his guilty plea, we must remember the following guidelines:

“Presently, appellant seeks to withdraw his plea after the imposition of sentence. The standard for granting withdrawal at this stage of the proceedings is that of ‘manifest injustice.’ Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). ‘Manifest injustice’ occurs where the accused makes an involuntary plea. Id. Upon a finding that a plea was involuntary, the court should permit withdrawal in order to correct a ‘manifest injustice.’ The defendant is so entitled, it would appear, as a matter of right. Commonwealth v. Ammon, 275 Pa.Super. 324, 418 A.2d 744 (1980). However, the determination of the existence of ‘manifest injustice’ is in the first instance for the trial court, which initially accepted the plea. Commonwealth v. Starr, supra; Pa.R.Crim.P. 320. Also, it needs to be remembered that the burden is on appellant to prove that his plea was not voluntary. Commonwealth v. Johnson, 273 Pa.Super. 488, 417 A.2d 753 (1979).”

Commonwealth v. Carter, 318 Pa.Super. 252, 264, 464 A.2d 1327, 1333-1334 (1983).

Additionally, our own Supreme Court has said that

“The desire of an accused to benefit from a plea bargain which he requests his counsel to arrange has been viewed as a ‘strong indicator’ of the voluntariness of the plea. Commonwealth v. Lee, 460 Pa. 324, 328, 333 A.2d 749, 750 (1975). See also Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971). Just as a defendant may decide, as a matter of strategy or expedience, to ‘voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime,’ North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970), accord Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973); Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971); Commonwealth v. Cottrell, 433 Pa. 177, 249 A.2d 294 (1969), so also may a defendant, as a matter of expedience, decide to accept a plea bargain offer solely to reap some benefit from the sentence recommendation reiterated to the judge at the time of the entry of the plea. It is obvious that appellant’s primary concern was length of sentence. Hence, we have great difficulty envisioning a scenario where the appellant, having benefit of an explanation of the elements of the crimes pursuant to [Commonwealth v.] Ingram [455 Pa. 198, 316 A.2d 77 (1974) ], would halt the guilty plea colloquy with an assertion that these were not the crimes to which he intended to plead guilt.
We do not intend to blithely ignore the dereliction by the trial judge but we find it ironic that a rule intended to insure that a plea is entered intelligently might be invoked to invalidate a guilty plea obviously entered to secure a reduction in guilt from murder of the first degree to murder of the third degree and the sentence reduction apparent therein. After apparent satisfaction with the conviction for over four years, appellant relies upon Ingram in attempting to invalidate a plea of guilty which was entered at appellant’s request after viewing the Commonwealth’s case in chief and which was motivated by great concern over length of sentence. The trial ' judge, after hearing competent evidence and being empowered to find the defendant guilty of murder of the first degree, permitted him to withdraw his earlier plea of not guilty and take advantage of the plea bargain offered by the office of the district attorney. In so permitting the appellant to change his plea, the trial judge made the mistake of not explaining to the appellant the elements of murder of the third degree, including an explanation of malice, and the two firearms violations. We are, however, satisfied that appellant understood the ‘nature of the charges’ to which he pleaded guilty.
While we do not by today’s holding intend to abolish the requirement laid down in Ingram that the elements of the crime must be explained on the record to the defendant prior to the acceptance of a guilty plea, it is clear that strict application of Ingram, under the facts of this case, would not promote the interests which Ingram sought to protect. Accordingly, for all of the foregoing reasons, we are of the opinion that a petitioner, who attempts, after sentencing, to withdraw a plea of guilty entered after presentation of the Commonwealth’s case, has not shown manifest injustice as would necessitate a reversal where the sole alleged injustice is failure of the trial court to explain the elements of the crimes to which the petitioner entered a plea of guilty.”

Commonwealth v. Shaffer, 498 Pa. 342, 352-354, 446 A.2d 591, 596-597 (1982). (Emphasis added).

Similarly, in the instant case, appellant entered guilty pleas pursuant to a very favorable plea bargain. Earlier, appellant had proceeded before a jury but then waived his right to proceed after hearing the damaging evidence of the prosecution’s first key witness. We note parenthetically that trial counsel had moved to disqualify the key witness from testifying on the basis that the witness was appellant’s common law wife. However, this request was denied.

In exchange for appellant’s pleas, the prosecution would contend that the murder would rise no higher than murder of the second degree, would take no position on whether the sentences would run concurrently or consecutively to the sentence appellant already was serving, would agree that appellant’s federal sentence should be served in a state penitentiary and would nol pros the other charges pending against appellant.

Under the totality of the circumstances, and in view of the fact that appellant already had actually participated with his attorneys in the selection of jury trial which occurred over a period of three days, we have no doubt that appellant has not shown that manifest injustice exists because the trial court failed to explain his right to a jury trial adequately. See Commonwealth v. Carson, 503 Pa. 369, 371, 469 A.2d 599, 600 (1983) (“The question was whether the waiver was knowing and intelligent, not whether certain talismanic questions were asked and answered.”)

We also conclude that appellant was not deprived of the effective assistance of counsel. In evaluating appellant’s claim of ineffectiveness, we must decide first if the claim made is of arguable merit. Then we must decide if the course of action chosen by counsel had some reasonable basis designed to effectuate the client’s interest. Commonwealth v. Weiss, 289 Pa.Super. at 6, 432 A.2d at 1023 (1981). Because the failure to attack a defective colloquy does have arguable merit, we must examine the record to determine if counsel’s action had some reasonable basis.

At the PCHA proceeding, Attorney Campana testified that appellant wanted the “best bargain” that the attorney could get. PCHA Transcript at 14. According to the attorney, appellant wanted an agreement “where he would plead guilty to some of the charges in return for which the Commonwealth would guarantee he would serve his state sentence, as well as his Federal sentence in a State institution,” Id. Although the attorney admitted that he did not know at the time of the plea that it was defective, his opinion was that:

“any attorney who concentrates in a criminal defense would probably hold the same opinion that I will express now, and that is, that you would not attack the colloquy at the time that it is made, because you are closing the door forever on your client.” Id. at 17.

Later in the PCHA hearing, the prosecutor attempted to call the appellant to the stand as a hostile witness “to establish that he had familiarity with his jury trial rights and for the purpose of showing that had he known of the colloquy defect, [appellant] wouldn’t have changed his opinion as to pleading guilty at that time.” Id. at 24. However, appellant's attorney objected, and the court denied the prosecution’s request.

Because the record demonstrates that the plea bargain was favorable, that appellant exercised his right to a jury trial earlier in the proceedings, and that appellant did not offer any evidence on his behalf to substantiate his claim of ineffectiveness, a claim of ineffectiveness has not been established. See Commonwealth v. Weiss, supra.

Moreover, even appellant’s own testimony at the guilty plea hearing supports a conclusion that the plea bargain was favorable. During the colloquy, the record states:

[The Court]
“Q I want to know from you, you are pleading guilty and you’re telling me you did these things and you’re admitting that you’re doing them not because of the plea bargain but because you admitted doing them? [Appellant]
A Yes, sir. Your Honor, if it hadn’t been for the circumstances of the plea bargain, I wouldn’t have pleaded guilty.
Q Well, I’m aware of that, but I want to make certain that you are admitting that you did these things and you’re not saying to me that you did these things because of the plea bargain?
A No, sir. It was in consideration of the plea bargain.
Q Right. If there wouldn’t have been the plea bargain, you’re telling me you would have continued with your plea of not guilty?
A That’s correct.
Q That’s what you’re saying. But you’re not saying that you didn’t do these things?
A No, I’m not saying that.
Q You’re telling me that you did do them?
A Yes, sir.”

Guilty Plea Colloquy at 743-744. (Emphasis added).

Thus, appellant’s own testimony establishes that his reason for entering a plea of guilty was because of the plea bargain. See Commonwealth v. Simpson, 290 Pa.Super. 11, 14, 434 A.2d 103, 105 (1981).

Order is affirmed.

JOHNSON, J., concurs in the result.

      . The effective date of Pa.R.Crim.P. 320 and 321, September 7, 1977, preceded the appellant’s guilty pleas by at least three months. However, even though these rules set forth the proper procedure to attack a guilty plea, the waiver analysis which we have applied is nonetheless appropriate. See Frankhouser, supra (guilty plea dated August 11, 1975).
      In Commonwealth v. Ford, 484 Pa. at 165, 398 A.2d at 996, we commented on the proper procedure to attack a guilty plea which was entered on December 4, 1975:
      “If the validity of a guilty plea is at issue, a written motion for withdrawal must be filed in the trial court. The matter may not be raised for the first time before us. We noted the requirement in Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). In Lee, we considered a challenge to a guilty plea that was not raised in the trial court because we found that the law had not been clear. In Commonwealth v. Dowling, [482] Pa. [608], 394 A.2d 488 (1978), we held that the law was clear after Lee. Dowling involving a guilty plea entered five months after Lee was decided. We held that a challenge to a guilty plea was waived for failure to raise it in the trial court. Lee was decided on March 18, 1975, approximately eight months before the plea in the instant case. Lee and Dowling are controlling and require a finding of waiver.”


author: HOFFMAN, Judge:

text:
    476 A.2d 938
    Michael R. HARTMAN, Appellant, v. Dalene K. HARTMAN.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1984.
    Filed May 4, 1984.

      Stephen B. Lieberman, Reading, for appellant.
    Stephen G. Welz, Reading, for appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal concerns the lower court’s modification of its earlier custody award. Because we determine that there has not been a change in circumstances sufficient to require a custody modification, we reverse the order of the lower court.

Michael, the child in question, was born on September 27, 1976. The parties separated in August or September of 1979. Michael has resided with appellant, his father, since the separation, and on June 12, 1980, the lower court formally awarded custody to appellant. Custody was maintained with appellant based on subsequent orders dated May, 1982 and September, 1982. Following disruptions in appellee’s right to visitation, appellant petitioned to terminate all visitation. Appellee responded with an answer and petition for rehearing. Appellant later withdrew his petition and the lower court, after granting appellee’s request for a rehearing, on June 22, 1983 granted appellee custody of the child. This appeal followed.

It is well-established that the sole criterion in child custody decisions is the best interests and welfare of the child. Commonwealth ex rel. J.J.B. v. R.A.McG., 283 Pa.Superior Ct. 185, 423 A.2d 1050 (1980); Trefsgar v. Trefs gar, 261 Pa.Superior Ct. 1, 395 A.2d 273 (1978); Bender v. Bender, 261 Pa.Superior Ct. 12, 395 A.2d 279 (1978); In re Custody of Phillips, 260 Pa.Superior Ct. 402, 394 A.2d 989 (1978); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Superior Ct. 82, 369 A.2d 821 (1977); Act of June 26, 1895, P.L. 316 § 2, 48 P.S. § 92. Ensuring the child’s “physical, intellectual, moral and spiritual well-being” is the focal point of our evaluation of a child’s best interests. Commonwealth ex rel. Cutler v. Cutler, supra, 246 Pa.Superior Ct. at 85, 369 A.2d at 822. Our scope of review in child custody cases is broad. Although we must accept the lower court’s findings of fact that find support in the record, “on those facts we must make such order as our independent judgment persuades us right and justice dictate.” In re Donna W. and Edward W., 325 Pa.Superior Ct. 39, 42, 472 A.2d 635, 636 (1984). See also Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981) (independent judgment to be exercised in custody cases); Commonwealth ex rel. Newcomer v. King, 301 Pa.Superior Ct. 239, 447 A.2d 630 (1982). While we continue to accord weight to the lower court’s findings which are premised on a direct assessment of the witnesses’ credibility, we are not bound by the lower court’s deductions and inferences. See Commonwealth ex rel. Cutler v. Cutler, supra, 246 Pa.Super. at 88, 369 A.2d at 823.

In reviewing a child custody modification proceeding we must consider whether

there has beén a substantial change in circumstances that would justify a court’s reconsideration of the custody disposition____ However, once a substantial change has been established [ (the party seeking modification having the burden of proof) ], both natural parents share equally the burden of demonstrating with which parent the child’s best interests will be served.

Daniel K.D. v. Jan M.H., 301 Pa.Superior Ct. 36, 40-42, 446 A.2d 1323, 1324-25 (1982). Because of our reluctance “to disturb existing custody arrangements which have satisfactorily served the best interests of the [child] concerned, '[a]ny change in custody must be based upon a showing of a [sufficient] change in conditions.’” Commonwealth ex rel. J.J.B. v. R.A.McG., supra, 283 Pa.Super. at 188, 423 A.2d at 1052, quoting Swanson v. Barry, 199 Pa.Superior Ct. 244, 247, 184 A.2d 370, 372 (1962).

The lower court made its custody modification determination after hearing testimony and characterizing appellant’s lifestyle as “tentative and unpredictable.” (Lower Court Opinion at 23). The court felt that any stability in the child’s life up to the time of the hearing resulted “in spite of [appellant’s] care, not because of it.” {Id. at 25). Hence, the court agreed with appellee that there had been a sufficient change in the parties’ circumstances to warrant reconsideration of the existing custody order and awarded custody to appellee. In the exercise of our independent judgment, however, we conclude that appellee has failed to demonstrate the required change in circumstances. Thus, contrary to the lower court, we believe that custody of Michael is appropriately maintained with appellant.

The lower court evidently based its decision on appellant’s relatively unsettled lifestyle and refusal to abide by the parties’ visitation schedule. Because “[w]e need not accept a finding which has no competent evidence to support it,” In re Leskovich, 253 Pa.Superior Ct. 349, 356, 385 A.2d 373, 376 (1978), we must evaluate the competency of the evidence available to support the lower court’s findings.

The hearing judge placed a great deal of emphasis on appellant’s changes in residence and the child’s resulting attendance at several schools within the preceding few years. Changes in residence are not always looked upon with such disfavor. In In re Leskovich, supra, the appellant, while acting as custodian of the parties’ two children, moved several times, as the result of a job promotion, the sale of the marital residence and a new employment opportunity. Our Court in returning custody to the appellant noted:

While it is true that appellant experienced a period of unsettled living conditions following her separation from appellee in 1973, we find that each move was dictated by financial necessity and concern for the welfare of her children. Although this instability led to the enrollment of the children in various schools, appellee admitted that he had not received any reports that the children had not been performing academically. Further, although the lower court concluded that appellant’s relocations caused one of the children to suffer from emotional problems, our independent review of the record does not disclose any evidence of a causal connection between the child’s emotional problems and appellant’s unsettled living conditions.

In re Leskovich, supra, 253 Pa.Superior Ct. at 356, 385 A.2d at 376. In Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Superior Ct. 421, 448 A.2d 1113 (1982), the mother, who had custody of the child the majority of his life, was found by the lower court to be unstable because she had changed residences three times after the parties’ separation. Our Court, in reversing, commented that “such alleged 'instability’ was clearly temporary” and noted “that for two years immediately prior to the hearing the mother and child had resided in the same apartment next to the maternal grandmother.” Id., 302 Pa.Superior Ct. at 427, 448 A.2d at 1116. We also indicated that “there was no testimony at trial to support an inference that the changes in residence adversely affected the child.” Id. See also Daniel K.D. v. Jan M.H., supra (several intrastate changes in residence did not adversely affect the child’s adjustment).

Our independent review in the instant case leads us to conclude, as in Leskovich and Jordan, that appellant’s moves were made with the child’s best interests in mind, did not adversely affect the child and demonstrated only a temporary instability. From the time of the parties’ separation, appellant has resided with Michael primarily at appellant’s mother’s residence. During that time, appellant’s father died, resulting in “turmoil in the house”, N.T. June 2, 1983 at 56, and as a result, appellant twice moved out with his son, once, for a two-month period and again, for a two-to-three week period in late 1981. In March, 1982, appellant moved to his current address and has been residing there with Michael ever since. In our judgment, these moves were necessitated by appellant’s desire to protect the child from familial conflict, were of a short duration, and only casually disrupted the child’s life. Moreover, the record does not indicate that Michael suffered any ill effects from these moves. In fact, the psychiatrist’s testimony, which the lower court disregarded, indicated that the real detriment to the child would result from a shift in custody from appellant to appellee at this point. (N.T. June 2, 1983 at 8).

It is true that Michael was enrolled in several day care centers, attended kindergarten at one elementary school, and began first grade at a second. Since March, 1982, however, the child has been enrolled in the same school. The only school-related problem mentioned in the record, that of the child’s being reprimanded for fooling around and/or talking in class, appears to have been corrected. As appellant testified, “During the last two or three months, [Michael] has been getting stars all week long without me talking to him or disciplining him in any manner.” (N.T. June 2, 1983 at 72).

It is well-settled that in custody modification proceedings we look at the parties’ circumstances existing at the time of the hearing. In re Leskovich, supra, 253 Pa.Super. at 357, 385 A.2d at 377. See also Commonwealth ex rel. Jordan v. Jordan, supra (court noted that the appellant had resided in one place for the two years preceeding the custody modification hearing); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Superior Ct. 229, 312 A.2d 58 (1973). Moreover, custody cannot reasonably be granted on the basis of a parent’s “unsettled past” unless the “past behavior had an ongoing negative effect on the [child’s] welfare.” In re Leskovich, supra, 253 Pa.Super. at 357, 385 A.2d at 377. Since March of 1982, appellant’s lifestyle has been sufficiently stable. He has been involved and residing with one woman, Audrey Frankfort, whom he plans to marry when the parties’ divorce is finalized. The record reveals that Ms. Frankfort enjoys a close, loving relationship with Michael and that she willingly undertakes some of the child care responsibilities. Ms. Frankfort testified that “I think [Michael] is just — he is real good, I love him a lot. I think he’s a great little boy.” (N.T. June 2, 1983 at 102). As mentioned above, Michael is well-settled in his elementary school and appellant is financially able to support the child. In our view, therefore, it appears that the lower court unduly emphasized appellant’s “unsettled past” at the expense of and without sufficient consideration for his current stability. Hence, finding that the lower court did not base its decision on competent evidence, we are not bound by its conclusion.

The lower court also highlighted the parties’ visitation problems in concluding that a change in circumstances dictated a custody modification. We have stated that “when a custodial parent so obstructs the visits between the child and the non-custodial parent that the best interests of the child are no longer being served, a change of custody is warranted.” Pamela J.K. v. Roger D.J., 277 Pa.Superior Ct. 579, 593, 419 A.2d 1301, 1309 (1980). Moreover, “a custodial parent’s obstruction of the non-custodial parent’s right to visit the child may ... serve as the basis of an order changing custody.” Id., 277 Pa.Superior Ct. at 592-93, 419 A.2d at 1308-09 (emphasis added). In Pamela J.K. v. Roger D.J., the appellee, the non-custodial parent, had a military career and shifted residences between the United States and abroad. The appellant tried to prevent the occurrence of four of twelve planned visits from October, 1975 through August, 1978, including Christmas holidays and for appellee’s remarriage. After reviewing the appellant’s reasons for obstructing visitation, including emotional reaction to his ex-wife’s remarriage, and a desire to have the child with him during the holidays, and also noting that only a portion of the visits had been prevented, our Court concluded that “appellant’s deliberate obstruction of appel-lee’s right to visit [the child] has not been of sufficient magnitude to justify the removal of [the child] from his household at this time.” Id., 277 Pa.Superior Ct. at 594, 419 A.2d at 1309. We strenuously emphasized that:

[We] do not intend to justify appellant’s conduct, but rather only wish to show that mitigating circumstances may have existed that lessen the culpability of his wrongdoing. This is not to say that appellant was not culpable, and he would be foolish indeed to believe that by virtue of our reversal today of the lower court’s order he may safely repeat his past actions.

Id., 277 Pa.Superior Ct. at 595, 419 A.2d at 1310. Here, contrary to the lower court’s conclusion, but similar to our decision in Pamela J.K. v. Roger D.J., supra, we find that appellant’s actions have not been so obstructive as to warrant a change in custody on that basis. The record indicates that appellee was unable to exercise her right to visitation on several weekends during the summer of 1982. It appears that Michael was ill on one occasion and car trouble prevented appellant from transporting the child to appellee on another occasion. However, on other weekends appellant, by his own admission, refused to allow the planned visits to occur. Appellant testified that during that period of time appellee had a boyfriend, Rex Bears, with whom Michael did not get along, resulting in Michael’s reluctance to spend time with appellee. “[Michael] had stated that he didn’t want to go and would hide under the table, behind the furniture so I couldn’t get to him to take him out.” (N.T. June 2, 1983 at 68). Appellant also testified that appellee was unreceptive to discussing the problem and that because of his inability to ease the situation, his attorney advised him to petition to terminate appellee’s right to visitation. Appellant also noted that there were no visitation problems prior to appellee’s involvement with Mr. Bears and that since the summer of 1982 and appellee’s break up with Mr. Bears, visitation has progressed quite smoothly. (N.T. June 2, 1983 at 69). While we do not condone appellant’s behavior and unilateral decision to disrupt the visitation schedule, we do not find his actions so disruptive and unreasonable as to affect our custody determination. Appellant, unable to solve the problem, and faced with a distraught child, presumably acted in his child’s best interests. Moreover, appellant did not stop all visits; in fact, although several weekend visits were can-celled, appellee did have Michael for a week in both July and August of 1982. Accordingly, we do not find appellant’s action sufficiently obstructive to require a modification of the original custody award.

The hearing judge also believed a change of custody was necessitated because appellee has more time to devote to Michael than does appellant. The record demonstrates that because appellee can choose her own work shift she is able to pick the child up at school and spend the rest of the evening with him. Appellant, however, returns home from work at 6:30 p.m., and spends several hours with Michael before the child’s bedtime. However, Audrey Frankfort, with whom appellant resides, returns home from her job a short while before Michael comes home from school and takes care of him until appellant returns. While the exact number of hours that each parent is able to spend with Michael differs, the record does not demonstrate that appellant’s schedule has adversely affected the child. And although the lower court believed that appellee was better able to help Michael with his homework and provide him with a spiritual upbringing, these beliefs are supported in the record only by a few comments made by the child. The record indicates to us that appellant is quite concerned with Michael’s progress in school and with the need for discipline in the proper situation. (N.T. June 2, 1983 at 96). Moreover, there is no evidence, apart from a relatively insignificant difference in salary that one parent’s ability to provide material advantages is significantly better than the other’s. We feel that the lower court erroneously placed its emphasis on work schedules and the like, and failed to thoroughly consider the effect a change in custody would have on Michael.

“This court has long recognized that the removal of a young child from his environment is a factor which bears on its emotional well-being... Therefore, continued residence of children with one parent may be controlling.” Hugo v. Hugo, 288 Pa.Superior Ct. 1, 6, 430 A.2d 1183, 1185 (1981). “Above the age of two, children become strongly attached to those who stand in a parental relationship and who have tenderly cared for them. 'Bonds of affection may become so strong that to sunder them suddenly may result not only in the child’s unhappiness, but also in its physical injury....’” Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Superior Ct. 82, 88, 369 A.2d 821, 824 (1977), quoting Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Superior Ct. 167, 175, 138 A.2d 225, 229 (1958). See also Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949); Daniel K.D. v. Jan M.H., supra; In re Custody of Phillips, supra, 260 Pa.Super. at 408, 394 A.2d at 992 (“The son’s life with his father has been co-extensive in time with this litigation ... over this substantial period of time attachments to family and environment have developed which it would almost certainly be a traumatic experience for the boy to sever.”). Finally, “where the child’s parents are equally fit, or nearly so, ... the fact that a stable, long-continued and happy relationship has developed between the child and one of the parents may be of critical importance to the formulation of an appropriate custody decree.” Pamela J.K. v. Roger D.J., supra, 277 Pa.Super. at 590, 419 A.2d at 1307.

The lower court made brief mention of the effects of a change in custody:

In our opinion, [a change] will have no adverse effect, but instead be beneficial. Michael will have a more routine and stable environment. He loves both parents and is acquainted with each home. He really hasn’t been in one place for an appreciable period of time to reasonably conclude that he will be detrimentally uprooted.

(Lower Court Opinion at 24). Contrary to the lower court, however, a major consideration in our decision is not that Michael “hasn’t been in one place for an appreciable period of time”, id. (emphasis added), but that he has been continually with one parent for a lengthy period of time. Michael has resided with appellant since the parties’ separation in August or September of 1979. For almost four of Michael’s first six years, up to the June, 1983 hearing and decision, he was raised and cared for by appellant. That appellant and his son have built a strong bond during the past four years cannot be denied and is a necessary consideration in our decision. Four years ago the lower court felt comfortable giving appellant custody of Michael and reaffirmed its decision at times in appellant’s life that it now characterizes as “tentative and unpredictable”. Now that appellant’s life is stable, as evidenced by the record, and considering the need for continuity in a young child’s life we believe that custody should be maintained with appellant.

In sum, our decision is based on the following fundamental conclusions: (1) appellant has ably cared for and nurtured Michael for the majority of the child’s life; (2) under appellant’s care, Michael has flourished. He is performing well in school and has developed close friendships with peers and with Ms. Frankfort; (3) appellant’s once “unset-tied” life, during which he had custody of Michael, has stabilized and he is more than able to provide a loving, caring environment for Michael; (4) Michael’s relationship with appellee, his mother, has grown over the past four years and, with liberal visitation, will continue to prosper. Accordingly, after our independent review of the record and the lower court’s concerns, we find that appellee has failed to demonstrate a change in the parties’ circumstances sufficient to require a modification of the lower court’s original custody order entered in 1980 and subsequently affirmed in 1982.

Because of the nature of this case, however, and appellee’s excellent relationship with her son, we feel that the custody order must entitle appellee to liberal visitation. Therefore, we reverse the lower court’s order and remand for entry of an order consistent with this opinion, including liberal visitation for appellee.

Reversed and remanded.

Jurisdiction relinquished.

BECK, J., concurs in the result.

      . The parties’ divorce has yet to be finalized.

      . Although, according to appellant’s own testimony, he has had relationships with several women in the past few years, we place more emphasis on appellant’s long-term, stable relationship with Ms. Frankfort because of our concern with the parties’ present circumstances.

      . Michael expressed no preference in favor of residing with either parent. If, however, Michael had expressed a desire to stay with a particular parent, this fact, while to be considered, would not be controlling. See Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Superior Ct. 444, 427 A.2d 1370 (1981).

      . We note that the lower court chose to disregard the psychiatrist's-opinion because he failed to address appellant's changes in residence and because the report, written in October, 1982, was stale. Contrary to both the lower court and Dr. Rotenberg, we make no judgment about whether one parent is more stable than the other. Rather, appellant’s current stability leads us to conclude that there has been no change in the parties’ circumstances sufficient to warrant a change in custody. This has been especially true since March, 1982, when appellant moved into his current residence. Hence, we note parenthetically that in October, 1982, Dr. Rotenberg did, in fact, have the benefit of observing appellant, appellee, and Michael in their present environments.