text:
    471 A.2d 851
    COMMONWEALTH of Pennsylvania v. Charles DOCKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 25, 1982.
    Filed Jan. 20, 1984.

      Warren R. Hamilton, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

This case comes to us after the Honorable Edward J. Blake of the Philadelphia County Court of Common Pleas denied appellant Charles Dockins’ petition for relief under the Post Conviction Hearing Act (PCHA). Dockins was arrested in December of 1970 and charged with aggravated robbery, aggravated assault and battery, assault with intent to kill, firearms violations, and burglary. A suppression motion was heard and denied; the case proceeded to trial before the Honorable Edward Rosenwald and a jury. Dockins was- convicted on all of the aforementioned charges.

Post-verdict motions were argued and denied. On August 24, 1972, Charles Dockins was sentenced to a twenty to forty-seven year term of imprisonment. No timely direct appeal was taken from this sentence but Dockins ■ filed a PCHA petition in March 1973. The petition was denied without a hearing and a counseled appeal was taken to this court. In Commonwealth v. Dockins, 230 Pa.Super. 271, 326 A.2d 505 (1974), we noted that Dockins argued only that the crime of burglary merged into the crime of robbery and that the trial judge erred in imposing consecutive maximum sentences for both crimes. Dockins’ contention was rejected and the judgment of sentence affirmed. The Supreme Court of Pennsylvania denied a petition for allowance of appeal.

Dockins filed another PCHA petition on February 24, 1977; this petition was amended on November 5, 1979. PCHA hearings were held and Dockins’ second PCHA petition was denied on July 29, 1981. This appeal timely followed.

The facts underlying Dockins’ convictions were ably summarized by Judge Van der Voort in Commonwealth v. Dockins, supra:

At the trial, the Commonwealth presented evidence which would establish, if believed, that on December 23,1970, at approximately 4:45 P.M., appellant entered the office of his optometrist, Dr. Sheldon Greene, carrying a gun. Appellant took twenty-five ($25.00) dollars from the doctor, then shot him once in the head. Apparently the only reason appellant failed to kill the doctor was that the gun misfired the next few times he pulled the trigger. Appellant then dragged the doctor into an adjoining area and beat him repeatedly about the head and arms with a fifty-inch metal reading-rod, stopping only when he heard a noise at the door. As a result of this brutal attack, the doctor remains permanently blind in one eye, and does not have full use of one of his hands.

Id., 230 Pa.Superior Ct. at 273, 326 A.2d at 506.

The first of Dockins’ many issues is:

Whether the failure of trial counsel to file an appeal from the judgment of sentence of the lower court constituted ineffective assistance of counsel?

Brief for Appellant at 5.

Dockins argues that trial counsel was ineffective for failing to file a direct appeal from the judgment of sentence and subsequent counsel were ineffective for failing to raise trial counsel’s ineffectiveness in this regard. Under most circumstances, counsel cannot be deemed ineffective for failing to raise an issue unless the issue is meritorious. Nevertheless, it is trial counsel’s duty to perfect a defendant’s appeal once requested to do so, even if counsel believes that appellant’s appeal would be without merit. Common wealth v. Cooley, 298 Pa.Super. 163, 444 A.2d 711 (1982). However, in the instant case, although Dockins testified that he assumed counsel was going to file an appeal for him, there is no indication in the record that Dockins ever specifically requested counsel to file such an appeal. In fact, trial counsel testified that Dockins had not asked him to file an appeal. Record of PCHA Hearing, 4-24-80 at 12-13, 22. Counsel cannot be held ineffective for failing to file an appeal when his client has not asked him to do so.

Even if we were to find that Dockins’ trial counsel was ineffective for failing to file an appeal in the present case, our ultimate holding would remain the same. Cooley, supra, held that once we have determined that the appellant was denied the right of direct appeal because of failure of counsel to file an appeal, the case must be remanded so that the appellant may file an appeal nunc pro tunc. In Commonwealth v. McKnight, 311 Pa.Super. 460, 457 A.2d 1272 (1983), however, a panel of this court distinguished Cooley and refused to remand so that appellant could file an appeal nunc pro tunc.

The McKnight court noted that in Cooley there was no indication that any other claims were before the court. McKnight, id., 311 Pa.Superior Ct. at 466 n. 8, 457 A.2d at 1276 n. 8. In other words, the Cooley court was not aware of what claims the appellant would have presented on direct appeal; therefore, a remand to permit an appeal nunc pro tunc was the only appropriate solution. In McKnight, however, each of the appellant’s claims were presented to the court and were fully briefed. Thus, McKnight held that “it would be superfluous to grant the defendant the right to file an appeal nunc pro tunc only to raise the same issues which have been fully briefed and which were subject to an evidentiary hearing.” Id., 311 Pa.Superior Ct. at 466, 457 A.2d at 1276. McKnight then went on to discuss appellant’s other issues and ultimately found them to be merit-less.

We agree with the McKnight analysis. In the present case, all of appellant’s issues have been fully briefed and were subject to an evidentiary hearing. Therefore, especially since we don’t believe counsel was ineffective, we find no need to remand in order to allow appellant the opportunity to appeal nunc pro tunc. We will address all of appellant’s issues as they were presented to us. As will appear in more detail below, we find that appellant’s other issues are meritless.

Thus, while we do not find that counsel was ineffective in this case, a finding of ineffectiveness would not change the outcome of our decision.

Dockins’ second issue is divided into several parts but the general contention is that prior counsel were ineffective for failing to raise several allegations of trial and sentencing error now presented to us. Dockins’ specific allegations of error will be considered seriatim.

Dockins’ questions:

Whether appellant’s sentencing was unconstitutionally cruel and vague because the sentencing judge indicated that the unrelated crimes of others served as a basis for the instant sentence?

Brief for Appellant at 5.

Dockins points out that the trial judge made observations at sentencing to the effect that the Philadelphia streets were unsafe and that the judge did not want Dockins to be released from prison to commit other crimes, as defendants in other notorious cases did. Dockins believes these were impermissible considerations at sentencing.

. Our review of the sentencing transcript convinces us that the comments of the judge do not constitute a reliance on impermissible factors. The judge below received a complete picture of Dockins’ family life as well as his prior convictions. The remarks of the judge indicate only that the safety of the public required that Dockins receive a lengthy sentence. Protection of the public certainly is a consideration in sentencing. We note, moreover, that the judge required that Dockins receive psychiatric treatment, training in a trade, and schooling while incarcerated. It is clear that Judge Rosenwald imposed a sentence which took into account Dockins’ rehabilitation as well as protection of the public.

Another claim of error is:

Whether the Commonwealth erred by soliciting from the appellant the fact that he was incarcerated on an unrelated matter?

Brief for Appellant at 5.

Dockins contends that he was prejudiced by evidence that he was incarcerated for another crime. On cross-examination Dockins was asked where he was on a particular date; he answered that he was not in Philadelphia. He was then asked if he had not said he lived in Philadelphia his whole life. He replied, “I wasn’t in Philadelphia, I was in an institution; that is not in Philadelphia.”

Dockins’ passing reference to being in an institution does not require a new trial. The word “institution” does not instantly convey to jurors the idea that crime was involved •or that Dockins was convicted of a crime. A new trial is not required on this ground.

Dockins’ next issue is:

Whether evidence of the prior unrelated crime allegedly committed by the appellant should not have been admitted into evidence?

Brief for Appellant at 5.

Dockins argues that it was error to have allowed the Commonwealth to introduce evidence of a prior crime in rebuttal. See Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). This argument is meritless. Dockins was tried in May 1972; Bighum was not decided until 1973. Furthermore, the holding of Bighum is to be applied prospectively only. Commonwealth v. Bradshaw, 238 Pa.Super. 22, 364 A.2d 702 (1975).

Dockins also asks:

Whether the trial judge erred when he denied appellant’s request for a mistrial after the Commonwealth produced the bloody clothing of the victim?

Brief for Appellant at 5.

Dockins asserts that the bloodstained clothing worn by the victim on the day of the crime was inflammatory and prejudicial.

We disagree. Generally, evidence is admissible if it is relevant and competent. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980). In this case the victim’s clothing helped establish not only that the victim was beaten but that there was an intent to kill by inflicting severe injuries. Although we have not actually seen the clothing, we conclude that even if it is bloodied and unpleasant, its probative value is such that it is not outweighed by its possible prejudicial effect.

Dockins also argues:

Whether failure of trial counsel to have appellant’s eyes examined and have the results of that examination proffered into evidence constituted ineffective assistance of counsel?

Brief for Appellant at 6.

Dockins believes that trial counsel should have had Dockins’ eyes examined because Dockins did not need glasses and therefore would not have gone into the victim’s office for glasses prior to the date of the crime, as the victim testified Dockins had done. In light of the overwhelming evidence of Dockins’ guilt, trial counsel was not ineffective for failing to obtain an eye examination for Dockins.

Dockins’ last issue is:

Whether the Commonwealth’s failure to introduce evidence of the eye examination testified to by the doctor violated appellant’s right of confrontation?

Brief for Appellant at 6.

This claim is devoid of merit. The victim testified about Dockins’ eye examination and Dockins had every opportunity to cross-examine the victim about the examination.

Order affirmed.

      . 42 Pa.C.S.A. §§ 9541-51.

      . Clearly we could find waiver instantly in that the petitioner in his second PCHA petition raises issues that he did not raise "in a prior proceeding actually initiated under this subchapter.”
      § 9544. When an issue is finally litigated or waived
      (a) Issues finally litigated. — For the purpose of this subchapter, an issue is finally litigated if:
      (1) It has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to appeal the trial court’s ruling.
      (2) The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
      (3) The Supreme Court has ruled on the merits of the issue.
      (b) Issues waived. — For the purposes of this subchapter, 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 the issue is a knowing and understanding failure.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    471 A.2d 856
    Mitchell S. GREENSPAN and Rhea F. Greenspan, H/W, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1983.
    Filed Jan. 20, 1984.
    Petition for Allowance of Appeal Denied July 20, 1984.

      Ronald L. Wolf, Philadelphia, for appellants.
    Louise Herzl-Betz, Philadelphia, for appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the January 13, 1982 Order of the Court of Common Pleas of Philadelphia County (per Judge Lord), sustaining appellee’s, United Services Automobile Association’s, preliminary objections and entering judgment for the appellee and against the appellants, Mitchell S. & Rhea R. Greenspan. We affirm.

The standard for reviewing an order sustaining preliminary objections in the nature of a demurrer, which is applicable to the case at bar, was reiterated by this Court in Rose v. Wissinger, 294 Pa.Super. 265, 270, 439 A.2d 1193, 1196 (1982):

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

In compliance therewith, we observe that appellants filed a complaint in trespass and assumpsit seeking “delay damages” from the appellee under Pa.R.Civ.P. 238. In pertinent part, the appellants alleged in their complaint that:

4. On or about August 29, 1979, plaintiff Mitchell S. Greenspan was severely injured while driving his automobile westbound on Bryn Mawr Avenue in Radnor Township, Delaware County, Pennsylvania, when he was struck by a stolen automobile.
5. At the time of the accident the driver of the striking vehicle was uninsured.
6. At the time of the accident plaintiffs were insured under an automobile liability policy with United Services Automobile Association which insurance contract provided for, inter alia, uninsured motorist protection in the amount of $300,000.00 per insured vehicle, or a total of $600,000.00. (A true and correct copy of the face sheet of the said policy is attached hereto and labeled Exhibit “A”).
7. United Services Automobile Association was given written notice of the accident within two days thereof.
8. United Services Automobile Association was formally notified of plaintiffs’ uninsured motorist claim within one year of the accident.
9. Pursuant to applicable provisions of the said contract, uninsured motorist proceedings were conducted before a panel of arbitrators who issued an award in favor of plaintiffs on September 18, 1981 in the amount of $460,000.00. (A true and correct copy of the arbitrators’ award is attached hereto and labeled Exhibit “B”).
10. It was recognized by both parties that the arbitrators did not have the authority under Rule 238 to award damages for delay and, accordingly, the full amount of the award of arbitrators was paid to plaintiffs without prejudice to plaintiffs’ right to proceed in a separate court action against defendant for damages for delay.
11. Pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure this Court [of Common Pleas] is authorized to award to the plaintiffs in an action seeking monetary relief for bodily injury damages for delay at ten (10%) percent per annum unless the defendant complies with subsection (e) of the said Rule.
12. On September 11, 1981, defendant made a written offer in the amount of $100,000.00 to settle plaintiffs’ uninsured motorist claim. (A true and correct copy of the said settlement offer is attached hereto and labeled Exhibit “C”).
13. No written offer to settle plaintiffs’ uninsured motorist claim was made before the arbitration other than that which is contained in Exhibit “C”.
14. The award of the arbitrators was in excess of 125% of defendant’s settlement offer of September 11, 1981.
15. Defendant’s settlement offer of September 11, 1981, failed to qualify defendant for any exemption from damages for delay pursuant to Pa.R.C.P. 238(e).
16. Damages for delay are calculated as follows:
A. Under Rule 238(2), damages for delay are computed from the later of: the date of the initial complaint (in this case, notice of claim) or one year after accrual of the cause of action. The later date in this case is one year after accrual of the cause of action, or August 29, 1980.
B. Damages for delay from August 29, 1980 to September 18, 1981 (one year and twenty days) at ten (10%) percent per annum = $48,520.55.
WHEREFORE, plaintiffs demand judgment from defendant in the amount of Forty-eight Thousand Five Hundred Twenty Dollars and Fifty-five Cents ($48,520.55), plus lawful interest and costs.

In response, appellee filed preliminary objections asserting that, inter alia:

4. Plaintiff failed to make a record before the arbitration panel to substantiate his claim.
5. Rule 238 does not apply to common law arbitration pursuant to a contract and Plaintiffs’ Complaint, therefore, fails to state a cause of action which conforms to law and should be stricken with prejudice.

In a brief Opinion, the trial judge held, .without citation of any case law, that neither the Pennsylvania Rules of Civil Procedure nor Rule 238, in particular, applied to “an award under an uninsured motorist policy [claim.]”

The issue for our review is whether a common law arbitration is an “action” within the meaning of Rule 238 so as to afford the appellants the opportunity to seek “damages for delay” from the appellee-insurance company.

Since the issue has never been before this Court, the exact meaning of the Rule must be ascertained from the sparse case law dealing with the particular Rule and rules of construction.

Before discussing the issue at bar, we find it appropriate, first, to examine one of the allegations proffered by the appellants, for the response thereto will affect the manner in which we approach the resolution of the controversy. To-wit, appellants urge that “[u]nder the words of the Rule, either the Court or the arbitrators appointed under th[e Arbitration Act of June 16, 1838 (5 P.S. § 30 et seq.) or the Health Care Services Malpractice Act of October 15, 1975 (40 P.L. § 1301.101 et seq.) ] shall award damages for delay. Since, in this case, the arbitration was pursuant to the Uniform Arbitration Act and not the Acts of 1838 or 1975, the Rule merely mandates that the Court make the award. Any reading of Rule 238 which would provide immunity to an uninsured motorist carrier would be incorrect, and, in any event, any ambiguity must be resolved in favor of plaintiffs[-appellants]. Blocker v. Aetna Casualty [and Surety Co., 232 Pa.Super. 111, 332 A.2d 476 (1975)].” (Appellants’ Brief at 10).

Initially, we observe that the “resolution of any ambiguity” referred to by the appellants applies to the ascertainment of the intent of the Legislature or the intendment of an insurance policy, see Miller v. United States Fidelity & Guaranty Co., 304 Pa.Super. 43, 450 A.2d 91 (1982), and not, as appellants would have us believe, to a rule of civil procedure clearly written by our Supreme Court. Moreover, because the insurance contract is not a part of the record before us, “and since there is no evidence that both parties subsequently agreed, either expressly or by implication, to apply the [Uniform Arbitration] Act,[] common law rules must control the enforcement of the award[]” by the three-member panel of arbitrators. See John A. Robbins Co. v. Airportels, Inc., 418 Pa. 257, 261, 210 A.2d 896, 898 (1965). The reason for making this distinction is obvious since, in essence, we are being asked to review the arbitrators’ award and permit it to be modified or corrected, as compared to being vacated, by the Court of Common Pleas of Philadelphia County so as to include “damages for delay” in the award under the guise of Rule 238. This we cannot and will not do.

In the past, this Court has had occasion to remark upon the dichotomy between statutory and common law arbitration for purposes of review. For instance, in cases where statutory arbitration is involved (e.g., Uniform Arbitration Act), resolution of factual disputes are within the province of the arbitrators, just as they are with the fact-finding jury or trial judge in non-jury cases. Also, the Uniform Arbitration Act intends that the court may review and modify or correct the arbitrators only where:

1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting, the merits of the decision upon the issues submitted; or
3) the award is deficient in a matter of form, not affecting the merits of the controversy.
42 Pa.C.S.A. § 7315(a)(1), (2) & (3).

See also Pein v. State Farm Mutual Automobile Insurance Co., 241 Pa.Super. 283, 361 A.2d 348 (1976).

In an arbitration governed by common law principles, the arbitrators are the final judges of both fact and law and the award is not subject to judicial review for mistakes of either. Gallagher v. Educator & Executive Insurers, 252 Pa.Super. 414, 381 A.2d 986 (1977). Notwithstanding such a seemingly all-inclusive rule, there do exist grounds for vacating or modifying the award of a panel of arbitrators issued pursuant to a nonjudicial arbitration; e.g., where “it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” 42 Pa.C.S.A. § 7341; James D. Morrisey, Inc. v. Gross Construction Co., 297 Pa.Super. 151, 443 A.2d 344 (1982).

Additionally, the preceding narrow scope of review was broadened somewhat by United Services Automobile Asso ciation Appeal, 227 Pa.Super. 508, 516, 323 A.2d 737, 741 (1974):

Thus the rule, to which all of the cases conform, is that where the application or construction of the uninsured motorist clause is at issue the dispute is. within the exclusive jurisdiction of the arbitrators; the courts will take jurisdiction only where the claimant attacks a particular provision of the clause itself as being contrary to a constitutional, legislative, or administrative mandate, or against public policy, or unconscionable.

However, given the facts recited supra, the appellants have fallen short of providing this Court with a justiciable reason, be it statutory or case law, to modify or correct the arbitrators’ award. The same holds true in the case of the trial judge below.

For this Court to find that Rule 238 affords the impetus for altering the award of the arbitrators would be tantamount to weaving new law out of whole cloth. There is no basis in fact or law for such a pronouncement by this Court, regardless of the appealibility of such a notion.

In Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), our Supreme Court upheld the constitutionality of Rule 238 and its constitutional rule-making authority to promulgate the Rule in question. In the course of doing so, the Court pointed out that:

Undeniably, this rule serves to compensate the plaintiff for the inability to utilize funds rightfully due him, but the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.

Id., 496 Pa. at 59, 436 A.2d 151. The “alleviation of] delay” spoken of in Laudenberger, as reconstructed in the explanatory comments to Rule 238, encompassed “ ‘so-called major cases not presently subject to arbitration [and] ... the appeals from arbitration which require further proceedings in the trial court.’ ” Id., 496 Pa. at 58, 436 A.2d at 150. And, the Court also noted the propensity of some litigants to wait until the eleventh hour to negotiate a settlement, with the resulting consequence of denying a plaintiff “the money he would have earned on his award if he had promptly received it.” Id., 496 Pa. at 65, 486 A.2d at 154. To compensate an aggrieved plaintiff for the dilatory actions of a defendant, the Court authorized the award of damages, which could be the outgrowth of, inter alia, “ ‘a wrong sustained as a consequence either of a breach of a contractual obligation or a tortious act.’ 22 Am.Jur.2d, Damages § 1.” Id., 496 Pa. at 66, 436 A.2d at 155.

-In light of the aforesaid, it is relevant at this stage of the discussion to point out that instantly the insurer’s obligation to the insured arises totally out of the contract of insurance. “Their obligation is not the same as that of the uninsured motorist. [United Services Automobile Association] does not represent the interest of the uninsured motorist nor is their [sic — its] obligation that of a successor to the uninsured motorist. The insurer represents itself and its rights against, and obligations to, the insured are determined solely by the insurance contract.” Boyle v. State Farm Mutual Automobile Insurance Co., 310 Pa.Super. 10, 16, 456 A.2d 156, 159 (1983).

Nonetheless, the fact remains that, despite the manner in which one cares to interpret the remarks in Laudenberger as to Rule 238 encompassing insurance companies who delay in going to trial and the uninsured who causes loss to a plaintiff, Rule 238 is clear and explicit as to those situations in which it applies:

(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq, shall
(1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, 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 action, whichever is later, up to the date of the award, verdict or decision.
(b) In arbitration under the Act of 1836, the amount of damages for delay shall not be included in determining whether the amount in controversy is within the jurisdiction of the arbitrators.
(c) Except as provided in subdivision (e), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action.
(d) The court may, and on request of a party shall, charge the jury that if it finds for the plaintiff, it shall not award the plaintiff any damages for delay because this is a matter for the court.
(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. ■

In accordance with the specific terminology set forth in Rule 238, “damages for delay” shall be added to an award, verdict or decision against a defendant by “the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq. [; repealed April 28, 1978, P.L. 202, No. 53, § 2(a) [149], effective June 27, 1978; reenacted at 42 Pa.C.S.A. § 7361], or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq."

In the case at bar, we have observed that appellants did not litigate their case before the court of common pleas in the first instance, nor is there any evidence that the matter in dispute was brought under the Arbitration Act of June 16, 1836. The same can be said for the Arbitration Act of 1976, as amended, 42 Pa.C.S.A. § 7361. Thus, giving Rule 238 a common sense reading, 1 Pa.C.S.A. § 1903(a), one would stretch credulity to argue that the common law arbitration conducted here comes within the ambit of the Rule.

In Harmer v. Horsham Hospital, Inc., 60 Pa.Cmwlth. 525, 431 A.2d 1187 (1981) the Commonwealth Court was confronted with the argument that Rule 238 permitted the Administrator of the Arbitration Panels for Health Care to award delay damages. The Court disagreed and wrote:

The estate had filed the motion for delay damages with the administrator after the arbitrators entered their decision awarding the estate $9,235.00 and $116,848.46 in survival and wrongful death actions, respectively, against Horsham Hospital. The administrator denied the motion on the ground that he had no authority to make such an award, because Pa.R.C.P. No. 238 confers that power only upon courts and, in this context, upon the arbitrators appointed under the Health Care Services Malpractice Act. We agree.
The language of the rule is unambiguous and does not purport to confer any such authority upon the administrator. Nor does the Act itself confer upon the administrator authority to award any kind of damages.
The estate’s argument, that the administrator occupies the role of a court under the rule, is not well taken. Such an interpretation would amount to reading into the rule a reference which the context does not support; it would make meaningless the apparent exclusivity of the direction that the arbitrators make such an award as part of their decision. As Administrator Frankston succinctly wrote: “If the Supreme Court had intended for the Administrator to act, it would have so indicated as it did elsewhere in the Rules of Civil Procedure. See Pa.R.C.P. 1801 through 1809.” (Emphasis in original)

Id., 60 Pa.Cmwlth. at 526-527, 528, 431 A.2d at 1187-1188.

We believe that the logic of Harmer applies instantly to undermine appellants’ contention that the “damages for delay” called for in Rule 238 embraces common law arbitration, even though it does not provide for such a proceeding as a vehicle to trigger the Rule. Moreover, since the Pennsylvania Supreme Court is the sole tribunal vested with the authority to “prescribe general rules governing practice, procedure, and the conduct of all courts____”, Pa. Const. Art. V, § 10(c), for us to allow the appellants to have the arbitrators’ award modified by the lower court to reflect “delay damages” would be to invade the bailiwick of the Supreme Court and usurp its constitutionally created power. See Laudenberger v. Port Authority of Allegheny County, supra. This we are not permitted to do. If the Supreme Court had desired a court of common pleas to have the authority to modify a common law arbitration award so as to affix “damages for delay,” it could have made provisions for such a practice in the Rules of Civil Procedure. See Harmer v. Horsham Hospital, Inc., supra, and compare with Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980) (Weight of authority compelled the conclusion that the Act of April 6, 1859, P.L. 381, § 1, 12 P.L. § 781 (1953), repealed and recodified in substantially similar form at 42 Pa.C.S.A. § 8101, did not bar an award of pre-verdict interest by a Chancellor sitting in Equity to prevent unjust enrichment or where the payment of interest is required to avoid injustice).

We feel that the clarity with which Rule 238 was written counsels against us altering the language to accomodate the appellants. If the Rule is to cover claims like those raised instantly, it will require but a stroke of the Supreme Court’s procedural rule-making pen to implement the practice. It is not for this Court to act unilaterally. Similarly, we are not dissuaded from our ruling by appellants’ argument calling for the court of common pleas to calculate the amount of delay damages to be added to the arbitrators’ award and to leave “[a]ny corrections that might well be made to this procedure ... to the Supreme Court.” (Appellants’ Brief at 10) Aside from the fact that we believe the better practice to be to have the Supreme Court make “any corrections” to the Rule in the first instance and not after the fact, there is simply no provision in the Rule sanc tioning the entry of delay damages by a tribunal other than the one that issued the verdict, award or decision. See “Explanatory Note — 1981” to Compulsory Arbitration, Point 14, located in Pennsylvania Rules of Civil Procedure at 321. The basis for such a requirement is obvious, since the arbiter(s) of fact and law is in the best position to review a request for the issuance of such damages.

Affirmed.

      . 42 Pa.C.S.A. § 7301 et seq.

      . We note that the appellants did not invoke the lower court’s equitable powers in resolving the dispute so as to enter an award in favor of the appellants for delay damages. See generally Sarsfield v. Sarsfield, 251 Pa.Super. 516, 380 A.2d 899 (1977) (Concurring Opinion by SPAETH, J.). Rather, they sought relief on the law side of the court of common pleas, id., and such a court was not vested with any statutory power to grant the relief requested. This conclusion is borne out by the language utilized by the Court in Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980), wherein it was determined that the Act of April 6, 1859 (now repealed and recodified at 42 Pa.C.S.A. § 8101) did not foreclose a litigant from securing pre-verdict interest before a court sitting in equity. This is in contradistinction to Rule 238, which is more explicit on the subject of delay damages, and the suit instantly being brought on the law side of the court of common pleas. On this topic the Sack Court wrote:
      Th[e] weight of authority compels the conclusion that the Act of April 6, 1859 does not bar an award of pre-verdict interest in order to prevent unjust enrichment or where the payment of interest is required to avoid injustice. These authorities are also in agreement that the decision whether to award interest and the amount of such interest, is vested in the discretion of the chancellor. This is especially true in cases, like the present one, in which the plaintiff’s claim for interest is contained in her prayer for general relief and is therefore dependent upon the “long recognized power of a Chancellor to shape and render a decree which accords with the equities in the case.” Salisbury Township v. Vito, 446 Pa. [200] at 204, 285 A.2d [529] 531.7
      7 The dicta relied upon by appellant in Emerson v. Schoonmaker, 135 Pa. 437, 440, 19 A. 1025 (1890), does not apply to the present case. Emerson was a case at law unlike the present case in equity, and was tried before a jury. Moreover, appellant’s more modern cases support the position we take today. In Nick v. Craig, 298 Pa. 411, 415, 148 A. 709 (1930), the award of interest by the equity court was due solely to the Court’s conclusion that "under the circumstances of this case” interest should have been awarded. In Gervis v. Kay, 294 Pa. 518, 526, 144 A. 529 (1928), the Court recognized that the decisions to include interest is one grounded in equitable considerations. Lastly, in Fidelity-Philadelphia Trust Co. v. Simpson, 293 Pa. 577, 587, 143 A. 202 (1928), the issue presented to this Court was whether the decision of the chancellor to award interest worked an “injustice.”
      489 Pa. 152, at 165 & n. 7, 413 A.2d 1059, 1065-1066 & n. 7.

      . We note in passing that the appellants created no record, at any stage of this litigation, to justify their request for "damages for delay.”


author: SPAETH, President Judge:

text:
    471 A.2d 863
    Steven SOLOMON, Appellant, v. SENTRY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1983.
    Filed Feb. 3, 1984.
    Petition for Allowance of. Appeal Denied April 16, 1984.

      James L. Womer, Philadelphia, for appellant.
    Mark Charles Schultz, Norristown, for appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   SPAETH, President Judge:

This is an appeal from an order granting appellee’s motion for summary judgment. Appellant argues that the trial court erred in that there remained issues of material fact. We find this argument without merit and therefore affirm.

On May 19, 1981, appellant was involved in an automobile accident, and on June 4, 1981, he filed a complaint in assumpsit and trespass. In Count I of the complaint (assumpsit) appellant alleged that he held a policy of insurance with appellee, that he had requested that appellee make payment to him for the property damage sustained in the accident, and that appellee had refused to negotiate the claim or make payment on it. Appellant demanded damages of $15,000, together with “penalties, attorney’s fees, interest and costs.” In Count II (trespass) appellant demanded punitive damages, alleging that appellee’s denial of payment was intentional and designed to harass appellant.

Appellee filed a motion for summary judgment, alleging that on or about June 11, 1981, i.e., less than 30 days after the accident, it had issued a draft in the amount of $1,930.90 to appellant in full satisfaction of appellant’s claim. Appellee also claimed that punitive damages are not recoverable under Pennsylvania law in an action against an insurer for failure to honor a claim. Appellant admitted receiving payment from appellee but denied that it evidenced full payment, alleging that there were still outstanding attorney’s fees, interest, costs, transportation expenses and other damages. Appellant also claimed that punitive damages are recoverable under Pennsylvania law in a case of this type.

Appellant apparently does not challenge on appeal the grant of summary judgment on Count II of his complaint. In any event, we note that under Smith v. Harleyville Insurance Company, 494 Pa. 515, 518, 431 A.2d 974, 975 (1981), and D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981), summary judgment was properly granted on Count II.

With respect to Count I of the complaint, appellant argues that appellee’s payment to appellant for property damage did not satisfy the claims for transportation expense, attorney’s fees, interest and costs. The trial court characterized these damage claims as frivolous and did not treat them separately.

Appellant made no demand for transportation expenses in his complaint. He therefore may not raise this additional claim for damages in response to a motion for summary judgment.

Appellant’s argument with respect to attorney’s fees, interest and costs is also without merit, for he is not entitled to these amounts, as a matter of law.

Although, appellant did not so state in his complaint, it is apparent that in Count I he sought to recover no-fault benefits from appellee as his insurer. No-fault benefits are defined in the No-Fault Act to include added loss benefits. 40 P.S. § 1009.103. Added loss benefits are defined as those benefits provided by added loss insurance under 40 P.S. § 1009.207. Added loss benefits include benefits for “physical damage to a motor vehicle, a coverage for all collision and upset damage, subject to an optional deductible.” 40 P.S. § 1009.207(a)(5). These are the benefits that appellant sought to recover in Count I.

The No-Fault Act provides for the recovery of interest and attorney’s fees in specified circumstances. No-fault benefits are overdue if not paid within 30 days after receipt by the no-fault insurer of reasonable proof of loss. 40 P.S. § 1009.106(a)(2). Overdue payments bear interest at the rate of 18% per annum. Id. It is undisputed that appellant was reimbursed within 30 days of the accident. As appellant’s no-fault benefits were therefore not overdue, he has no right to interest.

Attorney’s fees are recoverable by a claimant if overdue no-fault benefits are paid after the insurer receives notice of representation of a claimant in connection with a claim or action for no-fault benefits. 40 P.S. § 1009.107(1). Attorney’s fees are also recoverable if the court determines that the obligor has denied a significant part of a claim without reasonable foundation. Again, it is undisputed that appellant’s benefits were not overdue and that appellee did not deny the claim, even though the claim had not yet been paid when the complaint was filed. Appellant therefore is not entitled to an award of attorney’s fees.

Finally, costs are ordinarily awarded to the “prevailing party.” Gold & Co. v. Northeast Theater Corp., 281 Pa.Super. 69, 421 A.2d 1151 (1980). Appellant can hardly be considered a prevailing party when appellee paid the claim within the time provided by statute and summary judgment was granted in favor of appellee. Appellant is not entitled to an award of costs.

The order of the trial court is affirmed.


text:
    471 A.2d 866
    COMMONWEALTH of Pennsylvania v. Albert FRAZIER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1983.
    Filed Feb. 10, 1984.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying a petition for a writ of certiorari to the Municipal Court of Philadelphia. Appellant argues that the Municipal Court erred in denying his motion to suppress physical evidence. We hold that appellant did not timely file his petition for a writ of certiorari, and therefore quash this appeal.

Appellant was arrested on December 1, 1980, and charged with knowing and intentional possession of a controlled substance and with possession of a controlled substance with intent to deliver. On April 29, 1981, appellant’s motion to suppress physical evidence was denied and on May 12, 1981, appellant was found guilty of the first charge and not guilty of the second in a non-jury trial in the Municipal Court of Philadelphia, and was sentenced to one year of probation. On July 31, 1981, appellant filed a petition for a writ of certiorari in the Court of Common Pleas of Philadelphia, alleging that the Municipal Court erred in denying his motion to suppress. The Court of Common Pleas, HIRSH, J., held that the Municipal Court had not erred, and by opinion and order of July 26, 1982, denied appellant’s petition for a writ of certiorari.

Timeliness of an appeal is a jurisdictional issue that may be raised by the court sua sponte. Penjerdel Refrigeration Corporation, Inc. v. R.A.C.S., 296 Pa.Super. 62, 442 A.2d 296 (1982). Although appellant was sentenced on May 12, 1981, his petition for a writ of certiorari was not filed until July 31, 1981, which was seventy-nine days after he was sentenced. An appeal must be filed within 30 days after the entry of the order from which the appeal is taken. 42 Pa.C.S.A. § 5571. Similarly, Pa.R.Crim.P. 6006, governing procedures for the Philadelphia Municipal Court, provides that after imposition of sentence, the judge shall inform a defendant “of the right to appeal for trial de novo within 30 days____” Here, the sentencing judge complied with that rule. N.T. 5/12/81 at 18. The question we must decide, therefore, is whether a defendant who chooses to file a petition for a writ of certiorari, rather than an appeal for a trial de novo, is also subject to the 30 day limitation. We hold that he is.

The writ of certiorari is authorized as a mode of appeal from the Municipal Court of Philadelphia by Section 26 of the Schedule to Article 5 of the Pennsylvania Constitution:

§ 26. Writs of certiorari
Unless and until changed by rule of the Supreme Court, in addition to the right of appeal under section nine of this article, the judges of the courts of common pleas, within their respective judicial districts, shall have power to issue writs of certiorari to the municipal court in the City of Philadelphia, justices of the peace and inferior courts not of record and to cause their proceedings to be brought before them, and right and justice to be done.

See Commonwealth v. Dincel, 311 Pa.Super. 470, 476-77 n. 3, 457 A.2d 1278, 1281 n. 3 (1983). In Commonwealth v. Poindexter, 248 Pa.Super. 564, 567 n. 2, 375 A.2d-384, 386 n. 2 (1977), rev’d. on other grounds, 484 Pa. 472, 399 A.2d 390 (1979), we said:

Although the Supreme Court, by Pennsylvania Rule of Criminal Procedure 159(e), has suspended the Act of Dec. 2, 1968, P.L. 1137, No. 355, § 6, 42 P.S. § 3006, the act which previously authorized courts of common pleas to issue writs of certiorari to minor judiciary courts, the Supreme Court has not specifically abolished certiorari. We must therefore assume that the courts of common pleas retain the power to issue writs of certiorari to the Philadelphia Municipal Court in non-summary criminal cases.

See also Commonwealth v. Dincel, supra, 311 Pa.Super. at 476-77 n. 3, 457 A.2d at 1281 n. 3.

It is therefore clear that the Court of Common Pleas had the power to issue the writ. Nevertheless, we think that the Court of Common Pleas was without jurisdiction in this particular case because the petition for the writ was filed beyond the 30 day limit for his filing an appeal. We see no reason, nor have we found any case suggesting a reason, to require appeals from the Municipal Court of Philadelphia to be filed within 30 days while allowing petitions for writs of certiorari to be filed beyond such a time limitation. Moreover, the procedural differences between the writ and an appeal for a trial de novo do not support any such distinction in regard to timeliness. One authority, cited in Commonwealth v. Dincel, supra, 311 Pa.Superior Ct. at 477, 457 A.2d at 1281, has described the procedural differences as follows:

A defendant may also appeal municipal court convictions on the record rather than de novo, and this appeal is heard by the court of common pleas. This mode of appeal is instituted by a petition for a writ of certiorari filed in the common pleas court. This appeal is not granted as a matter of right and the success of this procedure depends on the record made in the municipal court. If a successful appeal would require an arrest of judgment and a termination of a prosecution, then this procedure may be the most appropriate. For example, if the evidence was insufficient to sustain the conviction, an appeal by writ of certiorari would terminate the prosecution, while a de novo appeal would merely require a new trial at which the Commonwealth would have another opportunity to convict the defendant. Wasserbly, Pennsylvania Criminal Practice I, § 12.04 (1981). (emphasis added)

Thus, inasmuch as the writ of certiorari requires the Court of Common Pleas to review the record of what took place in the Municipal Court, it has the quality of a true appeal. The “appeal” for a trial de novo, by contrast, does not, since the Court of Common Pleas does not, in such cases, “review” the record made in the Municipal Court but grants the defendant a new trial without reference to that record. There is all the more reason, therefore, to make petitions for writs of certiorari subject to the 30 day requirement for filing appeals.

Since appellant’s petition for a writ of certiorari was filed 79 days after he was sentenced, it was untimely and the Court of Common Pleas should have quashed it, instead of considering it on its merits. Strickler v. United Elevator Co., Inc., 257 Pa.Super. 542, 391 A.2d 614 (1978) (untimely appeals raise jurisdictional questions and must be quashed).

The fact that appellant’s petition for the writ is captioned “Nunc Pro Tunc” suggests that appellant was aware that his petition was untimely. However, appellant’s petition did not present any reasons why the Court of Common Pleas should issue the writ nunc pro tunc. Only where there are circumstances such as ineffectiveness of counsel, fraud, or a breakdown in the court’s operations is an appeal nunc pro tunc justified. No such circumstance was alleged. See Commonwealth v. Ritchie, 298 Pa.Super. 165, 444 A.2d 712 (1982); Marcinak v. Lavery, 286 Pa.Super. 92, 428 A.2d 587 (1981) (only fraud or breakdown in court’s operations may justify allowing appeal nunc pro tunc); MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815 (1976) (same). Cf. Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210, 1211 (1983) (although untimely post-verdict motions were decided by trial court on merits, issues raised in motions were not preserved for appeal but were waived).

Appeal Quashed.


author: WIEAND, Judge: SPAETH, Judge,

text:
    471 A.2d 869
    COMMONWEALTH of Pennsylvania v. Robert F. MINNICH, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1983.
    Filed Feb. 10, 1984.

      David R. Eshelman, Reading, for appellant.
    Richard C. Funk, Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

This is another in a long series of appeals requiring a determination of that “due diligence” which will entitle the Commonwealth to an extension of time within which to commence trial under Pa.R.Crim.P. 1100(c). Specifically, we are required to determine whether (1) delay in obtaining a correct chemical analysis of a substance believed to be methamphetamine, and (2) a request by the Commonwealth to dismiss all charges, which was taken under advisement by the trial court and ultimately denied, were consistent with due diligence so as to entitle the Commonwealth to an extension of time when trial could not be commenced within one hundred eighty days. We conclude that these delays were not consistent with due diligence and reverse the judgment of sentence imposed following conviction obtained in an untimely trial.

A complaint was filed on February 9, 1979 in which Robert F. Minnich was charged with criminal conspiracy and possession of methamphetamine with intent to deliver or manufacture the same. The run date for Rule 1100 purposes was August 8, 1979. The first preliminary hearing was continued at the request of the Commonwealth because it had not obtained an analysis of the substance which had been seized by the police and which was believed to be methamphetamine. On March 6, 1979, however, a preliminary hearing was held, and the charges were returned to court. An information was filed on April 18, 1979. A pre-trial omnibus motion was heard by the court on June 5, 1979, and relief was denied on July 17, 1979. A trial scheduled for July, 1979 was continued upon motion of the Commonwealth in order to provide time for obtaining another chemical analysis of the substance on which the charges were based. The prosecutor stated that additional laboratory testing was necessary because the Commonwealth had reason to believe that the first analysis had been inaccurate. A new trial date was set for August 6, 1979. At that time, the prosecutor suggested to defense counsel that the charges would be dismissed; and, therefore, the case was not attached for trial. On August 7, 1979, the Commonwealth filed a written motion to extend the time for trial. On August 17, 1979, the Commonwealth moved to dismiss the charges because the later analysis had demonstrated that the substance in question was not methamphetamine. The trial court took the motion under advisement and did not act on it until October 5, 1979. On that date, the court refused the Commonwealth’s motion for dismissal and ordered that the case be tried. On October 26, 1979, a hearing was held on the Commonwealth’s pending motion to extend the time for trial and also on a defense motion to dismiss. The defense motion was denied, and the time for trial was extended until December 14, 1979. When the case was subsequently tried nonjury, Minnich was acquitted on a charge of attempt to manufacture methamphetamine, but he was convicted of conspiracy to assist one Joseph C. Guthrie in the manufacture of methamphetamine. Minnich filed a direct appeal from the judgment of sentence.

The pertinent portion of Rule 1100(c) which was in effect in 1979 permitted the granting of an extension “only if trial [could not] be commenced within the prescribed period despite due diligence by the Commonwealth.” An analysis of the facts in the instant case might well begin with the observation that not one day of the delay here in issue was caused by the defense. On each and every occasion when the case was to be heard or tried, the defense was ready to proceed. All continuances during this period were granted on motion of the Commonwealth.

On July 17, 1979, a continuance of the trial was granted on motion of the Commonwealth because, after 158 days, the prosecution still wasn’t certain whether the substance which appellant was accused of having had in his possession was, in fact, a controlled substance. In order to investigate this issue further, the Commonwealth requested a delay to permit it to seek an additional chemical analysis.

Sometime thereafter, the prosecution determined that its chances for obtaining a conviction had been reduced because an additional laboratory analysis disclosed that the first testing had been inaccurate, and that the substance seized by police was not amphetamine. Because of this fact, the Commonwealth decided to discontinue the prosecution; and the case was not tried, as scheduled, on August 6, 1979. Instead, the Commonwealth requested leave of court to dismiss the charges.

The conclusions to be drawn from these events must necessarily be that the trial was not held in July because the Commonwealth was not prepared to proceed. A trial in August was not held because the Commonwealth had decided that it did not wish to proceed. When the trial court, on October 5, 1979, determined that the Commonwealth should not be permitted to abandon voluntarily the charges against appellant, the time for commencement of trial had expired. The reason that the time had expired was not judicial delay, as the trial court seemed to think, but because the Commonwealth had been unable to proceed in July and unwilling to proceed in August. The situation was not one in which trial could not conveniently have been held within 180 days. Trial could readily have been held in July and also in August prior to the run date. That it was not so tried was solely the result of the Commonwealth’s inability and/or unwillingness to proceed.

The fact that the criminalist who had made the first laboratory analysis was subsequently discredited, although unfortunate, does not excuse the delay. He was a representative of the Commonwealth, and the delay caused by his inaccurate work must be charged against the Commonwealth; his failure to make an accurate analysis promptly was inconsistent with “due diligence.”

In holding that the judgment of sentence must be reversed and appellant discharged, we do not intend to be critical of the manner in which the District Attorney handled the prosecution or of his decision to discontinue prosecution. We hold merely that the circumstances of this case are not within the purview of Pa.R.Crim.P. 1100(c), which permits the granting of an extension only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth,

The judgment of sentence is reversed, and appellant is discharged.

SPAETH, J.-, filed a concurring statement.

SPAETH, Judge,

concurring:

I agree that due diligence was not shown and that appellant must therefore be discharged. I do not reach appellant’s several arguments in support of his motion for a new trial.

      . All delay after October 15, 1979 was waived for Rule 1100 purposes and is not in issue in this appeal.

      . The information had been amended prior to trial to charge appellant with an attempt to manufacture methamphetamine instead of possession with intent to deliver or manufacture.

      . Appellant has raised additional issues relating to (1) an alleged inconsistency in the trial court's findings, (2) an alleged improper signing of the information, (3) an alleged illegality in the procedure by which police obtained and executed a search warrant, (4) evidentiary rulings by the court which held admissible extra-judicial statements made by appellant's alleged co-conspirator, and (5) the court’s failure to apply the defense of entrapment. We have examined the arguments advanced by appellant regarding these issues but find them lacking in merit.
      Even if the verdicts were inconsistent, as appellant alleges, the law is clear that inconsistent verdicts do not require reversal. Commonwealth v. Wanamaker, 298 Pa.Super. 283, 288, 444 A.2d 1176, 1178 (1982) ; Commonwealth v. Fox, 259 Pa.Super. 565, 570, 393 A.2d 970, 973 (1978).
      The use of a rubber stamped facsimile of the District Attorney’s signature on the information does not require that appellant be discharged. Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983) .
      As to the use of a ruse to gain admittance to execute a search warrant, see: Commonwealth v. Decaro, 298 Pa.Super. 32, 46, 444 A.2d 160, 167 (1982); Commonwealth v. McCarthy, 257 Pa.Super. 42, 43-44, 390 A.2d 236, 237 (1978); Commonwealth v. Regan, 254 Pa.Super. 555, 557-559, 386 A.2d 89, 91 (1978).
      A conspirator's statements are admissible if they are in furtherance of and during the conspiracy, see: Commonwealth v. Scarborough, 313 Pa.Super. 521, 528-29, 460 A.2d 310, 313-314 (1983); Commonwealth v. Basile, 312 Pa.Super. 206, 213, 458 A.2d 587, 590-591 (1983). The admission of such statements is not prevented by the accused’s right of confrontation. See: Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980).
      Finally, as to the type of police involvement which is necessary to constitute entrapment or which is in violation of the accused’s right to due process, see: United States v. Twigg, 588 F.2d 373 (3d Cir.1978); Commonwealth v. Danko, 281 Pa.Super. 97, 108-109, 421 A.2d 1165, 1171 (1980); Commonwealth v. Stokes, 264 Pa.Super. 515, 518, 400 A.2d 204, 206 (1979).


author: WIEAND, Judge:

text:
    471 A.2d 871
    In re ADOPTION OF N.A.G. and A.B.G. Appeal of B.G.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1983.
    Filed Feb. 10, 1984.

      Francis X. Clark, Norristown, for appellant.
    Lindley M. Cowperthwait, Jr., Norristown, for participating party.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

In this appeal from a final decree terminating the parental rights of a natural father to his two children, we review the proceedings to determine whether the decree was supported by evidence that was clear and convincing. We must also determine whether the proceedings and the decree based thereon are to be invalidated because the hearing court erroneously denied a request to appoint counsel to represent the children during the evidentiary hearings.

The rights of a parent to a child may be terminated if a “parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” 23 Pa.C.S. § 2511(a)(1). In terminating the rights of a parent, a court is required to “give primary consideration to the needs and welfare of the child.” 23 Pa.C.S. § 2511(b). Parental rights may not be terminated in the absence of evidence that is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 465 A.2d 642 (1983); In re Adoption of Durham, 320 Pa.Super. 508, 467 A.2d 828 (1983). On appeal, the standard of review is limited to a determination of whether the decree was supported by competent evidence. In re Adoption of B.D.S., 494 Pa. 171, 176-177, 431 A.2d 203, 206 (1981); In re Adoption of J.S.M., Jr., 492 Pa. 313, 316, 424 A.2d 878, 879 (1981); In re J.L.Z., 492 Pa. 7, 8-9, 421 A.2d 1064, 1064 (1980); Matter of M.L.W., 307 Pa.Super. 29, 31, 452 A.2d 1021, 1023 (1982).

B.G. and M.C. were married in 1967, separated in 1972 and divorced in 1977. Two children were born of their marriage. At all times since the separation of their parents, the children have resided with M.C., their mother. She has remarried and lives with her husband and children in Montgomery County. B.G. also remarried. He lived with his wife in Florida, but was divorced in 1979. Prior to the hearings in this matter, the only occasion on which the children had seen their father after 1972 was at a nonsupport proceeding in 1974. Otherwise, appellant had neither written to nor telephoned his children. He displayed no interest in their welfare. His only contact with the children consisted of one gift and a chance conversation with his son when, in 1978, the son happened to answer the phone when appellant called his former wife to speak with her regarding a support settlement. Prior to 1978 appellant had refused to pay a support order requiring him to contribute to the support of his children. By agreement, his duty of support was terminated in 1978. Thereafter, he attempted to send one of the children a balloon birthday greeting, but the child was away at camp when it arrived and M.C. refused to accept it. There was no other communication and no parental relationship. Appellant’s second wife confirmed his lack of interest in and concern for his children. She testified that B.G. had told her on various occasions that he had never wanted to have children with M.C., had no intention of supporting them, and did not care if he never saw them again.

“Our cases are clear that ‘[a] child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance.... The affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child____ Because a child needs more than a benefactor, parental duty requires that a parent “exert himself to take and maintain a place of importance in the child’s life.” ’”

In re Adoption of R.W.G., 494 Pa. 311, 314-315, 431 A.2d 274, 276 (1981) (citations omitted), quoting In re Burns, 474 Pa. 615, 624-625, 379 A.2d 535, 540 (1977). See: In re J.L.Z., supra; In re Adoption of F.D.S., 490 Pa. 43, 415 A.2d 23 (1980); In re Baby Boy Robinson, 486 Pa. 604, 406 A.2d 1365 (1979); In re W.M., III, 482 Pa. 123, 393 A.2d 410 (1978); In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975); Matter of Adoption of K.S.C., 309 Pa.Super. 550, 455 A.2d 1221 (1983).

The evidence in this case was clear and convincing. It was sufficient to lead the trier of the facts directly and compellingly to the conclusion that for ten years appellant had refused to perform parental duties. Although appellant attempted to explain his derelictions on the basis of obstructions placed in his path by M.C., the trial court found that his testimony lacked credibility and concluded that his disassociation from his children had been wholly voluntary. The court’s findings are fully supported by the record.

It was also determined that the children had been happily growing toward maturity with their mother and stepfather. They referred to their stepfather as “Dad” and expressed desires to be adopted by him. They had no real recollection of their natural father. The trial court could properly conclude, as it did, that the children’s best interests would be served by terminating the parental rights of the natural father so that the new relationship with their stepfather could ripen fully and receive legal recognition by adoption.

The Adoption Act, at 23 Pa.C.S. § 2313(a), mandates that counsel be appointed to represent children in an involuntary termination proceeding when the proceeding is being contested by one or both parents. In the mistaken belief that the appointment of counsel was discretionary, the hearing court denied a request made early in the hearings by B.G. that the children be represented by court appointed counsel. After the hearings had been completed and B.G. had filed exceptions to the decree and to the trial court’s failure to appoint counsel, the court realized its error. It thereupon made an appointment and directed appointed counsel to review the record, interview the children and conduct an investigation. Appointed counsel subsequently filed a report in which he confirmed the wishes of the children to be adopted by their stepfather and expressed the opinion that a termination of the natural father’s parental rights would be in the best interests of the children. Thereafter, appellant’s exceptions were dismissed, and a final decree was entered.

This was contrary to the statute’s procedural mandate. The purpose of the statutory requirement, however, was not to create a right in appellant. It was not intended to benefit a contesting parent or parents or to enhance by force of numbers the position of a contesting adult. Its purpose, rather, was to guarantee that the needs and welfare of the children would be advanced actively by an advocate whose loyalty was owed exclusively to them. In the instant case, the children and their belatedly appointed counsel are satisfied with the court’s decree. They believe their needs and welfare can best be met by severing ties with their biological father. The children have not complained because they were not separately represented by counsel during the hearings and have not requested a new hearing so that they might be represented. They have filed no appeal. They do not wish to alter in any way the court’s decree. Appellant, who was represented by his own counsel, has not been prejudiced in the presentation of his case by the absence of counsel for the children. He cannot assert procedural rights for the children which they, themselves, do not wish to assert. Thus, although the rule requires appointment of counsel for a child at as early a point in the proceedings as feasible, the court’s failure to make a pre-hearing appointment in the instant case was harmless. The children are now represented by counsel who has acted to protect their interests. We perceive no valid purpose to be served by remanding for a new hearing which can serve no substantive purpose.

The decree is affirmed.

      . We recognize that the scope of review in cases of involuntary termination of parental rights has been argued before a court en banc in the case of In Re James J., No. 2776 Philadelphia, 1981. However, there is no potential change in the scope of review that would affect the result in this case.

      . Prior to passage of the Adoption Act in 1980, the appointment of counsel for children who were the subject of involuntary termination proceedings was unnecessary as long as the parties and the trial court provided for their best interests. Matter of Kapcsos, 468 Pa. 50, 360 A.2d 174 (1976). In Kapcsos, Justice Manderino, writing a dissenting opinion, joined by Justice Nix, suggested that although the legislature had not yet provided for appointed counsel, it was incumbent on the Court to so provide. This view was repeated again in 1979 by Justice Manderino’s dissent to a per curiam affirmance of a decree terminating parental rights. In re Thomas, 484 Pa. 532, 399 A.2d 1063 (1979) (Dissenting Opinion by Manderino, J.). The statutory requirement that counsel be appointed appears to have been the legislature’s response thereto.


author: McEWEN, Judge:

text:
    471 A.2d 875
    FIRST SENECA BANK & TRUST COMPANY, Successor by Merger to Keystone Bank v. LAUREL MOUNTAIN DEVELOPMENT CORPORATION, a/k/a Laurel Mtn. Development Corp., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 14, 1983.
    Filed Feb. 10, 1984.
    Petition for Allowance of Appeal Granted May 1, 1984.

      James R. Cooney, Pittsburgh, for appellant.
    Thomas E. Reilly, Pittsburgh, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   McEWEN, Judge:

Appellant, Laurel Mountain Development Corporation [hereinafter referred to as Laurel Mountain], seeks review of an order dismissing its petition to open the judgment confessed against it by the Keystone Bank, of which appellee First Seneca Bank & Trust Company [hereinafter referred to as First Seneca] is the successor in interest. The distinguished Judge Norman A. Shaulis dismissed the petition finding that the appellant did not promptly seek the requested relief. We affirm.

It is not necessary or purposeful to recount the detailed history of this appeal since a synopsis will enable a meaningful study. Appellant Laurel Mountain was the owner and developer of a tract of land in Somerset County, Pennsylvania. On August 25, 1975, Laurel Mountain obtained a mortgage loan from the Keystone Bank in the amount of $600,000.00 to be secured by this tract of ground. The agreement provided that $225,000.00 was to be disbursed immediately and the remaining $375,000.00 would be forthcoming after participation by other lenders in the venture was obtained. The parties executed a mortgage note, containing a confession of judgment clause, as evidence of the transaction. Laurel Mountain actually received $244,000.00 of the loan. The appellant fell behind in its payment schedule but the parties were able to resolve this initial default satisfactorily. In March of 1979, however, three and one-half years after the loan agreement, Laurel Mountain was again in default and Keystone proceeded to confess judgment against it. The docket entries reflect that notice of the entry of this judgment was duly mailed to the appellant and the testimony of the president of Laurel Mountain, given at his deposition, indicates that the notice was received.

Laurel Mountain asserts that it was the failure of Keystone Bank to disburse the balance of the loan monies which was responsible for the financial difficulties which eventually resulted in this default. Representatives of the appellant contend that they contacted Keystone personnel many times after the initial disbursement seeking distribution of the remaining funds and were assured by Keystone that the monies would be forthcoming and, therefore, litigation to compel distribution was unwarranted. The attorney who confessed judgment against Laurel Mountain also represented Alan Patterson, the President and principal shareholder of Laurel Mountain and allegedly advised Patterson not to be concerned about the entry of judgment and that he [the attorney] would continue to protect the interests of Laurel Mountain.

When Keystone subsequently sought to execute upon the real property of appellant in March of 1980, Laurel Mountain, which had by this time secured different counsel, petitioned the Court of Common Pleas for a stay of the execution and received a stay of 120 days. When this stay had expired and the appellant remained in default, Keystone again ordered that execution issue. After Laurel Mountain petitioned for another stay, the court, persuaded by the representation of appellant that it would undertake an aggressive real estate campaign to sell the individual lots and obtain money with which to pay off its creditors, granted, on October 15, 1980, a further stay until March 31, 1981.

Prior to the expiration of this stay, appellant instituted, on February 11, 1981, a separate action in equity against the bank seeking to compel a disbursement of the remaining funds provided for in the agreement and to enjoin execution upon the confessed judgment. When, on March 31, 1981, the further stay of execution had expired appellee, First Seneca, which had merged with Keystone in August of 1980, sought to proceed with the execution. Appellant four months later, on July 30, 1981, in response to the threatened execution, filed (1) a petition to open or in the alternative to strike the judgment which had been entered 28 months earlier, (2) a motion for a stay of execution and (3) a motion to consolidate this action with the equity suit it had previously instituted. After depositions were taken and argument conducted, the petition to open judgment was dismissed on February 8, 1982.

The principles governing our review of this appeal are well established. A petition to open judgment is addressed to the sound discretion and equitable power of the hearing court. Lincoln Bank v. Kelly, 282 Pa.Super. 261, 266, 422 A.2d 1106, 1109 (1980). The exercise of this discretion will not be reversed in the absence of a manifest abuse of discretion or an error of law. Id. A judgment taken by confession can be opened only when the proponent acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to a jury. Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983); Young v. Pileggi, 309 Pa.Super. 565, 568, 455 A.2d 1228, 1229-30 (1983). The facts of this case require us to focus upon and carefully analyze the particular requirement that the proponent act in timely fashion.

Our review of Pennsylvania appellate discussions upon the subject convinces us that a mere consideration of the calendar provides an insufficient basis from which to determine whether the petitioner has complied with the requirement that the effort to open be commenced promptly. See First National Bank of Verona v. Walsh, 349 Pa. 241, 37 A.2d 130 (1944); Wilkes-Barre Deposit & Savings Bank v. Hermann, 334 Pa. 560, 6 A.2d 496 (1939). See also Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa.Super. 115, 419 A.2d 688 (1980).

Rather, consideration of the timeliness requirement requires the Chancellor to weigh three factors, namely, the extent of the delay, the explanation for the delay and the nature of the harm resulting from the delay.

The emphasis frequently laid during appellate discussion of this issue upon the factors of the length and reasonableness of the delay has, perhaps, obscured the consideration provided the factor of prejudice resulting from the delay. New principles are more clearly established in this Commonwealth than that a judgment debtor seeking to open a confessed judgment must act promptly, must allege a meritorious defense and must present such evidence of the defense as to indicate the issues are a question for the jury. We do not here suggest there is any further requirement — indeed, the nature of the prejudice claimed to have resulted from the delay is ordinarily evidence to be submitted by the respondent to a petition to open. Rather, we simply reiterate that a petition to open judgment is equitable in nature and, as such, is subject to the principle of laches which requires not only a finding of unexplained delay by the petitioner but also a finding that the judgment creditor has suffered prejudice by reason of the delay. Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982); First Valley Bank v. Donatelli, 279 Pa.Super. 521, 421 A.2d 321 (1980); James v. Silverstein, 224 Pa.Super. 489, 306 A.2d 910 (1973).

The able opinion of the hearing judge demonstrates the careful reflection he provided to each of the three elements that compose the requirement of timeliness. The failure of Laurel Mountain to challenge the confessed judgment until 28 months had elapsed hardly reflects the required diligence; and, of course, the explanation for that delay can hardly be termed reasonable; nor can it be doubted that the bank was prejudiced since it had been lulled for more than two years into believing that appellant did not intend to defend or question the debt but rather that the appellant sought several delays in execution solely for the purpose of enabling repayment of the obligation. Our study of the record leads us to conclude that the hearing judge properly determined that appellant had not proceeded in prompt fashion to challenge the judgment.

The hearing judge pronounced in clear and certain fashion his determination that appellant had not proceeded in a timely fashion, and apparently found it thereby unnecessary to consider the remaining requirements, namely, whether there was a meritorious defense and whether there appeared to be such evidence of the defense that the issue was a question for the jury. Nonetheless, we parenthetically observe that our examination of the entire record does not reveal that appellant had complied — or even was able to comply — with these obligations. Whatever relief or redress to which appellant might feel entitled by reason of the conduct of the representatives of the appellee would not have been the basis for any defense to the obligation of repayment.

Order affirmed.

      . The order of the hearing judge also dismissed the motion of appellant to strike the judgment, denied the motion to consolidate and lifted the stay of execution which had been ordered at the time of the filing of these motions. Appellant does not question the propriety of these provisions of the order.

      . Whether there existed any merit to the claim of petitioner that it was lulled into inactivity by the representations of the attorney who was counsel for both the bank and Laurel Mountain, we note that this conflict of representation had ended by March of 1980, by which time Laurel Mountain had retained separate counsel. Appellant did not seek to open judgment until approximately sixteen months after this conflict had been resolved although it twice petitioned for a stay of the execution ordered by the bank. Moreover, Laurel Mountain advanced the following explanation for its failure to pursue this remedy in timely fashion:
      ..., the Defendant [Laurel Mountain] acted on the basis that the Defendant would be able to raise sufficient funds to pay off the claim of Keystone Bank and subsequently sue Keystone Bank when Defendant had sufficient funds — the Defendant being most interested in releasing the property of Laurel Mountain Development Corporation so that it could engage in the sale and development of lots and the construction of homes in the area rather than to involve themselves [sic] in so much litigation as to be unable to carry on its daily business.

      Motion to Open Judgment, paragraph 6 (emphasis added). The mere desire of Laurel Mountain to avoid litigation, in the circumstances of this case, does not present a legally cognizable excuse for its protracted delay.


author: CIRILLO, Judge:

text:
    471 A.2d 879
    COMMONWEALTH of Pennsylvania v. George JONES, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 8, 1983.
    Filed Feb. 10, 1984.
    Petition for Allowance of Appeal Granted Aug. 30, 1984.

      John A. Halley, Pittsburgh, for appellant.
    Melinda G. Tell, Assistant District Attorney, Pittsburgh,for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551.

In January of 1977 appellant George Jones and two cohorts held up an insurance company office in Pittsburgh. Police officers immediately apprehended the robbers after a shootout in the street behind the insurance office. For Jones the upshot came on October 18, 1977, when an Allegheny County jury found him guilty of three counts of robbery, two counts of recklessly endangering another person, and one count each of theft, aggravated assault, and criminal conspiracy. Jones was sentenced to an aggregate of thirty to sixty years in prison.

On direct appeal, we affirmed the judgment of sentence, and the Supreme Court denied allocatur on December 8, 1980.

On October 23, 1981, Jones filed a petition under the PCHA alleging a denial of his constitutional right to competent counsel. After a counselled evidentiary hearing, the court denied relief in an order dated April 23,1982. We will affirm.

Jones first claims that the trial court denied him his right to counsel by refusing to continue the case so that Attorney Paul Gettleman could represent him. We rejected this precise claim on direct appeal. Commonwealth v. Jones, 289 Pa.Super. 556, 429 A.2d 59 (1980) (per curiam order). Therefore, the issue has been finally litigated in this Court and we will not address it again, Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981); Commonwealth v. Dyson, 249 Pa.Super. 503, 378 A.2d 408 (1977); Commonwealth v. Peetros, 245 Pa.Super. 84, 369 A.2d 305, 306 (1976), although the Supreme Court may still have the discretion to review the claim, see Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); but see Commonwealth v. Beecham, 450 Pa. 197, 299 A.2d 651 (1973).

Once the trial court denied a continuance, Jones elected to represent himself at trial. Nevertheless, the court directed public defender Frank Reilley to act as advisory counsel. Mr. Reilley had been serving Jones in that capacity in pretrial proceedings, and in addition represented Jones on direct appeal. Jones now assigns Reilley’s ineffective representation as grounds for relief.

Jones alleges that Reilley was ineffective in failing to preserve two issues: whether in-court witness identification testimony should have been suppressed, and whether Jones’s oral confession was voluntary.

In cases of this sort it is well-settled that counsel cannot be deemed ineffective unless pursuing the foregone claims presented a substantially greater potential for success than counsel’s course of not pursuing the claims. Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981). It therefore stands to reason that counsel cannot be deemed ineffective for failing to assert meritless claims. Id.; Commonwealth v. Kenney, 317 Pa.Super. 175, 463 A.2d 1142 (1983). The burden of proving counsel’s ineffectiveness never shifts from the party alleging it. Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983).

Appellant’s claim that in-court identifications of him should have been suppressed is based on the fact that the court suppressed identifications made by three witnesses at the preliminary hearing. The claim is without substance. The applicable rule of law is that after suppression of a suggestive out-of-court identification, in-court identification may still be admitted if, considering the totality of the circumstances, the court determines that the in-court identification has an independent origin sufficiently distinguishable from the pretrial encounter. Commonwealth v. Zabala, 303 Pa.Super. 72, 449 A.2d 583 (1982). In this case the suppression court found clear and convincing evidence of an independent origin for each in-court identification. Four victims of Jones’s misbegotten get-rich-quick scheme and four police officers involved in the subsequent chase positively identified Jones at trial. Each had an excellent opportunity to observe Jones during the incident and after his immediate capture. It is virtually inconceivable that these identifications were made on the basis of the suppressed preliminary hearing testimony. Appellant has directed us to no fact or circumstance that would upset the suppression court’s finding of independent origin, and prior counsel could have gained nothing from pressing this claim.

Jones’s claim of an involuntary confession is equally fruitless. In the melee after the holdup one of the officers on the scene was shot in the leg. While being taken away in the paddy wagon Jones admitted to being the shooter. He alleges that the officers in the wagon beat the admission out of him and failed to read him his rights.

The officers’ version was to the contrary. According to three of them, after Jones had been given Miranda warnings he inquired how the wounded officer was faring; Officer James Holliday responded, “What the hell do you care?”, prompting Jones spontaneously to inculpate himself with the shooting. A fourth officer’s testimony indicated that the inculpatory exchange occurred before warnings were given. However, appellant’s claim that his admission was unconstitutionally induced remains unsupported, since Officer Holliday’s question in response to Jones’s question cannot be characterized as custodial police interrogation by any stretch of the imagination.

The PCHA court credited the officers’ version of events in the paddy wagon and disbelieved appellant’s. The court’s credibility determinations will be upheld on appeal. Commonwealth v. Wright, 497 Pa. 492, 442 A.2d 230 (1982); Commonwealth v. Carrillo, 319 Pa.Super. 115, 465 A.2d 1256 (1983).

Order affirmed.


author: MONTEMURO, Judge:

text:
    471 A.2d 881
    Elayne KLEIN v. Daniel SARUBIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1983.
    Filed Feb. 10, 1984.

      Joyce Ullman, Philadelphia, for appellant.
    Sandor Engel, Allentown, for appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal from an order granting appellee’s petition for an increase in support, and denying appellant’s petition for a reduction, entered in the Court of Common Pleas, Lehigh County.

Appellant and appellee were married in 1965. Two children were born of the marriage, Scott in 1969, and Allison in 1971. The parties were divorced in 1976. Prior to that, in 1975, appellant and appellee entered into an agreement whereby appellant was to pay $200.00 per week for the support of the parties’ two children. This subsequently became part of a court order.

Shortly after the divorce, appellee remarried. The children have resided with appellee since the parties’ separation, and currently reside with her, her husband, Murray Klein, and a child of her present marriage, Julia.

In January of 1981, appellee filed a petition for modification of the support order, seeking an increase in support for the two children. Appellant subsequently filed a petition for modification, seeking a decrease in the support order.

Both petitions were consolidated for a hearing before the Honorable David E. Mellenberg. The court below found that appellee’s expenses in connection with raising the children had increased since the entry of the original order, and that this increase was due mainly to the fact that the children had advanced in age and were now pre-teenagers. In addition, the older child, Scott, has a learning disability, requiring special schooling at an increased cost since the time of the original order. Regarding the financial circumstances of the parents, the court found that appellant’s net income had increased from $46,703.38 in 1976 to approximately $81,000.00 in 1980. Appellant, who is a physician, had also acquired assets of $61,000.00 in that same period. Appellee is presently unemployed, and at home caring for the child of her present marriage.

At the hearing in the court below, appellant attempted to pursue, and did pursue to the extent permitted, a line of inquiry concerning appellee’s husband’s relationship with the children. This was done in an effort to show that appellee’s husband had assumed the status of in loco parentis to the children. Appellant’s theory is that appellee’s husband stands in loco parentis to the children, and as a consequence has a legal obligation to support them. The general rule is that a stepparent has no legal obligation to support his or her stepchild. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981). Appellant’s first argument on appeal is that the court below erred in not permitting him to fully develop this theory. We disagree.

Certainly it is true that the doctrine of in loco parentis status exists within the Commonwealth. “The status of in loco parentis embodies two ideas: first, the assumption of parental status, and second, the discharge of parental duties.” Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). Existence of such a relationship is largely dependent upon the intention of the person assuming the parental status. D’Auria v. Liposky, 197 Pa.Super. 271, 177 A.2d 133 (1962).

While we acknowledge that in certain instances a stepfather who lives with his wife and her natural child may assume the relationship to the child of in loco parentis, Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977), and also recognize that in particular instances, a support obligation has been imposed as a consequence, Commonwealth ex rel. Bulson v. Bulson, 278 Pa.Super. 6, 419 A.2d 1327 (1980); Commonwealth v. Cameron, 197 Pa.Super. 403, 179 A.2d 270 (1962), we rule that the doctrine has no place in the present proceedings.

In his brief, appellant directs the court to two Pennsylvania cases in which a support obligation has been imposed on a stepparent, based on in loco parentis status. Bulson v. Bulson, supra; Commonwealth v. Cameron, supra. Both are distinguishable from the case sub judice. Bulson involved an appeal from an order of spousal support. Appellant therein argued on appeal that the lower court had abused it discretion when it took into account the cost to appellee of supporting a child of a prior marriage. We affirmed, discussing the doctrine of in loco parentis, and stating that the lower court had, “ample evidence from which to infer that appellant had assumed the obligation himself when he married appellant, knowing that she had a child in need of support.” Bulson v. Bulson, supra 278 Pa.Super. at 10, 419 A.2d at 1329. In Cameron, the stepfather and the child’s mother had executed a written release in favor of the child’s father. On appeal, we ruled that by doing so, the mother and stepfather, “had assumed a primary obligation for the support of the child, and unless and until the child becomes a burden on the State, their agreement to assume a position of loco parentis must stand.” Cameron, supra 197 Pa.Super. at 409, 179 A.2d at 273. That the rationale of each of these cases is inapposite here is clear. Here, appellee and her husband never executed an agreement releasing appellant from his support obligation. As to distinguishing Bulson, appellee’s present husband did not marry her knowing that she had children in need of support; to the contrary, he married her while a support order against the children’s father was in existence. Cf Commonwealth ex rel. Stack v. Stack, 141 Pa.Super. 147, 15 A.2d 76 (1940).

Although appellant has been somewhat ingenious in his terminology, his argument in actuality is a thinly veiled attempt to interject a lack of custody and visitation as a basis for being relieved of his support obligation. This court has rejected such a notion on numerous occasions. Commonwealth ex rel. Mickey v. Mickey, 220 Pa.Super. 39, 280 A.2d 417 (1971); Commonwealth ex rel. Crane v. Rosenberger, 212 Pa.Super. 144, 239 A.2d 810 (1968); Commonwealth v. Mexal, 201 Pa.Super. 457, 193 A.2d 680 (1963). The court below was correct in refusing to allow appellant to do implicitly that which this court has explicitly disapproved.

Appellant’s questioning at the hearing in the court below was solely of appellee. Nowhere does he suggest that he attempted to call her husband as a witness. The questions which were asked or attempted to be asked relate to the children’s occasional use of the stepfather’s surname; the extent of parental control exercised by both appellee and her husband; and alleged interference with visitation perpetrated, once again, by both appellee and her husband. Neither appellant’s questioning in the court below, nor his argument on appeal, focuses on the key factor for determining in loco parentis status — the intentions of the children’s stepfather, Murray Klein. D’Auria v. Liposky, supra.

Moreover, even assuming that appellant had properly attempted to demonstrate in loco parentis status, we note here by way of dictim that we can conceive of no policy reason for permitting a natural parent to employ such a tactic in order to relieve himself of his support obligation, and impose it on a stepparent, where, as here, the natural parent nowhere suggests that he is unable financially to provide necessaries for his children.

We now turn to appellant’s second argument. Appellant phrases the issue in terms of whether the court below erred in not requiring appellee and her husband to produce their most recent joint income tax return on the basis that the financial ability of the appellee and her husband to contribute to the support and maintenance of the children was irrelevant. Appellant’s phrasing of the issue is misleading.

At the time of the hearing in the court below, appellant was in possession of the joint returns of appellee and her husband for 1977, 1978 and 1979. Appellee and her husband had obtained an extension from the Internal Revenue Service for filing their 1980 return; consequently, at the time of the hearing it had not yet been prepared. What the court below refused to do was to continue the proceedings until the return was prepared. The court nowhere stated that “the financial ability of appellee and her husband to contribute to the support and maintenance of the children was irrelevant.” (emphasis added).

As we have rejected appellant’s argument regarding in loco parentis status as to appellee’s husband, we are left with the general proposition that a stepparent has no legal obligation to support stepchildren. Commonwealth ex rel. Hagerty v. Eyster, supra; Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 403 A.2d 124 (1979). In Mainzer, however, the court did state that:

Although appellant’s present husband has no duty to support the children of appellant’s first marriage and his separate assets and earning may not be considered part of appellant’s financial resources the court could properly consider the new husband’s voluntary contributions to the family budget in computing appellant-mother’s ‘ability to pay.’ See Commonwealth ex rel. Travitzky v. Travitzky, 230 Pa.Super. 435, 326 A.2d 883 (1974).

Mainzer v. Audi, supra 266 Pa.Super. at 124, 403 A.2d at 125. A child’s mother, of course, has an obligation to contribute to his or her support. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974); Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975).

Armed with these legal principles, we now turn to the evidence. It reveals that appellee’s earning capacity was inquired into at the hearing. (N.T. April 10, 1981, pp. 125-127). In addition, appellee was questioned by the court as to why she was not presently working. She responded that the basic reason was because she was taking care of the two-year old child of her present marriage. (N.T. April 10, 1981, pp. 131-132). Appellant, on appeal, makes no complaint regarding any of this evidence.

We fail to see, in light of that' which has just been discussed, how the 1980 tax return was necessary for the hearing court’s determination. As stated above, a court may consider a new husband’s voluntary contributions to the family budget in computing a mother’s ability to pay. Mainzer v. Audi, supra. However, in this case, regardless of appellee’s husband’s income, and even assuming that he was paying all of her expenses, she still would not be able to contribute to the children’s support because she has no income with which to do so. Her present inability to contribute was established to the satisfaction of both appellant and the court by the presence of a two-year old child at home requiring her care. Cf. Bender v. Bender, 297 Pa.Super. 461, 444 A.2d 124 (1982); Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977). Accordingly, we decline to rule that the court below abused its discretion in failing to continue the hearing until appellee’s 1980 tax return was produced.

Order affirmed.

      . We are aware of the existence of a Common Pleas Court case which holds that the doctrine of in loco parentis is not applicable to support cases. Yoke v. Yoke, 11 D & C 3d 472 (1979). We decline to accept such a broad proposition.