author: CIRILLO, Judge: CAVANAUGH, Judge,

text:
    463 A.2d 456
    COMMONWEALTH of Pennsylvania v. William CASWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1982.
    Filed July 22, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      John Joseph Cerra, Carbondale, for appellant.
    Ernest D. Preate, Jr., District Attorney, Scranton, for Com., appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence issued by Munley, J., on October 5, 1981. The appellant, William Caswell, was convicted in a jury proceeding and found guilty of robbery, receiving stolen property, and conspiracy. His motions for a new trial and in arrest of judgment were denied and this appeal followed.

On February 16, 1980, the Giant Market located in Scranton, Pennsylvania, was held up by three men, apparently wearing false mustaches and beards. One of these men was identified as the appellant. At trial, the dairy manager testified that one of the men had a gun and that one was heavy-set. The manager of the store, Mr. Yaninek, testified that the appellant had the gun and announced that a hold up was taking place. He then directed Mr. Yaninek to open the store safe. The appellant then placed a good deal of money into a shopping bag. After the robbery, Mr. Yaninek described to the police the person who took the money from the safe as a heavy-set man weighing about 230 pounds with a mustache and goatee. At a police line-up on May 20, 1980, Mr. Yaninek also identified the appellant, although through an error he circled the wrong number on the paper given to him by the police. Additionally, at trial, the store manager unequivocally testified with respect to the appellant: “I’m positive that was the man.”

The appellant was also identified by Barbara Zlotnicki, the head cashier in the store. She was a short distance from the appellant who held a gun on her and the manager as he removed money from the safe and placed it in a shopping bag. At trial she described the appellant’s appearance as follows:

Q. How was he dressed?
A. Well, he stuck out like a sore thumb. He had a sweatshirt on and he had a cap on, a ski cap. And he had a hood on the sweatshirt and the hood was down. He had a ski cap that came down over his eye and covered right to the back of his head.
Q. What do you mean by over his eye?
A. Well, above his eyebrow, is what I meant. It was right above his eyebrow, went right around his head. And he had a fake mustache and a fake goatee on.
Q. How do you know it was a fake mustache and fake goatee?
A. The mustache was on like scotch tape or something. It was coming off on the side. It just appeared to be. It wasn’t real at all.
Q. Did you see his hair at all, the hair on his head?
A. Part of it was hanging down over his ears and over the back, over the collar of his coat and sweatshirt.
Q. What color?
A. Sort of a darkish-brown, brassy-type.
Q. Pardon?
A. It was sort of like a brassy brown or something. That didn’t look real either.
Q. What do you mean, it didn’t look real?
A. It looked like it was dyed or something. It was hard to tell. It needed to be cut or trimmed or something. It looked like—it could have been a wig or it could have been his own hair pulled down by the hat, but whatever—

Ms. Zlotnicki had observed the appellant from a distance of two and a half to three feet for about three minutes in a brightly lit office.

One witness, Sharon Edmondson, also an employee of the store, testified that a heavy-set man, with a gun, was one of the robbers and that he “took” the manager into the office. She was in the presence of the heavy-set man for only a “second” and did not see his face. She did not identify the appellant at trial as being involved in the crime.

On appeal, appellant challenges the validity of his identification and the effectiveness of trial counsel for not raising this issue in post-trial motions. Initially, the guidelines for identification are as follows:

[T]he factors relevant to determining the reliability of the identification are:
... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

Commonwealth v. Ransome, 485 Pa. 490, 496, 402 A.2d 1379, 1382 (1979), quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

As previously indicated, two of the witnesses had ample time to view the appellant at close range and in a well-lighted area. A third witness, Sharon Edmondson, did not identify the appellant at trial, but gave a general physical description which harmonized with the testimony of the other two witnesses.

Appellant contends that because of inconsistencies brought out on cross-examination, trial counsel should have requested the court to rule on whether the identification was based on suggestive pre-trial identification procedures. We have reviewed the record, and we find that this argument is without merit.

The mere fact that the defense counsel’s cross-examination may have provided some basis for the jury to question the validity of the identification by these witnesses, did not provide a basis for suggesting that there was any reason why this testimony was inadmissible and, therefore, subject to a motion to suppress.

Commonwealth v. Brown, 489 Pa. 285, 306, 414 A.2d 70, 80 (1980).

Accordingly, counsel was not ineffective for not raising this issue at trial nor in post-trial motions because it had no underlying merit. Counsel will not be deemed ineffective for not raising frivolous claims. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974).

Appellant’s next contention is that the lower court erred in admitting certain incriminating statements which he made. Appellant was arrested on April 29, 1980 and taken to the police barracks. While he was waiting to be processed, Detective Klee and Trooper Carlson read him his rights and appellant stated that he understood them. He then indicated that he did not wish to talk. Approximately forty-five minutes later, appellant was advised by Detective Klee as to why he was arrested. He responded that he was a gentleman bandit and that he never hurt anyone. Thereafter, Trooper Carlson initiated a conversation with appellant and the incriminating statements ensued.

Once a criminal defendant tells the police that he does not want to talk to them about the crime, the interrogation must cease. Commonwealth v. Walker, 470 Pa. 534, 368 A.2d 1284 (1977). However, the United States Supreme Court in the very case establishing this rule of law stated: “In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement.” Miranda v. Arizona, 384 U.S. 436 at 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966). Therefore, to hold under the facts of this case that the appellant’s interview with the police was constitutionally defective would undesirably restrict the use of confessions as an element of law enforcement.

After reviewing the record, we hold that the appellant waived his Miranda rights, because his statements were voluntary under the meaning of Edwards v. Arizona, 451 U.S. 477, 484-5, 101 S.Ct. 1880, 1884-5, 68 L.Ed.2d 378, 386 (1981):

We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities, unless the accused himself initiated further communication, exchanges, or conversations with police, (emphasis added.)

In the instant case, appellant expressed his desire to remain silent. Then, when he volunteered that he was the gentleman bandit and never intended to hurt anyone, he initiated the discussion in which he made the incriminating statements. Under the meaning of Edwards, those statements were voluntary.

Like the United States Supreme Court, the Pennsylvania Supreme Court has developed the rule of law that voluntary statements constitute a waiver of Miranda rights. In Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 289-90 (1976), our Supreme Court stated:

Although there is no single litmus paper test for determining the voluntariness of a confession, it must establish that the decision to speak was a product of a free and unconstrained choice of its maker.... All attending circumstances surrounding the confession must be considered in this determination. These include: the duration and methods of the interrogation; the length of delay between arrest and arraignment; the conditions of detainment; the attitudes of police toward defendant; defendant’s physical and psychological state; and all other conditions present which may serve to drain one’s power of resistance to suggestion or to undermine one’s self-determination. (Citations omitted.)

See also, Commonwealth v. O’Bryant, 479 Pa. 534, 539-40, 388 A.2d 1059, 1062 (1978); Commonwealth v. Simmons, 482 Pa. 496, 507-8, 394 A.2d 431, 437-8 (1978).

In the instant case, the interview seems to have commenced approximately 45 minutes after the appellant was given his Miranda warnings. The appellant did not request the assistance of counsel before he made any statement. Nor does it seem that he requested at any time that the interview be terminated. In fact, his statements to the police suggest that he was alert and responsive. Also, there are no hints of threats or physical violence by the police during the interview. Therefore, the appellant’s incriminating statements were the product not of police compulsion, but of his own free will. Accordingly, we hold that the lower court did not err in permitting these statements at the trial.

Appellant’s next contention is that Pa.R.Crim.P. Rule 1100 was violated because trial was not started prior to the run date of October 26, 1980. The appellant was arrested on April 29, 1980. His trial finally commenced on November 18, 1980. In the interim, on October 17, 1980, the Commonwealth filed a petition for an extension of time to commence trial. Because of various continuances requested by the appellant or his counsel, the hearing on the Commonwealth’s petition was not held until November 7, 1980. Accordingly, the appellant contends that because the hearing was held after the run date, his speedy trial rights were violated. Our review of the record indicates that the Commonwealth exercised due diligence and that it was the appellant’s requests which occasioned the delay in scheduling the hearing. See, Commonwealth v. Lane, 245 Pa.Super. 146, 369 A.2d 335 (1976). Additionally, there is no requirement that the hearing on an extension petition be held prior to the run date. See, Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982); Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982).

Appellant’s last contention is that the verdict is contrary to the law and not supported by the evidence. The test for determining the sufficiency of the evidence is whether viewing all of the evidence and the reasonable inferences therefrom in the light most favorable to the verdict winner, the evidence is sufficient to sustain the verdict. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Jones, 291 Pa.Super. 69, 435 A.2d 223 (1981); Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981).

At trial, the Commonwealth produced four witnesses to the crime. Two of those witnesses positively identified the appellant from the scene of the crime, at subsequent line-ups, and in court. There is no question that the appellant was at the scene and that he participated in the robbery. Such eyewitness identification clearly supports the verdict and is not contrary to law. Accordingly, we find appellant’s final contention to be without merit.

Judgment of sentence affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I dissent from that part of the majority’s opinion which holds that the appellant’s incriminating statements to the police were voluntary.

Appellant contends that the court erred in admitting certain incriminating statements which he made. I agree, and although the evidence apart from the incriminating statements appears to be sufficient to sustain the appellant’s convictions, the erroneous admission of the statements was prejudicial to him. After the appellant was arrested he was read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At that time he stated that he did not want to talk to the police. Nevertheless the police continued conversation with the appellant and continued to question him. The conversation and interrogation lasted about forty-five minutes. Notwithstanding that appellant told detective Klee of the Scranton Police Department that he did not want to talk to the police the following occurred. Sergeant Klee testified as follows:

Q. And after you told him why he was arrested, did he make a remark to you?
A. Yes, sir, he did.
Q. And what was that remark?
A. After the reason being explained to him, Mr. Caswell stated that he was a gentleman bandit and he never hurt no one.
Q. Is that a quote?
A. Yes, quote, unquote.
Q. And whether or not Trooper Carlson made any statements to the defendant?
A. Yes, sir, he did.
Q. And whether or not the defendant responded?
A. Yes, he did.
Q. And what was his response?
A. The conversation and the statement made by Mr. Caswell was, “I thought that this was a hick town, and that you guys were ten years behind the time. But you guys sure did your homework.”
Q. And was the defendant asked whether or not he knew he was under surveillance?
A. Yes, sir, he was.
Q. And whether or not he responded?
A. Yes, sir, he did.
Q. What did he say?
A. His statement was he first became suspicious that the police were onto him was on April 27th of 1980 when a young boy came to his door—
Q. Did you ask the question whether he knew he was under surveillance?
A. Yes, sir.
Q. And what did he respond?
A. He stated that he became suspicious on April 27th of this year when a young boy came to the front door of his home at 943 South Main Avenue and advised him that police were across the street watching his home and taking pictures. At this point he indicated to us that he believed he was becoming hot and that he was going to leave town and go to Florida.
Q. And did he say anything else?
A. Yes. He indicated to us that he had his bag packed with his clothing and belongings, and that right before he was arrested, he was going to leave town.
Q. Now, in fact, at the time of his arrest at 943 South Main Street, did you find a bag packed?
A. Yes sir. On the date of the arrest, April 29th, when Mr. Caswell was taken into custody, he asked me personally if I would go upstairs...
(Emphasis added).

Once a criminal defendant tells the police that he does not want to talk to them about the crime, interrogation must cease:

In [Commonwealth v.] Bullard [465 Pa. 341, 350 A.2d 797 (1976) ] appellant’s desire not to answer police questions was conveyed to the police through certain intermediaries. In the instant case appellant stated his desires directly to the interrogating officer involved, and the fact that he did not have the wherewithal to surrender himself to police in the presence of a judge, or did not have the presence of mind to request the assistance of an attorney at the same time he conveyed his desire not to speak, in no way derogates from his expression of a desire to exercise his constitutional right to remain silent. As stated by the Miranda court,
“[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. (Footnote omitted.) At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” (Emphasis added.)
384 U.S. 436, 473-474, 86 S.Ct. 1602, 1627-1628, 16 L.Ed.2d 694, 723 (1966).

Commonwealth v. Walker, 470 Pa. 534, 542, 368 A.2d 1284, 1288 (1977). (Emphasis added).

The majority relies on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). That case held that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. This case is distinguishable from our own on its facts, and in my opinion lends little support to the majority.

The facts in the instant case should be read in the light of Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979). In that case the appellant contended that the police violated his rights under Miranda by interrogating him after he initially indicated he wished to remain silent. In Rose no interrogation took place after the appellant decided to remain silent. However, the police then confronted him with a ballistics report and other facts that they had gathered which connected him with other crimes and again read Miranda warnings. The appellant then made a statement concerning the crimes. This court stated at 265 Pa.Super. 168, 401 A.2d 1153: “... [AJfter a second reading of the Miranda warnings ... the appellant voluntarily relinquished his rights and made a statement concerning the crime.” The court also noted at 265 Pa.Super. 168, 401 A.2d 1153:

The evidence that improper police tactics were used is not convincing. Cf. Commonwealth v. Milton, 461 Pa. 535, 337 A.2d 282 (1975). Informing appellant of additional developments in the case can go toward exculpating as well as inculpating appellant’s involvement in the crime. As long as the Miranda warnings were properly readministered, which they were in this case, no error was committed in allowing into evidence the statements of appellant made after requestioning.
(Emphasis added)

In the instant case the police told the appellant why he was arrested and his statement that he was a gentleman bandit and never hurt anyone may be considered as a purely voluntary remark and not in response to interrogation. However, the police were not satisfied and continued with their questions as to whether he knew that he was under surveillance. This interrogation was clearly related to the crimes with which he was charged. Also the testimony was that Trooper Carlson made “statements to the appellant and he responded.” The statements were undoubtedly in the form of questions as the appellant responded to them. If we are to give any serious meaning to the rule of law that interrogation must cease when one indicates during questioning that he wishes to remain silent, we should grant a new trial in this case as the result of the continuation of interrogation after appellant stated that he did not want to talk to the police. In my opinion admission of the testimony was erroneous and for a reviewing court to conclude that an error is harmless it must be convinced beyond a reasonable doubt that the error did not contribute to the verdict. Commonwealth v. Terry, 275 Pa.Super. 184, 418 A.2d 673 (1980). I am not convinced beyond a reasonable doubt that appellant’s statement as to when and why he became aware of police surveillance and that he was getting ready to leave town as things were getting hot, did not contribute to the verdict. Examination of the record leads me to the conclusion that the error was not harmless beyond a reasonable doubt.

I would reverse the judgment of sentence and remand for a new trial.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 903.

      . Appellant was also convicted of various crimes in another robbery. On appeal to this court his conviction was affirmed. See Commonwealth v. Caswell, J. 903/82, No. 2255 Philadelphia 1981.

      . We decline to view the facts of the instant case in light of Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979). In Rose, no interrogation took place after the defendant decided to remain silent. Then police confronted him with a ballistics report and other facts which connected him with other crimes. After his Miranda warnings were readministered, he made a statement concerning the crime. We cannot say that the sine qua non of a legitimate confession’s admissibility is that the appellant’s Miranda warnings must be readministered. That is especially so in the instant case in which the intervening time period was so short. See, Commonwealth v. Abrams, 443 Pa. 295, 278 A.2d 902 (1971) (eight hour-old warnings not stale); Commonwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971) (five hour-old warnings not stale); Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972) (55 minute-old warnings not stale); Commonwealth v. Swint, 450 Pa. 54, 296 A.2d 777 (1972) (two hour-old warnings not stale).

      . The majority, in footnote 5, declined to apply Commonwealth v. Rose to the facts of the instant case, as the intervening time between the giving of the warnings and the statements was relatively short. In this respect, the majority misses the point. The issue is not how close in time a statement is made to the warning, but rather, is the statement voluntary. The majority cites Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972) for the proposition that a "55 minute-old warning” is not stale. In Bradley, however, the accused after receiving the warnings did not tell the police officer, as in our case, that he did not want to talk to them. Another case cited by the majority in this respect is Commonwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971) in which the Supreme Court stated expressly that Miranda v. Arizona, supra, did not apply.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    463 A.2d 463
    STATE FARM INSURANCE COMPANY, Appellant, v. Patricia BULLOCK and Francis Green.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1981.
    Filed July 22, 1983.

      Joseph T. Murphy, Jr., Philadelphia, for appellant.
    Fred Lowenchuss, Philadelphia, for appellee.
    Before PRICE , MONTEMURO and VAN der VOORT, JJ.

       Judge Price did not participate in the consideration or decision of this case.

   MONTEMURO, Judge:

On November 1, 1975, appellees, Patricia Bullock and Francis Green, were involved in a motor vehicle accident when the vehicle they were driving was struck by a vehicle driven by one Daniel Shields. Bullock commenced an action in trespass against Shields in the Court of Common Pleas of Philadelphia County. The case proceeded to compulsory arbitration and an award was entered in Bullock’s favor in the amount of Eight Thousand ($8,000.00) Dollars. The award was properly appealed to the court of common pleas, for a trial de novo, by Shields insurer, Safeguard Mutual Insurance Company (hereinafter Safeguard).

On May 29, 1979, while that appeal was pending, the Insurance Commissioner of Pennsylvania, pursuant to the authority granted by 40 P.S. § 221.10(a), issued a summary order suspending the business of Safeguard in this Commonwealth. The order also stated that an examination of the books, records, accounts and affairs of Safeguard revealed that “as of December 3, 1977, as of December 31, 1978, and at present, Safeguard is insolvent.”

Thereafter, the appellees, Bullock and Green, through, counsel, made a claim against Bullock’s insurer, State Farm Insurance Company (hereinafter State Farm), under the uninsured motorist coverage provision of her policy. They contended that Safeguard’s financial status and the Commissioner’s order had the effect of rendering Shields uninsured, thus triggering the uninsured motorist coverage. State Farm refused coverage and the appellees sought arbitration of the claim. State Farm sought to enjoin the arbitration; however, the court below ordered it to proceed thereto in accordance with Mapp v. Nationwide Insurance Company, 268 Pa.Super. 404, 408 A.2d 850 (1979). At arbitration the appellees, Bullock and Green, were awarded Twelve Thousand, Five Hundred ($12,500.00) Dollars and Two Thousand, Five Hundred ($2,500.00) Dollars, respectively.

Appellees filed a petition to confirm the arbitration award which was countered by State Farm’s petition to vacate the arbitration award. Two major issues were presented in these petitions: (1) whether the arbitration was conducted pursuant to common law (appellee’s contention) or the Arbitration Act of 1927 (State Farm’s contention); and (2) whether the appellees, because of Safeguard’s financial status, were eligible to recover under the uninsured motorist coverage provision.

The court below granted the appellees’ petition to confirm and denied State Farm’s petition to vacate after concluding that the appellees would prevail on both issues. The court’s reasoning was that, assuming arguendo, the arbitration was pursuant to common law, then the limited scope of review would preclude disturbing the award inasmuch as there was no allegation of fraud, misconduct or illegality. Runewicz v. Keystone Insurance Company, 476 Pa. 456, 383 A.2d 189 (1978). Alternatively, it concluded that even under the Act of 1927, with its broader scope of review, the arbitration panel had correctly determined the question of appellees’ eligibility.

On appeal, State Farm raises only the issue of appellees’ eligibility to recover under the uninsured motorist coverage provisions of the policy. We conclude that Safeguard’s financial status (as of the time of the appellees’ claim) was sufficiently uncertain so as to render Daniel Shields uninsured, thus triggering the appellees coverage under the uninsured motorist provisions in Bullock’s policy with State Farm.

The Uninsured Motorists Act, 40 P.S. § 2000 requires each insurance policy delivered or issued for delivery in this Commonwealth to include uninsured motorist coverage. Uninsured motorist is defined so as to include a motor vehicle which is insured by a liability carrier who becomes insolvent.

Moreover, we note the pertinent parts of the definition of “uninsured motor vehicle” in the State Farm Insurance policy:

... a land motor vehicle with respect to the ownership, maintenance or use of which there is in at least the amounts specified by the financial responsibility law of the state in which the described motor vehicle is principally garaged ... a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies that there is any coverage thereunder or is or becomes insolvent;

Thus, the appellee’s eligibility is dependent upon the definition given the term “insolvent.” Unfortunately, neither the Uninsured Motorist Act, nor the insurance policy specifies what definition was contemplated. Thus, it will be necessary to turn to other sources.

One standard which can be excluded is the definition of “insolvent insurer” set forth in the Pennsylvania Insurance Guaranty Association Act, 40 P.S. § 1701.103(6). This standard would required the insurer be declared “insolvent ... by a court of competent jurisdiction of the insurer’s domiciliary state ...” This definition' was explicitly rejected in Henderson v. State Farm Mutual Insurance Company, supra.

Another definition derived from Article V of the Insurance Company Law of 1921, as amended 40 P.S. § 221.3, has already been applied tangentially, herein, in that it was the basis of the Insurance Commissioner’s summary order against Safeguard in May, 1979. Based on this definition the Commissioner issued an order finding Safeguard to be insolvent and precipitating further proceedings under Article V for its Involuntary Dissolution.

It is interesting to note the effect of the Insurance Commissioner’s order. Under § 221.10(d):

Any suspension order made by the commissioner under the provisions of subsection (a) shall prohibit issuance of policies, transfers of property, and payments of money without prior written approval of the Commissioner... From the date of such suspension on the ground that the insurer is insolvent, or is in such condition that its further transactions of business will be hazardous financially to its policyholders, creditors, or the public, no action at law or equity shall be commenced or prosecuted nor shall any judgment be entered nor shall any execution or attachment be issued or prosecuted against the suspended insurer, or against its property, in any court of this Commonwealth; Provided, that if such suspension order be vacated by the Commonwealth Court for the reason that the suspended insurer is no longer insolvent ... these restraints upon legal process regarding the insurer shall thereafter cease to be operative.

Thus, the order of May, 1979 had the effect of suspending all legal proceedings against Safeguard. Consequently, any action by appellee Bullock was against the tortfeasor Shields sans his insurer, Safeguard. For all practical intents and purposes Shields was uninsured. Thus, the appellees were eligible at that point to advance a claim under the uninsured motorist coverage in the policy with State Farm.

Our decision is supported by both the language of the Uninsured Motorist Act and the policy behind it. Subsection (d) of the Act provides that:

(d) In the event of payment to any person under the coverage required by this section, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer. Whenever an insurer shall make payment under the coverage required by this section, which payment is occasions by an insolvency, such insurer’s right of recovery or reimbursement shall not include any rights against the insured of said insolvent insurer, but such paying insurer shall have the right to proceed directly against the insolvent insurer or its receiver, and in pursuance of such right such paying insurer shall possess any rights which the insured of the insolvent insurer might have had if the insured of the insolvent insurer had personally made the payment. (Emphasis added).

This section of the Act contemplates that an insurer paying benefits pursuant to uninsured motorist coverage will have a subrogation right against the insolvent insurer or its receiver. “Receiver” is defined in § 221.3 as “receiver, liquidator, rehabilitator, or conservator as the context requires.” Surely, the Commissioner, after the issuance of a summary order under § 221.10, is considered to be a “receiver” because of the broad powers he enjoys. Therefore, the paying insurance carrier would be able to exercise its subrogation rights against the insolvent insurer, or the Commissioner (or his designate) as “receivers.”

Moreover, we do not think the legislature, intended to freeze the injured party’s right to recover against some party pending the completion of lengthy hearings and determinations regarding the fate of the insolvent insurer; whether it is ultimately rehabilitation or dissolution. This is especially true since the Uninsured Motorist Act puts a time limitation on an insured’s ability to recover. Subsection (c) provides that: “An insured’s insolvency protection shall be applicable only to accidents occurring during a policy period in which its insured’s uninsured motorist coverage is in effect where the liability insurer of the tortfeasor becomes insolvent within six years after the accident.” If we were to define “insolvency” as occurring at some later point, such as after a judicial adjudication, insureds could forfeit their right to recover because of the lapse of time. We do not believe such a result was intended.

The policy behind the Uninsured Motorist Act also supports our decision. A liberal construction of the statute requires us to find coverage unless strong legal or equitable considerations to the contrary are present. Marchese v. Aetna Casualty and Surety Company, 284 Pa.Super. 579, 426 A.2d 646 (1981); Sands v. Granite Mutual Insurance Company, 232 Pa.Super. 70, 331 A.2d 711 (1974). We find no such considerations in the present case.

Finally, as previously stated, State Farm made no attempt to define “insolvency” in the policy. It is a well established rule that any ambiguous term in an insurance policy must be construed favorably to the insured. Garber v. Travelers Insurance Company, 280 Pa.Super. 323, 421 A.2d 744 (1980); Miller v. Prudential Insurance Company of America, 239 Pa.Super. 467, 362 A.2d 1017 (1976). Since “insolvency” is a term subject to multiple interpretations of varying degrees of strictness it cannot be denied that it is ambiguous. We therefore apply that definition most favorable to the insured, Henderson v. State Farm Mutual Insurancy Company, supra. Thus, in determining whether an insurer is insolvent for purposes of 40 P.S. § 2000(c), we find that the definition found in 40 P.S. § 221.3 is applicable.

Accordingly, we find the Court below was correct in confirming the award of arbitrators finding the appellees eligible for uninsured motorist coverage.

Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . Act of May 17, 1921, P.L. 789, No. 285, art. V, § 501, et seq., added Act of December 14, 1977, P.L. 280, No. 92, § 1, 40 P.S. § 221.1, et seq.

      . On April 21, 1982 the Commonwealth Court issued a consent order directing the liquidation of Safeguard pursuant to Article V of the Insurance Department Act of 1921, as amended 40 P.S. § 221.1, et seq. The Court also made a finding that Safeguard was insolvent.

      . In Mapp, the insured was involved in a motor vehicle accident and recovered the policy limits from the tortfeasor’s insurer. He then sought to recover for his damages in excess of that amount from his own insurer under the uninsured, motorist coverage provisions of his policy on the ground that the tortfeasor was uninsured to the extent that his liability coverage did not meet the damages suffered. His insurer refused to arbitrate and the trial court denied the insured’s motion to compel arbitration. This court reversed and remanded for the appointment of an arbitrator. Mapp was specifically overruled by the decision of an en banc panel of this court in White v. Concord Mutual Insurance Company, 296 Pa.Super. 171, 442 A.2d 713 (1982), aff’d. 500 Pa. 103, 454 A.2d 982 (1982). Despite the lower court’s reliance on Mapp, the determination that the appellee’s claim was arbitrable was proper under both the policy language and relevant case law. Henderson v. State Farm Mutual Insurance Company, 292 Pa.Super. 333, 437 A.2d 411 (1981) (petition for allowance of hppeal denied), Gordon v. Keystone Insurance Company, 277 Pa.Super. 198, 419 A.2d 730 (1980).

      . Act of April 25, 1927, P.L. 381, No. 248, § 1 et seq, 5 P.S. § 161 et seq. repealed and superseded by Act of October 5, 1980, P.L. 693, No. 142, § 501(a), 42 Pa.C.S.A. § 7301, et seq.

      . 40 P.S. § 2000(b) states:
      For the purpose of this coverage the term "uninsured motor vehicle” shall be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of the insured within the limits specified because of insolvency.

      . 40 P.S. § 221.3 defines "insolvency” as:
      (1) For an insurer issuing only assessable fire insurance policies;
      (1) the inability to pay any obligation within thirty days after it becomes payable, or (ii) if an assessment be made within thirty days after such date, the inability to pay such obligation thirty days following the date specified in the first assessment notice issued after the date of loss pursuant to section 808 of the act of May 17, 1921 (P.L. 682, No. 284), known as “The Insurance Company Law of 1921"
      (2) For any other insurer the inability to pay its obligations when they are due, or whose admitted assets do not exceed its liabilities plus the greater of (i) any capital and surplus required by law for its organization or (ii) its authorized and issued capital stock. For any insurer licensed to do business in this Commonwealth as of the effective date of this act which does not meet this standard, the term “insolvency” shall mean for a period not to exceed three years from the effective date of this act that it is unable to pay its obligations when they are due or that its admitted assets do not exceed its liabilities plus any required capital contribution ordered by the commissioner under provisions of the insurance law. (Footnote omitted).
      See also Sheppard v. Old Heritage Mutual Insurance Company, 492 Pa. 581, 425 A.2d 304 (1980).


author: WATKINS, Judge:

text:
    463 A.2d 467
    COMMONWEALTH of Pennsylvania v. John GRAVES, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1981.
    Filed July 22, 1983.
    Petition for Allowance of Appeal Denied Nov. 15, 1983.

      William P. James, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, DiSALLE , and WATKINS, JJ.

       DiSALLE, J., did not participate in the consideration or decision of this case.

   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, and involves the defendant-appellant’s appeal of his conviction of multiple counts of forgery for his part in an extensive fraudulent check cashing scheme. The defendant was convicted by a jury of 65 counts of forgery. He was sentenced to four (4) to ten (10) years imprisonment by the trial court.

The testimony produced at trial established that Samuel Bruno, Andre Carson, and the defendant engineered an extensive fraudulent check cashing scheme in Philadelphia between 1973 and December of 1976. The actors would obtain unauthorized possession of a group of checks of a corporate checking account holder and forge the checks so that they resembled payroll checks. The payee line and payee endorsement of each of these checks were forged in the name of an individual account holder whose pre-encoded deposit slips had also come into the actors’ unauthorized possession. Each of a group of the selected deposit slips would then be forged to reflect a split deposit so that some of the proceeds would be deposited into an account and some of the proceeds of the check would be given to the person presenting it in cash. The checks and deposit slips would then be presented at various branches of the deposit slip account bank by a female accomplice posing as an employee of the corporate entity from whom the forged checks were obtained. The female accomplices would then be driven to a series of bank branches by either Bruno, Carson, or the defendant. Either Carson or the defendant would enter the bank with the female accomplices to make certain that nothing went wrong. Upon completion of the transaction they would leave the bank, destroy the customer receipt, turn over the cash obtained from the bank to the car’s driver, and the female accomplice would then be given 30% of the cash as her share. The trial of this case took almost one month as extensive evidence was needed to establish the above mentioned facts.

Defendant’s first allegation of error is that the prosecutor committed prosecutorial misconduct entitling him to a new trial. The Commonwealth had entered into various agreements with trial counsel of several Commonwealth witnesses guaranteeing reduced sentences in return for their testimony. Trial counsel were instructed not to inform their clients of the deals, however. Thus, the Commonwealth witnesses were able to testify truthfully that they were aware of no deals made with prosecutors. In this way the Commonwealth attempted to conceal the fact that deals had been made with its witnesses and so avoid the defense impeachment of those witnesses. The court below characterized this conduct as a “fraud on the court”. Defendant argues that he should be granted a new trial because of it. However, in the instant case knowledge of the deals became known prior to the trial’s conclusion by the witnesses’ trial counsel who testified that the agreements for leniency had been made. We agree with the lower court that this enabled the jury to assess the credibility of the Commonwealth witnesses and sufficiently mitigated any prejudice which might have been caused by the Commonwealth’s improper conduct. See U.S. v. Harris, 498 F.2d 1164 (3rd Cir.) cert. denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 665 (1974).

Next, defendant claims that there was insufficient evidence produced at his trial to sustain his conviction. We do not agree. The evidence of record clearly establishes defendant’s participation in the fraudulent check-cashing scheme. Defendant argues that he was improperly convicted on the theory of accomplice liability. This contention is without merit. In order to convict a defendant of conspiracy a factfinder must conclude that he reached an agreement with a co-conspirator to commit the crime. In order to establish defendant’s guilt on an accomplice theory, an agreement is not required, as only aid is required. 18 Pa.C.S.A. 306; Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978). The least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). Viewed in the light most favorable to the verdict winner (in this case—the Commonwealth) the evidence establishes the defendant’s participation and aid in the commission of the various offenses involved in the fraudulent check-cashing scheme.

Next, the defendant claims that his right to a fair trial was violated by the prosecutor when the prosecutor, in his summation to the jury, referred to an incriminating statement given by the co-defendant Carson. During his summation, however, the prosecutor scrupulously redacted Carson’s statement to avoid any reference whatsoever to the defendant or to Bruno. The prosecutor stated that, “this is what Carson says about himself”, in referring to the statement. Moreover, the trial court instructed the jury quite thoroughly on the applicability of Carson’s statement thereby curing any problems with the prosecutor’s remarks. Under these circumstances the prosecutor’s argument did not deprive the defendant of a fair trial. See Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980); Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).

Next, the defendant argues that the lower court erred in granting the Commonwealth two Rule 1100 extensions and that his trial counsel was ineffective for failing to oppose the second extension of time granted to the Commonwealth by the trial court. These contentions are merit-less. The instant action constituted a complex, multi-defendant case with complicated proofs. The criminal complaints against the defendants were filed on December’10, 1976. The original “run date” was June 6, 1977. The Commonwealth filed a timely petition to extend the “run date” on May 27, 1977 and hearings were held thereon on June 6, 1977 and June 16, 1977. At said hearings the Commonwealth introduced into evidence a letter from Judge McKel which established that preliminary hearings on this case had been held on January 27, 1977, February 7, 8, 28, 1977, March 1, 21, 1977, May 2, 1977, May 5, 6, 1977. Testimony was taken during most of said hearing date. Several preliminary hearing dates were continued because of the unavailability of counsel for co-defendant Bruno or Bruno himself. Moreover, several defense motions were outstanding at the time of the original “run date”. In light of the many preliminary hearings, the outstanding defense motions, and the complexity of the case we find that the Commonwealth exercised due diligence in bringing the matter to trial and that the court below properly granted the Rule 1100 extensions. Furthermore, no judge was available on June 6, 1977 for the time it would take to hear this case. No error occurred in granting the Rule 1100 extensions.

On September 2, 1977, the court below, after hearing, granted the Commonwealth’s second application for an extension of the time in which to bring the defendant to trial. This motion was unopposed by defendant’s counsel. Defendant now claims that his counsel was ineffective for failing to oppose the extension. This contention is merit-less. On September 12, 1977, the defendant himself had several pre-trial motions outstanding and co-defendant Bruno was unavailable for trial. The court below wanted all co-defendants tried together to conserve judicial resources since the Commonwealth planned to call between 80 to 100 witnesses at the trial. Moreover, defendant’s motion to quash was not decided until October 19, 1977 and co-defendant Bruno had appealed a ruling to our court which was outstanding on September 12, 1977. Trial actually commenced on November 28, 1977. Furthermore defendant was free on bail at the time and thus not being incarcerated indefinitely. Thus, the court below acted properly when it granted the Commonwealth’s second request for a Rule 1100 extension. Counsel cannot be deemed ineffective for failing to file a frivolous motion to dismiss or for failing to oppose the Commonwealth’s petition to extend the time when such would be frivolous. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Because the court acted correctly when it extended the time in which to bring the defendant to trial any motion opposing it by defendant’s counsel would have been frivolous.

Next, the defendant claims that he was denied his Sixth Amendment right to trial by jury and of his right to make a summation to the jury because during the proceedings on December 19, 1977 the court called a lunch recess when it noted that two jurors were “getting sleepy” and because the jury showed some signs of fatigue during closing argument on January 18, 1978. First of all defendant’s counsel did not object to the recess called during cross-examination on December 19, 1977. Thus, any objection to it is waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Secondly, the calling of such a recess is within the sound discretion of the trial court and it committed no error here when it attempted to be solicitous of the needs of the jurors. During defendant counsel’s closing arguments several jurors appeared drowsy but none actually fell asleep. The court questioned the jurors at that time and found them to be fatigued but aware of the proceedings. Moreover, defendant’s counsel was arguing theories to the jury that they had heard from co-defendant’s counsels several times previously. It was not at all unusual for them to be bored with said arguments by the time defendant’s counsel argued. Juror boredom with counsel’s arguments is not a grounds for a new trial. No error is present here.

Next, the defendant argues that the court committed reversible error when it excused a juror, Madeline Arnell, from further service in this case. This contention is meritless. The discharge of a juror is a matter within the sound discretion of the trial judge and the lower court will only be reversed for an abuse of that discretion. Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). Moreover, Ms. Arnell was excused because she had a long standing commitment to begin school on January 9, 1978 and she had not expected the trial to last as long as it did. The court did not abuse its discretion when it excused her for that reason. Commonwealth v. Jerry, 485 Pa. 95, 401 A.2d 310 (1979).

Finally, defendant contends that he was denied a fair trial because the Commonwealth nolle prossed certain bills of information before the case went to the jury. Defendant claims that the Commonwealth overcharged him to prejudice him in the jury’s eyes. This contention is devoid of merit. All of the evidence presented against defendant was admissible to prove his participation of the offenses of which he was convicted. The Commonwealth had a good faith belief that it would be able to prove all of the charges alleged against the defendant but made a tactical decision to withdraw certain bills in order to simplify the jury’s task. Defendant suffered no prejudice as a result of the nolle prossing of the charges. Under these circumstances he has failed to show any reason why a new trial is warranted.

Judgement of sentence affirmed.


text:
    463 A.2d 472
    COMMONWEALTH of Pennsylvania v. Michael McBALL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1981.
    Filed July 22, 1983.
    Petition for Allowance of Appeal Denied Nov. 28, 1983.

      Dennis D. Brogan, Assistant Public Defender, Norris-town, for appellant.

      Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE  and WATKINS, JJ.

       DiSALLE, J., did not participate in the consideration or decision of this case.

   WATKINS, Judge:

This is an appeal by the defendant-appellant, Michael McBall, from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Chester County, after his conviction by a jury of rape, unlawful restraint and terroristic threats. .Post-trial motions were denied.

The facts are as follows: At approximately 1:30 a.m. on June 2, 1979, the victim in this case, Ms. Patricia Cox, was driving home from West Chester to Downingtown when she had a flat tire. She pulled off the road and flagged down the first vehicle she saw. The defendant stopped allegedly to assist her. He changed the victim’s tire and told her to drive to a nearby church parking lot where it was safe, so that he could spray something on the spare tire to keep it cool until the victim got home. By the time the victim drove to the church parking lot, her spare tire was flat also. (The spare tire was later tested by police and found to have no leaks).

The defendant then offered to take the victim home. She got into his car and they started off. The defendant turned right and the victim told him he should have gone straight.

The defendant drove a bit further then grabbed the back of the victim’s neck and told her to sit next to him. When she refused, he pulled her. She became scared and slid over. The defendant then told the victim that if she gave him all of her money that nothing would happen to her. She gave him her money.

The defendant then told the victim that his pants were open and that she was to suck his penis. She said no, and wanted out of the car, but defendant forced her head down into his lap. She put her mouth on his penis. Two times she struggled to get free. Defendant told her he would kill her if she kept fighting him.

The defendant finally stopped the car in a wooded area. He told the victim that if she screamed or made any noise he would kill her. Since she was afraid, she did not fight. Defendant pulled the victim out of the car, then shoved and pushed her into the weeds. He undressed her and told her to take her shirt off. She refused but he insisted. The defendant then had intercourse with the victim.

Afterward the defendant asked the victim to describe him and tell him his name. She said she couldn’t, that she did not know what he looked like and she did not know his name. Defendant told her that she could not really prove that he had been there anyway. The defendant then left.

The victim flagged down a car and got a ride to her ex-husband’s home. She was hysterical and told her family she had been raped. Her family took her to the police station. She later went to the hospital.

The defendant, when arrested, told the police that he had been with friends on the evening in question. He denied having helped to change someone’s tire that night. When he testified at trial he stated that he had, after all, been with the victim that night, and that he had changed her tire. His testimony then indicated that they went to “a parking spot”, walked up a trail, talked, kissed, and had consensual sex.

The victim, Patricia Cox, died prior to trial. Her testimony from the preliminary hearing was admitted at the suppression hearing and the subsequent trial.

The defendant claims that the court improperly permitted the introduction of the identification evidence.

The victim had testified at the preliminary hearing and was cross-examined by counsel for the defendant. She died between the time of the preliminary hearing and the trial. The pre-trial lineup was possibly suggestive and the photo lineup wherein she picked out the defendant as her assailant was found by the court below to be admissible. However, the admission of the testimony of the victim at the preliminary hearing clearly identified the defendant so that it was clearly independent of any possible taint.

The victim had ample opportunity to make an independent identification. She spent one and one half hours with her attacker. The area was well lighted. She indicated he was light-skinned, heavy set, about 5' 7" and weighed about 200 pounds. She was confident of her identification under cross-examination. Moreover, the defendant admitted having intercourse with the decedent, but claimed it was consensual.

The admission of the victim’s testimony at the preliminary hearing was proper. See, Commonwealth v. Hall, 232 Pa.Superior Ct. 412, 334 A.2d 710 (1975).

Counsel was not ineffective for failing to raise this issue as it is well settled that the testimony is admissible. Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). Commonwealth v. Scarborough, 491 Pa. 300, 316, 421 A.2d 147, 155 (1980).

A careful examination of the charge in this case shows there was no expression of the court’s opinion as to the guilt of the defendant, either directly or indirectly so that Commonwealth v. Goins, 457 Pa. 594, 321 A.2d 913 (1974) is in apposite and the complaint without merit. Reasonable doubt was properly charged and the complaint is without merit.

The defendant complains of the admission of the testimony of the daughter of the victim. Her testimony was that prior to trial when she was some five feet from a car in which the defendant was on the passenger side of the car, he looked at her, pointed at her, made a facial expression and saw him say she was next.

“A witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact.” McCormick on Evidence, 72, Chapter 3, Page 30.

The court did not err in refusing to grant defendant’s demurrer to the charge of unlawful restraint. The terrified victim was certainly exposed to serious injury. She was pulled, grabbed by the neck and held down. He repeatedly threatened to kill her. He pushed and shoved her. He disrobed and raped her. The defendant was 5'8", weighed 225 pounds and was an Olympic class weight lifter. The victim was 5'2" and weighed less than 100 pounds. The complaint is clearly without merit.

Defendant’s contentions concerning the failure to answer questions submitted by the jury is without merit. Where the jury requests reading of testimony given at the trial to refresh its memory the decision as to whether to grant the request is a matter within the discretion of the trial court. Commonwealth v. Peterman, 430 Pa. 627, 631, 244 A.2d 723 (1968). This discretion is an incident to the manner of trial and in the absence of flagrant abuse thereof, should rest with the trial court. Commonwealth v. Fontaine, 183 Pa.Superior Ct. 45, 47, 128 A.2d 131 (1956). It was not error to go beyond the questions and seek more specifics so all four questions could be answered at once. The Court did not refuse to answer the questions but recognized the duty to “be very careful about invading the jury province as a fact finder”. As asked the questions required the court “and counsel to hunt through the record to pick out certain parts of the testimony (as yet not transcribed)”. The court was within its proper discretion in asking that the request should be reduced to specifics. This was not error.

The contentions of prosecutorial misconduct in discussing the questions of the victim talking with strangers was in answer to what counsel for the defendant said about the same problem. Such comments are not reversible error unless the “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968).

The contentions that counsel was ineffective in choosing the jury, in failing to object at the time of the questions by the jury, and certain other instances are already answered by our disposition of the other issues in this opinion. Counsel cannot be deemed to be ineffective for not making frivolous objections. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Judgment of sentence affirmed.


text:
    463 A.2d 475
    Louis A. SINES, a/k/a Louis F. Sines, and Elizabeth M. Sines, Husband and Wife v. Harold W. PACKER and Kathleen M. Packer, Husband and Wife, and John J. Carney and Robert V. Carney. Appeal of John J. CARNEY and Robert V. Carney.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1981.
    Filed July 22, 1983.

      William T. Renz, Doylestown, for appellants.
    Frank S. Guarrieri, Morrisville, for appellees.
    Before CAVANAUGH, DiSALLE  and WATKINS, JJ.

       DiSALLE, J., did not participate in the consideration or decision of this case.

   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Bucks County and involves appellants’ (Carneys) appeal from an order of court which refused their motion to open a default judgment entered against them in an Action to Quiet Title.

The action was commenced on November 29, 1978. The Complaint was served on appellants on December 7, 1978 by the Sheriff. A motion for judgment was filed by plaintiffs on January 5, 1979. On January 22, 1979 the court below issued an Order directing relief against defendants if they failed to take appropriate action within thirty (30) days of that date. On February 13, 1979 appellants took action when they filed a Petition to Open Judgment. Judgment had been entered against them on January 22, 1979. After depositions were submitted to it, the court below entered an order on January 23, 1981 dismissing appellants’ petition. Appellants now appeal the refusal of the court below to grant their petition to open.

The plaintiffs brought their action to quiet title on a theory of adverse possession. In their complaint they allege that the appellants are the record owners of the property and cite a chain of title into appellants. Upon accepting service of the Complaint appellants turned it over to a Frank Manzo who had represented Berks Title Insurance Company in the past. However, unbeknownst to the appellants, his representation of Berks Titles had terminated in 1974 or 1975. (Berks Title was appellants’ title insurance carrier for the property in question). Manzo told appellants, that he would take care of the matter, but never informed Berks Title of the Complaint. Thus, the appellants’ failure to file a timely Answer to the Complaint was not their fault, nor that of their attorneys or insurance carrier. Also, their petition to open was timely filed.

The first issue on appeal is whether the pleading of a meritorious defense is necessary when filing a petition to open a default judgment to an action to quiet title. The court below held that it was necessary. The second issue is whether the appellants’ petition to open did allege a meritorious defense. The court below held that it did not do so.

Neither party has cited, nor have we found, any case dealing specifically with the issue as to whether a meritorious defense need be alleged in a petition to open a judgment rendered in a case involving an action to quiet title. Thus, this issue is one of first impression.

In an assumpsit action, a petition to open a judgment will not be granted unless three conditions are met. The conditions are: (1) the petition has been filed promptly; (2) the default is reasonably explained; and (3) a meritorious defense is shown. Ecumenical Enterprises, Inc. v. Nadco Construction, Inc. 253 Pa.Superior Ct. 386, 391, 385 A.2d 392, 395 (1978). In a petition to open a default judgment in a trespass action, the petitioner must show: (1) that the petition to open was promptly and timely filed, and (2) there exists a legitimate explanation or excuse for the delay that occasioned the default judgment. Forest Hills Transfer v. Beaver Valley Builders, 271 Pa.Superior Ct. 566, 414 A.2d 628 (1979). Thus, in trespass actions, a meritorious defense need not be presented in a petition to open a judgment rendered in such a case. Appellants’ argue that the rule regarding trespass actions should be applied to petitions to open judgments entered in actions to quiet title because in both cases the plaintiff has the burden of proving each and every allegation of his complaint. However, the plaintiff has the burden of proving the essential elements of an assumpsit action as well as in trespass actions and actions to quiet title. While it is true that in actions to quiet title, as in trespass actions, the burden of proof rests upon the plaintiff, it is equally true that the plaintiff must shoulder the burden in actions of assumpsit. Thus, the appellants’ reliance on this line of reasoning is misplaced. Pa.Rule Civil Procedure 1061(a) provides that:

“Except as otherwise provided in this chapter, the procedure in the action to quiet title from the commencement to the entry of judgment shall be in accordance with the rules relating to the action of assumpsit.”

Thus, we hold that the general rules governing actions in assumpsit also govern actions to quiet title. As such, we hold that in a petition to open a judgment in an action to quiet title the defendant must allege a meritorious defense.

Appellants argue that their petition to open judgment has alleged a meritorious defense. Paragraph 25 of their petition provides that: “Your Petitioner have a good and complete defense to Plaintiffs’ alleged cause of action.” Where a petition to open a judgment must allege a meritorious defense, said defense must be presented in precise, specific, clear and unmistakable terms. Ecumenical, supra. A review of appellants’ petition reveals that Paragraph 25 of the petition failed to state appellants’ defense in “precise, clear, specific and unmistakable terms”. Rather, Paragraph 25 merely stated a conclusion of law. Such a statement is not a sufficient averment of a meritorious defense so as to come within the standard established by Ecumenical, supra,' since it does not set forth any facts upon which the alleged meritorious defense is based.

Our inquiry, however, does not end here as appellants’ petition to open judgment does refer in Paragraph 3 thereof to the plaintiffs’ original complaint. As such, we must consider all of the pleadings filed in this case as all of them have been identified in the appellants’ petition to open judgment. Paragraph 5 of plaintiffs’ complaint alleges that: “This action arises out of an existing actual controversy between the above named parties over the ownership of certain tracts of land, hereinafter more fully described.” The complaint then goes on to set forth a chain of title to the land in question resulting in a deed to the appellants. Thus, the pleadings establish, quite clearly, that the appellants are record owners of the disputed land. A chain of title is sufficient to make a finding of possession of the, land for purposes of passing on a right to bring an action to quiet title. Detweiler v. Geyer, 39 Northampton County Report 228-29 (1979). Thus, appellants, by referring to plaintiffs’ original complaint in their petition to open, have established a claim of ownership of the premises which is contrary to the plaintiffs’ allegation of adverse possession. As such appellants have established a meritorious defense to the plaintiffs’ original action to quiet title based on a claim of adverse possession; albeit inartfully so. Because the appellants have filed their petition to open in a timely manner and have established a reasonable excuse for their failure to timely answer the plaintiffs’ complaint in addition to establishing a meritorious defense, we hold that they have met all the criteria necessary to grant their petition to open the judgment.

The order of the lower court is reversed; the petition to open granted, and the case remanded to the court below for trial on the merits. Jurisdiction is relinquished.

CAVANAUGH, J., concurs in the result.


text:
    463 A.2d 478
    William HUGHES and Nancy Hughes, Appellants, v. Sharon HUGHES.
    Superior Court of Pennsylvania.
    Submitted May 11, 1983.
    Filed July 22, 1983.

      Larry Alan Brand, Wilkes-Barre, for appellants.
    Ruth Slamon Borland, Wilkes-Barre, for appellee.

      Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Orphans’ Court of Luzerne County, and involves a father’s and his mother’s (paternal grandmother’s) appeal from an order of the court below which denied both appellants’ requests for visitation rights for a three year old child.

The appellant-father and appellee (the child’s mother) had been married but are now divorced. One child, a son, was born of the marriage. He is three years of age. Appellee has had sole custody of the child since July 22, 1981. On or about that date the appellant-father broke into the apartment of the appellee and shot her in the shoulder with a 30-30 rifle while she was holding the child. The child has suffered nightmares as a result of this incident. The appellant-father is now in prison and seeks to compel visitation with the child at the Luzerne County Prison. The testimony at trial indicated a long pattern of physical abuse inflicted upon the appellee by her husband. On one occasion he had entered her apartment in violation of a protective order and held her and the child hostage for eight (8) hours. During this time he threatened the appellee saying that he would kill her and himself.

Prior to the shooting incident the appellant-father had only sporadic contact with the child and had shown little interest in him. Appellant-grandmother had also had minimal contacts with the child. Up until he shot her, the appellee had permitted the appellant-father to visit with the child.

After the trial, the court below entered an order denying the visitation requests of both appellants. They have appealed that order.

Appellants argue that the court below erred when it concluded that visitation with his father would have a severe adverse impact upon the child. Appellant-father argues that the shooting incident is the only time that he endangered the boy directly and argues that this should not curtail his rights to visitation because he was voluntarily intoxicated at the time. We do not agree. A parent should seldom be denied the right to visit with his child. However, when a severe mental or moral deficiency constitutes a threat to the welfare of the child, visitation rights may be denied to a parent who manifests such a condition. Sorace v. Sorace, 236 Pa.Superior Ct. 42, 344 A.2d 553 (1975). Appellant-father has manifested severe mental or moral deficiency constituting a threat to the child’s well-being. His act of shooting the child’s mother while the child was in her arms is sufficient to manifest a reckless and wanton lack of concern for the child’s welfare. Furthermore, his constant course of abuse directed at the child’s mother confirms his moral deficiency. His drunkeness is no excuse for such conduct. In fact, in our opinion, it is another factor manifesting his mental and moral deficiency. The court below did not err in finding appellant-father to be unfit for visitations with the child and that such visitations would be contrary to the child’s best interests.

Next, appellants claim that the court below erred in finding that appellant-grandmother would use any visitation rights granted to her to disrupt the child’s relationship with his mother. The court below stated its belief that her attempt to obtain visitation was a ruse and that it was “an attempt to obtain through the back door what is not possible by the front”. Appellee testified at trial that her former husband’s mother had only minimal contacts with the child and had even refused visitation with the child that had been offered her. The court believed that appellant-grandmother’s request for visitation did not arise from a bona fide interest in maintaining a beneficial relationship with the child. We agree. The recently adopted “Custody and Grandparents Visitation Act”, 23 P.S. 1001, et seq., which took effect on January 5, 1982 did not alter the present state of the law but merely codified the law which had evolved through various appellate decisions dealing with the rights of grandparents in seeking visitation and/or custody of their grandchildren. The guiding polestar in deciding all cases involving a child, including whether grandparent visitation rights should be awarded is the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972). The court below found that there is great bitterness between appellee and appellant-grandmother and that the grandmother was acting as a substitute for the child’s natural father. It further found that there was no beneficial relationship between the child and his paternal grandmother to be maintained and that to grant visitation rights to her would be contrary to the best interests of the child. It reasoned that the grandmother’s former lack of interest in the child and present bitterness toward the appellee would result in a detriment to the child. We agree and hold that the court below did not err in denying her visitation privileges.

Order affirmed.

      . Appellant-grandmother also claims that the court below erred in deciding that she was to be treated as a third party in this case because she had had minimal contacts with the child, thus altering the legal standard by which her visitation claim is to be decided. Because we find that granting her visitation rights would be detrimental to the child due to the bitterness that exists between her and the appellee we need not consider that claim. Of course, the fact that she had had little prior contact with the child is a fact which helps us decide that her visitation petition is something other than a bona fide manifestation of interest in the child.


author: VAN der VOORT, Judge:

text:
    463 A.2d 480
    COMMONWEALTH ex rel. Robert W. SHEE and Catherine P. Shee v. Richard A. HOLEWSKI and Mary Ann Holewski, Appellants.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1983.
    Filed July 22, 1983.

      George E. James, Beaver Falls, for appellants.
    John J. Petrush, Beaver, for appellees.
    Before CERCONE, President Judge, and POPOVICH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This case involves the petition of Robert W. and Catherine P. Shee for visitation with their grandchildren, Matthew and Richie Holewski. On January 30, 1981, the lower court heard the testimony of eight witnesses, and, on February 4, 1981, ordered the grandmother to undergo counseling with Family Services, and ordered Family Services to prepare a written report for the court. On May 7, 1981, after considering the report, the lower court awarded visitation to the grandparents and established a visitation schedule for 1981 and 1982. The father and adoptive mother, Richard A. and Mary Ann Holewski, have appealed to our court from this order. The case was submitted to this panel on January 11, 1983.

Catherine Shee was the mother of Elena Holewski, who died on July 13, 1977, leaving two children, Richie and Matthew. Their father, Richard Holewski, married his present wife, Mary Ann Holewski, on May 27, 1978, and the couple have lived with the two children in question and with two children of Mary Ann’s first marriage since this date. In July of 1980, Mary Ann legally adopted Richie and Matthew. Through mid-1980, appellants permitted appellees to visit with their grandchildren, and apparently strived mightily to maintain friendly relations with the grandmother. The testimony indicates that there was no friction between appellants and the grandfather, and also that one of the grandmother’s sons visited frequently and was generally on friendly terms with appellants, even after the grandparents filed the petition initiating this case. Discord apparently ensued from the grandmother’s inability to accept the fact that her daughter was dead and that the children had a new mother. The grandmother frequently argued with appellants, and evidently repeatedly upset the children by telling them that they should not call Mary Ann their mother. The youngest child developed a speech impediment, which only began to subside when appellants discontinued sending the children to the grandparents’ house for visits. The record is full of evidence upon which the lower court might have based a denial of the grandparents’ (or at least the grandmother’s) petition. The lower court, however, granted “visitation” (actually partial custody) to the grandparents.

The paramount concern in any child custody or visitation dispute is the welfare and best interests of the child. Spells v. Spells, 250 Pa. Superior Ct. 168, 175, 378 A.2d 879, 883 (1977). Applying this principle is frequently very difficult, particularly when grandparents are involved. In Com. ex rel. Flannery v. Sharp, 151 Pa. Superior Ct. 612, 30 A.2d 810 (1943), the child’s father died and the mother and child resided with the paternal grandparents for three years before the mother remarried. When the grandparents brought an action for partial custody, the lower court granted their petition, even though the testimony established the grandparents’ “derogatory acts and conduct, their interference with the child’s upbringing and the harmful effect upon the child.” 151 Pa. Superior Ct. at 615, 30 A.2d 810. Our court reversed, stating:

Despite the fact that grandparents may have become so deeply attached to a child that it will be a real hardship to be deprived of his society, sympathy for them cannot be permitted to interfere with the best interest and future welfare of the child.... Such custody, as between parent and grandparents, must be exclusive and uninterrupted, even to the refusal of visitations, when the welfare of the child is endangered by irreconcilable differences existing between them.

151 Pa. Superior Ct. at 617-18, 30 A.2d 810. In Commonwealth ex rel. McDonald v. Smith, 170 Pa. Superior Ct. 254, 85 A.2d 686 (1952), the mother died, and the child and father lived with the maternal grandparents for two years, until the father remarried. The lower court awarded custody to the father and partial custody to the grandparents. Noting the “deep and apparently irreconcilable animosity” that existed between the father and the grandparents, and finding that it would not be in the best interests of the child to subject her to an atmosphere of hate and estrangement, our court reversed that part of the lower court’s order which granted partial custody to the grandparents.

More recently, our court struggled with the problem of grandparents’ visitation with a child of a deceased child. In Com. ex rel. Williams v. Miller, 254 Pa. Superior Ct. 227, 385 A.2d 992 (1978), the child’s mother died, and the maternal grandmother sought visitation, which was denied by the lower court. In reversing the lower court, we attempted to set forth some general guidelines:

When seeking visitation, a third party must show reasons to overcome the parent’s prima facie right to uninterrupted custody. However, the reasons need not be so convincing as in a custody case____ In a visitation case, the
third party need only convince the court that it is in the child’s best interest to give some time to the third party. As the amount of time requested moves the visit further from a visit and closer to custody, the reasons offered in support of the request must become correspondingly more convincing.

254 Pa. Superior Ct. at 230, 385 A.2d 992 (emphasis in original).

Subsequent to the proceedings which took place in the lower court in the case before us, and subsequent to the decision in Williams, our legislature addressed the problem of visitation rights of grandparents when a parent has died. Section 12 of the Custody and Grandparents Visitation Act, Act of November 5, 1981, P.L. 322, No. 115, 23 P.S. § 1001, et seq., now provides:

If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried child by the court upon a finding that visitation rights would be in the best interests of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.

Thus, parents of deceased children may be given reasonable visitation rights with respect to children of such deceased children, provided that: 1) such visitation will be in the best interests of the child, and 2) such visitation will not interfere with the parent-child relationship. It will therefore now be incumbent upon the lower courts to make specific findings as to these two issues when considering whether or not to grant visitation to grandparents in such situations.

In the case before us, as indicated previously, the record contains sufficient testimony upon which the lower court could have based a denial of partial custody or visitation. The lower court, however, awarded partial custody to the grandparents. In doing so, it relied upon information which has not been provided our court. One of the children was interviewed in chambers, evidently with counsel and a stenographer present, but no notes of testimony of this proceeding were included with the original record. In addition, the written report of the local Family Services was not included. Under the circumstances, it is impossible for us to reach a decision in this case. In order to facilitate our review of such cases, the lower court must provide us with a complete record as well as a comprehensive opinion. Com. ex rel. Newcomer v. King, 301 Pa. Superior Ct. 239, 447 A.2d 630 (1982); Hugo v. Hugo, 288 Pa. Superior Ct. 1, 430 A.2d 1183 (1981).

This case is remanded to the lower court. Since the grandchildren have evidently been visiting with the grandparents pursuant to the lower court’s order, and since the record which has been provided us is now quite stale, we direct that additional testimony be taken on the effect of these visits on the children. The in-chambers testimony of the child Richie shall be transcribed and provided to our court along with the written report of the local Family Services. In accord with the terms of the new Custody and Grandparents Visitation Act discussed herein, the lower court shall make specific findings of fact as to: 1) whether visits with the grandparents would be in the best interests of the children, and 2) whether such visits would interfere with the parent-child relationship.

Remanded to the lower court with directions. Jurisdiction is retained.

      . This language has been cited with approval in Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 261-62, 455 A.2d 1180, 1183 (1983).

      . The Act specifies "visitation” but does not define the term. We therefore assume that the legislature intended the “common meaning” of the term as found in Com. ex rel. Rosequist v. Rosequist, 216 Pa. Superior Ct. 388, 393, 268 A.2d 140, 143 (1970): "the right ... to go to see the child wherever he might be,” which does not include the right to take possession of the child.


author: PER CURIAM:

text:
    463 A.2d 483
    In re Involuntary Termination of Parental Rights of C.R. Appeal of C.R.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1982.
    Filed July 22, 1983.

      Joseph J. Kearney, New Castle, submitted a brief on behalf of appellant.
    Gabriel P. Cilli, New Castle, for Catholic Social, participating party.
    Dominick Motto, New Castle, for Infant Male, participating party.
    Before HESTER, BECK and VAN der VOORT, JJ.
   PER CURIAM:

Appellant, the natural mother of a child born July 11, 1978 appeals from an order terminating her parental rights upon a finding that she failed or refused to perform parental duties for a continuing period of at least six months, pursuant to section 311(1) of the Adoption Act of 1970. 1 P.S. § 311a).

This appeal was pending before us when the United States Supreme Court announced its decision in Santosky v. Kramer, Commissioner, Ulster County Dept. of Social Services, et al., 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), holding that the due process clause of the Fourteenth Amendment to the United States Constitution mandates that the standard of proof in cases of termination of parental rights be clear and convincing evidence. Recently an en banc panel of this Court carefully considered the application of Santosky to Pennsylvania law. We held that Santosky must be applied to every case pending on appeal in which parental rights were terminated. Cases in which a party’s parental rights were terminated based on the preponderance of the evidence standard, formerly sufficient under Pennsylvania law, and which would be upheld under that standard, now require remand to the lower court for application of the clear and convincing standard. In re: Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983).

The procedure to be followed by the lower court upon remand is clear:

We do not, however, feel that the lower court must, in all cases, hold new evidentiary hearings. Rather, we adopt the procedure advocated by The Appeals Court of Massachusetts in Custody of A Minor (No. 1), 13 Mass.App. 1088, 436 N.E.2d 172, app. den., [—] Mass. [—], 438 N.E.2d 75 (1982) and Custody of A Minor (No. 3), 14 Mass.App. 1013, 441 N.E.2d 768 (1982). Thus, we hold that cases shall be remanded with a direction to the trial court that it determine, after hearing arguments of counsel, whether new evidentiary hearings are" required. If the court is convinced that counsel would have tried the case differently had it known that a clear and convincing evidence standard would be applied, or if the court concludes that the evidence should be expanded and/or brought up to date, then it should schedule new evidentiary hearings. If, on the other hand, the court is convinced that new evidentiary hearings are not required, the court need only reconsider its prior findings in light of the clear and convincing standard and modify those findings as necessary. We feel that this procedure adequately protects the parents’ right to ensure that findings of parental unfitness are made on the basis of clear and convincing evidence.

Adoption ofM.E.T., 313 Pa.Super. at 323, 459 A.2d at 1251.

Order vacated and case remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Act of July 24, 1970, P.L. 620, No. 208, Art. Ill, § 311(1). Section 311(1) of the Adoption Act of 1970 was incorporated into The Adoption Act of 1980, Act of October 15, 1980, P.L. 934, No. 163.23 Pa.C.S.A. § 2511(a)(1).