author: CAVANAUGH, Judge:

text:
    460 A.2d 816
    COMMONWEALTH of Pennsylvania, v. Thomas J. FLYNN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed May 20, 1983.
    Petition for Allowance of Appeal Denied Sept. 20, 1983.

      Charles B. Coleman, Assistant Public Defender, Reading, for appellant.

      George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant, Thomas J. Flynn, was convicted by the Honorable Arthur Saylor of rape, indecent assault, robbery, burglary, theft, and two violations of the Pennsylvania Uniform Firearms Act. Following the denial of post-verdict motions, appellant was sentenced to ten to twenty years imprisonment for rape, to run consecutively to the sentence appellant was already serving, and concurrent terms of imprisonment totalling ten to twenty years for the remaining charges. In this appeal, appellant argues that (1) the evidence supporting his convictions was insufficient, contrary to the law and evidence and against the weight of the evidence, (2) the lower court erred in denying his motions to suppress identification evidence, (3) the lower court improperly permitted a psychiatrist to testify over his claim of psychiatrist-patient privilege, and (4) his sentence was excessive. For the following reasons, we reverse the judgment of sentence for violating the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. § 6103, vacate the judgments of sentence for indecent assault and theft and affirm the judgments of sentence for the remaining charges.

In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981) ; Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980). It is settled law that while guilt may be proved by direct or circumstantial evidence, it may not rest upon mere suspicion or conjecture. Commonwealth v. Gray, 297 Pa.Super. 123, 125, 443 A.2d 330, 331 (1982) ; Commonwealth v. Jones, 291 Pa.Super. 69, 72, 435 A.2d 223, 225 (1981); Commonwealth v. Beauford, 286 Pa.Super. 297, 300, 428 A.2d 1000, 1002 (1981). Using this standard, the facts adduced at appellant’s trial may be summarized as follows.

On the morning of September 29, 1979, Beverly Gehris was working at the Skyland Factory Outlet in Reading, Pennsylvania when appellant appeared with a transparent stocking over his head. When Gehris screamed, appellant told her not to scream again or “I’ll kill ya.” Gehris noticed that appellant had his hand on a gun at his waistline. Appellant next asked Gehris for the keys to the cash register, disappeared momentarily, and then returned. Before he left the store, appellant forced Gehris to disrobe and have sexual intercourse with him. After the incident, Gehris discovered that $133 was missing from the cash box and also a canvas bag containing $50 in change.

At trial, Gehris unequivocally identified appellant as her assailant.

Appellant, testifying in his own defense, stated that he was asleep on the morning of September 29 and did not awake until that afternoon. Alternatively, he averred that he “wasn’t too well” that day, having been released from a hospital a few weeks earlier, after which time he felt the Holy Spirit, thought he saw the devil and heard voices. (N.T. 104). Appellant did not recall, however, if he heard voices on September 29; he did not see the devil on that date.

Also testifying for the defense was psychiatrist Joel Podolsky. Dr. Podolsky, who examined appellant at his counsel’s request on November 28, 1979, diagnosed him as paranoid schizophrenic. While Dr. Podolsky was aware that appellant had received a similar diagnosis when he was hospitalized in August, 1979, he could not state an opinion as to whether appellant continued to suffer from that condition after August. He was, moreover, unable to form any opinion regarding whether appellant was criminally responsible for the acts he allegedly committed on September 29. In fact, Dr. Podolsky was “skeptical” whether anyone could render such a hindsight opinion.

In rebuttal, the Commonwealth presented the testimony of Dr. Philip Rodenberger, a psychiatrist who treated appellant at Reading Hospital from August 8-August 11 and August 27-August 31 for paranoid schizophrenia. In Dr. Rodenberger’s opinion, appellant was legally sané when discharged on August 31 and, although he never evaluated him at the time of these crimes, also was of the opinion that appellant was criminally responsible on September 29.

At the conclusion of trial, the lower court made the following findings: (1) appellant committed each of the acts charged beyond a reasonable doubt, (2) appellant knew the nature and quality of his acts and that his acts were wrong beyond a reasonable doubt, and (3) even without the Commonwealth’s rebuttal evidence, appellant’s sanity was established beyond a reasonable doubt by lay witnesses. (N.T. 191).

Appellant states that the evidence was insufficient because his convictions were based solely on Ms. Gehris’ testimony. Specifically, appellant argues that (1) no medical evidence that a rape was committed was offered by the prosecution, (2) the victim’s description of appellant’s appearance was contradictory and also unreliable because she was emotionally distressed throughout the incident, and (3) his identification by the victim was the product of a suggestive preliminary hearing procedure.

Appellant’s first claim is easily disposed of for it is settled that the victim’s uncorroborated testimony, if believed, is sufficient to support appellant’s rape conviction. See Commonwealth v. King, 287 Pa.Super. 105, 109-110, 429 A.2d 1121, 1123 (1981); Commonwealth v. Stoner, 284 Pa.Super. 364, 369, 425 A.2d 1145, 1148 (1981). 18 Pa.C. S.A. § 3106. As to appellant’s second claim, the effect, if any, of the victim’s emotional distress on her description of appellant’s appearance goes to the weight of the evidence and is within the province of the factfinder. Similarly within the province of the factfinder is the consideration of any variances in testimony for this goes to the credibility of witnesses and not the sufficiency of the evidence. Commonwealth v. Galloway, 495 Pa. 535, 539, 434 A.2d 1220, 1222 (1981). We find no basis for concluding that the victim’s testimony was “so unreliable and/or contradictory as to make a verdict based thereon pure conjecture...” Commonwealth v. Cristina, 481 Pa. 44, 51, 391 A.2d 1307, 1310 (1978), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979). Finally, since we conclude that Ms. Gehris’ identification of appellant was independently based, any suggestiveness which may have occurred at the preliminary hearing did not render her in-court identification inadmissible. See pp. 821 infra.

We, thus, find the evidence sufficient to support appellant’s convictions for each of the crimes charged with the exception of 18 Pa.C.S.A. § 6103.

We must, however, reverse appellant’s judgment of sentence for violating 18 Pa.C.S.A. § 6103. That section provides as follows:

§ 6103. Crimes committed with firearms
If any person shall commit or attempt to commit a crime of violence when armed with a firearm contrary to the provisions of this subchapter, he may, in addition to the punishment provided for the crime, be punished also as provided by this subchapter.

In Commonwealth v. Simpson, 302 Pa.Super. 287, 293, 448 A.2d 640, 643 (1982) (citations omitted), we stated “[a] defendant may not be convicted under § 6103, for that provision merely provides that a violation under Sub-Chapter 61 of the Crimes Code does not merge with a crime of violence for purposes of sentencing; it does not create a separate offense.” Accordingly, the judgment of sentence imposed for violating 18 Pa.C.S.A. § 6103 is reversed.

Even if the evidence is sufficient, appellant further argues that the Commonwealth failed to prove his sanity beyond a reasonable doubt. The threshold question is whether sanity was ever properly presented by appellant so as to trigger the Commonwealth’s burden of proof. See Commonwealth v. Tempest, 496 Pa. 436, 440, 437 A.2d 952, 954 (1981); Commonwealth v. Demmitt, 456 Pa. 475, 483, 321 A.2d 627, 632 (1974).

As we have said, appellant’s defense was one of alibi, i.e., that he was asleep at home on the morning of these crimes. The defense of insanity was raised by appellant only to the extent that he testified that he had been hospitalized for auditory and visual hallucinations one month earlier, and again, two months later. Although he stated that during September, 1979, he was hearing voices “off and on,” he did not remember whether he did so on September 29. He testified that he did not see the devil on that date. The sole other evidence presented in support of an insanity defense was the testimony of Dr. Podolsky. Dr. Podolsky was unable to form any opinion as to whether appellant was criminally responsible at the time of this incident.

It is obvious that the defenses of alibi and insanity are completely incompatible: one cannot, on the one hand, state that he was not at the crime scene at all and then, on the other hand, contend that if he was there, he was “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it that he did not know what he was doing was wrong.” Commonwealth v. Woodhouse, 401 Pa. 242, 250, 164 A.2d 98, 103 (1960) (footnote omitted), quoting The Queen v. M’Naghten, 10 Cl. and Fin. 200, 8 Eng.Rep. 718 (1843). We believe the record suggests that appellant’s insanity defense was contrived, and that there was, therefore, no insanity issue for the Commonwealth to meet. Since, however, that question is best decided by the fact-finder, and the lower court apparently determined that insanity was properly raised, we will consider whether the Commonwealth met its requisite burden of proof. Compare Commonwealth v. Thompson, 274 Pa.Super. 44, 49-50, 417 A.2d 1243, 1246-1247 (1979) (upholding lower court determination that proffered insanity defense was a sham).

We agree that the Commonwealth met its burden of proving appellant’s sanity. As we have stated, there was no conclusive testimony presented at trial that appellant was not sane when he committed these crimes. By contrast, the Commonwealth produced testimony of Detective Lorrin Young who spoke to appellant the day following the incident. Detective Young testified that, on that date, appellant appeared coherent and rational and that he gave responsive answers to the questions posed. (N.T. 94-96). Moreover, the victim’s description of her assailant’s conduct does not suggest that appellant was insane. Even where expert psychiatric testimony supports an insanity defense, that defense can be disproved by the contradictory evidence of lay witnesses. Commonwealth v. Tyson, 485 Pa. 344, 352-353, 402 A.2d 995, 999 (1979); Commonwealth v. Young, 276 Pa.Super. 409, 417, 419 A.2d 523, 527 (1980). In this case, there was no psychiatric testimony of insanity to even rebut. Accordingly, we find that the Commonwealth met its burden of proving appellant’s sanity by lay witnesses.

Appellant’s second claim is that the victim’s photographic, preliminary hearing and in-court identifications should have been suppressed. With respect to his preliminary hearing claim, appellant argues that he was the only black male in the courtroom, was seated at counsel table and that the victim knew that he had been charged with two other rapes. Those factors, appellant contends, rendered the preliminary hearing “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). We disagree.

At the suppression hearing, Beverly Gehris testified that she first saw appellant at the preliminary hearing as he was ■walking past the doorway in the courtroom; she was outside. Thus, while appellant was the only black male at that hearing, the victim’s recognition of him occurred before the hearing began. Gehris further stated that, her identification of appellant was not influenced by the police. Nor was she told by the police that appellant had been arrested in connection with other rape cases.

After hearing the evidence, the lower court found as a fact that Gehris’ preliminary hearing identification was made without the suggestion or influence of anyone and was instead based on her vivid recollection of appellant as the male who raped her on September 29. The court further concluded that there were no suggestive factors involved in the identification process. These findings and conclusions are adequately supported by the record and we find no basis for disturbing them. See Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980) (citing cases on scope of review of the lower court’s rulings on suppression motions).

In any event, we find that Gehris’ in-court identification of appellant had a basis independent of the preliminary hearing identification. Commonwealth v. Townsend, 280 Pa.Super. 155, 421 A.2d 452 (1980); Commonwealth v. Keaton, 276 Pa.Super. 518, 419 A.2d 578 (1980). The evidence presented at the suppression hearing established that the criminal episode lasted approximately fifteen minutes during which time appellant and the victim stood fact to face, within inches, for at least ten minutes. Although appellant wore a nylon stocking over his head, it was transparent and did not distort his facial features. Gehris specifically stated that she looked directly at her assailant’s face for the purposes of later identification. Weighing this evidence in light of the factors to be considered in determining whether the in-court identification did have an independent basis, See Commonwealth v. Townsend, supra, we conclude that the victim’s in-court identification was properly admitted.

Appellant also contends that the lower court should have granted his motion to suppress the victim’s photographic identification of him because the array from which he was identified was not produced by the Commonwealth. This, appellant argues, rendered him unable to determine whether the display was suggestive. In Commonwealth v. Jack son, 227 Pa.Super. 1, 323 A.2d 799 (1974), we held that the failure to produce a photo array violated defendant’s due process rights. This case is distinguishable from Jackson since, in that case, the police made no record of which photos from a large selection were shown to the victim. Furthermore, the confrontation between the victim and defendant was not conducive to a strong identification; thus, we found that the nonproduction of the photographs prejudiced defendant.

Here, on the other hand, police were not able to produce the exact array of twenty-five photographs shown to the victim. They did, however, display a book similar to the one used which contained sixteen of the original photographs, including one of the two shown of appellant. At the suppression hearing, Detective Lorrin Young described the photographic identification procedure and testified as to the victim’s immediate recognition of appellant. Both Detective Young and Ms. Gehris denied that any influence has been exerted to compel an identification.

Moreover, unlike in Jackson, the confrontation between the victim and appellant was conducive to a strong identification. The Commonwealth’s failure to produce the exact photographic array did not, therefore, prejudice appellant.

Finally, Jackson does not require the suppression of the victim’s independently based in-court identification. Commonwealth v. Sutherland, 305 Pa.Super. 1, 5, 451 A.2d 1, 3 (1982). We thus reject appellant’s suppression claims.

Appellant next contends that the lower court erred in allowing psychiatrist Philip Rodenberger to testify over appellant’s claim of psychiatrist-patient privilege. His argument is two-fold. He first argues that such testimony was excludible under 42 Pa.C.S.A. § 5944, Confidential Communications to Licensed Psychologists. Secondly, citing In re B, 482 Pa. 471, 394 A.2d 419 (1978), he argues that allowing the psychiatrist’s testimony violated his constitutional right to privacy. While the issue of the existence and scope of the psychiatrist-patient privilege is certainly a fascinating one, we need not address it here. Dr. Rodenberger’s testimony was introduced by the Commonwealth to rebut appellant’s suggestion that he might have been insane on September 29. In considering appellant’s proffered insanity defense, however, the lower court specifically stated that it found appellant sane beyond a reasonable doubt excluding the testimony of Dr. Rodenberger. We, too, have not considered that testimony in our review of the evidence presented by the Commonwealth to disprove insanity. Thus, the admission of Dr. Rodenberger’s testimony at trial, if it was in fact improper, was harmless error under Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Finally, appellant argues that the sentence imposed was manifestly excessive because the court failed to consider his youth and mental history. Our review of the sentencing record reveals that the lower court considered these as well as other factors set forth in the Sentencing Code, 42 Pa.C.S.A. § 9701 et seq., before imposing sentence. Appellant has not argued that the sentences exceeded the statutory limitations or that the court did not adequately state its reasons for the sentence as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Appellant’s claim, therefore, must fail.

The court erred, however, when it imposed .separate sentences for indecent assault and theft.

[I]n merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.

Commonwealth v. Crocker, 280 Pa.Super. 470, 475, 421 A.2d 818, 820-821 (1980).

Applying the doctrine of merger to the facts of this case, which have already been recounted in detail, we hold that for sentencing purposes, theft merges into burglary, Commonwealth v. LeCuyer, 290 Pa.Super. 518, 434 A.2d 1264 (1981) and also into robbery. Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982); Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982). We further hold that indecent assault merges into rape. Johnson v. Commonwealth, 499 Pa. 380, 453 A.2d 922 (1982); Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981). Accordingly, we vacate the judgments of sentence for theft and indecent assault. Because, however, the concurrent sentences imposed for the merged offenses did not influence the sentences imposed for the principal crimes of burglary, robbery and rape, we need not remand for resentencing. Commonwealth v. Moore, 300 Pa.Super. at 494, 446 A.2d at 963; Commonwealth v. Cadogan, 297 Pa.Super. 405, 409, 443 A.2d 1185, 1187.(1982).

Judgment of sentence for violating 18 Pa.C.S.A. § 6103 is reversed. Judgments of sentence for theft and indecent assault are vacated. Judgments of sentence for rape, robbery, burglary and violating the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. § 6106, are affirmed.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3126.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3921.

      . 18 Pa.C.S.A. §§ 6103, 6106.

      . Appellant’s argument section also states that the verdict was contrary to the law, evidence and against the weight of the evidence. He does not, however, state how this was so. In any event, we do not find that the verdict was so contrary to the weight of the evidence “as to shock one’s sense of justice and to make the award of a new trial imperative.” Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). Nor do we find the verdict otherwise contrary to law or the evidence.

      . Although appellant did not raise a specific challenge to the propriety of his conviction under 18 Pa.C.S.A. § 6103, we nonetheless address that claim in light of the importance of assuring that an accused is not found guilty of an offense which is not even a crime in Pennsylvania. Cf. Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981).

      . In Simpson, we vacated the judgment of sentence under 18 Pa.C.S.A. § 6103 "as no evidence was presented as to any violation of the Uniform Firearms Act.” 302 Pa.Super. at 293, 448 A.2d at 643. We think this statement erroneously implies that an accused can be convicted under 18 Pa.C.S.A. § 6103 in the event he is also found guilty of another violation of the Pennsylvania Uniform Firearms Act. Our understanding of 18 Pa.C.S.A. § 6103 is that one may never be convicted under that provision of The Crimes Code, notwithstanding the existence of another firearms charge under 18 Pa.C.S.A. § 6101 et seq. See Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979). Rather, 18 Pa.C.S.A. § 6103 establishes only that the sentence for a firearms violation will not merge with the sentence for a crime of violence.

      . We purposefully have not considered the psychiatric testimony of Dr. Philip Rodenberger since the lower court explicitly found appellant’s sanity established beyond a reasonable doubt by lay witnesses “even without Dr. Rodenberger’s testimony." (N.T. 191) (emphasis added).

      . At trial, Gehris acknowledged that she read in a newspaper that appellant was charged with two other rapes. It is unclear, however, when that article appeared in the newspaper. She further stated that,
        on the day of the preliminary hearing in this case, no one told her that appellant had hearings in other rape cases. (N.T. 80).

      . We note that the privilege addressed in 42 Pa.C.S.A. § 5944 is specifically limited to licensed psychologists. Dr. Rodenberger is a psychiatrist. But see In re B, 482 Pa. at 489, 394 A.2d at 428 (concurring opinion of Roberts, J.) ("[I]t would be arbitrary to believe that the Legislature intended the scope of a patient’s privilege to depend on whether the attending therapist is a medical doctor or a psychologist’’).

      . Appellant urges us to disregard the lower court’s statement that it did not consider Dr. Rodenberger’s testimony. We will not do so and further presume that the lower court, which sat as factfinder in this case, followed its own instructions.

      . While appellant did not argue merger, this issue is not waived. Commonwealth v. Franklin, 306 Pa.Super. 422, 430 n. 4, 452 A.2d 797, 801 n. 4 (1982); Commonwealth v. Moore, 300 Pa.Super. at 493 *, 446 A.2d at 963 * (1982).


source: Caselaw Access Project

author: WIEAND, Judge: McEWEN, Judge,

license: Public Domain

text:
    460 A.2d 824
    ESTATE of Rodman WANAMAKER, Deceased. Appeal of Edwin P. ROME and the Executors of the Estate of Morton P. Rome, Deceased.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1983.
    Filed May 20, 1983.

      Marvin Comisky, Philadelphia, for appellants.
    Joseph W. Swain, Jr., Philadelphia, for appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

The appeal in this case is from a final decree of the Orphans’ Court Division of the Montgomery County Court of Common Pleas which refused to allow attorneys for Christopher G. Kellogg, a beneficiary of the trust estate of Rodman Wanamaker, deceased, to recover counsel fees from a fund created when the estate sold the stock of John Wanamaker, Philadelphia (“J.W.P.”) to Carter Hawley Hale Stores, Inc. (“C.H.H.”) for $60,000,000.00. This price produced, after taxes, a net of approximately $11,000,000.00 more than C.H.H.’s initial offer. The auditing judge found that legal services rendered by Morton P. Rome, Esquire, now deceased, and Edwin P. Rome, Esquire, although valuable to their client, had not contributed to the increased sales price and that their fees, therefore, could not be recovered from the trust estate. We affirm.

The general rule is that each party to adversary litigation is required to pay his or her own counsel fees. Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300, 344 A.2d 837, 842 (1975); Shapiro v. Magaziner, 418 Pa. 278, 280, 210 A.2d 890, 892 (1965); Hempstead v. Meadville Theological School, 286 Pa. 493, 495, 134 A. 103, 103 (1926); Harrison’s Estate, 221 Pa. 508, 70 A. 827 (1908). In the absence of a statute allowing counsel fees, recovery of such fees will be permitted only in exceptional circumstances. One of the exceptional situations in which counsel fees may be recovered is where the work of counsel has created a fund for the benefit of many. See: Wilbur’s Estate, 334 Pa. 45, 72-74, 5 A.2d 325, 339 (1939); Hempstead v. Meadville Theological School, supra. This rule was stated by the Supreme Court of the United States in The Boeing Co. v. Van Gemert, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980), as follows:

“[A] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole____ The common-fund doctrine reflects the traditional practice in courts of equity ... and it stands as a well-recognized exception to the general principle that requires every litigant to bear his own attorney’s fees ____ The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.” (Citations omitted).

Id. at 478, 100 S.Ct. at 749, 62 L.Ed.2d at 681-682. See also: Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3rd Cir.1976).

It is fundamental that an attorney seeking compensation from an estate has the burden of establishing facts which show that he or she is entitled to such compensation. Hempstead v. Meadville Theological School, supra. The allowance or disallowance of counsel fees rests generally in the judgment of the auditing judge, and his or her findings of fact, approved by the court en banc and supported by competent evidence, are binding on appeal. Bennett Estate, 366 Pa. 232, 237, 77 A.2d 607, 609 (1951); Davidson Trust, 354 Pa. 333, 335, 47 A.2d 145, 146 (1946). The judgment of the auditing judge regarding the allowance or disallowance of counsel fees will not be interfered with except for abuse of discretion or, as some cases express it, palpable error. LaRocca Estate, 431 Pa. 542, 548-549, 246 A.2d 337, 340 (1968); Thompson Estate, 426 Pa. 270, 281-282, 232 A.2d 625, 629 (1967); Rambo’s Estate, 327 Pa. 258, 266, 193 A. 1, 4 (1937). Here, the auditing judge found that the services rendered by appellants had not contributed to the creation of the fund against which counsel sought to charge their fees. We turn, then, to a review of the evidence to determine whether the auditing judge committed palpable error.

The evidence discloses that on March 7, 1978, at a meeting of trust beneficiaries, the chairman of the trustees reviewed the difficulties being experienced in the retail trade by J.W.P. and reported that C.H.H. had expressed interest in purchasing J.W.P. in exchange for two million shares of common stock of C.H.H. and approximately $12,-628,000.00 in cash. The trial court estimated the value of this offer to be $45,027,551.38. A majority of the beneficiaries expressed a willingness to sell on those terms. However, one of the beneficiaries, Christopher G. Kellogg, was strongly opposed and promptly contacted his attorney, Palmer K. Schreiber, Esquire. It was Schreiber who thereafter engaged Morton P. and Edwin P. Rome to assist him on Kellogg’s behalf. Another beneficiary, also dissatisfied with the amount of the offer, invited Marshall Field and Co., another department store, to make an offer.

On March 15, 1978, the trustees executed a tentative agreement to sell the stock of J.W.P. to C.H.H.; and on April 3, 1978, the trustees filed a petition requesting a hearing to obtain Orphans’ Court approval of the sale. On that same day, April 3, 1978, Schreiber threatened the trustees with litigation if they continued their efforts to consummate the sale. Now, other trust beneficiaries also voiced objections to the sale, and at least four meetings between trustees, the trust beneficiaries and the respective counsel for the beneficiaries took place during April. On April 24, 1978, the offer of C.H.H., which by now was aware that interest had also been expressed by Marshall Field, was increased to $52,500,000.00, payable in cash. As a result of informal bidding between the two potential buyers, the C.H.H. offer was ultimately raised to $60,000,-000. 00, payable in cash. All beneficiaries except Kellogg signed consents to such a sale. Subsequently, Morton Rome and Schreiber conceived the idea of obtaining a stock option agreement from C.H.H. On May 1, 1978, the terms of the contract of sale were negotiated and accepted. A provision thereof gave the trustees the option of purchasing, on or before December 31, 1978, not more than 500,000 shares of C.H.H.’s common stock at a price of $18.50 per share. In fact, the option was never exercised, and it expired according to its terms.

The activities of Morton P. Rome and Edwin P. Rome, according to the facts found by the auditing judge, included the preparation of a complaint “for filing in the United States District Court for the Eastern District of Pennsylvania, seeking a temporary restraining order, preliminary injunction, and final injunction against the sale of the stock of J.W.P. to C.H.H. based on the alleged violation of federal and state securities law.” (Trial Court’s Opinion, p. 72). The petitioner named in the complaint was not Kellogg, however, and the complaint was never filed. Indeed, the trustees were not even aware that a complaint had been drafted. The court concluded, therefore, that these services by the Messrs. Rome had not contributed to the increased price paid by C.H.H. for the purchase of J.W.P.

The trial court found that the Messrs. Rome had also made efforts to find other purchasers for J.W.P. Most of these efforts, however, had been made after the offer of $60,000,000.00 by C.H.H. and acceptance by all trust beneficiaries except Kellogg. As such, the court found, they did not contribute to the realization of the increased price of $60,000,000.00. In any event, whether this work was done before or after the offer of $60,000,000.00 had been made, it is clear that the efforts of the Romes to find another purchaser were unsuccessful. Although we do not minimize the efforts made by appellants on behalf of their client, we are constrained to agree that this work must be paid for by Kellogg. Counsel’s attempts to find another buyer did not contribute to the fund created by the increased C.H.H. offer; and the cost thereof should not be borne by the fund.

Kellogg’s attorneys must be credited with conceiving of and negotiating the stock option agreement which was incorporated into and made a part of the sales agreement. Ultimately, however, the stock option did not increase the funds available to the trust. On the contrary, it remained unexercised and eventually expired. Thereafter, it had no value. If, as appellants imply, the trustees committed an error of omission by failing to exercise the option at the time when the market price of C.H.H. stock temporarily exceeded the option price, the remedy lies in a separate proceeding. The fact remains that appellants’ work in achieving a stock option did not increase the price paid for J.W.P., and the fees for this work cannot be collected from the price realized from the sale of the business.

Finally, there is evidence that the Messrs. Rome, or one of them, attended several meetings on behalf of their client. The trial court found, however, that their presence did not contribute in any identifiable way to the increased offer. Therefore, the court held, fees earned while representing Kellogg at such meetings could not be charged against the fund. The cost of these services was more properly charged to the client.

Because the auditing judge found that the increased purchase price had been the product of contributions made by several beneficiaries and their respective attorneys, appellants contend that they should not be penalized because their work was less fruitful or less glamorous than the work of several attorneys whose fees were allowed from the fund. This contention does not support payment of appellants’ fees from the fund. Rather, it suggests, as the courts of California have decided, that the “common fund” doctrine has no application where other primary beneficiaries or their attorneys have rendered services substantially the same or similar to those who seek compensation from the fund. It has no application, these courts hold, because in such instances no one party has been unjustly enriched at the expense of another. See: In re Estate of Korthe, 9 Cal.App.3d 572, 88 Cal.Rptr. 465 (1970); In re Bullock’s Estate, 133 Cal.App.2d 542, 284 P.2d 960 (1955). We find it unnecessary to determine whether, under such circumstances, the Supreme Court of Pennsylvania would follow the lead of California. In the instant case, the auditing judge found that the contributions of the several attorneys had not been equal. He found, in fact, that appellants’ work had not contributed in any identifiable way to the creation of the fund. Appellants’ services, although valuable to and payable by their client, were not chargeable against the fund.

The auditing judge’s findings are fully supported by the evidence, and his determination that the fund should not be required to pay appellants’ fees for services rendered at the behest of their client is consistent with established principles of law. The decree, therefore, will be affirmed.

Decree affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

While the careful analysis reflected by the opinion of the learned auditing judge is quite persuasive and the opinion of my eminent colleagues on this court is most compelling, I most respectfully dissent.

The auditing judge correctly found the ultimate sale price of $60,000,000.00 was $14,972,448.62 more than the value of the offer that a majority of the beneficiaries had agreed to accept. A study of the record leads me to the further conclusions:

That Christopher G. Kellogg, one of the beneficiaries, after a majority of the beneficiaries had found the original agreement acceptable, promptly retained counsel for assistance in an intensive campaign to thwart completion . of the original agreement.
That Christopher G. Kellogg was vigorously represented and served well in that effort by all the counsel who represented him, namely, Palmer K. Schreibert, Morton P. Rome and Edwin P. Rome.
That the opposition of Christopher G. Kellogg to the original agreement was the catalyst for the quite substantial one-third increase in the sale price.

I would have determined, therefore, that the estate was responsible for the payment of such counsel fees as are due Morton P. Rome and Edwin P. Rome. The majority discusses quite thoroughly the policy exception that when the effort of a litigant or lawyer creates a fund for the benefit of many, counsel fees may be recovered from that fund. That principle is but one factor in my determination. A further factor is a general notion of fairness that such fees are here more appropriately paid by the fund than by the individual whose caution and prompt retention of able counsel effected the considerable increase in the fund.

      . Orphans’ Court approval was required because the trustees had authority under the will to sell only for cash and only if 2A of the beneficiaries approved.

      . Palmer K. Schreiber, Esquire, who was primary counsel for Christopher G. Kellogg, was awarded a fee from the fund, as was counsel for the beneficiary whose efforts produced competitive bidding by Marshall Field. We express no opinion concerning these awards.


author: McEWEN, Judge: JOHNSON, Judge,

text:
    460 A.2d 828
    Denise L. WHITE v. Ralph E. GORDON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1982.
    Filed May 20, 1983.

      Richard B. Moore, Philadelphia, for appellant.
    Louis S. Criden, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   McEWEN, Judge:

The sole issue under consideration in this appeal is whether appellant, a non-indigent male, was denied due process when the lower court ordered him to proceed, without the benefit of representation by counsel, at a paternity hearing which resulted in a finding of paternity by the court and the entry of an order of support against him. We conclude that, under the circumstances set forth herein, the due process rights of appellant were violated and we reverse the order of the Common Pleas Court.

Appellee originally commenced this action by filing a petition for support on October 27, 1978. The docket reflects events of the seven subsequent listings:

12/8/78 Petition. Harris, J. Both present. Petitioner’s attorney present. Defendant denies paternity for Anjela Nikkole (order entered by judge) Blood Studies granted. Defendant to pay for Blood tests. List February Trial, Civil Non-Jury.
3/1/79 Civil Non-Jury Trial. Meade, J. Defendant absent. Defendant’s attorney present. Petitioner absent. Petitioner’s attorney present. Defendant’s attorney to accept service for Defendant. Continued to 4/18/79 for Civil Non-Jury Trial.
4/18/79 Civil Non-Jury Trial. Meade, J. Both present. Represented by Counsel. Continued next available list by agreement of Counsel. Attorneys will notify the court.
5/23/79 Civil Non-Jury Trial. Meade, J. Both present. Petitioner’s attorney present. Continued Next Available List. Continued to 6/4/79 by agreement of Counsel pending possible agreement of parties. Court Room “E”.
6/4/79 Civil Non-Jury Trial. Meade, J. Both absent. Continued next available list. Personal Service on both parties. Later: Petitioner’s attorney appeared late. Request date certain to 7/24/79, Courtroom E.
7/24/79 Civil Non-Jury Trial. Zaleski, J. Both present. Defense attorney present. Petitioner’s attorney present. Continued to 9/21/79 for C.N.-J.T.
9/21/79 Cvil Non-Jury Trial. Zaleski, J. Both absent. Petitioner’s attorney present. At request of Petitioner’s attorney, Petition withdrawn without prejudice.

The record indicates that when the petition was finally withdrawn at the seventh listing of the case counsel for appellee did so as a result of an informal agreement by appellant to make certain payments to appellee.

Appellee subsequently filed a new complaint for support on August 13, 1980, almost one year after she had withdrawn the first petition, in which she alleged that appellant had “failed to comply with an informal promise to support the child.” Both parties appeared in court before the learned Philadelphia Common Pleas Court Judge Jerome A. Zaleski on January 8, 1981, at the initial listing of the case after the new complaint for support had been filed. At that time, appellant denied paternity and the court scheduled the case for trial without a jury on February 4, 1981.

Appellant appeared in court on that date, but without an attorney, despite a warning from the hearing judge at the previous listing that the matter would proceed to trial at the next listing whether or not appellant was represented by counsel. This admonition was delivered in an attempt to avoid any further delay in the conclusion of the case that had been listed for court on eight separate occasions. When the case was called for trial on February 4, 1981, appellant advised the trial judge that his counsel had withdrawn from the case and he had been unable to secure another attorney. The court, nonetheless, ordered the case to proceed to trial and, at the conclusion thereof, the trial judge entered a finding of paternity and imposed an order of support in the amount of $40.00 per week plus an additional $10.00 per week for the arrearage that had accumulated since the filing of the second complaint. New counsel filed this appeal on March 5, 1981 from the order of the Common Pleas Court which determined paternity and fixed the amount of support to be paid. New counsel also filed a petition for reconsideration on March 6, 1981 and, following a hearing on the petition, the petition was denied by order dated May 7, 1981.

This court, in a fine opinion by our distinguished colleague Judge James R. Cavanaugh, recently recognized that denial of counsel for indigent defendants in civil paternity actions in Pennsylvania is inconsistent with due process and, held that “the due process clause of the Fourteenth Amendment to the United States Constitution requires the appointment of; counsel for indigent defendants in civil paternity actions in Pennsylvania”. Corra v. Coll, 305 Pa.Superior 179, 193, 451 A.2d 480, 488 (1982). The court reached this conclusion after it had carefully balanced the three due process factors enunciated in Mathews v. El dridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976), against the presumption that court appointed counsel is constitutionally required for indigent defendants in a paternity proceeding,

The Corra court rejected the contention that a defendant in a paternity suit has no presumed right to counsel since an adjudication of paternity cannot directly result in the deprivation of physical liberty and reasoned:

As we have noted, the civil/criminal distinction is unavailing in determining whether counsel is constitutionally required. Thus it is of no moment that paternity actions, once governed by criminal statutes, are now civil in nature. This jurisdiction does not make criminal, and hence punishable by incarceration, the fathering of a bastard child. An adjudication of paternity may, however, result in the future loss of liberty. Once paternity has been established, and a support order entered, a defendant who wilfully fails to comply with said order when he has the financial ability to do so, shall be guilty of a summary offense punishable by up to 90 days imprisonment. We cannot agree with the Public Defender’s position that this threatened deprivation of liberty is too remote to justify the appointment of counsel at the hearing at which paternity is established. Corra v. Coll, supra, 305 Pa.Superior at 186-187, 451 A.2d at 483-485. (citations and footnotes omitted.)

The instant appeal differs somewhat from the issue addressed by the Corra court since the paternity defendant there was indigent, while the paternity defendant in the instant case is not. It appears clear, however, that a potential deprivation of liberty confronts any paternity defendant, whether or not indigent, and, since this court has determined that indigent paternity defendants have a right to counsel, non-indigent paternity defendants must, at least, be afforded a reasonable opportunity to secure representation by counsel to assist in the defense of such claims. Therefore, we conclude that appellant here, although not indigent, should have been granted, under the circumstances hereinbefore detailed, a reasonable opportunity to retain counsel of his choice to represent him for the trial of the case. Accordingly, we reverse the order of the Common Pleas Court and remand the case to that court for disposition of the paternity proceeding after appellant has been afforded a reasonable opportunity to retain counsel to represent him. Jurisdiction is relinquished.

So ordered.

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

JOHNSON, Judge,

concurring and dissenting:

The majority holds that, because of the ultimate risk for a defendant in a paternity action, a non-indigent defendant must be afforded a reasonable opportunity to secure counsel. With this I heartily agree.

The majority then holds that this defendant was deprived of that right and must have a new trial. With this I disagree.

The first petition for support was filed by the petitioner on October 27, 1978. At a hearing on December 8, 1978, the defendant, represented by counsel, denied paternity. Blood studies were ordered, and a date set for a civil non-jury trial. There were then five continuances, with the defendant still represented by counsel, until September 1979, when the petitioner withdrew her complaint.

The petitioner filed a new petition for support in November 1980. A hearing was held on January 8, 1981. Petitioner and her counsel were present, as was the defendant. The defendant was without counsel. The defendant stated to the court at that hearing that he wished to deny paternity. The following colloquy ensued:

THE COURT: I want to tell Mr. Gordon that the next time we are in court there is going to be a trial. You may come into court with or without a lawyer, since it is a civil case. If you come into court without a lawyer, you will have to represent yourself. It won’t be continued for you to get a lawyer.
THE RESPONDENT: I can understand that.
THE COURT: And if you come back to court and your lawyer says he can’t be here, he is busy, we are going to trial. We cannot continue to postpone this matter as we have in the past, because it is really making a mockery of the system. It had been listed at least about eight times, maybe more. So, Mr. Gordon, my advice to you is to be prepared to stand trial at the next listing in this civil case.
Now, before we leave you, do you have an attorney?
THE RESPONDENT: Your Honor, I do not, Sir.
THE COURT: Well, you don’t have to. It is better that you have one.
THE RESPONDENT: Yes.
THE COURT: But if you come to court without an attorney, I want to repeat myself, you are going to represent yourself.
THE RESPONDENT: Fine.
THE COURT: Because we are not going to continue it anymore.
Where do you live, Mr. Gordon?
THE RESPONDENT: 1043 E. Vernon Road.
THE COURT: And where do you work, Mr. Gordon?
THE RESPONDENT: I am currently unemployed, Your Honor.

N.T. January 8, 1981 at 6-7.

At the trial on February 4, 1981, the defendant appeared, again without counsel. The following dialogue ensued:

THE COURT: Okay. We are here today for a civil trial. Are you Mr. Gordon?
THE RESPONDENT: Yes, I am.
THE COURT: Do you have a lawyer?
THE RESPONDENT: My lawyer withdrew from the case, and so I am currently unemployed, I could not secure another attorney.
THE COURT: Do you know that this is not a criminal case, this is a civil case?
THE RESPONDENT: Yes.
THE COURT: So that if you choose to represent yourself you may do so.
THE RESPONDENT: Correct.
THE COURT: So, Miss White apparently is ready to proceed so we will proceed today with the civil trial. And you will have to act as your own lawyer; do you understand that?
THE RESPONDENT: Yes, Sir.

N.T. February 4, 1981, at 10-11.

The trial began. After direct examination of the plaintiff by her counsel, the defendant conducted-1 a vigorous cross-examination of her. He then presented his own case in an articulate, coherent and lengthy statement. The judge found the defendant to be the father of the child and ordered support payments of $40 per week.

If, in light of Corra v. Coll, 305 Pa.Superior 179, 451 A.2d 480 (1982), I apply to these facts the stricter standard used in criminal cases where the issue of a denial of the right to counsel arises, I find that in this case there was no deprivation of due process.

First, the defendant was warned well ahead of time that he must appear with counsel or proceed without counsel. On January 8, 1981, he asked for, and received, a date certain when the continued hearing would be held. On the day of the trial he made no attempt to ask for delay, or to request aid in acquiring counsel, or even to inquire if such aid were possible. He appears from the testimony to have made no attempt to obtain counsel and to have been satisfied to represent himself. I shall however view this matter in light of the cases where a defendant has been refused the time and opportunity to retain counsel.

The allowance of continuances is largely a matter within the discretion of the lower court, and the denial of a continuance does not constitute reversible error unless there is an abuse of discretion. Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). The Supreme Court of the United States has said:

[I]t is not every denial of a request for more time that violates due process even if the party ... is compelled to defend without counsel____ Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality____ There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case ____

Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-850, 11 L.Ed.2d 921, 931 (1964) (citations omitted) (no deprivation of the right to counsel where the appellant had been given five days’ notice of the hearing in question, where the witnesses were available, the evidence fresh and available, two short continuances had already been granted, and a motion for continuance was made on the day of the hearing).

In Pennsylvania the courts have applied a balancing test, weighing the defendant’s right to counsel of his choice against the state’s right to the efficient administration of justice. See Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973). See Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976) (no abuse of discretion in the denial by the trial court of a continuance where privately retained counsel had taken no action to prepare for trial, not communicated with his client, not responded to any notices of the date of trial, one continuance had already been granted, and a substitute counsel had been appointed well in advance of trial); Commonwealth v. Nicolella, 307 Pa.Super. 96, 452 A.2d 1055 (1982) (abuse of discretion to deny continuance where on day of trial defendant requested to discharge counsel and retain new counsel because of disagreement over trial strategy); Commonwealth v. Carroll, 306 Pa.Super. 152, 452 A.2d 260 (1982) (no abuse of discretion to deny continuance on day of trial where defendant, represented for four months by public defender, requested time to retain private counsel); Commonwealth v. Wolfe, 301 Pa. Super. 187, 447 A.2d 305 (1982) (where defense counsel withdrew mid-trial, substitute counsel was appointed, and no inquiry was conducted into feasibility of defendant’s request for time and opportunity to obtain private counsel, it was an abuse of discretion to deny the request); Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980) (no abuse of discretion in denying continuance where defendant had appeared at trial seventeen months after his arrest, without counsel, after due notice); Commonwealth v. Atkins, 233 Pa.Super. 202, 336 A.2d 368 (1975) (denial of right to counsel where the defendant refused representation at trial by associate of her own counsel and therefore had to represent herself when trial court denied continuance).

In light of these cases it is my view that Mr. Gordon was given due notice of the advisability of counsel, and of the fact that if he appeared for trial without counsel he would have to represent himself. I would therefore find no abuse of discretion or deprivation of due process and would affirm the order of the trial court.

      . The record discloses that appellant was employed full-time as a computer systems analyst manager at the time of the paternity hearing and was receiving a gross weekly income of approximately $250.00 from his employment.

        . It appears that the Common Pleas Court was without jurisdiction to render a decision on the petition for reconsideration at the time the order of denial was entered, since more than 30 days had passed from the date of the filing of the notice of appeal to this court. See Pa.R.A.P. 1701(b)(3) and Comment thereto. This action would, of course, have no effect upon the issue presented for our review in this appeal.

      . The distinguished trial judge did not have, at the time of these proceedings and his decision in 1981, the benefit of the recent decision of this court in Corra.

      . See Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982).

      . At the trial a month later the defendant informed the judge that he had been doing part-time work (20 hours a week) since mid-December, at $250 per week, and that his previous full-time job was as a data processor and computer programmer. N.T. February 4 at 56, 59.


author: BECK, Judge:

text:
    460 A.2d 833
    Howard SCHULTZ, Robert Kopsitz and Charles P. Ditimer, Appellants, v. CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1983.
    Filed May 20, 1983.

      Gilbert E. Toll, Philadelphia, for appellants.
    Ralph J. Teti, Philadelphia, for appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   BECK, Judge:

In this appeal, three retired Philadelphia police officers, Howard Schultz, Robert P. Kopsitz and Charles Dittmer, are appealing from the lower court’s sustaining of Preliminary Objections by appellee, the City of Philadelphia, to the suit in assumpsit brought by the officers against the city.

Initially we note that an order sustaining Preliminary Objections is a final order and appealable under 42 Pa.C.S. § 742, so that jurisdiction of this Court is established on these grounds. Nevertheless, 42 Pa.C.S. 762(a)(4) confers exclusive appellate jurisdiction in the Commonwealth Court for civil matters arising under any municipality. Since no objection has been filed to our jurisdiction, Pa.R.Appel.P. 741(a) operates to perfect the jurisdiction of this Court, and Pa.R.Appel.P. 752 confers discretion upon us to hear the appeal or to transfer it. Commonwealth v. Sensi, 287 Pa.Super. 452, 430 A.2d 691 (1981), Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 406 A.2d 1133 (1979). In this case, in the interest of judicial economy, we exercise our discretion to resolve the issues on appeal in this tribunal.

Appellants allege that the Police Department of the City of Philadelphia required them to work overtime hours, in excess of their regular work week. Up until 1964, the City of Philadelphia elected either to pay them for their overtime hours or to give them compensatory time, i.e. time off with pay, on an hour for hour basis. In June 1965 the city adopted certain civil service regulations which limited the amount of compensatory time which appellants could accumulate to 120 hours maximum. Despite the new regulations, the city required the officers to work overtime, so that each accumulated 600 hours of compensatory time. When appellants retired, the city refused to pay them for compensatory time exceeding 120 hour limitation, even though some of that compensatory time was accumulated prior to the effective date of the new regulations, i.e. June 4, 1969.

When the suit in assumpsit was initiated , the city filed Preliminary Objections alleging that the suit was barred under the doctrine of lis pendens. They claimed that Fraternal Order of Police v. Rizzo et al., September Term 1977, no 3922 was in progress and that its results would determine the rights of the parties in the action brought by the three officers. The court sustained the Preliminary Objections on the grounds that the parties, the rights asserted, and the relief sought were the same in both cases. Commonwealth ex rel. Lindsley v. Robinson, 30 Commw. 96, 372 A.2d 1258 (1977).

Between the time that the lower court sustained appellee’s Preliminary Objections and the present, the pending suit has been tried and appealed. The Court of Common Pleas, Philadelphia County, found for Rizzo, and the Commonwealth Court affirmed. Fraternal Order of Police v. Rizzo et al., 68 Commw. 560, 449 A.2d 860 (1982). Appellees now argue that although the appeal is technically moot (insofar as the other action is no longer pending) it is efficient to resolve the issues of the appeal on the grounds of res judicata, and we agree.

The doctrine of res judicata holds that a final judgment on the merits is conclusive of the rights of the parties and bars subsequent action on the same claim or cause of action. The rule expedites results of litigation, establishes finality, and protects parties from vexatious, repetitious litigation. Exner v. Exner, 268 Pa.Super. 253, 407 A.2d 1342 (1979). The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights. Notoro v. Estate of Hyer, 239 Pa.Super. 10, 361 A.2d 766 (1976).

The law of this Commonwealth dictates that the application of res judicata requires a concurrence of four conditions: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. Dunham v. Temple University, etc., 288 Pa.Super. 522, 432 A.2d 993 (1981), Bearoff v. Bearoff Bros. Inc., 458 Pa. 494, 327 A.2d 72 (1974).

The case upon which appellee relies for the application of res judicata Fraternal Order of Police v. Rizzo, supra, meets the criteria established by the law. Because of some of the facts are different in the two suits, we examine Rizzo in some detail in order to explicate the essential similarity.

In Rizzo, the issue was whether three city officials, Frank L. Rizzo, Mayor, Hillel S. Levinson, Managing Director, and Joseph F. O’Neill, Commissioner of the Police Department, had breached the 1971 arbitration award affecting the rights of policemen employed by the city. The trial court in Rizzo found that 1957 Civil Service regulations imposed a maximum of 120 hours of compensatory time for all city employees whose annual salary was above a certain rate. In 1964, a Police Department directive amended the regulations so that policemen above the rank of lieutenant could accrue up to 600 hours of compensatory time, but recognized only 120 of those hours at the policeman’s retirement, when terminal leave and pension benefits were calculated.

Until 1971, all police personnel worked a forty-two hour week. The arbitration award of 1971, the interpretation of which was the principal issue in Rizzo, provided in part:

Request 9: All employees shall enjoy a forty hour work week.
Award:
1. Commencing July 1, 1971, all hours of overtime worked by an employee (below the rank of Captain), in excess of eight hours per day, or in excess of forty (40) hours per week, shall be paid at the rate of one and one-half times the regular rate of pay.
2. Compensatory time for the rank of Captain and above shall be determined on the basis of a forty hour week.

In 1977, the F.O.P. sought arbitration of a claim that the city had breached the 1971 arbitration award. The parties agreed to postpone the requested arbitration while the F.O.P. filed a complaint in mandamus relating to the overtime claim. The trial court concluded that the 1971 arbitration award was intended only to reduce the number of regular hours in a work week for various ranks, and did not alter the amount of compensatory time that could be accumulated. The award changed the point at which the calculation of overtime began, but it did not change the total number of hours that an individual could accumulate as compensatory time. In other words, the Court of Common Pleas in the 1977 suit determined that the 1965 Civil Service regulations remained in effect, unchanged by the 1971 award. The mandamus action for overtime pay was therefore dismissed, and the Commonwealth Court affirmed the dismissal.

The appellate opinion makes clear that ordinarily when an arbitration award conflicts with Civil Service regulations, the regulations must be overruled. Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969).' In the 1971 arbitration award, however, the arbitrator was fully aware of the applicable Civil Service regulations, and acknowledged that the regulations, in this instance, were controlling:

Request 20: All employees above the rank of Sergeant shall be paid immediately for all compensatory time to which they are entitled.
Award: Request is denied. This item is controlled by Civil Service Regulation 6.1132.

We now come to the question before the Court in this appeal: Is the claim of these appellants res judicata by the holding in Rizzo? We believe that it is.

The identity of the thing sued for:

The F.O.P. in Rizzo and appellants sued for monetary compensation for overtime accrued. The relief sought is the same in both cases.

The identity of the parties:

Appellants argue that they are not included in the suit brought by the F.O.P. because the F.O.P. did not comply with Pa.R.C.P. 1701 et seq., the Class. Action rules, which became effective September 1, 1977, prior to the initiation of their suit on September 29, 1977. This argument ignores the essential role of the F.O.P. as a collective bargaining representative of the police who are employed by the City of Philadelphia, as found by the court below. Each of the three appellants is a member of the F.O.P. In the instant case, appellants have sued the City of Philadelphia. The F.O.P. sued three individuals who were all clearly representatives and agents of the city. We therefore hold that the parties were identical in both actions.

Identity of quality or capacity of the parties:

The F.O.P. in Rizzo sued on behalf of all retired police officers. Appellants sue on their own behalf as retired police officers. We hold that there is identity of quality or capacity.

Identity of Cause of Action:

Although there are factual differences which distinguish the claims of the two suits, we hold that in essence the causes of action are also the same, so that the instant appeal is barred by the former. We agree with the lower court that the difference between the mandamus action in Rizzo and the contract action brought by appellants is not significant. Both claims arise from the city’s nonpayment of accumulated compensatory time, and in both cases the city defends the nonpayment on the basis of controlling civil service regulations which impose a ceiling on the amount of time that can be accumulated with compensation, and the amount that can be claimed upon retirement.

Other factual variations must still be explained. The F.O.P. in Rizzo grounded its claim on its interpretation of the arbitration award of 1971 (request 9). The Commonwealth Court held that item 9 did not itemize their maximum compensatory time, but that the maximum was determined by the civil service regulations of 1965 (request 20), which allowed accumulation of time up to 600 hours, but recognized only 120 hours in computing terminal leave and pensions. Appellants sue upon the regulations of 1969 which, they allege, imposed a maximum of 120 hours (whereas the 1965 regulations allowed 600 hours in the pre-retirement years). Appellants further urge that they earned and accumulated compensatory time in excess of 120 hours before the 1969 regulations went into effect (Complaint, # 10). Nevertheless, appellants did not sue for salary earned but not compensated for as of 1969, nor can they do so today. Such a claim is barred by the six year statute of limitations for assumpsit actions. The policy reflected in res judicata, providing repose from vexatious litigation, is also reflected in the statute of limitations, which places a bar upon stale claims. The current suit is, of course, brought by the three appellants upon their retirement. This circumstance, we hold, makes their claim determined by the holding in Rizzo, which establishes that the civil service regulations imposing a 120 hour maximum in the case of retirement pay prevail over conflicting agreements concerning working hours and compensation. We therefore conclude that the issue of whether appellants, as retired police officers, are entitled to compensation for accumulated time in excess of 120 hours earned before 1969 has been determined in Rizzo, and appellants are not entitled to a trial on the merits on this issue.

The order of the lower court sustaining appellee’s Preliminary Objections is affirmed.

JOHNSON, J., concurs in the result.

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

      . Appellants seek to recover the following amounts, claiming compensation earned plus interest:
      Howard Schultz $ 7,132.80
      Robert P. Kopsitz $13,348.28
      Charles P. Dittmer $ 7,100.16

      . 12 P.S. § 31 (now 42 Pa.C.S. 5527).


author: MONTEMURO, Judge:

text:
    460 A.2d 837
    Eleanor Grace SIPEL, Administratrix of the Estate of Walter R. Gantz, Jr., Deceased and Willis L. Green and Betty A. Green, Administrators of the Estate of Tammy Lee Green, Deceased, Appellant, v. COMMERCIAL UNION INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted March 8, 1983.
    Filed May 20, 1983.

      Neil J. Rovner, Harrisburg, for appellant.
    James Kenneth Thomas, II, Harrisburg, for appellee.
    Before CERCONE, P.J., and WICKERSHAM and MONTEMURO, JJ.
   MONTEMURO, Judge:

The instant appeal is from the order of the trial court sustaining appellee Insurance Company’s preliminary objections, and concerns a question of entitlement to work loss benefits under the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq.

On July 13, 1978, Tammy Lee Green, age 7, was killed in an automobile accident. On September 7, 1980, Walter R. Gantz, Jr., age 21, was involved in a motor vehicle accident. Walter R. Gantz, Jr. died on September 24, 1980 as a result of injuries sustained in the accident. At the time of the accidents and at the time of death, each decedent was insured under a policy of no-fault insurance issued by appellee Commercial Union Insurance Company.

The present suit was instituted as a class action suit on July 24, 1981, by representative appellants in their capacity as administrators of the estates of Tammy Lee Green and Walter R. Gantz, Jr. Appellants claimed entitlement to work loss benefits under the No-Fault Act. Appellee filed preliminary objections in the nature of a demurrer. The trial court sustained appellee’s preliminary objections, ruling that there were no allegations here that the estates of the deceased victims were “survivors” as defined in the No-Fault Act, and that therefore appellants were not entitled to work loss benefits.

The question presented here was decided by our court in Freeze v. Donegal Mutual Insurance Company, 301 Pa. Super. 344, 447 A.2d 999 (1982). In Freeze we held that the estate of a deceased victim is entitled to recover work loss benefits under the No-Fault Act.

Subsequent to Freeze, this court reaffirmed the holding of that case in Miller v. United States Fidelity and Guaranty Company, 304 Pa.Superior 43, 450 A.2d 91 (1982). In Miller, which also was a case brought by a personal representative to recover work loss benefits under the No-Fault Act, the court went on to examine certain definitional terms used in the Act. Specifically it stated the following:

In assiduously reviewing the No-Fault Act this court finds no requirement of proving “dependency”: in order to recover “work loss”. In fact, in defining “work loss”, the No-Fault Act nowhere mentions survivor or survivors; thus no showing of dependency is necessary.

Miller, supra, 304 Pa.Superior at 54, 450 A.2d at 97.

Accordingly, the order of the lower court is reversed and the case is remanded for disposition not inconsistent with this opinion. Jurisdiction is relinquished by this court.

      . The preliminary objections allege alternative grounds for dismissing the complaint. However, none of these alternative grounds are set forth in the Statement of Questions Involved section of the parties' briefs, therefore, they have not been considered by the\ourt. Pa.R. A.P. 2116(a).


author: PER CURIAM:

text:
    460 A.2d 838
    COMMONWEALTH of Pennsylvania v. Robert SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Peb. 19, 1981.
    Filed May 20, 1983.
    Petition for Allowance of Appeal Denied Aug. 22, 1983.

      Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   PER CURIAM:

Appellant, Robert Smith, was tried by a jury and found guilty of burglary, criminal trespass, and possession of an instrument of crime. Prior to trial, he attempted to waive trial by jury and requested to be tried by the court. The Commonwealth requested trial by jury in accordance with the provisions of 42 Pa.C.S. § 5104(c). The trial court denied appellant’s request for a trial without jury. A direct appeal to this Court was then taken from the judgment of sentence.

Appellant’s sole contention on this appeal is that the trial court erred by denying his motion to waive a trial by jury. He argues first that the court erred in denying the motion solely because the Commonwealth did not consent. He then contends that § 5104(c) is unconstitutional because it infringes upon the procedural rule making power of the Supreme Court, in particular Pennsylvania Rules of Criminal Procedure 1101. Because the appeal presented a constitutional challenge to 42 Pa.C.S. § 5104(c), this Court certified the constitutional issue to the Supreme Court for decision.

On December 30, 1982, in Commonwealth v. Sorrell, et al, 500 Pa. 355, 456 A.2d 1326 (1982), the Supreme Court held the statute unconstitutional. However, the court found that in appellant’s case the trial court had properly applied Rule 1101 and properly exercised its discretion thereunder. Therefore, the Supreme Court having decided the sole issue here on appeal, there is nothing remaining for us to address. Accordingly, we must dismiss the appeal

Appeal dismissed.

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

      . This statute provides: “In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.”

      . Pa.R.Crim.P. 1101 provides:
      “In all cases, the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury....”


text:
    460 A.2d 840
    COMMONWEALTH of Pennsylvania v. Bobby McLEAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 19, 1983.
    Filed May 27, 1983.
    Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   PER CURIAM:

After careful review of the record and briefs filed in this case, it appearing that the sole issue raised on appeal, i.e. whether the trial court erred in granting the Commonwealth’s petition for an extension of four (4) days in which to bring appellant to trial under Pa.R.Cr.P. 1100 and 6013, has been correctly decided and adequately discussed by the trial court,

Judgment of sentence is affirmed.


text:
    460 A.2d 840
    COMMONWEALTH of Pennsylvania v. Thomas Donald PADDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 19, 1983.
    Filed May 27, 1983.
    John Joseph Cerra, Carbondale, for appellant.
    Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   PER CURIAM:

After careful review of the record and briefs filed in this case, it appearing that one of the issues raised on appeal, i.e. whether the trial court erred in holding that Pa.R.Cr.P. 1100 had not been violated by the Commonwealth in bringing appellant to trial forty-six (46) days after he withdrew his guilty plea, has been correctly decided and ably discussed by the trial court, and it further appearing that the remaining issue raised by appellate counsel, i.e. whether trial counsel’s representation was constitutionally effective as regards the “Rule 1100 Question” has no merit due to our decision on the first issue raised,

Judgment of sentence is affirmed.