author: ROWLEY, President Judge:

text:
    645 A.2d 859
    Morton B. DEBROFF, A Professional Corporation, Appellant, v. Alice CORRETTI and Pierre J. Corretti, her husband.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1994.
    Filed July 27, 1994.

      Mark Clement, Pittsburgh, for appellant.
    Michael K. Parrish, Pittsburgh, for appellees.
    Before ROWLEY, President Judge, and BECK and JOHNSON, JJ.
   ROWLEY, President Judge:

Morton B. Debroff, Esquire, (hereinafter “appellant”), a pro se plaintiff in the trial court, appeals from an order dismissing his complaint against Alice and Pierre Corretti (hereinafter “appellees”) with prejudice following the failure of all parties and their counsel to appear for the call of the list and trial of this matter before a Board of Judicial Arbitration. Appellant contends on appeal that the trial court erred by entering the subject order because he proffered a reasonable explanation for his failure to appear at the arbitration hearing.

The record discloses the following procedural history of this case. On October 29,1992, appellant filed the instant action to recover legal fees for services rendered by appellant to appellee wife, Alice Corretti. When appellant’s complaint was filed, a hearing was scheduled for 9:00 a.m. on February 8, 1993, before a Board of Judicial Arbitration. The date and time of the hearing, together with its location, were stamped on the front of appellant’s complaint.

On December 28, 1992, appellees filed preliminary objections to Counts I through IV of appellant’s complaint, which were sustained by Judge Wettick on January 29, 1993; those counts of the complaint were dismissed as to appellee husband, Pierre J. Corretti, because he was not a party to the contractual relation between appellee wife and appellant. On February 1, 1993, an answer, containing new matter and a counterclaim was filed by appellees.

One week later, on February 8,1993, the date scheduled for trial before a Board of Judicial Arbitration, neither party appeared at the call of the list. Consequently, Judge McGowan of the Allegheny County Court of Common Pleas entered the following order:

“And now, [February] 8,1993, on trial list, case twice called and neither party answering the call, this case is now, therefore, dismissed with prejudice.”

(Emphasis added).

Thereafter, on March 5, 1993, appellant filed a “Motion for Reconsideration” as well as preliminary objections to appellees’ counterclaim. In his “Motion for Reconsideration,” appellant requested that the judicial arbitration be re-scheduled and gave his reason for failing to appear at the call of the list as follows:

“[Appellant] did not appear for the February 8, 1993 hearing because he believed that the hearing date would be automatically continued by the [trial] court, since the pleadings were not yet closed.”

On that same day, March 5, 1993, appellant’s “Motion for Reconsideration” was denied by Judge McGowan and appellant filed the instant appeal. Appellant’s preliminary objections to the counter-claim were never addressed by the trial court. This appeal presents two distinct questions for our consideration, which are: (1) whether the trial court’s order dismissing this case is appealable to this Court; and (2) whether the trial court erred in denying appellant’s “Motion for Reconsideration?”

I.

Initially, both the trial court and appellees contend that we should quash this appeal because appellant’s proper remedy was to file an appeal for a trial de novo in the Allegheny County Court of Common Pleas, pursuant to 42 Pa.C.S.A. § 7361(d). However, appellant insists that his appeal is properly before us because the Superior Court has “exclusive appellate jurisdiction” over all “final” orders of the courts of common pleas pursuant to 42 Pa.C.S.A. § 742. We agree with appellant that this appeal is properly before us.

Section 742 of 42 Pa.C.S.A. provides that:

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

42 Pa.C.S.A. § 742. (emphasis added). In this case, Judge McGowan, a judge of the court of common pleas, entered a final order dismissing this case, which included both appellant’s complaint and appellees’ counterclaim, with prejudice. Thus, pursuant to § 742, we' conclude that this Court has exclusive jurisdiction to hear and decide the merits of this appeal.

In so concluding, we disagree with appellees contention that appellant did not properly preserve his right to appeal under 42 Pa.C.S.A. § 7361(d). As noted by appellees, this statute begins by stating that:

“Any party to a matter shall have the right to appeal for trial de novo in the court. The party who takes the appeal shall pay such amount or proportion of fees and costs and shall comply with such other procedures as shall be prescribed by general rules.”

42 Pa.C.A. § 7361(d). Significantly, however, appellees have failed to observe that § 7361(d) also provides that:

“In the absence of appeal the judgment entered on the award of the arbitrators shall be enforced as any other judgment of the court. For purposes of this section and section 5571 (relating to appeals generally) an award of arbitrators constitutes an order of a tribunal.”

42 Pa.C.S.A. § 7361(d). (emphasis added).

We conclude that appellees’ reliance on § 7361(d) is misplaced because, as evidenced by the highlighted language above, this statutory provision clearly assumes that any appeal to the Court of Common Pleas for a trial de novo would be from an “award of the arbitrators.” In the instant case, there was no award entered by the arbitrators; rather, an order was entered by a judge of the court of common pleas putting appellant completely out of court, not just out of the arbitration division. Thus, in reliance upon 42 Pa.C.S.A. § 742, we decide that appellant chose the appropriate means by which to perfect an appeal from the order dismissing this case with prejudice.

II.

Before reaching the merits of this appeal, however, we must point out that the trial court’s order of February 8, 1993 was, in effect, a judgment of non pros, entered pursuant to Rule 218 of the Pennsylvania Rules of Civil Procedure, which provides as follows:

“Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion.”

Pa.R.C.P. 218(a), 42 Pa.C.S.A. (emphasis added). Thus, before appellant could seek our review of the trial court’s February 8, 1993 order, he was required, pursuant to Rule 3051 of the Pennsylvania Rules of Civil Procedure, to file a petition to open the judgment of non pros, alleging sufficient facts to establish that the petition was filed in a timely manner, that there was a reasonable explanation or legitimate excuse for the delay, and that the underlying cause of action is meritorious. Pa.R.C.P. 3051, 42 Pa.C.S.A.

Although appellant did not file the proper petition in accordance with Rule 3051, we note that he did timely file a “Motion for Reconsideration,” which was, in effect, intended to serve the same function. In spite of the fact that this Court has recently quashed an appeal due to the failure of an appellant to file a proper petition with the trial court in Xu Xu v. Montefiore Hospital, 422 Pa.Super. 114, 618 A.2d 1043 (1993), we will treat appellant’s “Motion for Reconsideration” as being a “Petition to Open the Judgment of Non Pros” because the instant appellant, unlike the Xu Xu appellant, made a good faith attempt to follow the proper procedure. See Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (1990) (Rowley, P.J., dissenting).

In examining appellant’s “petition,” we note that it contains an explanation for his failure to appear at the call of the list, but it does not allege any facts showing that his underlying cause of action is meritorious. The “petition” was not answered by appellees, and was denied by the trial court, without an evidentiary hearing or the preparation of factual findings, because the trial court concluded that appellant’s excuse for his failure to appear was unreasonable.

Appellant now argues that the trial court erred in so concluding because he had a reasonable explanation for his failure to appear and therefore, this case should not have been dismissed pursuant to Rule 218. Specifically, appellant avers that he did not appear for trial on the scheduled date of February 8, 1993 because the pleadings in the case were not yet closed, and he therefore assumed that the case would be automatically continued by the court without any action whatsoever on his part.

We fail to see how appellant could reasonably believe that a case would automatically be continued by the Allegheny County Court of Common Pleas because just such a policy has been expressly disapproved by a Memorandum appearing in the Pittsburgh Legal Journal on October 22, 1990, wherein it was stated by the then Calendar Control Judge for the Arbitration Division, Judge R. Stanton Wettick, Jr., that:

“Cases will not be automatically continued by [the Director of Arbitration] because of any pending preliminary objections, petitions or motions. However, if preliminary objections, petitions, or motions are pending, [the Director of Arbitration’s] office is authorized to continue the case to a specific date if all counsel consent to the continuance. Otherwise, the matter may be continued because of the pending preliminary objections, petition, or motion only upon order of court.”

(Appellant’s Motion for Reconsideration, Exhibit A), (emphasis added). As this Court stated in Ttmar, Inc. v. Sulka, 402 Pa.Super. 319, 586 A.2d 1372 (1991), appeal denied, 530 Pa. 656, 608 A.2d 31 (1991):

“Counsel attacks the very process which every responsible member of the Bar practicing in Allegheny County is bound to follow. The Pittsburgh Legal Journal is the official court publication of Allegheny County as authorized by the local rules of court. [Appellant], choosing to practice in the [Allegheny County] forum, was duty bound to identify [and obey] this rule ...”

Id. at 321-322, 586 A.2d at 1373.

Clearly, then, an attorney in Allegheny County who wishes to have his case continued on the basis of outstanding preliminary objections, motions or petitions has a positive duty to notify the court and opposing counsel that a continuance is necessary. If opposing counsel agrees, the case will be continued to a specific date, which is set by the Director of Arbitration’s office; if opposing counsel does not agree, the matter may only be continued by an order of court. In either case, court participation is absolutely necessary for a continuance to occur. Appellant -willfully failed to comply with this procedure, and thus, we cannot find his excuse for missing the call of the list and trial reasonable. Appellant simply had no right to assume that he could just ignore, for whatever reason, an order of court setting a specific date and time for an arbitration hearing.

We wholeheartedly agree with, and adopt as our own, the trial court’s sentiments on this issue, which were expressed as follows:

“How [appellant] came upon th[e] assumption that the case would be automatically continued by the Court if pleadings were not closed is left to our surmise. [Appellant] would have the [trial] court review the interstices of all the files [of all the cases pending before boards of arbitration] to make sure that the pleadings were closed sita sponte rather than trouble [him]self to notify the court in advance of hearing that the pleadings were not closed and the case therefore should be continued.
This Court must refuse to accept the additional workload [appellant] would gratuitously force upon [the trial court]; [appellant] is responsible for either (1) obtaining a continuanee when pleadings are not closed; or (2) appearing] and tryfing] the case as per scheduling and per the advertisement in the Pittsburgh Legal Journal.”

(Trial Court Opinion, 9/15/93, p. 1-2). (emphasis added).

Because we have decided that appellant does not have a ‘satisfactory excuse’ pursuant to Pa.R.C.P. 3051 and 218 for his failure to appear at the call of the list and trial, we also conclude, pursuant to those rules, that the trial court did not err in entering, and refusing to open, the judgment of non pros entered on February 8, 1993.

Order affirmed.

      . Appellee’s counterclaim was also dismissed with prejudice by the trial court.

      . It is crucial to note that this is not a case where one party appeared at the arbitration hearing, ready to proceed, while the other party was absent; in this case, neither party appeared at the hearing. Such a situation is not addressed by Rules 1303' and 1304 of the Pennsylvania Rules of Civil Procedure, and thus, we must look to Rule 218 for guidance in deciding this appeal.

      . The March 5, 1993 order denying appellant’s "Motion for Reconsideration” was not actually filed until March 9, 1993.

      . For the reasons just discussed, we reject the reasoning of Hunkle and Chen Chet Haeg v. DiPasquale, 141 P.L.J. 457 (1993), a trial court opinion issued by the Allegheny County Court of Common Pleas and cited by appellees. We simply do not believe that “the next procedural step’’ for a litigant in appellant's position is to take an appeal to the Court of Common Pleas, when that tribunal has already entered a final order of non pros. However, our conclusion on this issue is in no way intended to mean that the trial court could not enact a local rule allowing a plaintiff, whose arbitration case has been non-prossed, to appeal directly to the Court of Common Pleas.
      We should also note that two cases decided by this Court, Hall v. Reeb, 382 Pa.Super. 452, 555 A.2d 926 (1989) and McGonigle v. Currence, 387 Pa.Super. 511, 564 A.2d 508 (1989), have held that “the law, in its present posture, does not carve out an exception barring a party from exercising his right to de novo review despite his nonappearance at [an] arbitration hearing so long as the appealing party complies with all the necessary steps in perfecting the appeal.” Id. at 517-518, 564 A.2d at 511. Although appellees contend that these cases support their position regarding the proper avenue of appeal in this case, we do not agree. In both cases, only one party failed to appear and an award was entered by the board of arbitrators. By contrast, in the. instant case, as discussed above, there was no award by the arbitrators. Hall and McGonigle are therefore inapposite to the instant appeal.

      . This rule is in accordance with our standard of review, which has been stated as follows:
      "A petition to open a judgment of non pros is addressed to the court’s equitable power, and the exercise of those powers will not be disturbed absent an abuse of discretion, [citation omitted]. However, before a court may open a judgment, the party seeking vacation must demonstrate that: (1) the petition to open was timely filed; (2) the default which occasioned the entry of judgment can be reasonably explained; and (3) the facts constituting grounds for a cause of action are alleged.”

        Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 577, 519 A.2d 500, 503 (1986).

      . For this reason alone, the trial court could have, had it so desired, denied appellant’s "petition” to open the non-pros.

      . We note that there are two Superior Court cases originating in Philadelphia County, Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988) and Potter v. Temple University Hospital, 380 Pa.Super. 376, 551 A.2d 1101 (1988), in which this Court held that "where both parties have displayed a lack of due diligence by failing to monitor the list and be present at the same call, 'neither party is prepared to go forward, [and, thus,] ... neither should be permitted to profit from an innocent, albeit negligent, comedy of errors.' " Id. at 386, 551 A.2d at 1105, quoting Nivens, 373 Pa.Super. at 382, 541 A.2d at 367.
      However, both Potter and Nivens are distinguishable from the instant case, because in those cases, the appellants did not receive notice of the trial date, whereas in this case, appellant was well aware of the trial date but purposely failed to appear at the call of the list because the pleadings were not closed and he assumed that the case would therefore be continued. This was not an innocent, or even negligent, mistake, but a conscious choice on the part of appellant.
      It should be noted that in researching this case, we have reviewed some of the reasons previously given by others seeking to open a judgment of non pros, and we note that no where have we found one as unreasonable as the one given in the case sub judice. In Walt Medical v. Electro-Nucleonics, 400 Pa.Super. 274, 583 A.2d 492 (1990), this Court found that because the Pittsburgh Legal Journal and a court employee both mistakenly gave erroneous information to a litigant as to the place of trial, a judgment of non pros was improper and in Williams v. Gallagher, 396 Pa.Super. 584, 579 A.2d 403 (1990), this Court held that the entry of a non pros judgment against a pro se plaintiff, who was not a lawyer, for his failure to appear at the call of the list was an abuse of discretion where the plaintiff was unaware of the date of trial due to his incarceration, and consequent lack of access to Philadelphia's Legal Intelligencer. However, in both Walt and Williams, unlike the instant case, the failure to appear was the result of mistake, not a willful disregard of the judicial process. We decide that the trial court acted well within its discretion in entering, and refusing to open, the instant judgment of non pros.


source: Caselaw Access Project

author: FORD ELLIOTT, Judge:

license: Public Domain

text:
    645 A.2d 865
    Anthony J. PANICHELLI v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 14, 1994.
    Filed July 29, 1994.

      J. Eric Barchiesi, Pittsburgh, for appellant.
    Michael E. Kennedy, Pittsburgh, for appellee.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the October 25, 1993 order of the Court of Common Pleas of Allegheny County granting appellee’s summary judgment motion. We affirm.

On December 2, 1987, appellee, Anthony J. Panichelli, was injured in a motor vehicle accident. At that time Mr. Panichelli was insured under a policy issued by appellant, Liberty Mutual Insurance Group. That policy was written and issued in accordance with the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (hereinafter “MVFRL”). The policy provided income loss benefits under the Combination First Party Benefits provision.

Mr. Panichelli was unable to work as a result of injuries sustained in the accident. Consequently, he filed a claim for loss of income benefits with Liberty Mutual. Liberty Mutual failed to pay any income loss benefits from December 3, 1987 through August 1, 1988. During that period Mr. Panichelli received sick pay benefits from his employer in an amount equal to his gross income. It was therefore Liberty Mutual’s position that it was entitled to set-off for the sick time payments, and thus no payments were made by it to Mr. Panichelli, for loss of income, during that period.

After August 1, 1988, Liberty Mutual did begin to make income loss payments to Mr. Panichelli. However, in calculating the monthly benefit amount, Liberty Mutual took a set-off in an amount equal to the monthly social security benefit Mr. Panichelli was receiving.

Mr. Panichelli eventually filed suit against Liberty Mutual alleging that it acted improperly in taking credits for his sick pay and social security disability benefits in determining the monthly income loss benefit. After the close of pleadings, Mr. Panichelli filed a Motion for Summary Judgment which was granted by the trial court. This timely appeal followed.

Liberty Mutual presently raises the following two issues for our consideration:

I. Whether sick time pay received in lieu of gross income should be deducted in calculating the actual loss of gross income pursuant to thé Pennsylvania Motor Vehicle Financial Responsibility Law?

II. Whether social security benefits received in lieu of gross income should be deducted in calculating the actual loss of gross income pursuant to the Pennsylvania Motor Vehicle Financial responsibility Law?

These two issues, which can be addressed together, present a case of first impression for this court. Our review of the case law, decided pursuant to the MVFRL, fails to disclose any cases addressing this question. Accordingly, we will carefully detail the arguments presented by each party.

Liberty Mutual relies upon the language of section 1712 of the MVFRL to support its position. Specifically, the pertinent language from that section provides:

§ 1712. Availability of Benefits
An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, ... shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:

(2) Income loss benefit. — Includes the following:

(i) Eighty percent of actual loss of gross income.

75 Pa.C.S.A. § 1712(2)(i).

Liberty Mutual maintains that because Mr. Panichelli received sick pay in an amount equal to his gross income, he had no “actual loss of gross income” during the first nine months following the accident. Accordingly, Liberty Mutual contends that Mr. Panichelli was not entitled to any income loss benefits during that period.

Additionally, once the sick pay expired, Mr. Panichelli received social security disability payments each month. Liberty Mutual contends that the actual loss of gross income to Mr. Panichelli during that period was the gross income minus the amount of the monthly social security payment. Liberty Mutual calculated its payment accordingly.

Liberty Mutual urges this court to interpret “actual loss of gross income” in a manner that would allow it to take a credit for sick pay and social security disability benefits in calculating the income loss benefit owed to Mr. Panichelli. To that end, Liberty Mutual refers us to language from Persik v. Nationwide Mutual Insurance Co., 382 Pa.Super. 29, 554 A.2d 930 (1989), wherein this court noted that recovery of income loss benefits required “that the loss of income be ‘real,’ that is that it have ‘a valid objective existence as opposed to that which is merely theoretical or possible.’ ” Id. at 33, 554 A.2d at 932. At issue in Persik was whether an unemployed victim of a motor vehicle accident could assert a claim for income loss benefits under the MVFRL. Thus, the question arose whether loss of earning opportunity was a real loss of actual gross income which would be recoverable under the MVFRL.

The present case is somewhat different. Mr. Panichelli was employed at the time of his accident and, as a result of his injuries, was unable to continue to work and earn income. Fortunately for Mr. Panichelli, he had sick pay benefits and social security benefits to compensate him during that period. Thus, the question really becomes whether the insurance company should receive credit for Mr. Panichelli’s work-related benefits. We agree with the trial court that it should not.

In his very well-reasoned opinion, the Honorable R. Stanton Wettick Jr. thoroughly analyzed the argument outlined above and recognized the potential validity of Liberty Mutual’s position. As Judge Wettick noted:

While I agree with plaintiff that the undefined phrase ‘actual loss of gross income’ is ambiguous, I would construe the Financial Responsibility Law in the manner in which the insurance company proposes (subject to footnote 2) for the reasons that support the insurance company’s position if there were no other provisions in the Financial Responsibility Law that offered further guidance. However, the Financial Responsibility Law addresses the issue of Third-party payments at 75 Pa.C.S. §§ 1719 and 1720.

Trial court opinion, 10/25/93 at 4-5.

Mr. Panichelli argues that the trial court correctly interpreted the language of section 1719 as providing that the sick pay and social security disability benefits are secondary to the income loss benefit provided for under section 1712(2). We agree. Section 1719 provides:

§ 1719. Coordination of benefits
(a) General rule. — Except for workers’ compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits) 1712 (1) and (2) (relating to availability of benefits) or 1715 (relating to availability of adequate limits) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712 or 1715 or workers’ compensation,
(b) Definition. — As used in this section the term ‘program, group contract or other arrangement’ includes, but is not limited to, benefits payable by a hospital plan corporation or a professional health service corporation subject to 40 Pa.C.S. Ch. 61 (relating to hospital plan corporations) or 63 (relating to professional health services plan corporations).

75 Pa.C.S.A § 1719 (emphasis added).

Clearly, the language of § 1719(a) provides that programs which provide for the payment of benefits contemplated under section 1712(2) (income loss benefits) “shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of’ benefits provided under section 1712. See 75 Pa.C.S.A. § 1719(a). Sick pay and social security are two such “programs” which provide payment of benefits when the ability to earn income is impaired. Accordingly, based on the language of § 1719(a), these programs must be construed as containing provisions making their benefits in excess of the income loss benefits payable under § 1712(2).

Liberty Mutual, however, contends that this language, particularly the phrase “any program, group contract or other arrangement,” is ambiguous and that based on the definition offered in § 1719(b) was not meant to include sick pay and social security benefits. According to Liberty Mutual, the examples used to explain that phrase indicate that it was only meant to encompass plans similar in nature to hospital plan benefits and/or professional health service benefits. Our response to Liberty Mutual’s argument is two-fold. First, the language of § 1719(b), itself, clearly indicates that the phrase in issue “includes, but is not limited to ” the two examples set forth. Additionally, Liberty Mutual’s proffered interpretation of the phrase, as relating only to health plans, makes little sense in light of the fact that subsection (a) of § 1719 also relates specifically to income loss benefits. Thus, the phrase “any program, group contract or other arrangement” must be interpreted in a manner which also takes into consideration programs for the payment of income loss benefits since § 1719(a) specifically references § 1712(2).

Therefore, having closely analyzed the arguments and carefully reviewed the language of the MVFRL, we conclude that the trial court correctly interpreted the sections at issue. Mr. Panichelli has paid premiums for the income loss benefits provided under § 1712(2) and is entitled to collect those benefits. Additionally, Mr. Panichelli has “paid” for the sick pay benefits and social security, benefits he has received. The social security benefits come at the expense of a payroll tax deduction and sick pay is a benefit employers factor in when setting wages for employees. Accordingly, any “double dipping” has come at the expense of some form of payment by the claimant for each type of recovery. Thus, Liberty Mutual’s lamentations that Mr. Panichelli has been overcompensated are not going to cause us to change the result in this case, especially, in light of the language of the Act itself. Mr. Panichelli is merely recovering the various benefits he has paid for along the way.

Order affirmed. Jurisdiction relinquished.

      . Mr. Panichelli’s gross monthly income, prior to the accident, had been $2,733.50. From that amount, Liberty Mutual deducted 20% allowable under § 1712(2) of the MVFRL. The resultant amount, $2,186.80, was further reduced by $857.90, representing Mr. Panichelli’s monthly social security disability benefit. This resulted in a net monthly income loss benefit to Mr. Panichelli of $1,328.90.

      2. In footnote 2 of its opinion, the trial court, as do we, questioned Liberty Mutual’s manner in deducting a credit for the social security disability benefits. Liberty Mutual chose to take its statutory 20% deduction from Mr. Panichelli's gross income and then deduct the social security payment. This resulted in a net monthly income loss benefit to Mr. Panichelli of $1,328.90. If the social security payment is truly gross income, as Liberty Mutual contends, it would seem to make more sense for Liberty Mutual to deduct the social security amount first from gross income, then make its statutory 80% payment of the remaining amount. Such a calculation would have resulted in a net monthly income loss benefit to Mr. Panichelli of $1,500.48.

      . We remind Liberty Mutual that in interpreting the MVFRL, cases of doubt will be resolved in favor of the insured to afford the greatest possible coverage to injured claimants. See Danko v. Erie Insurance Exchange, 428 Pa.Super. 223, 630 A.2d 1219 (1993).


author: OLSZEWSKI, Judge:

text:
    645 A.2d 868
    Jennifer PICCA and Albert Picca, Appellees, v. Lester KRINER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 21, 1994.
    Filed Aug. 2, 1994.

      Jordan D. Cunningham, Harrisburg, for appellees.
    Before OLSZEWSKI, POPOVICH and JOHNSON, JJ.
   OLSZEWSKI, Judge:

On August 12, 1987, Lester Kriner drove his car into Jennifer Picca’s Subaru two-seater. Travelling 25-30 m.p.h., Kriner hit Picea from behind as she sat at a stop light. Picca’s memory of the accident is limited, but she,did experience neck and back pain, for which she has received extensive treatment over the years from her chiropractor and physician. Her medical bills were paid by her auto and health insurance carriers.

Picea sued Kriner in July of 1988. After some procedural delays, the matter was tried before a jury in 1993. The jury heard expert testimony from both parties; Kriner’s medical expert candidly acknowledged that Picea had probably suffered some injury from the accident, but did not consider it significant. R. 315a. Rather, Kriner’s expert thought that Picca’s pain emanated from her pre-existing degenerative disc disease, which was unrelated to the accident. R. 297a.

Kriner conceded that he was at fault in the accident, and the trial court directed the jury to find him negligent. R. 253a. The jury did, but then found that Kriner’s negligence was not a substantial factor in causing Picca’s injuries. R. 275a-278a. Picea brought post-trial motions for judgment notwithstanding the verdict or a new trial, and the trial court granted the latter. The court held that the jury verdict was so contrary to the evidence as to shock its conscience. Trial court opinion, 1/13/94 at 5. The trial court acknowledged that courts should be loath to substitute their judgment for a jury’s, but held that it could not believe that Picea created her complaints, and that the jury’s verdict was incredible for so implying. Id. at 6-7.

I.

Our standard for reviewing a trial court’s decision to grant a new trial was recently re-articulated by our high court in Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 625 A.2d 1181 (1993). Our scope of review is limited to those reasons upon which the trial court relied. We consider whether any of the trial court’s reasons for granting a new trial have merit; if so, we defer to the trial court’s decision. Because the trial court is uniquely qualified to evaluate factual matters, we will not disturb its decision absent an abuse of discretion or error of law. Id.

The trial court’s reason for granting a new trial was that the jury could not have reasonably concluded that Picea suffered no injuries from the accident, and therefore should have found that Kriner’s negligence was a substantial factor in bringing about Picca’s harm. The evidence concerning Picca’s injuries was certainly conflicting. Picea alleged that she suffered a litany of extensive injuries. See complaint, R. 8a-9a; appellant’s brief at 3-4. Kriner’s medical expert opined that the accident did not cause the bulk of these injuries; it caused at most a soft tissue strain in Picca’s neck and back which should have healed in four to six months. R. 295a-296a. The jury was entitled to believe Picca’s representations or reject them in favor of Kriner’s etiology.

Both parties agreed, however, that Picea did not walk away from the accident entirely unscathed. Even Kriner’s medical expert acknowledged that Picea suffered some injury from the accident, albeit only a minor ligament and muscle strain. R. 306a, 315a. It therefore follows that no reasonable jury could have found that all of Picca’s injuries were unrelated to the accident. The jury might have reasonably concluded that most of Picca’s problems were pre-existing, and might have awarded low or even nominal damages had the accident caused only minor injury.

II.

We would therefore agree with the trial court that a verdict which found Kriner to have caused Picea no injury at all would be incredible. If this were the jury’s actual verdict, as the trial court indicates, then the grant of a new trial would clearly be meritorious, and we would not hesitate to affirm the order. But it is not certain that the jury made this finding. The jury answered “no” to the second interrogatory, which read, “Was the defendant’s negligence a substantial factor in bringing about the plaintiffs harm?” R. 253a. The most logical referent to the phrase “the plaintiffs harm,” is all of the injuries which Picea alleged to have been caused by the accident, and which she sought to prove at trial.

Kriner’s defense strategy was to candidly admit his negligence, and even acknowledge that Picea suffered some minor injury from the accident; Kriner contested that he caused most of the injuries that Picea claimed at trial. The trial court indeed noted that the real disagreement between the medical experts was over what portion of Picca’s injuries pre-existed the accident and how much harm Kriner caused. Trial court opinion, 1/13/94 at 5. The jury had to find that Kriner caused some injury, but the jury may have concluded that Kriner’s contribution to Picca’s litany of ailments was trivial. In other words, Kriner may have caused some injury, but may not have been a substantial factor in bringing about all of Picca’s harm. Thus, the jury’s answer to the second interrogatory is not necessarily incredible, but could be entirely reasonable.

An unexpected answer to a similar verdict interrogatory caused problems in Williams v. Southeastern Pennsylvania Transportation Authority, 133 Pa.Cmwlth. 55, 574 A.2d 1175 (1990), aff'd sub nom., Philadelphia Police Dept. v. Gray, 534 Pa. 467, 633 A.2d 1090 (1993). Williams was injured when a SEPTA trolley she was riding in collided with an unmarked police car. A jury found that SEPTA was 25% negligent in causing the accident, but that SEPTA’s negligence was not a substantial factor in bringing about Williams’ injuries. The Commonwealth Court denied Williams’ motion for a new trial, holding that she should have objected to the wording of the interrogatories before they went to the jury. In affirming, our Supreme Court held that the interrogatories were well drafted, but the jury answered them inconsistently by finding that SEPTA’s negligence was not a substantial factor in causing Williams’ injuries, even though it found SEPTA 25% negligent. Our high court ruled that Williams waived any right to a new trial by failing to object to the inconsistent verdict before the jury was dismissed. Gray, supra at 477-78, 633 A.2d at 1095 (citing Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974)).

Likewise, Picea might have objected to the overly broad wording of the second interrogatory in the present case, and reworded it to focus on the injuries actually caused by Kriner. After the jury returned its verdict, Picea again could have objected so the court could determine whether the jury was incredibly finding that Kriner caused no injury at all, or whether the jury considered Kriner’s contribution to Picca’s ailments insubstantial. If the latter were the case, the court could have then instructed the jury to find Kriner liable for so much of Picca’s injuries as he actually caused, and avoided any need for a new trial. See Dilliplaine, supra.

But events did not so transpire, and on appeal we are left with an ambiguous record. We cannot tell whether the jury incredibly found that Picea suffered no injuries, or whether it found that Kriner’s negligence did not cause enough of Picca’s alleged injuries to make his negligence a substantial factor in bringing them about — a mistaken, albeit reasonable, interpretation of the second verdict interrogatory. It does not matter, however, because in either event, Picea waived her right to ask for a new trial by not objecting to the problems with the verdict before the jury was dismissed.

The main purpose of the familiar waiver rule announced in Dilliplaine, supra, and recently interpreted by Gray, supra, is to avoid' holding new trials through timely, specific objections which give the trial judge an opportunity to recognize errors and correct them. When a party seeks a new trial because the jury returned an inconsistent, irrational, incredible, or otherwise problematic verdict, Dilliplaine would logically require that the party point out the verdict problems to the trial judge before the jury is dismissed. That way the judge can explain to the jury why its verdict is problematic and that judgment cannot be entered upon it. The jury can then resume deliberations in light of the court’s corrective instructions, and return an error-free verdict. This rule does not require us to invade the jury’s sacred deliberation process or find out why the jury did what it did; the court need only explain that the verdict returned makes no sense for the specific reasons raised in counsel’s objections, and ask the jury to reconsider its decision in light of its new instruction.

Gray applied the Dilliplaine rule to the problem of inconsistent jury verdicts, but there is no reason why the rule would be limited to inconsistency problems. The rule should apply whenever the jury returns a verdict which is objectionable for any reason. An en banc panel of this Court recently recognized this logical consequence of the Dilliplaine rule in Curran v. Greate Bay Hotel and Casino, 434 Pa.Super. 368, 643 A.2d 687 (1994) (petition for allowance of appeal filed at 504 E.Alloc.Dckt.1994). The panel held that parties must not wait for post-trial motions to argue that the jury verdict is too flawed to sustain a judgment. Such arguments must be made before the court discharges the jury. “It is this failure to act before the jury was discharged that constitutes waiver. Williams [aff'd sub nom. Gray], supra. The purpose of requiring action is to enable the jury to correct an obvious mistake.” Curran, 434 Pa.Super. at 376, 643 A.2d at 691.

The record in the present case shows that after the jury returned its verdict, the trial court asked, “Counsel, is there any reason why this verdict should not be recorded?” R. 275a. Defense counsel naturally offered no objection. Picca’s counsel asked that the jury be polled, but made no objection until after the court dismissed the jury. Then Picca’s counsel announced his intention to file a motion for a new trial, because the jury could not possibly have found that Picea suffered no injury at all from the accident. R. 280a-281a. This is precisely what counsel should have done while the jury was still impaneled, so the court could have instructed the jury to find Kriner Hable for so much injury as he actually caused, which even the defense conceded was something.

Our en bane decision in Curran clearly controls the present case. By failing to object to the verdict before the jury was dismissed, Picea has waived her right to move for a new trial because of the verdict’s problems. Hence, we must reverse the trial court’s order granting a new trial, and reinstate the jury’s verdict in favor of Kriner.

The order granting a new trial is vacated, and judgment is to be entered in favor of appellant. Jurisdiction is relinquished.

      . Our Supreme Court has noted how "too loud a cry of pain, on small occasion, may dilute belief even in the occasion itself. Jurors may perceive interests beyond momentary pain: interests of opportunity that to the jurors’ minds become oppressive even for an obvious tortfeasor." Boggavarapu v. Ponist, 518 Pa. 162, 168, 542 A.2d 516, 518 (1988).

      . In instructing the jury on the second interrogatory, the trial court did not focus the broad term "plaintiff’s harm" to that harm caused by the accident. Rather, the court instructed:
      Mrs. Picea claims that she was injured and sustained damages as a result of this accident and you heard testimony in that regard. But the plaintiff in this case as in all negligence cases has the burden of proving to you that each of her injuries that she's claiming was caused by this particular accident by this particular defendant.
      R. 254a. (emphasis added).

      . The analogous interrogatory in Gray asked: "[D]o you find that the defendant SEPTA driver’s negligence was a substantial factor in the plaintiff’s accident and her injuries resulting from that accident?” Gray, supra at 476, 633 A.2d at 1094 (emphasis added). By specifically asking the jury if defendant caused not all of plaintiff’s claimed injuries, but those injuries resulting from the accident, this interrogatory avoided the precise problem of the present case.

      . The record shows that the attorneys did not actually examine the interrogatory sheet until after the court had charged the jury. R. 266a. Still, the court asked for any objections to the interrogatories before the jury retired to deliberate, and the parties said nothing about the second question. R. 267a-274a.

      . The parties contemplated and began to discuss post-trial motions, but no effort was made to point out the problem with the verdict before the jury was dismissed. R. 274a-282a.

      . The Curran court specifically cautioned “trial courts not to discharge juries where there are obvious problems with a jury verdict which might be resolved with more instructions and further deliberations. Had such occurred in the instant case, the problems which necessitated this appeal may well have been avoided.” Id., n. 2.


text:
    645 A.2d 872
    COMMONWEALTH of Pennsylvania v. Michael REED A/K/A Michael R. Reed, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1993.
    Decided Aug. 2, 1994.
    Reargument Denied Aug. 23, 1994.

      Candace Cain, Asst. Public Defender. Pittsburgh, for appellant.
    Maria V. Copetas, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and McEWEN, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   ROWLEY, President Judge:

Appellant Michael Reed, while a juvenile, was charged with criminal homicide. He filed a petition pursuant to 42 Pa.C.S. § 6322(a) to have the homicide charge transferred to the juvenile division of the Court of Common Pleas. The trial court denied the petition after a hearing, and appellant was tried as an adult and convicted of murder in the first degree. Although he filed post-trial motions, they did not include a claim that the trial court erred in refusing to transfer the case to the juvenile division. We are now asked to decide, inter alia, whether appellant’s failure to include the transfer claim in post-trial motions constitutes a waiver of the issue.

After careful review, we conclude that the issue has not been waived. Accordingly, we will address the issue along with the others raised by appellant. Concluding that none of appellant’s claims entitles him to relief, we affirm the judgment of sentence.

The events that have culminated in this appeal began on April 18, 1990, when appellant and a co-defendant, Jackie Lee Williams, both seventeen years old, hailed a cab and were driven to their destination in the city of Pittsburgh. Upon arriving, they informed the cab driver, Thomas Law, that they did not have money with which to pay the fare. Predictably, a dispute ensued, with the result that appellant fatally shot Law and then searched Law’s front pocket.

On April 19, 1990, a criminal complaint was filed against appellant in the criminal division of the Court of Common Pleas of Allegheny County, charging him with criminal homicide, 18 Pa.C.S. § 2501(a). At the same time, a juvenile delinquency petition was filed against appellant in the Court’s juvenile division, charging him with the delinquent acts of robbery, 18 Pa.C.S. § 3701, aggravated assault, 18 Pa.C.S. § 2702, and criminal conspiracy, 18 Pa.C.S. § 903. The Commonwealth filed a motion to transfer the juvenile petition to the criminal division and to consolidate the juvenile charges with the charge of homicide. The trial court granted the motion in an order entered July 9,1990. A subsequent motion filed on appellant’s behalf to transfer the case to the juvenile division was denied after hearings, as was a motion to suppress a statement taken from appellant.

Appellant went to trial before a jury on charges of criminal homicide, robbery, and criminal conspiracy. At the close of the Commonwealth’s case, appellant’s demurrer to the charge of criminal conspiracy was sustained. The jury found appellant guilty of murder in the first degree and robbery. In a motion for a new trial and arrest of judgment, appellant challenged the trial court’s failure to sever his trial from that of his co-defendant, the admission into evidence of redacted statements of appellant and his co-defendant, the court’s refusal to grant defense counsel’s request for a mistrial after the co-defendant’s redacted statement was heard, and the court’s refusal of defense counsel’s request that the jury be charged on the offense of voluntary manslaughter. Appellant’s post-trial motion was denied, and a sentence of life imprisonment, mandatory for murder in the first degree, was subsequently imposed.

In this timely appeal from the judgment of sentence, appellant raises three issues:

1) Did the trial court err in not transferring the case to the juvenile division?

2) Was trial counsel ineffective for failing to object to the hearsay testimony provided by the Allegheny County coroner as to the legal cause of the victim’s death, when the medical examiner who performed the autopsy did not testify at trial?

3) Was trial counsel ineffective for failing to object, before the jury retired to deliberate, to the trial court’s refusal to charge the jury on voluntary manslaughter?

At the outset, we are required to determine whether appellant’s first issue has been preserved for our review. Appellant’s argument on the matter is as follows:

This issue was raised before trial in a Petition to Transfer. However, the issue was not raised in post-verdict motions, which would normally act as a waiver of the issue for appellate review. See, Pa.R.Crim.P., Rule 1123, 42 Pa.C.S. Nonetheless, this claim is properly before the court because a Motion to Transfer Criminal Proceedings to Juvenile Court presents a jurisdictional issue which cannot be waived for appellate purposes. Commonwealth v. Leatherbury, 390 Pa.Super. 558, 568 A.2d 1313 (1990), [appeal] denied, [525 Pa. 643], 581 A.2d 570 (1990); Commonwealth v. Pyle, [462 Pa. 613, 342 A.2d 101 (1975) ]; Commonwealth v. Zoller, [345 Pa.Super. 350, 498 A.2d 436 (1985) ].

Brief for Appellant at 18 n. 3. According to the Commonwealth, the Supreme Court implied in Pyle that the issue was in fact non-jurisdictional, and statements of this Court to the contrary in Leatherbury and Zoller are inconsistent with Pyle and with statutory law as well. The Commonwealth also points out that the cases relied upon by appellant are distinguishable from his own by the fact that the defendants in the cited cases pled guilty, whereas “[i]n appellant’s case, a full menu of pre-, mid- and post-trial procedures was available to challenge the [trial] court’s exercise of discretion” (Brief for Appellee at 7). Waiver is the appropriate consequence of appellant’s failure to raise the transfer issue in post-trial motions, the Commonwealth argues, because appellant’s omission has resulted in the absence from the record of “either the written reflections of the hearing judge who observed the witnesses and assessed their demeanor and credibility or contemporaneous findings of fact and conclusions of law” (Brief for Appellee at 7), and this Court is therefore unable to conduct a meaningful appellate review of appellant’s claim.

To resolve this threshold matter, we turn first to the Supreme Court’s opinion in Commonwealth v. Pyle, swpra. In that case, the seventeen-year-old appellant was arrested for the shooting death of his father and charged with criminal homicide. He petitioned the trial court to transfer the matter to the juvenile division, and a rule was issued upon the district attorney to show cause why the case should not be transferred. At the same time, the Commonwealth filed a juvenile charge of theft against appellant and petitioned the court to transfer that charge to the criminal division of the court. After a hearing, the trial court discharged the rule and granted the Commonwealth’s petition for transfer of the theft charge. Appellant then pled guilty to both criminal charges and was sentenced to a term of imprisonment of six to sixteen years.

Appellant argued on appeal that the trial court had “erred in determining that there were reasonable grounds to believe he was not amenable to treatment, supervision or rehabilitation within the juvenile court system.” Id. at 617, 342 A.2d at 103. Concluding that the burden is upon the juvenile charged with murder to show that he does not belong in the criminal division, and that appellant had failed to meet that burden, the Supreme Court affirmed the judgment of sentence.

For the purposes of this appeal, our interest is not in the Court’s ruling on the merits of appellant’s claim, but in the reasoning by which the Court found the issue to have been preserved for appellate review:

Absent unusual circumstances, a guilty plea constitutes a waiver of any non-jurisdictional defects or defenses. However, since one of the prime purposes of the Juvenile Act is to spare from adult punishment certain youths whose behavior would necessarily render them guilty of adult crimes (including in some instances, the crime of murder) and since the decision to, or not to transfer is interlocutory — 11 P.S. 50-325(f) — and thus only appealable after sentencing[,] we find the instant challenge to be properly preserved.

Id. at 617 n. 4, 342 A.2d at 101 n. 4 (emphasis in original; citations omitted).

This Court cited the statement quoted above in its opinions in Zoller, supra, and Leatherbury, supra. The two juvenile defendants in Zoller were charged with first and second degree murder and agreed to plead guilty to third degree murder after the trial court denied their petition for transfer to the juvenile division. As to the Commonwealth’s request that the defendants, as part of the plea agreement, withdraw their motion for transfer, this Court noted that

[i]t was, however, correctly determined during the colloquy that the Motion for Transfer was a jurisdictional issue and, therefore, not waivable. See Commonwealth v. Pyle, [supra'].

Id. 345 Pa.Super. at 353, 498 A.2d at 438. On appeal, the defendants asserted that the trial court erred in denying the requested transfer to the juvenile division. This Court affirmed the trial court’s order.

The events in Leatherbury followed a similar course. The juvenile defendant was charged with third degree murder; the trial court denied his request to transfer the case to the juvenile division; and the defendant pled guilty, was sentenced, and appealed, challenging the trial court’s refusal to transfer the case. This Court found the claim to be properly before it because- “a motion to transfer criminal proceedings to juvenile court presents jurisdictional issues which are not waived for appellate purposes. Commonwealth v. Pyle, [supra]; Commonwealth v. Zoller, [supra].Id. 390 Pa.Super. at 560, 568 A.2d at 1315. As in Zoller, this Court found no abuse of discretion in the trial court’s decision to deny transfer.

In neither Zoller nor Leatherbury does this Court offer any analysis to support its interpretation of the relevant passage in Pyle. If we were required to decide the question without further guidance from the Supreme Court, we would be inclined to adopt the position urged upon us by the Commonwealth. That is, we would not read the passage to mean, as was stated in Zoller and Leatherbury, that the transfer issue is jurisdictional. Rather, we would read the passage to mean that an allegedly erroneous refusal to transfer a case from the criminal to the juvenile division is a non-jurisdictional “defect or defense” which would ordinarily have been waived by appellant’s guilty plea, but which is instead saved from waiver by the “unusual circumstances” of the case (i.e., the purpose of the Juvenile Act and the interlocutory nature of an order refusing to transfer the charges to the juvenile division, both of which circumstances are applicable in the case before us).

In our view, there are several sources of support for such an interpretation, including:

(1) Article V, section 5 of our state Constitution, which establishes ■ a single court of common pleas for each judicial district;

(2) section 952 of the Judicial Code, 42 Pa.C.S. § 952, which states that the divisions of the courts of common pleas are administrative units and that each division, in those courts having more than one division, “is vested with the full jurisdiction of the whole court”;

(3) subsection (a) of the Official Comment — 1976 to § 6301 of the Juvenile Act, 42 Pa.C.S. § 6301 (Short title and purposes of chapter), which explains that the chapter was entitled “Juvenile Act” rather than the more usual “Juvenile Court Act” “in view of the recent consolidation of original jurisdiction solely in the several courts of common pleas by Section 5 of Article V of the Pennsylvania Constitution, as amended 1968”; and

(4) case law which emphasizes the unified nature of the courts of common pleas. See, e.g., Commonwealth v. Wadzinski 485 Pa. 247, 401 A.2d 1129 (1978), on remand, 266 Pa.Super. 56, 403 A.2d 91 (1979), rev’d on other grounds, 492 Pa. 35, 422 A.2d 124 (1980) (if matter is justiciable, court of common pleas has jurisdiction to hear it, and remedy for bringing case in wrong division is not dismissal, but transfer to correct division).

Nevertheless, we are not without further guidance from the Supreme Court in this matter. In Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982), the appellant, who was seventeen years old when he was charged with murder, pled guilty after the trial court denied his motion to transfer the case to the juvenile division. On appeal, he argued that the court had erred in refusing to transfer the case. The Supreme Court addressed the issue as follows:

Normally, a plea of guilty constitutes a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of the sentence and the validity of the plea. Appellant was expressly informed at his guilty plea colloquy that he would have the right to appeal the results of his certification hearing. More importantly, this issue of certification is jurisdictional and therefore not waivable. See Commonwealth v. Pyle, [supra] at footnote four, wherein this Court stated that the entry of a guilty plea in a juvenile setting did not amount to a waiver of the right to challenge the [trial] court’s refusal to certify a case for disposition in Juvenile Court.

Id. at 646, 444 A.2d at 102 (additional citation deleted; emphasis added).

In Commonwealth v. Johnson, supra, this Court en banc opines “that our high court intended for orders which deny a minor’s petition for transfer from the criminal division of the court to the juvenile division to be ‘jurisdictional’ only in the sense that the issue cannot be waived by the juvenile.” Id. 435 Pa.Super. at 132-133, 645 A.2d at 241. We agree. As we are faced with just such a situation in the present appeal, we conclude that appellant’s challenge to the trial court’s refusal to transfer his case from the criminal to the juvenile division presents a “jurisdictional,” or more precisely a “non-waivable,” issue. Accordingly, we will proceed to address the merits of the issue.

First, appellant contends that the trial court erred in denying his petition to have the proceedings against him transferred from the criminal to the juvenile division. “Where murder is charged, treatment as a ‘youthful offender’... does not arise as a matter of right.” Commonwealth v. Pyle, 462 Pa. at 618, 342 A.2d at 104. Instead, it must be sought under § 6322(a) of the Juvenile Act, which reads in pertinent part as follows:

If it appears to the court in a criminal proceeding charging murder, that the defendant is a child, the case may ... be transferred [to the juvenile division] and the provisions of this chapter [i.e., the Juvenile Act] applied. In determining whether to transfer a case charging murder, the court shall apply the criteria in section 6355(a)(4)(iii)(A) (relating to transfer to criminal proceedings). However, the child shall be required to show the court that the child is amenable to treatment, supervision or rehabilitation as a juvenile by meeting the criteria listed in section 6355(a)(4)(iii)(A).

42 Pa.C.S. § 6322(a) (emphasis added). The criteria listed in § 6355(a)(4)(iii)(A) are the following: age; mental capacity; maturity; degree of criminal sophistication exhibited by the juvenile; previous records, if any; nature and extent of any prior delinquent history; whether the juvenile can be rehabilitated before the juvenile division’s jurisdiction expires; probation or institutional reports, if any; nature and circumstances of the acts involved; and any other relevant factors.

The decision whether to grant an application for transfer to Juvenile Court of a juvenile charged with murder is within the sound discretion of the hearing judge, whose decision will not be disturbed absent a gross abuse of his broad discretion. A juvenile seeking transfer of a murder case to Juvenile Court has the burden of proving he belongs in a juvenile setting by showing his need for and amenability to a program with supervision, care and rehabilitation such as that which he would receive as a juvenile. The determination of whether a juvenile is amenable to the juvenile system is to be made only after a careful scrutiny of the individual’s personal make-up, previous history and the nature and circumstances of the alleged homicide.

Commonwealth v. Morningwake, 407 Pa.Super. 129, 135-36, 595 A.2d 158, 161 (1991), appeal denied, 529 Pa. 618, 600 A.2d 535 (1991) (citations and footnotes omitted). An abuse of discretion that will warrant reversal of the trial court’s decision “may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based upon partiality, prejudice or ill will.” Commonwealth v. Romeri, 314 Pa.Super. 279, 291, 460 A.2d 1139, 1145, aff'd, 504 Pa. 124, 470 A.2d 498 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984).

Appellant maintains that he not only offered evidence of all of the factors listed in § 6355(a)(4)(iii)(A), but also met his burden of showing that he needed and was amenable to supervision, treatment, and rehabilitation as a juvenile. Among the factors favoring transfer, appellant notes the absence of any prior juvenile adjudications, and only one “minor arrest” that was disposed of by a district magistrate; the absence of a history of violence; his relative immaturity and expression of remorse; and, perhaps most importantly, his history of psychological and emotional problems, lack of any prior treatment, and the opinion of Dr. Herbert Levit, a psychologist who had examined appellant, that after two or three years of appropriate treatment there was a reasonable chance that appellant, then eighteen, could be rehabilitated and become a productive member of society.

Appellant contends that his own case is distinguishable from others in which the denial of a transfer request was affirmed, such as Commonwealth v. Zoller, supra; where the defendant showed no remorse and there was no assurance that his antisocial and aggressive behavior could be treated successfully before his twenty-first birthday, and- Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (plurality), where the defendant’s psychiatrist testified that a significant change in the defendant’s personality disorder could be expected around the age of 35 or 40. According to appellant, his “need for care, guidance and control as a juvenile outweighs the state and society’s need to apply legal restraint and discipline as an adult,” Commonwealth v. Romeri, 504 Pa. 124, 138, 470 A.2d 498, 505 (1983) [quoting Commonwealth v. Pyle, 462 Pa. at 622, 342 A.2d at 104] (emphasis deleted), and the trial court therefore abused its discretion in refusing to transfer his case to the juvenile division.

In response, the Commonwealth suggests that the prognosis for appellant’s rehabilitation -within the juvenile system is less favorable than appellant would have us believe. According to the Commonwealth, appellant was eighteen and one half years old at the time of the hearing, and therefore, with respect to Dr. Levit’s statement that psychotherapy over a two- or three-year period was advisable, “the math does not add up” (Brief for Appellee at 10). As another unfavorable factor, the Commonwealth points to Dr. Levit’s admission that in fact appellant had discontinued psychotherapy at some point in the past.

Because this issue was not presented to the trial court in appellant’s post-verdict motions, we do not have the benefit of an opinion setting forth the reasoning which led the trial court to deny appellant’s transfer petition. However, after considering the arguments of the parties and reviewing the transcript of the hearing on appellant’s transfer motion, we are confident that the absence of an opinion by the trial court does not preclude effective appellate review.

Our review leads us to the conclusion that the trial court’s decision to deny appellant’s transfer request was not a gross abuse of the court’s broad discretion. In Commonwealth v. Cessna, 371 Pa.Super. 89, 537 A.2d 834 (1988), in which a juvenile charged with murder based his transfer request on the need for psychiatric treatment, this Court held that “[i]n considering psychiatric testimony ... if rehabilitation could not be assured during the child’s minority while subject to the juvenile court jurisdiction, the child has failed to establish that he was amenable to juvenile rehabilitation. Commonwealth v. Sourbeer, [supra].Id. 371 Pa.Super. at 100, 537 A.2d at 839. We are faced with such a situation in this case. Appellant was born on June 30, 1972. At the time of the hearing, held on January 7, 10, and 17, 1991, he was in fact eighteen and one half years old. Therefore, there remained a possible two and one half years in which appellant could have been treated within the juvenile system. On direct examination, Dr. Levit gave the following opinion concerning appellant’s condition and prospects:

In general, I felt that he was a depressed adolescent who was amenable to treatment, who has never had treatment even though it has been suggested or recommended many times.

I think he is salvageable. I think if he were to get competent psychotherapy over a two- or three-year period, his lifestyle could be reversed, he could become a productive citizen.

N.T., 1/7/91, at 12-13. Cross-examination revealed the following:

Q: Are you telling us that this man can be rehabilitated from a shooting that he really denies responsibility for in two and a half years?

A: No, I’m not saying that. I cannot guarantee the results of psychotherapy for anybody under any circumstances.

I am saying that I think there’s a reasonable chance that this young man can be rehabilitated through the juvenile system.

N.T., 1/7/91, at 26. Also relevant is the following testimony:

Q: Dr. Levit, would it be fair to say that running through most of these reports ... is that this man has an explosive temper?

A: That’s correct.

Q: And would it be fair to say that in these reports are statements that he was offered psychotherapy ... but ... chose not to go anymore? Did you see that in the report?

A: Yes, I did, that’s correct.

Q: Now, in light of that, what evidence do you have — that certainly contradicts the evaluations from Ward Home [a residence for abused and neglected children, where appellant stayed before committing the offense involved here] that he is amenable to psychological counseling now?

A: Number one, the circumstances have significantly changed....

N.T., 1/7/91, at 29-30. Dr. Levit was certain that “if you send • him to an adult correctional facility he will be lost” (N.T., 1/7/91, at 30).

Even if we were to agree with Dr. Levit’s assumption that appellant’s chances of receiving effective psychotherapeutic treatment would have been far better in the juvenile system than in the adult correctional system, we are not permitted to substitute a “best interests” analysis for the tests established by statutes and case law. As noted earlier, the burden was on appellant to show that he was amenable to the juvenile system. 42 Pa.C.S. § 6322(a); Commonwealth v. Morningwake, supra. While some of the factors enumerated in § 6355(a)(4)(iii)(A). such as appellant’s apparent immaturity and the absence of any significant prior record, favored his transfer to the juvenile division, others did not. Of these, the most significant were appellant’s earlier refusal of the opportunity to receive counseling; his prospects for rehabilitation during his minority, which were no better than “a reasonable chance”; and, of course, the heinous nature of his offense. Having been presented with evidence of all of these factors, the trial court could reasonably have concluded that appellant had failed to prove his amenability to treatment as a juvenile. Our review persuades us that this decision did not constitute a gross abuse, or indeed any abuse at all, of the trial court’s broad discretion in this matter.

Accordingly, we turn to appellant’s remaining issues, both of which allege the ineffectiveness of trial counsel. This Court recently summarized the requirements for prevailing on such a claim:

Our standard of review for allegations of ineffective assistance of counsel is well-established and quite narrow. Ineffectiveness claims are subject to a three-part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483. 485 (1987). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Counsel will not be deemed ineffective for failing to assert a baseless claim. Moreover, in making assertions of ineffectiveness, a claimant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective since the appellate courts will not consider such claims in a vacuum.

Commonwealth v. Donahue, 428 Pa.Super. 259, 282, 630 A.2d 1238, 1249-50 (1993) (additional citations omitted).

Appellant contends, first, that trial counsel was ineffective for failing to object to the testimony of Dr. Joshua Perper, the Allegheny County coroner, concerning the cause of death of the victim, Thomas Law. Dr. Catherine Janosz, a former employee of the coroner’s office, performed the autopsy on the victim, and Dr. Perper’s testimony concerning the cause of death was based on his review of the report of Dr. Janosz, who did not testify. Appellant maintains that Dr. Janosz’s report was hearsay and that the admission of Dr. Perper’s testimony as to the contents of that report caused appellant to be denied his right of cross-examination.

In support of his claim, appellant cites the opinion of our Supreme Court in Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974). At appellant’s trial for murder in that case, the Commonwealth “endeavored to satisfy its burden of proving legal causation beyond a reasonable doubt by reading into evidence, over repeated objection, substantial portions of the written report of the official, salaried medical examiner who performed an autopsy on the deceased.” Id. at 311, 322 A.2d at 654. The medical examiner was not called to testify because he was attending a convention at the time of trial. Admission of his report was based on the business records exception to the hearsay rule.

Appellant argued on appeal, and the Supreme Court agreed, that the admission of the. report violated his right under the Pennsylvania Constitution to confront and cross-examine the witnesses against him. The Court noted that causation is an element of the crime of murder, that it must therefore be proved by the Commonwealth beyond a reasonable doubt, that medical evidence is opinion evidence, and that “[frequently, the cause of death is seriously in issue and the subject of conflicting opinion by qualified physicians.” Id. at 312, 322 A.2d at 655. Because the medical examiner was not available for cross-examination, his opinion as to the cause of death “was ... insulated from effective challenge.” Id. at 314, 322 A.2d at 656. The Court held that

in a homicide prosecution, evidentiary use, as a business records exception to the hearsay rule, of an autopsy report in proving legal causation is impermissible unless the accused is afforded the opportunity to confront and cross-examine the medical examiner who performed the autopsy, absent a compelling necessity.

Id. at 315, 322 A.2d at 656-57 (footnote omitted). The Court rejected the Commonwealth’s contention that admission of the report was harmless error, observing instead that denial of cross-examination was “constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Id. at 317, 322 A.2d at 657 [quoting Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968) J.

In Commonwealth v. Mitchell, 391 Pa.Super. 100, 570 A.2d 532 (1990), appeal denied, 527 Pa. 599, 589 A.2d 689 (1990), a panel of this Court considered the claim of appellant, who had been convicted of first degree murder, that his trial counsel was ineffective for failing to object to the testimony of the medical examiner, Dr. Catherman, concerning the manner and cause of the victim’s death. Dr. Catherman based his testimony on autopsy reports prepared by Dr. Carpenter, who was unavailable because he had moved out of the country. Judge Olszewski, the author of the lead opinion, concluded that the testimony was properly admitted and that trial counsel was therefore not ineffective for failing to object to it. He distinguished the case from McCloud by noting the unavailability of the doctor who had performed the autopsy, as well as the fact that “Dr. Catherman did not read any of Dr. Carpenter’s opinions or conclusions^ h]e read only the facts contained in the report, and based his own opinion on those facts.” Id. 391 Pa.Super. at 104, 570 A.2d at 534 (footnote omitted).

Judge Cavanaugh, joined in a concurring opinion by Judge Cercone, disagreed with Judge Olszewski’s conclusion that the case could be distinguished from McCloud. Nevertheless, because they perceived a reasonable basis for trial counsel’s failure to object (namely, that he may have wanted to avoid the admission of the graphic autopsy photographs as a foundation for Dr. Catherman’s testimony), the concurring judges concluded that appellant had failed to demonstrate counsel’s ineffectiveness. Id. at 105-08, 570 A.2d at 535-36.

We reach the same conclusion in the case before us. Even if we were to assume for the sake of argument that appellant’s claim has arguable merit and that appellant was necessarily prejudiced by counsel’s failure to object, a reasonable basis for counsel’s decision is nevertheless apparent from the cross-examination portion of the trial transcript: simply, counsel did not disagree with Dr. Perper’s testimony. Repeatedly trial counsel ended his questions to Dr. Perper with “is that correct?” and “isn’t that correct?”; repeatedly Dr. Perper answered affirmatively. At one point trial counsel responded to Dr. Perper’s answer by saying “that’s exactly what I wanted to hear” (N.T., 6/3/91, at 35). At another point trial counsel’s comment was “[t]hat’s exactly right” (N.T., 6/3/91, at 37).

At no point is there any suggestion that trial counsel was attempting to challenge Dr. Perper’s conclusion concerning the cause of death. In fact, trial counsel mentioned during his closing argument to the jury that “[w]e know from Dr. Perper’s testimony that the shot had to have been fired from at least two feet away” (N.T., 6/6/91, at 340). Appellant even argues on appeal that Dr. Perper’s testimony supports his claim, to be discussed infra, that he shot the victim because he feared that the victim was about to assault him; it is the Commonwealth which argues that “Dr. Perper’s testimony ... lends no credence to appellant’s theory” (Brief for Appellee at 17 n. 11). Because trial counsel’s strategy did not challenge, and in fact utilized, Dr. Perper’s testimony, we conclude that trial counsel had a reasonable basis for not objecting to the admission of that testimony. Accordingly, this claim of ineffectiveness fails.

Appellant’s remaining claim is that trial counsel was ineffective for failing to object to the trial court’s omission from its charge to the jury of an instruction on “unreasonable belief voluntary manslaughter.” The relevant statutory provision reads as follows:

(b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

18 Pa.C.S. § 2503(b). To support his claim that he feared an assault upon his person, appellant points to the following portion of his confession, which was read into evidence by Detective Marshall Hynes:

When we [appellant and his co-defendant] got there [i.e., to the residence of appellant’s friend, Vickie], we went up to Vickie’s house to get the money to pay him. And while she was in there looking for it, the taxi driver was getting impatient, started telling me he was going to call the cops, and I was asking him to wait for her to go get the money. He told me he wasn’t waiting no more. So then he spun around and told me to stop following him. And when he turned back, I shot him.

N.T., 6/5/91, at 255. Officer Hynes then acknowledged that he had omitted a word while reading the statement and that appellant had in fact said, “When he turned back around, I shot him” (N.T., 6/5/91, at 256). As further evidence to support this scenario, appellant points to Dr. Perper’s testimony that the gunshot wound was in the victim’s left temple, not in the back of his head. Appellant also cites the testimony of one Richard Goshay that appellant had said to him that it appeared as though the victim was going to turn around and hit him.

In Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), the Supreme Court held that an “unreasonable belief’ manslaughter charge “shall be given only when requested, where the offense has been made an issue in the case, and the trial evidence reasonably would support such a verdict.” Id. at 443, 466 A.2d at 1333 (footnote deleted; emphasis added). Such is not the case here. Appellant does not specify the principle of justification upon which his argument is based, but it can only be 18 Pa.C.S. § 505, Use of Force in Self-Protection. However, “[t]he use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat....” 18 Pa.C.S. § 505(b)(2). Of these terms, only “serious bodily injury” is relevant to appellant’s situation, yet appellant points to no more specific threat than that he thought the victim was going to hit him. Moreover, the Commonwealth points to the following two statements in appellant’s confession, not cited by appellant, which seriously undermine appellant’s claim that he feared an assault by the cab driver:

[Appellant]: Then he turned. He told me to stop following him. I told him I was only asking him to wait till she got the money. Then he turned back around and started walking again. I shot him.

N.T., 6/5/91, at 264 (emphasis added).

Detective Logan: Okay---- He’s walking away towards his cab and you say — what happened here?
[Appellant]: I shot him.
Detective Logan: Okay. Why did you shoot him at this time.

[Appellant]: Cause he said he was going to get the cops.

N.T., 6/5/91, at 265 (emphasis added). In light of these statements, we conclude that this is not a case in which the evidence would reasonably support a verdict of “unreasonable belief’ voluntary manslaughter. Accordingly, appellant’s claim that trial counsel should have renewed his objection to the refusal of such an instruction lacks arguable merit, and for that reason we hold that trial counsel was not ineffective in this regard.

Judgment of sentence affirmed.

      . In its opinion filed May 19, 1992, the trial court explained that because appellant briefed only one of his post-trial issues, namely, whether the trial court erred by admitting into evidence the redacted statement of the co-defendant, the court would address only that issue, considering the others to have been waived.

      . Present counsel for appellant, somewhat tardily recognizing that this Court may not agree with the argument set forth above for the preservation of appellant’s first issue, has filed a reply brief in which he offers an alternative basis for preservation, that being the ineffectiveness of trial counsel and present counsel in failing to include the issue in post-trial motions and in appellant’s original appellate brief. Given our resolution of appellant’s first issue on the basis of his initial argument for its preservation, we need not address these allegations of ineffective assistance of counsel.

      . Section 6355(f), 42 Pa.C.S. § 6355(f), states that “[t]he decision of the court to transfer or not to transfer the case shall be interlocutory.” As noted by this Court en banc in Commonwealth v. Johnson, 435 Pa. Super. 132, 645 A.2d 234 (1994), however, “§ 6355 of the Juvenile Act applies expressly to transfers from the juvenile division to the criminal division only.” Id. at 136, 645 A.2d at 237. Accordingly, it does not resolve the question before us.

      . Relying on Commonwealth v. Lux, 299 Pa.Super. 136, 445 A.2d 185 (1982), appellant suggests that the burden is on the Commonwealth to demonstrate that he is not amenable to treatment as a juvenile. This is incorrect. Where, as in Lux, a delinquency petition is filed against a juvenile and the Commonwealth seeks to have the juvenile certified for trial as an adult, the burden is on the Commonwealth to prove, inter alia, that the juvenile is not amenable to treatment, supervision, or rehabilitation within the juvenile system. Commonwealth v. Moss, 518 Pa. 337, 341, 543 A.2d 514, 516 (1988). As noted earlier, however, where, as here, a juvenile charged with murder seeks to have his case transferred from the criminal to the juvenile division, the burden is upon the juvenile to prove that he belongs in a juvenile setting.

      . Although the testimony in Cessna was offered by a psychiatrist and the testimony in the present case is that of a psychologist, we do not consider this distinction to be significant. In both cases the trial court was presented with the testimony of a professional "who indicated that appellant had emotional damage from which appellant could recover with proper treatment.” Id. 371 Pa.Super. at 100, 537 A.2d at 839.

      . Court-appointed counsel represented appellant through sentencing. At the conclusion of sentencing, the trial court granted court-appointed counsel’s oral motion to withdraw and appointed the Public Defender of Allegheny County to represent appellant. As appellant’s claims of ineffectiveness have been raised for the first time on appeal, there has been no evidentiary hearing on the claims.

      . Appellant contends that Dr. Perper did not give his own conclusion as to the cause of death, but merely reiterated the conclusion of Dr. Janosz. This is incorrect, as is shown by the following exchange on direct examination:
      Q: Dr. Perper, based upon your examination of these findings and the autopsy photographs, have you arrived at a conclusion with a reasonable degree of medical certainty as to the cause of Thomas Law's death?
      A: Yes.
      Q: What is that, sir?
      A: And the conclusion is that he died as a result of a gunshot wound of the left temple with severe brain injuries.
      N.T., 6/3/91, at 33 (emphasis added).

      . In the interest of judicial economy, we will overlook appellant's failure to assert that trial counsel was also ineffective for failing to brief this issue in the trial court. See footnote 1, supra.