author: SPAETH, Judge:

text:
    441 A.2d 381
    John E. VOYLES Douglas T. CORWIN, M.D. v. Dr. M. KROSNOFF, M.D., Doris Walker and Glenn D. Hisrich, M.D. Appeal of Douglas T. CORWIN, M.D. at No. 381 Pittsburgh, 1980 Appeal of Glenn D. HISRICH, M.D. at No. 399 Pittsburgh, 1980 Appeal of M. KROSNOFF, M.D. at No. 400 Pittsburgh, 1980 John E. VOYLES Glenn D. HISRICH, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1981.
    Filed Feb. 5, 1982.

      Deborah A. DeAugustino, Pittsburgh, for Corwin, appellant (at No. 381), appellee (at Nos. 399 & 400) and participating party (at No. 398).
    Mark T. Wade, Washington, for Voyles, appellee.
    William D. Phillips, Washington, for Krosnoff, appellant (at No. 400), and appellee (at Nos. 381 & 399).
    Robert C. Little, Pittsburgh, for Hisrich, appellant (at Nos. 398 & 399) and appellee (at Nos. 381 & 400).
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SPAETH, Judge:

This case involves two separate actions to recover damages for personal injuries. In both actions one of the additional defendants moved for summary judgment. The lower court granted the motions on the ground that in both actions the plaintiff had, incident to a settlement, released the additional defendant. The defendants and other additional defendants have appealed, claiming that they are entitled to have the released additional defendant kept in as a party. This claim is without merit, for the released additional defendant was not a joint tortfeasor with the defendants and other additional defendants. We therefore affirm.

On June 14, 1975, John E. Voyles sustained severe injuries to his left leg when his motorcycle collided with an automobile driven by Doris Louise Walker. He was immediately taken to Washington Hospital, in Washington County, where he was treated by Dr. Glenn D. Hisrich, Dr. Douglas T. Corwin, and Dr. M. Krosnoff. The next day Voyles was moved to Montefiore Hospital, in Pittsburgh, where he was treated by other physicians.

While in Montefiore Hospital, Voyles settled his claim against Walker. Incident to this settlement, he signed a release as follows:

RELEASE
Received of Weir Walker (Doris Louise Walker—driver) this 10 day of October, 1975, the sum of fifty thousand and 00/100 dollars ($50,000), in full satisfaction and extinguishment of all claims, including claims for contribution and/or indemnity, and causes of action arising out of any damage or loss, direct or indirect, of bodily injuries sustained in consequence of an accident on or about the 14 day of June, 19 seventy-five, at Amwell Township, Washington, PA
X /s/ John Voyles (Seal)
Witness:
X /s/ Authur M. Wilson

In October 1975 Voyles was released from the Montefiore Hospital. However, in November he was readmitted, and his left leg was amputated.

On June 13, 1977, Voyles filed the two actions involved in these appeals, one against Dr. Hisrich, the other against Dr. Corwin. In each action Voyles claims that the defendant physicians treated him negligently. In the one action, Dr. Hisrich joined Doris Walker as an additional defendant, and she joined Dr. Krosnoff as an additional defendant. In the other action, Dr. Corwin joined Doris Walker, Dr. Hisrich, and Dr. Krosnoff as additional defendants. In both actions Doris Walker moved for summary judgment, pleading Voyles’s release of her. The lower court granted both motions.

On their appeals, the three physicians argue that Walker should have been kept in as a party so that the jury could decide whether she and they were joint tortfeasors. In reply, Walker argues that as a matter of law, a jury could not find that she and the physicians were joint tortfeasors, and that the physicians therefore have no interest in having her kept in as a party.

Without question, if a jury could find both Walker and the physicians liable to Voyles for the same injuries, the physicians would be entitled to have Walker kept in as a party despite Voyles’s release of her. In Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956), the Supreme Court said:

[Although Miller cannot recover contribution from the additional defendant [because of a release], he does have an extremely valuable right in retaining her in the case, because, if the jury should find her to be a joint tortfeasor, his liability to plaintiffs would be cut [to his pro rata share]. Her continuance in the case is therefore necessary, even though no recovery can be had against her either by plaintiffs or by defendant, in order to determine the amount of damages that defendant may be obliged to pay plaintiffs in the light of the situation created by their releases of the additional defendant’s liability.
Id., 385 Pa. at 352, 123 A.2d at 424.

If, however, Walker and the physicians are liable for distinct injuries to Voyles, they are not joint tortfeasors. Even if a jury should find against them, their liability would be apportioned according to the injuries they respectively caused Voyles. Since Voyles has released Walker, there would be no purpose in keeping her in as a party.

Whether liability for harm to a plaintiff is capable of apportionment is a question of law for the court, not a question of fact for the jury. Thus Restatement (Second) Torts § 434 states:

(1) It is the function of the court to determine
(b) whether the harm to the plaintiff is capable of apportionment among two or more causes....

Comment d to this section states:

The question whether the harm to the plaintiff is capable of apportionment among two or more causes is a question of law, and is for the decision of the court in all cases. Once it is determined that the harm is capable of being apportioned, the actual apportionment of the damages among the various causes is a question of fact, which is to be determined by the jury, unless the evidence is such that reasonable men could come to only one conclusion.

In determining whether the harm to a plaintiff is capable of apportionment, that is, whether the defendants are separate or joint tortfeasors, courts consider several factors:

the identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential, responsibility of the defendants for the same injuria as distinguished from damnum.
Prosser, Law of Torts, § 46 n. 2 (4th ed. 1971) (footnotes omitted).

When one considers these factors here, it becomes apparent that Walker is not a joint tortfeasor with the several physicians. Walker’s duty to Voyles was not the same as the physicians’ duty. The same evidence cannot support an action against both Walker and the physicians. In proving the physicians’ liability, Voyles will have to prove that they failed to exercise due care in treating him. This proof can have nothing to do with whether Walker was driving properly. Similarly, in proving damages, Voyles will have to prove that his condition is worse than it would have been had the physicians exercised due care in treating him. It may be, as the physicians suggest, that the loss of Voyles’s leg was an unavoidable consequence of the harm Walker did him, no matter what the physicians did or should have done. Should a jury so find, the physicians would not be liable to Voyles. It may also be that proper medical care would have resulted in Voyles’s ultimate injuries not being so severe. Should a jury so find, the physicians would be liable to Voyles for that portion—but only that portion—of Voyles’s injuries attributable to their negligence.

In Lasprogata v. Qualls, 263 Pa.Superior Ct. 174, 397 A.2d 803 (1979), the issue was the same as the issue here. There, the plaintiff was injured in an automobile accident. He sued the other driver, settled the suit, and released the driver. He then sued his treating physician, the hospital, and the manufacturer of the metal plate that had been screwed to his fractured femur, alleging that the injury he suffered in the accident was aggravated when a screw attached to the plate broke. The treating physician joined the released driver as an additional defendant. In affirming the lower court’s order granting the driver’s motion for summary judgment, we said: Case law specifically holds that a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors. Bandle v. Vernick, 55 Pa.D. & C.2d 457 (1974); Gertz v. Campbell, 4 Ill.App.3d 806, 282 N.E.2d 28, aff’d in part and rev’d in part on other grounds, 55 Ill.2d 84, 302 N.E.2d 40 (1973); Annot. 8 A.L.R.3d 639 (1966). The acts of the original wrongdoer and the negligent physician are sever-able as to time, neither having the opportunity to guard against the other’s acts, and each breaching a different duty owed to the injured plaintiff. While they are two active tortfeasors they are not actually acting “jointly” when using that term in the strict sense. As we have held in Embrey v. Borough of West Mifflin et al., 257 Pa.Super. 168, 390 A.2d 765 (1978), to the extent that the acts of the original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly. This apportionment does not necessarily follow the statutory rules for contribution among tortfeasors applicable in situations where such tortfeasors are characterized as joint. Instead, where identifiable acts of negligence of the original wrongdoer and the negligent physician are separate from each other in nature and time, the damages are accordingly apportionable.

Id., 263 Pa.Super. at 179-80, 397 A.2d at 805 (footnotes omitted).

It is contended that Lasprogata’s facts are “very different.” Brief for Appellants at 7. That may be. In legal principle, however, we see no difference. It will be Voyles’s burden to prove the “identifiable acts of negligence” of the physicians. If he fails to prove any, he will have failed to prove that the physicians are liable to him.

AFFIRMED.

SHERTZ, J., did not participate in the decision of this case.

      . The defendants and other additional defendants also moved for summary judgment. The lower court denied these motions. No appeal has been taken from this action, nor could there be, for an order denying a motion for summary judgment is interlocutory. See Pa.R.A.P. 312, 1301-23.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    441 A.2d 384
    EXPLO, INC., Appellant, v. JOHNSON & MORGAN and Mid-State Energy Corporation and Johnson & Morgan t/d/b/a Mid-State Energy Corporation, jointly and severally.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Feb. 5, 1982.

      Daniel J. Fleck, Pittsburgh, for appellant.
    Carl A. Belin, Jr., Clearfield, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Expío, Inc. has appealed from the order of the court below granting the petition to open judgment filed by Don R. Johnson and William Morgan, trading and doing business as Johnson & Morgan. The central issue for our determination is whether the court below abused its discretion in opening the judgment. The court below held that Johnson & Morgan had a meritorious defense; that the petition to open was promptly filed; and that Johnson & Morgan had a reasonable explanation for their failure to respond. We disagree, and accordingly reverse the order of the court below.

Appellant’s chief contention on appeal is that the three requirements which must be satisfied in order for a judgment to be opened were not met here. The facts are as follows. On July 17, 1979, Expío filed a complaint in assumpsit against “Johnson & Morgan and Mid-State Energy Corporation and Johnson & Morgan trading and doing business as Mid-State Energy Corporation,” to recover the sum of Fifty-eight thousand fifty-two and 42/100 ($58,052.42) dollars. The complaint alleged as follows:

2. Defendant Johnson & Morgan (hereinafter referred to as Johnson) is a business with offices located in Snow Shoe, Centre County, Pennsylvania 16874.
3. Defendant Mid-State Energy Corporation (hereinafter referred to as Mid-State) is a Pennsylvania corporation with an office located on Route 53 in Houtzdale, Clearfield County, Pennsylvania 16651.
4. Defendant Johnson is the owner of Defendant Mid-State.
5. Defendant Johnson trades and does business as Mid-State Energy Corporation which has an office at Route 53, Houtzdale, Clearfield County, Pennsylvania 16651.
6. At all times herein mentioned, Johnson did business in the Commonwealth of Pennsylvania directly and through Mid-State Energy Corporation.
7. As owner of Mid-State Energy Corporation, Johnson assumes the obligations and liabilities of Mid-State.

In Count I, “Expío vs. Mid-State Energy Corporation,” Expío averred that Mid-State had contracted on open account with Expío for explosives; that Expío provided said explosives from September 1, 1978 through March 21, 1979; that Expío sent invoices to Mid-State for the explosives; and that Mid-State had failed to pay the contract price of $58,052.42 for said explosives.

In Count II, “Expío vs. Johnson,” Expío averred that “as owner of Mid-State, Johnson accepted the obligations and liabilities of Mid-State;” that as owner of Mid-State it accepted the explosives provided to Mid-State by Expío and did not pay for them; and that it has as a result been “unjustly enriched because the explosives have not been paid for.”

Johnson & Morgan was served with the complaint July 19, 1979. On August 13, 1979, Expío filed a “Praecipe for Default Judgment,” requesting the Prothonotary to enter judgment in default of answer in favor of Expío and “against all Defendants, Johnson & Morgan and Mid-State Energy Corporation and Johnson & Morgan t/d/b/a Mid-State Energy Corporation, jointly and severally, in the sum of $58,052.42 Dollars.” Judgment was entered on that date.

On September 27, 1979, Johnson & Morgan filed a petition to open judgment. The petition alleged, inter alia: # * * * * *

3. That Don R. Johnson, in his individual capacity, is the local manager for Mid-State Energy Corporation and as such orders materials and signs checks for said corporation.
4. That Don R. Johnson is a minority stockholder in Mid-State Energy Corporation which is a going concern and which is engaged in the business of mining coal in the area of Houtzdale, Clearfield County, Pennsylvania.

The petition goes on to state that after receiving the complaint in assumpsit, Don R. Johnson contacted the secretary of Expío and advised him “that he and Mr. Morgan did not own Mid-State Energy Corporation nor were they doing business through Mid-State Energy Corporation and that the action should not have been filed against them.” According to the petition, Mr. Johnson was advised to contact Explo’s attorney, but the attorney was out of town when Mr. Johnson tried to reach him. According to the petition, a secretary for Johnson & Morgan called the attorney’s office as well. From these calls, the petition alleges,

9. [T]he petitioners understood . . . that action was being deferred against Johnson & Morgan and did not learn until September 26, 1979 that a judgment had been entered against all defendants in the above-captioned action.
The petition went on to state that
10. [A] good and valid defense exists in this case inasmuch as Mid-State Energy Corporation is a going concern and that the averments that Johnson & Morgan is doing business through or that they “own” Mid-State Energy Corporation are totally without foundation.

On October 11, 1979, an evidentiary hearing was held at which Mssrs. Johnson and Morgan testified. Don Johnson testified that Johnson & Morgan has no relationship to Mid-State, although it does purchase coal from Mid-State. He further testified that he was aware that Mid-State had purchased explosives from Expío and stated that the default judgment was proper as against Mid-State, since “Mid-State obviously had the use of the explosives . . . and owes the money ...”

With regard to receipt of the complaint, Johnson testified that he was out of town at the time it was served and that he did not open it until approximately the 8th of August, 1979, and did not bring it to his attorney’s attention until approximately September 27, 1979. When asked why he waited until then, Johnson responded:

A. Because I was busy with other portions of the business. And whenever I had come upon that, I just thought, well, there’s a judgment [sic] that’s not true, that’s not correct, and I don’t think it needs my attention at this time because Johnson and Morgan didn’t owe the money. I knew Mid-State Energy owed it, but I knew Johnson and Morgan didn’t.
Q. Did you not receive Notice of the Judgment mid-August of ’79.
A. I would say I probably did. I don’t recall right offhand because that’s when I was busy.
Q. Why did it take six weeks after the Notice of Judgment which was two weeks after Notice of the Complaint, and four weeks after it was served, before you consulted an attorney and filed a Petition?
A. Because I was busy during those six weeks and I just felt as though it was something that could be dealt with later that Johnson and Morgan, you know, wasn’t reliable [sic] for it.
Q. So you have the same reasons for not filing your Petition and for not filing the Answer, you were busy, is that correct?
A. That’s right. [Emphasis added.]

Both Johnson and Morgan testified that the reason they were so busy was because their business was having serious financial troubles and they were engaged in continuous negotiations with creditors which took up all their time.

It is well settled that a petition to open judgment is a matter of judicial discretion, which is to be exercised only when three conditions are met: (1) the petition has been promptly filed; (2) a reasonable excuse is given for the failure to respond; and (3) a meritorious defense is shown. Bollinger v. Cressman, 267 Pa.Super. 535, 407 A.2d 39 (1979); Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). Moreover, we will not reverse the decision of the lower court absent an abuse of discretion. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971).

Here, we find that the court below abused its discretion in granting Johnson & Morgan’s petition to open. The court below found that Johnson & Morgan were “in perilous financial straits” and that in attempting to deal with numerous creditors, Explo’s complaint was understandably “pushed into the background.” The court went on to hold that the delay in filing the petition was not of extraordinary length, and that upon taking the matter up with counsel, the petition to open was immediately filed.

While it is clear from the record that Johnson & Morgan believed that they were not liable for Mid-State’s purchase of explosives from Expío and its subsequent lack of payment therefor, the fact remains that Johnson & Morgan did not attempt to assert this defense by means of a responsive pleading. Although Johnson & Morgan did try to contact Explo’s counsel to explain why it was not liable for the debt, counsel was out of town, and at that point the necessity for setting forth its defense in the form of an answer to the complaint should have been clear to Johnson & Morgan. At the hearing, Johnson acknowledged that he had not contacted Johnson & Morgan’s attorney until approximately six weeks after the default judgment had been entered, because he was “busy.” In Van Horn v. Alper, 253 Pa.Super. 524, 385 A.2d 462 (1978), we stated, in holding that appellant had not satisfactorily explained his default in answering the complaint:

It is equally difficult to understand or excuse the cavalier manner in which the appellant treated the complaint after it was served upon him ... He simply ignored the document until he received notice that a default judgment had been taken, although the first page of the complaint contained a full and complete notice to defend.... [Appellant] was not inexperienced with legal matters because he had already hired counsel to defend him in the earlier equity action . . . Nevertheless it is averred on behalf of the appellant that he “reasonably assumed” that the complaint and notice pertained to the first equity action and, as a consequence, did nothing until he received notice of the default judgment. Even if he believed that the papers served upon him related to the prior equity action, he must have known that he had a duty to respond to it if he read the paper. . . .

Id., 253 Pa.Super. at 529-530, 385 A.2d at 465.

In Bollinger v. Cressman, supra, appellant consciously chose to ignore the complaint in assumpsit filed against him because of his belief that he was not personally liable. Appellant was president of a corporation which failed to pay for certain electrical work performed by appellee. Since the complaint alleged that the work was performed for the corporation, appellant concluded that he could not be held personally liable, and therefore simply “put it away.” Judgment by default was entered against appellant, and he filed a petition to open one month later. In holding that appellant had not given a reasonable excuse for his failure to answer appellee’s complaint, we noted that appellant had read the complaint and had consciously set it aside and ignored it until after judgment by default was taken. We stated:

Appellant’s failure to respond to the complaint was a conscious and deliberate act, albeit based upon an erroneous assumption regarding his personal liability .. . Although a petition to open is addressed to the equitable powers of the court [citations omitted], the equitable maxim of vigilantilous et non dormientibus jura subveniunt is especially appropriate in this case. We must conclude that given appellant’s blatant disregard for his responsibilities, particularly in light of his involvement in the business world and the affairs of several corporations, the evidence clearly supports the finding of the court below that appellant failed to reasonably explain his failure to answer appellee’s complaint.

Id. 267 Pa. at 540-541, 407 A.2d at 42. See also Tronzo v. Equitable Gas Co., 269 Pa.Super. 392, 410 A.2d 313 (1979).

In the case at bar, appellees Johnson and Morgan are businessmen, who should have known that lawsuits cannot just be ignored.

As in the Van Horn and Bollinger cases, supra, this is a situation in which a responsive pleading was not filed because of a belief on the part of appellee Johnson & Morgan that the action did not pertain to it and that therefore it did not have to respond. Thus, the failure to respond was a conscious and deliberate act. Under these circumstances, we hold that Johnson & Morgan has not shown a reasonable excuse for its failure to respond. Van Horn v. Alper, supra; Bollinger v. Cressman, supra.

Finally, there is some doubt as to whether Johnson & Morgan has shown a meritorious defense. A petition to open a default judgment must set forth a defense in precise specific, clear and unmistaken terms and must set forth the facts on which the defense is based. Ecumenical Enterprises, Inc. v. Nadco Const. Co., Inc., 253 Pa.Super. 386, 385 A.2d 392 (1978). Here, the petition merely avers that “a good and valid defense exists in this case inasmuch as Mid-State .. . is a going concern and that the averments that Johnson & Morgan is doing business through or that they “own” Mid-State .. . are totally without foundation.” No facts are alleged in support of the “defense.” Nor is it specifically alleged that Johnson & Morgan does not owe the sum for which Expío seeks payment. In addition, there is some confusion as to the relationship of Mssrs. Johnson and Morgan to Mid-State Energy Corporation. Although stating that “Johnson & Morgan” had no relationship with Mid-State, Don Johnson testified that he is general manager of Mid-State, while Mr. Morgan is office manager. In short, even if “Johnson & Morgan” are not liable for the purchase of the explosives; this defense was not set forth in the petition in clear, unmistaken terms nor was it set forth in a timely answer to Explo’s complaint. Nor was the filing of the petition to open on September 27, 1979 “prompt” under the circumstances.

For these reasons, we hold that the court below abused its discretion in granting Johnson & Morgan’s petition to open, and we accordingly reverse the order of October 30, 1979.

Order reversed.

HESTER, J., concurs in the result.

      . Paragraph 2 of the complaint above indicates that “Johnson” refers to “Johnson & Morgan.”

      . The law aids those who are vigilant, not those who sleep upon their rights.


text:
    441 A.2d 388
    Josephine H. KOZLOWSKI, Appellant, v. PENN MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Feb. 5, 1982.

      David L. Marshall, Norristown, for appellant.
    Joy E. Pollock, Philadelphia, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   BROSKY, Judge:

Appellant, Josephine Kozlowski, filed an action for declaratory judgment requesting a judicial interpretation of her homeowner’s insurance policy. The case was submitted to the court below upon an agreed statement of facts. The court below entered an opinion and order holding that the insurance policy did not cover the loss sustained by appellant. It is from this ruling that appellant has taken this appeal. We affirm.

The facts are as follows. In May, 1978, appellant purchased a homeowner’s insurance policy from Penn Mutual, with coverage to begin May 25, 1978. At that time, appellant lived at 3337 Coral Street in a row house. On August 3, 1978, the curb valve at the water main to the service line leading to 3335 Coral Street burst, releasing water which seeped into and flooded appellant’s basement. Thereafter, appellant filed a claim for her property loss with appellee and was notified that the claim was disallowed because it was not a loss covered by appellant’s policy. The policy provides as follows:

This policy insures under: COVERAGE A—DWELLING and COVERAGE B—APPURTENANT STRUCTURES against all risks of physical loss to the property covered . . . except as otherwise excluded or limited. COVERAGE C—UNSCHEDULED PERSONAL PROPERTY against direct loss to the property covered by the following perils as defined and limited, except as otherwise excluded.
# :f. # %
15. Accidental discharge, leakage or overflow of water or steam from within a plumbing, heating or air conditioning system or from within a domestic appliance but excluding loss to the appliance from which the water or steam escapes. This peril does not include loss caused by or resulting from freezing.

Under “ADDITIONAL EXCLUSION” the policy states that it does not insure against loss . . .

1. Caused by, resulting from, contributed to or aggravated by any of the following:
a. flood, surface water, waves, tidal water, or tial waves, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not:
b. water which backs up through sewers or drains; or
c. water below the surface of the ground including that which exerts pressure on or flows, seeps or leeks through sidewalks, driveways, foundations, walls, basement or other floors or through doors, windows or any other openings in such sidewalks, driveways, foundations, wall, or floors;
unless loss by fire or explosion ensues and this company shall then be liable only for such ensuing loss, but these exclusions do not apply to loss by theft . . . [Emphasis added.]

Appellant’s central contention is that Paragraph 15 under “PERILS INSURED AGAINST” covers her loss here. She further argues that appellee has not met its burden of proof with respect to the applicability of Exclusion 1. c. under “ADDITIONAL EXCLUSIONS.”

Appellant would have us interpret the words ... “a plumbing system” contained in Paragraph 15 to mean any plumbing system. She submits that the water main, curb valve and service line leading to the house next door are part of “a plumbing system.” The court below found that the policy “was meant to insure [the appellant] only against water damage caused by sources directly within or appurtenant to her home.” (Emphasis added.) We agree.

In the leading Pennsylvania case dealing with this question, Fine v. Underwriters of Lloyd's of London, 239 F.2d 362 (3d Cir. 1956), it was held that water escaping from “plumbing systems” means water escaping from the plumbing system on the insured premises, and not from “any” plumbing system. In Fine, recovery was sought by a clothing store for loss to fabric damaged by water which leaked through the store buildings foundation wall and into the basement, resulting from a break in the plumbing system of an adjoining property. The policy in question provided: “Perils not included”: not liable for loss by 'water damage’ [defined as “the accidental discharge, leakage or overflow of water or steam from within . . . plumbing systems”] . . . caused directly or indirectly by (a) seepage, leakage or influx of water through building walls, foundations, basement floors. .. The court in Fine concluded that “a reading of the insurance contract before us shows that all of the water damage sources covered are obviously intended to be on or in, certainly related to, the assured’s property. ...” Id. at 364. Here, the cause of the water leakage was a burst valve at the water main to the service line belonging to the house next door, which line is unconnected to appellant’s property.

Under appellant’s interpretation of “a plumbing system,” water seeping into appellant’s basement from a burst valve two blocks away, rather than next door, would also be covered. However, the Fine court also recognized that the policy in question was designed by the insurer to provide for a limited amount of coverage, for losses which it could foresee. Otherwise, the insurer would have no control over the type of risks against which it was insuring. There would, in short, be no end to the coverage, and concomitantly, no need to provide for exclusions to coverage. It is clear from a reading of the entire policy here that appellee-insurer did not intend, nor did appellant contract for, such unlimited coverage.

It is axiomatic that in order to recover on a policy of insurance, the insured must show that his claim comes within the coverage provided by the policy. Miller v. Boston Insurance Company, supra. Here, appellant has not met her burden of proving that the loss sustained by her is covered under the terms of her policy.

Therefore, we do not find it necessary to discuss appellant’s second contention, that appellee-insurer did not meet its burden of proving that the loss was excluded by the policy. It is well established that appellee bears the burden of proving that the loss is due to a hazard excluded from coverage. Armon v. Aetna Casualty Co., 369 Pa. 465, 87 A.2d 302 (1952). Here, however, it is clear that the loss sustained by appellant was not a “peril insured against” within the meaning of Paragraph 15. Thus, it is unnecessary to examine whether the loss was specifically excluded by Exclusion 1 of the policy. We do find, however, that the exclusion clause in question does not contradict the coverage provided by Paragraph 15. Reading the policy as a whole, giving effect to all of its provisions, we hold that where, as here, the cause of the discharge, leakage or overflow of water is in the insured’s own plumbing system, the exclusion does not apply; but that if the cause is outside that system, then the exclusion is applicable. See Hallsted v. Blue Mountain Convalescent Center, Inc., 23 Wash.App. 349, 595 P.2d 574 (1979).

Since the cause of the water damage here was not within appellant’s plumbing system, she cannot recover under the terms of the policy.

Order affirmed.

      . There is some dispute concerning whether appellant’s policy was an “H02” or an “H03.” Appellant claims to have purchased an “H03” policy but to have been issued an “H02” policy instead. In her pleadings, appellant relied upon the language of an “H03” policy. We fail to see the relevance of the distinction between the two policies, since the terms in question are contained in both, albeit numbered differently. However, for the purposes of this opinion, we will rely upon the language of the “H03” policy, as did the court below in reaching its decision.

      . This was not an “all risks” policy. See Miller v. Boston Insurance Company, 420 Pa. 566, 218 A.2d 275 (1966).


text:
    441 A.2d 391
    John C. BIGHAM and Dorothy Bigham v. Robert E. WENSCHHOF, Doris F. Wenschhof, Edward R. Wenschhof and Patricia Ann Wenschhof, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1981.
    Filed Feb. 5, 1982.

      Francis Worley, York Springs, for appellants.
    Walton V. Davis, Gettysburg, for appellees.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

This is an adverse possession case. In 1979 appellees John and Dorothy Bigham brought an action to quiet title to a tract of land to which they claim record ownership under deed dated February 28, 1973 and recorded in the Office of the Recorder of Deeds of Adams County, Pennsylvania. Appellants claim ownership of the disputed tract by adverse possession. The court below, sitting without a jury, found that appellees own the disputed tract by record title, and that appellants had not proved ownership by adverse possession. Appellants filed timely exceptions, which were dismissed. This appeal followed. We affirm.

At the outset, we note that the findings of a trial judge sitting without a jury carry the same weight as a jury verdict, Denby v. North Side Carpet Cleaning Company, 257 Pa.Super. 73, 390 A.2d 252 (1978), and that such findings will not be disturbed on appeal absent an error of law or abuse of discretion. Estate of Shelly, 484 Pa. 322, 399 A.2d 98 (1979).

At trial, appellee Bigham testified that the tract in question had been owned by his family for over a hundred years, and that he and his family had used it primarily for timber. Since inheriting it in 1957, Bigham testified, he had not made any use of the tract. He further testified that eight to ten years before the time of trial, he and his wife had stopped to see the property, and were told by a neighbor that someone had built a driveway on part of it, and a house trailer.

Appellant Robert Wenschhof argued that he had owned the tract in question since 1946. He testified that when he had purchased the land, he accompanied his survey- or, Pius Orner, who visually pointed out to him the extent of his property and indicated that the tract in question was included within the boundaries of his property. As a result, he stated, he had always acted under the belief that the tract in question was his. Joseph Rife, registered surveyor, testified on appellant’s behalf that he had examined the survey done by Pius Orner, and had re-surveyed the property. He stated that according to his survey, the disputed tract did belong to the Wenschhofs. The court below, however, found the testimony of appellees’ surveyor, J. Riley Redding, to be more credible, and accordingly found that appellees own the disputed area by record title. It is well settled that our court must accept the findings of the court below with respect to the credibility of witnesses. Commonwealth ex rel. Pruss v. Pruss, 236 Pa. Super. 247, 344 A.2d 509 (1975). Accordingly, we will not disturb the. lower court’s findings with respect to record ownership of the tract, and will address only the issue of whether appellants have established ownership by adverse possession.

In support of his adverse possession claim, appellant Robert Wenschhof testified that since 1946, he had cut timber from the disputed tract; that since 1950, he had put up ‘No Trespassing’ notices during hunting season, along what he considered to be the boundary line of his property; that in approximately 1970, he had expanded an already-existing gravel driveway; that in 1974, he had installed a garden patch; and that in 1979, he had put up a shed.

Kathleen Shindledecker, appellants’ daughter, testified that she had resided on part of the land for the past ten years, and that during that ten year period, her father had cut several trees in the garden area, constructed a shed, and placed a barbeque and sand pile on the tract in question.

In the recent case of Flickinger v. Huston, 291 Pa.Super. 4, 435 A.2d 190 (1981), we reiterated the burden of proof in adverse possession cases:

“It is well settled that he who asserts title by adverse possession must prove it affirmatively.” Robin v. Brown, 308 Pa. 123, 129,162 A. 161, 162 (1932). “[0]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years . . . Each of these elements must exist, otherwise the possession will not confer title.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted), See also Tioga Coal Co. v. Supermarkets General Corp., 289 Pa.Super. 344, 433 A.2d 483 (1981); Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978); Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976). “An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts ... He must keep his flag flying and present a hostile front to all adverse pretensions.” Smith v. Peterman, supra, 263 Pa.Super. at 161, 397 A.2d at 796 (quotations and citations omitted). In Inn Le’Daerda, Inc. v. Davis, supra, we noted that
“[a] sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated ... It is true that residence is not necessary to make an adverse possession within the statute of limitation; the possession may be adverse by enclosing and cultivating the land . . . but nothing short of an actual possession, permanently continued will take away from the owner the possession which the law attaches to the legal title; temporary acts on the land, without an intention to seat and occupy it for residence and cultivation or other permanent use consistent with the nature of the property, are not the actual possession required . . . Such occupation must be exclusive, and of such a character as compels the real owner to take notice of the possession of the disseisor ...”
241 Pa.Super. at 159, 360 A.2d at 213 (quoting Parks v. Pennsylvania Railroad Co., 301 Pa. 475, 481-82,152 A. 682, 684 (1930) (citations omitted)). Thus, “only acts signifying permanent occupation of the land and done continuously for a twenty-one year period will confer adverse possession.” Smith v. Peterman, supra, 263 Pa.Super., at 161, 397 A.2d at 796.

Id., 291 Pa.Super, at 8, 435 A.2d at 192.

Applying the above principles to the facts of the instant case, we hold that appellants have not shown ownership by adverse possession. As the court below found, appellants’ use of the land was not actual, continuous, exclusive, visible, notorious, distinct, and hostile for a twenty-one year period. The only continuous use by appellant for twenty-one years was that of cutting timber. The other uses, such as expanding the gravel driveway, did not occur until after 1970. As we stated in Fliekinger, supra, “a sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated.” Flickinger v. Huston, supra, 291 Pa.Super. at 8, 435 A.2d at 192.

Here, appellants’ use of the tract in question was sporadic, and their acts did not signify permanent occupation. Since appellants have not proved all of the requisite elements of adverse possession, the order of the court below dismissing appellants’ exceptions to the decree of July 18, 1980 must be affirmed.

Order affirmed.


author: BECK, Judge:

text:
    441 A.2d 394
    Joseph J. NAVARRO v. OHIO CASUALTY INSURANCE COMPANY, et al. Appeal of GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1981.
    Filed Feb. 5, 1982.

      Richard L. Kearns, Harrisburg, for appellant.
    Timothy J. O’Connell, Harrisburg, for Navarro, appellee.
    F. Lee Shipman, Harrisburg, for Ohio, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

Appellee Joseph J. Navarro is the sole owner of a corporation, Joseph J. Navarro, Inc. In 1976, he sought to obtain insurance coverage for five motor vehicles, some owned by him or his wife and some owned by the corporation, and purchased “Fleet” insurance coverage through Dennis Woolf, a member of the Woolf-Strite Agency, under a policy with appellee Ohio Casualty Insurance Company. The policy listed Joseph J. Navarro, Inc. as the named insured and listed the five motor vehicles as covered vehicles. Ownership of these vehicles was not specified in the policies.

On October 22,1977, appellee Navarro was injured while a passenger in an automobile owned by one Jose Ramirez. Jose Ramirez was a named insured in a policy of automobile insurance with appellant Government Employees Insurance Company.

Appellee Navarro sought payment of basic benefits, including work loss benefits, from appellee Ohio Casualty Insurance Company, and was refused. He brought suit, and appellee Ohio Casualty responded that he was not an insured entitled to benefits under any policy with that company. Appellee Navarro then demanded benefits from appellant, and was refused. He brought suit against that company, reciting that he was uninsured and therefore entitled to benefits from the company insuring the car in which he was injured under the No Fault Motor Vehicle Insurance Act. Appellant answered alleging that it had declined to make payments to appellee Navarro because he “has not furnished Defendant with proof or documentation of his entitlement to wage loss benefits.”

Appellee Navarro obtained consolidation of the two actions and then filed a Motion for Summary Judgment, which actually sought partial summary judgment, seeking a determination by the court as to which of the two insurance companies was liable to him for his work loss benefits.

Following presentation of evidence by way of depositions and briefing by the parties, the lower court entered the following order:

AND NOW, August 11, 1980, Plaintiff’s motion to (sic) partial summary Judgment on the issue of liability is granted against Government Employees Insurance Company, the said motion is denied as to the defendant Ohio Casualty Insurance Company.

It is from this order that the within appeal was filed.

Although no party has raised the question of the jurisdiction of this court over this appeal, this court has the power to act only within the statutory enactments and rules conferring jurisdiction upon the court. Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 742, cited by appellant as grounds for jurisdiction of the appeal, confers jurisdiction upon this court only of final orders of the court of Common Pleas. Final orders are those which make a final determination of the rights of the parties relating to the subject matter of the action, leaving nothing further to be done in the lower court. Thus, grant of a motion for summary judgment on liability only without entry of judgment against any party is not a final order: Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981).

In this instance, the rights of the parties have not been determined in any final way. The court has merely determined that, should there be liability for work loss benefits, appellant is the company which would be liable. No final judgment was entered by the court. This is not a final order, and this court lacks jurisdiction over this appeal.

The appeal is therefore quashed.

      . Appellant herein did not seek certification of the order pursuant to 42 Pa.C.S. § 702(b), so we do not consider whether the appeal would have been allowed had appellant observed the procedure of Pa.R. App.P. 1311.


author: JOHNSON, Judge:

text:
    441 A.2d 395
    COMMONWEALTH of Pennsylvania, v. Sharon BECK, Appellant. COMMONWEALTH of Pennsylvania, v. Carl BECK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 13, 1981.
    Filed Feb. 5, 1982.

      Claude V. Falkenhan, Zelienople, for appellants.
    Robert Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   JOHNSON, Judge:

Appellants were arrested on charges of harassment, a summary offense, and the district justice imposed a fine of twenty-five dollars ($25.00) on each Appellant. Appellants, pursuant to Pa.R.Crim.P., Rule 67(a), 42 Pa.C.S.A. (1981 Pamph.), appealed to the court of common pleas. After a two-day nonjury trial, the judge found Appellants guilty and sentenced them to imprisonment for a period of thirty (30) days in the county prison. Appellants were escorted to the county prison; but, after a brief time, they were recalled to appear again before the trial judge. At this time, the judge vacated the sentence to allow Appellants ten (10) days to file post-trial motions, pursuant to Pa.R.Crim.P., Rule 1123(a), 42 Pa.C.S.A. (1981 Pamph.).

On January 9, 1981, the judge dismissed the post-trial motions and again sentenced Appellants to imprisonment for thirty (30) days. In the same order, the judge denied bail without explaining the basis for denial of bail, as Rule 4010(C) requires. On January 14, 1980, the trial judge granted Carl Beck’s Application for Work Release. On the same date, the Superior Court, PRICE, J., granted Appellants’ Application for Release Pending Appeal because the trial judge had failed to comply with Pa.R.Crim.P. 4010(C). The instant appeals are from the judgment of sentence of January 9, 1980. For the following reasons, we affirm the finding of guilt, vacate the judgment of sentence, and remand for a resentencing hearing.

Pursuant to an order of court, Appellant, Carl Beck, was to visit his daughter, Brandy, at the residence of Brandy’s mother, Kathleen Beck. On the day in question, Carl Beck and his wife, Appellant Sharon Beck, were sitting with Brandy in Beck’s truck, which bore Texas license plates. When Kathleen Beck ordered Brandy to leave the truck, a commotion ensued. Testimony indicates that Sharon Beck hit both Kathleen Beck and Lawson, her fiance, with a baseball bat. Appellant Carl Beck cut Lawson’s face with a knife. A neighbor, who watched the brawl after having called the police, testified concerning the details.

Appellants raise five issues. First, did Appellants receive a fair and impartial trial before a neutral and unbiased trier of fact? Second, did the trial judge consider only the charges against Appellants and only competent evidence introduced in support of those charges. Third, did the Commonwealth sustain its burden of proving beyond a reasonable doubt every element, including the element of intent, of the crime charged against Appellant? Fourth, did the trial judge afford Appellants their legal rights in formulating and imposing sentence on them? Fifth, did the trial judge’s imposition of a sentence of imprisonment violate double jeopardy because the sentence constituted a harsher penalty than the fine that the district justice had imposed? We proceed to consider these issues seriatim.

In discussing the first issue, Appellants present many generalized claims that the trial judge was prejudiced toward Appellants. Appellants even argue that, in the judge’s “private mind, at least, the proceedings against your Appellants were really for criminal contempt” (Appellants’ brief at 9). Appellants do not present any specific facts to support these allegations concerning either prejudice or criminal contempt, and a careful examination of the record does not support such allegations. Thus, Appellants’ first issue is devoid of merit.

Likewise, in discussing the second issue, Appellants fail to substantiate their general allegations that the judge both discriminated against them and denied them due process and equal protection of the law. Consequently, Appellants’ second issue lacks merit.

Appellants’ third issue challenges the sufficiency of the evidence, especially the evidence regarding the intent to harass. Commonwealth v. Parker, 494 Pa. 186, 431 A.2d 216 (1981), explains the standard to be applied by an appellate court in determining whether or not the evidence was sufficient to support a verdict:

To evaluate the sufficiency of evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981).

494 Pa. at 198, 431 A.2d at 217.

In the instant case, the evidence revealed that Appellant Sharon Beck, holding a baseball bat, pursued Kathleen Beck and struck Kathleen with the bat. The record also reveals that Appellant Carl Beck had his arms around Lawson’s chest. Lawson struggled to free himself, but both men fell over the porch rail. Also, Carl Beck cut Lawson’s face with a knife.

The relevant portion of 18 Pa.C.S.A. § 2709 defines harassment:

A person commits a summary offense, when, with intent to harass, annoy or alarm another person:
(1) he strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same[.]

Since the evidence in the instant case clearly proves that both Appellants subjected the victims to some form of physical contact, we need only to consider whether or not the evidence proves beyond a reasonable doubt the intent to harass.

Intent may be inferred from the totality of the circumstances. Commonwealth v. Lewis, 276 Pa.Super.Ct. 451, 456, 419 A.2d 544, 547 (1980). Although Appellants in the instant case argue that they acted in self-defense, the evidence reveals otherwise. Sharon Beck’s pursuit, and subsequent striking, of Kathleen Beck with a baseball bat was not an act of self-defense since Kathleen was moving in a direction away from Sharon. The evidence also reveals that Lawson tried to back away from Sharon Beck’s act of clicking her fingers in his face and pushing him when Sharon slapped Lawson, who slapped her in return. Subsequently, Carl Beck cut Lawson’s face with a pen knife. When Lawson freed himself from Carl Beck, Beck again caught Lawson and proceeded to wrestle with him. Since Carl Beck assaulted Lawson twice, when neither assault was preceded by a threat to Beck by Lawson, the evidence does not support a claim of self-defense by Beck. Thus the evidence supports a finding that Appellants acted with the intent to harass. See Commonwealth v. Lewis, id., 276 Pa.Super. at 456-457, 419 A.2d at 547.

In reviewing Appellants’ fourth issue, we find that the trial judge did not comply with either Pa.R.Crim.P. 4010(C), concerning denial of bail, or Pa.R.Crim.P. 1405(b), which requires the trial judge to state on the record his reasons for imposition of the sentence. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Accordingly, we vacate the judgment of sentence and remand for resentencing. Id., 474 Pa. at 137, 377 A.2d at 151.

Appellants admit that the fifth issue may be decided by Commonwealth v. Possinger, 264 Pa.Super.Ct. 332, 399 A.2d 1077 (1979). Possinger held that the imposition of a harsher sentence in a trial de novo in the court of common pleas, following a trial in municipal court, did not constitute double jeopardy. Id., 264 Pa.Super. at 344-345, 399 A.2d at 1083.

Appellants attempt to distinguish the instant case from Possinger by alleging that their trial de novo was not a new trial but was tainted by the judge’s vindictiveness. Since our discussion of the first issue found this allegation to be void of merit, we cannot distinguish the instant case from Possinger.

For the foregoing reasons, we affirm the finding of guilt, vacate the judgment of sentence, and remand for resentencing. Bail is to continue according to the order of this court of January 14, 1980.

The case was decided prior to the expiration of SHERTZ, J.’s, commission of office.

      . 18 Pa.C.S.A. § 2709.

      . Rule 67(a) states:
      (a) After conviction by an issuing authority in any summary proceeding, including a prosecution for violation of a municipal ordinance which provides for imprisonment upon conviction or upon failure to pay a fine, a defendant may appeal to the court of common pleas of the judicial district in which the conviction occurred.

      . The relevant portion of Rule 1123(a) states:
      (a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued. If the grounds asserted do not require a transcript, neither the filing nor argument of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony. ■

      . Pa.R.Crim.P., Rule 4010(C), 42 Pa.C.S.A. (1981 Pamph.), states: Findings of Fact Whenever the judge refuses or revokes bail under authority of this Rule, he shall state on the record his findings of fact on which his decision is based.


author: MONTEMURO, Judge:

text:
    441 A.2d 398
    Cynthia King ROGERS v. Robert Hall ROGERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 20, 1981.
    Filed Feb. 5, 1982.
    Petition for Allowance of Appeal Denied July 16,1982.

      Russell D. Henkin, Philadelphia, for appellant.
    John W. Nilón, Jr., Media, for appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   MONTEMURO, Judge:

This action presents the issue of whether the Pennsylvania Longarfn Statute, 42 Pa.C.S.A. § 5322, permits the Commonwealth of Pennsylvania to exercise in personam jurisdiction over a nonresident defendant in an action brought by defendant’s former wife for reimbursement of monies she has expended from her personal estate for the maintenance and support of the parties’ three children during their minority. We conclude that in this instance it may do so, and affirm the decision of the lower court.

The parties to this action were married in England in 1944 and moved to Delaware County in 1948. Two children were born of the marriage in that county, and all three children were raised to their majority there.

The defendant left the jurisdiction in 1954 and concealed his whereabouts from his former wife. He at no time provided for the support and suitable maintenance of his son and his two daughters, aged three, six and nine at time of his desertion.

Plaintiff alleges, without rebuttal, that defendant was sufficiently able financially to have contributed to the children’s support during their minority.

Plaintiff further alleges that she attempted several times to enter a support order against defendant for benefit of the children, but was never able to do so and therefore was obligated to maintain the children entirely from her separate estate.

Assuming that in personam jurisdiction may be had, we agree that plaintiff has a cause of action for her past expenditures in support and maintenance of the children of the marriage under statutory law pursuant to 48 P.S. § 131, see also Rosenberry v. Rosenberry, 256 Pa. Super. 237, 389 A.2d 1101 (1978), as well as under common law theories of restitution and of quasi-contract.

The present appeal presents a jurisdictional problem. The appeal is taken from an order of the lower court which dismissed defendant’s preliminary objections. Two facts present themselves for analysis: (1) the present longarm statute of this state must be capable of establishing in personam jurisdiction on the facts of the instant action and (2) the exercise of the jurisdiction must comport with constitutional standards.

The relevant statute to be considered is found at 42 Pa.C.S.A. § 5322 (Supp.1978) and states in pertinent part:

(a) General Rule. A tribunal of this Commonwealth may exercise personal jurisdiction over a person . . . who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(3) Causing harm or tortious injury by an act or omission in this Commonwealth.
(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth. (Emphasis supplied)

Interestingly, the 1978 case of Davis v. Davis, 452 F.Supp. 44 (E.D.Pa.) speaks prospectively to the issue of the jurisdictional reach of the present statute although it was decided under former law. In Davis the plaintiff mother brought suit in Pennsylvania against a father in North Carolina under the terms of a New York separation agreement. The district court, interpreting 42 Pa.C.S.A. § 8301 et seq. (1977 Supp.), predecessor to the present longarm statute, cited in pertinent part:

Any nonresident of this Commonwealth who, acting outside of this Commonwealth . .. shall have caused any harm within this Commonwealth .. . shall be subject to service of process in any civil action or proceeding instituted in the courts of this Commonwealth arising out of or by reason of any such conduct . . .

The plaintiff claimed that the failure to mail support payments amounted to an act causing harm within the Commonwealth. The Court held that the failure to pay was an omission to act, and therefore was not encompassed by the wording of the statute as set forth above. However, the Davis court specifically footnoted the wording of the present act, adopted but not then effective, and opined that such wording would extend the reach of the statute to omissions to act. Id. p. 46, n. 2, cf. supra n. 7 for present wording. That wording is now the operative wording, and non-payment of monies which are owed and lack of which cause harm within this state is unarguably covered.

The Davis court similarly noted another objection to use of the longarm statute as then written, stating that under wording then applicable:

... it is our prediction . . . that the Pennsylvania Appellate Courts will not determine that “doing business” includes making payments under a separation agreement . . . particularly where . . . executed by the nonresident defendant in New York . . . and [where] by its terms this section [of the Longarm Statute] applies only to foreign corporations and not to nonresident individuals. Therefore there is no statutory direction to extend [the then longarm provisions] to their constitutional limits. Id at 47.

Once again, however, the Davis court carefully set forth in a footnote the as-yet-to-be-enacted version of the statute, identical to the present law, and recognized that the legislative intent expressed in the language now in use would extend to individuals as well as corporations and would go to the furthest constitutional extent permissible. Id. at 71, n.4.

Having determined, therefore, that the statute of that date did not confer in personam jurisdiction over the Davis defendant, the court did not need to reach the constitutional issue.

The reasoning of the Davis court however, when applied to the present law, impels a different result. Assuming the well-pleaded allegations of the present record to be true, we find an act of desertion begun in this state and continued for many years outside this state and an omission of a duty of support outside this state, all of which caused harm in this state. Under 42 Pa.C.S.A. § 5322(a)(3) and (a)(4), in person-am jurisdiction may be had upon this defendant. Cases holding that non-feasance was not covered by the Pennsylvania Statute, see e.g. Davis, supra; Witt v. Scully, 539 F.2d 950 (3rd Cir. 1976); Filsam Corp. v. Dyer, 422 F.Supp. 1126 (E.D.Pa.1976), were decided prior to the addition to the language “act or omission,” and we must agree with the lower court that injury caused by a failure to act to fulfil a legal duty is now sufficient to provide in personam jurisdiction under the instant facts.

What is more, the extention of the statutory language to “all persons” and “to the fullest extent allowed under the constitution” appears to us, as to the Davis court, to show a legislative intent to make nonresident individuals as well as corporations subject to in personam jurisdiction. We hold that, under the wording and intent of the present longarm statute, this defendant may be subjected to the jurisdiction of this Commonwealth.

Having determined that our legislature intended to extend jurisdiction to encompass defendants similar to the one in the case at bar, we must turn to an examination of the facts to decide whether this extention of in personam jurisdiction comports with constitutional limitations. On the facts presented here, we hold that this defendant may be constitutionally reached.

A valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1878). There must be adequate notice of the action given to the defendant, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and a sufficient connection between the defendant and the forum state as to make it fair to require defense of the action in the forum. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940). The defendant in this instance does not contest his notice of the action as inadequate. He does, however, contend that his connections with Pennsylvania are too insubstantial to support in personam jurisdiction on a constitutional level.

Both parties in this action cite the United States Supreme Court case of Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), the most recent holding by that body on in personam jurisdiction as applied to a nonresident defendant in a support matter. This court will, therefore, examine the instant facts in the light of the guidance given in Kulko.

Justice Marshall, writing for the Court, stressed that an examination of the “minimum contacts” test cannot be considered mechanically, but that in each case facts must be weighed individually, and that “few answers will be written in black and white. The grays are dominant and even among them the shades are innumerable.” Id. at 92, 98 S.Ct. at 1697, quoting Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948).

In the instant case, the defendant moved his family, then a wife and child, into this Commonwealth to live. He fathered two more children in this state and remained domiciled here from 1948 to 1954: incontestably he availed himself of the benefits of this state during that six-year period.

Then, in direct contravention of the law of this Commonwealth he:

. . . separated himself from ... his children without reasonable cause, and being of sufficient ability . . . neglect[ed] or refusefd] to provide suitable maintenance . . . (see note 1 supra for complete wording.)

Such behavior, under the statute, permits an action to be brought, in law or equity either where “service may be had” upon him or “in the county where the desertion occurred.” Id.

In contrast, the defendant father in Kulko remained in the marital state and did no more than agree that his daughter could move to live with her mother in a foreign jurisdiction with which he had no ties. The diminution of expenses in the father’s household was seen there as a result of the child’s “absence from appellant’s home” and not from her presence in the foreign jurisdiction. Kulko, supra 436 U.S. at 95, 98 S.Ct. at 1698. The benefits of the foreign jurisdiction ran to the child, not the father, and the court pointed out that an action might have been brought at any time in the state where the separation occurred and the agreement was written. Id. at 95, 97, 98 S.Ct. at 1698,1699.

In contrast, defendant in the instant case deliberately engaged in wrongful conduct which was intended to, and apparently did, insulate him from service of process in any jurisdiction. The benefit, he thus obtained for himself was not “commercial”, but as seen supra, the present longarm statute applies to individuals and goes to the furthest limits of constitutionality possible.

Before we may find jurisdiction, it must appear that “certain minimum contacts” with this state exist, such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In the instant matter, defendant initiated the desertion that made service impossible over a period of many years; defendant knew or should have known that such behavior would bring him under provisions of the laws of this Commonwealth; defendant has reaped considerable financial benefit by his omission to pay support; defendant certainly availed himself of the benefits of this Commonwealth during his residency here, and apparently was prepared to reap further benefits in the form of governmental aid to his children had the plaintiff proved unequal to the burden of their support. In contrast, plaintiff remained in the marital jurisdiction, has already sustained a substantial financial burden over many years and should not have to assume the additional expense and personal strain of litigating in a distant forum with which she has had no contact.

We can see nothing that shocks our traditional notions of fair play and substantial justice in extending in personam jurisdiction to this defendant on these facts. The connections of defendant-appellant with this Commonwealth are sufficient under the standards of reasonableness and fairness implicit in the Due Process Clause.

Order affirmed.

      . 48 P.S. § 131 states in pertinent part:
      If any man shall separate himself from his wife or children without reasonable cause, and, being of sufficient ability, shall neglect or refuse to provide suitable maintenance for his said wife or children, action may be brought, at law or in equity, against such husband for maintenance of said wife or children, in the Court of Common Pleas of the county where service may be had on the husband as in other actions at law or in equity or in the county where the desertion occurred, or where his wife or children are domiciled, and the said Court shall have power to entertain a bill in equity in such action, and shall make and enforce such orders and decrees as the equities of the case demand, and in such action, at law or in equity, the husband and wife shall be fully competent witnesses. 1907, May 23, P.L. 227, § 1; 1909 April 27, P.L. 182 § 1(1); 1955, Dec. 15, P.L. 878, § 1.

      . Restatement, Restitution (1936) § 76 provides:
      “A person who, in whole or in part, has discharged a duty which is owed by him, but as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct.”
      See comment B., illustration # 5., the explanation which states:
      “A husband wrongfully refuses to supply necessaries for his wife and minor children. The wife secures a position and provides herself and the children with necessaries. Wife is entitled to reimbursement from the husband for the value of the necessaries.”

      . See Gessler v. Gessler, 181 Pa.Super. 357, 124 A.2d 502 (1956); Alder v. Alder, 171 Pa.Super. 508, 90 A.2d 389 (1952).

      . The defendant also claims that his action is barred by the statute of limitations. His arguments in support of this view and plaintiffs counter arguments are irrelevant to the instant appeal, however, and this court will not address that issue since it cannot finally dispose of it.

        We deem this interlocutory appeal to be properly taken (Pa.R.A.P. 311(b)) inasmuch as the plaintiff-appellee has filed of record in substance, an election that the order dismissing defendant’s preliminary objections shall be deemed final.


text:
    441 A.2d 403
    Ines Fernandez HATTOUM, Appellant, v. Pittagore HATTOUM.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1981.
    Filed Feb. 5, 1982.

      Ross S. Bash, Greensburg, for appellant.
    Thomas Anton, Greensburg, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This custody action was initiated by the natural mother of three children: one aged twelve and twins aged ten, who were retained in this Commonwealth by their natural father after a vacation spent with him. This retention of the children was contrary to the custom followed by the parents but was in conformity with an order of the court of the Pennsylvania jurisdiction issued in 1973.

Upon extensive review of the matter, we conclude that the lower court, in this instance, correctly assumed jurisdiction, and then having done so, made its determination of the best interests of the children in a manner reasonably within its discretion. We, therefore, affirm the decision below.

THE FACTS

The parents were divorced by decree of a court of the State of Virginia in January 1973. By decree of that court, the custody of the children was awarded to the mother.

Approximately a year later, both parents had relocated to Westmoreland County, Pennsylvania, and a consent order was entered by both parents in the court of that county whereby custody of the children was transferred to the father.

Although the mother now denies having signed this consent order of December 1973, the clear testimony of a witness to the signing established that the mother did so after full discussion with the attorney who prepared the papers. (R. N.T. 241(a)ff).

A. Well, I remember it most of all because she was a foreign lady and also while I was in there you [husband’s attorney] explained to her what this Petition was all about and if she understood that she was giving up custody of her children, and you asked her several times if she knew what she was doing by signing this paper and she said yes she was going to ... I believe Argentina, and she felt that the custody of her children should be in the hands of her husband, that she thought they would be better off here and also because of the education system in the United States.
Q. Did she as a matter of fact sign this paper?
A. Yes she did. I watched her sign the paper after you had asked her several times if she was sure this is what she wanted and if she understood what she was doing. (R. 295a)

Despite the agreement which transferred custody to the father, the actual, physical custody of the children remained with the mother. She returned to Argentina with the children, who have since spent the school year in Buenos Aires and have spent approximately four months of vacations yearly with their father. This pattern continued from 1974 to December 1979.

In December of 1979 the father, as usual, supplied round-trip air tickets to the children for their vacation visit.

In early January the father telephoned the mother and informed her that he intended to retain the children permanently. In April of 1980 the mother initiated this action as a Writ of Habeas Corpus and Rule to Show Cause.

Hearing was held in the matters on April 30, 1980. A supplementary hearing was held on August 13, 1980, to present more evidence on jurisdiction. The children were interviewed in camera with counsel present. All three children preferred the school in Pennsylvania, enjoyed living with their father and stepmother, and regretted not having daily contact with family while at the boarding school in Argentina. One child clearly preferred to live with the father, one clearly preferred the mother, and the third refused to choose. All children expressed love for both parents. Evidence was taken as to the parental incomes, residences, and neighborhoods.

The Court of Common Pleas issued an order on October 31, 1980, which found that jurisdiction was properly in that court and which then awarded custody of the children to the father, with visitation to the mother.

THE LAW

The Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. § 5341-5366 follows the Uniform Law approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1968. Some thirty-eight of the states have adopted the law; however, it is not a “reciprocal” law and is in full operation in each state regardless of its enactment in other states. See Comment of Commissioners, 9 Uniform Laws Annotated, p. 114, West Publishing Co. 1979. The intent of the Act has always been that its general policies shall apply to international custody cases as well, see id., and 42 Pa.C.S.A. 5365 confirms this for Pennsylvania. This court, therefore, has no problem in applying the provisions of the Act to the facts of the instant action, in which the alternative jurisdiction for the children would be Argentina.

The Act has three major bases for jurisdiction: § 5344(a)(1) provides for “home” jurisdiction; § 5344(a)(2) provides for jurisdiction based on “significant contacts” among the various parties to the custody action and the locale in which the action has been brought; § 5344(a)(3) provides for “parens patriae” jurisdiction for emergency situations in which a child is abandoned, abused or dependent.

The Act treats as preferable the “home” jurisdiction under § 5344(a)(1). This jurisdiction either is the “home” state of the child at the beginning of the proceedings or was the “home” state within six months prior to commencement of proceedings. In the Matter of D.L.S. and J.L.S., Appeal of KAS, 278 Pa.Super. 446, 420 A.2d 625 (1980).

There are circumstances, however, in which a court may determine that “home” jurisdiction does not prevail. The second base of jurisdiction provides as follows:

(2)(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child.

Although the drafters of the Uniform Act were careful to state that jurisdiction under § 5344(a)(2) was to be “interpreted in the spirit of the legislative purposes” and was intended to “limit jurisdiction rather than proliferate it,” the Act clearly implies that there will be factual situations that will impel a court to accept jurisdiction even when “home” jurisdiction exists elsewhere. When two forums exist, however, only one should actually adjudicate:

While jurisdiction may exist in two states in these instances, it will not be exercised in both states. Uniform Laws Annotated, supra, at 124 (emphasis in original).

Section 5348, labeled “Inconvenient Forum,” sets forth the following matters for a court to ponder in deciding whether it should defer its valid jurisdiction to the valid jurisdiction also possible in another forum:

(1) If another state is or recently was the home state of the child.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the present or future care, protection, training, and personal relationships of the child is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate.
(5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in § 5342 (relating to purposes and construction of sub-chapter).

In any instance where two valid forums exist, it is reasonable to expect that some of the items listed, supra, will favor one jurisdiction and some the other. In the end, the decision may turn on § 5348(c)(5), supra, an emphasis on the purposes and spirit of the Act.

DISCUSSION

This case presents an unusual factual situation in which two jurisdictions have colorable reason to exercise jurisdiction.

Argentina has long since become the “home” jurisdiction for these children. They have lived there under the primary control of their - mother since 1974, with all the normal growth of significant contacts usual under those circumstances.

However, this Commonwealth also has significant contacts to these children. The children lived here as permanent residents with their mother in 1973. The father has permanently resided here from 1973 to the present date. The children have returned to visit their father in the original residence for approximately a third of every year. Significant contacts certainly have existed with this state since 1973, and there is ample evidence as to the care, training, and personal relationships in this state.

Most importantly, both parents freely agreed to a modification of the initial custody order issued by the Commonwealth of Virginia. By signing the consent agreement in Westmoreland County, both parents agreed to submit themselves to that court as the preferred forum for custody matters concerning these children, in lieu of Virginia, the former residence of both parties, or Argentina, the then-anticipated residence of the mother.

Admittedly, these facts are unusual. It is rare for one person to have legal custody under a court order, yet yield actual physical possession and control of the children to the other parent for years. In searching the record, we have discovered information that appears to explain the puzzle.

As set forth, supra, the mother in the instant case stated that she “felt custody should be in the hands of her husband.” As to a travel permit he signed, the father’s uncontradicted testimony contained the casually-offered information that “only the father can give authorization to children under age in Argentina to travel.” (R. N.T. 42a). The visas of the American-born twins indicate their Pennsylvania address as permanent and labels them “tourists” in Argentina. The passport of the Argentinian-born child gives the Pennsylvania address as permanent and describes him as an “Alien Permanent Resident” of the United States. The father credibly states that he personally always considered his own address to be the children’s permanent home.

There is little doubt that both parents in this instance, influenced by custom dissimilar to the present concepts of custody in this country, honestly agreed that the father had the right to legal custody and the primary right to determine the children’s future. The mother’s actual custody, and the establishment of the “home” jurisdiction in Argentina, was by grace of the father’s permission.

No parental agreement, of course, can permanently determine the custody of children. Commonwealth ex rel. Viehdeffer v. Viehdeffer, 235 Pa. Super. 447, 344 A.2d 613 (1975). The best interests of the child determine custody, and a court with proper jurisdiction has power to re-determine that best interest where circumstances change. Commonwealth ex rel. Heller v. Yellin, 174 Pa.Super. 292, 101 A.2d 452 (1953). However, this mother, in acceding to the custody in the father by agreed court order in this state, also placed the custody issue under the jurisdiction of this court.

That would not finally determine the issue in every custody matter. Under the terms of § 5348, Refusal on Grounds of Inconvenient Forum, the entrance of an order in a particular jurisdiction is a factor, but certainly not the only factor. We could hypothesize a case in which the forum of parental choice for an initial order was not presently substantially connected with the lives of the children, or where unilateral conduct of a “snatching” parent was outrageous, and § 5349, therefore, precluded exercise of jurisdiction by this Commonwealth.

The instant action, however, does not offer facts to overcome the parental agreement to the court of Westmoreland County as a forum for custody. Here we have two jurisdictions with continuous, long-term connections to the children, in either of which evidence could be produced as to their welfare. There is no conflicting foreign order to consider, and no simultaneous proceeding in a foreign court. Conduct of the parent retaining the children was not unreasonable, given his prompt notice of intent to retain them and his possession of custody under court order. The Act was not contravened in letter or in spirit, and the lower court was therefore free to assume and exercise jurisdiction in this case.

Having correctly determined the jurisdictional issue, the court below properly considered the matter in light of the best interests of the children.

BEST INTERESTS OF THE CHILDREN

Our review of the entire record below, and the thorough findings of fact excerpted by the lower court for review, and the extensive opinion of the lower court based on those findings, has convinced this court that the trial judge properly reviewed the evidence presented and that his determination in favor of custody for the father over the mother was well within his discretion.

As always, when children are well-loved and adequately cared for by both parents, the decision is not an easy one. The father’s far greater income and suburban location weigh in his favor, as does the preference of the children for the American school and neighborhood. The most important factor, however, is the daily contact the children now have with their father and stepmother in Pennsylvania as contrasted with weekly visits with their mother while in boarding school in Argentina.

One factor among the many involved was the inflation rate in Argentina, which has rapidly increased the father’s tuition obligations to a confiscatory amount, combined with the fact that public schools in Buenos Aires are agreed among the parties to be too poor to offer an alternative education for these children.

We are satisfied that the lower court seriously considered all the factors involved, and that its decision to re-affirm the old provisions giving the father custody was correct.

Order affirmed.

      . Since seasons are reversed from those of the northern hemisphere, this was the long “summer” vacation for the children.

      . We note that the other section specifically addressing the decision of a forum to decline to accept jurisdiction is § 5349, “Jurisdiction Declined by Reason of Conduct.” By its terms it does not touch the facts of this case, being concerned at (a) with an “initial decree” and at (b) with “modification of a foreign decree.” Neither situation fits the unique facts of the instant action.
      However, the wording is clearly allied to the language at § 5342, which outlines as a purpose of the act the prevention of unilateral action by one parent, resulting in the disruption of children’s lives and continuing controversies in several jurisdictions.
      We note, therefore, that the father in the instant action notified the mother of his intent to retain the children at the beginning of a scheduled long vacation with him. This provided a “neutral” period of time for action by the mother. In contrast, the typical retaining parent notifies the other parent at the end of a visitation or during a short visitation, causing the abrupt disruption of life so abhorrent to the intent of the Act.


author: SHERTZ, Judge:

text:
    441 A.2d 408
    COMMONWEALTH of Pennsylvania v. Roberto AVILES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Feb. 5, 1982.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before HESTER, WIEAND and SHERTZ, JJ.
   SHERTZ, Judge:

This is an appeal from a Judgment of Sentence. Appellant’s sole contention on appeal is that the trial court abused its discretion in imposing a prison sentence in that a supervised probationary period, which would include treatment for alcoholism, would be a more effective vehicle to rehabilitate Appellant than would total confinement. We disagree and therefore affirm.

On September 21, 1978, Appellant, Roberto Aviles, pleaded guilty to Arson. Appellant was sentenced to pay costs and a $100 fine, to make restitution to the victim and to serve a term of imprisonment of 6 months to 23 months. On February 22, 1979, he was granted parole effective March 1, 1979.

On December 26, 1979, Appellant was charged with Burglary and Theft, on which charges he entered a guilty plea on February 11, 1980. Appellant’s parole was revoked and he was sentenced to pay costs and to serve a term of imprisonment of 6 months on the arson conviction. He was also sentenced to serve a term of imprisonment of one and a half to three years on the burglary conviction, the latter sentence to be served consecutively to the former. Appellant’s motion to modify the sentences was denied and this appeal followed.

In order for a sentence to constitute an abuse of discretion, the sentence must either exceed statutory limits or be manifestly excessive. Commonwealth v. Campolei, 284 Pa.Super.Ct. 291, 425 A.2d 818 (1981); Commonwealth v. Jezorwski, 280 Pa.Super.Ct. 178, 421 A.2d 464 (1980). Neither criterion is here present. The prison sentences imposed did pot exceed the maximum statutory limits nor are they excessive.

In imposing these relatively modest sentences, the trial court properly considered the protection of the public, the gravity and circumstances of the offenses and the rehabilitative needs of Appellant, as well as his character. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). In its opinion the court stated:

When the defendant was sentenced on the arson charge he received six to twenty-three months on a felony first-degree charge. The desire for rehabilitation was manifest in the action of the court. As a condition of parole he was required to participate in the Alcohol Impaired Driver program. Disregard for the authority of the court by failure to attend a program by which it was hoped that a problem might be helped has been established. Commission of another first-degree felony during parole has made it requisite that imprisonment be imposed in the revocation of parole.

T.C. Slip Op. at 2, 3.

In view of the foregoing, we conclude that the lower court did not abuse its discretion.

The judgment of sentence is affirmed.

WIEAND, J., concurs in the result.

The case was decided prior to the expiration of SHERTZ, J.’s commission of office.

      . 18 Pa.Cons.Stat.Ann. § 3301(a) (Purdon 1976).

      . Under 18 Pa.Cons.Stat.Ann. § 3301(a) (Purdon 1976), arson is a felony of the first degree punishable by a maximum of 20 years imprisonment and/or a $25,000 fine.

      . 18 Pa.Cons. Stat.Ann. § 3502 (Purdon 1979).

      . 18 Pa.Cons.Stat.Ann. § 3921(a) (Purdon 1976).

      . The Theft offense merged with the Burglary conviction, 18 Pa.Cons. Stat.Ann. § 3502(d) (Purdon 1979).

      . Under 18 Pa.Cons.Stat.Ann. § 3502 (Purdon 1979), burglary is a felony of the first degree punishable by a maximum of 20 years imprisonment and/or a $25,000 fíne.

      . The lower court improperly failed to set forth its reasons for the sentences at the time of their imposition, as required; Commonwealth v. Cappiello, 284 Pa.Super.Ct. 476, 426 A.2d 146 (1981); Commonwealth v. Young, 272 Pa.Super.Ct. 82, 414 A.2d 679 (1979), but did so in its opinion filed subsequently. However, Appellant has waived any claim of error, having failed to raise any objection thereto at the time of sentencing or in his Petition for Reconsideration of the sentence. Commonwealth v. Turecki, 278 Pa.Super.Ct. 511, 420 A.2d 658 (1980).

      . Parole violations: (1) Failure to attend Alcohol Impaired Driver program from May 21, 1979 to June 25, 1979, N.T. at 4; (2) Failure to give notice to probation office of change of address and of the fact he had left his employment, N.T. at 5.


author: WATKINS, Judge:

text:
    441 A.2d 410
    COMMONWEALTH of Pennsylvania v. Andrew BELZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed Feb. 5, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Criminal Division, and involves defendant-appellant’s appeal from a conviction of 18 Pa.C.S.A. 5506 (loitering and prowling). Defendant claims that the evidence produced at trial is insufficient to support the verdict.

At trial, a Jill Seiple testified that she awoke at approximately 2:00 A.M. on August 23, 1979 while in her home on Montour Street in Philadelphia, Pennsylvania. She heard someone outside her home walking and coughing. Looking outside the home she observed the defendant walk South on the sidewalk of Montour Street and turn into a dead end driveway which was located between her home and the rear yards of other homes. She watched the defendant walk along a driveway, using a flashlight, and then walk back and enter the rear yard of a neighbor’s property. Entry was gained through a metal gate which was opened quickly by the defendant. The witness then observed the defendant at a shed in the neighbor’s yard. At that point she telephoned the police since the defendant was a stranger to her. The police responded shortly before 3:00 A.M. Officer Walter Meredith observed the defendant near Seiple’s home. As the officer approached, the defendant attempted to dispose of the flashlight by placing it into a mailbox. The officer then arrested the defendant and searched him, recovering a knife, and retrieved the flashlight. He then brought the defendant to Seiple who identified him. Defendant was charged with loitering and prowling at night time and possession of an instrument of crime (the knife). He was convicted of the first charge and acquitted of the second after his trial in Municipal Court. He then appealed the first charge to the Court of Common Pleas of Philadelphia County which affirmed his conviction. This appeal followed.

The offense of loitering and prowling at night time is defined as follows:

“Whoever at night time maliciously loiters or maliciously prowls around a dwelling house or any place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor of the third degree.” 18 Pa.C.S.A. 5506.

Defendant claims that the evidence produced at trial is insufficient to support the verdict. He admits that the Commonwealth proved that he entered onto private property at night time but argues that the record does not indicate that he “loitered” or “prowled” or that his conduct was “malicious”.

“Malicious”, as used in the instant statute, means an intent to do a wrongful act or having as its purpose injury to the privacy, person, or property of another. Com. v. Bean, 36 Leh.L.J. 350 (1975); Com. v. Dial, 445 Pa. 251, 285 A.2d 125 (1972). To “loiter” is “to stand around or move slowly about; to spend time idly; to saunter; to delay; to linger; to lag behind”. To “prowl” is “to rove or wander over in a stealthy manner; to pace or roam furtively”. Com. v. DeWan, 181 Pa.Super. 203, 124 A.2d 139 (1956).

The Act in question “is intended to punish not only those persons who at night are bent on peeping into the private affairs of citizens in their dwellings, but also those persons who are found at or near dwellings without lawful purpose or reason and whose presence can only be explained in some preparation for or attempt at illegality or crime.” Com. v. DeWan, Supra. In Com. v. DeWan, the defendant was apprehended at 7:30 P.M. in a passageway between a nurses’ home and the fence line of the property next door. Two nurses had heard the snapping of leaves and twigs outside, had seen a figure in the passageway, and had called police. When the police arrived at the scene they heard a “thump”, observed a person on the ground and apprehended the defendant. Defendant’s conviction for loitering and prowling at night time was upheld. In Com. v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974), the defendant entered the rear fire tower of St. Joseph’s Hospital in Philadelphia at 9:25 P.M. after the end of visiting hours. A nurse heard a noise in the tower, called police, and defendant was found by them in the fire tower at 9:30 P.M. His conviction for loitering and prowling at night time was also upheld. In that case the court held that although penal statutes must be strictly construed, it is not required “that the words of a criminal statute be given their narrowest meaning or that the lawmaker’s evident intent must be disregarded”.

In the instant case the defendant was observed at 2:00 A.M. in a private passageway beside Ms. Seiple’s dwelling house. He then walked to a neighbor’s side, unlocked a gate, entered the yard, and approached a shed in the yard. When apprehended by police he attempted to hide the flashlight he was carrying and had a knife in his possession. Accepting the evidence in the light most favorable to the verdict winner as we must, we find that the Commonwealth produced sufficient evidence at trial to permit the fact finder to determine that the defendant was maliciously loitering and prowling at or around a private dwelling house during the predawn hours of August 23, 1979. His actions surely had the effect of invading the property of others, at night time, and occurred at or near private dwelling houses. His actions in remaining in the private passageway and then entering the neighbor’s yard after unlocking the metal gate demonstrate that he “lingered” in the area. His attempt to conceal the flashlight from the police constituted the “furtive” behavior involved in the act of prowling. He also “roamed” or “wandered” through the private passageway and into the neighbor’s yard. Because all of the elements of the offense were proven, we hold that the court below did not err in refusing to overturn defendant’s conviction for insufficiency of evidence.

Judgment of sentence affirmed.