author: MONTEMURO, Judge:

text:
    604 A.2d 289
    Patricia A. SHAFFER, Appellant, v. PROCTER & GAMBLE, Vocational Rehabilitation Services of Scranton, Inc., Martin Joyce, III, Individually and Ann Marie Tinni, Individually.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Decided March 6, 1992.

      Peter G. Loftus, Scranton, for appellant.
    John J. Myers, Pittsburgh, for Procter & Gamble, appellee.

      Before ROWLEY, President Judge, and OLSZEWSKI and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order sustaining appellees’ preliminary objections in a worker’s compensation matter.

In May of 1989, appellant, a line worker of ten years standing with appellee Proctor and Gamble Paper Products Corporation (P & G) sustained a job related injury to her arm. The injury was reported, and appellant received medical treatment, including surgery. During the course of the various treatment modalities she underwent, appellant reported to work. However, time lost for the treatment was deducted from her vacation allotment, and was eventually regarded a disciplinary matter implicating appellant’s termination by P & G. Various measures were taken by P & G, allegedly in retaliation for appellant’s lack of responsibility: her shift was changed, interfering with her ability to receive medical care and to share transportation at a time when driving her own vehicle was difficult; she was threatened with termination, and harassed for demonstrating an uncooperative attitude.

Moreover, although appellant received payments under the Worker’s Compensation Act, 77 Pa.S.A. § 1 et seq. (the Act), these have allegedly been sporadic, and it is asserted that the bills submitted by appellant's medical providers have been denied payment by P & G’s Industrial Health and Hygiene Manager, appellee Martin Joyce III. Finally, appellant claims that appellee Anne Marie Tinni, a nurse/medical coordinator with appellee Vocational Rehabilitation Services of Scranton, Inc., cancelled appointments made by appellant with her physicians and other care providers, and that appellees collectively prevented her from receiving care at Magee Rehabilitation Hospital in Philadelphia, instead assigning her to a new, and in appellant’s estimation untried facility.

The basis for appellant’s claim is that the net result of appellees’ conduct, which as described by appellant can be easily characterized as egregious, was that she was denied adequate medical care and that her condition worsened.

In November of 1990, suit was commenced in the Court of Common Pleas of Wyoming County, alleging 1) discrimination against appellant on the basis of her disability in violation of the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.; 2) intentional infliction of emotional distress; 3) intentional interference with the contractual relationship between appellant and her health care providers; and 4) common law civil conspiracy. In separate counts, appellant also sought punitive damages from all appellees, and a ruling from the court that the Act is unconstitutional.

All save one of appellees’ preliminary objections were granted on grounds that the trial court was without jurisdiction to hear the case because appellant’s exclusive remedy was to be sought through enforcement of the Act. The count alleging tortious conduct by Martin Joyce III was sustained by the trial court. However, this count was dismissed by agreement of the parties to permit an appeal on what the trial court describes as the controlling issue of law, namely the application of the exclusivity provision of the Act. This appeal, presenting the same six claims, follows.

We first note that in determining the propriety of court action regarding preliminary objections in the nature of a demurrer,

we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts. Dercoli v. Pennsylvania National Mutual Insurance Co., 520 Pa. 471, 554 A.2d 906 (1989). Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible. Creeger Brick & Building Supply Inc. v. Mid-State Bank and Trust Co., 385 Pa.Super. 30, 560 A.2d 151 (1989). All doubts are resolved in favor of the pleader. Furthermore, by filing preliminary objections in the nature of a demurrer, appellees have admitted the factual allegations of the complaint for purposes of the demurrer. Id.

Ward v. Serfas, 387 Pa.Super. 425, 428-29, 564 A.2d 251, 252-53 (1989); Wolfe v. Porter, 405 Pa.Super. 385, 592 A.2d 716 (1991).

The crux of the matter before us is, as the trial court correctly determined, whether the exclusivity provision of the Worker’s Compensation Act, 77 Pa.S.A. § 481, bars civil actions based on intentional torts which proceed from work related injuries. We are compelled to find, for the reasons that follow, that such actions are indeed prohibited.

In what P & G, with some justification, characterizes as an attempt to avoid the consequences of a mis-administered worker’s compensation claim, appellant first argues that the trial court erred in refusing to find that the conduct of P & G toward her is compensable not under the the Worker’s Compensation Act, but constitutes discrimination against a handicapped person and as such may be redressed under the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (PHRA). Although under different circumstances P & G’s conduct might well constitute compensable discrimination, the PHRA covers only “non-job related handicaps or disabilities,” that is, those which “d[o] not substantially interfere with the ability to perform the essential functions of the employment.” 43 P.S. § 954(p). As appellant’s disability was and continues to be job related, she is, by definition, not among those protected by the PHRA. Therefore, as to P & G, and for the purposes of this particular claim, the applicability of the Act is a foregone conclusion.

Appellant’s next two issues assign error respectively to the trial court’s dismissal of her claims of intentional infliction of emotional distress, and intentional interference with a contractual relationship as against all appellees, P & G, Vocational Rehabilitation Services, Joyce, and Tinni. It is appellant’s argument that § 481 is inapplicable to both of these torts pursuant to § 72 of the Act.

§ 72. Liability of fellow employe
If disability or death is compensable under this act, a person shall not be liable at common law or otherwise on account of such disability of death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

Section 411 of the Act specifies, in defining what constitutes an “injury arising in the course of employment,” that the term does not include “an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment.” This provision has been interpreted to permit an employe to maintain a common law tort action against his employer

whenever his or her injury is the result of an attack or assault by a third person or fellow employe for reasons that are personal to the attacked and not connected with the victim’s employment. To fit within this exception, the third party’s or fellow employe’s act must have been motivated by his animosity against the injured employee. If the third party would have attacked a different person in the same position as the injured employee, the attack falls outside the “third party attack” exception.

Vosburg v. Connolly, 405 Pa.Super. 121, 126-27, 591 A.2d 1128, 1131 (1991) (emphasis in original).

It is appellant’s position that the intentional torts complained of were directed against her personally, were inflicted outside the scope of the tortfeasors’ employment, and therefore are permissible targets of legal action unaffected by the exclusivity provision of the Act.

We first note that there have been cases in which intentional torts were found by this court to lie outside the aegis of the exclusivity provision, e.g., Schweitzer v. Rockwell International, 402 Pa.Super. 34, 586 A.2d 383 (1990); Noyes v. Cooper, 396 Pa.Super. 592, 579 A.2d 407 (1990); McGinn v. Valotti, 363 Pa.Super. 88, 525 A.2d 732 (1987), appeal denied 517 Pa. 618, 538 A.2d 500; Boris v. Liberty Mutual Insurance Company, 356 Pa.Super. 532, 515 A.2d 21 (1986); However, in Alston v. St. Paul Insurance Companies, 389 Pa.Super. 396, 567 A.2d 663 (1989), which most closely approximates the factual situation now before us, an en banc panel of this court held unequivocally that

The legal immunity which is afforded to employers and their compensation insurers extends not only to acts of negligence, but also to claims based on intentional, wanton and willful misconduct, such as those advanced before us today.

Id., 389 Pa.Superior Ct. at 405, 567 A.2d at 667.

This line of reasoning follows the prescription of our Supreme Court in Kuney v. PMA Insurance Company, 525 Pa. 171, 578 A.2d 1285 (1990); Barber v. Pittsburgh Corning Company, 521 Pa. 29, 555 A.2d 766 (1989); Poyser v. Newman & Company, 514 Pa. 32, 522 A.2d 548 (1987), and of this court in Rosipal v. Montgomery Ward, 360 Pa.Super. 570, 521 A.2d 49 (1987), alloc. granted 516 Pa. 635, 533 A.2d 93 (1987), appeal dismissed 517 Pa. 460, 538 A.2d 495 (1988). However, as the court in Vosburg, supra, aptly points out, a blanket statement denying the existence of an intentional tort exception the Act is not finally dispositive, since in claims such as appellant’s the pertinent inquiry is whether the assault or attack which is the intentional injury arose out of “personal or business related animosity.” Id. 405 Pa.Super. at 127 n. 3, 591 A.2d at 1131 n. 3. As our supreme court has recently held, “When the allegations of a claim have as their ultimate basis an injury compensable under the Workman’s Compensation Act, the claim must be considered within the framework of the statute.” Kuney, supra 525 Pa. at 176, 578 A.2d at 1287. As the appellant’s claims in Kuney approximated those advanced by appellant herein, we conclude that the exclusivity provision governs, irrespective of earlier cases which seem to direct otherwise.

Even viewed in the light most favorable to appellant, the facts as alleged in this case demonstrate that it was appellant’s injury, her subsequent medical treatment, and her eventual refusal to cooperate with P & G’s unreasonable demands which resulted in the vindictive, malicious and persecutory treatment she received. It is equally clear that while this conduct is appalling, it is nevertheless job related, and that any employee in a similar situation might have received similar attentions from appellees. For recovery, therefore, she is constrained to resort to the Act.

Appellant’s claim of civil conspiracy among and between the appellees is premised on the notion that appellees’ actions were designed to prevent her from exercising her rights under the Act.

To prove a civil conspiracy, it must be shown that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means. See Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335 (1971); Fife v. Great Atlantic and Pacific Tea Co., 356 Pa. 265, 52 A.2d 24 (1947); Bausbach v. Reiff, 244 Pa. 559, 91 A. 224 (1914); Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498 (1974). Proof of malice, i.e., an intent to injure is essential in proof of a conspiracy. Miller v. Post Publishing Co., 266 Pa. 533, 110 A. 265 (1920); Miller v. Harvey, 215 Pa. 103, 64 A. 330 (1906); Irvine v. Elliott, 206 Pa. 152, 55 A. 859 (1903). This unlawful intent must be absent justification. The test was stated in Rosenblum v. Rosenblum, 320 Pa. 103, 108-9, 181 A. 583, 585 (1935):
Assume that what is done is intentional, and that it is calculated to do harm to others. Then comes the question, Was it done with or without “just cause or excuse”? If it was bona fide done in the use of a man’s own property * * * such legal justification * * * would exist not the less because what was done might seem selfish or unreasonable. * * * But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one’s own lawful gain, or the lawful enjoyment of one’s own rights.

Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466, 472 (1979).

The trial court held appellant’s civil conspiracy claim insufficient, being merely conclusory rather than presenting facts. We, too, find that it fails to satisfy the applicable standard for pleading. Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335 (1971). Moreover, even had the complaint supplied the requisite quantum of facts, the underlying theme of the conduct complained of may be easily understood in terms of P & G’s concern for its own economic interests, however reprehensible its mode of self preservation.

Additionally, as the trial court points out, appellant accuses two of the conspirators, Joyce and Tinni, of acting outside the scope of the authority granted them by their employers. (See T.C.O. at 11) If, following appellant’s argument, P & G did not agree with Vocational Rehabilitation Services to act unlawfully, nor did the two companies agree to instruct their respective employees to act as they did, no conspiracy is possible at least as to the corporate bodies involved here. Even if the allegation applies only to Joyce and Tinni, appellant has failed to state facts necessary to make out her claim.

Finally, appellant argues that the exclusivity provision of the Act is violative of her right of access to the courts under Article I, Section II of the Pennsylvania Constitution, and of the equal protection clause of the Fourteenth Amendment to the United States Constitution. As appellant also makes clear, she is aware that our Supreme Court has reached a contrary conclusion in Tsamas v. Jones and Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980). However, she implies that because our supreme court in Kline v. Arder H. Verner Company, 503 Pa. 251, 469 A.2d 158 (1983), noted that the legislature could alter the Act, its constitutionality is suspect. The fact that a statute may be altered by the legislative does not affect its constitutional validity.

In short, appellant’s remedy is limited to that provided by the Act. However, having so concluded, we note that despite the merits of the Act and the certainty it offers, behavior such as that demonstrated by appellees in this case would, if supportable, offer a powerful argument in favor of revisions to the Act. We cannot believe that the Act was intended not merely to overlook, but to countenance abuse and persecution.

Order affirmed.

      . 77 P.S. § 481(a) reads in pertinent part as follows:
      (a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any section at law or otherwise on account of injury or death.

      . We note that although this issue is recognized by the trial court, it is nowhere specifically addressed. However, we may affirm where the judgment of the trial court is supportable on any legal ground or theory. Van Mastrigt v. Delta Tau Delta, 393 Pa.Super. 142, 573 A.2d 1128 (1990); Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984).

      . Given the applicability of the exclusivity provision, we need not address the issue of punitive damages.

      . The counts against Martin Joyce III describing intentional torts were the only ones sustained by the trial court, which strongly implies that Joyce’s actions were outside the scope of his employment, per McGinn v. Vallotti, 363 Pa.Super. 88, 525 A.2d 732 (1987). However, no reason was supplied for distinguishing between Joyce and Ann Marie Tinni, the nurse/medical coordinator monitoring appellant’s claim, who is accused of the same actions. Given the parties’ agreement to drop the surviving claims against Joyce so as to expedite this appeal, we need not explore this matter further.


source: Caselaw Access Project

author: BECK, Judge: WIEAND, Judge,

license: Public Domain

text:
    604 A.2d 703
    G.C.G. MANN-HOFF and Gerald P. Hofmann v. Eric D. BOYER and Susan J. Boyer, Appellants.
    Superior Court of Pennsylvania.
    Argued May 23, 1991.
    Filed Feb. 20, 1992.
    Reargument Denied April 16, 1992.

      Joseph J. Zapitz, Morrisville, for appellants.
    Ronald R. Bolig, Telford, for appellee.
    Before WIEAND, BECK and HUDOCK, JJ.
   BECK, Judge:

This is an appeal from a final decree in equity recognizing that plaintiffs-appellees, G.C.G. Mann-Hoff and Gerald Hofmann, have an easement of access to certain parking spaces on the residential property of defendants-appellants, Eric and Susan Boyer, and enjoining appellants from interfering with that easement. The trial court found that the easement arose by implication. We reverse on the ground that the standard for finding an easement by implication was clearly not met in this case.

The facts as revealed by our careful review of this record are as follows. Appellees (hereinafter referred to as “Hofmann”) are the owners of realty at 141 North Main Street, Telford, Pennsylvania. They operate a tavern on that property. Appellants are the owners of realty at 147 North Main Street, Telford, which they use as their residence. The two properties are immediately adjacent to one another and at one time both had been owned by Steve and Marie Burch. The Burches purchased the properties in 1955 and 1959. At that time there was a stone or gravel lot behind the tavern and a lawn behind the residence. Around 1964, the Burches had the gravel area behind the tavern paved over and also had a portion of the lawn behind the residence paved. The Burches used this paved area for parking of their own cars and those of their family and friends, as well as making it available for the patrons of the tavern to park when the Burches did not need it.

In early 1974, the Burches sold their tavern at 141 North Main Street to Edward and Earlene Grubb. The Burches did not sell the residence. The Grubbs continued to use the property as a tavern. In the Agreement of Sale between the Burches and the Grubbs, the following provision appeared:

License. Seller hereby grants to Buyer the exclusive privilege of using the additional footage of approximately ten feet on Seller’s residential property as a parking lot. Nothing in this privilege shall interfere with the right of Seller to sell said property provided in such case the Buyer shall be given ten (10) days’ notice to vacate such property____

The deed transferring the property to the Grubbs did not contain a reference to this revocable license or to any other arrangement between the parties regarding the parking area behind the residence. The Grubbs testified that in actual practice, their patrons parked at various places all over the paved area behind the two properties, but that the Burches and their family and friends also regularly parked in the area behind the residence. In fact, the Grubbs testified without contradiction that whenever the Burches needed the parking spaces behind the residence, they would ask the Grubbs to have the tavern patrons parked there to move their cars and the cars would immediately be moved.

In 1981, the Grubbs entered into a lease-purchase option agreement with appellee Hofmann. Hofmann immediately began to operate the tavern and actually purchased the tavern property in 1983. Hofmann never spoke to the Burches concerning any rights he might have in parking in the area behind the Burches’ residence prior to acquiring the tavern property. He testified that the Burches have never told him that his patrons could park there, but he thought it was “implied”. He also testified that when he bought the property he knew that the Burches and their family and friends used the spaces behind the residence. Mrs. Grubb testified that she told Hofmann that the parking area behind the residence was not owned by the Grubbs, that they were not conveying it to Hofmann with the tavern property, and that she was aware that the Burches had put the residential property, including the parking area behind it, up for sale. Hofmann also stated that he had on at least two occasions offered to buy the parking area behind the residence from the Burches, who had refused his offers.

Hofmann’s patrons did park in both the area behind the tavern and behind the Burches’ residence. The Burches and their family and friends also continued to park there during the time Hofmann owned the tavern. The Burches testified that they simply never objected to Hofmann’s patrons parking there when spaces were available.

This dispute arose when, on July 14, 1989, the Burches conveyed the residence to appellants, the Boyers. The day before the closing, the Burches delivered to Hofmann a notice stating that effective immediately all arrangements, oral or otherwise, for parking by Hofmann’s patrons behind the residence were terminated due to the sale of the property. Immediately upon purchasing the residence, the Boyers placed protective parking curbs on the area behind the residence to prevent parking by tavern patrons.

Hofmann instituted this equity action on August 15,1989, seeking a permanent injunction against the Boyers interfering with his patrons’ right to park in the area behind the residence and claiming that he had an easement as to that area. Testimony at the hearing revealed the facts as set forth above. It also revealed, through testimony from Mr. Boyer, that the Boyers were told on purchasing the property that the paved area behind the property was part of the property they were buying, which it was. Mr. Boyer also stated that he and his wife did not wish to allow patrons of the tavern to park behind the residence for three reasons. First, the residence had no other parking. There is no parking allowed in front of the residence on North Main Street and the back of the property is on an alley where no parking is possible. Second, the Boyers have young children who might be endangered by the patrons of the tavern driving through and parking in the paved area behind the residence. Third, the Boyers may wish to start a retail business in one area of the residence and would need the parking area themselves.

The trial court, after hearing the foregoing evidence, found that Hofmann had an easement arising by implication as to the parking area behind the residence and entered the following permanent injunction:

____ Defendants [Boyers] are Ordered and Directed to remove any existing obstructions from the paved parking lot located behind properties at 141 and 147 North Main Street, Telford, Bucks County, Pennsylvania and are enjoined from placing, installing, constructing or erecting any obstructions to Plaintiffs’ free access thereto.

The trial court based this conclusion on a legal analysis that appears to be an admixture of the concepts of easement by implication and easement by prescription. The court found that the Burches, the original common owner of the two parcels, had subjected the lot behind the residence to the burden of parking on behalf of the tavern property in an “open, continuous and visible” manner, which was then continued by the Grubbs and Hofmann, and which, in the trial court’s opinion, thereby became “a permanent use.” The court further found that the revocable license granted by the Burches to the Grubbs in their Agreement of Sale, which specifically said that the right of tavern patrons to park behind the residence would terminate on sale of the residence, could not affect Hofmann’s rights because it was not in the deed to the Grubbs and, therefore, no record notice of it was provided to Hofmann. Lastly, the trial court concluded that in this case, there was no permission granted by the Burches as to the use of the parking area behind the residence, but rather that they had subjected that area to parking by tavern patrons in an “open, actual, continuous and hostile” manner for over 21 years. This reasoning appears to have convinced the trial court that Hofmann has an easement to this area, if not by implication, then by prescription.

We are mindful that we are engaged in the review of a trial court’s decision to enter a permanent injunction. As such, our scope of review is limited to determining whether the chancellor committed an error of law or abused his discretion. We are, of course, bound by the trial court’s findings of fact unless they are unsupported by the evidence or demonstrably capricious. Roberson v. Davis, 397 Pa.Super. 292, 580 A.2d 39, 40 (1990); Purdy v. Zaver, 398 Pa.Super. 190, 580 A.2d 1127, 1130 (1990). However, we are not bound by the trial court’s legal conclusions, or the conclusions the trial court has drawn from the facts, since these are merely the products of the trial court’s reasoning. See Van Products Co. v. General Welding & Fabricating Co., 419 Pa. 248, 213 A.2d 769 (1965).

In addition, we note that the burden imposed on a party seeking an injunction is heavy indeed. The remedy is an extraordinary one, which may not be given except in those rare situations where “... the rights and equity of the plaintiff are clear and free from doubt and the harm sought to be remedied is great and irreparable.” Cannon Brothers, Inc. v. D’Agostino, 356 Pa.Super. 286, 514 A.2d 614, 617 (1986). Moreover, “[t]he law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly.” Becker v. Rittenhouse, 297 Pa. 317, 325, 147 A. 51 (1929).

In this case, the trial court concluded that appellee Hofmann had met his heavy burden of showing a clear right to the use of the parking area behind appellants’ residence by showing that an easement by implication, and perhaps even an easement by prescription, had arisen. We, on the other hand, view this as a case where neither the Grubbs nor Hofmann ever had any more than a permissive use of this parking area and we find that such use never ripened into an easement.

The trial court relied upon the Supreme Court’s opinion in Burns Manufacturing Co., Inc. v. Boehm, 467 Pa. 307, 356 A.2d 763 (1976), to justify its finding of an easement by implication. In Bums, the Court stated:

It has long been held in this Commonwealth that although the language of a granting clause does not contain an express reservation of an easement in favor of the grantor, such an interest may be reserved by implication, and this is so notwithstanding that the easement is not essential for the beneficial use of the property. The circumstances which will give rise to an impliedly reserved easement have been concisely put by Chief Justice Horace Stem speaking for the Court in Tosh v. Witts [381 Pa. 255, 113 A.2d 226], supra:
“[W]here an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be, and this irrespective of whether or not the easement constituted a necessary right of way.” Tosh v. Witts, supra, 381 Pa. at 258, 113 A.2d at 228.

Id. 467 Pa. at 313-14, 356 A.2d at 767 (some citations omitted).

Although the foregoing language conveys a brief summary of the concept of easement by implication, other Pennsylvania cases not cited by the trial court provide a much more detailed description of this concept. We find the following statement of the proper method of analyzing a claim of easement by implication particularly elucidating:

In deciding whether an easement has been created by implication, the Pennsylvania courts have used two different tests, the traditional test and the Restatement test.

The traditional test has been described as follows: “Three things are regarded as essential to create an easement by implication on the severance of the unity of ownership in an estate; first, a separation of title; second, that, before the separation takes place, the use which gives rise to the easement, shall have been so long continued, and so obvious or manifest, as to show that it was meant to be permanent; and third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained. To these three, another essential element is sometimes added, — that the servitude shall be continuous and self-acting, as distinguished from discontinuous and used only from time to time.”

Id. [297 Pa.] at 345, 147 A. at 53. See also DePietro v. Triano, 167 Pa.Super. 29, 31-32, 74 A.2d 710-11 (1950).

The view expressed in the RESTATEMENT OF PROPERTY § 474, and expressly adopted in Pennsylvania in Thomas v. Deliere, 241 Pa.Super. 1, 359 A.2d 398 (1976), “emphasizes a balancing approach, designed to ascertain the actual or implied intention of the parties. No single factor under the Restatement approach is dispositive. Thus, the Restatement approach and the more restrictive tests ... co-exist in Pennsylvania.” Id., 241 Pa.Superior Ct. at 5 n. 2, 359 A.2d at 400 n. 2. See also, Lerner v. Poulos, 412 Pa. 388, 194 A.2d 874 (1963); Schwoyer v. Smith, 388 Pa. 637, 131 A.2d 385 (1957); Spaeder v. Tabak, 170 Pa.Super. 392, 85 A.2d 654 (1952).

In the RESTATEMENT OF PROPERTY § 476, the following factors are designated as important in determining whether the circumstances under which a conveyance of land is made can imply an easement:

(a) whether the claimant is the conveyor or the conveyee,

(b) the terms of the conveyance,

(c) the consideration given for it,

(d) whether the claim is made against a simultaneous conveyance,

(e) the extent of necessity of the easement to the claimant,

(f) whether reciprocal benefits result to the conveyor and the conveyee,

(g) the manner on which the land was used prior to its conveyance, and

(h) the extent to which the manner of prior use was or might have been known to the parties.

Owens v. Holzheid, 335 Pa.Super. 231, 484 A.2d 107 (1984) (Montemuro, J., dissenting). This court has further stated that an easement by implication can only be found “where the intent of the parties is clearly demonstrated by the terms of the grant, the surroundings of the property and other res gestae of the transaction.” See Hann v. Saylor, 386 Pa.Super. 248, 251-52, 562 A.2d 891, 893 (1989); Buffington v. Buffington, 390 Pa.Super. 61, 568 A.2d 194 (1989); Tomlinson v. Jones, 384 Pa.Super. 176, 557 A.2d 1103 (1989).

In light of these principles, we conclude that Hofmann has not acquired an easement by implication to the parking area behind the residence. Whether we apply the traditional approach or the Restatement test, under either analysis Hofmann’s claim clearly fails.

First, we note that the pertinent time on which to focus under either test for an easement by implication is the time of conveyance of one of these two parcels from their then common owner, the Burches, to the Grubbs. That was when the two parcels first became separately owned and, therefore, it is only upon this conveyance that an easement by implication could have been created. The concept of implied easement at issue in this case rests on determining whether an easement can be found to have been impliedly conveyed when one of two co-owned properties is conveyed without the other and there has, therefore, been a “separation of title.” See Buffington v. Buffington, 390 Pa.Super. 61, 568 A.2d 194, 199 (1989).

We begin by applying the traditional test. This test requires that Hofmann prove that at the time of separation of title, there was an open, visible, continuous and permanent use of the alleged easement, and that the easement is necessary to the beneficial enjoyment of the property conveyed. Hofmann has failed to prove the requisite use and there is an equal paucity of evidence on necessity. The deed to the Grubbs did not expressly create an easement. On the question of whether the use was open, visible, continuous, and permanent we recognize that the conduct of the Burches when they owned and operated the tavern clearly did suggest a continuous, open and visible use of the parking area behind the residence for the benefit of the tavern. However, there is no suggestion from this record that the use was intended to or had become permanent. When the Burches conveyed the property to the Grubbs, they specifically agreed that the use was not permanent. In their Agreement of Sale, they agreed that the Grubbs would have the right to use the parking area only until the residence was sold. Neither the Burches nor the Grubbs testified that either party to the conveyance intended that the use of the parking area for the benefit of the tavern would be permanent. It was permissive only, granted pursuant to a revocable license in the Agreement of Sale and terminable by the Burches when the residence was sold.

In addition, we note that this record is all but devoid of evidence of necessity. In this case, the record reveals that the tavern has its own nine or ten parking spaces in the lot behind it and there is municipal parking close by. Mr. Grubb testified without contradiction that some of his patrons at the tavern did indeed park at the municipal lot and that whenever the Burches asked him to, he had his patrons move their cars to another location. We see no indication that either the Grubbs’ or Hofmann’s beneficial enjoyment of the tavern property is dependent on access to the additional seven parking spaces behind the residence.

We are, of course, aware that the trial court found as a fact that Hofmann needed access to these seven additional parking spaces in order “to properly and economically run [his] business” and that without them, Hofmann would suffer irreparable harm. There is no evidence to support this finding. Indeed, at the first and comprehensive hearing in this matter, the trial court itself stated that it had heard no evidence of irreparable harm. At the second and last hearing, Hofmann presented no additional evidence and the only testimony heard, from Mrs. Burch and Mrs. Boyer, was not at all relevant to irreparable harm.

Turning to the more flexible balancing approach of the Restatement, it is even more clear that no easement by implication arose from the conveyance from the Burches to the Grubbs. This test focuses entirely upon ascertaining the intent of the parties. See Thomas v. Deliere, 241 Pa.Super. 1, 359 A.2d 398 (1976). In applying the eight factors of this test, which are set forth above, we note first that the parties to the conveyance from the Burches to the Grubbs have all uniformly stated that they did not understand the tavern property to have the benefit of an easement as to the parking area behind the residence. They all intended and understood that the Burches were not conveying an easement to the Grubbs, which would run with the tavern property and continue after the Grubbs conveyed it, but rather were granting them a revocable license — i.e., permission to use the parking area until and unless the residence was sold. Therefore, we need not consider in any great detail the remaining factors of the Restatement test as they apply here. It is sufficient to say that none of the factors can overwhelm the clear evidence of the intent of the conveyor and conveyee found in the Agreement of Sale and further supported by their testimony.

We do add, nevertheless, that even a cursory analysis of the Restatement factors only buttresses our conclusion that no easement by implication has been proven. For example, as this court has stated, the most important of the factors is the degree of necessity of the claimed easement to the use of the land of the claimant. See Thomas v. Deliere, 241 Pa.Super. at 4, 359 A.2d at 399 (citing comment g to Restatement, Property § 476). See also Flaherty v. DeHaven, 302 Pa.Super. 412, 448 A.2d 1108 (1982). As we have previously determined, there is no evidence of necessity here.

The trial court states that the Agreement of Sale between the Burches and the Grubbs did not act as notice to Hofmann because it was not recorded; therefore, Hofmann can not be charged with notice of the fact that the Grubbs had only a revocable license to the parking area behind the residence and, therefore, could not convey to Hofmann any easement therein. In fact, Hoffman was aware of the limited use of the parking area by the Grubbs. The record reveals that the Grubbs orally informed Hofmann. Also, Hofmann’s own actions in making offers to buy the parking area are consistent with showing that even without any knowledge of the terms of the agreement of sale, Hofmann knew full well that the conveyance from the Grubbs did not include an easement. Hofmann testified that the Burches never spoke to him regarding the parking area. Therefore, he had no knowledge of how the Burches themselves had used that area when they owned the tavern. Moreover, Mrs. Grubb testified without contradiction that she told Hofmann that the Grubbs did not own the parking area and could not convey it to him, that he could use it when it was not in use by the Burches, and that the Burches were then trying to sell their residence. The trial court’s conclusion that Hofmann is not chargeable with knowledge of the fact that he had only a permissive use of this area, which is all the Grubbs ever had, is inconsistent with this record.

We conclude that there is no evidence of anything more than a permissive use by Hofmann of the parking area behind the residence which was terminated when the Burch-es so notified Hofmann upon the sale of the residence to the Boyers. It was error for the trial court to transform this permissive use into an absolute right of use in the form of an easement. We further note that the trial court’s decree in this case actually expanded Hofmann’s rights to this parking area beyond the scope of any of the prior tavern owner’s rights. The trial court’s decree prohibits the Boyers from interfering in any way with Hofmann’s access thereto. Neither the Burches or the Grubbs ever provided their tavern patrons unlimited access to the parking area behind the residence. It was available to tavern patrons only when persons coming to the residence had no need of those parking spaces. The trial court’s decree gave Hofmann unlimited use, thereby expanding his rights beyond those he would have had even if he had established the easement by implication that he asserted.

The trial court’s order is reversed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

This is a very difficult case. In reversing the decree entered by the trial court, the majority has made out a far better case for appellants than they were able to make out for themselves. In doing so, however, the majority has made its own review of the evidence and has determined factually that an easement by implication was not intended by the parties. Therefore, it reverses the trial court’s determination that the parties did intend to create an easement by implication. Although this is a mixed question of law and fact, I am of the opinion that the majority has usurped the fact finding function of the trial court.

In 1955, Stephen and Marie Burch purchased premises known as 141 North Main Street, Telford, Bucks County, where they conducted a tavern business. In 1959, they purchased the adjoining premises at 147 North Main Street. This lot had a frontage on North Main Street of sixty-three feet and contained a dwelling house, which the Burches used as their residence. Between 1959 and 1963, the Burch-es paved an area behind 141 North Main Street and behind a portion of 147 North Main Street, which they used as a parking lot for patrons of the tavern. In 1974, the Burches sold the tavern business and conveyed the tavern at 141 North Main Street to Edward G. Grubb and Earlene Grubb, husband and wife, who continued to operate the tavern. In 1981, the Grubbs sold the tavern business and granted a lease option for the tavern property to Gerald P. Hofmann, who incorporated the tavern and later exercised the option to buy the real estate. Between 1974 and 1989, the patrons of the tavern continued to use the entire paved parking lot to park their cars. The Borough of Telford prohibited and continues to prohibit parking on North Main Street. On July 14, 1989, the Burches conveyed the residence at 147 North Main Street to Eric D. and Susan J. Boyer, who immediately notified Hofmann that parking at the rear of their property would no longer be permitted. The Boyers also placed protective parking curbs which prevented cars from being parked on their property. Hoffman sued for equitable relief. The trial court concluded that Hofmann had an implied easement to use the paved lot at the rear of 147 North Main Street for parking by his patrons.

In Burns Manufacturing Co. v. Boehm, 467 Pa. 307, 356 A.2d 763 (1976), the Pennsylvania Supreme Court articulated the applicable principle of law as follows:

[W]here an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be, and this irrespective of whether or not the easement constituted a necessary right-of-way.

Id., 467 Pa. at 314, 356 A.2d at 767, quoting Tosh v. Witts, 381 Pa. 255, 258,113 A.2d 226, 228 (1955). See also: Owens v. Holzheid, 335 Pa.Super. 231, 238, 484 A.2d 107, 111 (1984); Restatement of Property § 474. In other cases, however, the courts have said that the rule merely creates an inference that an easement by implication was intended by the parties. This inference can be rebutted by evidence of circumstances showing a contrary intent. Thus, in Lerner v. Poulos, 412 Pa. 388, 194 A.2d 874 (1963), the Court said: “The determination of the existence or creation of an implied easement depends upon the intention of the parties as inferred from the circumstances existing at the time of the severance of the tract.” Id., 412 Pa. at 392, 194 A.2d at 876. See also: Schwoyer v. Smith, 388 Pa. 637, 643, 131 A.2d 385, 388-389 (1957); Restatement of Property § 474, comment b. The rationale for this approach has been stated in comment a to Section 476 of the Restatement of Property, as follows:

a. Rationale. An easement created by implication arises as an inference of the intention of the parties to a conveyance of land. The inference is drawn from the circumstances under which the conveyance was made rather than from the language of the conveyance. To draw an inference of intention from such circumstances, they must be or must be assumed to be within the knowledge of the parties. The inference drawn represents an attempt to ascribe an intention to parties who had not thought or had not bothered to put the intention into words, or perhaps more often, to parties who actually had formed no intention conscious to themselves. In the latter aspect, the implication approaches in fact, if not in theory, crediting the parties with an intention which they did not have, but which they probably would have had had they actually foreseen what they might have foreseen from information available at the time of the conveyance. In determining implications of this character, the tendency is to isolate and to assign a specific value to such factors as frequently recur. Thus, it may be said that where the factor of necessity exists a particular implication arises. Properly, however, the implication involves a consideration of all the factors present. They are variables rather than absolutes. None can be given a fixed value. Each affects the decision as to the implication arising from all in a different degree in different situations.

Some of the important factors to be considered have been identified by Section 476 of the Restatement as follows:

(a) whether the claimant is the conveyor or the conveyee,
(b) the terms of the conveyance,
(c) the consideration given for it,
(d) whether the claim is made against a simultaneous conveyee,
(e) the extent of necessity of the easement to the claimant,
(f) whether reciprocal benefits result to the conveyor and the conveyee,
(g) the manner in which the land was used prior to its conveyance, and
(h) the extent to which the manner of prior use was or might have been known to the parties.

Thus, each decision must depend on the facts and circumstances surrounding the conveyance separating the larger tract into parts by the common owner. As such, the finding of facts by the trial court assumes great significance. The rule of law suggesting an easement by implication is not to be applied absolutely but must depend on all the circumstances.

Here, the majority finds the inference of an easement to be rebutted by a provision in the agreement by which the Burches agreed to convey the tavern property to the Grubbs. This provision was as follows:

Seller hereby grants to Buyer the exclusive privilege of using the additional footage of approximately ten feet (10') on Seller’s residential property as a parking lot. Nothing in this privilege shall interfere with the right of Seller to sell said property provided in such case the Buyer shall be given ten (10) days’ notice to vacate such property.

The terms of the agreement, to be sure, constitute a factor to be considerfed. See: Lerner v. Poulos, supra. However, the trial court’s opinion discloses that the fact finder considered this provision in the agreement of sale but did not consider it sufficient to rebut the inference of an easement by implication from other circumstances.

As a general rule, an agreement of sale merges into the deed conveying the premises. Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972); Stoever v. Gowen, 280 Pa. 424, 124 A. 684 (1924). The deed from the Burches to the Grubbs in this case did not contain language similar to that contained in the agreement of sale. Indeed, the deed contained no reference whatsoever to that portion of the paved parking lot which lay to the rear of the grantor’s residence. The trial court concluded, therefore, that the parties’ agreement was insufficient to rebut the inference arising from the circumstances. To hold otherwise would have been to hold subsequent purchasers of the tavern property captive to the terms of the secret, unrecorded agreement of sale between the Burches and the Grubbs.

The parking easement behind the residential property was evidenced by a paved lot which had been used continuously by the patrons of the tavern until parking was rendered impossible by the Boyers. Therefore, the parking easement was open, visible, permanent and continuous. I cannot agree with the majority’s conclusion that the easement was not permanent. In my judgment, a paved parking lot evidences a use of the servient tenement which is every bit as permanent as a paved roadway.

I must also disagree with the majority’s conclusion that the record is devoid of evidence of necessity. Absolute necessity is not necessary to the creation of an easement by implication. It is enough “that the easement [be] convenient or beneficial to the dominant estate.” Hann v. Saylor, 386 Pa.Super. 248, 251 fn. 1, 562 A.2d 891, 893 fn. 1 (1989). Here, the parking lot was an adjunct of the tavern, necessary to accommodate the patrons thereof. Parking on the street in front of the tavern had been prohibited by ordinance. This evidence established that the parking lot was necessary to the full enjoyment of the tavern property, which was the dominant estate. I find no basis, therefore, for disturbing the trial court’s finding that the parking lot was necessary in order to properly and economically run the tavern business.

The trial court determined that an easement in the paved parking lot had been created by implication. The majority concludes, however, that the evidence shows nothing more than a license, terminable at the will of the owner of the servient estate. I must respectfully dissent. In my judgment, the evidence was sufficient to support the trial court’s finding that a parking easement was created by implication. Therefore, I would affirm the trial court’s order entering an injunction.

      . Mrs. Burch specifically testified that when she and her husband owned the two properties, the tavern patrons did not have unlimited access to the parking area behind the residence. Rather, the patrons could park there only if the Burches did not need the area for their personal use.

      . Although the trial court did not use the phrase "easement by prescription," its use of the standard of open and hostile use for 21 years suggests that this is the analysis the trial court was applying in this section of its opinion. See Keefer v. Jones, 467 Pa. 544, 359 A.2d 735 (1976). Since Hofmann never asserted an easement by prescription, and clearly could not on this record, we will not address this issue.

      . We note that there is another type of implied easement recognized in this Commonwealth. That is an easement implied from reference to a map or plate. See Potis v. Coon, 344 Pa.Super. 443, 496 A.2d 1188 (1985). Such an implied easement is not at issue here.

      . We recognize that the language quoted above from the Bums opinion does not require that the proponent of an easement by implication show that the claimed easement was "necessary". This appears to conflict with other statements of the traditional test and with the Restatement test, both of which include necessity of the easement to the beneficial enjoyment of the property as a crucial factor in the analysis. One recent case has attempted to resolve this disparity. In Hann v. Saylor, 386 Pa.Super. 248, 562 A.2d 891 (1989), the court noted that those formulations of the traditional test that do require a showing of necessity do not mean to require a showing of “absolute necessity," but rather require only that the claimed easement be shown to be convenient or beneficial to the dominant estate. Id, 386 Pa.Superior Ct. at 251, 562 A.2d at 893 n. 1. The Hann court further opined that where necessity is shown, this argues in favor of recognition of an implied easement.

      . We add that a permissive use terminates by operation of law upon transfer of ownership of the servient tenement. Sterner v. Freed, 391 Pa.Super. 254, 570 A.2d 1079, 1081 (1990).


author: DEL SOLE, Judge:

text:
    604 A.2d 712
    IN re L.M.P., a Minor. Appeal of Regina ANGELL-ERICSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1991.
    Filed March 5, 1992.

      E. Graham Robb, Philadelphia, for appellant.
    Donna M. Miller, Allentown, for Gnaden, participating party.
    Michael R. Muth, Asst. Pubíic Defender, Stroudsburg, for Carbon, participating party.
    Paul A. Barrett, Scranton, for Pocono, participating party.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   DEL SOLE, Judge:

This is an appeal from a final order denying Appellant’s petition which sought to declare null and void the involuntary commitment of her son, to expunge all court and hospital records related to the commitment and to declare that she had no financial responsibility as a result of the treatment her son received. Although Appellant challenges this order on numerous grounds, upon review we find each such issue to be without merit and we affirm the trial court’s decision.

Appellant’s son, a 13 year old boy, was the subject of the involuntary commitment following his ingestion of an unknown quantity of aspirin in an apparent suicide attempt on January 13, 1990. Following an examination by an emergency room physician and a psychiatrist, the minor was involuntarily committed to the mental health facility at Gnaden Huetten Memorial Hospital for a period not to exceed seventy-two hours as provided in 50 P.S. § 7302. An application for extended involuntary emergency treatment was filed pursuant to 50 P.S. § 7303, and a hearing on the application was held before a Mental Health Review Officer on January 17, 1990. The officer ordered the involuntary emergency treatment of the minor to be extended for a period not to exceed ten days. A court review, which would have required a hearing within 72 hours, was not sought by Appellant or anyone else on behalf of the minor, however subsequent to his discharge Appellant filed her Petition, the denial of which is the subject of this appeal.

Appellant’s initial issues address the conclusion that the involuntary commitment of her son was warranted in view of all the evidence presented. She alleges that no clear and convincing evidence was shown which would support the commitment, that the doctor’s and officials who recommended commitment based their decisions on her behavior rather than her son’s mental condition, and that her decision to seek outpatient therapy rather than a voluntary commitment of her son was wrongly discounted.

Provisions for the involuntary emergency examination and treatment of an individual are covered under 50 P.S. § 7302. Subsection (b) directs a physician to examine the individual “to determine if the person is severely mentally disabled ... and in need of immediate treatment.” A definition for the phrase “severely mentally disabled” can be found in 50 P.S. § 7301. It provides:

(a) ... A person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own persona] needs is so lessened that he poses a clear and present danger of harm to others or to himself.
(h) Determination of Clear and Present Danger.
(2) Clear and present danger to himself shall be shown by establishing that within the past 30 days:
(ii) the person has attempted suicide and that there is the reasonable probability of suicide unless adequate treatment is afforded under this act. For the purpose of this subsection, a clear and present danger may be demonstrated by the proof that the person has made threats to commit suicide and has committed acts which are in furtherance of the threat to commit suicide ...

The application which was completed regarding the minor’s Section 302 commitment stated that the child: “Took overdose of ASA. Fought with brother when he tried to stop him. No stable environment for him to return to.” The record clearly supports the finding that Appellant took certain action in furtherance of the threat to commit suicide. Nevertheless Appellant points to the comment that Appellant did not have a “stable environment to return to” and the examining physicians responses to her conduct in the emergency room as evidence that the commitment was sought in response to her behavior rather than her son’s condition. We cannot agree with her assessment of the record in this regard.

After Appellant’s son was transported to the emergency room by the police he was examined by Dr. Liegner, an emergency room physician, and by Dr. Morrow, a psychiatrist. Dr. Liegner testified at his deposition that he was the physician who initially met with Appellant and advised her that it was his position that psychiatric attention for her son was warranted. Following this conversation Dr. Morrow was brought in to examine her son. As a result of his evaluation Dr. Morrow concluded, as he related in his deposition, that the child did not need to be hospitalized for a long time and in terms of the “therapeutic nature of the care he would get” it would be best if he were voluntarily admitted. After lengthy discussions with Appellant concerning immediate follow up care Dr. Morrow reasoned that it “would be possibly safe to send [the minor] home ... if he could be provided with a safe and stable environment until he was able to get what was initially promised to be immediate psychological attention the following day.”

Dr. Liegner was advised of Dr. Morrow’s position but stated that he remained “uncomfortable” sending the child home because he remained of the belief that the child required a psychiatric evaluation at an in-patient setting. He advised Appellant of his assessment because “I wanted her to be aware and to have that on the record that we recommended that he come in and the best way to do that for us is to have the patients or whoever is their guardian ... sign a release form.” Appellant refused to sign the form and became, according to Dr. Liegner’s description, “more and more agitated.” At that point Dr. Liegner decided to no longer allow Dr. Morrow’s judgment “to be above mine since he’s more specialized in psychiatry” and he began to initiate an emergency commitment under Section 302 based upon his continued position that the minor needed in-patient care. Dr. Morrow recounted in his deposition that he was advised of Dr. Liegner’s position and Appellant’s actions with regard to the release form. He stated: “it had raised serious questions in my mind as to whether that [sending the minor home] was a viable decision now on my part because I based my decision on allowing him to go home with the understanding that he was going to be secure in a safe and stable environment.” Dr. Morrow testified that he was no longer comfortable with sending the child home because he felt “under the circumstances the child pose[d] a danger to himself.” He concluded that he would have to sign a 302 commitment form if a voluntary commitment was not forthcoming. After Appellant, according to Dr. Morrow, “surreptitiously” attempted to escort her son out of the emergency room Dr. Morrow made a decision to complete the emergency commitment form.

Appellant claims that the facts as stated by the examining physicians demonstrate that the commitment was ultimately sought based upon her behavior. Appellant, however, seems to ignore or significantly discount the fact that both physicians opined that her 13 year old son had taken action which resulted in a significant step in a suicide attempt. His action alone clearly satisfied the conditions of Section 302 which describe an individual who is a clear and present danger to himself. Both doctors were also of the opinion that a stable home environment with immediate follow-up therapy was necessary if a release of the child was to be an available option for his care. When it became apparent to both physicians that that “stable environment” did not exist, they dismissed that option and concluded that emergency treatment was warranted to best provide for the child’s needs. While Appellant would suggest that it was the physicians’ duty to examine alternative care for her son, such as contacting Children and Youth Service to locate someone to provide adequate care, it is clear that these doctors were of the opinion that a stable “home environment” was the only outpatient setting that could be considered to provide the help the minor child needed at this time. Such a “stable” setting could hardly be said to be forthcoming with a rearranging of his caregiver and home life.

Appellant vaguely makes these same claims with regard to the ten day commitment which was sought and obtained under 50 P.S. § 7303. She again claims that emphasis on the child’s home environment was improperly relied upon and that her suggested plan, which would permit the child to remain at home and receive out-patient treatment, was wrongly rejected in favor of inpatient treatment. The certification under Section 303, however, indicates that the minor was diagnosed as having a Depressive Reaction which, following the breakup with his girlfriend, resulted in an attempted suicide by overdose. The certification reads in part: “Dr. Taylor stated with a reasonable medical certainty that within a period of 30 days without proper supervision and care the patient would be a source of harm to himself because he is suicidal.” It was appropriate to consider the minor’s home environment in determining whether proper care and supervision could be obtained outside of an inpatient setting. Further, this treating physician opined that Appellant’s son would benefit from one-on-one counseling with a psychologist and group therapy which he would undergo during his 10 day stay. In view of the record, we find support for the conclusion that Appellant’s minor was in need of continued involuntary treatment for a period of ten days.

Appellant also makes numerous procedural and constitutional challenges to her son’s commitment. She claims that the Mental Health Procedures Act must be construed to meet minimally adequate due process requirements. In that regard she maintains that she was not provided with timely notice of the Section 303 proceeding or information to prepare an adequate defense. She also alleges that the Section 303 order, itself, was defective in that it failed to provide an adequate description of the treatment to be provided and its appropriateness.

Although we note Appellant does not allege that the Act itself is unconstitutional, she asks this court to read into the Act certain constitutional protections which she believes are minimal requirements to meet a due process challenge. Although Appellant seeks to have us rule that she should have been given more notice of the Section 303 proceeding, the Act itself requires that the “informal hearing” be held “within 24 hours after the application is filed.” 50 P.S. § 7303(b). Thus, under the provisions of the Act, formal notice of the filing of an application under Section 303 could not be given more than 24 hours prior to the hearing. Further, in this case there was evidence offered, which the court accepted, indicating that both Appellant and her son were provided with informal notice more than 24 hours before the hearing.

Appellant also suggests that more than simply a notice of time, date and place must be given to meet due process standards. In support of her position Appellant cites Commonwealth ex. rel. Finken v. Roop, 234 Pa.Super. 155, 339 A.2d 764 (1975). There the court was considering a provision of the Pennsylvania Mental Health and Mental Retardation Act of 1966. In examining this provision which provided for the civil court commitment of an individual, the court commented that the notice requirement found in the Act had to be construed to require that the subject of the commitment proceeding be given a copy of the petition in advance of the hearing, the names of adverse witnesses and the substance of their testimony.

The commitment procedure at issue in Finken is not the same procedure at issue in this case. Finken concerned a court commitment under § 406 of the Mental Health and Mental Retardation Act of 1966 which has been repealed by the Mental Health Procedures Act, except as it related to mentally retarded individuals. 50 P.S. § 4406. Further, Section 406 was not the predecessor to the section of concern here, Section 303. Section 406 dealt with non-emergency commitments unlike section 303 which is entitled “Extended involuntary emergency treatment.” Court-ordered involuntary treatment is now covered in 50 P.S. § 7304. Section 304, requires a formal hearing to be held in accordance with due process standards. The court in In re Hutchinson, 500 Pa. 152, 454 A.2d 1008 (1982) noted the different requirements of Sections 303 and 304 and remarked: “The legislature has determined that commitments for less than twenty days do not require the same formalities as are necessary in commitments for longer periods of time.” Id., 500 Pa. at 159, 454 A.2d at 1012 n. 8. “The structure of the Act evidences a legislative intent to create a treatment scheme under which the patient’s procedural protections expand progressively as the deprivation of his liberty gradually increases.” In Re Ann S., 279 Pa.Super. 618, 421 A.2d 370, 372 (1980). Clearly the same concerns at issue in Finken are not at issue in an emergency matter.

In this case Appellant and her son were clearly given notice of the proceeding. There is support in the record for the court’s finding that Appellant received informal notice more than 24 hours prior to the hearing. She was also provided with a copy of the Application which described the result of the examination of her son and the suggested treatment. Because the minor was already undergoing treatment at the facility, Appellant and her son knew of those who were involved in his case. The court further noted that Appellant and her son were represented by an experienced member of the bar at the proceeding, yet failed to raise any procedural irregularities at that time. Accordingly we agree with the trial court that Appellant’s claims regarding notice must fail.

We also find no merit to Appellant’s argument that the Section 803 order was defective in that it failed to provide an adequate description of the treatment or the appropriateness of such treatment. In regard to this claim Appellant alleges that the certificate “merely references Dr. Taylor’s testimony.” As noted previously, the Certification references that incident which led to the minor’s initial contact with the hospital. It stated the substance of Dr. Taylor’s diagnosis and his opinion as to why in-patient treatment was necessary to protect the child. In the case of In re Condry, 304 Pa.Super. 131, 450 A.2d 136 (1982), the certification of the Mental Health Review Officer contained a summary of the evidence presented at the hearing before the review officer. Upon review the court found that the evidence presented to the officer and summarized in the certification was sufficient to justify a finding that the appellant was a clear and present danger to himself. Although the certification in Condry was ultimately vacated because it failed to include any statement of treatment, such is not the case here where the certification referenced Dr. Taylor’s “plan for treatment consisting of psychotherapy to help the patient learn to cope with his problems.” In this case Dr. Taylor set forth in his testimony before the Officer the basis for his opinion as to why extended involuntary treatment was necessary and the plan of treatment which was proposed. The Act which requires the certification to include findings of why treatment is necessary and a description of the treatment to be provided together with an explanation of the adequacy and appropriateness of such treatment does not prohibit a recounting of the testimony presented at the hearing. 50 P.S. § 7303(d). Although the description of treatment in this case includes reference to the details of the plan in the testimony of Dr. Taylor, we find the requirements of 50 P.S. § 7303(d) have been met.

The remaining due process claim urged by Appellant concerns a violation of her son’s rights by consideration of what she claims were irrelevant factors, such as his mother’s behavior, to the issue of his mental disability. In as much as this specific issue has not been raised in this context by Appellant previously we find it has been waived and we decline to address its merits. In Re S.C., 280 Pa.Super. 539, 421 A.2d 853 (1980). We do, however, refer Appellant on this issue to our previous discussion regarding the appropriateness of concern over her son’s home environment as it related to his treatment.

Appellant also asks this court to consider whether her right to determine the appropriate treatment for her son was unconstitutionally infringed upon by the decision to have him undergo involuntary in-patient treatment. The trial court in reviewing this claim noted that the state’s interest in this case in ensuring and health, safety and welfare of Appellant’s minor, arose from the clear threat he posed to his own life. We affirm the trial court for the reasons provided in its opinion on this issue which detail that Appellant’s rights over her son were not absolute and were justifiably infringed upon to protect her son.

Finally we decline to discuss Appellant remaining issue which asks this court to determine whether she is financially responsible for the costs related to the involuntary commitment of her son. The trial court refused Appellant’s request to declare that she had no financial liability in this matter. We find such an order appropriate in view of our decision affirming the court’s refusal to void the minor’s commitment, but an ultimate conclusion as to where liability rests is not appropriate for discussion in this appeal.

Order affirmed.


author: CERCONE, Judge:

text:
    604 A.2d 717
    COMMONWEALTH of Pennsylvania v. Daniel HOBSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1991.
    Filed March 5, 1992.

      John H. Moore, Erie, for appellant.
    Kenneth A. Zak, Asst. Dist. Atty., Erie, for Com., appellee.
    Before ROWLEY, President Judge, and TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from the judgment of sentence of the Court of Common Pleas of Erie County. We affirm.

Appellant was charged with four counts each of criminal attempt (homicide), robbery, aggravated assault, recklessly endangering another person, and conspiracy. He was also charged with one count of prohibited offensive weapons. Prior to trial, three of the four counts of robbery were dismissed. Appellant was convicted of one count of criminal attempt (homicide), four counts of aggravated assault, four counts of recklessly endangering another person, and one count of prohibited offensive weapons. The convictions arose from an incident in which three college students were injured by gunshots fired at them as they were walking to a local tavern. One of the victims, Jeffrey Nagle, was shot in the back and seriously injured. Appellant was the alleged gunman.

After trial, the lower court denied appellant’s post-verdict motions, and sentenced him to an aggregate term of imprisonment of twenty-three to fifty-seven years. On his convictions of aggravated assault, appellant was sentenced to five to twenty years on one count, and to five to ten year terms on the other three counts. Each of these sentences was to run consecutively. On the criminal conspiracy conviction, appellant received a sentence of two to five years, and on the prohibited offensive weapons violation, appellant was sentenced to one to two years. These sentences were also to run consecutively. The remaining convictions were merged for sentencing purposes. Appellant’s motion for reconsideration of sentence was denied, after which appellant filed the instant timely appeal, which raises the following issues:

1. Whether the evidence presented at trial was sufficient to establish the requisite intent necessary to prove the crime of attempted murder beyond a reasonable doubt?
2. Whether the trial court abused its discretion in sentencing appellant to a term of imprisonment of twenty-three to fifty-seven years, which is in excess of the guidelines of the Pennsylvania Commission on Sentencing?
3. Whether the trial court erred in its charge to the jury in defining the term “prohibitive offensive weapon” when that definition related to the jury certain definitions which were not part of or contained in the information filed against appellant?

We shall address these claims in sequence.

Appellant contends that the evidence in the instant case does not establish beyond a reasonable doubt that he possessed the intent to kill Jeffrey Nagle, one of the victims of the shooting. Appellant asserts that such intent must be proved in order to establish the elements of the crime of attempted homicide. Appellant cites 18 Pa.C.S.A. § 901 and Commonwealth v. Cross, 231 Pa.Super. 148, 331 A.2d 813 (1974) in this regard. In Cross, the court noted that intent to kill is a necessary element of the crime of attempted murder which may be established by circumstantial evidence. Id., 231 Pa.Superior Ct. at 150, 331 A.2d at 814.

A person may be convicted of attempted murder “if he takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such an act.” Commonwealth v. Ford, 315 Pa.Super. 281, 292, 461 A.2d 1281, 1286 (1983). The intent which is a prerequisite to a finding of murder is “malice aforethought” or simply, malice. Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982). Malice consists “either of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, indicating unjustified disregard for the probability of death or great bodily harm.” Commonwealth v. Kersten, 333 Pa.Super. 343, 352, 482 A.2d 600, 604 (1984) (citing Commonwealth v. Matthews, 480 Pa. 33, 389 A.2d 71 (1978); Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768 (1968)). A jury may properly infer an intent to kill from the use of a deadly weapon on a vital part of the victim’s body. Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987), cert, denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987); Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Sweger, 351 Pa.Super 188, 505 A.2d 331 (1986), allocatur denied 513 Pa. 634, 520 A.2d 1385 (1987).

In the instant case, there was evidence that a bullet was removed from the abdomen of victim Jeffrey Nagle during the surgery which he underwent after the shooting. Nagle’s surgeon testified that if the bullet had not been removed by the surgical procedure, Nagle would have died. Nagle himself testified that he was shot in the back after two of his companions had each been shot in the leg. Nagle’s companions also testified as to the shootings at trial, and to the fact that one of two black men who asked them for a dollar was carrying something in his hand described as a pipe and a piece of wood. Appellant’s companion at the time of the shooting testified that appellant fired a sawed-off .22 rifle three times at three men who were walking past them towards an establishment called “The Shaggy Dog.”

The evidence of Nagle’s wounds, combined with the evidence of appellant’s possession and firing of a rifle at the three men on the night in question, is substantial evidence that appellant used a deadly weapon upon a vital part of the victim’s body. From these facts, the jury could have inferred an intent to kill. Commonwealth v. Terry, supra. Accordingly, there is no merit to appellant’s contention that the evidence was insufficient to establish the requisite intent necessary to prove the crime of attempted murder.

Next, appellant contends that the trial court “erred and abused its discretion” in sentencing him to a term of imprisonment of twenty-three to fifty-seven years. He asserts, without explanation, that the sentence exceeds the guidelines of the Pennsylvania Commission on Sentencing. Appellant also argues that the sentence is manifestly excessive and that the lower court failed to give adequate consideration to the fact that he was only eighteen years old at the time of sentencing, and that his criminal history was limited to juvenile offenses.

Appellant’s contention raises the discretionary aspects of his sentence. Allowance of appeal based on the discretionary aspects of sentence may be granted at the discretion of the appellate court “where it appears that there is a substantial question that the sentence imposed is not appropriate ...” 42 Pa.C.S.A. § 9781(b). The determination of whether a particular issue constitutes a substantial question amenable to appellate review must be evaluated on a case-by-case basis. Commonwealth v. House, 371 Pa.Super. 23, 537 A.2d 361 (1988). This court will be inclined to allow an appeal “where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Losch, 369 Pa.Super. 192, 201-02 n. 7, 535 A.2d 115, 119-20 n. 7 (1987).

We have held that certain types of allegations do not constitute substantial questions for purposes of allowance of appeal. One such allegation is that the sentence is excessive and that the trial court “failed to consider” or “did not adequately consider” certain allegedly mitigating factors. Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc). Another type of allegation which we have held does not constitute a substantial question is that the sentence exceeds the range specified in the sentencing guidelines, but fails to advise the appellate court of the applicable guideline range. Commonwealth v. Ousley, 392 Pa.Super. 549, 573 A.2d 599 (1990).

The allegations which appellant raises in his argument challenging the discretionary aspects of his sentence are of the above types. Appellant baldly asserts that his sentence exceeds the guidelines without specifying what he deems to be the applicable guideline range. Appellant also contends that his sentence was manifestly excessive, and cites certain purportedly mitigating factors in this regard. Neither of these allegations states a substantial question for our review. Therefore, we could properly disallow the appeal.

However, even if appellant’s contentions did state a substantial question, they would not entitle him to relief. Sentencing is a matter vested in the sound discretion of the trial court and the lower court’s judgment of sentence will not be disturbed by an appellate court absent an abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987), allocatur denied 516 Pa. 632, 533 A.2d 91 (1987) . To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). Where the court is in possession of a pre-sentence report, the presumption will stand that the sentencing judge was both aware of and appropriately weighed all relevant information regarding a defendant’s character along with mitigating statutory factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

Here, the transcript of the sentencing hearing reveals that the sentencing judge had the benefit of a presentence report. Appellant has not challenged the presentence report or the information contained therein in any way. Therefore, the presumption of Devers will stand. We conclude that there is no merit to appellant’s contention that his sentence was excessive because the lower court allegedly failed to consider certain mitigating factors.

In addition, the sentence imposed by the lower court did not exceed the statutory limits for any of the crimes of which appellant was convicted. Aggravated assault of the type of which appellant was convicted is a felony of the first degree. 18 Pa.C.S.A. § 2702(b) (Purdon Supp.1991-92). Such an offense is punishable by a term of imprisonment of not more than twenty years. Id. § 1103(1). Appellant was sentenced on three of the aggravated assault counts to a term of not more than ten years, and on the other aggravated assault conviction, the term was not to exceed twenty years. Appellant’s sentence also included a term of two to five years for criminal conspiracy. Such offense is equivalent to a felony of the second degree, subject to a term of imprisonment of not more than ten years. See id. § 905(a); 1103(2). Finally, appellant was sentenced to a term of one to two years for his conviction involving prohibited offensive weapons. Such offense is a misdemeanor of the first degree, id. § 908(a), subject to a term of imprisonment of not more than five (5) years. Id. § 1104(1). It is clear that the sentence of the lower court did not exceed the statutory máximums.

The lower court has the discretion to impose consecutive sentences for multiple convictions. Commonwealth v. Norris, 248 Pa.Super. 330, 375 A.2d 122 (1977). There were multiple convictions in the instant case, and the lower court exercised its discretion to impose consecutive sentences for certain of those convictions, thus yielding a total term of imprisonment for appellant of twenty-three to fifty-seven years. Appellant has not demonstrated any way in which the lower court abused its discretion in sentencing.

Appellant’s next contention is that the lower court’s charge to the jury on the definition of prohibited offensive weapons was erroneous because it was contrary to the allegations contained in the information. Specifically, the information alleged:

And the District Attorney further charges that on the day and year aforesaid in the said County of Erie and State of Pennsylvania the said Daniel Hobson did make repair sell or otherwise deal in, used or possessed any offensive weapon, to-wit: a .22 caliber rifle with a sawed off barrel of less than 16" and a sawed off butt-stock, occurring at the 400 block of West 8th St., Erie, PA, thereby the said Daniel Hobson did commit the crime of Prohibited Offensive Weapons, a misdemeanor of the first degree.

At trial, the court gave the following instruction:

In order to find Mr. Hobson guilty of [prohibitive offensive weapons], you must be satisfied that these elements occurred: First, that Mr. Hobson used or possessed a certain object, the rifle; and, second, that the rifle was an offensive weapon.
Now, an “offensive weapon” as defined in the law may be any firearm especially adapted for concealment or lawful purpose. You’ll make the determination if the weapon is in fact an offensive one that is adapted for concealment, a firearm that is adapted for concealment, or one which can inflict serious bodily injury and serves no common lawful purpose.

N.T., January 9, 1991, at —.

A charge to the jury, if it varies from the elements contained in the information, will constitute a technical violation of Rule 229 of the Pennsylvania Rules of Criminal Procedure. Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985) (plurality opinion), cert, denied, 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986). When the charge introduces new or different elements beyond those contained in the information, the variance is improper. Id., 508 Pa. at 455, 498 A.2d at 848. However, even an improper variance will not be fatal to the conviction if it “did not substantially prejudice the appellant by making his prior defense strategy inapplicable to the charge he had to face under the additional erroneous instruction.” Id.

In the instant case, the charge to the jury on the prohibited offensive weapons offense did not “introduce new or different elements beyond those contained in the information.” The information stated that appellant possessed, used, repaired, sold, or otherwise dealt in “any offensive weapon,” and specifically referred to a .22 caliber rifle with a sawed-off barrel and a sawed-off butt-stock. The trial judge reiterated in the charge that it was appellant’s possession of or dealing in “the rifle,” and the rifle’s conformance to the definition of an offensive weapon which constituted the elements of the offense. One of the witnesses at trial testified specifically that he, the appellant, and others had stolen the .22 caliber rifle referred to in the information and the charge, and that it was this weapon which appellant had used on the date of the assaults of which he was convicted. The same witness testified that he and the others who had stolen the gun had sawed off its stock and barrel. He further indicated that the .22 rifle and another gun had been shortened in this manner so that he and his companions “could tote the guns around without them being noticed.” N.T., January 9, 1991, at 104-06.

Appellant was charged with violating 18 Pa.C.S.A. § 908 by his possession and other dealing with the rifle specified in the information and charge. Section 908 provides:

(a) Offense defined. — A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.
(c) Definition. — As used in this section “offensive weapon” means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

Id. (emphasis added). The lower court explained that in developing its charge to the jury on the issue of prohibited offensive weapons, it had fashioned the charge to “track the statute.” 18 Pa.C.S.A. § 908, supra. The court explained that

It is not the fact that a weapon that has a barrel that has been shortened — even to a length of less than 16 inches— that makes it a prohibited offensive weapon. What fulfills that requirement is that the weapon was specially adapted for concealment or that it serves no common lawful purpose.

Opinion of February 27, 1991, Fischer, J., at 4-5.

We agree. As a panel of this court stated in Commonwealth v. Stewart, 343 Pa.Super. 514, 495 A.2d 584 (1985),

[D]ue to the offensive character of a sawed-off shotgun, the legislature intended such weapons to be prohibited under section 908, regardless of the length of the sawed-off barrel. When the barrel of a shotgun is sawed-off, the shotgun has been reshaped and “specially adapted” or altered for criminal purposes. 18 Pa.C.S. § 908(c) (emphasis added). This is precisely the type of weapon explicitly prohibited by section 908.

Id., 343 Pa.Superior Ct. at 534, 495 A.2d at 594. The rifle in the instant case was similarly the type of weapon prohibited by section 908. The fact that the lower court did not specify in its charge to the jury the alleged length of the gun as stated in the information did not render the charge erroneous.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 901.

      . Id. § 3701.

      . Id. § 2702.

      . Id. § 2705.

      . Id. § 903.

      . Id. § 908.

      . Another student, who was with the three who were shot, was not injured in the incident.

      . Section 901, Criminal attempt, provides in pertinent part:
      A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

        Id. § 90Í(a).

      . Appellant has not included in his brief a statement of the reasons relied upon for allowance of appeal as required by Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A. However, since appellee has not objected to the defect, we may waive this procedural error. Commonwealth v. Smicklo, 375 Pa.Super. 448, 544 A.2d 1005 (1988); Commonwealth v. Billett, 370 Pa.Super. 125, 535 A.2d 1182 (1988).

      . Rule 229 provides:
      The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.
      Pa.R.Crim.P., Rule 229, 42 Pa.C.S.A.


text:
    604 A.2d 723
    COMMONWEALTH of Pennsylvania v. John W. HOLLAWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 13, 1992.
    Filed March 6, 1992.

      John J. Fioravanti, Jr., Deputy Public Defender, Doylestown, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before MONTEMURO, HUDOCK and CERCOME, JJ.
   CERCONE, Judge:

This is an appeal from the final order of the Court of Common Pleas of Philadelphia County denying appellant John W. Hollawell credit for time served prior to the imposition of sentence. We affirm.

On August 5, 1987, the Commonwealth filed criminal charges against appellant for bribery, perjury, criminal conspiracy, and criminal solicitation (Criminal Informations numbered 2272-2278). On that same day, the Commonwealth filed criminal charges against appellant on an unrelated series of crimes (Criminal Informations numbered 228-241). At the time these charges were filed, appellant was incarcerated at a federal prison. The Commonwealth lodged a detainer with the federal authorities and on September 21,1987, appellant was transferred to a Philadelphia prison. Appellant posted bond on all state charges on October 25, 1988, and was released from custody.

After a jury trial on Criminal Informations numbered 228-241, appellant was convicted of corrupt organizations, one count of bribery, and criminal conspiracy. On August 10, 1989, the Honorable Carolyn Temin imposed an aggregate sentence of five to twenty years incarceration. Pursuant to 42 Pa.C.S.A. § 9760, and Pa.R.Crim.P., Rule 1406(b), 42 Pa.C.S.A., Judge Temin granted appellant credit for all time spent in custody as a result of those charges.

On October 23, 1989, appellant pled guilty to the crimes charged in the instant case (Criminal Informations numbered 2272-2278). Appellant subsequently filed a motion to withdraw his guilty plea which the lower court denied. On April 2, 1990, the Honorable Albert Sheppard sentenced appellant to an aggregate term of incarceration of eighteen to thirty-six months, to be served consecutively with the sentence previously imposed by Judge Temin. Judge Sheppard orally indicated that appellant was entitled to credit for time spent in custody prior to trial “so long as it is clear that any incarceration was pertinent specifically to this case.” N.T. 3/2/90, at 42. Appellant filed a timely motion to modify the sentence which the lower court subsequently denied. On January 24, 1991, appellant filed a “Motion to Clarify Time Credit to be Given to Defendant.” Following a hearing on April 19, 1991, Judge Sheppard denied appellant credit for the time he spent in custody prior to sentencing. This timely appeal followed. The Commonwealth filed a motion to quash the appeal which this court denied.

Appellant raises only one issue for our review: whether the trial court erred by failing to allow credit towards appellant’s sentence for his time spent in custody prior to trial. The Commonwealth counters, arguing that (1) this court is without jurisdiction to entertain appellant’s appeal; and (2) appellant should not be given credit for time served prior to the imposition of this sentence. We will address the jurisdictional issue first.

The Commonwealth argues that the trial court lacked jurisdiction to dispose of appellant’s motion. The Commonwealth contends that the calculation of time credit is an administrative matter within the exclusive domain of prison authorities. It is well-settled that if an alleged sentencing error is thought to be the result of an erroneous computation of sentence by the Bureau of Corrections, the appropriate recourse would be an original action in the Commonwealth Court challenging the Bureau’s computation. Commonwealth v. Perry, 386 Pa.Super. 534, 537-38, 563 A.2d 511, 512-13 (1989). However, where an appellant challenges the trial court’s failure to award credit for time served prior to sentencing, the claim involves the legality of sentence. Commonwealth v. Diamond, 376 Pa.Super. 485, 491 n. 3, 546 A.2d 628, 631 n. 3 (1988). A claim challenging the legality of sentence is appealable as of right. Id.

The trial court unquestionably possesses the inherent power to correct an unlawful sentence at any time. Commonwealth v. Horsman, 239 Pa.Super. 534, 537, 361 A.2d 433, 434 (1976). Further, the Pennsylvania Rules of Appellate Procedure permit a trial court to “[t]ake such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter ... and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.” Pa.R.A.P., Rule 1701(b)(1), 42 Pa.C.S.A. In the instant case, appellant asked Judge Sheppard to clarify whether his time in custody would be credited towards his sentence, and if the answer were “no,” appellant challenged the legality of his sentence. Under Horsman and Rule 1701(b), the trial court had jurisdiction over the matter. Because the lower court’s decision was appealable as of right, we conclude that the appeal is properly before this court. Commonwealth v. Diamond, supra, 376 Pa.Super. at 491 n. 3, 546 A.2d at 631 n. 3.

Appellant argues that his time spent in custody prior to sentencing should be credited towards the sentence imposed by Judge Temin, as well as the sentence imposed by Judge Sheppard. Appellant contends that his incarceration was the direct result of the charges filed in both cases, and therefore, his time incarcerated prior to sentencing should be credited towards both sentences. We disagree. Pursuant to 42 Pa.C.S.A. § 9760, a court must give credit for time served as follows:

(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

42 Pa.C.S.A. § 9760(1). The principle underlying this statute is that a defendant should be given credit for time spent in custody prior to sentencing for a particular offense. Commonwealth v. Shaw, 379 Pa.Super. 491, 499, 550 A.2d 555, 559 (1988), allocatur denied 524 Pa. 607, 569 A.2d 1366 (1989).

Our exhaustive research finds no Pennsylvania case directly on point with the facts of the instant case. However, we are guided by the principle enunciated in Commonwealth v. Frank, 263 Pa.Super. 452, 398 A.2d 663 (1979). The defendant in Frank was convicted of a series of crimes arising out of a single criminal episode. The defendant was tried and convicted in both Lancaster and Chester counties for the crimes that occurred in each respectively. Defendant's sentence in Chester County was made consecutive to his Lancaster County sentence. This court vacated the judgment of sentence on other grounds, but stated: Should appellant’s sentence be reinstated, credit must be

given for the time he has spent in custody____ Under these circumstances, credit against his Lancaster sentence must be given from the date of his initial incarceration under the terms of 18 Pa.C.S.A. § 1360(4) (Supp. 1978-79). See also Pa.R.Crim.P. 1406. It should be observed that this calculation will not allow appellant double credit for the time he served prior to his sentencing in Lancaster County. Once credit is given against his Lancaster County sentence under 18 Pa.C.S.A. § 1360(4), the time appellant has served in custody is no longer “a result of’ the charges that arose in Chester County within the meaning of subsection (1) of that provision, and thus cannot be credited against the sentence he received there.

Id., 263 Pa.Superior Ct. at 476 n. 10, 398 A.2d at 675 n. 10.

Although the facts in Frank are not directly on point with the instant case, the rationale used by this court in Frank is pertinent to our discussion. The defendant in Frank was tried separately for separate crimes arising out of a single criminal episode. In the present case, appellant was also tried separately, although for two separate criminal incidents. Both the defendant in Frank and appellant were sentenced separately for each offense. Here, Judge Temin sentenced appellant on the convictions resulting from Criminal Information Numbers 228-241 and awarded appellant credit towards that sentence for time previously served. Judge Sheppard sentenced appellant on the convictions resulting from Criminal Informations numbered 2272-2278 and authorized credit for time served prior to the sentence “so long as it is clear that any incarceration was pertinent specifically to this case.” N.T. 4/2/90 at 42.

The absurdity of appellant’s case is clear. Following his reasoning, appellant would receive a windfall on sentencing for a completely unrelated crime. This court does not deal in “volume discounts.” Applying this court’s rationale in Frank to the present case, we hold that once Judge Temin credited appellant for time previously served, appellant’s time in custody was no longer “a result of” the charges brought before Judge Sheppard. Id., 263 Pa.Superior Ct. at 470, 398 A.2d at 675. Therefore, Judge Sheppard properly denied appellant’s request for credit for time previously served.

The order of the lower court is affirmed.

      . Appellant’s appointed counsel filed an amended notice of appeal on May 1, 1990. This court remanded the case for reconsideration of the order denying appellant’s request to withdraw his guilty plea, but retained jurisdiction. After a hearing, the lower court again denied appellant’s motion to withdraw his guilty plea. On July 24, 1991, we affirmed the order of the lower court.

      . The Commonwealth also argues that the motion underlying the trial court’s order was never filed. However, our review of the record indicates that the motion was filed and docketed on January 24, 1991.

      . 18 Pa.C.S.A. § 1360(4) provided:
      If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall he given for all time spent in custody under the former charge that has not been credited against another sentence.