author: CERCONE, Judge: HESTER, Judge,

text:
    488 A.2d 36
    Mary CAUSER, Administratrix of the Estate of Mary Milligan, Deceased v. Robert A. MANDARINO, individually and Trading and Doing Business as Mon Valley Real Estate. Appeal of COMMONWEALTH of Pennsylvania, STATE REAL ESTATE COMMISSION. John S. TYLKA and Bertha Tylka, his wife v. Robert A. MANDARINO, individually and Robert A. Mandari-no, t/d/b/a Mon Valley Real Estate & Insurance. Appeal of COMMONWEALTH of Pennsylvania, STATE REAL ESTATE COMMISSION.
    Superior Court of Pennsylvania.
    Argued Aug. 28, 1984.
    Filed Feb. 8, 1985.
    Petition for Allowance of Appeal Denied Aug. 15, 1985.

      Wayne T. Scott, Harrisburg, for appellants.
    Daniel Myshin, Monessen, and Vincent J. Morocco, Greensberg, for Causer, appellee (at 198).
    Vincent J. Morocco, Greensburg, for Tylka, appellee (at 199).
    Before JOHNSON, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This appeal originates from an Order issued by the Court of Common Pleas of Westmoreland County sitting en banc. The Order mandated that the Commonwealth, through the State Real Estate Commission (the “Commission”) establish a complete list of claimants against the defendant licensee, Robert A. Mandarino, and also that the Commonwealth file a proposed schedule of distribution establishing the maximum amount recoverable by each individual claimant in accordance with the court’s decision.

These matters arose from the activities of defendant, formerly licensed by the state as a realtor. His fraudulent dealings with claimants herein, in separate unrelated transactions, resulted in their suffering a financial loss. These claimants, appellees herein, obtained judgments against defendant. Both appellees subsequently petitioned for relief under the Real Estate Licensing and Registration Act, 63 P.S. § 455.101 et seq. (“Act”), according to the Real Estate Recovery Fund provisions (“Funds”), 63 Pa.C.S.A. § 455.-801 et seq. The aggregate claims of appellees against the Funds is in excess of $20,000. The Commission, appellant herein, declined to pay the appellees because it maintained that the statute establishing the Funds placed a $20,000 maximum limitation for payment of all aggrieved persons for the wrongful acts of any one licensee.

Pursuant to this position, the Commission filed a Petition for Joinder of All Claimants and Prospective Claimants for Relief Through the Real Estate Recovery Fund. Neither claimant responded to the Commission’s Petition. The lower court then granted the Commission’s Motion to Make Absolute the Court’s Rule to Show Cause why such petition should not be granted. Pursuant to this Order, the Commission developed a list or class of claimants against the defendant.

The appellees filed objections to this list and the Court held oral arguments in the matter. The Court ordered the Commission to establish a complete list of claimants and file a schedule of distribution in accordance with its opinion.

The issue on appeal is whether the Act, and particularly Section 803(d) of the Act, limits the recovery from the Fund to $20,000.00 per licensee.

A determination of the issue requires that this court interpret Section 803(d) of the Act which reads, in pertinent part:

(d) When there is an order of the court to make payment or a claim is otherwise to be levied against the fund, such amount shall be paid to the claimant in accordance with the limitations contained in this section. Notwithstanding any other provisions of this section, the liability of that portion of the fund allocated for the purpose of this act shall not exceed $20,000 for any one judgment. If the $20,000 liability of the Real Estate Recovery Fund as provided herein is insufficient to pay in full claims adjudicated valid of all aggrieved persons against any one licensee or registrant, such $20,000 shall be distributed among them in such ratio that the respective claims of the aggrieved applicants bear to the aggregate of such claims held valid____

The court below interpreted the third sentence to mean that if the $20,000 per judgment restriction in the second sentence of Section 803(d) resulted in any of the aggrieved claimants not receiving full payment of their respective claims, then the entire “distribution fund” be subject to the payment of all aggrieved parties in such ratio as their individual claims bore to the aggregate of such claims held valid. The lower court defined the “distribution fund” in this case as the aggregate of all claims under $20,000 and $20,000 for each claim over $20,000. We do not agree that this is a correct interpretation of Section 803(d) and, therefore, we must reverse.

The provisions found in Section 803(d) are unambiguous and the lower court’s interpretation adds a complex analysis which is inconsistent with that section and with the statute as a whole. It is well established that in construing a statute a court must determine legislative intent from the totality of the statute. Statutory language which is clear and unambiguous must be given its obvious meaning. See Section 3 of the Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1901 et seq. (1 Pa.C.S.A. § 1921).

The second sentence of Section 803(d) merely states that the liability of the Fund shall not exceed $20,000 for any one judgment. It does not say that any claimant with a perfected judgment of $20,000 or less has the right to receive the full amount of that judgment, as appellees assert.

The third sentence deals with the situation in which there may be multiple claimants against one licensee. In that situation, the statute reads, “such $20,000 shall be distributed among them [the multiple claimants] in such ratio that the respective claims of the aggrieved applicants [to the Fund] bear to the aggregate of such claims held valid.” The legislature’s reference to “such $20,000”, without further explanation, must certainly refer to the same $20,000 indicated in the second sentence. The sentence means that the aggregate of claims against the Fund for any one licensee is capped at $20,000. This interpretation is supported by a reading of Section 803(e) which reads:

Upon petition of the commission the court may require all claimants and prospective claimants against one licensee or registrant to be joined in one action, to the end that the respective rights of all such claimants to the Real Estate Recovery Fund may be equitably adjudicated and settled.

This section indicates that the legislature clearly envisioned, and provided for, the possibility of multiple claimants or potential claimants against a single licensee. There would be no reason for the legislature to include subsection (e), providing for adjudication of the respective rights of multiple claimants, if their claims were individually capped at $20,000.

Any fear that this interpretation will result in a situation where claimants with perfected judgments must wait an indeterminable amount of time for their recovery is unfounded. The trial court may, as the lower court here did, set a time frame within which the Commission must develop its list of claimants. This court is cognizant of the fact that the list of potential claimants includes many with unperfected claims and, therefore, those claimants with perfected claims may be required to wait a considerable period of time for their recovery.

Appellees argue that the Real Estate Recovery Fund provisions of the Act are remedial and humanitarian in nature and, as such, call for a liberal construction to invoke the purpose of the legislature. They cite Section 1928(c) of the Statutory Construction Act, supra; Workmen’s Compensation Appeal Board v. Hartlieb, 465 Pa. 249, 348 A.2d 746 (1975); and Bley v. Commonwealth Department of Labor and Industry, 484 Pa. 365, 399 A.2d 119 (1979), in support of this proposition. While such a proposition may be true, this Court may not disregard a clear mandate by the legislature as reflected in its use of clear and unambiguous terms. If the language of a statute is clear, it may not be disregarded under the guise of presumed “legislative intent.” Glencrest Realty Co. v. Zoning Hearing Board of Washington Township, 46 Pa. Cmwlth.Ct. 177, 179, 406 A.2d 836, 838 (1979). While it is true that the legislature may not have envisioned a situation such as here where the aggregate of the potential claims is approximately $140,000 and the claimants may only receive a “token remedy”, the court system is not the proper place to change these provisions.

From the language of the statute, it is clear that the legislature intended to put a $20,000 limit on recovery from the Funds by any one or a group of claimants against a single licensee.

Accordingly, we reverse the Order of the lower court directing payment from the Real Estate Recovery Fund in excess of $20,000. This case is remanded for further proceedings as may be consistent with this opinion.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent.

Apportioning $20,000.00 among the innocent victims of the $140,000.00 fraud perpetrated by Robert Mandarino fails to implement the Legislative Mandate to the effect that such claims be equitably adjudicated. I would, therefore, affirm on the opinion of Judge Mihalich, of the trial court.

      . The appellees asserted that their claim was for less than $20,000 and, therefore, should not be contingent on other claims but rather should be paid in full.


source: Caselaw Access Project

author: WICKERSHAM, Judge: WIEAND, Judge,

license: Public Domain

text:
    488 A.2d 39
    Margaret STORM v. W. Brian GOLDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Jan. 30, 1985.

      Susan Danielski, Philadelphia, for appellant.
    Edwin Krawitz, East Stroudsburg, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WICKERSHAM, Judge:

In this case, W. Brian Golden appeals from the Order of the Court of Common Pleas of Monroe County granting the petition of Margaret H. Storm, appellee herein, to open a judgment of non pros. We affirm.

In June of 1981, Margaret H. Storm filed and served on W. Brian Golden a summons in trespass. By letter dated December 3, 1981, counsel for Golden sent to Storm’s counsel a copy of his entry of appearance and a copy of a praecipe for rule to file a complaint. This praecipe was filed on December 7, 1981 and the rule issued on the same day. The rule, however, was never served on Storm or her counsel.

Appellant Golden was deposed on February 18, 1982. By letter dated February 19, 1982, Golden’s counsel requested Storm’s counsel to file a complaint within ten (10) days or suffer a non pros pursuant to the rule issued earlier. On February 24, 1982, Storm’s attorney responded by stating that he had never been served with a rule to file a complaint. In the same letter, Storm’s counsel requested a thirty (30) day extension of time in which to file a complaint. As a result of appellee’s continued failure to file a complaint, appellant filed a praecipe for the entry of judgment of non pros on March 31, 1982 and the prothonotary entered judgment of non pros on the same day. Also on the same day, appellee Storm filed her complaint in trespass.

On April 2, 1982, Storm’s counsel sent a letter to Golden’s counsel reiterating the fact that he had never been served with a rule to file a complaint and setting forth his contention that, therefore, the judgment of non pros could not be properly entered. He further suggested that Golden’s counsel ignore the allegedly improperly-entered judgment and accept service of the complaint. On April 15, 1982, Golden filed preliminary objections to Storm’s complaint contending that the filing of a complaint in an action in which a judgment of non pros had been entered in favor of the defendant was contrary to law. Storm filed an answer to the preliminary objections on May 25, 1982. On July 23, 1982, Golden filed a memorandum of law in support of his preliminary objections. Storm filed a petition to open the judgment of non pros on July 27, 1982. The lower court heard arguments as to Storm’s petition to open judgment and, on November 12, 1982, issued an opinion and order granting the petition. This appeal timely followed.

Appellant raises the following issues before this court:

1. The trial court abused its discretion in failing to rule upon whether the plaintiff had met the requirements for opening a judgment of non pros.
2. The trial court abused its discretion in finding that the plaintiff did not have actual notice of a rule to file a complaint and in ruling that the judgment of non pros had been improperly entered.
3. The trial court abused its discretion in failing to take as true the appellant’s answer to the petition to open the judgment of non pros in that appellee ordered this petition on for argument upon the petition and answer without taking any discovery pursuant to Pa.R.C.P. 209.

Brief for Appellant at iii.

We will address appellant’s second issue first. Appellant acknowledges that the rule to file a complaint was never served upon appellee or her counsel; nevertheless, he argues that the lower court erred in finding that the appellee did not have actual notice of the existence of the rule. Appellee contends that she did not have actual notice of the rule and that, in any event, the Pennsylvania Rules of Civil Procedure require service of the rule upon her before a judgment of non pros can be entered.

Pa.R.C.P. No. 1037(a) provides in pertinent part:

(a) If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros.

(emphasis added).

Appellee argues that the explicit language of this rule prohibits the prothonotary from entering a judgment of non pros until 20 days after the rule to file a complaint is actually served. We agree.

In Hershey v. Segro, 252 Pa.Super. 240, 381 A.2d 478 (1977), William Hershey filed a writ of summons against the Segros and the Stolls. The Stolls ruled Hershey to file a complaint within 20 days or suffer a non pros. The lower court subsequently granted Hershey an extension of time within which to file his complaint. When that period passed without a complaint being filed, the Stolls caused a judgment of non pros to be entered in their favor. By praecipe, the Segros then directed the prothonotary to enter a judgment of non pros in their favor because Hershey had never filed his complaint. The prothonotary entered a judgment of non pros in favor of the Segros. However, the lower court struck off the latter judgment as being improvidently entered, on the ground that the Segros had not first served on Hershey a rule to file his complaint in accordance with Pa.R.C.P. 1037(a). On appeal, this court affirmed the lower court’s ruling. Although the Segros’ codefendants had ruled Hershey to file a complaint, the Segros had not; therefore, the prothonotary had no authority to enter judgment of non pros in their favor. The court stated: “Under present rules, the power of the prothonotary to enter judgment of non pros upon praecipe of the defendant can only be exercised where the defendant has first served upon plaintiff a rule to file his complaint.” Id., 252 Pa.Superior Ct. at 243, 381 A.2d at 479 (emphasis is in original).

Service of the rule to file a complaint is explicitly required by Rule 1037(a). One commentator on Rule 1037(a) has noted:

The Rule provides for the entry of the judgment of non-pros by the prothonotary upon “praecipe” of the defendant. This, however, cannot be filed until 20 days after “service” of the rule to file the complaint. Although there is no specific provision for an affidavit of service, it is clear that the defendant will never succeed in obtaining the entry of judgment without furnishing the prothonotary with a sworn proof of the service of the rule at least 20 days prior to the date he asks for judgment.

2 Goodrich-Amram 2d § 1037(a):l (footnote omitted). Accord 7 Standard Pennsylvania Practice 2d § 39:94.

We hold, therefore, that the prothonotary had no authority to enter judgment of non pros in favor of appellant because the rule to file a complaint was never served on appellee. Thus, the lower court did not err in opening the judgment of non pros.

In his first issue, appellant avers that the lower court erred in granting appellee’s petition without first considering whether appellee had met the requirements for opening a judgment of non pros. As appellant correctly states, ordinarily three factors must coalesce before a judgment of non pros can be opened: (1) the petition to open must be timely filed; (2) the reason for the delay must be reasonably explained or excused; and (3) sufficient facts constituting grounds for a cause of action must be alleged. Perri v. Broad Street Hospital, 330 Pa.Super. 50, 478 A.2d 1344 (1984). Instantly, however, appellee was never served with the rule to file a complaint. Pa.R.C.P. 1037(a) grants the prothonotary the authority to enter a judgment of non pros only after service of the rule. We have held that since the rule was never served, the prothonotary had no authority to enter the judgment. Thus, the judgment of non pros entered against appellee was invalid ab initio. The three requirements stated above need only be considered when a party seeks to open a properly entered judgment. Where, as here, the judgment was invalid from the outset, the lower court need not address whether the above-mentioned factors have been met. Cf. Mischenko v. Gowton, 307 Pa.Super. 426, 453 A.2d 658 (1982); Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979). Thus, the lower court did not abuse its discretion in granting appellee’s petition to open the judgment of non pros.

Order affirmed.

WIEAND, J., files a concurring statement.

LIPEZ, J., concurs in the result.

WIEAND, Judge,

concurring:

I join the careful analysis prepared for the majority by Judge Wickersham. I write separately to observe that the defect in the judgment of non pros in this case was apparent on the face of the record. More correctly, therefore, the judgment should have been stricken.

      . Even were we to hold that service of the rule is not necessary where there is proof of actual notice of the rule’s issuance, we would nevertheless affirm the order of the lower court. The lower court did not abuse its discretion in finding that "[a]ctual notice is simply not apparent under the facts of the present matter.” Lower ct. op. at 2-3. Appellant relies on pieces of correspondence between counsel to support his contention that appellee’s counsel had actual notice of the rule. It is clear, however, that appellee's counsel’s letter of February 24, 1982 explicitly informed appellant’s counsel that he had never been served with the rule. Appellee's counsel therefore suggested that appellant's counsel check with the prothonotary on the status of the rule. While appellee’s counsel did request a 30 day extension of time in which to file his complaint, he in no way intimated that he felt that he was under a legal obligation to file his complaint in that amount of time. Further, in his letter of April 2, 1982, appellee’s counsel stated that he first became aware of the issuance of the rule when he checked the docket after the judgment of non pros was entered. Thus, we conclude that the record supports the lower court’s finding that neither appellee nor her counsel had actual notice of the issuance of the rule to file a complaint.

      . As a result of our disposition of this appeal, we need not address appellant’s third issue.


author: CERCONE, Judge:

text:
    488 A.2d 43
    UNITED ERECTORS, INC. v. PRATT & LAMBERT CORPORATION and Brooks Paint Stores, Inc. Appeal of BROOKS PAINT STORES, INC., (at No. 2529). Appeal of PRATT & LAMBERT CORPORATION (at No. 2563).
    Superior Court of Pennsylvania.
    Argued June 13, 1984.
    Filed Jan. 30, 1985.

      Ross F. Schmucki, Philadelphia, for appellants.
    Robert L. Seigle, Southampton, for appellee.
    Before CIRILLO, BECK and CERCONE, JJ.
   CERCONE, Judge:

Defendants below, Pratt & Lambert Corporation and Brooks Paint Stores, Inc., appeal here an order of the Court of Common Pleas of Philadelphia dismissing their preliminary objections challenging the court’s jurisdiction. For the reasons which follow, we hold that this appeal must be quashed.

Plaintiff-appellee commenced this action on October 24, 1980, by filing a complaint against appellants in the United States District Court of the Eastern District of Pennsylvania, alleging subject matter jurisdiction based upon diversity of citizenship. On October 21, 1981, however, the Federal Court dismissed the suit finding it lacked jurisdiction because (1) appellee had failed to register as a foreign corporation doing business in Pennsylvania, as required by 15 P.S. § 2014; and (2) there was no basis for diversity of citizenship. No appeal was taken from that order.

Approximately six months later, on April 15, 1982, appel-lee having obtained a certified transcript of all pleadings from the Federal Court, filed a praecipe with the Prothono-tary of the Philadelphia Court of Common Pleas instructing him to transfer the case to that court pursuant to 42 Pa.C.S.A. § 5103(b). Appellants responded by filing preliminary objections contesting the Court of Common Pleas jurisdiction on the grounds that the purported transfer was not authorized by 42 Pa.C.S.A. § 5103(b); and that the court lacked personal jurisdiction over them. The court below, however, concluded that 42 Pa.C.S.A. § 5103(b) did indeed authorize the transfer and, accordingly, denied the preliminary objections. These appeals followed.

It is well established that an order dismissing preliminary objections is ordinarily interlocutory and, therefore, not appealable. Adkins v. Empire Kosher Poultry, Inc., 321 Pa.Super. 30, 467 A.2d 877 (1983); City of Philadelphia v. Franklin Smelting and Refining Company, 303 Pa.Super. 393, 449 A.2d 745 (1982). An exception to this general principle is Pennsylvania Rule of Appellate Procedure 311(b) which provides:

Order sustaining venue of personal or in rem jurisdiction. An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if:
(1) the plaintiff, petitioner or other party benefiting from the order files of record within ten days after the entry of the order an election that the order shall be deemed final; or
(2) the court states in the order that a substantial issue of jurisdiction is presented.

Instantly, neither of the above requirements has been met. Consequently, the order denying appellant's preliminary objections challenging jurisdiction is not appeal-able, and the appeal must be quashed. City of Philadelphia v. Franklin Smelting and Refining Company, supra; Adkins v. Empire Kosher Poultry, Inc., supra.

Appeals quashed.

       In the statement of jurisdiction contained in their brief, appellants rely on Pa.R.A.P. 311(c), which provides:

        Changes of venue, etc. An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.
      Appellants reliance on this rule is obviously misplaced. Both the unambiguous language of Rule 311(c) and the comments thereto, make plain that it applies only to lower court orders which do not sustain venue. The order appealed from instantly, as previously noted, sustained jurisdiction over appellants and was clearly subject to the requirements of Pa.R.A.P. 311(b).


text:
    488 A.2d 45
    COMMONWEALTH of Pennsylvania, Appellant, v. Bray MURRAY.
    Superior Court of Pennsylvania.
    Argued June 7, 1984.
    Filed Jan. 30, 1985.

      Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    A. Balfour Smith, Philadelphia, for appellee.

      Before McEWEN, TAMILIA, and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth from the order of the court below awarding appellee, Bray Murray, a new trial on the ground that he was denied the effective assistance of trial counsel. We reverse.

The relevant events giving rise to this appeal are as follows. In August of 1982, appellee was tried by a jury and found guilty of first degree murder and a weapons offense, but acquitted of robbery. The Commonwealth’s evidence established that on November 7, 1981, at approximately 8:30 p.m., appellee and the decedent, Eric Taylor, were customers of the P and D Bristol Bar in Philadelphia. Appellee exited the bar and waited outside where he was overheard saying to himself: “Wait till the motherfucker come out the bar.” When Eric Taylor emerged from the bar, appellee grabbed him from behind and said, “Give me your money, pussy.” Immediately thereafter, appellee repeatedly stabbed Taylor with a ten-inch dagger. Appellee then ran away, leaving Taylor bleeding heavily and leaning against a parked automobile. Mr. Taylor died six days later as a result of multiple stab wounds.

The only defense testimony was that of appellee’s companion, Kevin Mathis a/k/a Gilmore. According to him, Taylor and appellee had a verbal argument inside the bar and when they went outside Taylor was the first to brandish a knife. He further testified that appellee responded by seizing Taylor with one hand and repeatedly stabbing him with the other.

Appellee’s motion for a new trial alleged, inter alia, the ineffectiveness of trial counsel and this resulted in the appointment of new counsel. New counsel filed an amended motion for new trial alleging that trial counsel had been ineffective in several respects including the following:

“(a) That [appellee] requested his Counsel to contact and call four witnesses to testify in his favor, to wit, Carolyn and Christine Jones; Andre Jackson; and one Jill (whose last name is unknown); and his counsel failed to contact said witnesses.
(b) That Counsel failed to Petition the Court for the appointment of an investigator when there was a compelling need for same.”

At an evidentiary hearing held by the trial judge, testimony on the ineffectiveness issue was taken from appellee, his mother and trial counsel. Although appellee admitted that on the date of his arrest he named only Mathis as an eyewitness to the detective who interrogated him, he maintained that he had advised counsel well before trial of the previously noted additional alleged witnesses and that counsel had promised to conduct an investigation. Appellee further testified that the three female alleged witnesses were contacted by his mother, but they refused to testify.

Appellee’s mother, however, testified she did not ask the three women to testify because her son told her that he did not want to involve them. She further stated that although she spoke to Andre Jackson, he had no address and he was afraid to testify.

Trial counsel denied that appellee ever informed him of either Jones’ woman. Counsel stated that appellee could not furnish an address for Andre Jackson, and that appel-lee’s family had advised him that Jackson would not cooperate. He testified that appellee had mentioned that there were other witnesses, but was unable to give him any names or addresses. Counsel stated that although he constantly emphasized to appellee and his mother the importance of locating potential witnesses, he did not seek the aid of a professional investigator. He explained that he did not retain an investigator because all the potential witnesses were friends and people in the neighborhood and it had been his experience that if these people would not cooperate with appellee and his family, a professional investigator would be unavailing.

None of the allegedly exculpatory eyewitnesses appeared at the evidentiary hearing. Moreover, appellee never established what they would testify to had they appeared or how their absence at trial prejudiced him. Nonetheless, the court below, relying on Commonwealth v. White, 303 Pa. Superior Ct. 550, 450 A.2d 63 (1982), awarded a new trial on the ground that because trial counsel knew that the fight took place before a group of people, he was ineffective in failing to employ a professional investigator to locate any witnesses, as opposed to depending upon the efforts of appellee and his family.

It is axiomatic that counsel is presumed to have rendered effective assistance and that the burden of proving to the contrary rests with the defendant. Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). “Moreover, the courts of this State have repeatedly said that counsel will not be deemed ineffective in the absence of some showing that the defendant was prejudiced by counsel’s alleged shortcomings.” Commonwealth v. Litzenberger, 333 Pa.Superior Ct. 471, 482, 482 A.2d 968, 974 (1984) (citations omitted). Thus, where a defendant alleges that his attorney was ineffective in failing to investigate, interview and/or call witnesses in his defense, there must be some demonstration that their testimony would be helpful. See e.g., Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983) (“to persuade a reviewing court that counsel’s investigation was sufficiently deficient so as to warrant a new trial, an appellant must allege more than a bare assertion that counsel failed to interview ‘X, Y or Z’ and their testimony would have been helpful, for claims of ineffectiveness cannot be abstractly reviewed in a vacuum. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332 (1981) and Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981).”); Commonwealth v. Wade, 501 Pa. 331, 335, 461 A.2d 613, 615 (1983) (“[defendant] has failed to meet his burden of proving that [the uncalled witness’] testimony at trial could have established an alibi defense, and hence that counsel was ineffective. See Commonwealth v. McKenna, 498 Pa. 416, 446 A.2d 1274, 1276 (1982) .”); Commonwealth v. Guest, 500 Pa. 393, 398, 456 A.2d 1345, 1348 (1983) (“appellant did not make any offer of proof as to the nature of the [uncalled witness’] testimony, nor does the record indicate in what respect the [witness’] testimony could have advanced appellant’s cause. In these circumstances, counsel’s failure to call the [witness] cannot be deemed to be ineffective assistance.”); Commonwealth v. Pettus, supra, 492 Pa. at 563, 424 A.2d at 1335 (“[t]rial counsel’s failure to gather and marshall said evidence on appellant’s behalf could constitute ineffectiveness only if such evidence existed.”); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 609-10, 235 A.2d 349, 355 (1967) (“absent a demonstration that the missing testimony would be helpful, [the claim] cannot be equated with a conclusion of ineffective assistance.”); Commonwealth v. Whyatt, 327 Pa.Superior Ct. 491, 498, 476 A.2d 374, 377 (1984) (“there must be some showing that the witnesses not interviewed were equipped with information which might expand the admissible evidence.”); Commonwealth v. Bailey, 322 Pa.Superior Ct. 249, 262, 469 A.2d 604, 611 (1983) (“trial counsel’s failure to call possible witnesses will not be equated with a conclusion of ineffectiveness of counsel absent some positive demonstration that their testimony would have been helpful to the defense.”).

Notwithstanding his failure to adduce any evidence whatsoever that the uncalled witnesses would have aided his defense, appellee, citing primarily Commonwealth v. Ma-bie, 467 Pa. 464, 359 A.2d 369 (1976), maintains that counsel’s omission in not retaining a professional investigator to search for witnesses was in and of itself ineffective assist-anee compelling a new trial. Appellee’s reliance on Mabie is clearly misplaced.

In Commonwealth v. Wallace, supra, 495 Pa. at 298, 433 A.2d at 858, the court rejected a similar contention and distinguished Mabie on the basis that “there were records and witnesses available to the defense, whereas in the case before us appellant has alleged no benefit that could have resulted from counsel’s investigation.” More recently, this court in Commonwealth v. Whyatt, supra, 327 Pa.Superior Ct. at 498, 476 A.2d at 377 observed that Commonwealth v. Barren, 273 Pa.Superior Ct. 492, 498-499, 417 A.2d 1156, 1159 (1979), had construed the Mabie decision as follows:

[Mabie] should not be indiscriminately expanded to require defense counsel upon the threat of being declared ineffective, to interview all conceivable witnesses irrespective of the nature or extent of the potential information. Trial counsel’s failure to interview potential witnesses will not be equated with ineffective assistance in the absence of a showing that his or her testimony would have advanced the fact finding process.

In short, it is abundantly clear that the failure to conduct a more thorough investigation or to interview all potential witnesses does not constitute per se ineffectiveness. Rather, the touchstone is — as it has always been — whether the defendant has been prejudiced by his attorney’s alleged ineffectiveness. Commonwealth v. Litzenberger, supra.

Furthermore, the trial court’s reliance upon Commonwealth v. White, supra, was likewise misplaced. In White we granted a new trial because the record established that not only had counsel failed to find, interview and call known eyewitnesses, but, most importantly, the witnesses appeared at the evidentiary hearing and established that had they been called at trial their testimony would have been exculpatory. This is a far cry from the case sub judice. Instantly, not only have the alleged witnesses never been produced, there is no indication whatsoever that their testimony — assuming that they do exist and were willing to testify — would be helpful to appellee. Accordingly, we hold that on this record the lower court erred in finding counsel ineffective and awarding appellee a new trial.

The order awarding a new trial is reversed and the case is remanded for sentencing. Jurisdiction relinquished.

      . After the attack ceased and appellee was some eighty feet away, Mr. Taylor was observed taking out and opening his own knife, but he then closed it and put it away.

      . Appellee did not know where the alleged witness, Andre Jackson, lived.

      . New counsel candidly admitted his own inability to locate the putative witnesses.


text:
    488 A.2d 48
    Kassiani SEREFEAS v. NATIONWIDE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued July 24, 1984.
    Filed Jan. 30, 1985.

      James M. Marsh, Philadelphia, for appellant.
    George Wm. Georges, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by Nationwide Insurance Company from a judgment, entered in the trial court in favor of Kassiani Serefeas in the amount of $14,309.40, plus interest, in her claim for benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act (Act). Nationwide denied her claim on the basis of an exclusion clause in her policy which limited coverage to accidents occurring only in the United States, its territories or possessions, and Canada. The trial court found this clause to be violative of the language and intent of the No-fault Act. We affirm.

Plaintiff-appellee Serefeas (appellee) is a citizen of the United States and a Pennsylvania resident. While riding as a passenger with her brother, a resident of Greece, through Yugoslavia on November 10, 1978, his uninsured vehicle struck another in the rear. As a result of this motor vehicle accident, appellee sustained various bodily injuries. She was hospitalized in Yugoslavia, Greece, and Pennsylvania for her injuries.

Appellee was insured under a policy issued to her husband which provided basic personal injury protection (no-fault benefits) to appellee as spouse of an insured residing in his household. Nationwide refused payment of appel-lee’s no-fault benefits on the basis of the territorial exclusion clause of the policy:

All coverages apply in Canada, the United States of America and its territories and possessions, or between their ports. All coverages except Uninsured Motorist coverage apply to occurrences in Mexico if within 50 miles of the United States boundary.

This policy exclusion is authorized by various regulations promulgated by the Insurance Commissioner, which address the relevant issue of “basic loss benefits,” and provide:

Basic loss benefits shall apply to accidents which occur within the United States of America, its territories or possessions or Canada. 31 Pa.Code § 66.1-201.
This endorsement is designed to modify a private passenger automobile liability policy so that it will meet the minimum requirements for provisions of basic loss benefits coverage ... This coverage applies only to accidents which occur during the policy period and within the United States of America, its territories and possessions or Canada. 31 Pa.Code § 66.2(A).

Appellee filed an action in assumpsit on October 15, 1980, seeking recovery of no-fault benefits under the policy. Appellant filed Preliminary Objections to her Complaint in the nature of a demurrer, based on the territorial exclusion clause. In her Answer to the Preliminary Objections, appel-lee alleged that the policy’s territorial exclusion clause was void as contrary to the spirit and letter of the Act. Appellant’s Preliminary Objections were denied, an arbitration hearing was held at which appellee, waiving expenses incurred in Yugoslavia and Greece, presented a claim for expenses incurred only in Pennsylvania. The Board of Arbitrators ruled in appellee’s favor and awarded her $14,-309.40, including her U.S. medical expenses, net work loss, replacement service expenses, and interest.

The issue for our determination is whether the territorial exclusion clause and the relevant regulations of the Insurance Commissioner are contrary to the intent of the Legislature as it appears in the No-fault Act.

Our starting point is the Act itself. Under § 1009.102(b), Purposes, is this pronouncement:

Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors .of deceased victims.

Then, § 1009.201, Right to basic loss benefits; limitations on benefits, provides:

(a) Accident within this State. — If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act.
(b) Accident outside this State. — If the accident resulting in injury occurs outside of this Commonwealth, a victim or a survivor of a deceased victim is entitled to receive basic loss benefits if such victim was or is:
(1) an insured, or
(2) the driver or other occupant of a secured vehicle.

Thus, eligible victims who are injured outside of this state are intended to be compensated.

Appellant reasons that the Act pertains only to accidents occurring in any state of the United States, in the District of Columbia, in Guam or in the Virgin Islands, by citing §§ 102, 103, and 110 of the Act. § 102 speaks in terms of “intrastate,” “Commonwealth highways,” and, “Statwide” system, under “Findings and Purposes”. § 103, Definitions, defines “state” as above. § 110 refers to the applicability of insurance of a motor vehicle by an owner in this Commonwealth to compliance with another state’s requirements for such when the vehicle is operated there. Thus, appellant contends, the territorial exclusionary clause of its policy and the regulations of the insurance commissioner are authorized by the Act.

This piecemeal approach indicates the contrary to this court. It is not clear that what the Legislature meant in § 201 by “outside of this Commonwealth” was limited to any state in this country, the District of Columbia, Guam or the Virgin Islands. Especially is this true when § 1009.208, Ineligible claimant, is considered. That section excludes converters of motor vehicles and those who intentionally injure themselves or others from the benefits of the Act. As this court said in Gerardi v. Harleysville Insurance Co., 293 Pa.Superior Ct. 375, 378, 439 A.2d 160, 161 (1981):

“It is an elementary rule of statutory construction that ‘exceptions expressed in a statute shall be construed to exclude all others’. 1 Pa.C.S.A. § 1924 (Supp.1981-82).”

No mention in the No-fault Act is made of an intent to exclude those injured outside a certain distance of the territorial boundaries of Pennsylvania. In fact, without qualification, as quoted above, § 1009.201 of the Act provides for coverage for those injured “outside of this Commonwealth” if the eligible victim or survivor of a deceased victim was or is (1) an insured; or (2) the driver or other occupant of a secured vehicle. The plaintiff in this case qualifies as an insured; appellant concedes this, but denies her benefits because she was injured too far from Pennsylvania.

It is helpful to refer to the Uniform Motor Vehicle Reparations Act (UMVARA), Section 2(b), which is very similar to § 1009.201(b) of the Pennsylvania Act.

Section 2(b) reads:

(b) If the accident causing injury occurs outside this State, the following persons and their survivors suffering loss from injury arising out of maintenance or use of a motor vehicle have a right to basic reparation benefits:
(1) basic reparation insureds, and
(2) the driver and other occupants of a secured vehicle, other than (i) a vehicle which is regularly used in the course of the business transporting persons or property and which is one of 5 or more vehicles under common ownership, or (ii) a vehicle owned by an obligated government other than this State, its political subdivision, municipal corporations or public agencies.

The Comment to that section explains:

To the extent this Section entitles persons to basic reparation benefits for injury caused by accidents outside this State, there are no territorial limits to that entitlement. Basic reparation insureds are thus covered for motor vehicle injury accidents on a world-wide basis, and occupants of a secured vehicle are covered whenever the vehicle is operated.

This interpretation in the UMVARA is consistent with the purposes of the No-fault Act of providing maximum feasible restoration of victims of motor vehicle accidents. While it is true that the “Findings and purpose,” section 1009.102 of the Act speaks in terms of “over Commonwealth highways” and a “Statewide system,” we do not understand that language to limit those who may benefit to victims of accidents occurring in Pennsylvania. No one is arguing that limitation. The Act itself provides for compensation for accidents occurring outside the Commonwealth.

We are persuaded that no limitations can reasonably be grafted into the “outside the Commonwealth” language of Section 1009.201(b). The purpose of the Act to provide maximum feasible compensation and the spirit of the Act as not expressly limiting coverage to any particular area command such a result.

Nationwide argues that its exclusion was written in reliance on the regulation of the commissioner which also purported to authorize such a limitation. However, as our court ruled in Wilbert v. Harleysville Mut. Ins. Co., 254 Pa.Superior Ct. 217, 385 A.2d 987 (1978), an administrative agency may not promulgate regulations contrary to the legislative intent expressed in the statutory provision to which the regulation relates, citing Xerox Corp. v. City of Pittsburgh, 15 Pa.Cmwlth. 411, 417, 327 A.2d 206, 210 (1974). In that case, the insurer incorporated an exclusion into its uninsured motorist policy that appeared in a sample form of the insurance commissioner. The exclusion was clearly not adopted by the legislature, so our court struck both the insurance department’s regulation and the particular policy’s exclusion.

In the instant case, as has been seen, legislative intent was not expressed. However, our interpretation of the language and the spirit of the No-fault Act persuades us that the trial court was correct in invalidating the territorial exclusion.

Judgment affirmed.

      . 40 P.S. §§ 1009.101, et seq.

      . In Gerardi, this court rejected an almost identical territorial exclusion in an uninsured motorist’s policy and described it as contrary to the Uninsured Motorists Act, 40 P.S. § 2000(e), and, as such, declared it as invalid and unenforceable as a matter of law.

      . D.S. Shrager, The Pennsylvania No-Fault Motor Vehicle Insurance Act 547, Appendix D, (1979).

      . One commentator has expressed this opinion regarding the regulation at issue:
      Although the Pennsylvania No-fault Act itself is silent on the subject, the Insurance Department regulations limit the availability of basic loss benefits to “accidents which occur within the United States of America, its territories or possessions or Canada." The exclusion has recently been declared invalid in the context of uninsured motorist coverage. In Schmitt v. Hertz, [6 D. and C.3d 410 (Allegheny Co., 1978) ] and insured woman was injured in Poland. Her claim for no-fault benefits was denied, based upon the territorial exclusion included in the model no-fault policy. The court held that the exclusion was invalid, citing the intent of the Uninsured Motorist Act to provide broad coverage, and the failure of the legislature to include such an exclusion in the specific language of the Act. The continued validity of the territorial exclusion in Pennsylvania no-fault cases is, therefore, a matter of significant doubt.
      Schrager, supra, at pp. 138-9.


author: BROSKY, Judge: SPAETH, President Judge,

text:
    488 A.2d 51
    Deborah PRETO, Appellant, v. TRAVELERS INSURANCE COMPANY & Pennsylvania Assigned Claims Plan.
    Superior Court of Pennsylvania.
    Argued May 2, 1984.
    Filed Feb. 1, 1985.

      James L. Womer, Philadelphia, for appellant.
    Michael Cannon, Philadelphia, for appellees.
    Before SPAETH, President Judge, and BROSKY and BECK, JJ.
   BROSKY, Judge:

This appeal is from judgment on the pleadings in favor of appellee, Pennsylvania Assigned Claims Plan (PACP) and against appellant. It is argued that the PACP can, as a matter of law, be liable to a claimant under the plan. As to theory advanced by appellant for the basis of such liability, we disagree. The instant order granting judgment on the pleadings is, accordingly, affirmed.

The relevant background is as follows. Appellant was injured in a motor vehicle accident and filed a claim with the PACP for No-Fault benefits. The claim was assigned by the PACP to Travelers Insurance Company. Travelers did not pay appellant’s medical bills and lost wages and appellant instituted suit against Travelers and the PACP. Judgment on the pleadings was granted in PACP’s favor and this appeal followed.

According to the case law of this Commonwealth, conclusions of law need not be included in a complaint. The legal theories upon which the plaintiff bases his cause of action are not a necessary element of the complaint. Del Conte v. Stefonick, 268 Pa.Super. 572 at 577, 408 A.2d 1151 at 1153 (1979) (Hoffman, J.). Appellant’s complaint did not include such theories of recovery but, quite permissibly, limited itself to the underlying facts. It remains for us to determine whether the trial court correctly concluded that there is no cause of action presented in the complaint. On the other hand, our consideration of trial court error as a function of theories of liability is limited to the one theory argued by appellant in his brief. Upon reflection we conclude that the PACP can never, contrary to appellant’s assertion, be liable for its assignee’s subsequent handling of the claim.

We read appellant’s brief as proposing a particular cause of action against the PACP. This is based on PACP’s alleged status as the initial insurer, which obligation to insure it assigns, in a contractual sense of the word, to the insurer. Under this theory, the PACP is still responsible for the proper performance of the assigned insurer’s duties. We reject this argument.

The statute does not impose on the PACP the role of primary insurer. Rather, the PACP’s role is to assign the claim, in the sense of choosing an appropriate insurer. This assignment, to repeat, is the duty of determining which insurer will responsibly handle the claim — and notify the claimant of that choice. It is not assigning its contractual duties of insuring the claimant, for it never had those duties.

It is this point that the trial court relied upon and we approve of its decision on that point.

The order granting judgment on the pleadings in favor of PACP and against appellant is affirmed.

SPAETH, President Judge, files concurring statement.

BECK, J., joined in both majority opinion by BROSKY, J., and concurring statement by SPAETH, President Judge.

SPAETH, President Judge,

concurring:

I agree that the order of the trial court should be affirmed, but on reasoning different from the majority’s.

Appellant argues that she may maintain an action against the Pennsylvania Assigned Claims Plan for no-fault benefits because Travelers Insurance Company, the insurance company to which the Plan assigned appellant’s claim, has failed to pay the claim. This argument is without merit. The claim having been assigned to Travelers, Travelers— not the Plan — became responsible for payment. The No-fault Act so provides:

(2) The assigned claims bureau shall promptly:
(A) assign each claim for no-fault benefits to an assignee who shall be a participating insurer; and
(B) notify the claimant of the identity and address of such assignee.
Claims shall be assigned so as to minimize inconvenience to claimants. The assignee thereafter has rights and obligations as if he had issued a policy of basic loss insurance complying with this act applicable to the injury or, in a case involving the financial inability of a restoration obligor to perform its obligations, as if the assignee had written the applicable basic restoration insurance, undertaken the self-insurance, or lawfully obligated itself to pay basic loss benefits.
40 P.S. § 1009.108(b).

In its opinion the trial court states:

The No-Fault Act does not give the Plan any discretion concerning claims after they have been assigned to an insurance carrier. The Plan has no authority to determine liability for payments nor the amount thereof. These matters are determined solely by the insurance carrier involved.
In this case the Plan complied with the statute by assigning this case to Travelers Insurance Company and said insurance company has agreed to process the claim and the suit resulting therefrom. After the assignment of this case to the insurance carrier, there was no further action required by The Plan.
It is obvious that Plaintiff cannot recover both from Travelers Insurance Company and The Plan. If plaintiff has a claim he must look to Travelers alone for payment. Slip op. at 3.

I agree with this reasoning and should adopt it.

BECK, J. joins in both majority opinion by BROSKY, J., and concurring statement by SPAETH, President Judge.

      . Of course, an improper handling of the claim by the assignee could be evidence of an improper assignment.


author: BROSKY, Judge:

text:
    488 A.2d 53
    In re DAMON B., a Minor Child. Appeal of JOAN B., Mother of the Minor.
    Superior Court of Pennsylvania.
    Argued October 25, 1984.
    Filed Feb. 1, 1985.
    Petition for Allowance of Appeal Denied Aug. 5, 1985.

      Lorraine D. Taylor, McKeesport, for appellant.
    Mark P. Cancilla, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   BROSKY, Judge:

This appeal is from an order continuing custody with the foster parents, providing for visitation with the natural mother every 90 days and directing Children and Youth Services to “take appropriate action to achieve the goals of its permanent plan for said child consistent with the above findings.” Those findings concluded with the following:

(35) This child’s primary need at this time is security in his placement with the Krepineviches.
(36) Though not guaranteed, termination of parental rights and adoption by the Krepineviches can best meet this need.

We affirm those portions of the order continuing custody and scheduling visitation and reverse as to the permanent plan. Given that there were no findings of fact which would, in the future, justify termination of parental rights; and given that there was a finding of fact that the natural mother is a fit mother, we can only conclude that a permanent plan leading to termination of the natural mother’s rights is inappropriate and that a permanent plan leading to the ultimate return of the child to his natural mother is indicated.

Background

Damon B., the child who is the subject of the appealed from order, was born in 1977. At the age of seven months he was adjudicated dependent and returned to his mother’s custody. When he was 15 months old he was removed from his home and has been in the custody of CYS and in the foster home of the Krepineviche’s since shortly thereafter through the present. In 1981 an order substantially identical to the present one was appealed to this court.

This court affirmed the visitation portion of the order, vacated the portion of the order directing that a permanency plan be formulated and remanded for further consideration of permanency planning.

Following that remand a hearing was held and the instant order issued. The natural mother, Joan B. has appealed and briefs have been filed by CYS, foster parents and on behalf of Damon B.

Scope of Review

Initially, it must be made clear that the order appealed from is not one terminating parental rights, but a custody order mandating planning with termination as a goal. Within the context of a custody case, our appellate scope of review is dependent on what is being examined. As to the lower court’s findings of fact, the following scope obtains: if the issue is whether we should reverse the lower court’s findings of fact, we must defer the lower court and reverse only where, in making the findings, the lower court abused its discretion.” Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239 at 244, 447 A.2d 630 at 633 (1981) as quoted in In re Donna W., 325 Pa.Super. 39 at 43, 472 A.2d 635 at 637 (1984) (en banc). However, as to the inferences and deductions to be made from those facts — the ultimate conclusions — the scope is different. “Our scope of review in a custody matter is of the broadest type, and we are not bound by deductions or inferences made by a trial court. ... We must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate.” Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292 at 295-7, 426 A.2d 555 at 557 (1981) as quoted in In re Donna W., supra, 325 Pa.Superior Ct. at 42, 472 A.2d 635 at 637 (1984). This statement is totally consonant with that stated in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

In disposing of this appeal we conclude that the findings of fact are supported by the evidence and thus do not constitute an abuse of discretion. Accepting, then, the factual findings of the court below, we review, using our independent judgment, the conclusions that were drawn from them. We find them to be incorrect.

Termination Plan

In a child custody proceeding the guiding standard is the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972). In determining what those best interests are, the court should take into account certain considerations; among these are the stated purposes of the Juvenile Act. “To preserve the unity of the family whenever possible ...” 42 Pa.C.S. 6301(b)(1). That policy is echoed in the well-detailed and restrictive requirements that must be met in order for parental rights to be terminated. 23 Pa.C.S. § 2511. None of the factual findings of the court below establish or even relate to any of these requirements. In view of this it is both unrealistic and undesirable that a permanent plan leading to termination of parental rights be formulated. What then is the alternative?

We note with approval the following statement made by the Pennsylvania Department of Public Welfare. “No child should be allowed to drift in an out-of-home placement without the specific decision that he will be returned to his/her parents or be freed from parental custody and placed for adoption.” 10 Pa.Bull. 1046-54. Since termination of parental rights is not a permissible option here, the alternative is to formulate a permanent plan to return Damon B. to his natural mother. Some factors to be evaluated in this regard are laid down in In re: Donna W., 284 Pa.Super. 338 at 346, 425 A.2d 1132 at 1136 (1981) (Hoffman, J.). Among those factors are “... the fitness of the party or parties seeking custody____ The latter consideration is, of course, especially, important when a parent is seeking the return of a dependent child, since in many cases the original finding of dependency and removal of the child resulted from the parent’s past unfitness to retain custody.” Relevant to this factor is the lower court’s finding of fact: “(20) As evidenced by the satisfactory adjustment of the five children in her home, Ms. Brown has alleviated the problems which necessitated their removal and is a fit parent.” Also noteworthy are the statements regarding the bonding of children with their foster parents made in In re: Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) (en banc).

Our conclusions may be simply stated. A child should not exist in a permanent state of limbo in a foster home. When the alternative of termination of parental rights is in no way indicated, the other alternative, return to the natural parent, must be actively planned for. In this case, given the natural mother’s current fitness as a parent and the child’s advancing age, such a plan should include periodic reevaluation of the desireability of increasing the frequency of visits.

Order affirmed as to custody and visitation and reversed as to the permanent plan leading to termination of parental rights. A permanent plan leading to the return of Damon B. is to be formulated and implemented and we remand for that purpose. Jurisdiction relinquished.

      . We note with concern that only a week less than a year has elapsed from the date of the order appealed from to the date of oral argument before this court. Given the critical nature of this type of appeal and the changeability of the underlying facts, such a delay is insupportable. The highest priority which these cases are given post-argument only follows, unfortunately, this unconscionable pre-argument lag time. We commend this problem to the attention of this court, the Courts of Common Pleas of this Commonwealth and the Bar of Pennsylvania for their cooperative consideration and solution.

      . The Krepineviches are the foster parents.

      . In re Damon B., 314 Pa.Super. 391, 460 A.2d 1196 (1983).

      . (a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
      (1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
      (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
      (3) The parent is the presumptive but not the natural father of the child.
      (4) The child is in the custody of an agency, having been found under such circumstances that the identity or whereabouts of the parent is unknown and cannot be ascertained by diligent search and the parent does not claim the child within three months after the child is found.
      (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental right would best serve the needs and welfare of the child.


text:
    488 A.2d 56
    In Reference to ADOPTION OF BABY BOY McKNIGHT, a Minor. Appeal of Harriet I. OWENS.
    Superior Court of Pennsylvania.
    Argued May 1, 1984.
    Filed Feb. 1, 1985.

      Albert Momjian, Philadelphia, for appellant.
    Susan D. Scott, Doylestown, for appellee.
    Before SPAETH, President Judge, and BROSKY and CIRILLO, JJ.
   BROSKY, Judge:

This appeal follows the denial of a Petition for Adoption filed by appellant and her former husband. For the reasons that follow, we affirm.

Appellant, Harriet I. Owens and her then husband, John F. Owens, received the child Jonathan, whose adoption is at issue, on February 12, 1980. The couple had been interested in adopting a child for several years and obtained Jonathan a few days after his birth with the help of an intermediary.

A Notice of Intention to Adopt was filed by Mr. and Mrs. Owens on April 24, 1980 and the intermediary filed a report on October 20, 1980.

Testimony at the several hearings held in this case indicates that Mr. and Mrs. Owens were not prompt about returning the forms necessary to finalize the adoption. It seems that Mrs. Owens in particular had difficulty completing the paper work and necessary physical examination. The home visit which is conducted by an Orphans Court investigator as part of the adoption process was also delayed and the evidence indicates that again this was due to the Owenses.

A home visit was made, however, and following it, on March 23, 1982, the Orphans’ Court investigator filed a report recommending that the adoption be finalized. Apparently, though, she did express concern about the length of time that had elapsed without the adoption being finalized. On August 27, 1982 the investigator filed another report recommending that the adoption hearing scheduled for September 2, 1982 be continued or that the adoption not be finalized.

The investigator’s change of position in August followed an unfortunate incident that occurred at the Owens home on August 20, 1982. On that night Mrs. Owens found her dog dead in the basement lying in a pool of blood. She became very upset and although it was after 11:00 p.m. she left her house, leaving Jonathan alone and asleep. The child was 2V2 years old. Before leaving him Mrs. Owens had had a conversation with a veterinarian, whom she had telephoned about her dog. The veterinarian found the conversation disturbing since he understood Mrs. Owens to say that she had taken a drug overdose. Consequently, he called the police who arrived at the home and found Jonathan unattended. The Bucks County Children and Youth Services Agency was called and a social worker went to the house. Mr. and Mrs. Owens had been separated since early in August and Mr. Owens was also called to the house. Mrs. Owens returned around 3:30 a.m. and found the police, her husband and the social worker. She explained that she had been distraught and had gone to her brother’s house and then to her mother’s. Eventually the police and social worker left having decided that Jonathan was not in danger for the time being. Mr. Owens’ left shortly after the others.

When the Orphans’ Court investigator learned of the August 20 incident and the Owens’ separation she filed her August 27 report.

On August 31, 1982 following a conference attended by counsel for Mrs. Owens, Jonathan was removed from the Owens’ home pursuant to a court order obtained by Children and Youth Services. He was placed in foster care and Mr. and Mrs. Owens visited with him once a week. They also attended counselling sessions and had Jonathan examined by a psychologist in an attempt to determine the cause of a speech lag which he exhibited at that time.

On November 17, 1982 another court conference was held attended by counsel for both parents as well as counsel appointed to represent Jonathan.

Jonathan was returned to the Owenses on November 18, 1982 where he remained until December 3, 1982 at which time he was again removed from the home pursuant to a court order obtained by Children and Youth Services.

From November 18 to December 2, Mr. and Mrs. Owens had resided together in their home and were attempting a reconciliation. However, on December 2 an argument ensued which culminated in Mrs. Owens calling the police to the house because Mr. Owens had knocked down the door to her bedroom. After the police had gone, Mr. Owens also left the house permanently. He then contacted Children and Youth Services and said that he no longer wished to go through with the adoption. The December 3 order followed. Jonathan was placed with another pre-adoptive family later that month and his natural parents’ parental rights were terminated on February 9, 1983.

Harriet Owens sought to adopt Jonathan as a single parent and a series of hearings were held from March to September, 1983 which resulted in the December 1, 1983 Order from which this appeal is taken.

The primary issue before us is whether the lower court correctly determined that it was not in Jonathan’s best interests to be adopted by Mrs. Owens. Preliminarily, however, we will address the other issues raised by appellant.

Mrs. Owens argues that the lower court erred in entering its August and December Orders directing that Jonathan be removed from her home. Specifically she contends that the court failed to comply with Orphans’ Court Rules 3.2, 3.4 and 3.5 as they relate to the use of petitions and the giving of Notice. We note further that as early as the August 30 conference Mrs. Owens was represented by counsel. Her attorney also attended the conference that preceded Jonathan’s return to her home in November. Any failure to provide notice was not contested by Mrs. Owens, nor did she suffer any prejudice therefrom.

Moreover, Orphans Court Rule 2.1 provides:

The rules adopted by the Supreme Court regulating the practice and procedure of the Orphans’ Courts of this Commonwealth, and the rules adopted by such courts, shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties in interest. (Emphasis added).

No substantial rights of Mrs. Owens were affected by any procedural irregularity that may have occurred in this case.

The remaining issues raised by Mrs. Owens relate to the finding of the lower court that Jonathan’s speech improved after he was removed from the Owens’ home and to the decision making process by which the lower court determined that the Owens’ petition should be denied. We have carefully reviewed the transcripts of the several hearings and the comprehensive opinion filed by the trial court and agree with its conclusion.

We recognize that this is a very difficult situation for Mrs. Owens, who, we might assume, genuinely cares for Jonathan. We are not without sympathy for her, but we must base our decision on what we perceive to be best for Jonathan, not Mrs. Owens. See Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 445 A.2d 1314, 1321 (1982) (once the natural parents’ parental rights have been terminated, the best interest of the child becomes the criterion by which a court must be guided.) The record discloses that Mrs. Owens has a history of depression which apparently manifested itself in an inability to complete projects, cooperate with her husband and lead a life outside of her home.

Particularly in view of Mr. Owens’ decision not to seek the adoption we agree that it was not in Jonathan’s best interest to be adopted by Mrs. Owens and we therefore affirm the order of the lower court.

      . Appellant also contests the lower court’s finding that she lacks standing to oppose the dismissal of her adoption petition since she no longer has physical custody of the child. We need not reach this issue, however, since it is clear that the court did not dismiss her petition simply because she no longer had custody of Jonathan.
      Rather, the court noted that the petition had been filed by both Mr. and Mrs. Owens and that Mr. Owens no longer wished to pursue the adoption. More importantly the court carefully considered and discussed at length the testimony relating to Mrs. Owens’ parenting of Jonathan and despite its observation that she lacked standing, effectively treated her as if she did have standing.
      We would add, however, that we would not wish to give the impression that removal of a child from the home of prospective adoptive parents precludes those prospective parents from contesting the child’s removal or the denial of their petition to adopt. Having filed such a petition, they are surely entitled to prosecute it.

      . We will not reiterate what the lower court so carefully narrated, but we do note also the incident in June, 1982 in which the police were called to the Owens’ home by a neighbor who had observed behavior by Mrs. Owens that caused her alarm.

      . We emphasize that our decision today is based on the unique facts of this case and should not be seen as an indication that this court disapproves of adoptions by single persons.


author: ROWLEY, Judge:

text:
    488 A.2d 59
    Joseph TAYLOR, Appellant, v. OXFORD LAND, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed Feb. 1, 1985.

      Kenneth P. Simon, Pittsburgh, for appellant.
    David I. Ainsman, Pittsburgh, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

The principal issue presented by this appeal is whether a local rule of court that provides for the automatic termination of cases in which there has been no activity of record for a period of two years or more, without notice of an opportunity for a pre-termination hearing, is inconsistent with Pennsylvania Rule of Judicial Administration 1901(c) so as to render the local rule ineffective and unenforceable. The trial court held that its local rule was not inconsistent with Rule 1901(c) and denied appellant’s petition to “reactivate” his case. After consideration of the arguments presented, we hold that the local rule is inconsistent with Rule 1901(c) and reverse.

Appellant’s cause of action is for an alleged breach of a contract wherein he sold certain real estate to the appellee. According to the complaint, appellant retained the ownership of certain pipe buried in the ground. The agreement provided that the appellant was to be given written notification prior to the removal of the pipe from the ground. Alleging that appellee failed to provide such notification, appellant instituted this action for his resulting damages.

The action was instituted by the filing of a complaint on November 19, 1968. The docket reflects that there was activity until March 31, 1969. No further action is reflected on the docket until September 2, 1980. However, according to the record before us, appellant, on June 22, 1970, filed a petition for arrangement under the National Bankruptcy Act. Although a trustee was appointed in the bankruptcy

proceedings, neither appellant nor his trustee undertook any activity in this case. Eventually the bankruptcy proceedings were terminated on December 13, 1978.

On September 2, 1980, the case was placed at issue by appellant. Jury selection was scheduled to commence on March 15, 1982. On February 19, 1982, appellant filed his pre-trial statement. However, on March 12, 1982, following oral argument by the parties, the trial court entered an order stating that the case was terminated by reason of Allegheny County Local Rule 229(e). Subsequently, on May 12, 1982, appellant filed a petition to reactivate the case. The trial court entered an order denying that petition and this appeal followed.

On appeal, appellant raises several issues. He questions whether his cause of action could have been terminated without notice to the bankruptcy court, whether the local rule providing for automatic termination without notice conflicts with Pennsylvania Rule of Judicial Administration 1901(c) and whether the local rule violates the due process clause of the United States Constitution. Since we have determined that the local rule conflicts with Rule 1901 promulgated by the Pennsylvania Supreme Court, it is not necessary to reach the other issues presented.

On June 26, 1974, the Allegheny County Court of Common Pleas promulgated Local Rule 229, to become effective on January 1, 1975. Rule 229 provides for the automatic termination “by operation of law” of any matter in which there has been no activity of record for two years or more. The rule contains a provision for reactivation of a case by the court for “good cause” shown. The first period of two years was to commence retroactively on January 1, 1973. In a note accompanying the rule, the court stated that the local rule was adopted pursuant to Rule 1901 of the Pennsylvania Rules of Judicial Administration.

Rule 1901(c) provides in relevant part,

(c) Minimum standards. Before any order terminating a matter on the ground of unreasonable inactivity is entered, the parties shall be given at least 30 days’ written notice of opportunity for hearing on such proposed termination, ____ (emphasis added)

Thus, appellant argues, the Allegheny County rule is inconsistent with the general rule promulgated by the Supreme Court because it does not contain a provision for “at least 30 days’ written notice of opportunity for hearing on such proposed termination,”.

Allegheny County’s Rule 229 has been considered by our Court on three prior occasions. However, at no time was the precise issue presented here reached or decided. In Jay Dee Contractors, Inc. v. National Mine Service Co., 335 Pa.Super. 39, 483 A.2d 943 (1984), our Court quashed as interlocutory an appeal taken by the defendant from an order of the trial court which denied defendant’s petition to strike plaintiff’s complaint pursuant to Allegheny County Rule 229(e). In that case, the trial court had held that its Local Rule 229(e) was in conflict with Pennsylvania Rule of Judicial Administration 1901 and was therefore invalid. In Stawiarski v. Hall, 300 Pa.Super. 67, 445 A.2d 1302 (1982), a panel of this Court reversed an order of the trial court which had reinstated the plaintiff’s cause of action. This Court held that the trial court had abused its discretion in finding the existence of “good cause” to reinstate the plaintiff’s action. The issue of the validity of the local rule was apparently not raised on appeal and was not discussed in this Court’s opinion. In Bon Homme Richard Restaurants, Inc. v. Three Rivers Bank & Trust Co., 298 Pa.Super. 454, 444 A.2d 1272 (1982), our Court held that a second action instituted by the plaintiff was barred by the dismissal under Local Rule 229 of plaintiff’s first action based on the same cause of action.' Interestingly, in that case, prior to termination of the first case the defendant had, apparently, filed a petition asking that the first action be dismissed. Thus, in spite of the language of the local rule, termination was not “automatic”.

Our attention has been called to a number of cases dealing with Philadelphia County Local Rule 130, which similarly provides for termination of inactive cases. See Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983), Chaplynsky v. Broad Street Hospital, 305 Pa.Super. 497, 451 A.2d 757 (1982), Austin v. Southeastern Pennsylvania Transportation Authority, 304 Pa.Super. 56, 450 A.2d 98 (1982), Stringer v. Kaytes, 286 Pa.Super. 551, 429 A.2d 660 (1981), and Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980). However, the Philadelphia rule requires notice by publication in the Legal Intelligencer sixty days prior to termination for inactivity. Thus, none of the cases involving the Philadelphia rule reach the issue presented in this case.

In interpreting Pennsylvania Rule of Judicial Administration 1901, we look to the language used by the Supreme Court in promulgating the rule as well as the Court’s intent and purpose in promulgating it. It is clear that the rule is intended to eliminate from the judicial system those stale claims which have apparently been abandoned or resolved by the parties without any entry on the court’s docket. The rule constitutes an attempt to establish a system whereby the dockets of the Commonwealth’s trial courts contain, with a reasonable degree of certainty, only those cases in which there is an ongoing dispute. It is important for the proper management of a court docket to eliminate periodically those cases which no longer require the court’s time or attention. The Supreme Court has, by language which we find to be clear and unambiguous, provided for such an effective management tool.

Although the rule was not intended to achieve a substantive disposition of cases on their merits, the fact is that its application may have such a practical effect. See, e.g., Stawiarski v. Hall, supra. Because the application of the rule may have such an effect, we believe the Supreme Court intended clearly, unambiguously and unmistakeably, that the trial court provide pre-termination notice to the parties before it clears its docket of such cases. Rule 1901(c) starts with a provision that before “any order terminating a matter on the ground of unreasonable activity is entered, the parties shall be given notice of the proposed termination.” The Court’s use of the terms “shall” and “proposed” makes such notice a prerequisite to the “termination” of stale cases. It is difficult to imagine any clearer command than that used by the Supreme Court.

Appellee, however, relies on a statement contained in the Comment to Rule 1901:

Under Rule 1901(c)(2), in those cases where it is unduly burdensome to research the captions, parties and mailing addresses of cases which have been inactive for two years or more, the moribund matters may be terminated by the adoption and publication of a general refiling requirement, without service of individual notice. Under such a local rule, matters in which no paper has been filed within the previous two years would be terminated without any further entry in the docket,____

Appellee argues that this statement contained in the Comment authorizes the adoption of a local rule which eliminates entirely the pre-termination notice required in the Rule itself. Even if we were to conclude that the Comment has the meaning ascribed to it by appellee, we could not ignore the plain and clear language of the Rule. While comments may be a useful aid in interpreting the purpose or meaning of a rule of procedure, they cannot change the plain meaning of the rule. Thus, if there is a conflict between the rule and a statement contained in the comment, the rule must govern.

In any event, we do not construe the comment to have the meaning ascribed to it by appellee. Rule 1901(c) provides, two methods of giving the prescribed pre-termination notice. Notice must be given in person or by mail, or by publication “in the manner provided by rule of court----” The statement contained in the Comment clearly refers to the second method of providing notice, that is, by publication. As we understand it, the 30 days prior notice may be given periodically, by the trial court’s entry of an order or adoption of a general rule providing for the publication of a list of cases by name and docket number in which there has been no activity for a period in excess of two years. After such publication, those cases listed in the notice will then be considered terminated if no action is taken within the 30 days provided. Such an interpretation thus gives meaning to both the rule and the comment. A contrary interpretation, as urged on us by appellee, however, would effectively rewrite the rule and eliminate the requirement for pre-ter-mination notice. Such an interpretation would render subsection (c) utterly meaningless and without effect. We do not believe that the Supreme Court, in adopting Rule 1901(c), intended to perform a useless act.

Therefore, since we have concluded that the clear language of Rule 1901 requires pre-termination notice and because the Allegheny Court of Common Pleas’ local rule fails to provide for such notice, it is ineffective and unenforceable. Therefore, appellant’s case was not “automatically” terminated and the order is reversed.

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


author: OLSZEWSKI, Judge:

text:
    488 A.2d 63
    COMMONWEALTH of Pennsylvania, Appellant v. Logan Warren McLAUGHLIN.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1984.
    Filed Feb. 1, 1985.

      Frederick J. Ammerman, Assistant District Attorney, Clearfield, for Commonwealth, appellant.
    John Woodcock, Jr., Public Defender, Hollidaysburg, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In this case the Commonwealth appeals from a lower court order discharging appellee from custody.

This case has a long and tortuous history. Logan Warren McLaughlin was indicted September 25, 1972 on a general charge of murder stemming from the slaying of his wife. On December 20, 1973, appellee entered a plea of guilty to a charge of second degree murder pursuant to a plea bargain. The court accepted the plea and on March 20, 1975, Mr. McLaughlin was sentenced to ten to twenty years in a state correctional institution.

Appellee appealed the entry of the guilty plea and the Supreme Court reversed the judgment of sentence and remanded the case with instructions that appellee be permitted to withdraw his guilty plea. Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976). The plea was withdrawn and on February 8, 1977, appellee had a jury trial on a general charge of murder. On February 12, 1977, the jury found appellee guilty of second degree murder. He was sentenced to ten to twenty years in the state correctional institution at Rockview.

Mr. McLaughlin once again appealed and once again the Supreme Court reversed the judgment of sentence and remanded the case for a new trial. Commonwealth v. McLaughlin, 485 Pa. 267, 401 A.2d 1139 (1979).

Following the Supreme Court’s remand, the District Attorney of Blair County replaced the District Attorney of Clearfield County as the Commonwealth’s representative in this case. This move was prompted by the initial decision in Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525 (1980). Prior to the commencement of appellee’s second trial, the Commonwealth filed several petitions for extension of time for the commencement of trial. The initial petition was filed September 18, 1979, and was granted on September 28, 1979. This grant extended time through November 30, 1979. A November 16, 1979, petition was also granted extending time through the last day of February, 1980. A third petition for extension was timely filed on February 28, 1980, and a hearing on this petition was scheduled for March 15, 1980.

At the March 15, 1980 hearing, defense counsel, Richard H. Milgrub, the Public Defender of Clearfield County, requested permission to withdraw from the case. The Clear-field County public defender likewise claimed a conflict of interest as defined in Commonwealth v. Miller, supra.

Following an extensive on-record colloquy between the court, prosecutor, defense counsel and defendnt, the request to withdraw as counsel was granted. In its colloquy, the lower court directed Mr. Milgrub to secure substitute counsel for appellee, then and now indigent. The court then advised Mr. McLaughlin that the need to obtain and prepare new counsel would necessarily cause a delay, and that this delay would be attributed to him and not to the Commonwealth for purposes of Rule 1100. It is undisputed that throughout the colloquy appellee demonstrated both understanding and acquiescence. Upon conclusion of the colloquy, the lower court tabled the Commonwealth’s outstanding petition for extension along with appellee’s pro se petitions seeking dismissal under Rule 1100 and recusal of the trial court. The case was then continued until such time as new counsel indicated his readiness to proceed with the case. No further petitions for extension were filed by the Commonwealth and no formal entry of appearance by counsel was ever made on behalf of Mr. McLaughlin.

On December 1, 1980, the case was called for jury selection and the lower court also heard testimony regarding appellee’s outstanding motions tabled because of counsel’s withdrawal. The lower court denied appellee’s petition seeking recusal on December 1, 1980 and on December 2, 1980, also denied the petition seeking dismissal'. The case proceeded to trial and on December 5, 1980, the jury found Mr. McLaughlin guilty of second degree murder. Post-trial motions were argued before the court on October 15, 1982. On March 29, 1983, the lower court granted appellee’s motion in arrest of judgment and discharged Mr. McLaughlin from custody. The lower court based its order and discharge on an alleged violation of Rule 1100.

The Commonwealth contends that the lower court erred in finding a Rule 1100 violation. The Commonwealth advances alternative theories to support its contention. First the Commonwealth asserts that appellee was not entitled to relief under Rule 1100 since he waived his Rule 1100 rights at the March 15, 1980 hearing. Alternatively the Commonwealth claims that the lower court erred when it refused to exclude, for Rule 1100 computation purposes, the entire period of March 15, 1980 through December 1, 1980, as a period when either the defendant or his attorney was “unavailable” for trial. We reject both Commonwealth theories and affirm the order judgment of sentence of the lower court.

On March 15, 1980, the trial court continued the case indefinitely so that new counsel could be appointed and become acquainted with the proceedings. No date was ever set for the expiration of the continuance. In Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), the Supreme Court announced that “... in the future we will require that continuances be granted for a specified time...” Id., 477 Pa. at 406, 383 A.2d at 1271. Clearly, the continuance granted on March 15, 1980, violated this rule. The question before this Court, therefore, is what effect does this violation have on appellee’s purported waiver of his Rule 1100 rights.

In Commonwealth v. Hensley, 295 Pa.Super. 225, 441 A.2d 431 (1982), a panel of this Court was faced with essentially the same issue. In Hensley, we cited the Coleman decision and concluded that the waiver in that case was defective because it failed to state the period of the continuance. However, we further held that the defect was later cured when the lower court advised the appellant on the record of his Rule 1100 right to a speedy trial and when the appellant agreed to a trial date during the first week of July.

Thus in Hensley, the defective waiver was cured when the parties agreed upon a date certain for the expiration of the waiver. In the instant case, although appellee was advised of his right to a speedy trial, he was never advised as to the duration of his forfeit of this right. In other words, the lower court’s on record colloquy did not cure appellee’s defective waiver. We hold that appellee did not make an informed waiver and that, therefore, the waiver was not valid. See, Commonwealth v. Guldin, 502 Pa. 66, 463 A.2d 1011 (1983); Commonwealth v. Zabala, 310 Pa.Super. 301, 456 A.2d 622 (1983).

The Commonwealth’s alternative argument is that the period of time from March 15, 1980 through December 2, 1980, should have been excluded for Rule 1100 purposes. In support of its argument the Commonwealth cites Pa.R. Crim.P.Rule 1100(d)(1), 42 Pa.C.S. At the time of this case, Rule 1100(d)(1) provided:

(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;

The Commonwealth maintains that the delay from March 15, 1980 to December 2, 1980, was directly caused by the withdrawal of appellee’s counsel and therefore should be excluded from a Rule 1100 computation. We disagree.

The Commonwealth is quite correct; the law is clear that any delay resulting from the appointment of new defense counsel is excludable time for Rule 1100 purposes. Commonwealth v. Manley, 503 Pa. 482, 469 A.2d 1042 (1983); Commonwealth v. Chapman, 271 Pa.Super. 473, 414 A.2d 352 (1979). However, in this case that delay accounts for only a portion of the period in question.

The record of this case contains various items of correspondence between appellee and his counsels. One letter reveals that as early as May 8, 1980, new counsel, one John Woodcock, Jr., had been appointed for appellee. Another letter, from Mr. Woodcock to Mr. Milgrub dated August 28, 1980, clearly indicates that Mr. Woodcock was prepared for trial; more importantly, the letter reveals that the district attorney was aware of defense counsel’s readiness. As stated earlier, on March 15, 1980, the lower court continued the case until such time as newly appointed defense counsel indicated his readiness to proceed. After reviewing the record, this Court concludes that the delay caused by the appointment of a new defense counsel lasted only from March 15, 1980 to no later than August 28, 1980. Therefore, only this period of time was excludable under Rule 1100(d)(1).

Toward the end of August, 1980, the Commonwealth was on notice that the continuance had expired and that Rule 1100 was once again running against it. At this point the Commonwealth could have either attempted to resurrect its petition for extension, which had been left undisposed of when defense counsel withdrew on March 15, 1980, or it could have filed a new petition for extension. It chose to do neither.

There is some indication that the Commonwealth may not have been able to bring the appellee to trial in the Fall of 1980 due to a trial scheduling difficulty. It is well settled that judicial delay is not excludable time under Rule 1100. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). However, the law is equally well settled that judicial delay may justify the granting of a petition for extension of time. Commonwealth v. Ellison, 249 Pa.Super. 339, 378 A.2d 325 (1977). Thus, here again, the Commonwealth failed to protect its interests by filing for an extension.

We conclude that the Commonwealth has failed to prove that all periods of delay beyond the 120 day mandatory period were either excludable from computation or were justified by an order granting an extension. The period of time between August 28, 1980 and December 2, 1980, remains unaccounted for.

Logan Warren McLaughlin’s Rule 1100 right to a speedy trial was violated; accordingly, we affirm the order of the lower court discharging him from custody.

Order affirmed.

APPENDIX A

May 8, 1980

Mr. Logan McLaughlin

No. K2224

Box A

Bellefonte, PA 16823

Dear Logan:

Sorry for the delay but I have another attorney to represent you. His name is John Woodcock and he is Public Defender of Blair County. He is an attorney with many years of experience and I think he will be able to provide you with an excellent defense. I am preparing to gather all the papers and have them forwarded to Mr. Woodcock and all future correspondence should be sent directly to him. His address is John Woodcock, Public Defender of Blair County, Blair County Courthouse, Hollidaysburg, PA 16648.

Sincerely yours,

/s/ Richard H. Milgrub

Richard H. Milgrub

August 28, 1980

Mr. Richard H. Milgrub

Public Defender

Clearfield County

231 East Market Street

Clearfield, PA 16830

Re: Logan W. McLaughlin

Dear Mr. Milgrub:

Please be advised that I have gone over the file which you sent me. I have been ready to proceed with this case, but talked to Walter F. Wall, Assistant District Attorney, and he advises that it could not be until after the first of the year.

We will be starting Criminal Court on the 2nd of September and will be ending September 19th. Any time after that will be okay with me. .

Very truly yours,

/s/ John Woodcock, Jr. (mlb)

John Woodcock, Jr.

Public Defender

July 21, 1980

Mr. Logan McLaughlin

No. K-2224

Box A

Bellefonte, PA 16823

Dear Mr. McLaughlin:

I have been appointed to represent you and as soon as the case is scheduled, I will be seeing you. It seems there are certain time brackets, due to conflicts of counsel in court term is hard to arrange. I want to get up to see you one of these days, but my vacation comes up on July 26, 1980 and I won’t be able to see you until after July 8, 1980.

Very truly yours,

/s/ John Woodcock, Jr. (mlb)

John Woodcock, Jr.

Public Defender

      . Pa.R.Crim.P.Rule 1100(e)(2) provides:
      (e)(2) When an appellate court has granted a new trial, or has affirmed an order of a trial court granting a new trial, the new trial shall commence within one hundred twenty (120) days after the appellate court remands the record to the trial court. The date of remand shall be the date as it appears in the appellate court docket.
      The new trial was granted by the Supreme Court on May 30, 1979, the expiration of the original 120 days for a new trial would have occurred on or about September 27, 1979.

      . We do not condone this practice; in our opinion the lower court itself should have appointed substitute counsel.

      . At the December 1, 1980, hearing appellee was represented by John Woodcock, Jr., Esq., the Public Defender for Blair County.

      . The Commonwealth argues that it was impossible for the court to set a date for the expiration of the continuance. The Commonwealth asserts that there was too much uncertainty regarding how long it would take to appoint and prepare a new defense counsel. We are unpersuaded. Had the lower court picked even an arbitrary date, the appellee would have known the scope of his waiver and thus made an informed waiver. Further, had a dated continuance proved inadequate for either the Commonwealth or the defense in preparing their cases, further extensions or continuances were available.

      . See Appendix A, pages 623-624.

      . See Appendix A, pages 623-624.

      . See Appendix A, pages 623-625.