author: BECK, Judge:

text:
    447 A.2d 1021
    COMMONWEALTH of Pennsylvania v. David A. DELL.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1981.
    Filed July 9, 1982.

      John D. Finchbaugh, Assistant Public Defender, York, for appellant.
    Thompson J. McCullough, Assistant District Attorney, York, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

Appellant was charged with homicide by vehicle, driving under the influence of alcohol, and failing to stop at a stop sign. The charges arose from a fatal collision in which appellant’s vehicle collided broadside in the middle of an intersection with a vehicle driven by the deceased. After a non-jury trial, appellant was found guilty of homicide by vehicle and failing to stop at a stop sign. He was found not guilty of driving under the influence of alcohol. Post-trial motions were timely filed and denied, and appellant was sentenced to from six to eighteen months incarceration.

Appellant advances one argument: the homicide by vehicle statute is unconstitutional in that it carries with it the possibility of a jail sentence without any finding of culpability. That statute states:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

75 Pa.C.S. § 3732.

This Court has recently reinterpreted the homicide by vehicle statute in Commonwealth v. Koch, 297 Pa.Super. 350, 443 A.2d 1157 (1982). The Koch majority followed Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980) which supplied a culpability requirement for that statute.

The Field court held that “section 3732 requires the Commonwealth to prove that appellee has deviated from the standard of care established by section 3703, the underlying Vehicle Code provision allegedly violated here.” Id., 490 Pa. at 524, 417 A.2d at 163 (footnote deleted). Field stated that the culpability requirement of section 3703 “leaves for determination at trial whether appellee knew, or should have known, he engaged in the conduct claimed to he in violation of that section. Id., 490 Pa. at 525, 417 A.2d at 163 (emphasis added) (footnote deleted). The text then states that the test is whether “a reasonable driver” in light of the circumstances should have been able to determine if he was violating the Vehicle Code provision.

It is clear then that the Field court supplied a “reasonable driver” standard to situations where the underlying Vehicle Code provision did not explicitly state a culpability requirement. In Koch, this Court followed the Field analysis in the context of a violation of 75 Pa.C.S. § 3323, the same provision involved in the instant case. That is, did the driver know or should he have known that there was a stop sign at the intersection at which he failed to stop?

We view Field and Koch as binding precedent, and we therefore reject appellant’s claim that the homicide by vehicle statute is unconstitutional because it presents the possibility of a prison term without a finding of culpability.

The Supreme Court, in Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981) interpreted its opinion in Commonwealth v. Field as a “legislative expansion” of criminal liability for Vehicle Code violations resulting in death:

This legislative “expansion” was accomplished not by the elimination of any of the elements of the crime of involuntary manslaughter, but by a relaxation of the degree of proof of two existing elements: culpable conduct and causation. The crime of involuntary manslaughter, as charged here, requires proof that the actor engaged in the Vehicle Code violation in a “reckless or grossly negligent manner,” and that the death was caused “as a direct result.” 18 Pa.C.S. § 2504. See Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968). By contrast, under the crime of homicide by vehicle, it must be shown only that the actor “knew, or should have known,” that he engaged in the conduct claimed to be in violation of the Vehicle Code, and that, at the very least, death was a “probable consequence” of the conduct. Commonwealth v. Field, 490 Pa. at 525, 417 A.2d at 163.

Id., 496 Pa. at 349, 437 A.2d at 387.

We are troubled by the question of causality under the homicide by vehicle statute. Both Field and Houtz interpreted that statute as retaining the causality element of a strict liability offense. It must be shown therefore that “the actual result is a probable consequence of the conduct of the actor.” 18 Pa.C.S. § 303(d). Judge Popovich noted in his dissenting opinion in Koch that “[u]nder the facts presented here, who could have predicted even that a collision would occur, much less a collision, bodily injury and death.” Koch, 297 Pa.Super. at 374, 443 A.2d at 1169 (1982) (emphasis in original). The Koch majority declined to reach that issue because it was not raised on appeal. Id., 297 Pa.Superior Ct. at 371 n.6, 443 A.2d at 1160 n.6. Since it was not raised in the instant appeal, we also leave that question for a time when it is properly before us.

Judgment of sentence is affirmed.

McEWEN, J., concurs in the result.

      . 75 Pa.C.S. § 3732.

      . 75 Pa.C.S. § 3731.

      . 75 Pa.C.S. § 3323(b).

      . We note that the Koch majority, in following this “reasonable driver” approach, explicitly overruled those decisions of this Court applying either a criminal negligence or a strict liability standard to the homicide by vehicle statute. Commonwealth v. Koch, 297 Pa.Super. 350, 357, 443 A.2d 1157, 1161 (1982).

      . Four members of the seven judge en banc court deciding Koch agreed that we are bound by the Supreme Court’s enunciation in Field of the culpability requirement of this statute, although one member of the majority expressed doubt about the constitutionality of the Field construction. (Two members of the original nine member en banc court did not participate in the decision.)


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    447 A.2d 1023
    Anthony PROCACINA, Claire Procacina, John Jay Procacina, Anthony Procacina, Randy Jackson, and Edward Jackson, Appellants, v. Anthony SUSEN, Perry Lee Fisher, Louis N. Scotti, Dillip Gole, St. Francis General Hospital, Lafayette Pharmacal, A Division of Alcon Laboratories, Inc., and Taylor Pharmacal Company.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1981.
    Filed July 9, 1982.

      Kenneth W. Behrend, Pittsburgh, for appellants.
    William Weiler, Pittsburgh, for appellees.
    Before SPAETH, HESTER and JOHNSON, JJ.
   JOHNSON, Judge:

In 1979, Appellants filed a complaint in trespass [Lawsuit # 1] with the Arbitration Panels for Health Care. The complaint alleged, inter alia, injuries to Anthony Procacina resulting from the use of a solution known as Pantopaque which was administered to him for the purpose of taking myelograms. The complaint named all the defendants named in this case, except appellee Taylor Pharmacal Company, who was later joined as an additional defendant by defendant Lafayette Pharmacal.

In 1980, and thus after the complaint was filed, the Pennsylvania Supreme Court ruled, in Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), that the section of the Health Care Services Malpractice Act which gave health care arbitration panels original exclusive jurisdiction over medical malpractice claims was unconstitutional. Accordingly, the additional defendant transferred the case from the jurisdiction of the health care arbitration panels to the Court of Common Pleas.

Subsequently, on December 30, 1980, the appellant/plaintiffs filed a second lawsuit [Lawsuit # 2] against the same defendants, in the same Court of Common Pleas. Lawsuit # 2 is the subject of the instant appeal. The complaint in Lawsuit # 2 is in trespass against all the defendants, and in trespass and in assumpsit, alleging breach of warranty, against the corporate defendants. Defendant/appellee Taylor Pharmacal Company filed preliminary objections raising, inter alia, the statute of limitations, and supplemental preliminary objections raising the defense of lis pendens, based on the pendency of Lawsuit # 1. After a hearing the trial court dismissed Lawsuit # 2 on the grounds that the two lawsuits were identical. It is this dismissal from which the plaintiffs appeal.

The law is quite clear that lis pendens is a valid defense only when the parties, the causes of action and the relief sought are the same in both actions. Glazer v. Cambridge Industries, Inc., 281 Pa.Super. 621, 422 A.2d 642 (1980); Taylor v. Humble Oil and Refining Co., 225 Pa.Super. 177, 311 A.2d 324 (1973). In Commonwealth ex rel. Lindsley v. Robinson, 30 Pa.Commw. 96, 372 A.2d 1258 (1977), the court stated that the burden is on the moving party to show that in each case the same parties are involved, the same rights asserted, and the same relief sought. Id., 30 Pa.Commw. at 100, 372 A.2d at 1260. By merely asserting that prior actions are pending, the moving party will fail to meet this burden. Id.

In the case before us, appellee, the party who moved for dismissal on the grounds of lis pendens, asserts that the claims in negligence and strict liability in the two lawsuits are the same and that the parties are the same. As to the new claim in Lawsuit # 2, i.e., the claim in assumpsit, appellee contends that this breach of warranty claim is identical to the strict liability claims and thus the difference is merely one of form, and that the breach of warranty claim was added to avoid the effect of the two year statute of limitations on the claim in trespass.

In Hessenbruch v. Markle, 194 Pa. 581, 45 A. 669 (1900), our Supreme Court said: “As to the averment of lis pendens ... it is purely a question of law determinable from an inspection of the records in the two causes.” 194 Pa. at 593, 45 A. at 671. The court went on to quote the test laid down in an earlier lower court case. “A plea of former suit pending must allege that the case is the same, the parties the same, and the rights asserted and the relief prayed for the same; and where the truth of the plea can be ascertained by an inspection of the record, the court will determine the question without a reference [of the matter to a master].” Id.

In the Hessenbruch case the lower court and the supreme court had before them the pleadings and were able to compare them paragraph by paragraph. Both courts concluded that the plea of lis pendens should not be sustained.

In the matter now before us, the lower court in its Pa.R.A.P. § 1925(a) opinion merely states, as its reasons for dismissing Lawsuit # 2, that the two lawsuits filed are identical and seek the same relief, and cites Taylor v. Humble Oil, supra.

We are unable, from the mere assertions of identity of parties, of causes of action and of relief requested, to form an opinion as to whether there is such identity. We must therefore remand to the lower court, either for insertion into the record of the pleadings in Lawsuit # 1, or for an opinion which describes to this court with specificity where the identity of the elements was found. Should the lower court decide that there is no identity of causes of action, the lower court should consider consolidating the two lawsuits. See, e.g., Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976).

The order dated March 13, 1981 is vacated and the case is remanded to the lower court for further proceedings consistent with this opinion. Jurisdiction is not retained by this court.

      . See the Health Care Services Malpractice Act, Act of October 15, 1975, P.L. 390, No. 111, § 101, as amended; 40 P.S. §§ 1301.101-1006 (Purdon Supp. 1981). § 1301.309 of the Act provides for original exclusive jurisdiction in the arbitration panels for claims against health care providers and against nonhealth care providers made parties defendant with a health care provider.

        . But see Pa.R.C.P. 1017(b) and Pa.R.C.P. 1030.


author: MONTEMURO, Judge:

text:
    447 A.2d 1025
    L. Rex BICKLEY, Appellant, v. Rebecca L. BICKLEY. Rebecca L. BICKLEY, Appellant, v. L. Rex BICKLEY.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1981.
    Filed July 9, 1982.

      Luther E. Milspaw and Marvin Beshore, Harrisburg, for appellant (at Nos. 240 and 157) and for appellee (at No. 160).
    Bonnie D. Menaker, Harrisburg, for appellant (at No. 160) and for appellee (at Nos. 240 and 157).
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

The present appeal is a consolidation of two actions brought in the Court of Common Pleas of Dauphin County, on related issues of support and divorce. No. 240 Harrisburg, 1980 was an appeal from a support order entered November 28, 1980; Nos. 157, 160 Harrisburg, 1981 is an appeal from a divorce order entered April 22, 1981.

As to the support issue, it appears that appellee’s objection to jurisdiction must prevail. The support order was entered on November 28, 1980 at a time when 62 P.S. § 2043.35(f) and Pa.R.C.P. 1038(d) set forth the procedural requirements in excepting to and appealing from such an order.

A panel of this court in Paul v. Paul, 281 Pa.Super. 202, 421 A.2d 1219 (1980), stated that “exceptions to an order for support must be filed in order to preserve objections for appeal.” Id. at 208.

The Rules were thereafter changed to provide that exceptions are not a prerequisite to preservation of objections on appeal, Pa.R.C.P. 1910.11(k). That provision, however, was not valid at the time this appeal was taken. Therefore, we must quash the appeal at No. 240 of 1980.

We next consider the issues presented upon appeal, from the holding of the court below in the matters of divorce, alimony pendente lite and alimony.

The parties lived together for two years prior to their marriage in February of 1973. Appellant-husband had a bachelor’s degree in political science before they met and was employed as a social worker in Harrisburg during the first two years of the liaison. The appellee-wife worked in a day-care center and had completed one semester of college before the marriage.

Appellant was accepted into Antioch Law School in Falls Church, Virginia. He began his first year in the fall of 1973, simultaneously with the birth of the daughter of the marriage, Lee Saara.

The parties were supported through the law school years in large part by the appellee’s income from daycare of young children, but also from the contributions of relatives and federal programs.

One week after the appellant’s graduation- from law school, he delivered appellee and their child to the appellee’s parents’ home and moved into the home of another woman.

By August of 1976, appellant was employed as a law clerk with the Pennsylvania Department of Revenue.

In November of 1976, the parties signed a Separation Agreement. What little property they had was divided, and custody of Saara was given to the appellee. The only matters contained in this Agreement which are now relevant to this appeal surround the provisions affecting support and alimony. A related argument of the appellant concerns a letter written by appellee’s counsel before the Agreement was executed and disregarded by the Master and the lower court under the parol evidence rule.

The Master’s recommendation to the court awarded alimony pendente lite to the appellee in the amount of $100 per week, alimony of $50 per week until completion of the appellee’s graduate program or December 31, 1982, whichever was earlier, and all counsel fees involved in the divorce and support matters. Appellant excepted to the Master’s Report. The matter was argued before the court and following argument the court entered an order affirming the awards of alimony and alimony pendente lite as recommended by the Master, but allowing only half of the recommended fee for attorney’s services rendered by counsel for appellee. Both parties appealed from that order. We affirm the lower court for the reasons which follow.

The Separation Agreement written in 1976 was drafted in a different era of the divorce law of this Commonwealth. Under former law, appellant’s chances of winning a contested divorce action were very slim indeed. Claims for support of appellee were unavoidable so long as the legal marriage bonds endured, and appellant’s hope of eventual divorce and release from long-term spousal support payments depended upon appellee’s cooperation.

It was in that context that appellant agreed to pay $100 per week for the support of appellee and their child, a sum which could be increased, in accordance with the terms of the Agreement, “up to % of husband’s net income”, and which was subject to yearly review for cost-of-living increases. We note that appellee never sought any increase prior to appellant’s unilateral decision to decrease support, although inflation between 1976 and 1980 greatly affected the buying powrer of that $100 per week.

For the next few years appellee sought her college degree and appellant continued in his job with the Department of Revenue. Appellant’s new household with his paramour increased by two more children. Appellant faithfully paid his support obligations to appellee and their child.

In the spring of 1980, appellant decided to leave his steady employment and begin a law practice of his own. As a consequence his income decreased. Appellee completed her college degree, and entered a Masters Program which her advisor assured her was necessary for employability in her chosen field.

On July 1, 1980, the new Divorce Code took effect. Appellee, clearly with the understanding that appellant was now entitled to a divorce under the three-year-separation provisions, filed for divorce herself, and requested, inter alia, permanent alimony, alimony pendente lite, and attorney’s fees. In August of 1980, appellant decreased his support payments under the agreement to $80 a week, which he decided was a fair sum for the support of his child. Appellee filed an action for non-support, and the court reinstated the $100 per week payments under threat of contempt. The appeal from that decision was quashed, supra this opinion.

The parties went before a Master on the divorce issues, who put forth recommendations which were largely incorporated by the lower court’s decree. The court’s review was not perfunctory, however, and the attorney’s fee award as recommended by the master was reduced by one half.

As mentioned supra, the Master in Divorce also awarded appellee the sum of $100.00 per week as “alimony pendente lite” from August (the month of appellant's unilateral reduction of the support order) until the date of divorce. This was clearly made identical with the now-outstanding order in support, as the Master stated that child support was included and that appellant was to receive credit for support payments from the Domestic Relations office. Therefore, during this marriage, the sum of $100.00 per week was awarded appellee.

Appellant argues that the court below abused its discretion in awarding alimony pendente lite to appellee. He asserts that appellee’s request for alimony pendente lite was “an election of remedies” which “served to vacate the support order.” The effect of the election, according to appellant, required the court, before making a decision, to conduct “an examination of one spouse’s needs and the ability of the other spouse to pay,” factors which he insists the lower court never considered. We disagree.

The support in this instance was originally instated under the Separation Agreement of the parties and had been reaffirmed by a support order of the court in August of 1980, before the master began hearings. As noted supra, that order was never excepted to by the appellant.

The recommendation of the master and the order of the lower court made alimony pendente lite in every sense identical with this already existing support order. This presents no problem of an “election of remedies;” it is a simple insistence that until termination of this marriage, support in the amount of $100.00 for wife and child continued to be due. At date of divorce, support for the child became $30.00, and alimony of limited duration in the amount of $50.00 was awarded to the wife.

The support of $100.00 for wife and child was always proper until the marriage terminated. We affirm the decision of the court below which merely merged the outstanding order and the order for alimony pendente lite to present one reasonable, agreed sum for payment.

Appellant also argues that the appellee orally promised an absolute divorce and a cessation of support after her college graduation. He offered as Exhibit “10” (R.93a) a letter of appellee’s attorney outlining appellee’s requests for items to be included in the agreement. It is true that the letter mentions support in terms of four years; it is also true that the letter makes other suggestions which were altered. We note as well that appellant’s counter-suggestions scribbled onto this letter were altered in the final agreement as executed.

The parol evidence rule expressly eliminates from consideration by the fact-finder all language used in the negotiating stages prior to actual execution of a contract.

When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing. This is in substance what is called the ‘parol evidence rule,’ a rule that scarcely deserves to be called a rule of evidence of any kind, and a rule that is as truly applicable to written evidence as to parol evidence.” Corbin on Contracts, § 573.
It is true that
[w]here it is clear from a reading of written instrument that it does not contain the entire contract between the parties, parol evidence may be introduced as an aid to the writing in explaining the meaning the parties intended that it should convey. Moreover, where a document is silent on a particular subject, it may be proved by parol evidence of what took place at the time of execution, and that a prior separate oral agreement not inconsistent with the terms of the document or any implied agreement growing out of it was not intended to be abrogated. Fenner v. Smyth, 62 Pa.Super. 538 (1916); White v. Black, 14 Pa.Super. 459 (1900). (Emphasis supplied)

Appellant argues that as the Separation Agreement does not in its final form state a date upon which support will cease, he should be permitted to use the attorney’s letter as proof of appellee’s alleged prior oral promises. We cannot agree.

On its face the instrument does not appear to be defective, for the obvious reasonable period of support to a wife under a separation agreement would be the duration of the marriage. We cannot infer any other intent from a lack of specific language. The court was not obliged to re-write the term for support payments under the Agreement.

Appellant also urges error in the award of alimony in the amount of $50.00 per week to appellee for a period of less than two years during which appellee will complete her graduate degree. The provisions for alimony are set forth in 23 P.S. § 501. In pertinent part, the law states as follows:

§ 501. Alimony56
(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.
(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony,
(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill.
(d) In an order made under this section the court shall set forth the reason or reasons for its denial or award of alimony and the amount thereof.

The master sensibly applied and interpreted these provisions in the light of § 102, which sets forth the legislative finds and intent. Specifically, the master depended upon the following wording at § 102(a):

(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage . . .
(6) Effectuate economic justice between the parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties . . .

Appellant contends that in order to be eligible for alimony, a dependent spouse must meet the threshold requirements of § 501(a)(1)-(2), see citation supra, after which the court could look at the provisions of § 501(b). However, he himself is inconsistent in his argument, for he urges the “standard of living of ..the parties during the marriage”, § 501(b)(8) as a measure to determine appellee’s ability to support herself under the “appropriate employment” standard of § 501(a)(2).

Upon review of the problem, we conclude that it is not possible to determine what is a “reasonable need” under § 501(a)(1) or “appropriate employment” under § 501(a)(2) without reference to the specific facts of the case as they fit the relevant factors listed in § 501(b)(1)-(14). The wording of § 501(b) itself acknowledges this interrelationship in stating that the fourteen listed factors are to be used “in determining whether alimony is necessary”, which is identical to the “threshold questions” of § 501(a)(1) and (2). [Emphasis supplied]

We hold, therefore, that the provisions of § 501 are to be read in conjunction with each other and with the intent and purposes of the act as a whole, so that economic justice results, and harm to the spouses and children is mitigated.

The parties in the instant matter do not seriously dispute issues under § 501(a)(1), since the property they had to divide was inconsiderable. Appellant, however, does contend that appellee has the ability to support herself with “appropriate employment”, and urges that his own financial condition was not considered below.

Upon review, however, we find that the master and the lower court did consider appellant’s support payments to his estranged wife for four years, his loans, the personal property distribution, and the duration of the marriage. Most particularly, the master and the lower court focused upon the fact that appellant had a well-established earning potential.

Our case law on support matters has established that a husband cannot elect to change his earning potential to a much lower level and then escape his duties of support. Commonwealth ex rel. McNulty v. McNulty, 226 Pa.Super. 247, 311 A.2d 701 (1973); Commonwealth ex rel. Haley v. Haley, 199 Pa.Super. 235, 184 A.2d 155 (1972). Although we are now discussing rehabilitative alimony, rather than support, we see no reason why the same principle should not hold true. We understand the importance to a young attorney of starting his own firm, but his legal obligations remain the same whether he plunges ahead or waits a prudent eighteen months longer until his alimony obligations have ceased.

Additionally, we note that appellant stresses the very modest circumstances enjoyed by the parties during their marriage and the relative brevity of the relationship, § 501(b)(6) and (b)(5); however, the fact-finders below stressed the fact that it was a first marriage; that appellee has custodial duties to a young child (b)(7); and that she contributed in an important way to the education and earning power appellant now possesses (b)(6).

As a practical matter, appellee is not being granted alimony in any lavish style. The fifty dollars a week for eighteen to twenty months will enable her to obtain her graduate degree, and become employable at a higher level, which will effect a result of economic justice in accord with the Divorce Code’s intent.

The future of the child of the parties, a concern under § 102, is thereby greatly enhanced. The harm caused to this child by dissolution of the marriage will obviously be mitigated if her custodial parent enjoys a standard of living commensurate with that of her non-custodial parent. We can also, with reasonable certainty, predict that appellant too will, in the final analysis, benefit, as the mother of his child will be able to contribute more to her support, thus reducing his own obligations.

The final issue on appeal is the award of attorney’s fees in this matter. The master below awarded to appellee full payment of all her fees to her attorney, based on the inclusive language of the original separation agreement, which provided that appellant would assume counsel fees and costs

. . . incurred by himself and his wife in connection with the preparation of this agreement, the division of jointly-held property, the support payments, and subsequent divorce proceeding.

The court, upon review, looked to the Divorce Code provisions for counsel fees and reasoned that counsel fees were intended under the statute to be reasonable and based upon actual relative economic conditions and ability to pay, rather than upon the “earning potential” of the supporting spouse. It therefore reduced the master’s award by half, and made appellee responsible for the amount not covered.

Were it not for the agreement executed by the parties, we would stop here and hold that under the circumstances we find no abuse of discretion. However, we must discuss the effect of that agreement and our reasons for adhering to the reasoning of the lower court.

When these two parties signed this agreement in 1976, appellant could never have received a contested divorce, and any legal expenses attached to a consensual divorce must have been more reasonable than those the parties now face. Appellant might have had to make settlement of a substantial nature to assure consent, but at time of the parties’ execution of the clause making him responsible for the fees for a divorce action, no one contemplated the kind of attorney involvement we see here.

Corbin on Contracts discusses the problems courts face when a “supervening event” causes “material frustration” of the purposes of the parties to an agreement.

Often however, such events occur without the fault of either party, causing loss and preventing gains. Who then must stand the loss or bear the disappointment? If a division of losses is to be made, in what proportion? Courts have had to answer these questions. The cases are numerous, various in character, and not wholly consistent in reasoning or in decision. In each case, the court has determined who must bear and who must pay. 6 Id., at 376 (1951).

The provision in the Separation Agreement was for the purpose of allocating attorney’s fees in an uncontested divorce. Both parties signed under that supposition. Although the appellant could fulfil the contractual language to the letter by paying all fees for the appellee’s attorney, the original “purpose” of the clause has been “frustrated” by a “supervening event”—the first substantial change in divorce law in this state in two centuries.

We cannot say that the court below was abusing its discretion in reforming the agreement of the parties to make a proportionate division of the fees owed to appellee’s attorney. It was following a well-worn path of determining how to allocate responsibilities when an unforeseeable event occurs. By placing the matter under the new Divorce Code, weighing the actual financial circumstances of the parties, and to the best of its ability, effectuating economic justice, the court has reached a reasonable solution, and we affirm.

Therefore, as to the appeal from the support order of November 28, 1980, we quash. As to the appeals from the order in divorce and related issues of April 22, 1981, we affirm.

WIEAND, J., concurs in the result.

      . Despite the cross-appeals which make both husband and wife appellant and appellee, we shall use the term “appellant” for husband and “appellee” for wife.

      . 23 Purdon’s Statutes § 201(d)(1), P.L. 63, No. 26, April 2, 1980, effective in 90 days.

      . Once again, we note that both wife and husband are “appellee” for part of this case. We will continue to use that term to designate the wife, however.


text:
    447 A.2d 1032
    John N. CONRAD, t/a Arthur Murray Dance School v. Arland KEMMERER and Martha V. Kemmerer, Appellants.
    Superior Court of Pennsylvania.
    Submitted Jan. 7, 1982.
    Filed July 9, 1982.

      Dennis J. Monaghan, Bethlehem, for appellants.
    Frank A. Baker, Allentown, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case concerns a judgment rendered by default before a district justice on February 10, 1981. Notice of the judgment, dated February 18, 1981, was sent to the defendants, herein the appellants. The notice was apparently received and read on February 20, 1981.

On or about March 10, 1981, a month after the entry of judgment was made, a constable levied upon some of the appellants’ property pursuant to a Writ of Execution. On March 19, 1981, the appellants appealed the district court judgment, and on March 20, 1981 they obtained a Rule to Show Cause why the Writ and Execution of Levy should not be set aside.

The lower court found that the appeal was not timely filed, and it denied relief. We affirm that decision.

Appellants argue that their appeal was taken within thirty days of the date notice was sent, pursuant to Pa.R.C. P.J.P. 324, and that as “the quintessential element of due process is notice”, the thirty-day appeal period should be calculated from the date of notice rather than day of entry of judgment.

We have been unable to find an appellate court case on point, but numerous cases from the common pleas courts support the result reached in the instant matter.

It is the information recorded by the justice of the peace in her records that fixes the time of judgment and not the written notice to defendant. Annie M. Warner Hospital v. Miller, 53 D. & C.2d 376, 13 Adams LJ 64 (1971). Under Section 5 of the Act of December 2, 1968 P.L. 1137 (42 P.S. § 3005), and Pa.R.C.P.J.P. 1002, the 20-day limit for the filing of an appeal from a district justice begins to run from the time of entry of the judgment and not from the date appellant received notice thereof, and such limitation is mandatory and binding, absent any allegations of fraud or its equivalent. S & B Electric v. Rado, 1 D. & C.2d 469 (1976).

Review of the rules leads us to the conclusion that the common pleas cases are correct. The “purpose and intent” of the Pa.R.C.P.J.P., set forth at 204, is to provide “a complete and exclusive procedure for every action” to which they are applicable.

Rule 1002 undeniably states that a party aggrieved by a judgment may appeal therefrom within thirty days of the date of entry of the judgment. Appellant may feel that thirty days after notice is sent, or thirty days after notice is received would be preferable, but in fact the thirty day period runs, by statute, from day of entry of the judgment.

In proper cases, where a party has been prevented from appealing by reason of fraud or a wrongful or negligent act of a court official, the court may allow enlargement of time for appeal or appeal nunc pro tunc. 9 Standard Pennsylvania Practice at 206, and cases cited therein. It is obviously appellants’ burden, however, to show such mitigating circumstances. Appellants have not met that burden in this case.

The rules provide that the following warning, inter alia, must be delivered from the justice of the peace to the defendant with a copy of the complaint, at least ten days before hearing date:

You must appear at the hearing and present your defense. UNLESS YOU DO, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT. Rule 305(4)(c).

Additionally, Rule 322 permits the entry of judgment against an absent defendant on date of the hearing, or within five days at latest.

Appellants therefore had both actual and constructive notice that failure to appear would result in a judgment in their disfavor, and entry on the day of hearing was likely if not mandatory. They argue, nonetheless, that Rule 324, which provides that prompt notice is to be given in writing to any absent party, places such a burden on the justice of the peace as to entitle them to a longer appeal time on the strength of an eight-day delay. Not a shred of argument is advanced, however, to show that eight-day delay prejudiced their ability to appeal.

The facts indicate that the Notice of Entry of Judgment was delivered and read, like the Complaint and warning that initiated the action. Also, like the earlier service, it was ignored. It was not until a constable appeared with a Writ of Execution that these appellants felt moved to act in their own behalf. We note that once appellants took the legal process seriously, they appear to have been able to respond rather swiftly. Unfortunately, their date for appeal had passed. They have not shown any reason equivalent to fraud or a wrongful or negligent act of a court official for the exceptional relief they request. Extentions cannot be allowed as a matter of indulgence, or merely to prevent hardship. 9 Standard Pa. Practice at 206 and cases cited therein.

The decision of the lower court denying the appeal was correct.

Order affirmed.

      . The 20 day limit for filing an appeal under former practice has been increased to 30 days under present practice, see infra.


author: HOFFMAN, Judge:

text:
    447 A.2d 1034
    COMMONWEALTH of Pennsylvania v. Joseph MOYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed July 9, 1982.

      Lewis J. Bott, Assistant Public Defender, Hazleton, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that counsel was ineffective in: (1) failing to explain the nature and consequences of a rule 1100 waiver and in signing and advising him to sign such a waiver, and (2) failing to file a suppression motion. Because we cannot determine from the record whether these ineffectiveness claims have arguable merit, we remand for an evidentiary hearing.

Appellant pled guilty, on May 26, 1981, to possession of a controlled substance with intent to deliver. He was sentenced on July 1, 1981. After obtaining new counsel, he petitioned to withdraw the guilty plea nunc pro tunc, alleging, among other grounds, ineffectiveness of trial counsel. Without a hearing, the lower court denied the petition. This appeal followed.

I. Rule 1100

The Commonwealth filed the criminal complaint on September 24, 1980. In January 1981, before the rule 1100 run date, appellant and his counsel signed a waiver of rule 1100 rights, consenting to trial no later than June 24, 1981. Appellant’s trial commenced May 26, 1981, within the time allowed by the waiver, but 244 days after the filing of the complaint.

Appellant contends that counsel was ineffective in failing to explain the nature and consequences of a rule 1100 waiver and in signing and advising him to sign such a waiver. “[C]ounsel is deemed effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Because a violation of rule 1100 may result in “dismissing charges with prejudice,” Pa.R.Crim.P. 1100(f), we must carefully scrutinize an attorney’s advice to waive whatever rights a client may have under the rule. See Commonwealth v. Dozier, 258 Pa. Superior Ct. 367, 374, 392 A.2d 837, 841 (1978). A defendant may temporarily waive his rule 1100 rights, like the constitutional right to a speedy trial that it was designed to protect, by signing an appropriate statement explaining the nature of the rights he is waiving, “[s]o long as there is an indication, on the record, that the waiver is the [defendant’s] informed and voluntary decision.” Commonwealth v. Myrick, 468 Pa. 155, 160, 360 A.2d 598, 600 (1976). Accord, Commonwealth v. Rodriquez, 291 Pa. Superior Ct. 239, 435 A.2d 888 (1981). The signing of an appropriate waiver document is prima facie evidence that the waiver was informed and voluntary, Commonwealth v. Myrick, supra, and may alone establish the waiver when there is no other indication on the record that it was signed involuntarily or unknowingly, Commonwealth v. Wilson, 294 Pa. Superior Ct. 101, 439 A.2d 770 (1982); Commonwealth v. Scott, 272 Pa. Superior Ct. 236, 414 A.2d 1095, 1097 (1979). Nevertheless, when the circumstances surrounding the waiver cast doubt on its voluntariness, the Commonwealth must offer more than the document itself to establish its validity. Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980). Accord, Commonwealth v. Myrick, supra. See Commonwealth v. Rodriquez, supra (colloquy). “Although an on-the-record colloquy is not necessary, we do require proof that the defendant understood the consequences of his act.” Commonwealth v. Manley, supra, 491 Pa. at 469, 421 A.2d at 640. At the sentencing hearing, appellant testified that he had spent third through eleventh grade in special education, and as a result, could not read. He alleges that counsel never advised him of the nature of the rights he was waiving by signing the document. We cannot conclude on the present record whether appellant’s waiver of his rule 1100 rights was knowing, intelligent, and voluntary. Similarly, we are unable to determine whether counsel had any reasonable basis in advising appellant to sign the waiver, and in signing it himself. Accordingly, we must remand this matter for an evidentiary hearing to determine the voluntariness of the waiver and counsel’s effectiveness in supporting it.

II. Suppression

Appellant contends that counsel was ineffective in failing to file a suppression motion. The facts of record, derived from a Commonwealth affidavit and appellant’s testimony at the sentencing hearing, are as follows: At about 9:30 p. m. on September 24, 1980, an officer on foot patrol saw appellant recklessly backing an automobile. The officer recognized appellant and remembered from an earlier computer check that appellant did not have a valid driver’s license. The officer summoned a police cruiser, stopped appellant, and requested him to produce a valid license or registration for the car. Appellant, who worked in an auto sales business, could not comply, but said the car belonged to a friend. A computer check revealed, however, that the car belonged to some other person. The officers then took appellant to the police station. The police affidavit reported that, as he was being searched, appellant pulled some tissues from his pocket, blew his nose, and while throwing the tissues away dropped two plastic packets containing white powder. Appellant testified briefly at the sentencing hearing, however, that the packets fell from his pocket as the officers were pounding his head against a desktop. In either event, appellant then ran from the building, and was apprehended a half-block away. He was returned to a cell, required to remove his clothes, and while he was doing so, eight more plastic packets were found stuffed in a plastic container in his boot. The ten plastic packets were determined to contain methamphetamine and other controlled substances.

If we can “determine from the record that appellant’s underlying suppression motion was completely without merit” we will not require an ineffectiveness hearing. Commonwealth v. Fisher, 243 Pa. Superior Ct. 128, 137, 364 A.2d 483, 488 (1976). Although the Commonwealth’s affidavit on its face alleges sufficient facts to establish probable cause to justify each step of the search and seizure, appellant has asserted contrary facts and raised questions of credibility. For instance, he disputes what occurred on the street, thereby challenging the validity of the arrest, and alleges impermissible police conduct in conducting the search incident to the arrest. These factual issues cannot be resolved by an appellate court. Accordingly, we remand for an evidentiary hearing to determine if counsel was ineffective in failing to file a suppression motion.

III. Order

For the foregoing reasons, we vacate the judgment of sentence and remand for an evidentiary hearing to determine if counsel was ineffective in: (1) failing to explain the nature and consequences of a rule 1100 waiver and in signing and advising appellant to sign such a waiver, and (2) failing to file a suppression motion. If the lower court determines that counsel was ineffective in either respect, it shall conduct further proceedings as necessary and grant appropriate relief. If, however, counsel was not ineffective, or no relief is warranted, the judgment of sentence shall be reinstated. Following the lower court’s decision, either party aggrieved may appeal as allowed by law. On that appeal, the party may also raise any issues presented but undecided in the instant appeal. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Jurisdiction is not retained by this court.

      . “There is ordinarily little tactical reason for not filing a motion to suppress.” Commonwealth v. Schroth, 495 Pa. 561, 567, 435 A.2d 148, 150 (1981). Without an indication on the record that appellant’s plea bargain, nol prosing three charges in exchange for the plea, was dependent on his not filing a suppression motion, we cannot conclude that counsel’s failure to file the motion was reasonably designed to effectuate appellant’s interests.

      . Appellant also contends that: (1) his guilty plea was not made knowingly, intelligently, and voluntarily; (2) counsel was ineffective in advising him to plead guilty; (3) his sentence was manifestly excessive; and (4) the lower court failed to give adequate reasons for the imposition of sentence.


author: VAN der VOORT, Judge:

text:
    447 A.2d 1037
    Patricia J. MONAGHAN v. PENNSYLVANIA MANUFACTURERS’ ASSOCIATION INSURANCE COMPANY, Appellant, v. Ronald STANISLAWCZYK t/d/b/a Brookline Mobil.
    Superior Court of Pennsylvania.
    Submitted May 20, 1981.
    Filed July 9, 1982.

      Steven B. Larchuk, Pittsburgh, for appellant.
    Robert B. Truel, Pittsburgh, for Monaghan, appellee.
    Linton L. Moyer, Pittsburgh, for Stanislawczyk, appellee.

      Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

The facts of this case were stipulated to by the parties. Plaintiff-appellee took her motor vehicle to the Brookline Mobil Gas station to have it inspected and repaired. The owner of said facility was working on another vehicle while appellee waited nearby in the garage. While the other vehicle was being worked upon, it moved forward and struck appellee. She suffered personal injuries. On that date, appellee was the named insured on a personal auto policy written by appellant-insurer.

Appellee filed a complaint in assumpsit, seeking payment of “Basic Loss Benefits” pursuant to her policy with appellant. The case was submitted to the court on the stipulation of facts and cross-motions for summary judgment. The court granted appellee’s motion for summary judgment; denying appellant’s motion. Damages were assessed at $17,-854.60. After post-trial motions were denied, judgment was entered. This appeal followed.

The sole issue on this appeal is whether a patron on the premises of a repair facility, who is injured as a result of the work performed upon another vehicle may recover basic loss benefits under her own policy issued under the No-Fault Act. 40 P.S. 1009.101 et seq.

Section 1009.201(a) reads:

Right to basic loss benefits; limitation on benefits
(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.

The definitional section of the Act, § 1009.103 provides:

“Victim” means an individual who suffers injury arising out of the maintenance or use of a motor vehicle: “deceased victim” means a victim suffering death resulting from injury.
“Maintenance or use of a motor vehicle” means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include:
(A) conduct within the course of a business of repairing, servicing, or otherwise maintaining motor vehicles unless the conduct occurs off the business premises: or
(B) conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting from it. (Emphasis supplied).

The trial court found that the maintenance exclusion did not pertain to a patron of a repair shop reasoning that the legislature intended to exclude only persons engaged in the business of repairing and maintaining automobiles. The court further reasoned that the Act’s intention was not to distinguish between patrons present within a repair facility and those not so present. Appellant argues that the exclusion pertains to “any person” injured while present at a repair facility.

The purpose of the No-fault Act is “to establish at reasonable cost ... a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims . . . . ” 40 P.S. § 1009.102(b). See DuBose v. McCoy, 277 Pa.Super. 149, 419 A.2d 705 (1980); Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978); Singer v. Sheppard, 33 Pa.Cmwlth. 276, 381 A.2d 1007 (1978). The Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., which provides that “[wjords and phrases shall be construed . . . according to their common and approved usage,” id. § 1903, also provides that statutes such as the No-fault Act “shall be liberally construed to effect their objects and to promote justice.” Id. § 1928(c). However, “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. § 1921(b). In Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), our Court stated: “Historically, the courts of this Commonwealth have . . . found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature ..., we should err in favor of coverage for the insured.” Id. 265 Pa.Super. at 187, 401 A.2d at 1162-63 (footnote omitted). Dull v. Employers Mut. Cas. Co., 278 Pa. Superior Ct. 569, 71-72, 420 A.2d 688, (1980); relied on in Crusco v. Insurance Co. of North America, 292 Pa. Superior Ct. 293, 437 A.2d 52, 53, (1981).

The Act clearly distinguishes between injuries attributable to maintenance of vehicles, arising on the premises of a repair shop, from those occurring off the business premises. Those occurring off the premises are covered by No-fault; those occurring on the premises are not. We need not look beyond the wording of the Act on this point.

While the above distinction is clear on the face of the statute, we must still determine whether the maintenance exclusion pertains to non-employees of a repair business. The only Pennsylvania case that has addressed the provision in question is Erie Ins. Exchange v. Fleagle, 285 Pa. Superior Ct. 310, 427 A.2d 651 (1981). There a panel of this court (Judge Price dissenting) found the repair exclusion inapplicable to the facts of that case. A mechanic while crossing his employer’s parking lot, to retrieve a car in need of repair, was struck by another vehicle driven by a non-employee. The court reviewed Dull, supra, and held that the injuries did not arise out of conduct of maintaining or repairing; therefore the mechanic was entitled to basic loss benefits. In the current case it is admitted that the injury arose out of the maintenance of a vehicle. Whether a patron may recover in such situation appears to be a novel issue. Nonetheless, we find the statute relatively straightforward on the point in controversy.

Section 1009.201(a) refers to “any victim” as being entitled to basic loss benefits if he or she comes within the meaning of the Act. Victim may be further defined by referring to subsection 103 as one who suffers an injury due to “the maintenance” of a motor vehicle. Maintenance is then defined as excluding conduct performed on the business premises of a repair facility. The logical and reasonable conclusion drawn from the above is: any person who suffers an injury due to the maintenance of a motor vehicle, who is hurt while present on the repair premises is not a victim entitled to basic loss benefits under the Act.

We find support for such a holding in Crusco v. Insurance Co. of North America, supra, and Dull v. Employees Mut. Cas. Co., supra. In Crusco No-fault coverage was denied for a fatal explosion caused by the use of a refrigerator and stove in a motor home. Such use was held to be excluded from the phrase “used as a device of transportation.” A similar holding resulted in Dull. There the insured was injured while standing behind his car and attempting to remove a boat from the car roof, when he slipped. He was found not to be entitled to basic loss benefits as he was not “occupying, entering or alighting from” the car.

While such cases may be extreme examples of situations where the No-fault Act was not intended to apply, they do represent the fact that No-fault was not intended to be a panacea for all injuries that could be traced to a motor vehicle no matter how far removed from the actual operation of such vehicle. Such was the will of the legislature expressed more particularly in Section 1009.301(a)

§ 1009.301 Tort liability

(a) Partial abolition.—Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that .... (Emphasis supplied)

Therefore we must disagree with the lower court’s holding that appellee did meet the statutory definition of “victim”; appellee is not entitled to basic loss benefits from her insurance carrier.

Judgment is reversed with directions to enter a verdict in favor of appellant.

HOFFMAN, J., concurs in the result.

      . A copy of the policy and related documents were incorporated into the stipulation.

      . The policy excluded from coverage “any person” injured in a repair facility. The trial court believed such language exceeded the exclusion permitted by the No-Fault Act.

      . Our research of other jurisdictions has failed to reveal any precedent concerning a patron’s status under the maintenance exclusion.

      . An example of such is Liberty Mutual Insurance Co. v. Allied Truck Equipment Co., 103 Mich.App. 33, 302 N.W.2d 588 (1981). A fire started as a result of repairs being made on a vehicle. A number of vehicles and the repair facility were destroyed. The Michigan Court of Appeals held that the vehicle owners could not recover under the Michigan No-fault but they should proceed under a bailment statute.


author: PER CURIAM:

text:
    447 A.2d 1040
    COMMONWEALTH of Pennsylvania v. Lewis Gilbert FREE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1982.
    Filed July 9, 1982.

      Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   PER CURIAM:

Following a jury trial, appellant was convicted of murder of the third degree. Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of from seven and one-half to twenty years. This appeal followed.

Appellant was represented at trial and sentencing by privately retained counsel and is represented on appeal by the Office of the Public Defender of Dauphin County. All of the issues that appellant raises on appeal involve claims of trial counsel’s ineffectiveness and are set forth as follows:

Whether trial counsel rendered ineffective assistance in eliciting from a defense witness testimony that she had previously engaged in criminal conduct and in not objecting to the prosecutor’s questioning the witness relative to her criminal record?
Whether trial counsel rendered ineffective assistance in failing to request jury instructions on excusable homicide by misadventure, defense of another and/or self-defense?
Whether trial counsel rendered ineffective assistance in failing to retain an expert witness in ballistics?

No hearing has been conducted in the lower court on appellant’s claims of ineffectiveness, and we find that we are without sufficient information to render a determination with respect to them. Accordingly, we vacate the sentence and remand this case to the lower court for the purpose of conducting a hearing on appellant’s claims of trial counsel’s ineffectiveness. If, following the hearing, the court determines that appellant was denied effective assistance of counsel, it shall enter an order granting appropriate relief. If, on the other hand, the court determines that appellant did not receive ineffective representation at trial, it shall reinstate judgment of sentence. Either party aggrieved by the court’s decision may take a new appeal to this court.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.


author: CERCONE, President Judge:

text:
    447 A.2d 1041
    COMMONWEALTH of Pennsylvania v. Melvin YANCEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 4, 1980.
    Filed July 16, 1982.

      Brian S. Quinn, Havertown, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

This is an appeal nunc pro tunc from the judgment of sentence entered by the Court of Common Pleas of Delaware County.

Following a jury trial on December 18, 1975, appellant, Melvin Yancey, was found guilty of robbery, theft by receiving stolen property, theft by unlawful taking, recklessly endangering another, simple assault, crimes committed with firearms, felonious restraint, false imprisonment and conspiracy. Appellant was sentenced to a term of imprisonment of ten to twenty years on the robbery charge, a term of imprisonment of two and one-half to five years on the charge of theft by unlawful taking to run consecutively to the robbery sentence; and, a term of imprisonment of two and one-half to five years on the charge of theft by receiving stolen property to run consecutively to the robbery sentence and to run concurrently with the theft sentence. Sentence was imposed immediately following the return of the jury’s verdict; no opportunity to file post-trial motions was given to appellant. However, on May 13,1977, a motion for new trial nunc pro tunc was entertained by the lower court and thereafter dismissed. A pro se petition for leave to appeal nunc pro tunc was denied per curiam by our court on March 7, 1978. On a pro se petition for allowance to proceed nunc pro tunc, the Supreme Court on May 15, 1978, granted appellant the right to file an appeal with our Court nunc pro tunc. It is that nunc pro tunc appeal which is presently before our court.

On appeal appellant raises several counts of ineffectiveness: including, (1) whether counsel was ineffective for failing to file for dismissal of the charges under Pa.R. Crim.P., Rule 1100(f); (2) whether counsel was ineffective for failing to investigate, interview and compel the attendance of certain witnesses; and (3) whether appellant was denied effective assistance by the unauthorized silent withdrawal of counsel during certain pre-trial and post-verdict stages of the case. Appellant also maintains that the sentence imposed was illegal: that is, the lower court violated the procedural guidelines set for sentencing, and the sentences imposed for the theft offenses and the robbery offense violate the merger doctrine.

The ineffectiveness claims are not ripe for appellate review; no evidentiary hearing was held on these claims, and the present state of the record is insufficient to make a final determination of the claims. Commonwealth v. Schroth, 490 Pa. 232, 415 A.2d 1219 (1980). Accordingly, the record must be remanded to the lower court to conduct an evidentiary hearing.

We have, however, an additional problem that must be disposed of immediately. That is, appellant’s merger argument does have merit. Appellant was sentenced on charges of theft by unlawful taking and theft by receiving stolen property, such concurrent sentences to run consecutively with the sentence imposed on the charge of robbery. In Commonwealth v. Simmons, 233 Pa. Superior Ct. 547, 336 A.2d 624 (1975), our court concluded that the crime of theft by receiving stolen property merged into the crime of theft by unlawful taking or disposition. And in Commonwealth v. Brooks, 242 Pa. Superior Ct. 7, 363 A.2d 1132 (1976) and Commonwealth v. Stevens, 237 Pa. Superior Ct. 457, 352 A.2d 509 (1975), our Court held that sentencing a defendant for robbery, theft and simple assault violated the doctrine of merger. See also Commonwealth v. Jellots, 262 Pa. Superior Ct. 17, 396 A.2d 461 (1978). Thus, the sentences imposed for the theft charges must be vacated.

The record in this matter is remanded to the Court of Common Pleas of Delaware County for an evidentiary hearing to determine whether appellant was denied effective assistance of counsel on the three points previously outlined in our Opinion. If, following the hearing, it is determined that appellant was denied effective assistance of counsel, an order shall be entered granting appropriate relief. If it is determined that appellant was not denied effective assistance of counsel, appellant is to be resentenced on the robbery charge, and once the judgment of sentence has been imposed, appellant may file an appeal at a new number and term.

We relinquish jurisdiction.

      . We ask that the lower court pay particular attention to appellant’s Rule 1100 claim. To establish a Rule 1100 claim, the defendant is obliged to have the lower court rule on its merits prior to trial. The defendant must file either a motion to dismiss under Rule 1100(f) or contest the Commonwealth’s petition to extend. Absent pursuit of one of these alternatives, the claim is waived. Herein, the Commonwealth never filed an extension petition, thus eliminating that avenue to preserve the Rule 1100 claim. The alternate route, the filing of a Rule 1100(f) motion, was never pursued by appellant’s counsel, and it is precisely this failure of which appellant complains. See Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978); Commonwealth v. Woods, 275 Pa. Superior Ct. 392, 418 A.2d 1346 (1980).
      Given the applicable dates in a Rule 1100 situation, it appears that a violation of the speedy trial rule may have occurred, and counsel’s failure to preserve the claim becomes questionable. An evidentiary hearing should provide the answer. Perhaps appellant waived his Rule 1100 rights. And although this right may be waived, it is the Commonwealth’s distinct burden to establish the validity of the waiver. The record must indicate that the waiver was made voluntarily and understandably by the accused. Commonwealth v. Guldin, 278 Pa. Superior Ct. 69, 419 A.2d 1360 (1980).

      . Because illegality of sentence is not a waivable issue, it is properly raised at this time. Commonwealth v. Walker, 486 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Miranda, 296 Pa. Superior Ct. 441, 459 n.17, 442 A.2d 1133, 1142 n.17 (1982); Commonwealth v. Schilling, 288 Pa. Superior Ct. 359, 431 A.2d 1088 (1982).


text:
    447 A.2d 1043
    In the Interest of Rochelle BONNER, a Juvenile. Appeal of Rochelle BONNER.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1980.
    Filed July 16, 1982.

      Arthur J. King, Assistant Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for participating party.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

Appellant, Rochelle Bonner, takes this appeal from her adjudication as a delinquent for retail theft. The crux of her argument on appeal is that appellant was denied the right to counsel and to confront the witnesses against her. We agree and we reverse.

On December 20, 1979, a petition was filed charging one “Karen Burke”, a minor, age seventeen, with delinquency. It was alleged that this named juvenile, along with her brother, “Jeffrey”, aged twelve, committed retail theft. A hearing on this petition was scheduled for January 22, 1980, however, the juveniles failed to appear and bench warrants were issued. On January 25, 1980, members of the sheriff’s department were sent to the address listed on the petition. At this address, three juveniles were picked up by the sheriff; these juveniles names were Karen, Jeffrey and Rochelle Bonner. The sheriff took the children to the Plymouth Township police station. There, the minors remained in the police car while Officer Richard Pachella came out of the station house and identified Karen and Jeffrey Bonner as the two children who he had apprehended for retail theft, and who had used the names “Karen and Jeffrey Burke.” Whereupon, after the detention hearing Karen and Jeffrey Bonner were held for an adjudication hearing. Rochelle Bonner was present in the courtroom during the detention hearing but was not implicated in the alleged delinquent act.

On February 1, 1980, an adjudication hearing on the petition was convened by the court. Present at this hearing were Karen and Jeffrey Bonner, who were sitting with their counsel at the defense table. Rochelle Bonner sat in the jury box as a spectator. The first witness called by the Commonwealth was Jeffrey Cohen, a store security officer; this witness identified Jeffrey Bonner and Rochelle Bonner as the juveniles involved in the retail theft at issue. After Mr. Cohen’s direct testimony, defense counsel for Karen and Jeffrey Bonner moved that all witnesses be sequestered. The court granted this motion and all witnesses were removed from the courtroom. At the same time, Rochelle Bonner was also removed from the courtroom.

The Commonwealth’s second witness was Officer Richard Pachella. Officer Pachella testified that his prior identification of the two juveniles was in error. He then stated that it was Jeffrey and Rochelle Bonner who had committed the retail theft. As was just indicated, Rochelle was not present in the courtroom at this point in the proceedings.

At the conclusion of Officer Pachella’s testimony, the Commonwealth rested. Counsel for Karen Bonner moved to have the petition against her dismissed, which motion the court granted. There followed a discussion on the record at which time the court determined that appellant Rochelle was “the subject of the petition based upon the identification in the courtroom.” The court appointed counsel to represent appellant Rochelle Bonner and, on its own motion, continued the matter to give defense counsel “the opportunity to consult with her and to prepare her portion of the case.”

The adjudication hearing reconvened on February 12, 1980, with Rochelle and Jeffrey Bonner seated at the defense table. The court granted the Commonwealth’s motion to proceed with Rochelle Bonner henceforth to be considered as the petitioned juvenile, over the objection of defense counsel. The Commonwealth then reopened its case, calling Denise Carmichael, a second security guard, to the stand. This witness identified Rochelle and Jeffrey Bonner as the juveniles she had apprehended and who had identified themselves as “Karen and Jeffrey Burke.” At the conclusion of the hearing, both Rochelle and Jeffrey were adjudicated delinquent.

In this appeal, appellant Rochelle argues that the actions of the lower court denied appellant her Sixth Amendment rights to counsel and to cross-examine the witness against her. The United States Supreme Court ruled in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) that a juvenile has a constitutional right to notice of the charges, to counsel, to confrontation and cross-examination of witnesses, and to the privilege against self-incrimination. In appellant’s case, appellant was not given counsel until two of the witnesses against her had testified. Furthermore, since appellant was not a defendant at the time that these witnesses testified, appellant did not have the right to confront and cross-examine the witnesses. Neither was appellant given the opportunity to speak in her behalf or have an attorney represent her at the detention hearing, nor was appellant given notice of the charges. This was an egregious denial of appellant’s Sixth Amendment rights and accordingly we reverse.

Appellant also argues that no proper petition was filed against Rochelle Bonner. We agree. The action was initiated by a petition naming “Karen Burke” as the actor. As was previously stated, a detention hearing was held on this petition and Karen Bonner was detained. Whereupon the court sent a notice to the parents of “Karen Burke Bonner.” Additionally the court that same day entered an order captioned “In the Interest of Karen Burke a/k/a Karen Bonner” directing that this individual be detained in the youth center pending further proceedings. After the adjudication hearing, the court entered a second order directing that “Karen Burke a/k/a Karen Bonner” be released. After further proceedings in the adjudication hearing, described earlier, the court entered two orders captioned “In the interest of Rochelle Bonner.” Neither of these orders contained the alias “Karen Burke.”

In the case of In re Gault, supra, the Court held that the child and his parents or guardian must be notified, in writing, of the specific charges or factual allegations to be considered at the juvenile delinquency hearing, and further, that this notice must be given at the earliest practicable time, sufficiently in advance of the hearing so as to permit preparation. In appellant’s case, neither appellant Rochelle nor her parents or guardian were given notice at any time prior to the adjudication hearing, a clear violation of due process considerations set forth in Gault. The lower court attempts to justify the substitution of Rochelle Bonner for Karen Bonner in the middle of the adjudication hearing on the grounds that it was an amendment of the petition as permitted under local rule. This rationale is meritless. The substitution of one person for another in the middle of a hearing is much more than an amendment. Accordingly, as it is filed, the petition naming “Karen Burke” as its subject is not effective against Rochelle Bonner.

Reversed.

      . At the time of this hearing, Rochelle was sixteen years old.

      . Montgomery County Juvenile Court Rule 406(f) provides:
      (f) Amendment of Petition—The Court, on motion of any party or on its own motion at any time during the course of the proceeding, may direct the amendment of the petition. If any such amendment results in a substantive variance from the facts originally alleged, the court shall grant such continuances as justice may require.


author: CAVANAUGH, Judge:

text:
    447 A.2d 1046
    COMMONWEALTH of Pennsylvania v. Robert L. MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 9, 1981.
    Filed July 16, 1982.

      David C. Raker, Williamsport, for appellant.
    Kenneth Brown, District Attorney, Williamsport, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Lycoming County, denying appellant’s petition for post-conviction relief.

Appellant, Robert L. Martin, pleaded guilty to two counts of theft by deception, one count of issuing a bad check, and one count of criminal trespass. On September 20, 1976, appellant was sentenced to one (1) to five (5) years imprisonment on each charge, all to run concurrently. No motion to withdraw the guilty plea was filed and no direct appeal was taken.

On December 4, 1979, appellant filed a petition pursuant to the Post-Conviction Hearing Act, (PCHA) in which he advanced four grounds in support of his prayer for relief: that he had been denied the effective assistance of counsel by counsel’s failure to object to the trial court’s use of the pre-sentence report containing collateral criminal matters; counsel’s failure to request the trial judge to recuse himself due to the prejudice instilled by the defective pre-sentence report; failure to object when the trial court failed to state his reasons for imposing the sentences; and counsel’s failure to properly perfect an appeal of these errors. Counsel was appointed and on April 28, 1980, granted a thirty day extension in which to amend appellant’s PCHA petition, as he saw fit, for a hearing scheduled for August 18, 1980.

On August 15, 1980, appellant’s counsel filed an amended petition raising twelve new issues. At the hearing, the Commonwealth objected to the untimeliness of the amendment, citing Commonwealth v. Nelson, 489 Pa. 491, 414 A.2d 998 (1980). The lower court reserved judgment on the Commonwealth’s objection until appellant could file a brief, but received testimony on the merits of the twelve new issues. On October 20, 1980, the lower court denied appellant’s motion to amend and denied the Commonwealth’s motion to take additional testimony. On December 4, 1980, the lower court denied the appellant any relief with the exception of a new sentencing proceeding. On February 2, 1981, the appellant was again sentenced to one (1) to five (5) years imprisonment on these charges and this appeal followed.

On appeal, appellant has abandoned the issues raised in his original PCHA petition. Though appellant’s brief argued the merits of the twelve issues raised in his amended petition, the sole issue to be determined in this appeal is whether the lower court erred in denying appellant’s motion to amend his PCHA petition.

Section Seven of the Post-Conviction Hearing Act provides:

Amendment and withdrawal of petition
The court may grant leave to amend or withdraw the petition at any time. Amendment shall be freely allowed in order to achieve substantial justice. No petition may be dismissed for want of particularity unless the petitioner is first given an opportunity to clarify his petition. 1966, Jan. 25, P.L. (1965) 1580, § 7, effective March 1, 1966.

(emphasis added).

Clearly, the object of the above quoted section was to avoid the unnecessary duplication of PCHA petitions and their subsequent appeals. Further, the policy of this court has been to discourage the piecemeal litigation of PCHA claims. Commonwealth v. Parker, 299 Pa.Super. 68, 445 A.2d 151 (1982); Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). Thus in accordance with that policy, while we do not condone the unexplained lack of diligence of the appellant’s original PCHA court appointed counsel, we are constrained to reverse and remand for an evidentiary hearing for the consideration of the issues which appellant raised in his amended petition.

Reversed.

      . This petition concerns only the theft by deception and criminal trespass charges.

      . Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed § 2(a) [1397] of Act 1978, April 28, P.L. 202, No. 53, to take effect June 27, 1980, reinstated Act of June 26, 1981, No. 40 § 1, to June 27, 1982.

      . The other asserted grounds were repetitive.

      . The amended petition was filed on Friday, August 15, 1980 for the hearing at 1:30 p.m. on Monday, August 18, 1980.

      . The lower court only permitted the appellant to present evidence with regard to the issues raised in the appellant’s amended petition pending its disposition of the Commonwealth’s objection to appellant’s petition to amend.

      . Because of our disposition of the case, we need not comment upon the issues raised in the appellant’s amended petition and argued in the appellant’s original brief to this court.


text:
    447 A.2d 1047
    John H. HAMMOND, Appellant, v. Ann E. HAMMOND, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1981.
    Filed July 16, 1982.

      Marc D. Jonas, Lansdale, for appellant-husband.
    Neil H. Stein, Philadelphia, for appellant-wife.
    Before HESTER, CAVANAUGH and BECK, JJ.
   PER CURIAM:

This is an appeal by appellant-wife, Ann E. Hammond, and appellant-husband John H. Hammond, from orders dismissing exceptions to the master’s report in a divorce action and denying joint petitions by the parties to reinstate exceptions or grant leave to refile exceptions nunc pro tunc. Since the lower court never entered a decree of divorce, we quash this appeal as interlocutory.

On January 30, 1978, appellant-husband filed his complaint in divorce. After a hearing, a master’s report was filed on October 24, 1979, recommending that a divorce be granted. Nine days later, appellant-wife filed exceptions to the master’s report. Appellant-husband thereafter filed a praecipe to have appellant-wife’s exceptions listed for argument. On April 15, 1980, appellant-wife’s exceptions were dismissed by President Judge Richard S. Lowe of the Court of Common Pleas of Montgomery County because appellant-wife failed to file a brief in support thereof within thirty (30) days as required by Montgomery County Rule of Civil Procedure 302(d).

Appellant-wife and appellant-husband then filed a joint petition for approval of a stipulation requesting that the court vacate its order of April 15, 1980, and reinstate appellant-wife’s exceptions to the master’s report. In their petition, counsel stated that they had agreed, by and between themselves, that appellant-wife could have additional time within which to file a brief. They acknowledged, however, that their agreement had not been communicated to the lower court. Judge Lowe denied the joint petition on April 23, 1980.

The parties next filed a joint petition for leave to refile exceptions to the master’s report nunc pro tunc, stating as reason therefor the grounds included in the earlier petition. On May 2, 1980, that petition was also denied by Judge Lowe. Appellant-wife and appellant-husband then appealed to this Court from the lower court orders of April 15, 1980, April 23, 1980 and May 2, 1980.

A similar appeal was presented to, and quashed by, a panel of this Court in Aloi v. Aloi, 290 Pa.Super. 125, 434 A.2d 161 (1981) (appeal from order dismissing exceptions to master’s report and denying petition to reopen report quashed as interlocutory; divorce decree issued after appeal taken). In that case we said:

Our jurisdiction is limited to appeals from final orders and to such appeals from interlocutory orders as authorized by law or permitted upon certification by the lower court. 42 Pa.C.S.A. §§ 702, 742; Pa.R.A.P. 301-312. The question of jurisdiction is one that we not only may but are required to raise sua sponte. Penstan Supply, Inc. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981).
An order dismissing exceptions and refusing to reopen a master’s report is not a final order nor is it made appealable by any statute or general rule. Although entitled to careful consideration, the recommendation and findings of a master in a divorce action are only advisory; the lower court must still independently satisfy itself that a grant of a divorce is proper. Rankin v. Rankin, 181 Pa.Super. 414, 124 A.2d 639 (1956); Rinoldo v. Rinoldo, 125 Pa.Super. 323, 189 A. 566 (1937).
In Elsesser v. Elsesser, 80 Pa.Super. 117 (1922), we quashed an appeal taken from a jury verdict, noting that even when the facts had been conclusively determined by the jury, it was still the duty of the lower court to determine whether under the law a divorce was proper, and that only after the entry of a final decree was an appeal proper. In Steinman v. Steinman, 144 Pa.Super. 193, 18 A.2d 816 (1941), the appeal had been taken from an order directing that a decree be entered when certain costs were paid. Although we did consider the merits, we repeated that only the final decree was properly appealable. Here, when the appeal was taken, the lower court had not gone so far as the court in Steinman.

290 Pa.Super. at 128, 434 A.2d at 163.

Here, as appellant-wife acknowledges in her brief, a decree of divorce was never entered by the lower court. Absent the entry of a final divorce decree, there is no independent determination by the court that the grant of a divorce is proper and, furthermore, no order from which an appeal may be taken. The lower court orders of April 15, 1980, April 23, 1980 and May 2, 1980 are unappealable interlocutory orders and appellants’ appeal must be quashed.

      . Since the parties jointly filed a notice of appeal to this Court and appellant-wife’s brief refers to both parties as “appellant,” we also characterize each of them as “appellant” for purposes of this appeal.

      . In his opinion, the lower court indicated that appellant-wife’s exceptions, inadvertently dismissed pursuant to Rule 302(d), should instead have been dismissed under Montgomery County Rule of Civil Procedure 301(d).

      . A second decree in divorce was subsequently entered in that case and, following an appeal, was affirmed by a panel of this Court. Aloi v. Aloi, 299 Pa.Super. 400, 445 Pa.2d 815 (1981).

      . No brief has been filed by appellant-husband.