author: BROSKY, Judge:

text:
    439 A.2d 182
    COMMONWEALTH of Pennsylvania, v. Richard Lee BARNETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1981.
    Filed Dec. 29, 1981.

      Richard L. Shoap, Chambersburg, for appellant.
    Gary Deane Wilt, District Attorney, McConnellsburg, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

In 1975, appellant was convicted of several crimes including one count of resisting arrest. In 1976, he was given a suspended sentence for two years and placed on probation on the resisting arrest charge. In June, 1979, appellant was found to be in violation of the terms of his probation on the basis of a guilty plea to a robbery charge which he entered during the probationary period. He was sentenced in August, 1979 for the probation violation. He then petitioned the lower court for vacation of that sentence; the petition was denied on September 6, 1979. Appellant now seeks review of that September 6 order. We quash the appeal.

Appellant termed the pleading in which he requested vacation of sentence a “Petition to Vacate.” It was effectively a motion to modify sentence. The relief sought by appellant is properly requested by means of such a motion. See Pa. Rule Crim.Proc. 1410 and Comment. See also, Commonwealth v. Dorman, 272 Pa.Super. 149, 414 A.2d 713 (1979), footnote two, in which this court applied Rule 1410 to a motion to vacate sentence.

Appellant commenced this action by filing a notice of appeal on October 5, 1979. If the appeal were properly taken from the denial of his motion, it would be timely filed. However, the Comment to Pa. Rule Crim.Proc. 1410 makes clear that appellant’s appeal in which he seeks review of the merits of his conviction is properly from the judgment of sentence, not the denial of the motion. The Comment states in part,

. . . [T]he filing of a motion for modification of sentence . .. do[es] not affect the running of the thirty day period for filing a timely notice of appeal, and the need for the defendant to file his appeal (both as to the merits of the case or as to the sentence) within that period.

The present appeal was begun more than thirty days after the judgment of sentence was entered. The denial of appellant’s petition does not extend the 30 day period. See Commonwealth v. Thompson, 277 Pa.Super. 267, 419 A.2d 765 (1980).

Appeal quashed.


source: Caselaw Access Project

license: Public Domain

text:
    439 A.2d 183
    Garfield HUGHES, Appellant, v. YELLOW FREIGHT SYSTEM, INC.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1981.
    Filed Dec. 29, 1981.

      William M. Overton, Jr., Harrisburg, for appellant.
    Thomas B. Schmidt, III, Harrisburg, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

Appellant, Garfield Hughes, and appellee, Yellow Freight System, Inc., entered into a motor carrier lease agreement which the parties agree is governed by the National Master Freight Agreement and Eastern Area Iron and Steel Rider. Appellant commenced this action to recover damages for what he claims was a breach of the contract by appellee. Appellee filed a motion for summary judgment which was granted as to appellant’s complaint. This appeal followed. We affirm.

Pa.R.C.P. 1035 governs motions for summary judgment and provides in relevant part,

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, if any.
(b) ... The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Our Court has explained the principles to be followed in ruling on a motion for summary judgment as follows:

The burden of demonstrating that a genuine issue of material fact exists and that one is entitled to a judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party.
* * * * * *
. . . Finally, a summary judgment should be granted only when the case is clear and free from doubt.

Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977), Aimco Imports Ltd. v. Industrial Valley Bank and Trust Company, 291 Pa.Super. 233, 435 A.2d 884 (1981).

In Amabile, supra, we explained that to grant a motion for summary judgment made by a defendant, it must either refute a material allegation in the complaint or present a complete defense. Id., 249 Pa.Super. at 147, 376 A.2d at 250.

Appellee, the defendant below, sought summary judgment on the grounds that the issue raised in appellant’s complaint was previously and finally determined by a grievance committee in proceedings also initiated by appellant. Because of the earlier ruling, appellee argues, there remains no material issue of fact.

The dispute underlying this suit stems from the deduction of monies by appellee from lease income owed to Hughes. Appellee made the deductions and additional charges claiming that appellant was responsible for cargo loss suffered while he was operating his vehicle pursuant to the lease agreement with appellee. The loss occurred on July 14, 1976. Appellee began making the deductions on August 15, 1976. Grievance procedure were pursued, culminating in a ruling by the Central Pennsylvania Joint Area Grievance Committee which was expressed as follows:

Award: Based on the evidence presented the claim of the employee he was not responsible for the damage to a shipment of refractory brick he transported and should not be responsible for nor pay for the damage to the shipment is denied.

The trial court dismissed appellant’s complaint saying that the Committee’s decision was plainly a finding that the deductions had been made upon proof of gross negligence by appellant.

In Teamsters Local Union No. 30 v. Helms Express, Inc., 591 F.2d 211 (3rd Cir.1979), the Third Circuit Court of Appeals affirmed the dismissal of a complaint which sought to have set aside an award of the Eastern Conference Joint Area Committee (ECJAC). The court explained that Joint Committee awards are reviewed under the same standards as binding arbitration awards. Id. at 216 (citing cases). Citing one of its earlier decisions, the Third Circuit wrote,

It is not arbitration per se that federal policy favors, but rather final adjustment of differences by a means selected by the parties. If the parties agree that a procedure other than arbitration shall provide a conclusive resolution of their differences, federal labor policy encourages that procedure no less than arbitration. A determination made pursuant to that chosen procedure is no less enforceable in a federal court than is an arbitration award.
United Mine Workers of America, District No. 2 v. Barnes & Tucker Co., 561 F.2d 1093, 1096 (3d Cir.1977). Id. at 216.

A labor arbitration award that is properly based on the applicable collective bargaining agreement and is thus within the boundaries of the arbitrator’s jurisdiction is entitled to finality and is not subject to review on the merits. Hart v. Overseas National Airways Inc., 541 F.2d 386 (3rd Cir.) (1976). See also, Helms, supra.

Appellant seeks to avoid the strictures placed on review of committee decisions by arguing that he is not seeking review of the decision, but relief for a breach of contract. Specifically, he contends that the deduction of monies prior to a finding of gross negligence by the committee constituted a breach of contract. This question while not specifically addressed in the committee decision was clearly within the purview of their review. Appellant contested the deductions and his claim was denied. As to the issues raised in the complaint, the committee decision is final and binding. We cannot permit appellant to circumvent the clear federal policy favoring final resolution of labor disputes by means of procedures chosen by the parties.

Order affirmed.

      . An addendum to the lease agreement provides that payment will be reduced for cargo claims in accordance with the labor contract [addendum to Exhibit B, 2(c)]. Article 10 of the labor contract states that “Employees shall not be charged for loss or damage unless clear proof of gross negligence is shown.”

      . The litigants in Helms were also parties to the National Master Freight Agreement.

      . Appellee, Yellow Freight, is engaged in interstate commerce. The federal policy as to labor arbitration awards therefore governs this case. See Guille v. Mushroom Transportation Company, 425 Pa. 607, 229 A.2d 903 (1967).


author: BROSKY, Judge.

text:
    439 A.2d 185
    COMMONWEALTH of Pennsylvania ex rel. Nancy Lee STONE, Appellant, v. James F. STONE. Appeal of Nancy Lee STONE.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1981.
    Filed Dec. 29, 1981.

      Scott K. Oberholtzer, Middletown, for appellant.
    Paul J. Esposito, Harrisburg, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge.

The instant appeal is from the lower court’s order denying appellant-wife’s petition for an increase in child support for her eleven year old son. The lower court held that there had been no material change in circumstances which would warrant an increase. Because we find that the court below abused its discretion, we reverse and remand for a full evidentiary hearing on the merits.

The facts are as follows. On November 3, 1980, appellant appeared with her counsel before the Honorable William W. Caldwell of the Court of Common Pleas of Dauphin County, Pennsylvania, pursuant to her petition for a modification of the support order presently in effect between the parties. The support order was based upon a detailed property settlement agreement between the parties entered into April 25, 1980.

At the hearing, appellant’s attorney briefly outlined appellant’s basis for the modification request. Counsel for appellee then made a few remarks in rebuttal. There was no testimony taken under oath at any time during the proceedings; neither attorney was sworn, and neither appellant nor appellee testified. There were no exhibits properly introduced or made a part of the record. Although appellee’s counsel produced a copy of the property settlement agreement, the agreement was not authenticated by counsel, nor was it offered into evidence. On the basis of the attorneys’ presentation, the court made findings and entered an order pursuant to those findings.

In Commonwealth ex rel. Haertsch v. Haertsch, 267 Pa.Super. 283, 406 A.2d 805 (1979), we held that the lower court had abused its discretion in entering an order increasing a support order, based solely upon the court’s brief discussion with appellant and counsel. In Haertsch, as in the case at bar, no testimony under oath was taken or any exhibits were introduced, to prove a change in circumstances.

As we stated in that case:

The law is clear that a support order may only be modified when the evidence produced at a hearing shows a change in circumstances that would justify the modification. Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976). The burden is on the party seeking modification to present such evidence on the change of circumstances. Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974). An appellate court will not overturn a support order entered by the lower court absent an abuse of discretion. Commonwealth ex rel. Schmitz v. Schmitz, 237 Pa.Super. 519, 352 A.2d 103 (1975). However, we find the lower court’s order in this case, absent a full hearing on the merits, is contrary to the law and manifests an abuse of discretion by the lower court. Commonwealth ex rel. Kaplan v. Kaplan, 219 Pa.Super. 163, 280 A.2d 456 (1971).

Id., 267 Pa.Super. at 284, 406 A.2d at 806 (emphasis added).

It is well settled that our task on review in such cases is to determine whether there was sufficient evidence to sustain the lower court or whether that court was guilty of an abuse of discretion. Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Super. 572, 407 A.2d 389 (1979).

In reviewing the lower court’s action to determine whether an abuse of discretion has occurred, we recognize that ‘[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Com. ex rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781, 785 (1976).

Id., 267 Pa.Super. at 574, 407 A.2d at 391.

Here, we find that discretion was abused because no testimony was taken under oath and no evidence was properly introduced and made a part of the record. The well-settled principles governing requests for modification of child support orders are as follows: First, that “the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification,” Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 366, 421 A.2d 762, 766 (1980) (emphasis added), Commonwealth ex rel. Haertsch v. Haertsch, supra; second, that “only material and substantial changes in circumstances, as proven by competent evidence, will warrant modification of a support order,” Commonwealth ex rel. Caswell v. Caswell, supra, 280 Pa.Super. at 366, 421 A.2d at 766 (emphasis added); Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa.Super. 127, 392 A.2d 717 (1978); and third, that “a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to require such modification,” Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 366, 421 A.2d at 766 (emphasis added).

Since no evidence was placed on the record here, it is clear that the above principles were violated. Here, the attorneys were not under oath, and the litigants were not afforded the opportunity to present their version of the case, to add to or contradict the attorneys’ presentation, or to be cross-examined.

Therefore, we must reverse the order and remand for a full evidentiary hearing on the merits.


text:
    439 A.2d 187
    ROBERT H. H. v. MAY L. H., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1981.
    Filed Dec. 29, 1981.
    As Amended Feb. 26, 1982.

      John J. Krafsig, Jr., Harrisburg, for appellant.
    Harry B. Goldberg, Harrisburg, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

This is an appeal from an award of custody to the father of two children, Kimberly D. H., his adopted child, and Jessica L. H., a natural child of the parties. We have before us an extensive record in which is disclosed a hotly contested dispute regarding the custody of their children. Kimberly D. H. was 11 years old and Jessica L. H. was 8 years old at the time of the custody hearing. The parties were married on September 29, 1972. The opinion which supports the order of the trial court is only three pages long. There is a noticeable absence of any analysis of the facts disclosed in the record regarding the relationship of the custodial parent, at the time of the hearing, May L. H., to her children. Rather, there is only a brief and condemning discussion of her romantic relationships, occurring at different times in the course of the parties’ separation, with three men. The record clearly indicates that the children are predisposed to living with their mother and that they have a strong bond with their mother. For the reasons that follow, we reverse the decision of the trial court and remand to the trial court with the direction that custody of the children be awarded to the appellant, May L. H.

Our scope of review in custody disputes is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We will review the record very closely not with a mind toward usurping the fact-finding function of the trial court, but with a responsible eye searching to ferret out what is in the “best interest of the children.” In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). Accordingly, we are not bound by the deductions and inferences made by the judge who heard the dispute. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974). Thus, we make an independent review of the evidence and render an independent judgment which will assure that the Commonwealth’s justifiable concern for the health and safety of its children is met. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1979). Our review, therefore, requires not only a thoroughly developed and complete record, Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974), but a comprehensive and well-reasoned opinion which analyzes the facts disclosed in the record in a manner which clearly demonstrates the necessity for placing custody with either the petitioner or respondent. Martincheck v. Martincheck, 262 Pa.Super. 346, 396 A.2d 788 (1979). Hence, we shall engage in a broad and comprehensive review of the record and reach an independent decision regarding the placement of the children in the custody of either party. We shall approach this review with an open mind and will not adhere to an abuse of discretion standard. Simply stated, our broad scope of review encompasses but is not limited to the narrow scope of review described by the term abuse of discretion. Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). To reason in any other manner contradicts the very essence of our standard of review in custody cases. In re Jennifer Lynn Arnold, Appeal of Merrill S. Arnold, 286 Pa.Super. 171, 176, 428 A.2d 627, 629 (1981) (HOFFMAN, J., Concurring Opinion); Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa.Super. 444, 458, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., Concurring Opinion).

It is axiomatic that the pole star of a custody dispute between the mother and father is what is in the best interest of the children involved. Dena Lynn F. v. Harvey H. F., 278 Pa.Super. 95, 419 A.2d 1374 (1980); Wenger v. Wenger, 267 Pa.Super. 134, 406 A.2d 555 (1979). This interest encompasses their spiritual, emotional, physical and intellectual well being, In re Jennifer Lynn Arnold, Appeal of Merrill S. Arnold, supra, 286 Pa.Super. at 174, 428 A.2d at 628.

May L. H. and Robert H. H. separated in February of 1980 and were divorced on May 20, 1980. May L. H. moved from the family house. The children, after the separation, lived with their mother. Shortly after May L. H. moved from the family residence to a new dwelling, she established a sexual relationship with a man who lived with her and her children for several months. Some time later, she had a sexual encounter with a second man and yet later she moved from her dwelling to live with another man with whom she and her children resided through the time when the custody hearing was held.

Robert H. H. filed a petition for visitation (partial custody in fact) and a hearing on that petition was held on July 3, 1980 and a schedule for partial custody was established. On October 29,1980, a hearing was held on a petition for habeas corpus which was filed by Robert H. H. On November 21, 1980, the trial court awarded custody to Robert H. H. This appeal followed.

A helpful review of Pennsylvania decisions involving custody disputes where the custodial parent has engaged in or is engaging in non-marital sexual relations is found in Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 498-499, 422 A.2d 572, 579-580 (1980) (SPAETH, J., Dissenting Opinion):

Everyone develops a code of personal conduct. It does not follow that one is entitled to impose that code on others, or penalize those who do not conform to it. Especially in a child custody case is it important that the hearing judge distinguish between his personal code of conduct, and his determination of what is in the children’s best interest. One may believe, with the utmost conviction, that certain conduct is wrong, and yet it may be that that belief should have little or no part in determining who should have custody of the children. A judge may believe that “lips that touch liquor shall never touch mine,” but he is not for that reason to deny custody to a mother who drinks. A judge may be a devout churchgoer, but he is not for that reason to deny custody to a mother who does not go to church. Or, as here, a judge may believe that it is immoral for an unmarried woman to have sexual intercourse, but he is not for that reason to deny her custody of her children. See Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976) (collecting and discussing cases); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). Of course, “a parent’s nonmarital relationships must be given close scrutiny in determining custody matters.” Commonwealth ex rel. Myers v. Myers, supra, 468 Pa. at 138, 360 A.2d at 589. The purpose of the scrutiny, however, is only to determine the impact of the relationship on the children:
[I]t is the effect of the nonmarital relationship on the child and not the fact of the relationship itself which is crucial to a custody decision. If the evidence shows that a parent’s conduct has had harmful effects on the child the court may be justified in denying custody to that parent. On the other hand, if the evidence shows that the parent’s conduct has not adversely affected the child and that the parent has taken good care of the child, then the best interest of the child may dictate that the parent retain custody. In each case, all relevant circumstances must be examined to determine what action would be in the best interest of the child. Commonwealth ex rel. Myers v. Myers, supra, 468 Pa. at 141, 360 A.2d at 590.
The controlling words in this statement of the law are, “if the evidence shows . . . . ” The court must never assume, or infer, that simply because a nonmarital relationship exists, the impact of the relationship on the children has been harmful. The evidence must show that it has been harmful, and this is so whether the nonmarital relationship, as in Myers and Gunter, approaches a de facto marriage or, as in this case, is more transient. Rupp v. Rupp, 268 Pa. Super. 467, 408 A.2d 883 (1979). See also Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 397 A.2d 1192 (1979) (SPAETH, J., dissenting opinion).

(Emphasis added.)

The trial court in the instant case based its decision entirely upon the existence of three relationships which May L. H. had had with men since she was separated. The court’s opinion concluded:

The children are at an impressionable age, the mother has had several triffling (sic) relationships with men who have moved into their residence and shared her bedroom on a regular basis up to and including the date of the hearing in this matter. Her conduct is sexually promiscuous, flagrant, persistant (sic) and immoral. Respondent’s conduct sets a bad example for the children. [Citation omitted.]

(Trial court’s opinion at page three.)

Our review of the record finds that May L. H. established a sexual relationship with Bradley L. shortly after moving from her marital residence. This relationship lasted approximately four months. May L. H. and Bradley L. lived in the same house with the two children openly, however, there is little evidence in the record which would indicate that the children were ever exposed to any sexual intimacies which existed between May L. H. and Bradley L. The children always slept in a separate room while Bradley L. was in the residence. Furthermore, if the couple ever went out for an evening, baby-sitters were employed. The record does indicate that on one occasion the children told their father that they had gone swimming with their mother and Bradley and that their mother swam with her “top off.”

The girls told me when I picked them up Labor Day—that was my holiday to get them—they were swimming either Saturday or Sunday night in the pool and they had their suits off and Kimberly told me she took her top off.
Q. By “she” meaning who?
A. May.

The record also indicates there was some drinking of beer in front of the children. However, it is clear that the drinking neither resulted in the children being abused nor was the drinking engaged in in front of the children frequently.

The record indicates that the children had a warm relationship with Bradley L. There is no indication that the children were harmed by his presence. May L. H.’s landlord testified that she got to know Bradley L. and May L. H. and the children, and that they seemed very happy together.

Sometime after the departure of Bradley L. from the home that May L. H. engaged in a sexual relationship with a young married man. May L. H. stated she did not know he was married at the time and furthermore that the children were in no way exposed to this relationship. The record supports the appellant’s contentions that the children were not in any way harmed by this relationship.

The third relationship into which May L. H. entered occurred several weeks later. This relationship was with a Lloyd S. May L. H. and the children moved from their home to reside with him. The relationship continued through the time of the hearing at which custody was awarded Robert H. H. There is testimony that Lloyd S. is or at least was at some time during the relationship with May L. H. a married man. There is, however, no indication that the children were aware of his marital status and there is clearly no indication that they were harmed by the mere existence of his marital status.

The residence in which Lloyd S. lived with May L. H. and the two children was also inhabited by Lloyd S.’s son. It is clear, however, that the two girls slept in a room entirely separate from that of Lloyd S.’s son and that May L. H. and Lloyd S. slept in yet another separate room.

There is evidence that the children have developed a happy and stable relationship with Lloyd S. They seek his assistance in the preparation of their homework. Testimony was given by a school counselor who indicated that since the children have been in the school district where Lloyd S.’s home is located, that the children have shown noticeable improvement scholastically and socially. The counselor stated:

If I may add something, the very first day that Kimberly was there she was somewhat tense and appeared to be quite shy, very nervous and many kids are that way in a new school situation, but Kimberly has blossomed. You can see it on a day to day daily basis and her teacher and other people have seen she has blossomed and it is an awfully good thing to see in a child, not only they are doing well academically but in all other areas, too, and we have seen this so much in Kimberly.

Testimony was given that May L. H. and Lloyd S. are attentive to the children and that in the event that they leave the children in the house that a baby-sitter is provided.

The only evidence involving any dispute to which the children were exposed, involving Lloyd S., all had their origin in the thorny relationship between May L. H. and Robert H. H. On several occasions when May L. H. did not believe her children should be with their father Lloyd S. became involved in disputes with Robert H. H. However, we note that his involvement in no way created or exaggerated the problems, rather, the difficulties were caused by the inharmonious relationship between the children’s parents.

There is considerable evidence regarding May L. H.’s social activity in various taverns, and hotels. However, at no time is there any evidence which indicates that since her separation from her husband that her social activities resulted in her neglecting her children. In fact, she conscientiously arranged for their care while she was out of the home. Furthermore, there is no evidence that the children were cognizant of the substance of their mother’s social activity outside her home.

While the record discloses that May L. H. was once overheard by a neighbor, who resided immediately next door to her and her husband, swearing at her daughters, May L. H. denies these allegations. The record indicates clearly that the incident if it existed at all was a relatively isolated event. There is no evidence of any swearing or other abusive language expressed in the children’s presence while in the custody of their mother.

The record viewed in its entirety contains countless sexual innuendoes by Robert H. H. and his family members regarding May L. H.’s life style, however, very little substance regarding the detriment the children supposedly were subjected to by their mother’s social behavior.

The trial court apparently hinged its decision upon its view of the entire record, from which it concluded that the children were being raised in an environment in which they were surrounded by immorality and that the children were likely to learn from this experience and engage in immoral behavior themselves. We do not believe the record supports this contention. The children did witness their mother express affection for two men after separating from their father. They were never subjected to any abuse. They were never neglected. At most they were confronted with their mother’s desire to experience relationships with men after her relationship with their father had ended. We are unwilling to hold that her behavior was so offensive as to impose upon her children an environment so steeped, in what one may be viewed as immorality, that she should have custody of her children denied her.

Accordingly, we hold that the record does not support the decision of the trial court. We have determined that the best interest of the children will be served by placing them in the custody of their mother. We reverse and remand to the trial court and direct that the trial court enter an order in accordance with this opinion and to establish a schedule of partial custody for Robert H. H. which is suited to the present circumstances of the parties and the children so as to return the children to the status quo ante.

      . In Commonwealth ex rel. E. H. T. v. R. E. T., supra, 285 Pa.Super. at 448, 427 A.2d at 1371-1372, we said:
      It is axiomatic that the singular concern in a custody proceeding is the best interest and welfare of the children involved. See Wenger v. Wenger, 267 Pa.Super. 134, 406 A.2d 555 (1979). To ensure that proper attention is addressed to this concern, we are obligated to exercise the broadest scope of review whenever a custody matter is before us on appeal. Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 251, 397 A.2d 1192, 1193 (1979). Nonetheless, since the trial judge is in the best position to evaluate the attitudes, sincerity, credibility, and demeanor of the witnesses involved, his “determination of custody should be accorded great weight.” Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972) (citation omitted). See, e.g., Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1973); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 117, 245 A.2d 663, 665 (1968). Thus, although we are not duty bound to accept the trial court’s determination, we will defer to it, absent an abuse of discretion, if the judge has thoroughly investigated the facts, that investigation is documented by a complete record, and a comprehensive analysis of the judge’s findings is contained in a written opinion. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. at 597-98, 296 A.2d at 841. See Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977). Instantly the trial judge has complied with this formula and thus deference to his determination is warranted.
      We find it very difficult to reconcile our very broad review of custody disputes with an abuse of discretion standard. The standard in custody disputes has been significantly watered down by the language:
      Thus, although we are not duty bound to accept the trial court’s determination, we will defer to it, absent an abuse of discretion, if the judge has thoroughly investigated the facts, that investigation is documented by a complete record, and a comprehensive analysis of the judge’s findings is contained in a written opinion.
      Id., 285 Pa.Super. at 448, 427 A.2d at 1371. We cannot determine whether the facts have been “thoroughly investigated,” and “documented by a complete record” without engaging in an independent and comprehensive review of the record. Thus, we hold that our broad scope of review is not constrained by an “abuse of discretion” standard. We hold that any other reasoning is inherently contradictory.

      . The questioning which preceded this answer was objected to on hearsay grounds. The appellant has not questioned the admissibility of the evidence on appeal. Thus, we do not reach the issue of its admissibility, but note that the evidence is of questionable reliability.

      . The record also discloses that Bradley L. was younger than May L. H. and that he had received special education. However, he was an adult and the record does not indicate that his intellectual capacity is so deficient as to in any way indicate that the relationship would present so demonstrably peculiar a relationship to the children as to detrimentally affect them.

      . The record indicates that Lloyd S. had been married three times. His final marriage was very, very short lived and he believed that when his relationship with May L. H. began it had been annulled.

      . The record discloses also that Lloyd S. has two daughters who are in his custody periodically, on weekends. They slept in yet another room and their relationship with Kimberly and Jessica is described as very amicable.


author: McEWEN, Judge: WIEAND, Judge,

text:
    439 A.2d 193
    COMMONWEALTH of Pennsylvania ex rel. Richard BLACK v. SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION GRATERFORD, Pennsylvania. Appeal of Richard BLACK.
    Superior Court of Pennsylvania.
    Argued May 27, 1981.
    Filed Dec. 29, 1981.
    Joseph Scafidi, Assistant Public Defender, Doylestown, for appellant.

      Thomas Mundhenk, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   McEWEN, Judge:

The appellant entered a plea of guilty to certain crimes as a part of a negotiated plea agreement which also provided that the District Attorney would make two recommendations concerning the sentence to be imposed, namely, that the period of confinement would be a term of twenty nine and one half months to fifty nine and one half months and that the place of confinement would be the Bucks County Prison. The Common Pleas Court accepted the plea agreement and imposed a sentence for the agreed upon period of time and directed that the sentence be served in the Bucks County Prison. The appellant commenced his term of confinement in the Bucks County Court Prison on May 19,1980, but on May 23, 1980 the Bucks County Court of Common Pleas approved the request of the Warden of the Bucks County Prison that the appellant be transferred to the State Correctional Institution at Graterford and, as a result, on June 12,1980, the administrative transfer of the appellant to Graterford was effected.

The appellant filed a petition for a Writ of Habeas Corpus seeking to prevent a transfer from the Bucks County Prison. The lower court dismissed the Petition and denied the requested relief. We affirm.

It seems clear that both the place as well as the terms of confinement were provisions of the negotiated plea agreement; that the District Attorney made both stipulated recommendations to the Court; that the Court accepted those recommendations and imposed a sentence that conformed to the negotiated plea agreement; that the transfer of the appellant from the Bucks County Prison resulted solely from the exercise of discretion by the warden of the Bucks County Prison; that the District Attorney had no part in the transfer; and, that the appellant does not wish to withdraw his plea of guilty. Rather, the appellant would have the Court direct the warden of the Bucks County Prison to confine the appellant in and only in the Bucks County Prison. Neither the Common Pleas Court nor this Court have such authority. Commonwealth v. Maute, 263 Pa.Super. 220, 397 A.2d 826 (1979); In Re Petition of Peiffer, 193 Pa.Super. 476, 166 A.2d 325 (1960); See generally, Commonwealth ex rel. Fox v. Keenan, 199 Pa.Super. 575, 186 A.2d 447 (1962); Commonwealth ex rel. Bozzi v. Myers, 186 Pa.Super. 42, 140 A.2d 375 (1958).

The Courts have always been able to scrutinize in a Habeas Corpus Petition a claim by a prisoner that he is the victim of illegal detainment but the within appeal does not present such an issue since the appellant does not contend the detainment itself is illegal. Commonwealth ex rel. Codispoti v. Bundle, 200 Pa. Super. 487, 490, 190 A.2d 153, 155 (1963).

We recognize the principle that a defendant who has entered into a plea agreement may be entitled to the benefit of his bargain. Commonwealth v. Zuber, 466 Pa. 453, 459, 353 A.2d 441, 444 (1976); Commonwealth v. Zakrewski, 460 Pa. 528, 533, 333 A.2d 898, 900 (1975). This appeal does not present such a situation since the supervision, control and administration of correctional institutions and their prisoners are not matters within the authority of the Courts. The District Attorney carried out the commitments made to the appellant. This appeal does not relate to the bargain. It relates to the administration of correctional institutions.

The Prison Transfer Act, 61 P.S. § 72, addresses the procedure to be followed regarding the transfer and retransfer of prison inmates and provides, inter alia

The Deputy Commissioner for Treatment of the Bureau of Correction in the Department of Justice is hereby authorized and empowered and, upon petition being presented to him by the . . . official in charge of any . . . institution for adult prisoners, located within any County . . . setting forth that said . . . institution for adult prisoners, cannot, by reason of overcrowded conditions or other existing conditions, furnish proper and sufficient accommodations for the care, custody, control and safety of the inmates thereof, may make an order authorizing and directing the said ... official in charge to transfer . . . such person or persons whom the . . . official in charge shall specify and designate: Provided, however, That before any transfer is made as aforesaid the Court of Common Pleas of the County wherein any such . . . institution for adult prisoners is located, shall give its consent to such transfer . . .

The Opinion of the learned and distinguished Judge Issac S. Garb of the Bucks County Common Pleas Court states:

. . . The transfer was made for strictly administrative reasons because of conditions which were made a part of the record and of which we take judicial notice. We believe that this was strictly an administrative matter on the part of the prison authority because of severe overcrowding and antiquated and substandard physical conditions of the County prison at a time when the County is faced with a federal law suit to correct those conditions. Considering the extended period of the sentence imposed the administrative transfer was entirely reasonable and understandable ....

Opinion at page 4.

The Bucks County Court, therefore, found that the administrative decision of the Bucks County Prison Warden to transfer the appellant was a proper exercise of discretion and, as a result, provided its consent to such transfer. The conditions precedent having been fulfilled, the Bureau of Corrections was authorized to effect the transfer.

This Court, as well as the U.S. Court of Appeals for the Third Circuit, have reviewed the pertinent Pennsylvania statutes and expressed clearly that the Courts have no authority to order the transfer of prisoners. Commonwealth v. Maute, supra, 263 Pa.Super. at 228, 397 A.2d at 830; In Re Peiffer’s Petition, supra, 193 Pa.Super. at 478, 480, 166 A.2d at 327, 328; Cobb v. Aytch, 539 F.2d 297 (3rd Cir. 1976) cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977).

The Order dismissing the Petition for a Writ of Habeas Corpus is affirmed.

WIEAND, J., files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting:

I agree with the majority that the trial court properly refused to order a re-transfer of appellant’s person from the State Correctional Institute at Graterford to the Bucks County Prison. Compare: Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2352, 49 L.Ed.2d 451 (1976). The original transfer from the Bucks County Prison was made for administrative reasons, because of overcrowding and the length of the term which appellant had been sentenced to serve, and did not entail misconduct, actual or alleged. The transfer was authorized by and accomplished in accordance with the Act of July 11, 1923, P.L. § 1 as amended, 61 P.S. § 72.

However, appellant’s plea bargain contained a provision, accepted by the trial court, that his term of imprisonment would be served at the Bucks County Prison. It is not denied that this provision of the bargain was a material and inducing factor in the entry of appellant’s guilty plea. The Commonwealth, therefore, had an affirmative duty to honor the promise pertaining to the place where appellant would be required to serve his term of imprisonment. See: Commonwealth v. Zuber, 466 Pa. 453, 458, 353 A.2d 441, 444 (1976); Commonwealth v. Zakrzewski, 460 Pa. 528, 533, 333 A.2d 898, 900 (1975).

This bargain was violated when the trial court, four days after sentence had been imposed, approved appellant’s transfer to the State Correctional Institution at Graterford. If overcrowded prison conditions prevented the Commonwealth from honoring the benefit for which appellant bargained and which induced him to enter a plea of guilty, then he must be given the opportunity to withdraw his plea of guilty. See: Commonwealth v. King, 24 Chester 355 (1976). I would permit appellant to withdraw that plea of guilty. I would not dismiss his petition for habeas corpus without granting such relief merely because he expressed a preference for the benefit of his bargain rather than rescission and withdrawal of the plea of guilty.

      . Act of July 11, 1923, P.L. 1044, § 1, as amended by the Act of December 22, 1965, P.L. 1184, § 2; Act of July 10, 1969, P.L. 150, • § 1; 61 P.S. § 72.


author: POPOVICH, Judge:

text:
    439 A.2d 195
    COMMONWEALTH of Pennsylvania, v. William E. DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Dec. 29, 1981.

      Joyce S. Mozenter, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, William Davis, was found guilty before a judge, sitting without a jury, of criminal conspiracy, burglary, and theft by unlawful taking or disposition. Post-verdict motions were denied, and appellant was sentenced to concurrent terms of one to three years imprisonment. This appeal followed. We affirm.

Before this Court, appellant raises issues concerning the identification evidence which linked him to the crime. Appellant does not argue that the prosecution failed to establish one of the elements of the crime of burglary; rather, he claims that the evidence was insufficient to establish his identity as one of the perpetrators of the crime. We cannot agree for the reasons herein stated.

The record at trial established the following:

On December 16, 1978, the victim, Oscar Squire, and a companion returned to his apartment at approximately 12:00 midnight, which was forty-five minutes after his initial departure. The victim noticed that the lights in his apartment had been turned on, and that music was playing. Upon entering, the victim saw two strangers in his apartment; immediately, he yelled for both of them to leave. These individuals then ran through the bedroom, through the kitchen and out the back door.

The victim's testimony continued and set forth the following scenario:

[Prosecution] “Which way did they run, Mr. Squire?
[The Witness] They ran through the bedroom, through the kitchen, out the back door.
Q So I understand, are there two doors to your apartment?
A Yes. There is a door from the hallway of the apartment building into the apartment and then there is a back door which leads out to the porch, which is the back of the building. The apartment is on the first floor.
Q Now, in order for the defendant to have gotten from the living room to the kitchen, would he have to pass you at the front door?
A No. There is an immediately [sic] hallway when you walk into the apartment which goes into the kitchen and at the other end of the hallway leads into the living room. The living room has two doors. One for the hallway; one for the bedroom. The bedroom is between the living room and kitchen. So, there’s a doorway there. So, you can leave the living room, come through the bedroom, through the kitchen and out the back door, or your can come down the hallway, pass around the bedroom into the kitchen and out the back door.
Q Which way did the defendant go?
A They came through the bedroom, through the kitchen and out the back door.
Q Did he pass you through the kitchen out the back door?
A Well, there were two people.
Q The defendant, specifically?
A The defendant was the second one but I walked into the kitchen once the first person ran out so [the appellant] passed right past me.
Q In the kitchen area?
A In the kitchen area.
Q Was that the second time that you had seen the defendant?
A The first time I saw the defendant he was kneeling down. I saw the top of his head.”

(N.T. 8/7/79, at 13-14)

The victim’s testimony on cross-examination also elicited the following testimony:

[Defense Counsel] “So, the first you saw any faces was as they came from the bedroom into the kitchen and ran out the back door?
[The Witness] Yes.
Q Would you describe what you saw of the two men at that time?
A First man was about my built. He was light complexion [sic] and he had some kind of bumpiness or lumpiness to his face, his skin.
The second person was smaller with a moustache dark skinned with a hat on his head.
Q Hat on his head?
A (Nods in the affirmative)
Q This was the type of hat—the sort of thing that’s pulled down over his forehead?
A I don’t know. You asked me that question before. It was just a hat. I didn’t pick up the hat. I was just looking at the face.
Q Now, when the police officer came to take the report of the burglary, you told him this description; didn’t you?
A Yes.
THE COURT: What was that?
[By the Prosecutor]
Q When the police officer came to take a report from you, you gave him a description of the two men?
A Yes.
Q Because it was very fresh in your memory since they just, a few minutes before, had left the house; is that right?
A Yes.”

(N.T. 8/7/79, at 23-24)

Appellant argues that the above evidence was insufficient to establish his identity as one of the perpetrators because appellant was identified initially at an “overly suggestive confrontation^ a preliminary hearing,] between the victim of the alleged burglary and the accused.” Brief for Appellant, at 9. The witness, the victim, in this case, was not asked to identify appellant from photographs or at a line-up prior to the preliminary hearing. Appellant’s claim therefore, must be examined in view of the following standards:

“The fact that the confrontation was on a one-to-one basis in a courtroom setting is not in itself sufficient reason to exclude the evidence. Rather, “. . . the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. [377] at 384, 88 S.Ct. 967, [at 971] 19 L.Ed.2d 1247 [1968] ... It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster [v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) ]” Neil v. Biggers, 409 U.S. at p. 198, 93 S.Ct. [375] at p. 382 [34 L.Ed.2d 401]. The United States Supreme Court has enunciated the factors which contribute to the “totality of circumstances” test as including: “. . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. at pp. 199-200, 93 S.Ct. at p. 382. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).” Commonwealth v. Steffy, 264 Pa.Super. 110, 116, 399 A.2d 690, 693 (1979) (emphasis added).

We also have said that:

“[o]f these factors, the opportunity of the witness to observe the defendant at the time of the incident is considered to be the most important. Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 114 (1971); Commonwealth v. Tate, 229 Pa.Super. 202, 209, 323 A.2d 188, 192 (1974) (HOFFMAN, J., dissenting).” Commonwealth v. Smith, 262 Pa.Super. 258, 265, 396 A.2d 744, 747 (1978) (emphasis added).

Applying the above standards to the instant case, the record reveals that the victim first noticed upon returning to his apartment that the “lights were on” and that “two people were in the apartment.” (N.T. 8/7/79, at 10). Although initially, the witness could only see the top of appellant’s head, because he was kneeling down behind the sofa some fifteen feet away, he nevertheless was able to closely observe appellant when, en route to the back door, “[the appellant] passed right past [the witness].” (N.T. 8/7/79, at 14). Under such good lighting conditions, the witness’s brief encounter with the appellant provided ample opportunity for him to view the suspect. See Commonwealth v. Townsend, 280 Pa.Super. 155, 160-61, 421 A.2d 452, 455 (1980) (While the witness observed the accused “for only a matter of seconds, she did so in daylight from a short distance and with a full view of his face without obstruction.”). Additionally, the witness testified that he could not describe in detail what kind of hat appellant was wearing because he “was just looking at the face.” (N.T. 8/7/79, at 24).

At the preliminary hearing, the victim testified that when appellant ran past him, he was within a foot or two of the appellant. The remainder of the witness’s testimony was consistent with his trial testimony. However, at the preliminary hearing, defense counsel on cross-examination elicited testimony from the witness that as appellant was headed toward the rear door, he had “more of a frontal side profile than just a side profile.” (N.T. 1/5/79, at 15). At no time, did the witness waver from his testimony that appellant was the man he saw in the apartment. It is to be noted that the preliminary hearing occurred only three weeks after the crime; thus, the period of time that had elapsed between the preliminary hearing and the date the crime was not unreasonable. See Commonwealth v. Steffy, supra (identification evidence was admissible where the preliminary hearing occurred five weeks after the crime, and the appellant had not been identified previously from photographs or at a line-up prior to the hearing).

In the case before us, appellant gave the following information to the police:

[The Police] “The complainant stated that about 11:50 p.m., 12/16/78, as they were returning home from walking the dog, they were surprised by two Negro males that were burglarizing their apartment. The two males ran through the rear and escaped in a light colored station wagon, Pennsylvania tag X x-ray 74298, west on Ashmeade. They gave me a description, one Negro male, light complected, wearing a light sweater. Number two male had no description at that time.” (N.T. 8/7/79, at 36)

A review of the record reveals that the appellant was the individual (“the number two male”) who was not described at the time of the incident. Because of this, appellant argues that the initial identification between the witness and the accused was held at a suggestive confrontation, the preliminary hearing. With respect to this aspect of appellant’s claim, Commonwealth v. Floyd, 494 Pa. 537, 431 A.2d 984 (1981) offers some insight into the subject. In Floyd, the witness was not able to identify positively appellant at the preliminary hearing but merely stated that appellant “resembled the shooter.” Id., 494 Pa. at 544, 431 A.2d at 988. Although shortly after the incident the witness gave a detailed description of the two men involved, the witness “did not any time unequivocably identify appellant as one of the two perpetrators of the killing. The full extent of his testimony was that appellant looked like one of the men.” Id. Our Supreme Court concluded that based on the totality of the circumstances, “there [was] nothing to indicate in this record either that the witness was mistaken in his testimony that appellant looked liked [sic] one of the two men he had seen or that his conclusion was compelled by the circumstances of the preliminary hearing.” Id.

Similarly, in the instant case, we conclude that a review of the total record reveals an absence of evidence to indicate that Oscar Squire, the witness, was mistaken in his testimony. Also, no reference was made by the prosecution to the hearing during its examination of the witness at trial, and the only evidence relating to the preliminary hearing identification was elicited by defense counsel on cross-examination. Thus, the relevance of the preliminary hearing identification was limited, particularly when the probing of the previous hearing identification was not initiated by the prosecution. Moreover, there was no indication from defense counsel’s cross-examination or otherwise that the witness was aided by the police or anyone else in his identification. Accordingly,

“We hold that under the totality of the surrounding circumstances, there was not a ‘substantial likelihood of misidentification’ so as to deny appellant his right of due process, Neil v. Biggers, [409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)]. Since that is the case, the identification evidence was properly submitted to the fact-finder. If the circumstances surrounding the identification were questionable, it was for the fact-finder to make that determination in weighing the credibility of the witness and the weight of the evidence. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977).” Commonwealth v. Steffy, 264 Pa.Super. at 117, 399 A.2d at 694.

In the instant case, the fact-finder’s resolution of the matter was adverse to appellant. Even, however, assuming arguendo, that the pre-trial confrontation was suggestive, we have said that the totality of the circumstances must be examined in order to determine if “the in-court identification flows independently from the witnesses] observations at the time of the crime and not from the unduly suggestive pre-trial confrontation.” Id. As previously set forth, the witness’s testimony at trial established that there was an independent basis for the identification. Id.; See also Commonwealth v. Townsend, supra.

Appellant additionally argues that trial counsel was ineffective for failing to assert appellant’s right to a lineup before the preliminary hearing and for failing to object to the limited evidence offered at trial. We cannot agree.

To begin with, an accused does not have a constitutional right to a line-up and the suggestiveness of a courtroom identification is only one factor to be considered in determining the reliability of the identification evidence. See Commonwealth v. Sexton, 485 Pa. 17, 22-24, 400 A.2d 1289, 1292 (1979). Moreover, this jurisdiction has “declined to accept a per se rule that a pre-trial, pre-hearing lineup is mandatory in all cases.” Id., 485 Pa. at 25, 400 A.2d at 1293. A fortiori, counsel’s failure to request a lineup or failure to object to identification testimony is not per se ineffective assistance. Because a review of the totality of the circumstances revealed that the identification testimony was reliable, and further revealed that even if the preliminary hearing was suggestive, the in-court identification had an independent basis, a lineup or objection would have been fruitless. See Commonwealth v. Williams, 274 Pa.Super. 464, 471-72, 418 A.2d 499, 503 (1980).

In any event, the record establishes that there was other evidence linking the appellant to the crime since he was apprehended using the stolen credit cards twenty-one hours after the cards were taken during the burglary of the apartment. Therefore, the instant case is distinguishable from Commonwealth v. Sexton, supra, where the identification evidence was the sole evidence connecting the defendant to the crime. The record also establishes that trial counsél’s decision not to request a line up or to object was not without a reasonable basis. At trial, counsel’s strategy was an alibi defense. In connection with this defense, counsel attempted to emphasize that the witness gave no description of the appellant at the time of the crime, and that the first time that the witness had seen the appellant was at a preliminary hearing. In view of the possibility that had a lineup been granted, the alibi defense would have been undermined substantially as counsel would not have been able to highlight the suggestiveness of the preliminary hearing, this writer cannot conclude that even if the issue appellant raises is of arguable merit, counsel’s decision was without a reasonable basis designed to effectuate his client’s best interests. See Commonwealth v. Musi, 486 Pa. 102, 110-12, 404 A.2d 378, 382 (1979) (remand not necessary where the record is sufficient to resolve the issue).

Judgment of sentence affirmed.

JOHNSON, J., concurs in the result.


text:
    439 A.2d 200
    James M. BERGER, Appellant, v. Alvin ACKERMAN, Sigmund Spiegel and Bernath Schwartz.
    Superior Court of Pennsylvania.
    Argued May 20, 1981.
    Filed Dec. 29, 1981.

      Carl Gainor, Pittsburgh, for appellant.
    Wayne Babcock, Pittsburgh, for appellees.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order sustaining preliminary objections in the nature of a demurrer and dismissing appellant’s complaint in equity. For the reasons stated herein, we affirm the lower court’s order.

To begin with, in reviewing an order sustaining preliminary objections in the nature of a demurrer we must remember that “a demurrer admits every well-pleaded material fact set forth in the pleadings, as well as all inferences, other than conclusions of law, reasonably deducible therefrom.” Tanenbaum v. Sears, Roebuck & Co., 265 Pa.Super. 78, 81, 401 A.2d 809, 810 (1979). Moreover, we must be able to state with certainty that upon the facts averred, the law will not permit recovery by the plaintiff. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); Hamill Quinlan Realty Co., Inc. v. Rosswog Homes, Inc., 281 Pa.Super. 235, 422 A.2d 146 (1980). Viewing the pleadings in this light, the facts are as follows:

In 1971, appellees were the owners of a small shopping center in McKeesport, Pennsylvania, which contained a Giant Eagle Market and a business known as “Slaton’s Pharmacy.” On September 27,1971, appellant, James M. Berger, entered into a written lease with appellees whereby appellant took possession of Slaton’s Pharmacy. At that time and for nine years thereafter the Giant Eagle Market was selling, in addition to numerous other products, non-prescription (over-the-counter) drugs. Slaton’s Pharmacy, which had been in operation at that location for over twenty years, filled, dispensed, and sold prescription medications and also sold non-prescription drugs.

In 1980, the Giant Eagle Market opened a pharmacy department within its storeroom for the purpose of selling prescription medications. Prior to the opening of this pharmacy department, appellant notified appellees that, in his opinion, the sale of prescription drugs by Giant Eagle Market would constitute a breach of their September 27, 1971, lease, specifically, the clause providing that:

“During the term of this Lease, or any renewal thereof, the Tenant shall have the exclusive right to conduct the business of Drug Store in the said Shopping Center. It is understood, however, that this Shopping Center contains a large storeroom presently occupied by Giant Eagle Market and that any sale of drugs by said Giant Eagle Market shall in no way conflict with the provisions of this paragraph.”

Appellees, upon receipt of this notice, did nothing to inhibit the opening of the Giant Eagle pharmacy department. Appellant then filed a complaint in equity seeking judicial enforcement of the above quoted restrictive provision. Preliminary objections in the nature of a demurrer ■ were filed by appellees. The lower court entered an order sustaining the demurrer and dismissing appellant’s complaint. This direct appeal followed.

On appeal, appellant’s sole contention is that the language of the September 27, 1971, lease gave him the unqualified right to be the sole seller of prescription drugs in appellees’ shopping center and, therefore, the lower court erred in sustaining the demurrer. More specifically, appellant contends that the lower court abused its discretion in sustaining appellees’ demurrer because it refused to consider extrinsic evidence to ascertain the parties’ intent at the date of execution, and construed the lease provisions against appellant and in favor of the lessors-draftors of the lease. (Brief for Appellant at 9, 14). We disagree.

First, with regard to appellant’s proffered interpretation of the crucial lease provision, we are guided by the following well-stated principles:

It is a general rule of contract interpretation that the intention of the parties at the time the contract is entered into governs: Heidt v. Aughenbaugh Coal Co., 406 Pa. 188, 176 A.2d 400 (1962). This same rule also holds true in the interpretation of restrictive covenants: Baederwood, Inc. v. Moyer, 370 Pa. 35, 87 A.2d 246 (1952), and McCandless v. Burns, 377 Pa. 18, 104 A.2d 123 (1954). However, in Pennsylvania, there is an important difference in the rule of interpretation as applied to restrictive covenants on the use of land. It is this. Land use restrictions are not favored in the law, are strictly construed, and nothing will be deemed a violation of such a restriction that is not in plain disregard of its express words ....
Great Atlantic and Pacific Tea Co., Inc. v. Bailey, 421 Pa. 540, 544, 220 A.2d 1, 2-3 (1966) (citations omitted).

It follows then, that in order for appellant to prevail, the restrictive covenant involved herein must by its expressed terms clearly indicate that the parties intended to preclude Giant Eagle Market from selling prescription medications. See Great Atlantic and Pacific Tea Co., Inc. v. Bailey, supra. Our reading of the covenant admits of no such restriction. Rather, appellant’s “exclusive right to conduct the business of Drugstore” is clearly and unequivocally subject to Giant Eagle Market’s right to make “any sale of drugs.”

Appellant nevertheless contends that the proviso granting Giant Eagle Market the right to make any sale of drugs was intended by the parties to permit the sale of only non-prescription drugs. In this connection, appellant argues that because Giant Eagle Market has sold only non-prescription drugs from the date the lease was executed, the lower court abused its discretion in refusing to consider parol evidence to ascertain the intention of the parties.

Again, we note that “nothing will be deemed a violation of [a restrictive covenant] that is not in plain disregard of its express words.” Jones v. Park Lane for Convalescents, 384 Pa. 268, 272, 120 A.2d 535, 537 (1956). Moreover, this court cannot enlarge a restriction by implication for the restriction must be construed most strictly against the one asserting rights under it. Great Atlantic and Pacific Tea Co., Inc. v. Bailey, 421 Pa. at 545, 220 A.2d at 3.

Instantly, we cannot conclude that the sale of prescription medications by Giant Eagle Market is in plain disregard of the restrictive covenant since the express language of the covenant excludes “any sale of drugs” by Giant Eagle Market. Likewise, in construing the restriction most strictly against appellant, see Jones v. Park Lane for Convalescents, supra, we are not persuaded that the word “drugs” as applied to Giant Eagle Market means only non-prescription drugs. To adopt this construction would require us to ignore the express terms of the covenant and enlarge the restriction by re-writing its terms. This we will not do. See Kleintop v. Kleintop, 291 Pa.Super. 491, 495, 436 A.2d 223, 225 (1981) (“a court must construe [a] contract only as written and may not modify the plain meaning of the words under the guise of interpretation”).

Accordingly, the lower court properly barred appellant’s attempt to create an ambiguity by parol evidence. When, as in the instant case, a covenant is unambiguous on its face and is not reasonably capable of two different interpretations, inquiry beyond the four corners of the instrument in order to ascertain the parties' intent is prohibited. See National Cash Register Co. v. Modern Transfer Co., Inc., 224 Pa.Super. 138, 143-45, 302 A.2d 486, 489 (1973) (parol evidence rule bars effort by party to create ambiguity by parol evidence where agreement is not ambiguous on its face).

Our interpretation of the restrictive covenant reveals that appellant is precluded from recovery. Accordingly, the lower court properly sustained appellees’ preliminary objections in the nature of a demurrer.

Order affirmed.


author: WATKINS, Judge:

text:
    439 A.2d 203
    COMMONWEALTH of Pennsylvania, v. Marcus POWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1980.
    Filed Dec. 29, 1981.

      John J. Moran, Assistant Public Defender, York, for appellant.
    Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of York County, Criminal Division, and involves appellant-defendant’s appeal from a judgment of sentence by which he was committed to Farview State Hospital for a period not in excess of 365 days after he was convicted by a jury of attempt to commit rape, indecent assault, and simple assault. Defendant claims that he was incompetent to stand trial and could not aid and assist his attorney in the preparation of his defense due to his mental condition.

. A competency hearing was held before the trial judge on May 19, 1978 to determine the defendant’s competency at the trial. Two medical doctors, Dr. Laurelio Moscosco and a Dr. Pandelidis, testified for the Commonwealth at said hearing and two witnesses, a medical doctor and a psychologist, testified on behalf of the defendant at said hearing which was held two months after the trial. Dr. Moscosco had known the defendant professionally for several years and had examined him on occasions prior to and after the trial. He examined the trial transcripts and the medical reports as provided by defendant’s experts and used them in rendering his opinion on defendant’s competency at the time of the trial.

Dr. Pandelidis examined the defendant in January of 1978, two months prior to the trial as a result of an incident at the jail which involved the defendant. At that time the doctor found the defendant to be “oriented in all three spheres”, . . . “to have a good memory of past events inasmuch as he was able to relate details of the alleged rape in a circumstantial manner”, and further stated that “He [Defendant] seemed to know the seriousness of the legal condition and showed no signs of acute psychosis”. Dr. Pandelidis also testified that the defendant told him that the bizarre behaviour at the county jail in which defendant engaged was done so that he could see a psychiatrist to testify on his behalf at an upcoming bail reduction hearing. The Doctor further stated that he was kept abreast of defendant’s condition through a social worker who observed defendant’s condition up to and through the time of trial. Both Dr. Pandelidis and Dr. Moscosco testified that defendant was competent to stand trial in March of 1978.

All four experts agreed that the defendant had emotional problems, that he is acutely psychotic at times and is delusioned at times. Dr. Moscosco agreed with the defendant’s experts who testified that he was incompetent at the time of their examinations of him. However, he found defendant to be competent at the time of his trial. Defendant’s experts opined that he was most probably incompetent to aid and assist his attorney at the trial and was therefore incompetent to stand trial at that time. Defendant’s trial counsel testified that the defendant “assisted in the trial”. Defendant provided his counsel with the names of alibi witnesses and gave his attorney a step by step account of what he claimed he did on the date of the incident out of which the charges arose. The defendant also testified at the hearing admitting that he knew with what he had been charged at the time of the trial, understood the seriousness of the offenses, and knew what was going on at the trial. He further admitted informing his trial counsel of his version of the events of the day. The defendant testified that he refused to aid in jury selection because he did not consider them to be “his peers”. At the conclusion of the hearing the court found defendant to be competent and committed him to Farview State Hospital. Defendant now appeals that ruling.

One charged with a criminal offense must be competent to stand trial. Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611 (1927). However, a defendant must prove his incompetency by a preponderance of the evidence. Commonwealth v. Kennedy, 451 Pa. 488, 305 A.2d 890 (1973). If a person is incapable of co-operating with his counsel in his defense of a criminal charge because of mental illness then he is incompetent to stand trial. Commonwealth v. Kennedy, supra. Unlike the situation in Commonwealth v. Kennedy, supra, the instant case presents us with a situation where there was sufficient evidence presented at the competency hearing to establish that defendant was competent to stand trial at the time of his trial. Both expert witnesses presented by the Commonwealth were familiar with the defendant’s condition, prior to trial, at the time of the trial, and after his trial. Both had sufficient information upon which to base their opinions that the defendant was competent to stand trial and the court below did not err in choosing to accept their opinions regarding that issue rather than the opinions of defendant’s experts. Indeed the testimony of defendant’s trial counsel who reluctantly admitted that defendant had indeed aided him in preparing the trial defense and the testimony of the defendant himself bolsters the testimony of the appellee’s expert medical witnesses. As stated by the court below:

“It is quite evident that the defendant knew what he was doing at trial, and what was going on. If he did not cooperate with counsel, it was solely because he was hostile to and mad at him, and not because of any mental disease.”

Judgment of sentence affirmed.


author: PER CURIAM: MONTEMURO, Judge,

text:
    439 A.2d 205
    MITCHELL’S FAMILY RESTAURANT, INC., t/a Mr. Angus Steak Haus, v. Leroy D. SCHAEFFER, t/a L. D. Schaeffer Air Conditioning, Refrigeration and Heating, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1981.
    Filed Dec. 29, 1981.
    Joseph M. A. Nelabovige, Hamburg, for appellant.

      Kent H. Herman, Allentown, for appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal from an order denying appellant’s motion for new trial and judgment n. o. v. We cannot reach the merits of appellant’s contentions, however, because the order has not been reduced to judgment and docketed. Accordingly, the appeal is premature and must be quashed. Slagter v. Thrifty Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa. Superior Ct. 402, 435 A.2d 1288 (1981); Richard v. Chester Extended Care Center, 287 Pa.Superior Ct. 289, 430 A.2d 290 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa. Superior Ct. 562, 424 A.2d 952 (1981).

Appeal quashed.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

I must dissent.

This action has been through arbitration, trial and appeal. It concerns an amount only slightly over $5,000.00. The litigants will now be forced to spend more time, money, and frustration on the issue, and this court will have to expend more court time and effort as well.

No sensible purpose is served by quashing a case of this sort. Rule of Appellate Procedure 105 permits waiver or modification of rules “to secure just, speedy, and inexpensive determination of every matter.” This seems to me the sensible approach to matters such as presented in the instant action.

I would address the merits of the case and, therefore, I dissent.


author: PER CURIAM:

text:
    439 A.2d 206
    Pamela M. CHILLAS, Appellant, v. CONESTOGA VALLEY SCHOOL DISTRICT and Educators Mutual Life Insurance Company.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Jan. 5, 1982.
    Stephen M. Kraybill, Lancaster, for appellant.
    Dale E. Lapp, Lancaster, for Conestoga, appellee.
    Christopher S. Underhill, Lancaster, for Educators, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

Inasmuch as judgment has not been entered on the docket in the lower court, we cannot entertain this appeal at this time. Pa.R.A.P. 301(a).

Appeal quashed.


text:
    439 A.2d 672
    Wayne M. CIONE and Saundra A. Cione. v. SKYLINE CORPORATION, Forrest Brooke Sales, a partnership, and First Federal Savings and Loan Association of New Castle, Pennsylvania. Appeal of FORREST BROOKE SALES.
    Superior Court of Pennsylvania.
    Argued May 20, 1981.
    Filed Aug. 21, 1981.
    Reargument Denied Jan. 21, 1982.
    Petition for Allowance of Appeal Denied April 19, 1982.

      David H. Patterson, Pittsburgh, for appellant.
    Thomas W. Kuster, Sharon, for appellees.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   PER CURIAM:

This is an appeal from the lower court’s order denying the Petition of appellant, Forrest Brooke Sales, to Open a Default Judgment. For the reasons stated herein we reverse.

The record shows that on June 3,1980, plaintiffs-appellees filed a Complaint in Assumpsit seeking to recover damages arising out of their purchase of a mobile home. Named as defendants were the manufacturer of the mobile home, Skyline Corporation (Skyline); the seller, appellant, Forrest Brooke Sales; and the mortgagee, First Federal Savings and Loan Association of New Castle, Pennsylvania. Service on all three defendants was proper. On July 8, 1980, attorney David Patterson entered his appearance on behalf of Skyline only. On July 24,1980, appellees filed and sent to appellant a notice of intention to take a default judgment against it, and on August 14, 1980, the default judgment was entered. On September 12, 1980, an amended praecipe for entry of a money judgment was filed. That same day, appellant, through attorney Patterson, filed a petition to open the default judgment. On October 3, 1980, following a hearing, the lower court denied the petition to open.

To be entitled to open a default judgment the petitioner must prove (1) that the petition was filed promptly; (2) that the failure to file an answer can be satisfactorily explained; and (3) that a meritorious defense exists. Nardulli v. John Carlo, Inc., 274 Pa.Super. 34, 417 A.2d 1238 (1979). The lower court held that appellant had failed to comply with the latter two requirements.

Appellant contends that it did satisfactorily explain its reason for failing to file an answer. Appellant explained that there was an “inadvertent lack of communication” between Skyline, appellant, and Mr. Patterson as to whether Mr. Patterson, as Skyline’s counsel, was also representing appellant. Walter Roberts, a partner in appellant, testified at a deposition that, upon service of the complaint, he contacted Skyline and was told that negotiations had been commenced with plaintiff prior to the filing of the complaint and that it was anticipated they would result in a settlement prior to trial. After receipt of the default notice Roberts again contacted Skyline. Skyline’s representatives advised Roberts that they were attempting to obtain an extension, that attorney Patterson had entered his appearance in the action, and that Roberts should contact his attorney. Roberts attempted to reach his attorney but could not because the attorney was on vacation. Appellant explains that counsel other than Robert’s attorney was not sought because it thought it was being represented by Mr. Patterson.

In Sprouse v. Kline-Styer-McCann, Post No. 7155, Veterans of Foreign Wars, 237 Pa.Super. 419, 423, 352 A.2d 134, 136 (1975), our court stated:

We are reluctant to let stand a default judgment where a litigant has taken steps that he reasonably believes will result in the protection of his interests. This would be a different case had appellant ignored the process and done nothing. In this case, however, appellant acted, although mistakenly, to protect his interests.

Similarly, in Nardulli, supra, 274 Pa.Super. at 38, 417 A.2d at 1240, our court held that “[ejrrors. . . which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment.” Nardulli involved a suit taken against a contractor and its surety. A misunderstanding between plaintiff’s and defendant’s counsel led to a default judgment being taken against the surety. Defense counsel, in the surety’s petition to open, explained that the default was the result of his mistaken belief that when he had asked plaintiff’s counsel for an extension of time in which to file an answer he had also informed opposing counsel that he represented both defendants. Our court found this explanation satisfactory and reversed the lower court’s refusal to open the judgment. See also, Dico Company, Inc. v. Novak, 268 Pa.Super. 441, 408 A.2d 869 (1979).

We believe that, in the instant case, appellant’s failure to file an answer was the result of a misunderstanding and not a deliberate or negligent decision not to defend. Thus, appellant’s explanation is satisfactory.

Appellant also contends that the defense it presented is meritorious. We agree. In their complaint, plaintiffs alleged that the mobile home was defective and that the defendants had breached the warranties of merchantability and fitness for purpose. In his deposition taken pursuant to the Petition to Open, Roberts testified that his firm did not make any alterations or repairs to the mobile home and that when it was sold to the plaintiffs, it was in exactly the same condition as it was when it left the Skyline factory. Under the circumstances, and especially in view of the fact that Skyline is also a defendant in this action, we believe that the defense is meritorious. See Nardulli, supra; Ecumenical Enterprises, Inc. v. Nadco Construction, Inc., 253 Pa.Super. 386, 385 A.2d 392 (1978).

Order reversed and the petition to open judgment is granted.

POPOVICH, J., concurs in the result.


author: WIEAND, Judge:

text:
    439 A.2d 674
    Fred M. HECKENDORN and Mary Anne Heckendorn, his wife, Plaintiffs, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant, v. EVANS PRODUCTS COMPANY, Additional Defendant, and The Carnation Company, Additional Defendant and Appellee.
    Superior Court of Pennsylvania.
    Argued March 23, 1981.
    Filed Oct. 9, 1981.
    Reargument Denied Feb. 9, 1982.
    Petition for Allowance of Appeal Granted April 27, 1982.

      David C. Eaton, Harrisburg, for defendant-appellant.
    Thomas J. Williams, Carlisle, for Carnation Co.
    Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

The difficult issue in this appeal is whether, in an action by an employee against a third party tortfeasor, the employer can be joined as an additional defendant for the purpose of apportioning negligence under the Comparative Negligence Act. The trial court held that joinder was barred by Section 303 of the Workmen’s Compensation Act, as amended, and dismissed the attempted joinder. We agree and affirm.

Fred Heckendorn, an employee of the Carnation Company, was injured when he was struck by a falling bulkhead while unloading a railroad box car. The car was owned by Consolidated Rail Corporation (Conrail) but had been leased to Carnation. The bulkhead, which had been manufactured by Evans Products Company, fell during unloading at Carnation’s warehouse in Mechanicsburg, Cumberland County.

Heckendorn filed a complaint in trespass against Conrail, alleging defective maintenance of the box car. Conrail joined Carnation as an additional defendant. The complaint demanded “judgment against the Carnation Company for indemnity or, alternatively, for contribution . . . . ” Carnation thereupon filed preliminary objections challenging its joinder on the grounds that it was Heckendorn’s employer and, therefore, immune from joinder. The trial court agreed and vacated the joinder. Conrail appealed.

Section 303 of the Workmen’s Compensation Act provides:

“(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of . kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in Section 301(c)(1) and (2) or occupational disease as defined in Section 108.
“(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.”

This section, it has been said, manifested a broad legislative intent to bar the joinder of an employer as an additional defendant. Arnold v. Borbonus, 257 Pa.Super. 110, 114, 390 A.2d 271, 273 (1978). It has “obliterated” the common law cause of action against the employer and foreclosed the adjudication of liability on the part of the employer. Bell v. Koppers Co., Inc., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978). It has created an exception to the general right of contribution among tortfeasors. Thus a defendant whose negligence is alleged to be responsible for an injury suffered by an employee protected by the Workmen’s Compensation Act, may not, in the suit brought against him, join the employer as an additional defendant. Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 518, 412 A.2d 1094, 1096 (1980). See also: Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977); Atkins v. Urban Redevelopment Authority of Pittsburgh, 263 Pa.Super. 37, 396 A.2d 1364 (1979). The policy consideration which prompted the enactment of Section 303 is clear. An employer’s liability for an industrial accident is limited to an amount determined by the Workmen’s Compensation Act. If he assumes that liability, there can be no cause of action against him for negligence; and he cannot be made a party to his employee’s common law action for negligence against a third person.

Conrail’s attempted joinder of Carnation was clearly improper. Its complaint demanded judgment “for indemnity or, alternatively, for contribution.” Section 303(b) of the Workmen’s Compensation Act specifically bars an employer’s liability for “contribution” or “indemnity.”

Conrail concedes that Carnation cannot be made liable for damages in this action. It is contended, however, that the Comparative Negligence Act, by implication, has repealed Section 303 of the Workmen’s Compensation Act and has made possible the joinder of an employer in order to apportion accurately the liability of all tortfeasors. Moreover, appellant argues an averment of liability for indemnity or contribution is necessary in order to comply with the joinder requirements of Pa.R.C.P. No. 2252(a).

The Comparative Negligence Act, 42 Pa.C.S.A. § 7102, provides as follows:

“(a) General rule.—In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
“(b) Recovery against joint defendant; contribution.— Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.”

This statute was enacted without any meaningful legislative history. By two paragraphs the legislature changed the law of contributory negligence which had developed over centuries of jurisprudential history. In its haste to remedy criticism which had been leveled against the doctrine of contributory negligence, the legislature failed to address specifically the several problems which have arisen because of such an abrupt change. One of those problems is the issue presented in this case.

Conflicting considerations have caused a division among state and federal trial courts which were called upon to decide the issue. The Court of Common Pleas of Philadelphia County has agreed with Cumberland County in declining to permit the joinder of employers as additional defendants in employee actions against third person tortfeasors. See: Schwarzl v. Philadelphia Gas Works, No. 4098 July Term, 1980 (Philpa. Filed 12/24/80). The courts in Westmoreland and Lebanon Counties, however, have allowed the employer to be joined. See: Flack v. Calabrace, 15 Pa.D. & C.3d 765 (West. 1980); Yeagley v. Metropolitan Edison Company, 16 Pa.D. & C.3d 681 (Leb. 1980). In Allegheny County, joinder has been disallowed, but the court either allows or sua sponte compels the employer to be joined as a party plaintiff for the purpose of determining the employer’s causative negligence, if any. Prem v. JohnsManville Products Corp., 129 P.L.J. 150 (1981).

The federal courts have reached equally diverse results. In the eastern district of Pennsylvania, the joinder of an employer as an additional defendant has been disallowed. See: Lawless v. Central Engineering Co., 502 F.Supp. 308 (E.D.Pa.1980). In the middle district, joinder is allowed. Schaeffer v. Didde-Glaser, Inc., 504 F.Supp. 613 (M.D.Pa.1980). The courts in the western district have followed their brethren of the Allegheny County Court of Common Pleas in denying joinder as an additional defendant but allowing the employer to be joined as an involuntary plaintiff. Sheldon v. West Bend Equipment Corporation, 502 F.Supp. 256 (W.D. Pa.1980). But see and compare: Shaner v. Caterpillar Tractor Co., 483 F.Supp. 705 (W.D.Pa.1980).

A careful reading of the first paragraph of the Comparative Negligence Act discloses that the defense of contributory negligence has been eliminated where “such negligence is not greater than the causal negligence of the defendant or defendants against whom recovery is sought.” The second paragraph provides: “Where recovery is allowed against more than one defendant, each defendant shall be liable for . . . damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.” (Emphasis added.)

An employer is one against whom recovery can neither be “sought” nor “allowed.” A cause of action against the employer has been obliterated. “[T]he enactment of Section 303(b) has foreclosed the adjudication of the liability of the employer.” Bell v. Koppers Co., Inc., supra, 481 Pa. at 458, 392 A.2d at 1382. A strict reading of the Comparative Negligence Act, therefore, suggests that the legislature did not contemplate an apportionment of liability between one or more third party tortfeasors (against whom recovery may be had) and the plaintiffs employer (against whom recovery may neither be sought nor allowed).

When the Comparative Negligence Act is read in this manner, it becomes apparent that it is not in conflict with Section 303 of the Workmen’s Compensation Act. On the contrary, the two provisions are not only reconcilable but they can be read in full and complete harmony. We are required to read them in this manner. We must assume that when the legislature enacted the Comparative Negligence Act it had in mind previous statutes establishing the employer’s immunity from common law actions for negligence. See: Seltzer v. City of Reading, 151 Pa.Super. 226, 30 A.2d 177 (1943). See also: Borough of Collegeville v. Philadelphia Suburban Water Co., 377 Pa. 636, 105 A.2d 722 (1954); Commonwealth Dept. of Public Welfare ex rel. Hager v. Woolf, 276 Pa.Super. 433, 419 A.2d 535 (1980).

This interpretation is consistent with Pa.RC.P. No. 2252(a), which permits the joinder as additional defendants only of those persons who may be “liable.” The rule simply does not contemplate the joinder of a person who has no stake in the outcome of the action. It permits the joinder of additional defendants “who may be alone liable or liable over ... or jointly or severally liable ... or who may be liable to the joining party on any cause of action which he may have against the joined party . . . . ” (Emphasis added.) An employer fits into none of the categories envisioned by this rule, for the employer cannot be made liable either to the plaintiff employer or to a defendant, third party tortfeasor.

Appellant argues that gross inequities will result if the employer cannot be joined as an additional defendant. He contends that a defendant tortfeasor, whose negligence, may have joined with that of the employer in causing injury to the employee, will be required to pay 100% of the employee’s damages. If required to pay the full verdict, the defendant tortfeasor will pay more than his proportionate part of the loss and the employee will be enabled to recover twice for the same injury.

This argument, although appearing at first blush to have merit, results from an unwillingness to accept the legislative mandate which changed traditional negligence concepts. The heretofore recognized cause of action against an employer has been “obliterated.” He is liable solely for worker’s compensation benefits. If an employer accepts the responsibility of providing worker’s compensation benefits, he cannot be solely or jointly liable to an employee for negligence. Similarly, he is not liable to a third party tortfeasor for indemnification or contribution. His negligence is no longer a factor. He is not and cannot be a defendant against whom recovery is allowed. He is not a party whose negligence is to be included in the apportionment required by the Comparative Negligence Act.

Appellant also argues that if an employer’s negligence is not included in the apportionment under comparative negligence, the employer will have the right via subrogation to be made whole even though the employee’s loss may have been caused in part by the employer’s own fault. This issue, however, is not now before us, and we, as the Supreme Court in Tsarnas, “leave for another day the issue as to whether the employer’s right of subrogation nevertheless remains unimpaired.”

Finally, appellant calls our attention to the criticism which Section 303 of the Workmen’s Compensation Act has drawn because it results in too absolute a victory for the employer. The same argument was made to the Supreme Court in Tsarnas v. Jones & Laughlin Steel Corp., supra. The Supreme Court responded that this was an argument based on social policies and should, more properly, be addressed to the legislature.

We have examined carefully the language of Section 303 of the Workmen’s Compensation Act and the Comparative Negligence Act and have compared them with each other and analyzed them in the light of the rules by which third party practice is governed. These laws, both substantive and procedural, are uniformly consistent. An employer may not be joined as an additional defendant in an action for negligence commenced by an employee against a third party tortfeasor.

The order of the Court of Common Pleas of Cumberland County is affirmed.

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

      . Act of December 5, 1974, P.L. 782, No. 263, 77 P.S. § 481.

      . Conrail also caused Evans Products Company to be joined as an additional defendant.

      . The courts of other jurisdictions having similar, but not the same, statutory provisions and competing policy considerations have been able to achieve an accommodation. They have refused to allow the joinder of an employer as an additional defendant, but they have permitted the fact-finder to apportion causative negligence among all negligent persons, whether or not they are parties to the litigation. See: Arcell v. Ashland Chemical Co., Inc., 152 N.J.Super. 471, 378 A.2d 53 (1977); Heldt v. Nicholson Manufacturing Co., 72 Wis.2d 110, 240 N.W.2d 154 (1976); Payne v. Bilco Co., 54 Wis.2d 424, 195 N.W.2d 641 (1972). The pertinent statutes of New Jersey and Wisconsin, however, do not contain language, as does the Pennsylvania statute, which limits the negligence to be apportioned to that which is “attributed to all defendants against whom recovery is allowed.”