author: PER CURIAM.

text:
    448 A.2d 1136
    COMMONWEALTH of Pennsylvania, Appellant, v. Christina LOBEL.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed July 30, 1982.

      Gaele Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Robert E. Gabriel,- Philadelphia, submitted a brief on behalf of appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   PER CURIAM.

The Commonwealth has appealed from the order of an en banc panel of the Court of Common Pleas of Philadelphia County granting appellee, Christina Lobel, a new trial based upon a claim of ineffectiveness of counsel. Following a nonjury trial, appellee was convicted of two counts of theft by deception and two counts of criminal conspiracy for her participation in a charitable fraud scheme with her codefendant, Peter Candelori.

During the first phase of their joint trial, the Commonwealth established that Candelori and Lobel were the- principal actors in a fraudulent fund raising scheme.

Peter Candelori, as a “Bishop” of the Holy Orthodox Christian Church, controlled a guild of street solicitors known as the Salvation Mission Army Workers (R. 145a, 148a, 149a). When working directly for Mr. Candelori, the “volunteers”—who were frequently handicapped (see R. 54a)—were provided by Candelori with “identification certificates” and were permitted to retain 60% of their collections (R. 59a-60a; 73a-74a). The remaining funds which were collected were turned over to Candelori. However, the “church” for which the workers were ostensibly collecting (R. 58a), conducted no charitable activities; its various addresses included private homes, an answering service and a torn-down building (R. 175a, 172a-175a, 152a-154a).
The collection methods used by, and arrangements with, those volunteers who worked with defendant Lobel were somewhat different. These, also frequently handicapped, “volunteers” were taken by her to shopping centers where they collected money using cans labelled “Salvation Mission Workers” and “help the handicapped” (R. 54a, 66a, 110a, 113a, 219a). The solicitors were instructed by Lobel to say, if asked, that they were working for the Salvation Army (R. 67a, 114a, 219a), and were provided with certificates establishing that they were collecting for the Salvation Mission Army Workers, a tax-exempt organization (which it was not) (R. 103a-104a, 139a, 220a-222a). Half of the proceeds were kept by the volunteers; defendant [Lobel] retained the other half, but paid $3.00 per can per day to Candelori (R. 66a-67a, 71a-72a, 223a). Defendant herself also “collected” and stated, on occasion, when doing so, that she was collecting for the Salvation Army (R. 134a, 212a-215a).

Brief for Appellant at 5-6.

Following the introduction of this testimony, the assistant district attorney advised the trial judge that the remaining evidence related only to Candelori. Appellee’s attorney thus asked the court to excuse him and his client from that portion of the trial. The request was granted and the Commonwealth proceeded with its case against Candelori only. The testimony of two witnesses, Joseph Rankin and Diane McCarthy, was then introduced.

Mr. Rankin detailed his solicitation of funds for Candelori and the Salvation Mission Army Workers; he also testified to that organization’s non-existent charitable and religious activities (R. 244a-254a). During his testimony, Mr. Rankin identified C-l as the certificate provided to him by Candelori which “authorized” collections for the period from November 29,1977, through December 8,1977 (R. 250a). Previously, this certificate had been identified, in the presence of defendant and her counsel, by various “solicitors” as being like the licenses defendant Lobel provided to them (R. 116a-120a, 220a-222a). Finally, this witness told of Candelori’s efforts to influence his prior grand jury testimony and to prevent his appearance as a witness at the trial in progress (R. 255a-257a). Mr. Rankin made no references whatsoever to defendant Lobel.
[T]he testimony which the second witness, Diane McCarthy, had given at a prior proceeding was also admitted by stipulation. Ms. McCarthy detailed her solicitation activities for, and her arrangements with, Candelori; she also identified a document such as Candelori had provided her with weekly for the sum of $10.00 (R. 275a, 273-283a). This certificate, which was marked C-12, ostensibly authorized Ms. McCarthy to collect for the Salvation Army Mission Workers of the Holy Orthodox Christian Church from May 4, 1978 to May 11, 1978 (R. 283a-285a). Ms. McCarthy also stated during her testimony that she did not even know defendant Lobel (R. 281a).

Brief for Appellant at 6-7 (emphasis added).

After the introduction of this evidence, the Commonwealth rested its case against Candelori. Candelori moved for a directed verdict of not guilty and arguments were heard on the charges against him. Candelori was thereafter convicted of theft by deception and criminal conspiracy. After the verdict was rendered in the Candelori case, appellee and her attorney returned to the court room. Additional evidence was then introduced against appellee and, after argument, she was convicted of the charges against her.

Appellee thereafter filed motions for new trial and in arrest of judgment. In her motion for new trial, appellee alleged, inter alia, that she neither intelligently nor voluntarily waived her right to be present during every stage of the proceeding against her and, further, that, by virtue of her absence during a portion of her trial, she was denied her constitutional right to confront the witnesses against her. (Record at 449a). However styled, the court en banc perceived these allegations as a claim of ineffective assistance of trial counsel. Notwithstanding the fact that trial counsel was thus arguing his own ineffectiveness, the court en banc nonetheless entertained said argument and concluded that:

Trial counsel’s voluntary absence from the courtroom during a portion of the proceedings deprived [appellee] of her state and federally protected constitutional rights to effective assistance of counsel, to be present at trial, to confront and cross-examine witnesses against her.

Slip op. at 11. The court thus granted appellee a new trial, and the Commonwealth has appealed.

The Commonwealth argues that appellee’s contention, that trial counsel was ineffective, is not arguably meritorious and, even assuming said argument has merit, trial counsel should have been disqualified from arguing his own ineffectiveness in post-verdict motions. We agree.

In Commonwealth v. Fox, 476 Pa. 475, 478, 383 A.2d 199, 201 (1978), our supreme court authorized a court to entertain an ineffectiveness claim advanced by the subject of that claim only when said ineffectiveness is apparent on the record. When such a claim is not apparent on the record, new counsel must be appointed before the claim is considered. The record sub judice establishes, however, that: (1) the assistant district attorney advised the court that the testimony of its two remaining witnesses pertained only to appellee’s codefendant, Candelori; (2) appellee’s attorney thus asked that he and appellee be excused during this portion of the case; (3) the court granted said request; and (4) absolutely no evidence was admitted against appellee during her absence. We thus find no basis for the court en banc’s conclusion that trial counsel’s ineffectiveness was apparent on the record or that counsel’s decision was “incomprehensible and arbitrary.” Because Fox prohibits us from rejecting an ineffectiveness claim without first appointing new counsel, however, we must remand so that an attorney not associated with trial counsel may be appointed to pursue the ineffectiveness claim as well as any other claims preserved but not considered by the court en banc. See Commonwealth v. Fox, supra; Commonwealth v. Roach, 268 Pa.Superior Ct. 340, 408 A.2d 495 (1979).

Accordingly, we reverse the order granting appellee a new trial and remand for proceedings consistent with this opinion. Jurisdiction is not retained.

      . 18 Pa.C.S.A. § 3922.

      . 18 Pa.C.S.A. § 903.


source: Caselaw Access Project

author: VAN der VOORT, Judge:

license: Public Domain

text:
    448 A.2d 1139
    AMOCO OIL COMPANY, a Maryland corporation v. Ralph E. SNYDER, Ruth L. Snyder and Frank R. Crash. Appeal of Ralph E. SNYDER & Ruth L. Snyder.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1981.
    Decided July 30, 1982.
    Petition for Allowance of Appeal Granted Feb. 8, 1983.

      George H. Rowley, Greenville, for appellants.
    Richard H. Martin, Pittsburgh, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This action was commenced by a complaint in equity, disposed of below by Judge Acker in favor of the plaintiffappellees. The case was submitted to the court for decision on a written stipulation of facts.

The plaintiff-appellee Amoco Oil Company (Amoco) was engaged in producing, refining and marketing petroleum products. Ruth L. Snyder, the wife-defendant and one of the appellants is the owner of the real estate involved in this litigation, a 90' X 100' lot at the intersection of Main Street and College Avenue in Greenville, Pennsylvania, having a brick gasoline service station erected on it. On August 2, 1968, Ruth L. Snyder and her husband, and other persons, then having an interest in the property, leased it to Amoco. The term of the lease was for ten years, beginning April 1, 1969 and ending on March 31,1979. The rental was $350 per month. Lessee was given an option to extend the lease for two successive periods of five years each at a rental of $400 per month.

The leasing agreement contained the following provisions:

3a. Lessee shall have, and is hereby given, the option of purchasing said demised premises for the sum of FORTY FIVE THOUSAND__________DOLLARS ($45,000.00), provided Lessee shall give Lessor notice in writing of its election to exercise said option to purchase at any time during the original term or any extension or renewal thereof,
b. It is further agreed that should Lessor, or Lessor’s heirs, executors, grantees, successors or assigns, at any time during the term of this lease or any extension thereof, receive an offer to purchase the demised premises, or any part thereof, or any premises which includes the demised premises, and desires to accept said offer, or should Lessor during any such time make an offer to sell the demised premises, or any part thereof, or any premises which includes the demised premises, Lessor shall give Lessee ninety (90) days notice in writing of such offer, setting forth the name and address of the proposed purchaser, the amount of the proposed purchase price, and all other terms and conditions of such offer, and Lessee shall have the first option to purchase the premises which are the subject of the offer by giving written notice to Lessor of its intention to purchase within said ninety (90) day period at the same price and on the same terms of any such offer, it being understood that in the event Lessee does not give notice of its intention to exercise said option to purchase within said period, this lease and all of its terms and conditions shall nevertheless remain in full force and effect and Lessor and any purchaser or purchasers of the demised premises, or any part thereof, or any premises which includes the demised premises shall be bound thereby, and in the event that the premises set forth in the offer are not sold for any reason, Lessee shall have, upon the same conditions and notice, the continuing first option to purchase the demised premises, or any part thereof, or any premises which includes the demised premises, upon the terms of any subsequent offer or offers to purchase.

Amoco operated a gasoline service station on the premises until the spring of 1978, but not thereafter. The full rental had been paid to the Snyders through March 31, 1979, when the term was to expire. On November 15, 1978, the Snyders entered into a written agreement with Frank R. Crash, (a named defendant herein, but not represented, and inactive in the defense of the case) to sell him the property for $75,000. On that same day the Snyders gave Amoco written notice of Crash’s offer, pursuant to paragraph 3(b), quoted above. By letter dated January 8, 1979, Amoco, without making specific reference to the Snyders’ letter of November 15, 1979, notified the Snyders of its intention to purchase the property for $45,000 in accordance with Paragraph 3(a), quoted above. The Snyders refused to transfer title to Amoco for the $45,000, claiming that Amoco’s option to purchase at $45,000 was terminated by the notice of November 15, 1978 of the offer by Crash to purchase for $75,000.

Amoco’s complaint in equity asked for an order directing the Snyders to execute and deliver a deed to Amoco upon tender of the option price of $45,000. Judge Acker’s Decree Nisi and his subsequent Final Decree ordered the Snyders to execute and deliver a deed upon tender of $45,000; declared that the agreement of sale between Crash and the Snyders be set aside; and ordered the Snyders to not otherwise transfer or encumber the property.

It is the Snyders’ position on appeal, as it was below, that Paragraph 3(a) of the Agreement (referred to in appellants’ brief as a “fixed price option”) and Paragraph 3(b) (referred to as a “first-purchase option”) must be given equal stature, and that the “fixed price option” is terminated upon the giving of such notice of a third-party offer as is required to bring the “first purchase option” into operation. In support of appellants’ argument they cite a number of cases from other jurisdictions, and Bobali Corp. v. Tamapa Co., 235 Pa.Superior Ct. 1, 340 A.2d 485 (1975), distinguished on its facts by Judge Acker in his opinion in the present case.

Appellants also argue that the terms of the “fixed price option” and of the “first purchase option” are, somehow, ambiguous and that the ambiguity must be resolved against Amoco since, admittedly, its predecessor prepared the leasing agreements. West Penn Realty Co. v. Acme Markets, Inc., 224 Pa.Superior Ct. 202, 303 A.2d 836 (1973). We might agree with the general statement if the two options, considered together, appeared to be ambiguous. We agree, however, with Judge Acker that paragraphs 3(a) and (b) demonstrate no ambiguity when considered separately (Opinion, May 2, 1980, page 10) and do not become ambiguous because both options are present in the same instrument. (Id. at 11).

Paragraph 3(a), quoted above, unambiguously gives the lessee an option to buy the property for $45,000; the option may be exercised by written notice “at any time during the original term ...” That option was exercised by Amoco on January 8, 1979, well within the original term.

Paragraph 3(b) requires the lessors to give the lessee written notice of any proposed sale to a third party, and gives the lessee a ninety day option to buy the property at the same price and terms as the proposed sale. If the lessee does not pick up its option to purchase on that price and terms:

“this lease and all of its terms and conditions shall nevertheless remain in full force and effect and Lessor and any purchaser ... of the demised premises . . . shall be bound thereby. . . . ”

We see nothing in paragraph 3(b) which supports appellants’ argument, that if the lessors found a buyer willing to pay more than the fixed-price, $45,000, for the premises, then the lessee became obligated to buy at that larger price under penalty of losing its fixed-price option. It is important at this point to note that the option is given to the lessee, not to the lessor in both Paragraphs 3(a) and 3(b): at any time within the term of the lease “the lessee shall have the option of purchasing .... for $45,000”, under 3(a); and under 3(b), on written notice from lessor, “Lessee shall have the first option to purchase” at the same price and terms as a third party offers.

We recognize that practically, and reasonably the lessee, faced with the problem of buying at $45,000 under 3(a), or buying at a larger price under 3(b) will opt to buy at the smaller price, as, in fact, Amoco did in the present case. The lessee had both those options under the Lease Agreements, for both of which options we must presume the lessors received an acceptable consideration when the Lease Agreements were executed.

Bobali Corporation v. Tamapa Co., 235 Pa.Superior Ct. 1, 340 A.2d 485 (1975) is cited by appellants as a case holding that an optionee’s failure to purchase pursuant to a right of first refusal extinguishes a fixed-price option. In Bobali, as Judge Acker pointed out below, the language of the option agreements and the attending circumstances were different than those involved in the present case. There the fixed-price option was stated to be two years and six months from April 13, 1971, “unless earlier terminated as hereinafter provided.” Our Superior Court affirmed the lower court’s determination that the intent of the parties in Bobali, because of the language quoted above, was that “the right of preemption would supersede and terminate the fixed price option”. As we have previously noted, there was no such qualifying provision in the fixed-price option in the present case.

Further, in Bobali (235 Pa.Superior Ct. 1, at 9, 340 A.2d 485) unlike our case and other precedents cited to the court, the optionee had not occupied or improved the premises. Where such improvements did occur, as they did in this present case, although the dollar value of those improvements is disputed, our court recognized that

“it would be unfair to require the optionee to meet a third party’s offer which would naturally reflect the improvements on the premises made by the optionee himself.”

And, as Judge (now President Judge) Cercone stated in Bobali, 235 Pa.Superior Ct. at 9, 340 A.2d 485:

“In any event, it is obvious that dual option agreements . . . although often generally similar, are phrased differently, and, therefore a decision construing one agreement will not be controlling in a case involving another.”

We believe that Judge Acker determined correctly the intent of the parties as expressed by the language in the option clauses and all the attendant circumstances.

Order affirmed.

MONTEMURO, J., concurs in the result.

      . The lease agreement consisted of a one-page typed “Lease”; a four-page partially printed “Agreement”; and a one-page “Lease Rider”, all prepared by the lessee’s predecessor.

      . The Crash agreement states expressly that it is subject to the lease between the Snyders and Amoco, and that that lease gives Amoco a right to purchase.

      . Amoco Oil Co. v. Kraft, 89 Mich.App. 270, 280 N.W.2d 505 (1979); Tarrant v. Self, 387 N.E.2d 1349 (Ind.1979); Northwest Racing Ass’n v. Hunt, 20 Ill.App.2d 393, 156 N.E.2d 285 (1959).

      . It may reasonably be argued that Amoco elected to exercise this option only after, and because, it was notified that Crash was willing to buy the property for $75,000. If this be true, it tends to explain Amoco’s motivation, but, as we see it, the fact that there was another interested buyer should not, and did not change Amoco’s legal rights under the fixed price option.


author: PRICE, Judge: BROSKY, Judge,

text:
    448 A.2d 1379
    John JULIANO v. Mabel STRONG, Appellant.
    Superior Court of Pennsylvania.
    Argued April 15, 1980.
    Filed Aug. 6, 1982.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.

      Nikki Ann Tufano, Pittsburgh, for appellant.
    Michael H. Steinberg, Pittsburgh, submitted a brief on behalf of appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   PRICE, Judge:

Appellant, Mabel Strong, appeals from that portion of an order of the Court of Common Pleas of Allegheny County directing that rental payments escrowed pursuant to the Rent Withholding Act (hereinafter “the Act”) should be paid to appellee, John Juliano, appellant’s landlord at the time of the instant dispute. For the reasons that follow, we affirm the subject order.

On May 15, 1979, appellant was advised that she was eligible to withhold rent because the apartment in which she was a tenant was unfit for human habitation. Being without the financial means to bring the apartment into compliance with the requirements promulgated by the Department of Health, appellee placed the subject property up for sale and commenced an action before a district magistrate to terminate the tenancy, alleging as a reason therefore the need to make extensive repairs, presumably to enhance the marketability of the property. Process was served on July 3, 1979 and, on August 13, 1979, appellant having failed to appear, a default judgment for possession was entered. The landlord-tenant relationship was thus terminated for reasons other than nonpayment of rent and no appeal was taken.

Thereafter, on August 30, 1979, appellant’s attorney-presented to the court of common pleas a petition to open the judgment of possession entered by the district magistrate. Perceiving that it lacked subject matter “jurisdiction to direct that a judgment before a district justice be opened,” slip op. at 2, the trial court declined to entertain the petition. Nevertheless,

[i]n spite of the Court’s statement that it was without subject matter jurisdiction to entertain the petition of Strong, Juliano volunteered, as a humanitarian gesture, that he would be willing to permit Strong to remain in the premises even though he had an established legal right to immediate possession. Following this gesture of Juliano, Strong’s counsel agreed to the entering of a consent order by [the] Court whereby the parties agreed that there would be no eviction of Strong from the premises for a period of thirty (30) days; that Strong would bring no further actions before District Justice Sparrow; and, that in the event Strong failed to vacate within the thirty (30) days [the] Court (upon Juliano’s appearing before the Court and requesting it) would issue a writ of possession.

Slip op. at 2. At the conclusion of the hearing which resulted in the consent agreement, appellee requested the payment to him of rental payments that had previously been paid into an escrow account pursuant to the act. Although appellant objected to this request, the trial court added the following directive to the consent order: “Eo die, money held in rent escrow to be paid to John Juliano forthwith.” Order of Court, August 30, 1979. This appeal followed.

Appellant argues: that the trial court’s directive was in contravention of the terms and purposes of the Act; that appellee should have exhausted his administrative remedies before resorting to the court to seek the rental payments previously placed in escrow, and that the court lacked jurisdiction to order the Department of Health to release the escrowed funds because that department was not a party to the instant dispute. We cannot agree.

The Rent Withholding Act provides as follows:

Notwithstanding any other provision of law, or of any agreement, whether oral or in writing, whenever the Department of Licenses and Inspections of any city of the first class, or the Department of Public Safety of any city of the second class, second class A, or third class as the case may be,, or any Public Health Department of any such city, or of the county in which such city is located, certifies a dwelling as unfit for human habitation, the duty of any tenant of such dwelling to pay, and the right of the landlord to collect rent shall be suspended without affecting any other terms or conditions of the landlord-tenant relationship, until the dwelling is certified as fit for human habitation or until the tenancy is terminated for any reason other than nonpayment of rent. During any period when the duty to pay rent is suspended, and the tenant continues to occupy the dwelling, the rent withheld shall be deposited by the tenant in an escrow account in a bank or trust company approved by the city or county as the case may be and shall be paid to the landlord when the dwelling is certified as fit for human habitation at any time within six months from the date on which the dwelling was certified as unfit for human habitation. If, at the end of six months after the certification of a •dwelling as unfit for human habitation, such dwelling has not been certified as fit for human habitation, any moneys deposited in escrow on account of continued occupancy shall be payable to the depositor, except that any funds deposited in escrow may be used, for the purpose of making such dwelling fit for human habitation and for the payment of utility services for which the landlord is obligated but which he refuses or is unable to pay. No tenant shall be evicted for any reason whatsoever while rent is deposited in escrow.

35 P.S. § 1700-1 (emphasis added) (footnote omitted).

In ruling on the constitutionality of the Act in DePaul v. Kauffman, 441 Pa. 386, 272 A.2d 500 (1971), our supreme court stated:

It is evident that the sanctions imposed by the Act bear a real and substantial relationship to its objective of assuring decent and habitable rental property. “In Reitmeyer v. Sprecher, 431 Pa. 284, 289-90, 243 A.2d 395 (1968), we recognized that a severe housing shortage exists in many parts of the Commonwealth and that much of what housing does exist is in very poor condition. The legislature was obviously attempting [through the Rent Withholding Act] to improve this situation by giving tenants the power to put pressure on landlords to repair dilapidated, unsafe dwellings.” Klein v. Allegheny County Health Dep’t, 441 Pa. 1, 7, 269 A.2d 647, 651 (1970) (footnote omitted). It seems a matter of common sense that one in the business of renting real estate for profit who is faced with the temporary or permanent loss of rental income will, in some instances, take steps to avoid that loss.

441 Pa. at 394, 272 A.2d at 504 (emphasis added) (footnote omitted). It seems just as much a matter of common sense that, when, as here, the landlord-tenant relationship has ceased to exist and the “landlord” is no longer “in the business of renting real estate for profit,” the continued application of the sanctions imposed by the Act would no longer “bear a real and substantial relationship to [the Act’s] objective of assuring decent and habitable rental property.” Id.

The express language of the act thus provides that the landlord’s right to collect rent shall be suspended until the occurrence of one of two contingencies: (1) the building is certified as fit for human habitation; or (2) the tenancy is terminated for any reason other than nonpayment of rent. Id. “The purpose of the Act is to restore substandard housing to a reasonable level of habitability as swiftly as possible and to deter landlords from allowing their property to deteriorate into a condition unfit for habitation.” Pugh v. Holmes, 486 Pa. 272, 287, 405 A.2d 897, 905 (1979). See, e.g., Newland v. Newland, 26 Pa. Commonwealth Ct. 519, 364 A.2d 988 (1976); Palmer v. Allegheny County Health Department, 21 Pa. Commonwealth Ct. 246, 345 A.2d 317 (1975). Consequently, the first contingency, certification of the building as fit for human habitation, is tailored to meet that objective. • The second contingency, termination of the tenancy for a reason other than nonpayment of rent, recognizes that, where the landlord-tenant relationship has been terminated, and the termination of that relationship was not a retaliatory maneuver, the Rent Withholding Act no longer governs the relationship of the parties.

Instantly, the tenancy was terminated as of August 13, 1979, when a judgment for possession was entered in favor of appellee. Since the tenancy was terminated for a reason other than nonpayment of rent, appellee’s right to collect rent came out of suspension and the trial judge properly directed payment of the escrowed funds to appellee.

Accordingly, the order of the Court of Common Pleas of Allegheny County is affirmed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent.

Appellant, Mabel Strong, petitioned the trial court to open a judgment ordering Ms. Strong’s eviction entered after a hearing before a District Justice. The trial court held that it lacked subject matter jurisdiction to open the judgment. The parties then entered into what appears to be a consent order signed by John Juliano, the landlord, and William M. Parker, a social worker who assisted Ms. Strong. This appeal is made from the consent agreement which was entered into in the trial court. Appellant claims she was wrongfully evicted. She also asserts that the court improperly held that money paid into escrow by appellant under the Rent Withholding Act, which was owing for rent, should have been ordered paid to the appellee. I would affirm the decision of the trial court to evict the appellant and reverse the order of the trial court which directed the money held in escrow be paid to appellee.

On May 15, 1979, appellant was apprised by the Allegheny County Health Department that the apartment in which she was living was unfit for human habitation. She was then advised that she would be eligible to withhold rent, which she did for the following several months. Juliano, thereafter, filed a landlord tenant complaint with a District Magistrate seeking the eviction of the appellant. A default judgment was entered against the appellant. The consent order from which this appeal was filed resulted from a proceeding in the trial court at which the appellant sought to open the judgment filed against her before the District Magistrate.

The consent order stated:

AND NOW, to wit, this 30th day of August, 1979, it is HEREBY ORDERED and ADJUDGED that eviction of Mabel Strong from the premises at 1114 Bidwell Street, Pittsburgh, PA is hereby stayed for thirty (30) days from the date of this order.
FURTHER, it is ordered that Defendant will bring no further actions or appeals in the Justice of the Peace action LT. 79-167 which was heard before Magistrate Donald Sparrow.
FURTHER, that if Defendant has not vacated from the premises at 1114 Bidwell Street, Pittsburgh PA within thirty (30) days of this order that a writ of immediate possession will issue in favor of Plaintiff upon Plaintiff’s appearing before this court and so requesting.
Consent: John Juliano
William M. Porter
BY THE COURT:
[Ralph H. Smith, Jr., J.]

At the time the consent order was entered, the court also ordered the rent withheld be paid to appellee. An order stated, “Eo die, money held in rent escrow to be paid to John Juliano forthwith.” Ms. Strong subsequently failed to vacate the premises by the date agreed to by the parties and the trial court ordered her to vacate the premises.

The Rent Withholding Act states:

Notwithstanding any other provision of law, or of any agreement, whether oral or in writing, whenever the Department of Licenses and Inspections of any city of the first class, or the Department of Public Safety of any city of the second class, second class A, or third class as the case may be, or any Public Health Department of any such city, or of the county in which such city is located, certifies a dwelling as unfit for human habitation, the duty of any tenant of such dwelling to pay, and the right of the landlord to collect rent shall be suspended without affecting any other terms or conditions of the landlord-tenant relationship, until the dwelling is certified as fit for human habitation or until the tenancy is terminated for any reason other than nonpayment of rent. During any period when the duty to pay rent is suspended, and the tenant continues to occupy the dwelling, the rent withheld shall be deposited by the tenant in an escrow account in a bank or trust company approved by the city or county as the case may be and shall be paid to the landlord when the dwelling is certified as fit for human habitation at any time within six months from the date on which the dwelling was certified as unfit for human habitation. If, at the end of six months after the certification of a dwelling as unfit for human habitation, such dwelling has not been certified as fit for human habitation, any moneys deposited in escrow on account of continued occupancy shall be payable to the depositor, except that any funds deposited in escrow may be used, for the purpose of making such dwelling fit for human habitation and for the payment of utility services for which the landlord is obligated but which he refuses or is unable to pay. No tenant shall be evicted for any reason whatsoever while rent is deposited in escrow.

(Footnote omitted.)

The trial court has read the statute as saying that once the tenancy relationship is severed that the landlord shall be paid the rent out of escrow. I do not agree.

In Klein v. Allegheny County Health Department, 441 Pa. 1, 269 A.2d 647 (1970), our Supreme Court stated that the Rent Withholding Act is interpreted in the following manner: The first sentence in which the general purpose of the act is stated is to be effectuated by the second and third sentences. Significantly, the court read the statute as saying:

There is no question that if the dwelling is certified as fit at any time during the six months subsequent to initial unfitness certification the landlord is entitled to the money in the escrow account. It is the expectation of the Act (and certainly a reasonable one) that if the premises have not been certified as fit prior to the expiration of the original six months at that six month date either the landlord or the tenant or both will come forward and claim the funds in the escrow account. That claim (or those claims) will require the appropriate agency ‘to reinspect, and unless the premises are certified as fit, there would be generated under Sentence 3 another six months withholding period. This procedure will be repeated at each six month interval. “Certification” (the tenth word in Sentence 3) and “certified” (the sixth word from the end of Sentence 2) refer not only to the original certification but also to the certification that takes place at the end of each six month period. Therefore, under the clear wording of the Act, there is to be not only one six month withholding period but as many periods as are necessary “until the dwelling is certified as fit for human habitation.”

(Footnote omitted), Id., 441 Pa. at 6-7, 269 A.2d 650-651.

The first sentence of the Act establishes the purposes envisioned by the General Assembly. Thus, the tenant is not under a duty to pay rent to the landlord while the rent is properly being withheld under the Act and the landlord has no right to collect that money. If, however, the tenancy relationship is terminated “for any reason other than nonpayment of rent, the duties and rights of the parties once again come out of suspension.” DePaul v. Kauffman, 441 Pa. 386, 272 A.2d 500 (1971). Thus, the first sentence provides for the duties and rights of the parties while the rent is being properly withheld. When the tenancy is outside the Act, however, that fact alone does not serve to revive the rights and duties of the parties which arose during the period of proper rent withholding.

In National Council v. Allegheny County Health, 216 Pa. Super. 37, 261 A.2d 616 (1969); Klein v. Allegheny County Health Department, 216 Pa.Super. 50, 261 A.2d 619 (1970), where a tenant withheld rent properly and during the rent withholding period the tenancy was terminated, we said:

It is not disclosed whether the sum paid for repairs was expended before the defaults in payment of rent, which led to the judgment in ejectment, or thereafter. However, it is immaterial when the expenditures were made. If they were made subsequent to the date when the judgment in ejectment was entered, they were made at a time when the Act no longer had any effect on the landlord-tenant relationship since it had been terminated by the default of the tenant and the subsequent entry of judgment for possession. If the repairs were made before the date of its entry, we find no provision in the Act to entitle an owner to recover rentals paid into escrow either by making partial repairs or by making repairs only to the limit of the rentals, or to any extent less than is necessary to restore the leased premises to the reasonable standard of fitness established by the Department, regardless of the amount of the expenditure. Therefore, the Owner is not entitled to recover the rentals for the months of February, March, and April, totaling $195, under the Rent Withholding Act, since it did not sufficiently repair the premises to meet the aforesaid standard; nor the rentals paid subsequently to the entry of judgment since they were improperly paid into the escrow account.

(Emphasis added) id., 261 Pa.Superior at 41—42, 261 A.2d 618.

In Klein, supra, our decision in National Council, supra, was reversed in part. Nevertheless, the Supreme Court held that our decision was correct to the extent that rent money properly placed in escrow was not to be paid to the landlord. Thus, rent money held in escrow was not available to the landlord until there had been a review of the fitness of his property.

The Pennsylvania Commonwealth Court has held in two decisions, Newland v. Newland, 26 Pa. Commw. 519, 364 A.2d 988 (1976), and Palmer v. Allegheny County Health Dept., 21 Pa. Commw. 246, 345 A.2d 317 (1978), that rent money held in escrow could not be paid to the landlord until a reinspection of the dwelling certifying it fit for human habitation had been made. While the Act provides that reinspection shall be made at six month intervals, if the problem has been abated prior to the end of a six month interval, the rent shall be paid to the landlord.

The Act provides that where the dwelling is not rendered fit by the end of each six month interval, the landlord shall forfeit that rent money to the depositor, Klein, supra, barring the existence of an extension limited to the circumstances found in Palmer, supra, and Newland, supra. However, I find no decision stating that the rent money properly depositéd into escrow shall be paid to the landlord as soon as the tenancy relationship is terminated. To so hold would weaken the very purpose of the Act as envisioned in Sentence 1. Klein, supra. Similarly, I am unable to fit any provision in the Act which authorizes the payment of rent money properly held in escrow prior to administrative review of the condition of the dwelling. The Act solely provides for the duties of the tenant and rights of the landlord while rent money is being withheld.

Thus, the trial court wrongfully ordered the rent money paid into escrow paid to the landlord. No other result, it seems to me, can be consistent with the goals envisioned by the General Assembly when the Rent Withholding Act was enacted. Clearly, the purpose of the Act was to protect complaining tenants from eviction while assuring that rent will continue to be paid and declaring that the landlord was not to receive that payment until his building was fit for habitation. This process is triggered by the actions of the health department of a city or county and can only be resolved upon the revitalization of the dwelling.

Certainly, the myopic focus of the General Assembly was upon the suffering tenant. He cannot be forced to vacate the premises purely because he brings to the attention of the authorities that the landlord’s building is in a state of disrepair. However, the first sentence of the Rent Withholding Act makes it clear that the tenant cannot oblige the landlord to continue the tenancy relationship after he has terminated it. Thus, the tenant is protected from eviction so long as he does not sever the tenancy.

The broad purpose envisioned by the Act, however, is that landlords are obliged to maintain habitable dwellings. The Rent Withholding Act merely provides a vehicle by which the tenant can force the commencement of the revitalization process. The landlord cannot escape this process on the chance the tenant severs the lease. He must complete the rehabilitation of the building. In this light, the individual and societal goals perceived by the General Assembly can be effectuated. The trial court erred in ordering the rent money paid into escrow paid to the landlord.

Accordingly, I would hold that the order of the trial court is affirmed with regard to the appellant’s eviction and reversed with regard to its decision to order rent money paid into escrow paid to Mr. Juliano. I am convinced that this decision is required by the purposes of the Rent Withholding Act. We should not endorse, in any way, any action by our trial courts which unreasonably obliges a tenant to terminate a tenancy relationship and consequently results in the formal, though I would hold not substantive, non-compliance with the Rent Withholding Act.

      . Act of January 24, 1966, P.L. 1534 § 1, as amended August 11, 1967, P.L. 204 § 1, June 11, 1968, P.L. 159, No. 89 § 2, 35 P.S. § 1700-1.

      . Significantly, appellant testified that she was unaware of any such petition, the hearing thereon, the resulting consent decree, or the appeal to this court. (Vol. 6, N.T. February 1, 1980 at 82-84.) Because appellant has not questioned the actions of her attorney, however, we need not determine whose rights the Neighborhood Legal Services Association was seeking to vindicate, through its representation of appellant.

      . Appellant failed to vacate the premises in accordance with the consent order and, ultimately, a writ of possession was issued.

      . Appellant’s assertion that appellee should have exhausted his administrative remedies prior to resorting to the courts is without merit. It was certainly appellee’s right to place his building up for sale when he realized that he could not comply with the requirements for certification as a habitable dwelling. It was also appellee’s right to seek the lawful termination of the tenancy in order to facilitate the sale of his building. Had appellee not made the “humanitarian gesture” of allowing appellant to remain in his building for an additional thirty days, following the entry of judgment in his favor, appellant would not only have been without a place to live but also out of court, since the appeal period had already expired and the petition to open the judgment of possession had been dismissed for lack of jurisdiction. The tenancy was thus at an end and the Rent Withholding Act no longer governed the relationship between appellant and appellee. It follows, therefore, that the administrative procedures promulgated by the Department of Health pursuant to the Rent Withholding Act were likewise inoperative with respect to the relationship between appellant and appellee.
      Equally meritless is appellant’s contention that the trial court lacked jurisdiction to order the Allegheny County Health Department to pay to appellee funds escrowed pursuant to the Act. Since the Act “does not purport to be the exclusive tenant remedy for unsavory housing,” Pugh v. Holmes, 486 Pa. at 286, 405 A.2d at 904, a fortiori, the administrative agency that facilitates the Act need not be a party to every landlord-tenant dispute. This is particularly true when, as here, we have already determined that the Act had ceased to govern the relationship between appellant and appellee. The trial judge thus properly ordered the Health Department to pay the escrowed funds to appellee.

      . The appellant does not attack the validity of the agreement on grounds pertaining to the absence of her signature on it. Therefore, I presume her consent to be valid. There is no evidence in the record which indicates Ms. Strong made any attempt to revoke her authorization of Mr. Parker’s power to sign the agreement for her. Sustrik v. Jones and Laughlin Steel Corporation, 189 Pa.Super. 47, 149 A.2d 498 (1959); Appeal of Scott Township, 31 Commw. Ct. 505, 377 A.2d 826 (1977).

      . Act of January 24, 1966, P.S. 1534 § 1, as amended August 11, 1967, P.L. 204 § 1, June 11, 1968, P.L. 159, No. 89 § 2, 35 P.S. 1700-1.

      . There is some question as to whether Ms. Strong properly filed an appeal from the District Magistrate’s decision. Nevertheless, this question is rendered moot by the entrance of the parties into a consent order endorsed by the signature of the trial judge. That order was final and entirely separate though incident to the decision of the District Magistrate.

      . The appellant states in its “Summary of Argument":

      Further Appellant contends the court’s order was directed to the Allegheny County Health Department which was not a party to this action. The Court therefore had no jurisdiction to issue such an order.
      Appellant’s brief at page six. This argument is misplaced. The appeal in the instant case is from the consent order entered into in the court below. The Allegheny County Health Department was not a party, rather its role was purely as the administrative agency which facilitated the Rent Withholding Act in Allegheny County. Accordingly, the trial court properly directed its order to the Allegheny County Health Department.

      . In City of Harrisburg Housing Code Board of Appeals and Frye v. Reaves, 48 Pa. Commw. 125, 128, 409 A.2d 484, 485 (1979), the Commonwealth Court interpreted Klein, supra, as holding:
      [The] Superior Court ... [has] held that under the [Rent Withholding] Act anything less than a restoration of the leased premises to a condition that meets the reasonable require-ments of fitness for human habitation estab-lished by health and safety departments of a city or county does not give the owner the right to recover payments of rental monies paid into escrow. [Citations omitted.]
      While the Commonwealth Court reached this decision where the tenant had not vacated the leasehold, I believe that the interpretation of the Rent Withholding Act presented by that Court articulates clearly the policy envisioned by the General Assembly when it enacted the Rent Withholding Act. That is to say, the Act obliges the landlord to bring his property into habitable condition in accordance with the administrative schedule established under the Act before he is to receive payment of rent held in escrow.

      . I recognize that several contempt orders issued in this case to persons working for the Allegheny County Health Department and for the Mellon Bank where the escrow account was held. There were no issues raised in this regard and none of the parties in the instant case were held in contempt of court. Thus, I do not address any such claim.


author: WIEAND, Judge:

text:
    448 A.2d 1386
    Clair A. BORTNER, Individually and as Administrator of the Estate of Jeffrey B. Bortner, Appellant, v. Rodger E. GLADFELTER, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued March 24, 1981.
    Filed Aug. 6, 1982.

      Samuel K. Gates, York, for appellant.

      George Douglas, Carlisle, for appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Jeffrey Bortner was killed when a vehicle in which he was a passenger left a two-lane road in York County and overturned. Bortner and the driver, Rodger E. Gladfelter, had been drinking wine prior to the accident, and Gladfelter, a jury found, was visibly intoxicated. The jury concluded that Bortner, age 18, and Gladfelter, age 17, were both negligent and that their negligence was equally responsible (50%) for Bortner’s death. The jury also determined that the damages sustained in the wrongful death action were in the amount of $3,283.70, being the amount of the funeral expenses, and that no damages had been sustained in the survival action. Plaintiff filed a motion for new trial, and when it was denied this appeal followed.

Appellant contends that it was error to admit into evidence the alcohol level contained in blood drawn from appellee approximately one hour after the accident. There is no merit in this argument. This evidence was relevant to assist the jury in determining whether plaintiff’s decedent had been guilty of contributory negligence or had assumed the risk of riding with an intoxicated driver. To permit such a finding, of course, it was necessary that appellee show by a preponderance of the evidence that plaintiff’s decedent knew of the risk and appreciated its unreasonable character. Weaver v. Clabaugh, 255 Pa.Super. 532, 536, 388 A.2d 1094, 1096 (1978); Watson v. Zanotti Motor Co., 219 Pa.Super. 96, 98, 280 A.2d 670, 672 (1971). This he did by the testimony of a board certified pathologist who expressed the opinion, based on the results of the blood test, that appellee had been visibly intoxicated at and immediately prior to the time of the accident.

Appellant also argues that the trial court improperly instructed the jury to apply an “average man” standard of conduct in determining whether his decedent had voluntarily assumed the risk. However, appellant failed to object to this instruction; and, therefore, he is precluded on appeal from assigning the alleged error as a basis for a new trial. Broxie v. Household Finance Company, 472 Pa. 373, 377, 372 A.2d 741, 743 (1977); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Whether to grant a new trial because of inadequacy of the verdict is peculiarly within the competence of the trial court, and its discretion is considerable. Its action, therefore, will not be disturbed on appeal except where there has been a clear abuse of discretion. Wilson v. Nelson, 437 Pa. 254, 256, 258 A.2d 657, 658-659 (1969); Dougherty v. Sadsbury Township, 299 Pa.Super. 357, 360, 445 A.2d 793, 795 (1982); Mueller v. Brandon, 282 Pa.Super. 37, 41, 422 A.2d 664, 666 (1980); Palmer v. Brest, 254 Pa.Super. 532, 536, 386 A.2d 77, 79 (1978). However, appellate courts do not abdicate their power of review and will reverse where a clear abuse of discretion appears. Hose v. Hake, 412 Pa. 10, 14, 192 A.2d 339, 341 (1963); Dougherty v. Sadsbury Township, supra.

“[T]o support the granting of a new trial for inadequacy, ‘the injustice of the verdict should stand forth like a beacon.’ So long as the verdict bears a reasonable resemblance to the damages proved, it is not the function of the court to substitute its judgment for that of the jury. Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 240 (1959); Morris v. Peckyno, 202 Pa.Superior Ct. 490, 492, 198 A.2d 396, 397 (1964). In the latter case, [the Superior Court,] quoting 15 Am.Jur., Damages, § 231, stated ‘ “As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or where the award is so inadequate that it should not be permitted to stand. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more.” ’ ” Rutter v. Morris, 212 Pa.Super. 466, 469-470, 243 A.2d 140, 142 (1968). See also Dougherty v. Sadsbury Township, supra; Gudat v. Heuberger, 275 Pa.Super. 535, 540, 419 A.2d 30, 32 (1980); Hevener v. Reilly, 266 Pa.Super. 386, 392, 404 A.2d 1343, 1346 (1979); Poltorak v. Sandy, 236 Pa.Super. 355, 366-367, 345 A.2d 201, 205-206 (1975); Gottlob v. Hillegas, 195 Pa.Super. 453, 457, 171 A.2d 868, 870-871 (1961).

The purpose of the Wrongful Death Act of April 15, 1851, as amended, 12 P.S. § 1601 et seq., was to compensate certain enumerated relatives of the decedent for pecuniary loss sustained because they had been deprived of that portion of the decedent’s earnings which they would have received if the decedent had not died prematurely. Pezzulli v. D’Ambrosia, 344 Pa. 643, 648-649, 26 A.2d 659, 661 (1942); Manning v. Capelli, 270 Pa.Super. 207, 211, 411 A.2d 252, 254 (1979). Recovery in a wrongful death action may also be had for “reasonable hospital, nursing, medical, funeral expenses, and expenses of administration necessitated by reason of injuries causing death.” Act of April 26, 1855, P.L. 309, § 1, 12 P.S. § 1602.

In the instant case, the jury’s verdict in the wrongful death action was for Bortner’s funeral expenses. The evidence was such that the jury could reasonably conclude that the decedent’s parents sustained no further pecuniary loss as a consequence of their son’s death. He had attained his 18th birthday prior to death but had been living with and had been supported primarily by his parents. He was employed as a mechanic by York Transportation and was earning $3.00 per hour. He also assisted, on a part-time basis, in his father’s small automobile repair business. His talents and economic resources were such that a college education was unlikely, his future earnings were limited to those of an automobile mechanic, and the likelihood that those earnings would have been shared with his parents was not great. Based on this evidence, we are unable to say that the verdict in the wrongful death action was unreasonable.

However, the finding in the survival action that the decedent’s estate sustained no pecuniary loss is unreasonable and not supported by the evidence. With respect to this item of damage, the jury was properly instructed to ascertain what the earnings of the deceased person would have been during the period of his life expectancy and to deduct therefrom the probable cost of his maintenance as shown by the evidence. See McClinton v. White, 497 Pa. 610, 444 A.2d 85 (1982); Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206, 229 (1971); Murray v. Philadelphia Transportation Co., 359 Pa. 69, 74, 58 A.2d 323, 325 (1948); Prince v. Adams, 229 Pa.Super. 150, 154, 324 A.2d 358, 360 (1974); 20 Pa.C.S. §§ 3371-3373. The uncontradicted evidence was that the decedent’s life expectancy was 50.6 years, during which he would have earned $6,942.00 per year and expended approximately $3,218.00 per year to maintain himself. The net earnings during decedent’s life expectancy, it was testified, would have been $77,659.00.

In view of this evidence, a refusal to find that the decedent’s estate had sustained any pecuniary loss is shocking. The “injustice of the verdict . .. stand[s] forth like a beacon.” Elza v. Chovan, supra 396 Pa. at 118, 152 A.2d at 240. See and compare Prince v. Adams, supra.

The verdict cannot be explained as a compromise. In response to a special interrogatory, the jury found that 50% of the total causal negligence was attributable to appellee and 50% to the decedent. When asked to state “the amount of damages, if any, sustained by the plaintiff as a result of the accident without regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the plaintiff’s decedent,” the jury answered: “No figure.” This suggests that the jury must have been influenced by a misconception of the law, or by some other improper consideration. Where a jury refuses to give any recovery at all to a litigant who is entitled to at least some recovery, “we can have no confidence in the fairness of the jury’s deliberations.” Hevener v. Reilly, supra, 266 Pa.Super. at 394, 404 A.2d at 1347. Consequently, we are constrained to conclude that a new trial is necessary and that it was an abuse of discretion for the trial court to refuse to grant the same.

There remains to be considered the extent of the new trial to be awarded. The wrongful death action and the survival action seek to enforce distinct causes of action. Schwab v. P. J. Oesterling & Son, Inc., 386 Pa. 388, 392, 126 A.2d 418, 420 (1956); McClinton v. White, 285 Pa.Super. 271, 277, 427 A.2d 218, 221 (1981), revd on other grounds, 497 Pa. 610, 444 A.2d 85 (1982); Mohler v. Worley, 179 Pa.Super. 56, 61, 116 A.2d 342, 344 (1955); Funk v. Buckley & Co., Inc., 158 Pa.Super. 586, 590, 45 A.2d 918, 920 (1946). See also 7 Goodrich-Amram § 2201:38. By virtue of Pa.R.C.P. 213(e), the two causes of action may be enforced in one action, and if independent actions are commenced they must be consolidated for trial. Even in consolidated cases, however, the jury must bring in a separate verdict for each cause of action. Feldman, Pennsylvania Trial Guide § 33.6. The award of damages in each must be based upon considerations which are different from those in the other. Here, the verdict in the wrongful death action bore a reasonable relation to the evidence; only the verdict in the survival action did not. Therefore, we perceive no good reason for requiring a new trial in the wrongful death action.

The issues of causal negligence and contributory negligence have also been litigated fully, and there is no reason for setting aside the jury’s finding that the negligence of defendant and plaintiff’s decedent contributed equally to the decedent’s death. The new trial in the survival action can fairly be limited to the issue of damages. Cf. Prince v. Adams, supra. The damages awarded by the jury can thereafter be reduced by the court in accordance with the prior comparative negligence findings.

The judgment in the wrongful death action is affirmed. The judgment in the survival action is reversed, and the action is remanded for a new trial on the issue of damages only.

      . A blood test disclosed an alcoholic content in Gladfelter’s blood of 0.22%.

      . This amount was reduced by the sum of $1,500 previously paid on account of funeral expenses, and the balance was reduced by 50% as required by the Comparative Negligence Act of April 28, 1978, P.L. 202, No. 53, § 10(89), as amended by Act of October 5, 1980, P.L. 693, No. 142, § 222(a), 42 Pa.C.S. § 7102. The molded verdict against defendant-appellee, therefore, was in the amount of $891.95.

      . The Act of 1851 has been repealed by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[279], 42 Pa.C.S. § 20002(a)[279], effective June 27, 1978. It has been re-enacted as a part of the Judicial Code of July 9, 1976, at 42 Pa.C.S. § 8301.

      . This statute has been repealed, effective June 27, 1978, by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[310], 42 Pa.C.S. § 20002(a)[310], It has been re-enacted as a part of the Judicial Code of July 9, 1976, at 42 Pa.C.S. § 8301.


author: WICKERSHAM, Judge: LIPEZ, Judge,

text:
    449 A.2d 28
    Anthony KOJESZEWSKI and Beverly Kojeszewski, Appellants, v. BRIGANTINE CASTLE AND AMUSEMENT CORPORATION.
    Superior Court of Pennsylvania.
    Submitted March 10, 1982.
    Filed July 30, 1982.

      Edwin P. Smith, Philadelphia, for appellants.
    Joel Feldscher, Philadelphia, for appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   WICKERSHAM, Judge:

On September 8, 1977, Anthony and Beverly Kojeszewski filed a complaint in trespass against Brigantine Castle and Amusement Corp. alleging basically that on or about June 30, 1977, Anthony Kojeszewski was a paying customer upon premises at 1400 Brigantine Avenue, Brigantine, New Jersey, which property defendant owned and operated as an amusement facility. On said occasion plaintiff alleged that he “was caused to fall down a flight of stairs due to the absence of illumination at said location.” Beverly Kojeszewski joined in her husband’s complaint alleging loss of society and consortium and other damages.

The case came on for jury trial before the Honorable Charles Wright and on March 7,1980 a verdict was returned in favor of the plaintiff in the amount of $42,250.00.

Thereafter counsel for the plaintiffs filed a bill of costs as follows:

BILL OF COSTS
Sheriff’s costs $ 17.35
Prothonotary costs 83.00
Witness fee-Anthony Kojeszewski, Jr. 5.00
Tobyhanna, Pa.; 200 miles 20.00
Oral depositions 93 ^5
Video depositions and testimony 722.55
T0TAL $946.05

to which defendants objected:

DEFENDANT’S OBJECTIONS TO PLAINTIFF’S BILL OF COSTS
Defendant also objects to the charge for the transcripts of the oral depositions and the costs of the video depositions and testimony in the amounts of $98.15 and $722.55, respectively as said items are not taxable.

Following the submission of briefs, Judge Wright issued an order dated June 6, 1980, denying the charge for deposition transcripts and the cost for video tape deposition and testimony. His order read as follows:

ORDER
AND NOW, to wit, this /6/ day of /June/, 1980, it is hereby ORDERED AND DECREED that:
1. Plaintiffs’ Bill of Costs namely:
(a) $98.15 charge for deposition transcripts, and
(b) $722.55 cost for video tape deposition and testimony is denied.

From this order this appeal has been brought.

Judge Wright, in his opinion sur. Pennsylvania Rule of Appellate Procedure 1925, filed October 31, 1980, said:

Plaintiffs, in their memorandum supporting the petition for bill of costs correctly state that at common law costs were not recoverable by either party to litigation and that the right to recover costs is purely statutory. Tunison v. Commonwealth, 347 Pa. 76, 31 A.2d 521 (1943); Application of Smith, 381 Pa. 223, 112 A.2d 625 (1955). He states further that statutes which authorize the recovery of costs are to be liberally construed. Rush v. Allegheny County, 159 Pa.Super. 163, 48 A.2d 46 (1946). . . .
Although the Pennsylvania Rules of Civil Procedure prescribe the transcribing of testimony in mandatory terms, the rules do not provide generally for the assessment of costs of depositions. Pa.R.C.P. 4017(b). See also Goodrich Amram, 2d 4020(a) :15. Reference to assessment is found only in Pa.R.C.P. 4019(d) in the case of unjustified refusal to admit under Pa.R.C.P. 4014. Except in this special situation the assessment of costs is to follow the practice prior to the adoption of the Rules of Civil Procedure. Goodrich Amram 2d 4020(a):15. A study of the practice preceding the adoption of the rules shows that the costs of recording and transcribing the deposition cannot be assessed as costs in the action.
The Court finds that this refusal is further supported by reason and equity. In this case by virtue of depositions and videotapes, the plaintiff had available as part of his case testimony of two witnesses one lay and one expert and highly qualified. Unquestionably, the expert witness would have required sums far in excess of the usual witness fee to make a personal appearance in court to give testimony. No part of this fee would, however, be recoverable as costs. Clearly the cost of taking depositions and videotapes was far less than would have been the cost to plaintiff to produce this witness in court at the time of trial. We, therefore, have no hesitancy in concluding that the taxation of the costs of taking and transcribing the depositions in this matter is improper and that these costs must be disallowed.

Lower ct. op. at 2-5.

Appellant urges upon us in his brief that the Statute of Gloucester, 6 Edw. I, C. 1, Rob. Dig. 107 is in force in Pennsylvania and authorizes the recovery of full costs where the damages are recovered in a common law forum, unless this right be restricted by statute.

In Richmond v. Pennsylvania Higher Education Assistance Agency, 6 Cmwlth.Ct. 612, 297 A.2d 544 (1972), it was held that:

We are urged to accept the Statute of Gloucester, 6 Edw. 1, c. 1 (1275), which is still in force in Pennsylvania (but ceased to have effect in England after 1875), as requisite statutory authorization. It is true that this statute and several other ancient English acts initiated the principle that a prevailing party is entitled to his costs, and, as a general rule of law, this principle still obtains in the Commonwealth. See Taged, Inv. v. Zoning Board of Adjustment and Shields, 6 Pa. Commonwealth Ct. 331, 295 A.2d 339 (1972). But the Statute of Gloucester extends only to cases where damages are recovered in a common law forum, and then only if the damages were recoverable at common law. Black's Appeal, 106 Pa. 344, 15 W.N.C. 308 (1884); Cameron v. Paul, 11 Pa. 277 (1849); see also Annot., 12 A.L.R. 721, 723 (1921). As Sir Edward Coke said, ‘[I]t extendeth to all the legall cost of the suit, but not to the costs and expences of his travell and losse of time.. . . ’ E. Coke, Second Institutes 288 (1642) (emphasis added). [L]iberal construction is to be given statutes providing for costs, Steele v. Lineberger, 72 Pa. 239 (1872),

Id. 6 Cmwlth.Ct. at 615, 297 A.2d at 546.

At common law, costs were not recoverable by either party to the action. If plaintiff failed in his action, he was punished by amercement pro falso clamore, and if the judgment was against the defendant, he was punished in misericordia cum expensis litis, but costs were not expressly given by name.
The right to recover costs in litigation is, therefore, purely statutory; normally costs can be imposed only by statute, and the power to impose costs in a proceeding based on a statute must be found in the statute. In the absence of express statutory authorization, a successful party cannot recover costs. Further, the right exists only to the extent authorized by the legislative enactment.
Originally costs were given rather as a punishment of the defeated party for causing the litigation than as a recompense to the successful party for the expense to which he had been subjected.
Although the courts have no implied or inherent power to award costs, statutes which make it the duty of the court to decide and direct who shall pay costs place the matter of costs within the control of the court.

9 P.L.E. Costs, §§ 4, 11-12 (footnotes omitted).

Pennsylvania was one of the first states to authorize videotape depositions. Although adopted in April, 1973 as part of a 2-year experimental program, Rule 4017.1 appears to have worked well in practice. As a result, the Rule was not changed by the 1978 amendments.
Some States have adopted elaborate and detailed rules for videotape procedure, designed to cover minute details of its use. Rule 4017.1 adopts the alternative procedure of providing a skeleton of the essential features which must be regulated, and no more. The rest is left for development in actual practice with specific authorization to the trial courts to try out various methods of solving the problems which will arise.

Goodrich-Amram 2d, § 4017.1:1.

In Guido v. Greensburg Salem School District, 7 D. & C.3d 73 (1978) (Westmoreland County, opinion by President Judge Keim), plaintiff brought a trespass action for personal injuries and settlement was reached. On the same day that settlement was approved by the court, plaintiffs filed a bill of costs which included three items which defendants claimed they were not obligated to pay.

Those items relate to certain deposition expenses incurred by plaintiffs prior to trial, namely, (a) The costs to plaintiffs of a videotape deposition of Dr. John Gaisford in the amount of $220.20; (b) The costs to plaintiffs for cancellation of a videotape deposition of Dr. Gaisford in the amount of $37.50; and (c) The cost to plaintiffs of obtaining a transcript of the deposition of Mary Ellen Guido in the amount of $53.20.
It is axiomatic that no costs were allowed in any proceeding at common law and the right to costs is dependent upon statute or rules of court. See Costs, 20 C.J.S. § 2, 259; Tunison v. Com., 347 Pa. 76, 31 A.2d 521 (1943).
This court most certainly agrees that the videotape deposition is an indispensable tool in the litigation process and that it is an efficient utilization of witness time. However, as is pointed out by plaintiffs and defendants, it is a substitution for actual appearances of the witness in court. As defendants argue, utilization of the videotape deposition makes it unnecessary for the witness to appear in court. If the witness were to appear in court, the only cost to be imposed would be a mileage fee and a standard witness fee. Defendants argue, and with defendants’ argument, the court must agree, that the fact that a videotape deposition is made should create no greater obligation on defendants in this case beyond the mileage and standard witness fee. Defendants cannot be taxed with costs beyond that point in this particular case.
The court, therefore, finds that as a matter of law, those witness fees claimed by plaintiffs as a result of the videotape deposition are not taxable costs.

Id. at 7 D. & C.3d at 74-79.

We conclude that, absent an agreement between the parties to the contrary, the expenses relating to videotape depositions shall be borne by the party utilizing such process under and pursuant to Rule 4017.1 of the Pennsylvania Rules of Civil Procedure. Accordingly, we affirm the order of June 6, 1980 of Judge Wright denying plaintiffs' bill of costs, including a charge for deposition transcripts and an item for videotape deposition and testimony.

Order of the lower court affirmed.

LIPEZ, J., files a concurring opinion.

LIPEZ, Judge,

concurring:

Costs may be collected only where authorized by statute. 9 P.L.E. Costs § 96, see Commonwealth v. Gill, 288 Pa.Super. 538, 432 A.2d 1001 (1981). There is no statutory authority for the allowance of the costs herein claimed and hence the lower court properly disallowed them.

      . Appellants frame the issues on appeal in the following manner:

        Are the costs of obtaining and presenting testimony at trial by oral and video-taped deposition recoverable as costs to the successful party?
      Brief for Appellants at 2.

      . Pennsylvania Rule of Civil Procedure 4017.1 entitled “Videotape Depositions” provides as follows:

        (a) Any deposition to be taken upon oral deposition may be recorded by videotape without a stenographic transcript. Except as otherwise provided by this rule, the rules of this chapter governing the practice and procedure in depositions and discovery shall apply.
      (b) Every notice or subpoena for the taking of a videotape deposition shall state that it is to be videotaped, the name and address of the person whose deposition is to be taken, the name and address of the person before whom it is to be taken, and the name and address of the videotape operator and of his employer. The operator may be an employee of the attorney taking the deposition.
      (c) The deposition shall begin by the operator stating on camera (1) his name and address, (2) the name and address of his employer, (3) the date, time and place of the deposition, (4) the caption of the case, (5) the name of the witness, and (6) the party on whose behalf the deposition is being taken. The officer before whom the deposition is taken shall then identify himself and swear the witness on camera. At the conclusion of the deposition the operator shall state on camera that the deposition is concluded. When the length of the deposition requires the use of more than one tape, the end of each tape and the beginning of each succeeding tape shall be announced on camera by the operator.
      (d) The deposition shall be timed by a digital clock on camera which shall show continually each hour, minute and second of each tape of the deposition.
      (e) No signature of the witness shall be required.
      (f) The attorney for the party taking the deposition shall take custody of and be responsible for the safeguarding of the videotape and shall permit the viewing of and shall provide a copy of the videotape or the audio portion thereof upon the request and at the cost of a party.
      (g) In addition to the uses permitted by Rule 4020 a videotape deposition of a medical witness or any witness called as an expert, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.
      (h) At a trial or hearing that part of the audio portion of a videotape deposition which is offered in evidence and admitted, or which is excluded on objection, shall be transcribed in the same manner as the testimony of other witnesses. The videotape shall be marked as an exhibit and shall remain in the custody of the court.


author: PRICE, Judge:

text:
    449 A.2d 32
    Anne Louise LESHER and Earl Lesher and Noreen Lesher, Appellants, v. Dorothy HENNING.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1981.
    Filed Aug. 6, 1982.

      Lindley M. Cowperthwait, Jr., Norristown, for appellants.
    John O’Rourke, Norristown, for appellee.
    •Before PRICE, WIEAND and HOFFMAN, JJ.
   PRICE, Judge:

Appellants, Anne Lesher and her parents, Earl and Noreen Lesher, commenced this action in trespass on June 3, 1974 to recover for property damage and personal injuries sustained in a collision between automobiles driven by Anne Lesher and appellee, Dorothy Henning. The accident occurred on the night of November 11, 1972 at the intersection of Morris Road and Valley Forge Road in Worcester Township, Montgomery County. At the completion of trial on March 16, 1979, the jury rendered its verdict in favor of appellee. Appellants’ post-trial motion for a new trial was denied by the court below sitting en banc, with one judge dissenting. Judgment was entered and this appeal followed. Appellants contend, inter alia, that the trial court erred in permitting a Pennsylvania State Police trooper who did not witness the accident to express his opinion that Miss Lesher failed to stop at a stop sign, thereby causing the collision. We agree, and, accordingly, vacate the judgment and remand the case to the Court of Common Pleas of Montgomery County for a new trial.

At approximately 10:30 on the night of November 11, 1972, Anne Lesher was driving east on Morris Road toward its intersection with Valley Forge Road. Morris Road is a two lane highway controlled by a stop sign at its intersection with Valley Forge Road. Valley Forge Road, which is designated Pennsylvania State Route 363, is a two lane highway running north and south. There are no signs or signals regulating traffic on Valley Forge Road at the Morris Road intersection. Appellee was driving south on Valley Forge Road when her vehicle collided at the intersection with the automobile driven by Miss Lesher. Miss Lesher suffered serious personal injuries as a result of the collision.

At trial, Miss Lesher testified that, as she approached the intersection, she observed a “heavy stream of traffic coming from my left on Valley Forge Road.” (N.T. 59). She further testified that, upon reaching the intersection, she stopped at the stop sign, waited for the line of vehicles to pass in front of her, and then proceeded into the intersection, whereupon her automobile was struck by appellee’s vehicle. To rebut this testimony, and to establish that Miss Lesher was herself negligent in failing to stop at the stop sign on Morris Road, appellee called several witnesses, the first of whom was Pennsylvania State Trooper Richard Prebula. Trooper Prebula investigated the accident but did not actually witness the collision. After it was established that Trooper Prebula had investigated the accident, the following exchange occurred:

Q. [COUNSEL FOR APPELLEE]: Would you tell us, as a result of your investigation, did you make a determination of how this accident occurred?
A. [TROOPER PREBULA]: Yes, I did.
[COUNSEL FOR APPELLANTS]: Objection, your Honor. If your Honor please, what Mr. Stewart is asking the trooper is solely the jury’s determination. It is conclusion.

(N.T. 187). The trial judge overruled the objection and, after some discussion, Trooper Prebula resumed his testimony:

A.: The Lesher vehicle was traveling east, on Morris Road. The Henning vehicle was traveling south on Pa. 363. As the Henning vehicle approached the intersection with Morris Road the vehicle operated by Miss Lesher came through the intersection and was struck by the vehicle operated by Henning.
Q. [COUNSEL FOR APPELLEE]: Is there anything in your investigation to indicate the Lesher vehicle had stopped at the stop sign before entering the intersection? A.: From interviewing the witnesses . . .
[COUNSEL FOR APPELLANTS]: Objection as to statements from other people, your Honor. It is clearly hearsay.
[THE COURT]: Sustained.
Q. [COUNSEL FOR APPELLEE]: You can’t testify to what somebody else told you, only what your conclusion was as a result of investigation.
A.: My conclusion is . . .
[COUNSEL FOR APPELLANTS]: If your honor please, that’s a back door way of trying to get in hearsay testimony.
[THE COURT]: Mr. Cowperthwait, you are all familiar with that procedure. What was the question again?
[COUNSEL FOR APPELLEE]: The question was whether there was any indication from his investigation that the Lesher automobile had stopped at the stop sign before entering the intersection.
[THE COURT]: The answer is yes or no and what he decides after that is probably what you object to.
A.: Would you repeat the question again, please?
Q. [COUNSEL FOR APPELLEE]: Yes. Was there any indication of your investigation as to whether or not the Lesher automobile had stopped at the stop sign before entering the intersection ?
A.: No, it did not.

(N.T. 189-91) (emphasis added).

Trooper Prebula’s conclusion that the Lesher vehicle failed to stop at the stop sign on Morris Road should not have been admitted into evidence on the issue of liability. The general rule in this Commonwealth is that an investigating police officer who did not actually witness a motor vehicle accident is not competent, at trial, to render an opinion as to its cause. Brodie v. Philadelphia Transporta tion Co., 415 Pa. 296, 203 A.2d 657 (1964); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Johnson v. Peoples Cab Co., 386 Pa. 513, 126 A.2d 720 (1956); Kelly v. Buckley, 280 Pa.Superior Ct. 353, 421 A.2d 759 (1980); Andrews v. Jackson, 211 Pa.Superior Ct. 166, 235 A.2d 452 (1967). The rationale for excluding opinion testimony of a non-eyewitness police officer as to the cause of an accident is that the officer has no first hand knowledge of the accident. Hence, his conclusion as to its cause would be speculative at best and thus would constitute an unwarranted and prejudicial usurpation of the factfinding prerogative of the jury. Brodie v. Philadelphia Transportation Co., supra; Smith v. Clark, supra.

That rationale is particularly apposite in the instant case. Trooper Prebula’s opinion that Miss Lesher failed to stop her automobile at the stop sign was not predicated upon facts determined after careful analysis of the physical evidence at the scene of the accident. Rather, the trooper’s opinion was based on accounts of the accident given by two eyewitnesses, both of whom were questioned by Trooper Prebula at the scene. In these circumstances, Trooper Prebula was not competent to render an opinion at trial. The admission of his opinion testimony into evidence, therefore, was error. Andrews v. Jackson, 211 Pa.Superior Ct. 166, 235 A.2d 452. See Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952).

The court below concluded that, even if it had erred in permitting Trooper Prebula to state his opinion as to the cause of the accident, appellants were not prejudiced thereby because “other evidence was admitted concerning the plaintiff’s failure to stop at the stop sign.” Slip op. at 5. Citing the testimony of two eyewitnesses that the Lesher vehicle did not stop at the stop sign, the court below found it “hard to imagine that the State Trooper’s brief answer was prejudicial after the jury listened to the conclusive testimony of the two eyewitnesses.” Slip op. at 7. We do not concur in the trial court’s assessment. We cannot, on the record sub judice, say with certainty that Trooper Prebula’s opinion did not influence the jury’s determination of liability. Trooper Prebula was the first witness to testify on behalf of appellee. He thus was the first witness to flatly contradict Miss Lesher’s testimony that she stopped at the stop sign. The subsequent testimony of the two eyewitnesses corroborated the trooper’s version of events and thereby added credibility to his opinion. Indeed, the fact that the opinion was expressed by a police officer might, in itself, have rendered its admission into evidence prejudicial. As Justice Musmanno held in a remarkably similar case: “It was . .. highly prejudicial . . . that this statement should be brought to the attention of the jury with all the prestige and authoritativeness which naturally attaches to an impartial police report.” Johnson v. Peoples Cab Co., 386 Pa. 513, 516, 126 A.2d 720, 721 (1956).

In these circumstances, we conclude that Trooper Prebula’s opinion could well have influenced the jury’s determination of liability. Accordingly, we vacate the judgment and remand the case to the court of common pleas for a new trial.

      . At the time the instant cause of action arose, contributory negligence was a complete bar to recovery. Since then, however, the Legislature has enacted a comparative negligence statute, Act of July 9, 1976, P.L. 855, No. 152, 17 P.S. § 2101, repealed and reenacted, Act of April 28, 1978, P.L. 202, No. 53, § 10 (89), 42 Pa.C.S.A. § 7102. As to the retroactive application of the Comparative Negligence Act, see Costa v. Lair, 241 Pa.Superior Ct. 517, 363 A.2d 1313 (1976).

      . In articulating the general rule, we do not mean to imply that a non-eyewitness police officer may never render an opinion as to the cause of an accident. When a police officer is properly qualified as an expert witness, see Kuisis v. Baldwin—Lima—Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Pratt v. Stein, 298 Pa.Superior Ct. 92, 444 A.2d 674 (1982); Erschen v. Pennsylvania Independent Oil Co., 259 Pa. Superior Ct. 474, 393 A.2d 924 (1978), and a proper evidentiary foundation for his testimony has been established, the officer may, like any expert witness, render an opinion on the question of causation.
      In the present case, counsel for appellee attempted to qualify Trooper Prebula as an expert witness on the subject of accident investigation. See N.T. 185-86. Without then establishing the requisite foundation, appellee’s counsel asked Trooper Prebula to state his conclusion as to the cause of the accident. Trooper Prebula’s opinion, therefore, even if proffered as that of an expert, lacked the evidentiary basis necessary for its admission into evidence.

      . The record does not reveal whether the two eyewitnesses were sequestered during Trooper Prebula’s testimony. The second eyewitness, however, was sequestered during the first eyewitness’ testimony. (N.T. 236).

      . In view of our disposition of this appeal, we do not address appellants’ three remaining allegations of trial error.


author: WICKERSHAM, Judge:

text:
    449 A.2d 35
    COMMONWEALTH of Pennsylvania, Appellant, v. William J. REIHART.
    Superior Court of Pennsylvania.
    Submitted March 24, 1982.
    Filed Aug. 6, 1982.
    Petition for Allowance of Appeal Denied Nov. 15, 1982.

      David W. Rahauser, Assistant District Attorney, Chambersburg, for Commonwealth, appellant.
    Deborah K. Hoff, Assistant Public Defender, Chambers-burg, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WICKERSHAM, Judge:

This is a criminal case in which the Commonwealth appeals from a lower court order dismissing the charges against appellee Reihart pursuant to Pa.R.Crim.P. 1100. A criminal complaint charging Reihart with homicide by vehicle and involuntary manslaughter was issued on August 20, 1980. A preliminary hearing was scheduled for September 12, 1980, however, a Commonwealth witness, Mark Long, was seriously ill; the hearing was continued until January 27, 1981, at which time a prima facie case was established without the testimony of Mr. Long, who was still ill. Reihart entered a plea of not guilty to the charges on February 4, 1981. On February 6, 1981, the Commonwealth filed a petition for trial on a date certain, specifically February 16, 1981, as that was the 180th day from the filing of the complaint. On February 10, 1981, the lower court denied the petition. The Commonwealth then filed a petition for the extension of time for commencement of trial on February 11, 1981; this petition was dismissed on February 13, 1981. On March 6, 1981 Reihart filed an omnibus pretrial motion which included a motion to dismiss in accordance with Pa.R.Crim.P. 1100. The charges against Reihart were dismissed by the lower court on March 6, 1981 pursuant to Pa.R.Crim.P. 1100. The Commonwealth then filed the present appeal.

The Commonwealth frames the issue involved as follows: Did the honorable court err in dismissing the charges against the defendant for failing to arraign the appellant 150 days from the filing of the original charges?

Brief for Appellant at 4.

Pa.R.Crim.P. 1100 serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society. So long as there has been no misconduct on part of the Commonwealth in an effort to evade an accused’s speedy trial rights, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981). As long as the Commonwealth acts reasonably in its attempts to secure an absent witness, it shall be deemed to have acted with due diligence with respect to Pa.R.Crim.P. 1100. Commonwealth v. Long, 288 Pa.Super. 414, 432 A.2d 228 (1981).

Instantly, there is no allegation by Reihart that the Commonwealth engaged in any misconduct in an effort to evade the mandates of Pa.R.Crim.P. 1100. The Commonwealth stated in its petition for extension of time for the commencement of trial that Mark Long, a witness considered crucial to the prosecution of this matter, was seriously ill with an as yet undiagnosed illness and that he consequently was unable to testify. The Commonwealth was acting reasonably, and with due diligence, in its attempt to secure the testimony of Mr. Long, however, the serious nature of his illness precluded him from testifying. The superior court considered a similar situation in Commonwealth v. Thompson, 292 Pa.Super. 108, 436 A.2d 1028 (1981), and stated that the period of time for commencement of trial pursuant to Pa.R.Crim.P. 1100 “was extended because the Commonwealth witness was hospitalized. An extension may be granted under such circumstances because that situation was beyond the Commonwealth’s control. The unavailability of the Commonwealth’s witness occurred despite its due diligence.” Id., 292 Pa.Superior at 111, 436 A.2d at 1030.

We conclude that the Commonwealth acted reasonably and with due diligence considering the factual situation presented; accordingly we find that the Commonwealth’s petition for the extension of time to commence trial should have been granted.

The order dismissing the charges against appellee Reihart is reversed and the case is remanded for further proceedings consistent with this opinion.


author: BROSKY, Judge:

text:
    449 A.2d 37
    DONALD L. F., Jr. and Donald L. F., Sr., and Alice F., his wife v. MICHELLE C. F., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 9, 1982.
    Filed Aug. 6, 1982.

      Michelle Frank, Casper, for appellant.
    Darrell Lee Kadunce, Butler, for appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   BROSKY, Judge:

Appellees, Donald L. F., Jr. and Donald L. F., Sr. and his wife, Alice F. (hereinafter petitioners), instituted an action against appellant, Michelle C. F., to confirm custody of Rachel May F. The child was at the time of this appeal in the custody of her mother. Rachel May F. was born to Donald L. F., Jr. and Michelle C. F. on October 14, 1979. Michelle C. F. resides in the state of Wyoming. Michelle C. F. presented the trial court preliminary objections asserting that the trial court lacked jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act. 11 Pa.C.S.A. § 2301 et seq. See also: Commonwealth ex rel. Earl R. D. v. Linda H. S., 297 Pa.Super. 78, 443 A.2d 307. Those objections were denied on January 5, 1981. This appeal followed.

The matter before us is interlocutory. No appeal by right lies from the trial court’s mere assertion of jurisdiction. While under previous law, such an appeal was permitted, 12 P.S. § 672, Commonwealth, Auditor General v. Borough of East Washington, 474 Pa. 226, 378 A.2d 301 (1977); School District of Borough of West Homestead v. Allegheny County Board of School Directors, 440 Pa. 113, 269 A.2d 904 (1970); Shapiro v. Gloucester County, 260 Pa.Super. 254, 393 A.2d 1250 (1978); Pa.R.A.P. 311(a)(7), Pa.R.C.P. 1451(b)(7),— 12 P.S. 672 was repealed effective June 27, 1980. There is however an interlocutory appeal as of right pursuant to Pa.R.A.P. 311(b) which states:

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

The comment to the rule states:

Subdivisions (b) and (c) are based in part on the act of March 5,1925 (P.L. 23, No. 15) (order ruling on question of jurisdiction). The term “civil action or proceeding” is broader than the term “proceeding at law or in equity” under the prior practice and is intended to include orders entered by the orphans’ court division. Cf. In the Matter of Phillips, 471 Pa. 289, 370 A.2d 307 (1977).
In Subdivision (b)(1) a plaintiff is given a qualified (because it can be overridden by petition for and grant of permission to appeal under Rule 312 (Interlocutory appeals by permission)) option to gamble that the venue of the matter or personal or in rem jurisdiction will be sustained on appeal. Subdivision (a)(2) provides that if the plaintiff timely elects final treatment, the failure of the defendant to appeal constitutes a waiver. The appeal period under Rule 903 (time for appeal) ordinarily runs from the entry of the order, and not from the date of filing of the election, which procedure will ordinarily afford at least 20 days within which to appeal. See Rule 903(c) as to treatment of special appeal times. If the plaintiff does not file an election to treat the order as final the case will proceed to trial unless either (1) the trial court makes a finding under Subdivision (b)(2) of the existence of a substantial question of jurisdiction and the defendant elects to appeal, (2) an interlocutory appeal is permitted under Rule 312 or (3) another basis for appeal appears, e.g., under subdivision (a)(1), and an appeal is taken. Presumably a plaintiff would file such an election where he desires to force the defendant to decide promptly whether the objection to venue or jurisdiction will be seriously pressed. Subdivision (b) does not cover orders which do not sustain jurisdiction because they are, of course, final orders appealable under Rule 341.

The petitioners did not file within ten days of the entry of the trial court’s order an election that the order be deemed final. Michelle C. F. did not seek to file an interlocutory appeal by permission. Furthermore, the trial court did not state in its order that a “substantial issue of jurisdiction is presented.” Thus, we are obliged to quash this appeal as it is interlocutory.

Appeal quashed.


text:
    449 A.2d 38
    COMMONWEALTH of Pennsylvania v. Darrell EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1982.
    Filed Aug. 6, 1982.

      John H. Corbett, Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   BROSKY, Judge:

Appellant was tried without a jury and convicted of possessing a controlled substance, possessing a controlled substance with intent to deliver, and delivery of a controlled substance. He was sentenced to a term of one and one-half to five years imprisonment on the delivery count; that sentence was suspended and appellant was placed on probation for five years. He was ordered to pay costs, a fine, and to repay the money used by the police to purchase the controlled substance from him. Upon payment of the costs, sentence was suspended as to the remaining counts. Post-trial motions were denied and this appeal followed. The sole issue before us is whether the possession counts merged with the delivery count. We find that they do and therefore reverse the judgment of sentence as to the possession counts.

Appellant argues that both the possession and possession with intent to deliver counts should be seen as merged into the delivery count.

In Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 7, 8, 426 A.2d 674, 677 (1980), we explained (citing cases):

“It is well established that for two crimes to merge, one must ‘necessarily involve’ the other.... The true test of whether one criminal offense has merged into another . . . is whether one crime necessarily involves another, as for example, rape involves fornication, and robbery involves both assault and larceny.... Two crimes may be successive steps in one crime and therefore merge. . . . ” (emphasis in original)

Delivery necessarily includes possession with the intent to deliver and possession with the intent to deliver clearly includes possession. The charges are therefore merged for sentencing purposes. See 35 P.S. § 780-113(a)(30). See also Commonwealth v. Williams, 219 Pa.Super. 304, 279 A.2d 303 (1971), where possession and sale offenses were held to merge and Commonwealth v. Everett, 290 Pa.Super. 344, 434 A.2d 785 (1981), in which possession and possession with intent to deliver were found to merge.

A new trial is not, however, the proper remedy. Instead, we will vacate the suspended sentence as to the possession and possession with intent to deliver charges. See Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979); Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981).

Suspended sentence as to the possession and possession with intent to deliver counts vacated. Sentence affirmed as to the delivery conviction.

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(30).

      . Although appellant did not raise the issue as to the possession charge below, we will not treat it as having been waived. See: Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979).