text:
    554 A.2d 112
    COMMONWEALTH of Pennsylvania v. Reginald HUNTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 21, 1988.
    Filed Feb. 14, 1989.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for terroristic threats, rape, burglary, theft by unlawful taking, simple assault and indecent assault. Appellant contends that trial counsel was ineffective for (1) moving for a mistrial; (2) failing to consult him prior to moving for a mistrial; (3) failing to urge his discharge on double jeopardy grounds prior to his second trial; and (4) failing to argue at the suppression hearing that appellant’s mother should not have served as an “interested adult” because she had a conflict of interest. We disagree, and for the reasons that follow, we affirm the judgment of sentence.

On February 3, 1983, appellant was arrested and charged with terroristic threats, 18 Pa.C.S.A. § 2706, rape, id. § 3121, burglary, id. § 3502, theft by unlawful taking, id. § 3921, simple assault, id. § 2701, and indecent assault, id. § 3126. Appellant filed a motion to suppress, which was denied by the court below. The jury was sworn on March 13, 1984 and the trial began. On March 16, while the jury was deliberating, a juror failed to appear because of illness, and the court granted a mistrial upon motion of appellant.

The Commonwealth then elected to retry appellant. On July 9,1984, appellant again filed a motion to suppress, and the court denied the motion. After a jury trial, appellant was found guilty of each of the charges. Post-verdict motions were filed and denied. Appellant was sentenced to an aggregate term of imprisonment of nine-and-one-half-to-nineteen years. Thereafter, appellant filed an appeal with this Court, but his appeal was dismissed for failure to file a brief. Represented by new counsel, appellant sought relief under the Post Conviction Hearing Act (PCHA), §§ 42 Pa.C. S.A. 9541-51 (repealed). On June 22, 1988, the court below granted appellant the right to appeal nunc pro tunc. This appeal followed.

Because appellant’s first two contentions are closely intertwined, they will be taken together. Appellant argues that trial counsel was ineffective for (1) moving for a mistrial;- and (2) failing to consult appellant prior to moving for a mistrial. The determination whether counsel rendered ineffective assistance is reached through a two-prong test. First, we must ascertain whether the issues underlying the claims of ineffectiveness have arguable merit. See Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. See Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant’s claims do have arguable merit, we must determine whether the “course chosen by counsel had some reasonable basis designed to serve the best interests of his [or her] client.” Commonwealth v. Buehl, 510 Pa. at 378, 508 A.2d at 1174. If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. See Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987). For this purpose, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, 515 Pa. at 159, 527 A.2d at 976-77. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. at 2064.

In this case, because no evidentiary hearing on appellant’s ineffectiveness claims has been held, we must determine whether they have arguable merit and whether appellant has been prejudiced. If we conclude that both of the foregoing requirements have been satisfied, we will remand the case for an evidentiary hearing to determine whether counsel had a reasonable basis for his actions. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985).

The initial step in our analysis is to determine whether appellant’s underlying contentions have arguable merit. The Double Jeopardy Clauses of both the United States and Pennsylvania constitutions serve three distinct objectives: “the protection of the integrity of a final judgment, the prohibition against multiple prosecutions even where no final determination of guilt has been made and the proscription against multiple punishments for the same offense,” Commonwealth v. Zoller, 507 Pa. 344, 349, 490 A.2d 394, 396 (1985), rev’d sub nom. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986).

Underlying this constitutional safeguard is the belief that ‘the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him [or her] to embarrassment, expense and ordeal and compelling him [or her] to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’

United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957)). The prohibition against double jeopardy, however, does not necessarily bar retrial of an accused when an earlier proceeding is terminated prior to judgment. See Commonwealth v. Mitchell, 488 Pa. 75, 78, 410 A.2d 1232, 1233-34 (1980). Our courts long have held that, when a mistrial is ordered, retrials are limited to cases in which (1) the court, over the defendant’s objection, declares a mistrial on the ground of manifest necessity or (2) the defendant consents to or requests the mistrial. See e.g., Commonwealth v. Mehmeti, 501 Pa. 589, 592, 462 A.2d 657, 659 (1983) ; Commonwealth v. Mitchell, 488 Pa. at 78, 410 A.2d at 1234; Commonwealth v. Bolden, 472 Pa. 602, 626, 373 A.2d 90, 101 (1977) (plurality); Commonwealth v. Wideman, 453 Pa. 119, 122, 306 A.2d 894, 895 (1973); Commonwealth v. Smith, 324 Pa.Super. 156, 160, 471 A.2d 510, 512 (1984) ; Commonwealth v. Perrin, 272 Pa.Super. 24, 28, 414 A.2d 650, 652 (1979); Pa.R.Crim.P. 1118(b).

It now is settled law that when a jury is discharged before reaching a verdict, and without defense consent, retrial is permissible if the discharge was manifestly necessary. See Commonwealth v. Campitelli, 347 Pa.Super. 615, 618, 500 A.2d 1228, 1229 (1985); Commonwealth v. Smith, 324 Pa.Super. at 160, 471 A.2d at 512. “ ‘Manifest necessity’ is the test for appellate review of the trial judge’s exercise of his discretion in declaring a mistrial without defendant’s consent.” Commonwealth v. Smith, 324 Pa. Super. at 160, 471 A.2d at 512. The most often cited description of this test was related by Justice Story, as follows:

The law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is manifest necessity for the act, or the ends of justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.

United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824) (quoted in Commonwealth v. Manley, 252 Pa.Super. 77, 85-86, 380 A.2d 1290, 1294 (1977), vacated on other grounds, 491 Pa. 461, 421 A.2d 636 (1980)). Circumstances in which retrial was justified by manifest necessity include “jury deadlock, jury bias and illness of the judge or jury.” Commonwealth v. Bolden, 472 Pa. at 638, 373 A.2d at 107; see, e.g., Commonwealth v. Mehmeti, 501 Pa. at 592, 462 A.2d at 659-60 (1983) (jury deadlock); Commonwealth v. Manley, 252 Pa.Super. at 86, 380 A.2d at 1294 (illness of judge). We note, however, that “the determination whether the trial court’s decision to abort a trial was ‘dictated’ by manifest necessity does not lend itself to rigid rules and each case must ‘turn on the particular facts.’ ” Commonwealth v. Bolden, 472 Pa. at 638, 373 A.2d at 107 (quoting Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973)).

In the second case, when a defendant moves for a mistrial, the request ordinarily is “assumed to remove any barrier to reprosecution, ‘even if the defendant’s motion is necessitated by prosecutorial or judicial error.’ ” Commonwealth v. Bolden, 472 Pa. at 638, 373 A.2d at 107 (quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality)); accord Commonwealth v. McClain, 309 Pa.Super. 163, 168, 454 A.2d 1134, 1136 (1983). Until recently, we did recognize a range of exceptions to this general rule. See Commonwealth v. Simons, 514 Pa. 10, 15-16, 522 A.2d 537, 539-41 (1987). Under current law, however, double jeopardy will bar retrial only in “cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982) (plurality) (adopted in Commonwealth v. Simons, 514 Pa. at 16, 522 A.2d at 540-41).

In evaluating the double jeopardy implications of the grant of a mistrial on the motion of a defendant, we follow United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), in which the Court specifically held that the manifest necessity standard is inapplicable to such cases. Commonwealth v. Campitelli, 347 Pa.Super. at 618, 500 A.2d at 1229. A court instead must ascertain whether the misconduct “ 'was undertaken with the specific intent to precipitate a mistrial.’ ” Id. (emphasis in original) (quoting Commonwealth v. Simons, 342 Pa.Super. 281, 291, 492 A.2d 1119, 1125 (1985), affirmed, 514 Pa. 10, 522 A.2d 537 (1987)). Although analyzing misconduct in this context raises some practical difficulties, the standard set forth above has been described by our Supreme Court as “a manageable [one] which calls for the court simply to make a finding of fact by inferring the existence or non-existence of intent from objective facts and circumstances.” Commonwealth v. Simons, 514 Pa. at 15, 522 A.2d at 540 (paraphrasing Oregon v. Kennedy, 456 U.S. at 675, 102 S.Ct. at 2089).

Importantly, we note that an appeal raising the claim that appellant did not personally agree to counsel’s consent to or motion for a mistrial will be closely scrutinized. Generally, the decisions of counsel are binding on appellant, see Commonwealth ex rel. Bell v. Rundle, 420 Pa. 127, 216 A.2d 57, cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966), and in the absence of a timely on the record objection by appellant, see Commonwealth v. Owens, 299 Pa.Super. 1, 6-7, 445 A.2d 117, 119 (1982); Commonwealth v. Manley, 252 Pa.Super. at 85, 380 A.2d at 1294, or some credible evidence that appellant contemporaneously expressed dissatisfaction with counsel’s action, we will conclude that appellant acceded in counsel’s decision.

In this case, a mistrial was granted on motion of appellant’s counsel, and the manifest injustice standard, consequently, is inapplicable. See Commonwealth v. Campitelli, 347 Pa.Super. at 618, 500 A.2d at 1229. Double jeopardy, therefore, would bar appellant’s second trial only if his motion was necessitated by misconduct on the part of the judge or prosecutor “undertaken with the specific intent to precipitate a mistrial,” but appellant makes no allegations of prosecutorial misconduct. See id.

Stripped to its essential elements, appellant’s claim seems to be that because his prior counsel failed to consult him before moving for a mistrial, his second trial somehow should be barred by double jeopardy. At the outset, we note that we can find no authority to support appellant’s claim that counsel’s failure to consult his client prior to moving for a mistrial necessitates a discharge rather than a retrial. Further, we have scrutinized the .record and have found no indication that appellant timely objected to trial counsel’s decision. N.T. March 16,1984 at 2-3. Additionally, appellant has failed to present any evidence that trial counsel’s conduct did not then reflect appellant’s own desires. Without satisfaction by appellant of either of the above-stated conditions, we cannot infer that trial counsel’s decision to move for a mistrial did not represent appellant’s wishes. Accordingly, we conclude appellant’s first two claims of ineffectiveness have no arguable merit.

Appellant next argues that trial counsel was ineffective for failing to file a motion to dismiss the retrial on double jeopardy grounds. After a mistrial is declared and prior to commencement of the retrial, a defendant has a right to file a pre-trial motion to dismiss on the ground of double jeopardy. See, e.g., Commonwealth v. Lark, 330 Pa.Super. 225, 227, 479 A.2d 522, 523 (1984); Commonwealth v. Kresge, 317 Pa.Super. 405, 408-09, 464 A.2d 384, 386 (1983). An order denying such a motion is final and immediately appealable. See Commonwealth v. Marconi, 340 Pa.Super. 463, 468, 490 A.2d 871, 874 (1985); Commonwealth v. McClain, 309 Pa.Super. at 167 n. 1, 454 A.2d at 1136 n. 1; see also Pa.R.A.P. 311(a)(5). We already have concluded that the appellant’s underlying claim, that a retrial is barred on double jeopardy grounds, lacks arguable merit. Because counsel will not be deemed ineffective for failing to pursue a frivolous claim or strategy, see Commonwealth v. Parker, 503 Pa. at 341, 469 A.2d at 584, we conclude that appellant’s present claim also lacks arguable merit.

Appellant finally contends that counsel was ineffective for failing to argue at the suppression hearing that appellant’s mother should not have served as an “interested adult” because she had a conflict of interest. More precisely, appellant argues as follows:

Following appellant’s arrest he made a statement to police, specifically Officer Cullen of the Sex Crimes Unit. Since appellant was a juvenile at the time of his arrest, his mother was present for the Miranda warnings and his statement, and she signed the statement as well. Appellant’s mother was Florence Leonard. The victim, Ms. Iseley had married her [Florence Leonard’s] father well over 10 years prior to this assault. Thus, Ms. Leonard had a direct actual conflict of interest since she not only knew the victim but was her step daughter as well.

Brief for Appellant at 16.

Our Supreme Court, in Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984), announced the standard for ascertaining the admissibility of statements made by a juvenile:

The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of the circumstances analysis to all questions involving the waiver of rights and the voluntariness of confession made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given.

Id., 504 Pa. at 521, 475 A.2d at 1288. The Court highlighted the following factors as particularly relevant to this analysis: “the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.” Id.

Reviewing this case under the totality of the circumstances test, we note that appellant was two weeks shy of his eighteenth birthday when he was interviewed by the police. N.T. July 11, 1984 at 147-48, and he had completed tenth grade. N.T. July 9, 1984 at 52 (Transcript of hearing on Motion to Suppress). Additionally, appellant’s mother was present at the interview. Id. at 9-10. He was orally advised of his rights in the presence of his mother, id. at 10-12, and he appeared to understand them, id. at 12. Both appellant and his mother initialled the form on which the warnings also were written before appellant made a statement. Id. at 13-14; N.T. July 11, 1984 at 210-11. Appellant then waived his rights and made an exculpatory statement. N.T. July 11, 1984 at 214-18. Finally, both appellant and his mother read and signed each page of appellant’s statement, which had been recorded verbatim by the officer. Id. at 19; N.T. July 11, 1984 at 213.

Although appellant asserts that his mother had a conflict of interest disqualifying her from being an interested adult, he does not specifically state how this conflict of interest adversely affected him. Further, appellant failed to establish at the suppression hearing or at trial that his mother and step-grandmother had the kind of relationship that would have resulted in a conflict of interest, and we decline to conclude that the existence of the filial relationship of step-mother and step-daughter would cause a per se conflict of interest in these circumstances. Moreover, appellant’s mother did testify on his behalf at both the suppression hearing, id. at 55-60, and the trial, N.T. July 11, 1984 at 19-23. Finally, we note that even if appellant’s mother was not an interested adult, that would be just one factor in the Williams analysis, and would not by itself require suppression of the statement. Here, under the totality of the circumstances, we cannot conclude that appellant’s statement should have been suppressed. Accordingly, we conclude that appellant’s claim lacks arguable merit. Thus, for the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Specifically, appellant’s sentence was suspended on the charges of terroristic threats, theft by unlawful taking, simple assault, and indecent assault. He was sentenced to a term of imprisonment of six-and-one-half-to-thirteen years for rape and three-to-six years for burglary.

      . The PCHA has been modified in part, repealed in part, and renamed the Post Conviction Relief Act (PCRA) by the Act of April 13, 1988, 42 Pa.C.S.A. §§ 9541-9546. The new provision applies to all actions for collateral relief instituted on or after the effective date. Appellant’s petition was filed before the effective date of the PCRA.

      . U.S. Const, amend. V. The double jeopardy clause of the fifth amendment is applicable to the states through the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Pa. Const, art. 1, § 10. Pennsylvania’s Double Jeopardy Clause has been interpreted as coextensive with that of the fifth amendment because of "identical textual and policy considerations.” Commonwealth v. Simons, 514 Pa. 10, 14, 522 A.2d 537, 540 (1987).

      . Presumably, appellant’s alternative to a second trial would have been to continue the first trial with less than a full complement of jurors. Under Pa.R.Crim.P. 1103, a defendant may agree, with the consent of his attorney, to be tried by a jury of no fewer than six members. Counsel for appellant, however, was unwilling to proceed with an eleven member jury, and appellant did not object to counsel’s decision. N.T. March 16, 1984 at 2.


source: Caselaw Access Project

author:
CAVANAUGH, Judge:
      ROWLEY, Judge,

license: Public Domain

text:
    554 A.2d 118
    COMMONWEALTH of Pennsylvania, Appellee, v. Donna Marie ELY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 8, 1988.
    Filed Feb. 10, 1989.

      Neil W. Price, Johnstown, for appellant.
    Before CAVANAUGH, ROWLEY and KELLY, JJ.
   CAVANAUGH, Judge:

This appeal of Donna Marie Ely is from judgment of sentence imposed following her conviction on four counts of endangering the welfare of children, three counts of indecent assault, three counts of indecent exposure, two counts of incest and three counts of corruption of minors.

The brief offered on behalf of appellant is insufficient in its attempt to cognizably raise the issues on which her appeal is based and to explain clearly the errors which she alleges were made by the lower court. Furthermore, it is defective in that it violates several provisions of the Pennsylvania Rules of Appellate Procedure. The brief fails to conform to the format prescribed by Rules 2101 and 2111; omits completely the contents required by Rules 2114 (Statement of Jurisdiction), 2115 (Order in Question) and 2117 (Statement of the Case); misplaces the section called for by Rule 2118 (Summary of Argument); and violates Rule 2119 since two of the arguments are simply brief restatements of the issues sought to be raised, and the body of the argument contains only two citations to authority without proper explanation of the principles for which the cases are cited.

Appellant raises the following issues on appeal:

1. Whether the Honorable Court properly applied the reasonable firmness standard of the duress defense to the particular circumstances and peculiar mentality of the Defendant.
2. Whether the contact described by the testimony of the children is sufficient to establish deviate sexual intercourse beyond a reasonable doubt.
3. Whether the mandatory sentencing provisions of Pa. 9718 [sic] when applied to a Defendant of limited mental capacity, is unconstitutional.
4. Whether the element provision in Pa. 3123(a) [sic] of the Crimes Code allowing the victim’s ages to replace the forcible compulsion element for involuntary deviate sexual intercourse with respect to a Defendant of limited mental capacity, is unconstitutional.

The appellant, whose conviction resulted in a sentence of ten to twenty years imprisonment, alleges that she was placed under duress by Allan Ross, the man with whom she lived when she committed the acts detailed in the criminal complaint brought against her. Appellant’s brief refers to her as “a mentally retarded adult with attendant personality disorders,” and depicts Ross as a man capable of coercing or intimidating her participation in the events described in the record. She also questions the sufficiency of the Commonwealth’s evidence to meet its burden of proof in light of contradictory testimony given by the children of appellant and Ross when questioned about the appellant’s participation in the incidents of sexual abuse. An examination of the record leads us to the conclusion that there may be some merit to appellant’s contentions, however, we do not feel that we can make a proper determination based on the brief submitted to this court by appellant’s counsel.

This court possesses discretionary authority to quash, dismiss or deny allowance of appeal based upon the substantial defects of appellant’s brief, Pa.R.A.P. 2101. However, dismissing the present appeal would place the burden of counsel’s errors entirely upon the appellant and would merely pave the way for appellant to petition the court for post-conviction relief. We believe less drastic means are available to correct the substantial defects of appellant’s brief which will not further delay our review of the merits of her appeal. Cf. Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987).

Therefore, based on the authority we possess under Pa.R. A.P. 902 and 2101, we direct that this case be remanded to the trial court for the appointment of new counsel for appellant, Donna Marie Ely, and we further order that new counsel be directed to submit a brief on behalf of appellant which is in compliance with all applicable procedural rules. The brief is to be filed in this court within forty-five (45) days of the date of appointment.

This court shall retain jurisdiction over this appeal and will fully review the case on its merits when the new appellant’s brief is submitted.

This case is remanded for proceedings not inconsistent with this opinion. Panel jurisdiction is relinquished, jurisdiction of the Court is retained. This case is to be assigned by the Prothonotary to another panel.

ROWLEY, J. files dissenting opinion.

ROWLEY, Judge,

dissenting:

I respectfully dissent.

I do not agree that appellate review is impossible on the present record. Although appellant’s brief is not a model of clarity, I believe that the issues raised therein are capable of determination on the record before us. In my opinion, the arguments presented by appellant are without merit for the reasons set forth below, and I would affirm the judgment of sentence.

In her first issue, appellant asserts that in evaluating her defense of duress, the trial court did not give sufficient consideration to her “particular circumstances and peculiar mentality” (Brief for Appellant at 7). Appellant describes herself further as “a mentally retarded adult with attendant personality disorders, isolated within the community without supportive relatives and struggling with social agencies perceived by her to be hostile,” who was “easy prey for an exploitative person such as the stronger, smarter co-Defendant [Ross]” (Brief for Appellant at 7).

The elements of the duress defense are set forth at 18 Pa.C.S.A. § 309(a), which provides that (Emphasis added.) In determining whether a person of “reasonable firmness” in the defendant’s situation would have been able to resist, the factfinder is to consider the seriousness of the crime the defendant was asked to commit; the nature and severity of the force used or threatened; alternative ways of escaping or averting that force; the defendant’s age, physical condition, and strength; and all other factors that might affect the reaction of a person of reasonable firmness in the same situation. Commonwealth v. Wiggins, 274 Pa.Super. 617, 622, 418 A.2d 577, 580 (1980). In its “Pa.R.A.P. No. 1925 Statement,” the trial court states that it took into account all of these considerations, as well as appellant’s intellectual handicap, personality disorders, home environment, and alleged involuntary intoxication. Thus, the court’s evaluation of the “reasonable firmness” standard met, and in fact exceeded, the requirements enumerated by this Court in Wiggins. Accordingly, I would conclude that appellant’s first issue is without merit.

It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness would have been unable to resist.

In her second issue, appellant contends that the evidence was insufficient to support her conviction on three counts of involuntary deviate sexual intercourse. Our scope of review on this issue was set forth in Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984):

In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Id., 324 Pa.Superior Ct. at 424, 471 A.2d at 1229-1230 (citations omitted).

The crux of appellant’s argument on this issue is that the testimony of the three children with whom appellant allegedly engaged in involuntary deviate sexual intercourse was so inconsistent that it cannot support appellant’s convictions. Appellant’s claim requires that the testimony of the children be examined in some detail. On direct examination, appellant’s seven-year-old daughter, J......., having already testified that Allan Ross had touched her on the genitals on the night of July 15, 1986, gave the following testimony concerning appellant:

Q: Did he [Ross] make anybody else touch you?
A: Yes.
Q: Who?
A: Billy [appellant’s nine-year-old son, who had been placed in foster care prior to this incident].
Q: Billy wasn’t there that night, is that right?
A: Yes.
Q: Well, who else touched you then?
A: Nobody.
Q: Nobody. Did your mother touch you that night?
A: I think she did.
Q: What did she touch you with?
A: Her hand.
Q: Did she touch you with anything other than her hand?
A: No.
Q: Did she touch you with her mouth in fact?
A: Yes.
Q: Now, you said that she hadn’t touched you with anything else then you said it was her mouth, did she touch you with her mouth?
A: Yes.
Q: Were you embarrassed to tell me that?
A: Yes.

N.T. at 115-16. On cross-examination J.......denied having done “anything bad” with appellant on the night in question (N.T. at 125). She also gave contradictory testimony as to whether appellant “ever [has] you do anything bad with your privates” (N.T. at 125-27). On redirect and recross-examination she confirmed that appellant had performed oral sex on her (N.T. at 129-30).

On direct examination, seven-year-old E......, daughter of Allan Ross, gave the following testimony concerning the events of July 15:

Q: [Ross] had [appellant] touch you?
A: Um Hum.
Q: Where did she touch you?
A: My private.
Q: What did she use to touch you on your private? A: Her private or her hand.
Q: Did she use anything else?
A: No. Not that I can remember.
Q: Did she ever touch your private with her mouth? A: A couple times.
Q: Was it that same time?
A: Yes.
Q: Did you see her touch anyone else’s private with her mouth?
A: J.„’s [appellant’s six-year-old son, J.....] and J.......’s
[appellant’s daughter].
Q: Now, when she was doing this stuff, was she upset or was she happy?
A: She was happy.

N.T. at 151. On cross-examination E......first testified that she could not remember whether appellant had done anything with anybody’s privates that night (N.T. at 160). Subsequently she said that appellant had done something bad with her privates, but she was uncertain as to the date (N.T. at 165-66). Following redirect and recross-examination, the trial judge asked E......whether she was positive that appellant had “put her mouth on your private part,” and E......answered “yes” (N.T. at 169).

J....., appellant’s six-year-old son, gave the following direct testimony concerning the incident on July 15:

Q: Did you touch your mom?
A: Yeah.
Q: What part of her body did you touch? You are moving your lips. Did you touch her private?
A: (Whereupon, the witness nodded affirmatively.)
Q: What part of your body did you touch it with?
A: My hands and my mouth.

N.T. at 191. Although J.....answered “no” on cross-examination when asked if appellant had ever made him touch her privates (N.T. at 199), the following exchange took place on redirect examination:

Q: Now, [defense counsel] was asking you whether your mom ever made you touch her privates. Allan made you touch her private, didn’t he?
A: (Whereupon, the witness nodded affirmatively.)
Q: And she didn’t try to stop you when that happened, did she?
A: No.
Q: And she didn’t seem to mind when you touched her privates did she?
A: No.

N.T. at 200.

Viewing this testimony in the light most favorable to the Commonwealth, I would hold that the testimony of the children is sufficient to prove beyond a reasonable doubt that appellant committed the offense of involuntary deviate sexual intercourse against each of the three children. Each child testified on direct examination to an incident of oral-genital sex with appellant, and each child subsequently confirmed his or her initial testimony. The responses of the children to the questions asked on cross-examination were admittedly confusing, but it cannot be assumed that children will testify with the clarity expected of adults, particularly when the substance of their testimony is likely to be perceived by them as shameful and embarrassing. Moreover, the credibility of the testimony is a matter to be determined by the trial court, who, as noted above, is free to believe all, part, or none of it. I would find, therefore, that appellant’s second issue is without merit.

Appellant’s third and fourth issues present challenges to the constitutionality of 42 Pa.C.S.A. § 9718 and 18 Pa.C.S.A. § 3123(5), respectively. The former statute prescribes a mandatory five-year sentence for anyone convicted of involuntary deviate sexual intercourse with a victim under the age of sixteen; the latter statute establishes that deviate sexual intercourse is involuntary, whether or not force is used, if the victim is under the age of sixteen. The basis of appellant’s constitutional attack, as I discern it from her brief, is that because she “is laboring under a very limited mental capacity” (Brief for Appellant at 6), application of the statutes in her case constitutes cruel and unusual punishment. Appellant cites no case law that supports her argument with respect to either of the statutes, and in fact this Court has already rejected a claim, which rested on somewhat different grounds, that 42 Pa.C.S.A. § 9718 violated the Eighth Amendment. Commonwealth v. Wildermuth, 347 Pa.Super. 640, 645, 501 A.2d 258, 261 (1985). The statutes in question carry a strong presumption of constitutionality, and “we will not strike down a statute unless its violation of the Constitution is so clear, palpable and plain as to preclude doubt or hesitation as to its validity.” Commonwealth v. Bannister, 345 Pa.Super. 178, 182, 497 A.2d 1362, 1364 (1985). In my opinion, appellant has not shown such a violation in the present case, and I would therefore hold that her third and fourth issues are meritless. Having found that all of appellant’s issues are without merit, I would affirm the judgment of sentence.

Even if I were able to agree that appellate review was impossible on the present record and briefs, I would not remand for a “second bite at the apple.” Appellant has available, in the form of a petition for post-conviction relief, an effective remedy for counsel’s perceived failing, and I see no advantage to be gained or salutary purpose to be served by remanding the case for the appointment of new counsel and the filing of a new brief on appellant’s behalf. Such a procedure is not “less drastic” than' established post-conviction procedures, but more so. In my opinion, such a procedure encourages counsel’s disregard for the Rules of Appellate Procedure. Courts, even more than litigants, should comply with applicable procedural rules.

Furthermore, if I were able to agree that remand and retention of jurisdiction by this Court were, for some reason, warranted in this case, I would still dissent from the majority’s decision that the case, upon its return to this Court, is to be assigned to another panel. This Court’s Internal Operating Procedures, effective April 1, 1988, do not contemplate or provide for such a procedure. Rule 447B of our Internal Operating Procedures sets forth the two options that are available to this Court if we decide, as the majority has done in this case, that a remand to the trial court is necessary. Where a case is remanded for procedural reasons, jurisdiction of the panel as well as of the Court is to be retained in order to “allow the appeal to retain the same appeal and journal numbers in the Superior Court and [to] enable the same panel which heard argument to render an ultimate decision without the necessity of reargument” (emphasis added). On the other hand, where the purpose of the remand is to enable the trial court to reach a new decision or to reconsider a prior one, the jurisdiction of the Court as well as of the panel should be relinquished.

Nowhere in our Internal Operating Procedures is there provision for the hybrid procedure that has been adopted by the majority in this case. Not only do the Procedures not authorize the practice of retaining Court jurisdiction while relinquishing panel jurisdiction, but the purpose of Rule 447B was in fact to eliminate that very practice. By refusing to retain the jurisdiction of the present panel, the majority has perpetuated the practice that Rule 447B was designed to eliminate.

Moreover, I do not share the majority’s assumption that appellant will be deprived of her appeal rights unless her case is assigned to a different panel, who will not only review the brief prepared on her behalf by newly appointed counsel, as would the present panel if its jurisdiction were retained, but will also hear argument by new counsel. Appellant’s case has already been argued to this Court by present counsel. In addition, there is no statutory or constitutional right to oral argument. This Court disposes of a great many cases without hearing argument, and Pa.R.A.P. 2315(a), discussing the time allotted for argument, states that “[o]ral argument is not a matter of right and will be permitted only to the extent necessary to enable the appellate court to acquire an understanding of the issues presented.” Retention of panel jurisdiction would allow appellant’s new brief to be considered by the members of this Court who are already familiar with the essential facts of her case, and the essential issues raised, and would thus facilitate the prompt disposition of her appeal. I perceive no conflict between preserving appellant’s appeal rights and adhering to this Court’s Internal Operating Procedures.

I suggest also that, although the majority characterizes the “defect” in the present case as being more serious than a mere procedural omission or error, the remedy which they propose will be of limited utility in correcting so serious a deficiency. In effect, the majority has concluded that present counsel was ineffective in presenting appellant’s case to this Court. At the same time, they have chosen to retain this Court’s jurisdiction and to limit new counsel’s efforts on appellant’s behalf to somehow preparing a better version of the same brief and argument that they have found impossible to understand. If present counsel has in fact been ineffective, it is not beyond the realm of possibility that new counsel will be able to identify additional issues, not raised and preserved by present counsel, which he or she considers meritorious. Some of these issues may be incapable of resolution without an evidentiary hearing. The hybrid solution adopted by the majority will bar the raising of such newly identified issues and the holding of an evidentiary hearing. If the brief filed by present counsel is indeed as deficient as the majority perceives it to be (a perception I do not share, as explained above), I do not see why it is desirable to tie the hands of newly appointed counsel and of the trial court by retaining this Court’s jurisdiction. The end result of the procedure devised by the majority may well be to postpone, until some future proceeding under the Post Conviction Belief Act, the ultimate resolution of appellant’s case.

      . The cited defects were not cured by appellant’s counsel’s oral argument. The Commonwealth did not appear at oral argument.

      . Judge Rowley in his dissent has argued that, if the majority is correct in remanding this case for the appointment of new counsel, then, under Superior Court’s Internal Operating Procedure 447B, the appeal should be retained and considered by the present panel in order that a decision may be made by the same panel without the necessity of reargument. We respectfully disagree. Internal Operating Procedure 447B contemplates that if a remand is made solely on procedural grounds, “i.e., for the filing of an opinion, the submission of a missing part of the record, etc., jurisdiction should be retained.” On the contrary, we find the defect in this case to be one more serious than filling a missing procedural segment of an otherwise effectively prosecuted appeal. For the reasons previously stated, we have found that the brief and oral argument on appeal would not enable us to make a proper determination. Since the case will require preparation and submission of an entire new brief, and since a decision by this court without the opportunity for argument on the part of new counsel would be a deprivation of appellant’s' appeal rights, we have adopted the prescribed procedure rather than that contemplated by Internal Operating Procedure 447B.

      . This statement was filed subsequent to the submission of, and is therefore not included in, appellant’s brief.

      . The notes of testimony from which these excerpts are taken are those of August 4, 1987.


author: DEL SOLE, Judge:

text:
    554 A.2d 124
    Richard DUTTON, an Incompetent by Mary G. DUTTON, Parent and Natural Guardian, Appellant, v. EDUCATORS MUTUAL LIFE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1988.
    Filed Feb. 14, 1989.

      Richard M. Serbin, Altoona, for appellant.
    John W. Heslop, Jr., Altoona, for appellee.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

This appeal seeks to resolve whether Section 203 of the No-fault Motor Vehicle Insurance Act requires the benefits of a group health insurance policy which contains a coordination of benefits clause to be paid to an employee where that individual has already received payment of medical bills by a no-fault carrier. We conclude that a clearly worded and conspicuously displayed coordination of benefits clause included in a health insurance policy must be enforced preventing duplicate recovery of medical expenses.

The underlying action was initiated after Appellant, Richard Dutton, sustained severe and permanent injuries as a result of a collision between an automobile he was driving and a tractor-trailer. At the time of the accident, Mr. Dutton was an insured under a policy issued by Nationwide Mutual Insurance Company in accordance with the provisions of the No-fault Act. The Nationwide policy did not contain an election making it’s benefits excess to any other valid and collectible health insurance benefits, as permitted by the No-fault Act. 40 P.S. 1009.203(b). When the accident occurred, Mr. Dutton was also an employee of Shaw Brothers Packing which maintained a group policy providing health insurance coverage issued by Appellee, Educators Mutual Life Insurance Company. Nationwide, pursuant to the terms of its policy paid various medical bills incurred by Mr. Dutton. However, Appellee denied Mr. Dutton’s claims for duplicate benefits relying upon a coordination of benefits provision contained in its policy. It required that any benefits payable “shall be coordinated with the benefits payable ... under such other Plan or Plans.” It further provided that the benefits paid by Educators “and any other Plans will be coordinated so that the aggregate amount paid will not exceed 100% of any necessary, reasonable and customary expenses____” The term “plan” was defined to include “benefits payable ... under ... any coverage provided or required by statute.” Based upon these facts the trial court was asked to rule on a Motion for Summary Judgment filed by Appellee.

The trial court initially determined that for purposes of summary judgment it would assume Mr. Dutton was an insured under his employer’s group health insurance plan, a factual issue contested by the parties. It went on to find that Section 203 of the No-fault Act permits double recovery in some instances, but that “the terms of the coordination of benefits clause are clear and unambiguous.” It concluded that “there can be no doubt that the clause precludes a double recovery.” Accordingly, summary judgment was awarded in Appellee’s favor. Mr. Dutton contests this ruling and maintains that he should be afforded the benefit of double recovery under the two policies of insurance. He asserts that the trial court failed to follow applicable statutory and case law which would permit him to recover duplicate medical expense benefits.

In support of this position Appellant cites to section 203(a) of the No-fault Act. It states:

If benefits other than no-fault benefits are provided to an individual through a program, group, contract or other arrangement for which some other person pays in whole or in part that would inure to the benefit of a victim or the survivor of a deceased victim injured as a result of an accident in the absence of no-fault benefits, then any reduction or savings in the direct or indirect cost to such person of such benefits resulting from the existence of no-fault benefits shall be returned to such individual or utilized for his benefit.

As noted by Appellant both case law and writers have interpreted Section 203 to permit double recovery. In Allstate v. Heffner, 491 Pa. 447, 421 A.2d 629, 635-36 (1980) the court remarked that “section 203 of the Act concerning Collateral Benefits permits victims to recover their medical expenses from Blue Cross and Blue Shield and then recover the same expenses a second time from the no-fault carrier.” (emphasis added). In a treatise entitled The Pennsylvania No-fault Motor Vehicle Insurance Act, edited by D. Shrager, it is stated:

The ‘benefits other than no-fault benefits’ referred to in Section 203(a) clearly envisions medical and hospitalization plans paid for in whole or in part by the victim’s employer. The section does not prevent the victim from realizing a double recovery. It simply requires that any savings which result from an offset provisions in any medical or hospitalization plan must be passed on to the individual employee.

D. Shrager, The Pennsylvania No-fault Motor Vehicle Insurance Act, 148 (1979).

These two sources were cited by this court in Steppling v. Pennsylvania Manufacturers Association Insurance Company, 328 Pa.Super. 419, 477 A.2d 515 (1984). The Steppling court held that an insured had a right to recover from her No-fault carrier, hospital expenses which had been previously paid by a private Blue Cross plan, since no election was made under Section 203(b) designating the No-fault policy as a policy providing excess coverage. Noting the absence of this election and the resulting absence of a reduction in premium payments, the court found “no bar in Section 203” to double recovery. Id., 328 Pa.Superior Ct. at 428, 477 A.2d at 519.

These citations are referred to by Appellant in support of his position that Section 203 permits double recovery “and is not altered by any coordination of benefits provision.” He submits that, although it cannot be determined from the Opinion, the Blue Cross policy in Steppling “certainly” would have contained a coordination of benefits provision since “such clauses are standard in nearly all health care insurance plans.”

First, we cannot assume, as does Appellant, that certain facts were present in the Steppling case which were not included in the Opinion. However, the presence or absence of a coordination of benefits clause in Steppling would not be crucial to the outcome of that case. The Steppling court was concerned with interpreting a No-fault auto insurance policy. Payments were already made under the Blue Cross policy and its interpretation was not at issue. The court noted that an election was not made under the No-fault policy making its coverage excess, the insured did not receive a reduction in premium payment as he would have had such an election been made, and Section 203 did not bar recovery. Presumably had such an election been made, and the insurer was in receipt of a reduced premium payment, the outcome of the decision would have been different. The Steppling court did not hold that Section 203 required double recovery when insurance is purchased from a source other than the no-fault carrier. Likewise, the Supreme Court in Allstate v. Heffner, supra, only stated that Section 203 permitted victims to recover twice. Similar language was used in the treatise cited above in reasoning that section 203 does not prevent a double recovery.

At issue in this case is not an interpretation of the No-fault policy. Payment has already been made under the provisions of that policy. Mr. Dutton is seeking to recover under the terms of a private health insurance policy. That policy includes a coordination of benefits provision. Had this policy not contained a coordination of benefits provision a different premium would likely have been charged to the employer, and duplicate recovery would be possible. Since this policy does contain a coordination of benefits provision it must be enforced as long as it does not violate the statutory provisions of the No-fault Act. We perceive no such violation.

Section 203 has been interpreted to “permit” and “not prevent” double recovery. As stated, it does not require duplicate benefits to be paid in a situation as is presently before us. Section 203(a) requires that when a medical or hospitalization plan is paid for by the employer, as it was in this case, savings which result from the existence of No-fault benefits are to be passed on to the employee. The record contains an affidavit in support of Appellee’s motion for Summary Judgment which provides that such savings are indirectly realized by the employee. It states that actual claims made in the past affected the rates charged and the dividends payable to the employer. It is contemplated that these benefits will be passed to the employee through “better wages, working conditions, and other benefits.” One can perceive that the absence of a coordination of benefits clause will result in greater claim payments with a resulting increase in premium charges and decrease of payable dividends. In short, the policy which Appellant’s employer purchased at a certain rate, included a coordination of benefits provision and this clear and unambiguous contract provision must be enforced since it does not violate the pronouncements of Section 203.

In addition to the legal argument regarding the interpretation of Section 203, Mr. Dutton also claims that summary judgment was inappropriate in this case because a genuine issue of material fact remained in dispute. Appellant submits that the record does not reveal whether he received notice of the coordination of benefits clause or a copy of the policy issued by Appellee. Although a problem of notice may arise when a copy of the policy or literature furnished to the individual employee fails to include a limitation which appears in a master group policy, See Group Insurance Policy-Exclusions-Notice, 6 ALR 4th 835 (1981), this type of dispute was not presented by Appellant to the trial court. In the Answer and New Matter filed by Appellee reference is made to the coordination of benefits provision which appears in their policy. In Mr. Dutton’s reply to New Matter he denies that this provision prohibits him from receiving the benefits he seeks, but he does not indicate that this provision is inapplicable because of any lack of notice. In fact, this allegation cannot be found in the record and is raised for the first time by Appellant in his Brief on appeal. Since this factual dispute Appellant now raises did not appear on the record, the trial court properly entered summary judgment. And, in ruling in favor of Appellee the trial court correctly concluded that the clear and “conspicuously displayed” contract provision requiring coordination of benefits found in the group insurance policy is enforceable.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . 40 P.S. § 1009.203


author: KELLY, Judge: OLSZEWSKI, Judge, HESTER, Judge,

text:
    554 A.2d 127
    COMMONWEALTH of Pennsylvania v. Danny William BRADLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 29, 1988.
    Filed Feb. 22, 1989.

      James A. Sposito, Scranton, for appellant.
    Jeffrey Bruce Snyder, District Attorney, Montrose, for Com., appellee.
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellant, Danny William Bradley, appeals from judgment of sentence entered on January 14, 1988. For the reasons which follow, we vacate the judgment of sentence and remand the matter back to the trial court for the filing of post-verdict motions nunc pro tunc.

On June 23, 1987, appellant was cited for driving an unregistered vehicle in violation of Section 1301(a) of the Pennsylvania Motor Vehicle Code. 75 Pa.C.S.A. § 1301(a). Appellant was initially found guilty by District Justice Barbara Obelenus and ordered to pay a fine. He appealed the summary conviction to the court of common pleas which held a de novo trial on the charge. Appellant was again found guilty and ordered to pay a fine in the amount of $1,890.00 by order of the trial court dated January 14, 1988.

Appellant appealed the judgment of sentence directly, without filing post-verdict motions, and now challenges the judgment of sentence on the following ground:

Whether the lower court abused its discretion by finding the appellant Danny William Bradley guilty of criminal charges by determining that he was not exempt from registering his vehicle in the Commonwealth of Pennsylvania.

(Appellant’s Brief at 3). Rather than reach the merits of this appeal, we vacate the judgment of sentence because of the trial court’s failure to comply with the Rules of Criminal Procedure.

Pennsylvania Rule of Appellate Procedure 302 provides that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. In order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice post-verdict motions are required. Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (en banc)', see also Pa.R.Crim.P. 86 & Comment; Pa.R.Crim.P. 1123. In the present case, no post-verdict motions were filed. We do not, however, find waiver on this basis because the trial court failed to inform appellant of his right to file post-verdict motions as required by Pa.R.Crim.P. 1123(c). Commonwealth v. Picker, 293 Pa. Super. 381, 439 A.2d 162 (1981); Commonwealth v. Koch, supra.

Additionally, we note that the trial court improperly pronounced verdict and sentence simultaneously by a written order made subsequent to the conclusion of the de novo trial. As a result, appellant was effectively precluded from filing post-verdict motions because post-verdict motions are to be filed within ten days of the entry of verdict and before sentencing. Although the proper procedure in this case would have been for appellant to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions, we shall not fault appellant for his failure to do so in light of the trial court’s own failure to appraise appellant of his right to file post-verdict motions. See Commonwealth v. Ivey, 307 Pa.Super. 274, 453 A.2d 349 (1982); Commonwealth v. Picker, supra. Thus, we find that the failure to file post-verdict motions is excused.

The effective denial of an opportunity to have post-verdict motions considered is not rendered harmless by the filing of a Pa.R.A.P. 1925(b) statement and a Pa.R.A.P. 1925(a) opinion. As this Court stated in Commonwealth v. Picker, supra:

This, however helpful, is certainly not an adequate substitute for the filing of post-verdict motions because the latter ask the lower court to reconsider its decision in light of alleged errors whereas the former simply requires the court to justify and articulate the reasons for its decision. This distinction is crucial in light of the fact that one of the main purposes for requiring post-verdict motions is to give the lower court an opportunity to correct asserted errors at that early stage without necessitating the expenditure of time and judicial energy in taking a costly appeal to the appellate courts. See Commonwealth v. Koch, 288 Pa.Superior Ct. at 296, 431 A.2d at 1055. In Koch, we stated that ‘[t]he purpose of such motions is twofold: (1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review. Commonwealth v. Kinsey, 249 Pa.Superior Ct. 1, 375 A.2d 727 (1977).’ While a concise statement of matters complained of on appeal may narrow the issues for review, it does not allow the lower court the opportunity to correct its errors because the notice of appeal has already been filed and the lower court is thereby divested of jurisdiction to act further on the case. Pa.R.App.P. 1701(a).

439 A.2d at 163-4 (emphasis in original); see also Commonwealth v. Ivey, supra, 453 A.2d at 350.

Finally, we note that the complex issue raised by appellant in its brief was summarily dismissed by the trial court in one sentence. The trial court did not articulate any reasons for its decisions, nor did it direct this Court to any part of the record where a more complete analysis was set forth. See Pa.R.A.P. 1925(a). The deficiency in this respect, however, is rendered moot by our decision that post-verdict motions nunc pro tunc must be permitted.

Accordingly, the judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc within ten days of the filing of this order. Jurisdiction is relinquished.

OLSZEWSKI and HESTER, JJ., concur.

OLSZEWSKI, Judge,

concurring:

I agree with the disposition reached by the panel in this case but write separately to emphasize that we are extremely mindful of the problems of the trial judge who, when confronted with a substantial summary conviction list, must, pursuant to Pa.R.Crim.P. 1123(c), advise each defendant of his right to file post-verdict motions, and consequently reschedule sentencing of each defendant pending disposition of these motions. We have no alternative, however, but to follow Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987), which holds that the requirements of Rule 1123 must be observed.

The difficulty with the instant case is that defense counsel failed to file the appropriate motion for reconsideration of the sentence and instead immediately appealed the judgment of sentence. Had defense counsel filed a motion to reconsider sentence with the trial court, the need for the instant appeal may have been obviated.

In conclusion, we note that this is an area which merits special attention by the Pennsylvania Supreme Court or the Pennsylvania legislature. Consideration should be given to the trial judge who is forced, under current rules and practice, to reschedule for sentencing each defendant who wishes to file post-verdict motions. A trial judge faced with a docket crowded with summary convictions would be able to dispose of these cases more expeditiously if he were permitted to sentence defendant directly following the verdict, with both the verdict and judgment of sentence being subject to challenge by defendant thereafter.

HESTER, Judge,

concurring:

The disposition of this appeal is controlled by this Court’s opinion in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987), which mandates that the provisions of Rule 1122 of the Pa.R.Crim.P. be followed by the courts of common pleas in the disposition of appeals from summary convictions. We have no choice but to remand to permit appellant to file post trial motions.


author: DEL SOLE, Judge: WIEAND, Judge,

text:
    554 A.2d 514
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard A. KEMMERER, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 8, 1988.
    Filed Jan. 3, 1989.

      Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellant.
    Lewis J. Bott, Assistant Public Defender, Hazleton, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

The Commonwealth takes this appeal from a trial court order which dismissed charges of second and third degree murder as well as voluntary manslaughter against Appellee, Kemmerer. Bound by prior case law, we affirm the trial court’s ruling.

After the beaten body of Robert S. Evans was discovered, Kemmerer was arrested and charged with criminal homicide, robbery and two counts of theft by unlawful taking or disposition. A jury trial was held and verdicts were returned which found Kemmerer guilty of robbery and two counts of theft by unlawful taking or disposition. The jury returned a not guilty verdict on charges of first degree murder and involuntary manslaughter; however, after deliberating for about 15 hours the jury was unable to reach a verdict on second degree murder, third degree murder and voluntary manslaughter. Pursuant to Kemmerer’s petition, the trial court ruled that the charges on which the jury was unable to return a verdict had to be dismissed as mandated by Pa.R.Crim.P. 1120(d). That Rule provides:

If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment.

The Supreme Court has interpreted Rule 1120(d) under nearly identical circumstances. In Commonwealth v. Roberts, 484 Pa. 500, 399 A.2d 404 (1979), the Appellee was found guilty by a jury of burglary and conspiracy. Verdicts of not guilty were returned on charges of murder in the first degree, murder in the third degree, voluntary manslaughter, and involuntary manslaughter. A mistrial was granted on the charge of murder in the second degree after it was reported that the jury was hopelessly deadlocked on that charge. The Commonwealth sought to retry the Appellee for second degree murder, but the Appellee’s petition to dismiss the charge was granted and the indictment quashed. As in this case, the Commonwealth appealed. The Supreme Court highlighted the following language of Rule 1120(d): "If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed.” It then held:

Therefore, Rule 1120(d), requires dismissal of the count charging murder in the second degree if murder in the second degree is a lesser and/or greater included offense of either murder in the first degree, murder in the third degree, voluntary manslaughter, or involuntary manslaughter. That it is is now beyond question____ The trial court thus correctly ordered the charge of murder in the second degree dismissed.

Id., 484 Pa. at 503, 399 A.2d at 405 (1979) (citations omitted.)

In the instant case the Commonwealth chooses to reject the holding of Roberts and instead sets forth it’s “position that the applicable law is that enunciated by Justice Nix, now Chief Justice Nix in the dissenting opinion of Commonwealth v. Roberts.” Appellant’s Brief at 5. Referring to this strong dissent which was joined by Justice Larsen, the Commonwealth urges this Court to change the law of this Commonwealth. The Superior Court, however, is powerless to alter the decisional law of our Supreme Court. Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978). We are bound by the decision in Roberts. Nevertheless, we do note that more recent cases have attempted to restrict the reading and application of Rule 1120(d).

Two years after its decision in Roberts the Supreme Court in an Opinion authored by Chief Justice Nix refused to apply Rule 1120(d) to a similar factual setting. In Commonwealth v. Zimmerman, 498 Pa. 112, 445 A.2d 92 (1981) the jury returned verdicts of not guilty as to murder of the first degree and simple assault but was unable to reach a verdict as to other charges. The Court of Common Pleas denied a motion to bar retrial on charges of murder in the third degree, voluntary and involuntary manslaughter. The defendant appealed that interlocutory order. The Supreme Court found that it had a limited scope of review relating only to constitutional questions of double jeopardy since the appeal was pursuant to Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977) and Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). It ruled that its consideration in that case would be “confined to those concerns which fall within the purview of the constitutionally guaranteed double jeopardy protections and [would] not affect any additional protection that arguably these rules [Rules 1120(d) and (e) ] may have conferred.” Commonwealth v. Zimmerman, supra 498 Pa. at 117, 445 A.2d at 94.

Justice Larsen, who as stated joined Chief Justice Nix’s dissent in Roberts, has authored a recent Opinion on this issue in Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). As in this case, the Commonwealth was the appellant in McCane and it sought to have reversed a trial court order which found that a retrial was barred by Rule 1120(d). In McCane the jury found the appellee guilty of driving under the influence but was unable to reach a verdict on a charge of homicide by vehicle while driving under the influence. The Supreme Court cited to a Superior Court decision and held: “We agree with the rationale of Vincent [Commonwealth v. Vincent, 345 Pa.Super. 173, 497 A.2d 1360 (1985) ] and hold that the provisions of Rule 1120(d) do not bar the retrial of appellee on the charge of homicide by vehicle while driving under the influence following a mistrial declared on that charge because of a deadlocked jury.” The Court looked to the purpose of Rule 1120(d) and went on to state: “A mistrial because a jury is unable to reach a verdict is the classic case where double jeopardy considerations do not prevent a retrial.” Commonwealth v. McCane, supra 517 Pa. at 497, 539 A.2d at 344. Notably, the decision in Commonwealth v. Roberts, was not cited by the McCane Court. Adding to the confusion in this area was the Supreme Court’s reliance on this court’s decision in Commonwealth v. Vincent, supra.

In Vincent, as in Commonwealth v. Zimmerman, supra, where the Court applied a limited scope of review and refused to consider the impact of Rule 1120(d) to the facts of the case, the appeal was taken by the defendant from an interlocutory order denying the defendant’s motion to dismiss charges. Although the court recognized the interlocutory nature of the appeal, {See: Commonwealth v. Vincent, supra at 497 A.2d 1360 n. 1) it did not apply the limited review utilized by the Supreme Court in Zimmerman. First it considered a double jeopardy claim and found that the case did not involve successive prosécutions for the same offense since at issue was a retrial following a mistrial caused by a deadlocked jury. This reasoning was applied to an argument presented under 18 Pa.C.S.A. § 109 and 110 and the court found that these statutes only barred successive prosecutions and did not apply to “the distinct problem of retrial following a deadlocked jury.” Id. 345 Pa.Super. at 176, 497 A.2d at 1362.

Despite the Supreme Court’s application of Vincent to its recent decision in McCane, Vincent only makes reference to Rule 1120 in a closing paragraph. And, despite the Supreme Court’s earlier pronouncement in Zimmerman that a limited review should be held in this type of interlocutory appeal, the Vincent court considered the protection afforded by Rule 1120 and found its provisions were not attempts to “change the substantive law as to when verdicts give rise to double jeopardy claims.” Id. Accordingly, it held that since no substantive basis for the double jeopardy claim was found, a claim under Rule 1120 could not be a basis for relief.

The above cases illustrate the difficulty in understanding the application of Rule 1120(d). However, as found by the trial court, the Supreme Court’s decision in Commonwealth v. Roberts, supra, is directly applicable to the facts of this case. Since we are unable to conclude that the Supreme Court has overruled its decision in Roberts, we find that the trial court was correct in applying its holding to the facts here and properly ruled that the charges for second and third degree murder and voluntary manslaughter must be dismissed.

ORDER AFFIRMED.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment, the holding of Commonwealth v. Roberts, 484 Pa. 500, 399 A.2d 404 (1979), has been overruled sub silentio by the Supreme Court of Pennsylvania in Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). Consistently with McCane, I would reverse and remand for trial on charges of second degree murder, third degree murder, and voluntary manslaughter.

Richard Kemmerer was tried before a jury which found him not guilty of murder of the first degree and involuntary manslaughter but guilty of robbery and two counts of theft. The jury was unable to agree upon whether he was guilty or not guilty of murder of the second degree, murder of the third degree, and voluntary manslaughter, and with respect to these charges a mistrial was declared by the trial court. Kemmerer then filed a petition to dismiss on grounds that a second trial was barred by Pa.R.Crim.P. 1120(d). The trial court agreed and dismissed the remaining charges. The Commonwealth appealed.

Pa.R.Crim.P. 1120(d) provides as follows:

(d) If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment, (emphasis added).

In Commonwealth v. Roberts, supra, a jury had found the defendant not guilty of first and third degree murder, voluntary manslaughter and involuntary manslaughter, but guilty of burglary and conspiracy. With respect to a charge of murder of the second degree, the jury was unable to agree upon a verdict. The trial court dismissed the second degree murder charge on the authority of Rule 1120(d), and the Supreme Court affirmed. Justice Nix (now Chief Justice), joined by Justice Larsen, wrote in strong dissent as follows:

Today’s result is totally without reasonable justification, and represents an unwarranted further extension of a doctrine (lesser included offenses) whose validity and utility in the area of homicide is seriously questionable in the first instance. If the jury had concluded that appellant was guilty of this degree of homicide yet not guilty of the “lesser” offenses of murder of the third degree and manslaughter, any possible inconsistency in the verdicts would have been ignored under our long-standing principle that inconsistent verdicts are permitted in this Commonwealth. Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975); Commonwealth v. Reed, 458 Pa. 8, 11 n. 2, 326 A.2d 356, 358 n. 2 (1974); Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971); Commonwealth v. Parrotto, 189 Pa.Super. 415, 150 A.2d 396 (1959); Commonwealth v. Kline, 107 Pa.Super. 594, 164 A. 124 (1933).
However, because the first jury could not agree as to this one count, although they were able to reach a conclusion on the others, and in spite of the fact that there was manifest necessity for discharging the jury when the court did, and where the motion for mistrial was agreed to by the defense, a majority of this Court now concludes that retrial is barred on the basis of a procedural rule [Pa.R.Crim.P. 1120(d)] which was never intended to accomplish such a result____
The majority specifically relies upon the [second sentence of Rule 1120(d) ] to hold that the finding of not guilty of the remaining four counts of criminal homicide bars retrial of the count charging murder of the second degree. They reached this conclusion ignoring the Comment to Rule 1120 which states:
____ (d) ____ serve[s] only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense, (emphasis added).
It is clear from the Comment’s reference to necessarily lesser included offenses that the purpose of the language relied upon in Rule 1120(d) was designed to avoid the successive prosecution prohibition of double jeopardy. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Where the offense in question is a necessary constituent of the greater or where the lesser offenses are necessary elements of the offense in question, so that that offense cannot be found to exist without a finding of the lesser offenses also, and the greater offense cannot properly be found to have been committed without a finding that the offense in question has been established, then it is appropriate to bar reprosecution upon an acquittal of either the lesser or the greater offense. This is all the prohibition against successive prosecution requires, in this context and this is all that the language of Rule 1120(d) intended to provide. Yet today, the majority ignores the crucial requirement of the Rule, i.e., that it must be a necessary constituent offense, thereby completely distorting the Rule and reaching a result which is inexplicable.

Commonwealth v. Roberts, supra, 484 Pa. at 506-508, 399 A.2d at 406-408 (Nix, J., dissenting) (footnotes omitted). Not only do I believe that Justice Nix’s opinion provided the better analysis of Rule 1120(d), but I also believe that the Supreme Court, in Commonwealth v. McCane, supra, has implicitly abandoned the approach followed by a majority of the Court in Roberts.

In Commonwealth v. McCane, supra, the defendant had been found guilty of driving while under the influence of a controlled substance, but the jury had been unable to agree upon a verdict on a charge of homicide by vehicle while driving under the influence of alcohol. After a mistrial had been declared on the latter charge, the trial court dismissed the same, holding that reprosecution on that charge was barred by Pa.R.Crim.P. 1120(d). On appeal, however, the Supreme Court reversed. With respect to Rule 1120(d), Justice Larsen, writing for the Court, said:

[T]he provisions of Rule 1120(d) do not bar the retrial of appellee on the charge of homicide by vehicle while driving under the influence following a mistrial declared on that charge because of a deadlocked jury. The comment to Rule 1120 points out that:
Sections (c), (d) and (e) serve only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense.
The purpose of Rule 1120(d) and specifically the language relied upon by the lower court and the appellee is to prevent “successive prosecutions” in violation of the prohibition against double jeopardy. A mistrial because a jury is unable to reach a verdict is the classic case where double jeopardy considerations do not prevent a retrial. United States v. Perez, [22 U.S.] 9 Wheat 579, 6 L.Ed. 165 (1824).

Commonwealth v. McCane, supra, 517 Pa. at 497, 539 A.2d at 344. See also: Commonwealth v. Vincent, 345 Pa.Super. 173, 497 A.2d 1360 (1985).

The reasoning of the Court in McCane is similar to the reasoning relied upon by the author of the dissenting opinion in Roberts. I can only conclude, therefore, that the reasoning of a majority of the Court in Roberts has now been replaced by the reasoning of the Court in McCane. Under this reasoning, Rule 1120(d) will be applied to prevent a second trial only where the offense on which the jury was unable to reach a verdict is necessarily included in the offense for which the defendant was acquitted or the offense for which the defendant was acquitted is an essential element of a greater offense on which the jury was unable to agree.

The defendant in this case was found not guilty of first degree murder, which is a willful, deliberate, premeditated killing. The jury also determined that defendant’s crime was not involuntary manslaughter. Neither of these findings necessarily excludes or is inconsistent with a potential finding that defendant is criminally liable for a killing committed during the course of robbery, or for a killing committed without a specific intent to kill. Similarly, the acquittals of first degree murder and involuntary manslaughter do not necessarily exclude a finding that defendant killed in the heat of passion or in the unreasonable belief that it was necessary to defend himself. In my judgment, therefore, the acquittals of defendant on charges of first degree murder and involuntary manslaughter do not act as a bar to a retrial of the remaining charges on which the jury was unable to agree. Pa.R.Crim.P. 1120(d) was intended only to give effect to the double jeopardy bar against successive prosecutions; and double jeopardy clearly is not implicated in a retrial of the charges of second and third degree murder and voluntary manslaughter in this case.

I would reverse and remand for trial on the charges of second and third degree murder and voluntary manslaughter.


author: HOFFMAN, Judge: TAMILIA, Judge, CAVANAUGH, Judge,

text:
    554 A.2d 519
    PHK-P, INC., d/b/a Clearview Mall Food Arena v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 23, Appellant. PPH-K, INC., d/b/a Alameda Food Arena v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 23, Appellant.
    Superior Court of Pennsylvania.-
    Argued Sept. 15, 1988.
    Filed Jan. 5, 1989.
    Reargument Denied March 13, 1989.

      Andrew J. Leger, Pittsburgh, for appellant (at 39 and 97).
    Daniel W. Cooper, Pittsburgh, for appellees (at 39 and 97).
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are consolidated appeals from orders granting preliminary injunctions enjoining appellant union from conducting rallies upon or near appellees’ premises and limiting the number of informational pickets to no more than six at any one time at or on the premises of appellees’ stores. Appellant contends that the lower court erroneously issued injunctions by failing to comply with the strict requirements of the Labor Anti-Injunction Act, 43 Pa.S.A. § 206a et seq., and alleges that it is entitled to its legal costs and reasonable attorney fees. For the reasons set forth below, we reverse the orders of the lower court and remand for proceedings consistent with this opinion.

Appellees are corporations that own and operate two supermarket facilities within two separate Butler County shopping complexes. Both stores exclusively employ only non-union personnel. Since September 8, 1987, the United Food and Commercial Workers Union, Local 23, has conducted informational picketing at the entrance of the stores by placing four pickets at each location. The union established the picket lines for the purpose of alerting the public to appellees’ non-union policies. On December 7, 1987, the union posted and circulated a flyer advertising that rallies would be held on the premises of both markets on December 12, 1987. In response, appellees filed a complaint in equity seeking to enjoin the rallies and requesting that the court restrict the number of pickets on each line to no more than six persons. Following a hearing, the court issued an order enjoining the proposed rallies from being conducted and limiting the number of pickets to no more than six per store. This appeal followed.

Appellant contends that because the lower court failed to follow the requirements of the Labor Anti-Injunction Act, the injunction was improvidently granted. Appellant argues that at the hearing below, appellees did not produce any evidence that would fulfill the requirements for issuance of an injunction under the Act. Appellant further alleges that because the court failed to comply with the requirements of the Act, the court lacked the statutory basis to issue the injunction. We agree.

The standard of review of an order denying or granting a preliminary injunction is well-established. The focus of this Court’s review is to examine the record to determine if reasonable grounds existed for the court’s action below. Coatesville Development Company v. United Food Workers, 374 Pa.Super. 330, 337, 542 A.2d 1380, 1384 (1988) (en banc). A preliminary injunction is an extraordinary remedy and in order to sustain a preliminary injunction, it must be shown that the plaintiff has established a clear right to the relief sought. Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 479, 522 A.2d 1129, 1131 (1987). “Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was misapplied will we interfere with the decision of the chancellor.” Coatesville Development Company v. United Food Workers, 374 Pa.Super. at 337, 542 A.2d at 1384 (citations omitted).

At the outset we note that labor picketing, when free from coercion, intimidation, and violence, has been recognized as a form of assembly and free speech, and has been afforded the protection of both the Federal, and State Constitutions. See U.S. Const.Amend. I, and PA. Const, art. I, § 7. See also Frankel-Warwick Ltd. v. Local 274, 334 Pa.Super. 47, 51, 482 A.2d 1073, 1075 (1984); Consolidation Coal Company v. District 5, United Mine Workers of America, 336 Pa.Super. 354, 372, 485 A.2d 1118, 1127 (1984). To establish a picket line and to encourage the public to honor and participate in it is a lawful exercise of one’s first amendment rights. Solvent Machinery v. Teamsters Local No. 115, 343 Pa.Super. 505, 508 n. 1, 495 A.2d 579, 580 n. 1 (1985).

In accordance with the foregoing principles, the Labor Anti-Injunction Act, a comprehensive body of law, was enacted by the Pennsylvania Legislature for the purpose of establishing a blanket of protection for the unorganized laborer against the chilling effects of the corporate world. 43 Pa.S.A. § 206b. In order to facilitate work environments “free from the interference, restraint or coercion of employers of labor”, the legislature placed limitations on the jurisdiction of the courts to grant injunctive relief in matters involving labor disputes. 43 Pa.S.A. § 206a; See also Locust Club v. Hotel & Club Employees’ Union, 397 Pa. 357, 360, 155 A.2d 27, 29 (1959). Section 206d of the Act provides in relevant part:

No court of this Commonwealth shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case included within this act, except in strict conformity with the provisions of this act, nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this act.

43 Pa.S.A. § 206d (emphasis added). Thus, the Act is deeply rooted in principles of public policy favoring an employee’s right to “exercise actual liberty of contract and to protect his [or her] freedom of labor.” 43 Pa.S.A. § 206a. See Locust Club v. Hotel & Club Employees Union, 397 Pa. at 360, 155 A.2d at 29.

The Act is applicable to situations that concern or grow out of labor disputes between persons engaged in a single industry, trade, craft, or occupation or who have direct or indirect interests therein. 43 Pa.S.A. § 206c. With limited exceptions, the Act provides that a court is without jurisdiction to enter a preliminary injunction enjoining picketing activity growing out of a labor dispute. The exceptions under which injunctive relief may be granted are set forth in Section 206i of the Act and provide that before issuing an injunction the court must find:

(a) That unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained, but no temporary or permanent injunction or temporary restraining order shall be issued on account of any threat or unlawful act, excepting against the person or persons, association or organization, making the threat or committing the unlawful act, or actually authorizing or ratifying the same after actual knowledge thereof.
(b) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted.
(c) That, as to each item of relief granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by granting of relief.
(d) That no item of relief granted is relief which is prohibited under section six of this act.
(e) That complainant has no adequate remedy at law; and
(f) That the public officers charged with the duty to protect complainant’s property are unable to furnish adequate protection.

43 P.S. § 206i. See also DeWilde v. Scranton Building Trades and Construction Council, 343 Pa. 224, 228, 22 A.2d 897, 899-900 (1941) (absent court’s compliance with Act’s requirements, court is without power to enjoin picketing).

In Solvent Machinery v. Teamsters Local No. 115, 343 Pa.Super. 505, 495 A.2d 579 (1985), this court was presented with the issue of whether the Labor Anti-Injunction Act conferred jurisdiction upon the trial court to issue an order enjoining picketing arising from a labor dispute. Id., 343 Pa.Superior Ct. at 508, 495 A.2d at 580. In Solvent Ma ehinery, the trial court, citing § 206d(d) of the Act, found that the Act was inapplicable to the case because the actions of the pickets constituted a “seizure” of the employer’s property and thus, the court had jurisdiction to enjoin the picket lines. Id. On appeal, Judge Del Sole, writing for the majority, held that without substantial evidence to indicate that the employees seized, held, damaged, or destroyed the employer’s property “with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining”, 43 Pa.S.A. § 206d, the court lacked jurisdiction to enjoin the labor picketing under the Act and thus, the court could not grant injunctive relief. Id., 343 Pa.Superior Ct. at 509, 495 A.2d at 580-81.

In the instant case, it is clear from our review of the record that because this matter fits within the definition of a “labor dispute”, as provided by § 206c(c), between persons engaged in a single industry who have direct or indirect interests in the matter, see id. at (a), this case is governed by the terms and conditions of the Labor Anti-Injunction Act, See 43 Pa.S.A. § 206d. Thus, the decision of the lower court must be analyzed under the applicable law and considered under the appropriate standard of review. See Coatesville Development Co. v. United Food Workers, 374 Pa.Super. at 337, 542 A.2d at 1384.

In accordance with the Act, a court is without jurisdiction to enjoin picketing which involves or has grown out of a labor dispute unless the court finds that: (1) unlawful acts have been threatened or committed or will be committed, (2) the employer’s property will sustain substantial and irreparable injury, (3) greater injury will be inflicted upon the employer by the denial of relief than will be inflicted upon labor by granting relief, (4) adequate police protection is unavailable, and (5) there exists no adequate remedy at law. See 43 Pa.S.A. § 206i(a), (b), (c), (e), (f). See also Solvent Machinery v. Teamsters Local No. 115, 343 Pa.Super. at 508, 495 A.2d at 580.

Here, the record reveals that the court failed to make the requisite findings of fact necessary to bestow jurisdiction upon it for the purpose of enjoining labor picketing. Following a hearing, the court issued the following relevant findings of facts:

5. The Court further finds that the offshoot of the request if successful could very well entail a great number of individuals congregated on private property for the purpose of protesting the activities of the owners of said property. Whereas the Court finds that it is very -proper and legal for such groups to have rallies and show their protest at any public place or any other property that they have a right to be on, the fact that this is called to a specific location being private property and would contemplate more than reasonable use of said private property or more than a reasonable type of trespass for the purposes of conveying their ideas to the management and to the public at large, the Court finds that this would be an improper allowance for the display of their wishes.
6. The leasehold premises of the plaintiff constitutes private property, and defendant has no lawful right to invite any and all persons to enter upon the premises of the plaintiff to conduct and participate in a rally which may well go beyond the bounds of reasonable demonstration allowable on private property.
7. Plaintiff has permitted a reasonable accommodation of any right to picket by defendant by permitting picketing upon its private leasehold premises by four persons engaged in such picketing activity and such accommodation of right does not require that plaintiff permit defendant to conduct a rally on its premises as threatened by defendant.

Lower Court Opinion, Findings of Fact Nos. 5-7, (emphasis added). It is evident from the court’s findings of fact that appellees’ property interests were the overriding concern in the court’s decision to issue the injunction. The statutory requirements of the Act, however, are not satisfied by the court’s attention to that one aspect of the situation. Without minimizing the importance of appellees’ property interests, the court was bound to consider whether all of the requirements of the Act had been met before issuing the injunction. Here, the court did not find that appellees’ property would be irreparably injured by the picketing nor did the court find that appellant had threatened or committed unlawful acts. On the contrary, the court found that appellant’s request to hold an assembly was a legal and permissible exercise of its first amendment rights. See Lower Court Opinion, Findings of Fact No. 5.

Additionally, our review of the record reveals that appellee did not offer evidence as to either the number of people that would attend the rallies or that access to appellee’s business would be hindered or affected by the rallies. N.T. December 11, 1987 at 20-21, 23-26, 50. Moreover, appellee failed to prove that adequate protection would not be able to be furnished by the local police department in accordance with the Act. Id. at 56. See 43 Pa.S.A. § 206i(f); Solvent Machinery v. Teamsters Local No. 115, 343 Pa.Super. at 509, 495 A.2d at 581.

In the absence of the court’s findings that appellees would suffer irreparable harm, or that they would suffer greater harm than appellant and that there would be inadequate police protection, the court improperly granted injunctive relief and in so doing exceeded its jurisdiction. See id. See also DeWilde v. Scranton Building Trades and Construction Council, 343 Pa. at 228-29, 22 A.2d at 899-900.

In addition to satisfy the specific conditions of the Act, the court’s decision was also contrary to the spirit of the Act and the Commonwealth’s longstanding recognition of the importance of protecting labor’s right to exercise free speech. See 43 Pa.S.A. § 206d. See also Locust Club v. Hotel & Club Employees’ Union, 397 Pa. at 360, 155 A.2d at 33, 34. The purpose of the Act is to facilitate the dialogue between management and labor and not to exclude potential communicants of the labor force from assembling and having their voices heard. See id.

After applying the standard of review for an order granting a preliminary injunction, see Coatesville Development Co. v. United Food Workers, 374 Pa.Super. at 337, 542 A.2d at 1384, we conclude that no reasonable grounds exist to support the court’s issuance of injunctions pursuant to the Act.

Appellant next contends that pursuant to § 206q of the Act, it is entitled to reasonable costs and expenses and requests that this case be remanded to the lower court for determination of attorney fees and costs.

Section 206q provides that:

Upon denial by the court of any injunctive relief sought in an action involving or growing out a labor dispute, the court shall order the complainant to pay reasonable costs and expenses of defending the suit and a reasonable counsel fee.

Because we have concluded that the injunction was improperly granted, we must remand this case for a determination of an award of attorney fees and reasonable costs and expenses incurred by appellant in defending this suit. See Solvent Machinery v. Teamsters Local No. 115, 343 Pa.Super. at 509, 495 A.2d at 581.

Accordingly, because both the record and the court’s findings of fact failed to establish the factual predicate under which a court may issue an injunction under Section 206i of the Labor Anti-Injunction Act, the lower court was without jurisdiction to issue the injunctions in these cases and the orders of the lower court are reversed. See id. See also DeWilde v. Scranton Building Trades and Construction Council, 343 Pa. at 228-29, 22 A.2d at 899-900 (1941). The case is remanded for a determination of attorney fees and costs.

Orders Reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

TAMILIA, J., files a concurring statement.

CAVANAUGH, J., files a dissenting opinion.

TAMILIA, Judge,

concurring statement:

Upon review of the Concurring and Dissenting Opinion by Cavanaugh, J., I continue to join Hoffman, J. Since our review on the merits determined the trial court improperly granted appellee’s complaint in equity seeking to enjoin appellant’s activity, we necessarily have ruled that injunctive relief should have been denied. In correcting the actions of the trial court and reversing the decree, we have, in effect, denied the injunction. I believe it would not fulfill the intent of the Labor Anti-Injunction Act to deny appellants a benefit of that Act, that is, to seek counsel fees and costs. I do not believe the dissent meets the issue by limiting section 206d of the Act to situations where the trial court denies the injunction. Here, it should have denied the injunction on the facts before it, and the union should not be denied a remedy because the trial court misconstrued the law. The majority Opinion properly provides the total relief to which appellants are entitled.

CAVANAUGH, Judge,

dissenting:

Although I agree with the majority’s disposition on the merits, I respectfully dissent from their determination that this case must be remanded for' an assessment of attorney fees, costs and expenses.

In support of its decision to remand, the majority cites § 206q of the Labor Anti-Injunction Act as well as Solvent Machinery v. Teamsters Local No. 115, 343 Pa.Super. at 509, 495 A.2d at 581. However, neither of these sources requires an appellate court to remand for a determination of fees and costs following the reversal of a lower court order granting an injunction.

Section 206q provides:

Upon denial by the court of any injunctive relief sought in an action involving or growing out of a labor dispute, the court shall order the complainant to pay reasonable costs and expenses of defending the suit and a reasonable counsel fee.

This section, however, must be read in conjunction with the definitional portion of the Labor Anti-Injunction Act, § 206c, which provides in relevant part:

When used in this act and for the purposes of this act — ...
(d) The term “court” includes every court of common pleas of the several counties of this Commonwealth, including the judge or judges thereof.

Reading these sections together, an assessment of fees is compulsory only when the lower court denies an injunction.

We are not presented with that situation in the case at bar. Rather, the lower court granted the injunction and we are reversing that order as a result of insufficient findings of fact. Therefore, there is no statutory mandate to remand this case for an award of fees and costs.

Additionally, there is no case law which requires a remand under these circumstances. Although the Solvent Machinery court decided to remand in a similar factual situation, there is no language in that opinion which compels us to follow the same course of action. That panel simply remanded “for proceedings consistent with the statute [43 Pa.S.A. § 206q] ...”

I believe that a reversal of the lower court order granting an injunction without a remand of the case for an award of fees and costs is consistent with the Labor Anti-Injunction Act. This statute only compels an assessment of fees and costs when the lower court denies the injunction.

Here, the lower court believed an injunction was proper; however, it did not make sufficient findings of fact to support its order.

Under these circumstances, I think it is improper to penalize the appellee by requiring him to pay appellant’s attorney fees, expenses and costs. There is no indication that the petition for injunction was frivolous. Appellee should not be punished for bringing a claim of arguable merit before the court. As the majority concludes otherwise, I respectfully dissent from that portion of the opinion.

      . § 206d Labor injunction to be in conformity with the act; application of the act
      No court of this Commonwealth shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case included within this act____ Provided, however, that this act shall not apply in any case—
      * * * * * *
      (d) Where in the course of a labor dispute as herein defined, an employe, or employes acting in concert, or a labor organization, or the members, officers, agents, or representatives of a labor organization or anyone acting for such organization, seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining.