text:
    453 A.2d 362
    Francis MATTHEWS v. JOHNS-MANVILLE CORP., et al. Josephine CERMINARA, Admx. of the Estate of Joseph Cerminara, Dec’d and Josephine Cerminara, in her own right, Appellee, v. JOHNS-MANVILLE CORP., et al.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1982.
    Filed Oct. 29, 1982.

      G. Daniel Bruch, Jr., Philadelphia, for Pacor, Inc.
    Joseph M. O’Neill, Philadelphia, for Armstrong Cork Company.
    James D. Coleman, Philadelphia, for Raybestos.
    John F. Ledwith, Philadelphia, for Keene Corp.
    Edward J. David, Philadelphia, for Pittsburgh-Corning. Brian D. Rosenthal, Philadelphia, for Garlock.
    William L. Owens, Philadelphia, for Owens-Corning.
    Marc P. Weingarten and Martin Greitzer, Philadelphia, for Francis Matthews.
    Andrew J. Trevelise, West Chester, for Celotex.
    Sue Ellen Smith, Philadelphia, for Eagle-Picher.
    Robert Paul, Philadelphia, for Cerminara.
    Robert B. Hochberg, Philadelphia, for Fibreboard.

      Randi Werner and Charles J. Kalinoski, Philadelphia, for GAF.
    Peter Samson and Andrew F. Susko, Philadelphia, for H.K. Porter and Southern Asbestos.
    Before SPAETH, CAVANAUGH and HOFFMAN, JJ.
   PER CURIAM:

These are motions to quash appeals from orders severing appellees’ asbestos-related personal injury claims against appellants from their claims against other defendants. Appellants argue that the orders are final and therefore appealable. We have concluded, however, that the orders are interlocutory and not appealable. The motions to quash will therefore be granted.

Appellee Francis Matthews and appellee Josephine Cerminara are plaintiffs in two of approximately 2,000 asbestos-related personal injury claims now pending in the Court of Common Pleas of Philadelphia County against multiple defendants engaged in the manufacture, production, and sale of asbestos products. During the past several months, Johns-Manville Corporation, a defendant in the actions brought by both appellees, and Unarco Industries, Inc., a defendant in the action brought by appellee Matthews, filed for reorganization under the Bankruptcy Code of 1980. This resulted in an automatic stay of appellees’ actions against Johns-Manville and Unarco. 11 U.S.C. § 362(a) (1979).

On September 24, 1982, the lower court entered an order granting appellee Matthews’s petition for severance of her claims against Johns-Manville and Unarco from her claims against appellants as the other defendants, thus enabling the trial of her case to proceed after some four years’ delay. The order specified that claims, cross-claims, and third-party claims against Johns-Manville and Unarco were severed from the principal action and stayed. None of the pending claims was dismissed.

On the same day, the lower court entered a pretrial order authorizing all plaintiffs in asbestos-related personal injury cases pending before the court to obtain severance of their claims against Johns-Manville and Unarco upon the filing of a praecipe. Appellee Cerminara availed herself of that procedure.

Appellants have appealed the lower court’s orders severing appellees’ claims against Johns-Manville and Unarco. They also applied to this court for a stay of the trial of appellees’ claims against them pending our decision on their appeals. Appellants did not seek permission to appeal the lower court’s orders of severance as interlocutory orders, pursuant to 42 Pa.C.S.A. § 702(b) (1981). Instead, they maintain that the lower court’s orders are not interlocutory but final.

We recognize that whether the lower court properly granted severance is a question of tremendous importance to the parties, not only in these cases but in the approximately two thousand other similar cases pending below. However, as we held in Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981) (en banc) (overruling Gurnick v. Government Employees Insurance Co., 278 Pa.Super. 437, 420 A.2d 620 (1980)), the fact that a question is of importance is not sufficient to confer jurisdiction on this court. Thus, given that appellants did not seek permission to appeal the lower court’s orders pursuant to 42 Pa.C.S.A. § 702(b) (1981), the only conceivable basis for our jurisdiction of these appeals is that the lower court’s orders are final within the meaning of Pa.R.App.P. 341.

An order is final within the meaning of Pa.R.App.P. 341 only if because of either its “technical effect” or its “practical ramifications” the litigant appealing the order is “out of court.” T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977) (en banc) (quoting Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1978)). Appellants do not maintain, nor could they, that the technical effect of the lower court’s orders of severance is to preclude them from proving the merits of any cross-claim or third-party claim for contribution and indemnity that they have filed against Johns-Manville and Unarco. By the terms of the lower court’s orders, all cross-claims and third-party claims may be heard against Johns-Manville and Unarco as soon as the stays imposed by operation of the bankruptcy proceedings are lifted.

Thus, the orders of severance are final only if because of the orders’ practical ramifications appellants are precluded from recovering contribution or indemnity from JohnsManville and Unarco or from maintaining their own defense. Appellants make several arguments that they are so precluded. Of their arguments, we think it necessary to discuss only three.

1

Appellants argue that the severance of Johns-Manville and Unarco from these actions will preclude them from recovering contribution from those companies under the Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S.A. §§ 8321-27 (1982) (contribution on pro rata basis), and 42 Pa.C.S.A. § 7102(b) (1982) (contribution on basis of apportioned damages). This argument seems to rest upon the premise that an adjudication that Johns-Manville and Unarco are jointly and severally liable, and therefore liable for contribution, will never occur unless appellees, in these actions, prove that they are jointly and severally liable. But we see no reason why appellants will not be able to have the issue of Johns-Manville’s and Unarco’s joint and several liability decided as an element of any action for contribution that they may elect to bring after the stays imposed by the bankruptcy proceedings are lifted. See Harger v. Caputo, 420 Pa. 528, 218 A.2d 108 (1966); Swartz v. Sunderland, 403 Pa. 222, 169 A.2d 289 (1961). Cf. Rau v. Manko, 341 Pa. 17, 17 A.2d 422 (1941) (If facts pleaded in original defendant’s third-party claim were sufficient to warrant a finding that other defendant was jointly and severally liable, first defendant could obtain contribution from the second); Fisher v. Diehl, 156 Pa.Super. 476, 40 A.2d 912 (1945) (Fact that plaintiff was precluded from bringing tort action against her spouse did not preclude defendant from bringing third-party contribution claim against plaintiff’s spouse); Pushnik v. Winky’s Drive-In Restaurants, 242 Pa.Super. 323, 363 A.2d 1291 (1976) (Additional defendants have right to prove that original defendant is liable for alleged injuries).

Appellants also argue that the orders granting severance will preclude them from maintaining an action for contribution and apportioned damages against Johns-Manville and Unarco. The statute authorizing contribution of apportioned damages states:

Recovery against joint defendant; contribution—Where recovery is allowed against more than one defendant, each defendant shall be liable for that portion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage may seek contribution.
42 Pa.C.S.A. § 7102(b) (1982).

Appellants argue that because of this provision, they may at the same time be held liable for injuries caused by JohnsManville or Unarco, but be unable to maintain contribution actions against Johns-Manville or Unarco. We fail to see how that could occur.

2

Appellants next argue that the orders granting severance will preclude them from defending on the ground that Johns-Manville or Unarco is wholly or partially responsible for the injuries of which appellees complain. But we do not read the orders as precluding appellants from introducing evidence of Johns-Manville’s or Unarco’s liability in their own defense. See Arnold v. Borbonus, 257 Pa.Super. 110, 118 n. 3, 390 A.2d 271, 274-75 n. 3 (1978) (SPAETH, J., concurring and dissenting). Any conclusions that the jury might draw as to the liability of Johns-Manville or Unarco would not be res judicata as to those companies, see Hanley v. Ryan, 87 Pa.Super. 6 (1926), but that has no bearing on appellants’ ability to defend themselves.

3

Appellants finally invoke the prospect of bankruptcy court orders discharging Johns-Manville and Unarco from their debts. It is true that if Johns-Manville and Unarco as debtors are discharged from any liability to which appellants’ claims for contribution and indemnity might subject them, appellants’ ability to recover on those claims will be limited. But that only shows that appellants are complaining of the practical ramifications of orders that may be entered in the bankruptcy court. Since those orders will be entered irrespective of whether the orders granting severance remain in effect, they are irrelevant to our inquiry whether the practical ramifications of the orders granting severance preclude appellants from recovering contribution or indemnity.

Since appellants have not presented us with any reason to believe that they will be precluded by the orders granting severance from recovering contribution or indemnity from Johns-Manville and Unarco or from maintaining their own defense, we hold that the orders are not final.

Appellees’ motions to quash are granted. Appellant’s application for a stay is dismissed as moot.

      . In alluding to 42 Pa.C.S.A. § 702(b), we do not suggest, either that if appellants had sought permission to appeal, the lower court should have certified its orders, or that if it had certified them, we should have granted permission to appeal.

      . See generally Smialek v. Chrysler Motors Corp., 290 Pa.Super. 496, 434 A.2d 1253 (1981); RESTATEMENT (SECOND) OF TORTS §§ 433A, 433B (1965).

      . We entertain the hypothesis that appellants might succeed in apportioning damages in these actions only for the sake of discussion. We note that the lower court has decided in another asbestosis case that the nature of the illness is not consistent with a causal apportionment of responsibility among multiple defendants. Swavely v. Johns-Manville Corp., No. 88 (123)—72, slip op. at 3-4 (Phila. Court of Common Pleas June 18, 1982).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    453 A.2d 365
    Superior Court of Pennsylvania.
    Raymond ROTKEWICZ, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION.
    Argued Nov. 4, 1982.
    Filed Dec. 17, 1982.
    Norman Blatt, Allentown, for appellant.
    Walter F. Froh, Harrisburg, for appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   OPINION

PER CURIAM:

This appeal is from an order sustaining appellee’s demurrer to appellant’s complaint in trespass and assumpsit. It will be transferred to the Commonwealth Court.

Appellant argues, inter alia, that the Department of Transportation has a duty to ensure that all registered motor vehicles are covered with proper no-fault insurance, and that without requiring proof of such coverage, it negligently issued a vehicle registration to the driver who injured appellant.

We think this case is within the jurisdiction of the Commonwealth Court, see 42 C.S.A. § 762(a)(1) and § 761(a)(l)(iii) and (iv), and that it should, accordingly, be heard there.

This appeal is transferred to the Commonwealth Court.


author: CAVANAUGH, Judge:

text:
    453 A.2d 598
    Charlotte G. MORGAN and Griffith Morgan, Appellants, v. John L. SBARBARO, Jr. M.D.
    Superior Court of Pennsylvania.
    Argued Nov. 6, 1981.
    Filed Nov. 12, 1982.
    Reargument Denied Jan. 11, 1983.

      Ronald E. Metter, Philadelphia, for appellants.
    Kenneth F. DeMarco, Philadelphia, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Mrs. Charlotte G. Morgan has been afflicted with rheumatoid arthritis since 1952. Since then she has undergone operations for a left knee arthroplasty in 1963, a right knee synovectomy in 1966, a left knee fusion in 1968 and a total right hip replacement in 1970, all before the incident out of which this medical malpractice action came about.

Sometime in 1973 her left hip also became very painful. Her internist referred her to a Dr. Gartland who felt and recommended that before the left hip surgery her right knee should be strengthened. However, Dr. Gartland did not perform knee surgery and her internist referred her to Dr. John L. Sbarbaro.

Dr. Sbarbaro performed a right knee arthoplasty, an operation which involves placing metal wedges in the knee bones, on May 21, 1973. An infection developed in the wound. Mrs. Morgan was discharged to home care from the hospital on June 13, 1973, but when the infection got worse she was readmitted on July 3,1973. Eventually, Dr. Sbarbaro informed Mrs. Morgan that the right knee needed fusion. The fusion was performed on July 24, 1973.

Mrs. Morgan and her husband commenced this medical malpractice action by Writ of Summons on August 1, 1975, more than two years after the fusion was performed.

At pre-trial conference the sole issue asserted by Mrs. Morgan was lack of informed consent based on the sole allegation that Dr. Sbarbaro had failed to warn her that a post-operative infection might result from the arthoplasty procedure and that such infection might require a right knee fusion.

The court below, Bullock, J., granted Dr. Sbarbaro’s motion for summary judgment holding that the two year statute of limitations on personal injury actions, 12 P.S. § 34, had run, reasoning pursuant to our decision in Anthony v. Kopper’s Co., Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980) that when the fusion was performed on July 24, 1973, Mrs. Morgan had all the necessary information to herald a possible tort, viz: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.

In this appeal, Mrs. Morgan contends that because she remained under Dr. Sbarbaro’s care until early 1974, having had the fusion pins removed at his office in September, 1973 and thereafter by telephone concerning draining from one of the pin canals, the statute of limitations should be tolled until she went to another physician in 1974. She asks that we adopt the doctrine of “continuing care” from other jurisdictions as a ground for tolling the statute of limitations in medical malpractice cases urging that the statute should not begin to run until such time as the physician patient relationship ends and the parties are “on a more equal footing.”

The plea that we adopt the continuing care doctrine and apply it to the facts of this case is the only ground asserted on appeal for avoidance of the statute of limitations defense. Any other argument is therefore abandoned and since we find the continuing care doctrine was not asserted and argued in the court below we find that it has been waived and the entry of summary judgment must therefore be affirmed.

After appellee filed her motion for summary judgment appellant responded and thereafter submitted a “Memorandum of Law Contra Motion for Summary Judgment.” No mention is made therein concerning adoption of the continuing care doctrine and the argument is couched in terms of the discovery rule. Nor is it asserted that the theory was advanced at that time. Judge Bullock in his opinion deals with the argument as made. Appellant, anticipating that there is a problem with waiver, states that her reply to new matter and the answer to defendant’s motion for summary judgment both raised the issue of the applicability of the continuing and exclusive care theory. We have examined these documents and find them wholly insufficient to avoid waiver. The pleadings simply state that appellant remained under the care of appellee until a period of time less than two years prior to the institution of suit. Certainly it is not the duty of the court to search out the pleadings in order to extract and formulate the assertion of an admittedly novel theory of law in our jurisdiction in the face of brief and argument which totally fail to bring the theory to the court’s attention.

The doctrine of waiver has become firmly entrenched in Pennsylvania law and it is clear that on appeal a new and different theory of relief may not be successfully advanced for the first time. The language of Justice Roberts in Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d 777, 779 (1975) is applicable:

Appellants are requesting this Court to review the decree on entirely different theories than they presented to the trial court. We will not do so. It is a fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court. See Altman v. Ryan, 435 Pa. 401, 406-07, 257 A.2d 583, 585 (1969); Abrams Will, 419 Pa. 92, 98, 213 A.2d 638, 641 (1965); Fisher v. Brick, 358 Pa. 260, 264, 56 A.2d 213, 215 (1948); Mayer v. Chelten Avenue Building Corp., 321 Pa. 193, 195, 183 A. 773 (1936). Since appellants have abandoned on appeal the theories that were presented to the trial court, they have failed to advance any reason requiring reversal of the decree.

See also, In re S.C., 280 Pa.Super. 539, 545, 421 A.2d 853, 856 (1980); Commonwealth v. After Six, Inc., 489 Pa. 69, 413 A.2d 1017 (1980); Miller & Son Paving, Inc. v. Wrightstown Township, 45 Pa.Commw. 34, 405 A.2d 568 (1979); Bethlehem Mines Corp. v. Workmen’s Compensation Appeal Board, 43 Pa.Commw. 454, 402 A.2d 718 (1979); Gibson v. Miller, 265 Pa.Super. 597, 402 A.2d 1033 (1979); Doner v. Jowitt & Rogers Co., 484 Pa. 496, 399 A.2d 402 (1979); Commonwealth v. DeMuro, 24 Pa.Commw. 480, 357 A.2d 270 (1976); Costigan v. Philadelphia Finance Department Employees Local 696, 462 Pa. 425, 341 A.2d 456 (1975).

Order affirmed.

      . Our Supreme Court has reversed our decision in Anthony v. Kopper’s, Inc., 496 Pa. 119, 436 A.2d 181 (1981) on other grounds. See also O’Brien v. Eli Lilly & Co., 668 F.2d 704 (3rd Cir.1981).


author: McEWEN, Judge:

text:
    453 A.2d 600
    COMMONWEALTH of Pennsylvania v. Curtis L. ANTHONY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1981.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Granted May 13, 1983.

      Brian J. O’Neill, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   McEWEN, Judge:

We here review the claims of an appellant who entered a negotiated plea of guilty to charges of third degree murder and robbery and was sentenced to a term of from ten to twenty years for murder of a storekeeper during an armed robbery and to a concurrent term of two and one-half to five years for the robbery. Appellant took no direct appeal but filed a petition for relief pursuant to the Post Conviction Hearing Act (hereinafter PCHA). The distinguished Philadelphia County Common Pleas Court Judge Edward J. Blake conducted hearings on the petition and denied the relief sought. We affirm.

The quite compelling brief of appellant poses the following issues in the Statement of Questions Involved:

Was the guilty plea colloquy defective?
Did the trial judge err in refusing to allow appellant to withdraw his guilty plea prior to sentencing?
Did appellant’s failure to file a petition to withdraw his guilty plea result in a waiver of his right to challenge the validity of this guilty plea under the Post-Conviction Hearing Act?
Was appellant denied the right to a direct appeal when trial counsel failed to file an appeal after he had told appellant that he would do so?

Since we have considered and will here discuss and rule upon the substantive issues presented by the first two questions, we need not discuss the latter two questions that relate to the rights of appellant to have the substantive questions studied in this appeal.

The record reveals that during the afternoon of August 29, 1975, Arthur Wilson, married and 70 years of age, was murdered in his shop at 2841 Girard Avenue, Philadelphia. Appellant, on March 1,1976, pleaded guilty to murder in the third degree and pleaded guilty to robbery before the learned Common Pleas Court Judge, now the distinguished Commonwealth Court Judge, Robert W. Williams, Jr. The Commonwealth, during that guilty plea hearing, provided a summary of the case to the court which included the advice that the partner of the murder victim was an eyewitness to the robbery and that this partner would testify that:

[0]n August 29, 1975 at approximately 2:30 p.m. he was co-owner with Mr. Arthur Wilson of the Robinson Clothing Store, 2841 West Girard Avenue.
At that time two individuals came into the store, one of which he would identify as the defendant. The defendant went to the counter and asked for a shirt. He was given a shirt in a cellophane wrapper. This defendant then pulled out what turned out to be a starter pistol and announced a holdup. The other defendant, which is Allan Smith, pulled out a gun and also participated in the holdup. The owner, Arthur Wilson, took his .25 calibre automatic and shot one round at the defendant, Allan Smith. Allan Smith then shot four times, one of which bullets caught Arthur Wilson in the chest, and that is the bullet wound from which he died.
The defendant was arrested on the 4th of September. Defendant gave a statement admitting his participation in the robbery of the store, and the fact that Allan Smith shot and killed the decedent. The defendant then tape recorded that statement.
Fingerprints were taken from the shirt in the cellophane wrapper which were matched and positively identified as the fingerprints of this defendant when he was arrested. (N.T. 2/27/76, pp. 24-26).

The imposition of sentence was continued so as to provide for the completion of a pre-sentence investigation report. While the court commenced a sentencing hearing on June 8, 1976, the actual imposition of sentence was further deferred until after the co-defendant had been sentenced. After a further hearing on July 7, 1976, judgment of sentence was imposed. It was not until ten months later that appellant initiated the instant PCHA proceedings.

I

Appellant contends the guilty plea colloquy did not include the statement that the verdict of the jury to convict must be unanimous. The record confirms the colloquy did not include such a statement. It is to be noted, however, that appellant does not assert either (1) that this omission caused him to enter the plea or (2) that his waiver of a jury trial was not a knowing and intelligent waiver.

The pertinent Pennsylvania Rules of Criminal Procedure are two, namely, Rule 319(a) and Rule 1101, the relevant parts of which provide:

Rule 319. Pleas and Plea Agreements.
(a) Generally. Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record. If the defendant shall refuse to plead, the court shall enter a plea of not guilty on the defendant’s behalf.
Rule 1101. Waiver of Jury Trial.
In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record.

Rule 319 establishes as a condition precedent to a guilty plea a determination by the trial judge that the plea of the defendant is tendered “voluntarily and understandingly”. Since the entry of a guilty plea posits a waiver by the defendant of his right to a jury trial, the trial judge must ascertain during the guilty plea colloquy whether the waiver by the defendant of his right to a trial by jury is, pursuant to the requirement of Rule 1101, a “knowing and intelligent waiver”.

The issue we here discuss is whether the omission of the unanimity statement from the colloquy is a per se defect which requires the case to be remanded to the Common Pleas Court for trial. It might be helpful to review the quite brief history of the contact of the Supreme Court with the colloquy upon the waiver of a jury trial. Rule 1101 was adopted in 1968 and while it has been amended, those amendments do not appear pertinent to this discussion.

The Supreme Court in a unanimous 1971 decision, Commonwealth v. Martin, 445 Pa. 49, 282 A.2d 241 (1971), affirmed the judgment of sentence after determining that, “the on-the-record colloquy at the time he [defendant] entered his plea reveals it was unquestionably voluntary and intelligent. The requisites of due process and Rule 319 of the Rules of Criminal Procedure, 19 P.S.A. were satisfied.” Id, 445 Pa. at 54-55, 282 A.2d at 244 (footnote omitted). While it is true the court refers to Rule 319, the requirement that a judge must determine that a guilty plea is “voluntary and understanding^ tendered”, the jury trial waiver eolioquy was included in the guilty plea colloquy, so that it is clear the Supreme Court determined not only that the guilty plea colloquy under Rule 319 was satisfactory and adequate but also determined that the waiver of the jury trial was a knowing and intelligent waiver. The opinion of the court quotes for a full one and one-half pages the colloquy employed by the court after an introductory paragraph that reads:

After a lengthy series of questions by the prosecuting attorney exploring the appellant’s understanding of his actions, the court proceeded as follows. This portion of the colloquy is set out in detail because of its commendable thoroughness. Id., 445 Pa. at 54 n. 2, 282 A.2d at 244 n. 2.

It is significant to note that this commendably thorough colloquy between the court and the defendant did not include any reference to the need of unanimity of a jury verdict to convict.

It was in 1973 that the Supreme Court in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), rejected a proposal that the court adopt a per se prophylactic rule reversing convictions for failure to comply with Rule 1101; instead the court indicated that where the waiver was proven to be a knowing and intelligent waiver, such a prophylactic rule is unnecessary. The court there did state there were three essential ingredients that are basic to a concept of a jury trial—the jury must be chosen from members of the community, the verdict must be unanimous and the accused must be allowed to participate in the selection of the jury panel—and concluded that the record did not justify a finding that there had been by that defendant a knowing and intelligent waiver. Justice Eagen concurred in the result while Chief Justice Jones dissented.

On March 23,1978, a majority opinion of four members of the court reviewed, in Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978), a jury trial waiver colloquy that made no reference to any of the three “essential ingredients of a jury trial” that the Court in Williams, supra, 454 Pa. at 373, 312 A.2d at 600, had declared as necessary for a jury trial waiver to be knowing and intelligent. The Morin majority ruled that the inadequacy of the colloquy was so complete that it would serve no purpose to remand the case to the trial court for an evidentiary hearing since the defect was such that a trial court could not rule the defendant had knowingly and intelligently waived the right to a jury trial. Chief Justice Eagen dissented and Justice Pomeroy filed a dissenting opinion, while Justice Packel did not participate in the decision.

Later that year, the Supreme Court issued two opinions on the same day, namely, November 18, 1978, in which that court declared, by a four-three margin in each case, that a defendant did not effectively waive his right to a jury trial even though the only omission was the failure by the court to inform the defendant that the verdict of the jury to convict had to be unanimous. Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978); Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978). It would seem that the Supreme Court by that slim majority in both cases had established as a per se rule that the three essential elements of Williams, supra, must be included in every jury trial waiver colloquy. Ward, supra; Greene, supra. Justice Pomeroy and Justice Larsen dissented in the Ward opinion and Chief Justice Eagen filed a dissenting opinion. In Greene, Chief Justice Eagen dissented and Justice Pomeroy filed a dissenting opinion in which Justice Larsen joined. The basis for those dissents appear from the following excerpts of the dissenting opinions. In Ward, Chief Justice Eagen wrote:

I refused to accept the reasoning of the majority in . . . Commonwealth v. Williams . . . and will continue to refuse to join in any decision which reverses a plea of guilty solely on super-technical grounds. Id. 483 Pa. at 59, 394 A.2d at 537. (citations omitted).
It should also be noted that Rule 319(a) of the Pennsylvania Rules of Criminal Procedure, which sets forth the requirements of a valid guilty plea colloquy does not require that the defendant be informed that if he chooses a jury trial “the verdict which the jury might render would have to be unanimous.” The decisions in this case and others of the same ilk are extending the requirements of the Rule. Id., 483 Pa. at 60, 394 A.2d at 538. (emphasis in original).

In Greene, supra, Justice Pomeroy stated:

Although the colloquy here was substantially complete, the trial judge omitted any mention of one of the elements of a jury trial, that the jury’s verdict shall be unanimous. This omission violated the guidelines which this Court set up for jury trial waiver colloquies in Commonwealth v. Williams. At that time we expressly declined to denominate those guidelines [as] a per se rule. In Commonwealth v. Morin, however, the majority of the Court in effect established the Williams guidelines as inflexible requirements of the on-the-record colloquy, with the result that appellant’s counsel was held to have been ineffective in failing to object to defects in the colloquy in post-verdict motions or before the Superior Court. I dissented in Commonwealth v. Morin, for a variety of reasons, not the least of which was the lack of necessity, as I saw it, of molding the guidelines suggested in Williams, supra, into a per se rule where no widespread abuse of colloquy requirements had been shown. I continue to adhere to that view. Id., 483 Pa. at 197-98, 394 A.2d at 979. (footnote and citations omitted).

Whatever facts in those cases may have compelled appellate judges of this Commonwealth to decide that the failure in those cases to include the unanimity statement in the colloquy was so grievous a shortcoming as to render the colloquy inadequate and defective, it is by far more reasonable and sound to declare that while such an omission sounds in neglect, it does not, without more—specifically, prejudice—create per se defect. It is only when appellate scrutiny of the entire record results in the conclusion that prejudice has occurred, that such an omission can rise to a defect and the voidable should become void.

The division of appellate thought upon this issue is, perhaps, a reflection of the philosophic difference that distinguishes those devoted to revision from those committed to tradition. While we have, in recent decades, witnessed urgent, very necessary and beneficial changes in the criminal justice system, e.g., the right to counsel, the zeal of some revisionists has caused them to race to establish requirements that defy common sense as well as sound jurisprudence, as if to frantically expiate a sense of guilt for shortcomings that were too long present but have now been corrected. While the judiciary is not to be stampeded by public opinion, neither is it to be oblivious to currents flowing within the citizenry. Even the cloistered must hear the cry of the citizenry in distress over what is perceived to be unsound excesses. And however heartened they may be at the personal pronouncement of Chief Justice Eagen that he refuses “to join in any decision which reverses a plea of guilty solely on super-technical grounds”, Commonwealth v. Ward, supra 483 Pa. at 59, 394 A.2d at 537, that declaration becomes mere solace since it was but an expression of a minority view.

It would approach absurdity for us to here rule that the failure of the trial judge to advise of the need for jury verdict unanimity rendered the colloquy inadequate, defective and void, thereby requiring this matter to now proceed through a trial. A careful review of the record, including the transcript of all the proceedings, reflects the careful attention and cautious manner of the trial judge as he conducted the guilty plea proceedings. The record proves beyond dispute that the jury trial waiver and pleas of guilty were here tendered knowingly, intelligently, voluntarily and understanding^—in fact, at various points throughout the guilty plea hearing, the defendant does not simply indicate assent to the charges and the description of both the robbery and the murder but himself supplied specific details concerning his crimes. The conclusion is inescapable that appellant was motivated to plead guilty solely by a desire to secure a reduction in the crimes charged against him—from the capital offense of felony-murder and robbery to third degree murder and robbery; crimes in which there was overwhelming evidence of his participation—identification by an eyewitness and fingerprints at the scene of the murder and robbery; and crimes in which he had admitted his complicity—a statement after his arrest and a subsequent tape recording of that statement. Appellant does not—indeed, could not—argue that he would not have pleaded guilty had he known a jury verdict was required to be unanimous. There is not even a suggestion or a hint of prejudice and we cannot, therefore, rule the colloquy defective.

We have here applied the standard of review applicable to a direct appeal. The application of the standard of review under the Post-Conviction Hearing Act provides the same result since that study focuses upon whether the plea of guilty was unlawfully induced and, as we have seen, the plea of guilty in this case was not unlawfully induced.

Nor can trial counsel, who served throughout the guilty plea and sentencing proceedings, be deemed ineffective with regard to any claim that appellant was unaware of the jury conviction verdict unanimity requirement since counsel here proved himself eminently effective by securing a plea agreement to reduced charges and a reduced sentence in the face of the overwhelming evidence of the guilt of appellant of felony-murder and robbery. A similar ruling may be found in Commonwealth v. Weiss, 289 Pa.Super. 1, 432 A.2d 1020 (1981), where our venerable colleague, Judge John P. Hester, after reviewing a similar factual situation, opined:

We do not hesitate in finding that counsel’s strategy in not objecting to the colloquy was very reasonable. Had an objection been registered, the plea may have been invalidated and appellant could have faced much stiffer sentencing at trial. Since there was a reasonable basis for counsel’s decision, we do not find his stewardship lacking. Id., 289 Pa.Superior Ct. at 7, 432 A.2d at 1023.

II

The brief of appellant expresses the further contention that it was error and an abuse of discretion by the trial judge to refuse to allow appellant to withdraw his guilty plea prior to sentencing. It is again necessary for a consideration of this contention to acquire a clear understanding of the relevant facts by a thorough study of the record. That study reflects the following chronology:

August 29, 1975—Arthur Wilson is murdered during the commission of a robbery at his clothing store.
September 4, 1975—Appellant is arrested. He gives a statement admitting the complicity of himself and co-defendant and later provides a recording of that statement.
February 27, 1976—The case is called for trial. Appellant pleads not guilty. The trial judge grants the application of counsel for appellant to continue the commencement of the trial from this date, Friday, until the following Monday, March 1.
March 1, 1976—The case is called for trial and during a brief recess declared so as to enable a jury panel to be brought to the court room, the court is advised that appellant intends to plead guilty.
—Appellant proceeds to plead guilty to a third degree murder and to robbery, after careful interrogation by and discussion with the court that included the expression by appellant of specific details of the crime. The sentence is deferred so as to provide for the completion of a presentence investigation report.
June 8, 1976—Appellant appears for a scheduled sentencing hearing. The court conducts a hearing but continues the actual imposition of sentence until such time as the co-defendant of appellant was sentenced.
July 7, 1976—After a hearing, appellant is sentenced to a term of from ten to twenty years for third degree murder and to a concurrent term of two and one-half to five years for robbery.

The basis for the argument of appellant appears in the transcript of the hearing of June 8, 1976, when the sentence was scheduled to be imposed but was further delayed:

BY THE COURT:
Q. I understand that. Is there anything else you wish to say before sentence is imposed? This is your opportunity, sir, to speak.
A. I want to know if it is possible, could I take the plea back?
Q. It is not possible. Why would you want to take your plea back?
A. I didn’t fully understand it when I took it.
Q. Beg pardon?
A. I didn’t fully understand it when I took it. (N.T., p. 4).

Appellant, in expressing that inquiry, did not actually state that he wished to withdraw his plea and certainly did not assert or indicate in any way that his innocence was the reason for his inquiry. It should be noted that a few moments after this inquiry, the following appears in the transcript:

BY THE COURT:
Q. Is there anything else you want to say to this court before the court imposes sentence?
A. I would like to say is it possible that I could get probation?

It would also appear that appellant addressed his inquiry to the court contrary to the advice of his counsel. The trial judge recessed the hearing so as to enable appellant to confer with the members of his family who were present at this sentencing hearing, specifically, his mother, father and brother. When the hearing resumed, counsel for appellant, who had participated, of course, in that family conference, advised the court:

I think Mr. Anthony fully—I am satisfied he fully comprehended and understood everything that took place at the time of his plea. I think Mr. Anthony understands everything that is taking place now. He is a youngster who is just terrified with the prospect of being in prison. (N.T., p. 8).

Appellant did not, during the month that intervened between his inquiry to the court on June 8, 1976 and the hearing when sentence was imposed on July 7, 1976, either through his own efforts or through counsel, file a petition to withdraw his guilty pleas or in any other fashion attempt to withdraw those pleas.

Nor, at the time when sentence was actually imposed on July 7, 1976, did appellant express any uncertainty with regard to the guilty plea he had earlier entered or evidence any desire to withdraw that plea. Rather, at the sentencing hearing, appellant reiterated his understanding that he had pleaded guilty to the third degree murder, repeated his admission that he participated in the robbery that resulted in the death of the store owner and even responded to the inquiry of the court as to the manner in which he had disposed of his weapon.

Even if we were to interpret the inquiry addressed by appellant to the court on June 8 as equivalent to a petition to withdraw the plea and the response of the court as a dismissal of that petition—an interpretation that we do not accept but express for the limited purpose of this discussion—it was within the discretion of the trial court to grant or deny the request. Pennsylvania Rule of Criminal Procedure No. 320 provides:

At any time before sentence the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

We would be unable to rule that such a refusal by the trial judge was an abuse of discretion. Commonwealth v. Forbes, 450 Pa. 185, 190, 299 A.2d 268, 271 (1973), states that a request to withdraw a plea prior to sentencing is to be “liberally allowed”, if the petitioner presents a “fair and just reason”. The effort to withdraw the plea in that case was, however, accompanied by an assertion of innocence which the Supreme Court there declared was a “fair and just reason” for withdrawal of the guilty plea before sentencing. In the absence of a fair and just reason for withdrawal of a plea, the Common Pleas Court cannot permit withdrawal of the plea. Commonwealth v. Mosley, 283 Pa.Super. 28, 423 A.2d 427 (1980).

We would also reject any contention that it was an abuse of discretion and error by the court to refrain, during the period that followed the inquiry of appellant of June 8,1976 and preceded the sentencing on July 7, 1976, from directing that the pleas of guilty be withdrawn. The court had at the conclusion of the June 8 hearing, after the family conference sparked by the uncertain inquiry by appellant to the court, heard counsel for appellant assure the court that appellant understood his plea. Appellant did not himself or through experienced counsel, during the month preceding the sentencing, again express any uncertainty about his plea or impose any inquiry concerning it or file any petition for withdrawal. At the hearing of July 7, 1976, prior to the imposition of sentence, appellant again acknowledged his guilt, reiterated his complicity and expressed details of his participation. It is not within contemplation that the trial judge should have directed the withdrawal of the plea.

Appellant contends he was denied the effective assistance of counsel by reason of the failure of trial counsel to initiate direct appeal proceedings. Since we have supplied to the contentions of appellant the scrutiny reserved for direct appeals and have ruled that there is no merit to the contention that the colloquy was defective and no merit to the contention that the purported refusal to permit the withdrawal' of a guilty plea was an abuse of discretion, it is clear appellant was not denied the effective assistance of counsel by reason of the failure of his counsel to initiate a direct appeal based upon such assertions. See, generally, Commonwealth v. Nastari, 300 Pa.Super. 368, 446 A.2d 660 (1982).

Trial counsel for appellant might well have sought to challenge the guilty pleas after the imposition of sentence. That would, however, have been a futile effort. The Pennsylvania Supreme Court has recently reviewed in a majority opinion by the eminent Justice John P. Flaherty in Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), the principles concerning and standards applicable to not only plea withdrawal prior to sentence but also plea challenge subsequent to sentence. The court there reiterated the principle that a petitioner in an effort to withdraw the plea prior to sentence must show fair and just reason for the withdrawal, while redeclaring that after sentencing, “ ‘a showing of prejudice on the order of manifest injustice’ is required before withdrawal is properly justified. Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden because of the recognition that a plea withdrawal can be used as a sentence testing device.” Id., 498 Pa. at 346, 446 A.2d at 593 (citations omitted). It is obvious, of course, that if appellant has not attained to the “fair and just” standard of plea withdrawal prior to sentence, appellant cannot attain to the “manifest abuse of justice” standard of plea challenge subsequent to sentence.

Order affirmed.

      . 19 P.S. § 1180-1 et seq. (1982 supp.).

      . Section 1180-3(c)(7) of the Post Conviction Hearing Act (19 P.S. § 1180 et seq.) states: “To be eligible for relief under this act a person must ... prove ... (c) that his conviction or his sentence resulted from ... (7) A plea of guilty unlawfully induced.” (emphasis added).

      . See Commonwealth v. Ford, 484 Pa. 163, 398 A.2d 995 (1979) (a written motion for withdrawal must be filed in the trial court when the validity of a guilty plea is at issue).


author: SPAETH, Judge:

text:
    453 A.2d 608
    COMMONWEALTH of Pennsylvania v. Walter PERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1982.
    Filed Nov. 30, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for robbery, theft and criminal conspiracy. Appellant argues that the lower court erred in not admitting a photograph of his accomplice into evidence. We agree that this was error, but find that it was harmless, and therefore affirm.

The charges against appellant arose out of the robbery of a bar by two men on July 5, 1980. The only people in the bar at the time it was robbed were the manager, Cornelia “Charlie” Harris; the barmaid, Beatrice Johnson; and the porter. Both Harris and Johnson testified at trial, and their testimony, which was substantially the same, was as follows.

At about 5:00 p.m., two men entered the bar and sat at the end of the bar counter. N.T. 1/8/81, 110-113 (Johnson). Johnson and Harris both recognized one of the men—not appellant—as “Slick.” Id. 113 (Johnson); id. 158 (Harris). The men got up from the bar, with appellant going to the men’s room, and Slick asking Johnson for a glass of water. Id. 114 (Johnson). Johnson told Slick that she was not allowed to serve him because he had robbed the bar, id. 115, and that he should talk to the manager about it. Slick went to talk to Harris, and she told him that he would not be served because he had robbed the bar “a couple of weeks ago.” Id. 159 (Harris). By this time appellant had come out of the men’s room. When he walked up to Harris and Slick, Harris remarked to appellant, “Gee, you’re short.” Id. 115 (Johnson); id. 160 (Harris). Harris was about a foot away from appellant when she said this to him, id. 161, and they were almost face to face, id. Johnson testified that appellant was “five one, five two” and “a little taller than Charlie [Ms. Harris] was.” Id. 120. Harris, who is four feet eleven and one-half inches and was wearing heels that day, id. 161 (Harris), testified that Slick was “a little bit taller than” appellant, id. 169. The two men turned to leave the bar, but suddenly they turned back, and Slick had a gun in his hand. Slick told Johnson to get the cash from the cash register and appellant to get the change from the bar counter. Id. 116-118 (Johnson); id. 162 (Harris). The two men took the money and left the bar.

The women called the police, and when Officer Smith arrived, they gave him a description of the two men. Johnson testified that she told the officer that appellant had a mustache, a bush haircut, was about twenty-two or twenty-three, and wore a white T-shirt, khaki pants and sneakers. Id. 121-122. Harris testified that she told the officer that appellant was about 133 lbs., short, had a mustache, and wore a white T-shirt and long dark pants. Id. 167-68. Officer Smith testified that the women told him that both men were “five one and 130,” id. 182, and he included this information in his holdup memorandum, which was admitted into evidence.

About two weeks later, appellant came into the bar, stayed a few minutes, and left. Johnson recognized him, and called the police. When appellant was apprehended, the same day, she identified him from a group of men. Id. 123-124. Both Johnson and Harris were positive in identifying appellant, and had no doubt that he was one of the men who robbed the bar. Id. 123-24 (Johnson); id. 170 (Harris).

Appellant and Slick, or Charles Satchel, were tried separately. At appellant’s trial, defense counsel attempted to introduce into evidence the arrest photograph of Satchel, after he had successfully introduced the arrest photograph of appellant, which it was stipulated was authentic. Defense counsel argued that the photograph of Satchel “was relevant and proper and probative because the people have been described and it goes to their ability to observe, their ability to observe under stress what Mr. Satchel looks like.” Id. 221-222. Defense counsel sought to show, from the information typed in at the bottom of the photograph, that Satchel was five feet nine inches, and 128 lbs. The lower court, however, refused to admit the photograph into evidence, ruling that it was irrelevant. Id. 224-225.

Appellant assigns this ruling as error, arguing that the photograph was relevant because “[discrepancies between the description of the perpetrators given to the police and the perpetrators actual appearance is important evidence for the jury to hear in order to evaluate properly the basis for the identification witnesses’ testimony on an essential element of the Commonwealth’s case.” Brief for Appellant at 6. We agree.

Questions concerned with the admission or exclusion of evidence are within the discretion of the trial court, and the court’s ruling will be reversed only for an abuse of discretion. Lewis v. Mellor, 259 Pa.Superior Ct. 509, 393 A.2d 941 (1978). Evidence is relevant when it tends to establish facts in issue. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Superior Ct. 230, 433 A.2d 40 (1981). But not all relevant evidence is admissible, and the trial court may exercise its discretion to exclude evidence that, though relevant, may confuse, mislead, or prejudice the jury. Lewis v. Mellor, supra. Thus, the issue here is whether the photograph of Satchel tended to establish a fact in issue, for it is difficult to suppose, and the Commonwealth does not argue, that the photograph could have confused, misled, or prejudiced the jury.

We believe that the photograph was relevant. The robbery was committed by two men of disparate heights— appellant was five feet one inch and Satchel was five feet nine inches. This difference, though not extreme, must have been noticeable. Yet, according to the descriptions that Johnson and Harris gave Officer Smith, the men were the same height—about five feet one inch. The fact that Satchel was in fact five feet nine inches, as shown by the information on the photograph, tended to establish that Harris’s and Johnson’s descriptions of him were incorrect, and that in turn tended to establish that their descriptions of appellant were also incorrect, and to call into question their ability to observe the robbers and perceive the situation at the time of the robbery. As Professor Wigmore has observed:

(f) Opportunity of observing the events
A necessary qualification in a witness is personal knowledge, i.e., an opportunity, as to place, time, proximity, and the like, to observe the event or act in question (§ 650 supra), and the deficiency of such opportunity may be shown to discredit (§ 994 supra). Hence, all facts which bear upon the position, distance, and surroundings, the bystanders and their conduct, the time and the place, the things attracting his attention, and similar circumstances, said by'the witness to have been observed by him at the time of observing the main event testified to by him, are material to his credit in so far as they purport to have formed a part of the whole scene to his observation; thus, if an error is demonstrated in one of the parts observed, the inference (more or less strong) is that his observation was erroneous (or his narration manufactured) on other and more important parts also.
This source of discredit is of vast importance in the overthrow of false or careless testimony; and its permission must be provided for in any definition of the term “collateral”:
3A Wigmore, Evidence § 1005(f) (Chadbourn rev. 1970) (footnote omitted).

The lower court’s ruling that the photograph was inadmissible as irrelevant was therefore error.

We have concluded, however, that the error was harmless, for we are certain beyond a reasonable doubt that the photograph would not have affected or contributed to the jury’s verdict. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

During direct examination, Johnson was asked about her description of appellant, N.T. 1/8/81, 120-121, including his clothes, id. 122, and about how she recognized him when he came into the bar two weeks after the robbery, id. 123-124. She was also asked on direct how long she had observed appellant during the robbery, from what distance, id. 126, and under what lighting conditions, id. 127-128. On cross-examination, she was questioned at length about whether she had ever before seen either Satchel or appellant, id. 131-133, and how much attention she had paid to appellant when he was in the bar, id. 137. Defense counsel made frequent reference to appellant’s height in relation to Satchel’s, id. 137 (“short guy”); 139 (“short fellow”); 140 (“short fellow”). Furthermore, counsel elicited from Johnson an acknowledgment that Satchel was “taller,” “about five four,” than “this short guy” [appellant]. Id. 148. Counsel thus asked Johnson about the description she had given Officer Smith, as reported in his holdup memo, id. 149. Harris was also asked on cross-examination about her description of appellant’s hair, id. 172, mustache, hat and clothes, id. 173, and Officer Smith about his holdup memorandum, id. 179, including the witnesses’ description of appellant’s and Satchel’s clothes, mustache and height, id. 182-84, 186.

Moreover, the central point of defense counsel’s closing argument was an attack on the reliability of the witnesses’ descriptions of the two robbers, N.T. 1/9/82, 297-319, to which the assistant district attorney responded by emphasizing how reliable Johnson’s and Harris’s identifications of appellant were id. 318-330. The lower court also charged the jury with respect to the identification issue. Id. 342, 350-351.

We have already discussed, quoting Professor Wigmore, why the photograph of Satchel may not be described as “collateral,” for if Johnson’s and Harris’s identifications of Satchel were incorrect, their identifications of appellant might also be incorrect. Nevertheless, the relevance of the photograph was tangential rather than direct; it tended to contradict the two women’s descriptions only with respect to Satchel’s height. In their descriptions of appellant, both women were consistent; both had an ample opportunity to observe appellant; and both remained positive and unwavering in their identifications of appellant.

Finally, even without the photograph of Satchel in evidence, by his questioning and closing argument defense counsel emphasized the discrepancy arising from the fact that appellant and Satchel were of different heights but the two women had described them to Officer Smith as of the same height. The issue of appellant’s identification was therefore fully presented to the jury, with proper instructions by the court.

, Given these several aspects of the case—the completeness of the witnesses’ testimony; the closing arguments and charge; and the tangential relevance of the photograph—we hold that the lower court’s error in excluding the photograph was harmless.

Affirmed.

      . The photograph has been made a part of the record for our review.

      . In our discussion we have assumed that the photograph would have been properly authenticated, either by stipulation, as was done with appellant’s arrest photograph, or by other means. It is clear from the on-the-record dialogue between the district attorney, defense counsel and the trial judge that the threshold objection to the photograph was its relevance, and that the question of its authenticity was not reached once it was ruled irrelevant. N.T. 1/8/81, 219-225. Thus, the district attorney argued: “If Your Honor rules that the photo can come in, I am going to ask him to bring the photograph in. I do not believe the photo should be allowed in, period. I think it is irrelevant to the trial of the co-defendant.” Id. 224-225. On appeal, however, the Commonwealth does not argue that the photograph was irrelevant, but instead, that the information on the photograph was hearsay, and that the photograph‘was not properly authenticated. Since these arguments were not addressed to the lower court, and therefore did not call for a response either by defense counsel or the court, we do not consider them.

      . Appellant argues that Officer Smith testified that the two women described Satchel as weighing 130 pounds, N.T. 182, 186, “whereas he ... in fact ... weighed one hundred twenty pounds.” Brief for Appellant at 10 n. The information on the photograph is that Satchel weighed 128 pounds.


text:
    453 A.2d 611
    N. William EDMONDSON and Phyllis Edmondson, his wife, and Andy Malinish and Lois F. Malinish, his wife, Appellants, v. Fred DOLINICH and Dorothy Dolinich, his wife.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Denied June 8, 1983.
    Richard F. Flickinger, Ligonier, for appellants.
    Barbara A. Roth, Latrobe, for appellees.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This appeal is from a judgment granting possession of a fifteen foot wide alley to appellees. The lower court held that appellees had acquired title to the alley by adverse possession. We have concluded, however, that appellees proved only sporadic and non-exclusive use of the alley. We therefore reverse.

Prior to this action both appellants and appellees acquired an easement over the alley by virtue of its description in their deeds. See Hoover v. Frickanisce, 169 Pa.Super. 443, 82 A.2d 570 (1951). On July 12, 1979, however, appellees filed a declaration of adverse possession in the Office of the Recorder of Deeds of Westmoreland County against appellants. Appellees responded by filing this action in ejectment. After a hearing the trial judge found that appellee had acquired title to the alley by adverse possession. On appellants’ exceptions, the court en banc dismissed the exceptions and adopted the trial judge’s opinion.

In Conneaut Lake Park Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949), the Court stated:

[0]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty one years .... Each of these elements must exist, otherwise the possession will not confer title....
[Citations omitted.]

And in Parks v. Pennsylvania R.R. Co., 301 Pa. 475, 481-82, 152 A. 682, 684 (1930), it stated:

A sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated.... It is true that residence is not necessary to make an adverse possession within the statute of limitation; the possession may be adverse by enclosing and cultivating the land . . . but nothing short of an actual possession, permanently continued, will take away from the owner the possession which the law attaches to the legal title; temporary acts on the land, without an intention to seat and occupy it for residence and cultivation or other permanent use consistent with the nature of the property, are not the actual possession required.... Such occupation must be exclusive, and of such a character as compels the real owner to take notice of the possession of the disseisor. ...
[Citations omitted.]

It was the opinion of the lower court that appellees’ evidence satisfied these requirements. Thus the trial judge said:

In the testimony taken at the hearing defendants [appellees] established that they, since 1951 to the present, have maintained the portion of the alley adjoining their property, erected and maintained two fences; planted trees and shrubs; left a rail and wood pile on the alley. Neither the plaintiffs [appellants] nor their predecessors attempted to use the alley.
Slip op. at 2.

Also:

It is fundamental that there must be actual, continual, visible, notorious, adverse and hostile possession of the land for twenty-one (21) years to constitute adverse possession. Piper v. Mowris, 466 Pa. 89 [351 A.2d 635] (1976). Defendants have proven all of these through their testimony concerning use of the alley. The photographs introduced and admitted into evidence clearly show the planting, fencing and blocking of the easement. Dates were established for all of the photographs convincing this Court that the adverse use has continued openly for over twenty-one (21) years.
Slip op. at 3.

However, our own review of the evidence persuades us that appellees failed to prove adverse possession. In saying this, we do not mean that we question the lower court’s findings of fact. Findings supported by the evidence and approved by a court en banc have the same binding effect on us that a jury verdict does. In re Wertman’s Estate, 462 Pa. 195, 340 A.2d 429 (1975); Girard Trust Bank v. Sweeney, 426 Pa. 324, 231 A.2d 407 (1967); Girard Trust Corn Exchange Bank v. Brinks, Inc., 422 Pa. 48, 220 A.2d 827 (1966). Where we differ with the lower court is on the legal conclusion—the conclusion of adverse possession—to be drawn from the facts, as the lower court found the facts. We are always free to draw, and indeed must draw, our own legal conclusions. Wright v. Buckeye Coal Co., 290 Pa.Super. 231, 434 A.2d 728 (1981); Silo Realty Corp. v. Redevelopment Authority of Philadelphia, 289 Pa. Super. 67, 432 A.2d 1053 (1981); First Pennsylvania Banking & Trust Co. v. Liberati, 282 Pa.Super. 198, 422 A.2d 1074 (1980).

Both appellants testified in support of their adverse possession claim. Fred Dolinich’s testimony was that he had maintained the alley and used it for storage. The gist of his testimony was as follows:

Q. Would you describe for the Court your activity with respect to the alleyway?
A. Well, when I first moved there, the alleyway was absolutely grown up. Very much so. There was a fence with barbed wire on it, and there was also brush of all kinds on it.
Q. What did you do to the alley?
A. I decided after I had been there about a year and a half or two years to clean it up and make it look presentable.
Q. How did you do that?
A. First of all, I took out all the posts, the barbed wire, and etc., etc. meaning that I cleaned it off.
Q. What did you do to it after you had cleaned it off.
A. Well, in some spots I replanted. I put grass back onto it. Then I added a hedge around the front of my property that faces 711, and it seemed every morning I got up I had to pick up garbage from back of the hedge so I decided to take it out and put a fence up.
Q. When you put the fence up along the front of your property, what did you do with respect to the alley?
A. I ran it on up the alley about I would say ... I think there’s about twelve panels of fence.
Q. Now, where was this fence on the alley? Was it on your side of the alley or on Mr. Deiss’s side of the alley or where?
A. The fence that I put up is approximately .. . well, I would say on the alley at some spots and some spots it is off the alley.
Q. Off the alley where?
A. In front fronting my property on 711.
Q. All right. Now, Mr. Dolinich, for the record are you talking about a post and rail fence?
A. Yes, ma’am.
Q. Was there a fence ever on that alley prior to that post and rail fence?
A. There were two fences prior to that.
Q. Would you describe for the Court what kind of fences they were and what years you had them on the alley.
A. In 1951 when I moved there, there was a barbed wire fence there which I tore down. Then I put a fence up that was a board fence.
Q. What color was it?
A. It was white.
Q. Where was the fence?
A. Approximately the same place where this one is right now.
Q. And what year did you say you put that fence up?
A. Well, truthfully, I can’t give you an exact year if you’re speaking of that board fence?
Q. Yes.
A. I would say it was around ’56, somewhere in there.
Q. Mr. Dolinich, what did you use this alleyway for?
A. To be truthful about it I used it to store most anything I could keep off my lawn such as posts and rail, and I had . . . well, at one time I had an ash pile on it.
Q. All right,
A. Another time I had a concrete block pylon [sic; “pile on it”?]. Another time I had a rail pylon [sic], and recently for the last ten, twelve years, maybe longer than that, I’ve had something on it. Right now there’s post and rail on it.
Q. Did you ever plant anything besides grass in the alley?
A. I planted a peach tree on it, yes, ma’am.
Q. When did you plant the peach tree, do you remember?
A. About twelve years ago.
Q. Did you plant anything on the alley prior to the peach tree?
A. No. Well, no, I did not.
Q. How long have you cared for this alley, Mr. Dolinich in terms of, for example, mowing the grass?
A. Well, really I would have to say from about 1953.
N.T. 36-39.

On cross-examination Mr. Dolinich was asked whether he still stored things in the alley, and he replied:

A. Some of them, yes.
Q. But you removed most of this?
A. Most of them, yes, I cleaned it up.
N.T. 52.

Also, he acknowledged that one of appellants, N. William Edmondson, had about three years before put up a commercial sign, evidently in the alley (“in front of my property”), and despite a request, had refused to remove it. N.T. 52-53.

Dorothy Dolinich added to her husband’s testimony that “[a]bout four years ago” she had planted a rhubarb patch in the alley, and that “[p]erhaps [she had done] some of the care of the flowers although he [Mr. Dolinch] does most of it.” N.T. 56-57.

In our opinion, appellees have established nothing more than sporadic and non-exclusive use of the alley. Their use of the alley for storage was temporary, something being stored for awhile and then being cleared away, and the storage never blocked the alley. The fences they erected did not enclose the alley. It is a serious matter indeed to take away another’s property. That is why the law imposes such strict requirements of proof on one who claims title by adverse possession. Parks v. Pennsylvania R.R. Co., supra.

The judgment of the lower court is reversed and judgment is entered in favor of appellants.

      . The declaration of adverse possession was also filed against John and Mary Deiss, who were appellants’ predecessors in title.

      . The photographs identified by Mr. Dolinich confirm our characterization of appellees’ use of the alley. Exhibit C is a photograph of the Dolinich “yard.” N.T. 39. The record does not make clear just where the alley appears (“this is the alleyway here,” N.T. 39, with where “here” is not being shown), but wherever it is, it is in no sense blocked off. Exhibit D shows a small part of the alley, with a flower garden on part of it. N.T. 41. Exhibit E shows, in the background, a small part of the alley, with part of a fence erected by appellees on the alley. N.T. 41-A2. Exhibit F also shows part of the fence. N.T. 42. Exhibit G shows part of the alley, with some locust posts stood on end and leaning against each other; they occupy very little space. N.T. 43. Exhibit H shows some posts and rails stored on the alley, N.T. 44; they were used to erect a fence, N.T. 46. Exhibit I shows the alley with a pile of posts, a peach tree, and a mulch pile in it. N.T. 47. Exhibit J is similar to Exhibit I; it shows the peach tree and part of the mulch pile, but not the posts. Id. And Exhibit K shows the peach tree and even less of the mulch pile. Id. It is evident from all of these last three exhibits that the pile of posts, peach tree, and mulch pile did not block but occupied only a small part of the alley.


author: WICKERSHAM, Judge:

text:
    453 A.2d 615
    Marion S. LAZOVITZ v. Stephen M. LAZOVITZ, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1982.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Denied March 29, 1983.

      H. Fiebach, Philadelphia, for appellant.
    David E. Auerbach, Media, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   WICKERSHAM, Judge:

On May 11, 1981, Judge Nicholas A. Cipriani, of the Philadelphia County Court of Common Pleas, entered a preliminary injunction restraining Stephen M. Lazovitz, appellant, from, inter alia, proceeding with a Florida divorce action or removing from Pennsylvania any assets owned by Stephen Lazovitz and Marion Lazovitz, his wife, or in which Mrs. Lazovitz had a marital interest. Judge Cipriani held a hearing on the continuance of the preliminary injunction on May 13, 1981, and continued the preliminary injunction on May 18, 1981. Mr. Lazovitz appealed the order of May 18, 1981, on May 20, 1981. This timely appeal is authorized by Pa.R.A.P. 311(a)(4). Rule 311(a)(4) permits an interlocutory appeal from an order continuing an injunction thus the appeal is properly before our court.

Stephen M. and Marion S. Lazovitz were married on January 20, 1963. The couple lived in Haverford, Pennsylvania and had four children: Sandra, born May 12, 1965; Susan, born October 22, 1967; Joel and Martha, both born February 26,1977. Mr. and Mrs. Lazovitz separated in 1978 and Mr. Lazovitz moved to Philadelphia.

Marion S. Lazovitz filed a complaint in divorce against her husband on November 17, 1980. The complaint, filed in the Court of Common Pleas of Philadelphia County, sought a divorce, equitable distribution of property acquired during the marriage, alimony, child support, alimony pendente lite, counsel fees, costs and expenses, and custody of the four children of the marriage. Mrs. Lazovitz’s complaint acknowledged that Mr. Lazovitz had filed an action for divorce in Broward County, Florida and that the Florida divorce action was pending when she filed her action for divorce in Pennsylvania.

Mr. and Mrs. Lazovitz attempted to negotiate a property settlement but these negotiations collapsed. On May 9, 1981, Mr. Lazovitz filed preliminary objections to Mrs. Lazovitz’s divorce complaint. The preliminary objections raised several issues: that his Florida divorce action would grant his wife the divorce she sought, that her request for equitable distribution of property was not pleaded with sufficient specificity and that, as to the rest of Mrs. Lazovitz’s requested relief, Mr. Lazovitz was a Florida domiciliary not subject to the jurisdiction of the Pennsylvania courts.

A final hearing in Mr. Lazovitz’s Florida divorce suit was scheduled for May 13,1981. On May 11,1981, Mrs. Lazovitz filed a complaint in equity against her husband and others and a petition and affidavit for a preliminary injunction; the equity complaint and petition for injunction were docketed with her complaint in divorce. The petition for injunction alleged that Mr. Lazovitz filed his Florida divorce suit, falsely stated that he had been a Florida resident for more than six months before filing and thus attempted to perpetrate a fraud on the Florida court. Mrs. Lazovitz further alleged that in an effort to defeat her rights under Pennsylvania law, Mr. Lazovitz was about to remove or alienate property from the jurisdiction of Pennsylvania courts. Finally, Mrs. Lazovitz alleged that her husband’s actions would cause her irreparable injury by defeating her rights under Pennsylvania law.

Mrs. Lazovitz’s request for an injunction was made ex parte. Judge Cipriani granted a preliminary injunction restraining Mr. Lazovitz from, inter alia, pursuing his Florida divorce suit and from transferring or removing assets in which Mrs. Lazovitz had a marital interest. Mr. Lazovitz was not personally served with the preliminary injunction but the order was served on his counsel.

A hearing on the continuance of the preliminary injunction was held before Judge Cipriani on May 13,1981. At the May 13 hearing, Mr. Lazovitz’s counsel vigorously argued several grounds for vacating or dissolving the preliminary injunction. Mr. Lazovitz contended, inter alia, that the preliminary injunction was improperly issued ex parte, that the preliminary injunction was not properly served upon him and that the Pennsylvania court had no jurisdiction over him as a Florida domiciliary. Judge Cipriani believed that the jurisdictional issue was important and stated: “I am prepared to have a hearing on the matter of domicile on very short notice.” Record at 49. Mrs. Lazovitz was prepared to present evidence on the question of her husband’s domicile but Mr. Lazovitz’s counsel resisted taking testimony on the issue on short notice.

After the May 13 hearing, Judge Cipriani issued a rule upon Mr. Lazovitz to show why a preliminary injunction should not issue restraining him from prosecuting a foreign divorce, transferring assets or leaving Pennsylvania; this rule was docketed May 13, 1981. On May 18, 1981, Judge Cipriani entered an order continuing the order of May 11, 1981. The May 11, 1981, order was modified to allow Mr. Lazovitz to operate his businesses normally.

A hearing to take testimony on the question of Mr. Lazovitz’s domicile was scheduled for May 21,1981. At the May 21, 1981, hearing, Mr. Lazovitz’s counsel informed Judge Cipriani that an appeal had been taken to this court. The judge then continued the hearing generally.

Mr. Lazovitz’s first appellate issue is:
1. Is the Order of the court below invalid because it was entered ex parte where there was no emergency justifying the entry of a preliminary injunction without notice or hearing?

Brief for Appellant at 3.

Mr. Lazovitz contends that to obtain a preliminary injunction without notice or hearing, one must show that it is impossible to notify the opposing party that one is seeking an injunction and that if the injunction awaits a hearing irreparable, immediate injury will result. Mr. Lazovitz maintains that his wife gave no notice that she would seek an injunction on May 11, 1981, even though Mrs. Lazovitz had known for some time that the Florida divorce hearing was to take place on May 13, 1981.

The case of Liberty Corporation v. D’Amico, 457 Pa. 181, 329 A.2d 222 (1974), is procedurally similar to the case before us. Liberty Corporation sought, and obtained, an ex parte injunction on September 20, 1972 to restrain D’Amico and others from picketing. The injunction of September 20, 1972, further ordered that a hearing be held on September 25, 1972. 457 Pa. at 183, 329 A.2d at 223. Our supreme court condemned the issuance of preliminary injunctions without notice unless a showing is made that it is impossible to notify the opposing parties. The court held that the decree of September 20, 1972, was invalid but went on: “To invalidate the ex parte decree, however, does not dispose of this case, for it is the decree of September 25, 1972, entered after a hearing at which all parties were present, which now restrains appellants.” Id., 457 Pa. at 184, 329 A.2d at 224. The decree of September 25, 1972, was voided because it unconstitutionally restrained appellants’ freedom of speech. Id.

Our case does not involve freedom of speech but is otherwise close to the facts in Liberty Corporation v. D’Amico, supra. Here, an ex parte injunction was obtained without notice to Mr. Lazovitz. Mr. Lazovitz did not, however, appeal from the injunction of May 11, 1981. The injunction which now restrains Mr. Lazovitz, the injunction of May 18, 1981, was entered after a hearing at which Mr. Lazovitz was represented by counsel. Thus, whatever the merits of Mr. Lazovitz’s arguments about the lack of notice as to the injunction of May 11,1981, he cannot argue that the order of May 18, 1981, which now restrains him, was entered without notice.

Further, Mr. Lazovitz’s argument as to the impropriety of the ex parte preliminary injunction of May 11, 1981 is undercut by the fact that he has appealed from the order of May 18, 1981, not the ex parte injunction of May 18, 1981. In Liberty Corporation v. D’Amico, supra, the supreme court cautioned the bar against taking but one appeal from two decrees. Id., 457 Pa. at 183 n. 1, 329 A.2d at 223 n. 1. Accordingly, the only order of the lower court actually before us for review is the order of May 18, 1981, which was entered after a hearing at which the parties were represented.

As the Pennsylvania Supreme Court considered the validity of the second injunction in Liberty Corporation v. D’Amico, supra, we will consider the validity of the second injunction granted here, the order of May 18, 1981. Our scope of review of a decision to grant a preliminary injunction is limited. In Singzon v. Commonwealth Department of Public Welfare, 496 Pa. 8, 436 A.2d 125 (1981), our supreme court held:

The standards of appellate review of the grant or denial of a preliminary injunction have often been reiterated by this Court. The litany proceeds as follows:
As a preliminary consideration, we recognize that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor. ... ‘In order to sustain a preliminary injunction, the plaintiff’s right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.’

Id., 496 Pa. at 10-11, 436 A.2d at 126-27 (citations omitted) (emphasis in original).

Under this standard the entry of the order of May 18, 1981, was justified. The judge below was presented with Mrs. Lazovitz’s serious allegations that her husband’s effort to obtain a Florida divorce was a fraud and that he was attempting to defeat her rights in his considerable property. Judge Cipriani had good reason to believe that Mrs. Lazovitz would suffer an irreparable and immediate injury if her request for injunctive reiief was not granted.

Mr. Lazovitz’s second issue is:
Is the Order of the court below invalid for failure to effect proper service?

Brief for Appellant at 3.

Mr. Lazovitz asserts that the May 11,1981, order is invalid because it was not served upon him personally as required by Pa.R.C.P. No. 1503(a). Because Mr. Lazovitz did not appeal from the order of May 11 we will not consider his argument about service of the order.

Mr. Lazovitz’s third issue is:
Had the ex parte Order of May 11, 1981 expired so that the Court was without power to continue said Order on May 18, 1981?

Brief for Appellant at 3.

The order of May 11 set May 13, 1981, as the date for the hearing on continuance of the May 11 order. At the hearing of May 13, Mr. Lazovitz’s counsel vigorously argued a motion to vacate or dissolve the injunction of May 11. Despite the energetic advocacy displayed on Mr. Lazovitz’s behalf, he now argues that the hearing of May 13 was not adequate under Pa.R.C.P. No. 1531(d). Rule 1531(d) requires that:

(d) An injunction granted without notice to the defendant shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five (5) days after the granting of the injunction or within such other time as the parties may agree or as the court upon cause shown shall direct.

Mr. Lazovitz argues: “While the parties’ counsel were before the Court on May 13, 1981, such appearance cannot be deemed to be the hearing required by Rule 1531(d).” Brief for Appellant at 22.

We cannot imagine why “such appearance cannot be deemed” to satisfy the requirements of Rule 1531(d). Mr. Lazovitz’s attorney strenuously argued that the injunction of May 11 should be dissolved or vacated. Mrs. Lazovitz’s attorney argued just as strenuously that the injunction should continue and was even prepared to present testimony on the domicile issue. As Judge Cipriani states, Mr. Lazovitz’s attorney “resisted all efforts by [Mrs. Lazovitz’s] attorney to present testimony ... to prove the allegations of the Petition for Injunction.” Lower ct. op. at 10. The May 13 hearing gave Mr. Lazovitz an opportunity to contest continuance of the May 11 injunction, therefore Rule 1531(d) was fully complied with.

At the May 13, 1981 hearing, the judge was prepared to take testimony to determine if the order of May 11, 1981 should be dissolved, modified or continued. Mr. Lazovitz’s counsel appeared at the May 13 hearing and stated that Mr. Lazovitz had already left Pennsylvania to attend his Florida divorce hearing. Counsel for Mr. Lazovitz “represented to the Court that a full hearing should be scheduled so that he could produce Defendant Lazovitz to testify as to his present domicile.” Lower ct. op. at 10. Instead of bringing Mr. Lazovitz to a hearing, counsel brought this appeal.

The dispute between the Lazovitz couple involves many issues, of which perhaps the most important is whether Mr. Lazovitz is domiciled in Pennsylvania or Florida. Mr. Lazovitz’s appeal has done nothing but delay the determination of the domicile issue and thus postpone ultimate resolution of all the claims between the couple.

Mr. Lazovitz’s fourth issue is:
Is the Order of the court below invalid as overly vague and incapable of enforcement?

Brief for Appellant at 3.

Mr. Lazovitz now argues that the order of May 18, 1981, is invalid because it restrains the disposition of marital property but does not specify what assets are reached by the terms of the order of May 18,1981. See Brief for Appellant at 23.

Nothing in the order complained of prevents Mr. Lazovitz from carrying on his many businesses. The order merely restrains Mr. Lazovitz from alienating or disposing of property to defeat Mrs. Lazovitz’s rights. Mr. Lazovitz is adequately informed as to what he cannot do, especially since it is this appeal which has prevented further hearings on the merits of the injunction.

Mr. Lazovitz’s fifth issue is:
Did the Court err in entering an injunction to protect equitable distribution rights?

Brief for Appellant at 3.

Mr. Lazovitz believes that the Divorce Code does not give a court the power to enter an injunction to protect a party’s rights to an equitable distribution of property. Section 403 of the Divorce Code provides:

§ 403. Injunction against disposition of property pending suit and decree rendering fraudulent transfers null and void
(a) Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate, or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached as provided by the Rules of Civil Procedure. The Court may also issue a writ of ne exeat to preclude such removal.

23 P.S. § 403.

Mr. Lazovitz argues that because section 403 does not specifically grant the power to make an injunction to protect equitable distribution rights, the lower court was without power to enter the order complained of here.

Yet another portion of the Divorce Code provides:
(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

23 P.S. § 401(c).

We believe section 401(c) gives the courts below power to issue injunctions to protect the interests of the parties or to effectuate the purposes of the Divorce Code, one of which was to give divorced persons economic justice. 23 P.S. § 102(a)(6). In this case, the lower court’s order continuing the preliminary injunction was meant to preserve the status quo until the jurisdictional issue could be decided. The order was justified under section 102(a)(6) of the Divorce Code and was authorized by section 401(c) of the Divorce Code.

Mr. Lazovitz’s sixth and final issue is:
Where all their marital property was acquired prior to the effective date of the Divorce Code, does appellee have any right to equitable distribution?

Brief for Appellant at 3.

Mr. Lazovitz points out that he and his wife separated in September 1978 and argues that after separation property acquired by either spouse is not added to the marital estate. The Divorce Code became effective on July 1,1980, and Mr. Lazovitz contends that he and Mrs. Lazovitz acquired no marital property after July 1, 1980. “Therefore, in order to find any right of equitable distribution, the Court would have to reach property acquired before the effective date of the Act, and that would be a violation of Mr. Lazovitz’s constitutional rights.... ” Brief for Appellant at 34.

The Pennsylvania Supreme Court heard, and rejected, a similar argument in Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982). The court held that “it must be concluded that the Legislature’s definition of marital property as ‘all property acquired by either party during the marriage’ includes property acquired before the effective date of the Code.” Id., 498 Pa. at 231, 445 A.2d at 1196. Further, the court decided that application of the Divorce Code’s provisions for equitable distribution to marital property did not violate the constitutional right to due process but was a legitimate exercise of the police power of the state. Id., 498 Pa. at 231-36, 445 A.2d at 1196-98: Accordingly, Mr. Lazovitz’s contention is without merit.

Order affirmed. Jurisdiction of the Superior Court of Pennsylvania is relinquished and this case is remanded to the Court of Common Pleas for further proceedings.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.