text:
    508 A.2d 596
    COMMONWEALTH of Pennsylvania v. Stanley Walter ARENT, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1986.
    Filed April 28, 1986.

      Charles A. Rector, Lemoyne, for appellant.
    Andrea F. McKenna, Deputy Attorney General, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

Appellant, Stanley Walter Arent, pleaded guilty to eight counts of failure to file sales tax returns from April, 1983, through November, 1983, and to sixteen counts of failure to remit sales tax from August, 1982, through November, 1983. 72 P.S. § 7268(b). Appellant was the proprietor of a beer distributorship in Hillsville, Lawrence County, Pennsylvania, and it was the returns owing from the operation of this business that gave rise to the charges. On April 23, 1985, appellant was sentenced to a total of two to eight years incarceration and was ordered to make restitution of approximately $95,000.00, which is the tax liability incurred absent fines and penalties. Appellant filed a timely Motion to Modify Sentence which was denied.

In this appeal, it is alleged by appellant that the lower court failed to state adequate reasons for its sentence on the record and that the sentence which was imposed was excessive as too severe a punishment. We agree and remand for resentencing.

In reviewing a sentence we must accord a great deal of discretion to the sentencing court. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). A sentence will not generally be disturbed absent an abuse of discretion on the part of the sentencing court. However, our careful consideration of the sentencing guidelines in light of the circumstances of this case convinces us that the sentence of incarceration of from two to eight years was an excessively harsh and manifestly excessive sentence and that the court failed to state adequate reasons for the sentence on the record.

The section of the Tax Reform Code under which appellant was prosecuted, 72 P.S. § 7268(b), provides that each count of failure to file sales tax returns and failure to remit sales tax is a misdemeanor, conviction of which could result, inter alia, in imprisonment of up to one year. Appellant was sentenced on each of the first eight counts to a three to twelve month period of imprisonment, totalling two to eight years. For the second sixteen counts, he was sentenced on each count to one to six months imprisonment to run concurrently with the prior sentence. Therefore, the sentence imposed was clearly within the statutory limits. Although none of the individual sentences imposed here is in excess of the statutory maximum, we find the cumulative sentence to be so excessive as to inflict too severe a punishment.

In the exercise of its discretion,

[t]he court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence, that is the minimum sentence, consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Common wealth v. Wicks, 265 Pa.Superior Ct. 305, 310, 401 A.2d 1223, 1225 (1979).

At the guilty plea proceeding, the Deputy Attorney General requested that a pre-sentence report be prepared. The court so ordered. Although this report is not included in the record, the court indicated in its opinion that it rejected the report because it “consists of the defendant’s version of why he could not pay the funds when due, and that he was a victim of circumstances.” It is axiomatic that a sentencing court is not bound by a pre-sentence report. Commonwealth v. Vernille, 275 Pa.Superior Ct. 263, 418 A.2d 713 (1980). However, the sentencing court is required to consider the history, character and condition of the defendant and not only the nature and circumstances of the crime in imposing a sentence of total confinement on a defendant. 42 Pa.C.S.A. § 9725. This the court did not do. Moreover, our review of this case persuades us that the court, in imposing a sentence of imprisonment, did not follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b).

The unrefuted information regarding appellant’s background that appears of record is that appellant was twenty-nine years old at the time of sentencing, that he graduated from high school and completed one year of college. He was also in the process of accumulating extra credits toward his degree. He had a work history, including employment with a paving company at the time of sentencing. In 1979, appellant inherited the beer distributorship and by January of 1980 had already begun to be in tax arrears. Then, in 1983, the Internal Revenue Service closed the beer distributorship, seized and liquidated the assets, and did so at a fraction of the market value. Thus, from 1983, appellant has not owned the business which gave rise to these charges, and whereby at one point, he had monthly sales of $100,000. Appellant has no prior criminal record and is an active church member. Drexel Ackles, who prepared the presentence report in this case testified at the sentencing hearing and recommended a community-based alternative to incarceration consisting of employment, completion of appellant’s college degree, restitution payments, community service and a probationary period.

The court rejected this and all aspects of the pre-sentence report as depreciating the seriousness of the crime of the defendant.

THE COURT: This is inconceivable a person would be engaged in a business the volume of which you operated and not be aware that you were incurring very substantial obligations to the sale tax division in light of the fact that you are collecting on your sales amounts that is due and owing them. I don’t know how you can be in business and not be aware of that and if you weren’t aware of it, I don’t know why you would not seek counsel in these areas. This in not a mom and pop operation. The indication is that you were making $100,000 a month. I don’t know how you could handle that kind of funds without realizing the fact that you are incurring very substantial obligations and if you are not managing your money properly, you wouldn’t be able to pay it and you may be called on either to go to jail or produce the money or both. I don’t know how you could not have known that as a person in business and if you can do it, I don’t know why anybody else shouldn’t be able to do it with impunity.
Somehow, Mr. Arent, we have to convey that people who are trustees of funds that belong to the Commonwealth cannot with impunity handle these funds like they are personal monies and offer explanations why they can’t pay when it is time to pay. If every tax collector gave the Commonwealth the explanation that you gave and no money, we would be in bankruptcy right now. That is exactly where we would be. We could not afford to pay the costs of the government with the people operating in the manner you operated in collecting substantial amounts of money to the government and paying nothing. That is not just the kind of proposal that we want to convey to the government that they can operate in that fashion with impunity and they are going to pay us $95,000 over a period of time. That is just not a tenable proposition for the state government to be operating with. If they operated their business in that fashion with every taxpayer, they would not be able to pay the light bill in the buildings they operate.

It is clear that the court emphasized the seriousness of appellant’s dereliction and the gravity of the offense and with this we are in agreement. However, our difficulty with the court’s sentence lies in the court’s failure to explain why it chose incarceration over probation with reasons other than the nature of the crime. In Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979), the Pennsylvania Supreme Court stressed the requirement that a sentence be individualized. See Commonwealth v. Riggins, 474 Pa 115, 377 A.2d 140 (1977). What is lacking in this case is an explanation by the sentencing court that it considered the twelve factors under section 9722 of 42 Pa.C.S.A. which weigh in favor of an order of probation and that the court rejected that alternative for reasons other than the seriousness of the crime. Many of these factors pertain to appellant, but were ignored by the sentencing court.

Moreover, as stated above, 42 Pa.C.S.A. § 9725 sets forth that a sentence of total confinement is appropriate in cases in which, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, the court is of the opinion that

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

These factors do not fit the situation of appellant and the crimes to which he pleaded guilty. Appellant stated his awareness of the wrong which he perpetrated on the Commonwealth and his willingness and ability to make restitution at the sentencing hearing. The Deputy Attorney General and the court stressed appellant’s intransigence in failing to repay long overdue liabilities. But when confronted by counsel for appellant with the reason being the seizure by the Internal Revenue Service of appellant’s business in 1983 as depriving appellant of the wherewithal to do so, the Deputy Attorney General replied that he had the money when he withheld it and he should have paid it then. No one denies this; not even appellant. But there is no evidence of record that appellant accumulated the sales tax monies to enrich his own coffers rather than pay them when they were due. Evidence showed that appellant diverted these funds back into his business. This is still a crime, but is not proof that at all times appellant had the ability to make restitution, but refused. Moreover, this is not the situation in which there is an undue risk that appellant will commit the crime again if he is not confined, nor can it be said that appellant is in need of correctional treatment that can be provided most effectively in jail.

The court simply failed to consider many mitigating factors in the circumstances of this case in its emphasis on the nature of the crime. It is true that the matter of sentencing remains in the discretion of the trial court. But merely by way of suggestion, perhaps the trial court should consider that the Commonwealth may be better served and the harm caused to the Commonwealth better compensated by allowing appellant to continue in gainful employment in order to make payments toward the $95,000.00 restitution amount ordered, while appellant complies with the conditions of a lengthy period of probation, or a limited work release (partial confinement) sentence followed by probation. Upon failure to comply, the court would clearly be justified in a revocation proceeding to sentence appellant to a jail term. However, we are relying on the good judgment of the sentencing court to amend this manifestly excessive sentence on remand. See Commonwealth v. Smith, 257 Pa.Superior Ct. 435, 390 A.2d 1315 (1978).

Judgment of sentence is vacated and the case is remanded for resentencing in conformity with this opinion. Jurisdiction relinquished.

      . These factors are:
      (1) The criminal conduct of the defendant neither caused nor threatened serious harm.
      (2) The defendant did not contemplate that his conduct would cause or threaten serious harm.
      (3) The defendant acted under a strong provocation.
      (4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
      (5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.

        (8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment.
      (11) The confinement of the defendant would entail excessive hardship to him or his dependents.
      (12) Such other grounds as indicate the desirability of probation.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    508 A.2d 600
    Michele IOLE, Administratrix of the Estate of Michael Iole, Michele Iole, Frank Iole and Phiolmena Iole, His Wife v. WESTERN AUTO SUPPLY COMPANY, Summit and John Doe, Representing All Those Individual Corporations and Other Entities That Produced Manufactured, Designed, Constructed and/or Assembled and Sold/Or Distributed Wizard 2 Ton Capacity Jack Stands Model Number A-5030.
    Superior Court of Pennsylvania.
    Argued Feb. 20, 1986.
    Filed May 12, 1986.

      John D. Hendricks, Pittsburgh, for appellants.
    Frederick N. Egler, Jr., Pittsburgh, for appellees.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order in the court below refusing to open or strike a judgment of non pros. We vacate.

On November 22, 1983, the plaintiffs filed a praecipe for summons in trespass and assumpsit against Western Auto Supply Company (hereinafter Western) and Summit, the seller and manufacturer, respectively, of a two-ton jack-stand which allegedly collapsed during use and resulted in the death of one Michael Iole.

By April 11, 1984, counsel for Western had entered his appearance and filed a praecipe-with the prothonotary to issue a rule upon the plaintiffs to file a complaint within twenty days from the date of service or suffer a non pros. Receipt of the rule by counsel for the plaintiffs occurred on April 13. A praecipe for judgment of non pros was filed on June 5 and was followed by the entry thereof by the prothonotary for the plaintiffs’ failure to file a complaint.

On June 22, counsel for the plaintiffs submitted a petition to open or strike the judgment. In the petition, the plaintiffs alleged that Western’s counsel was informed of the ongoing negotiations with Summit to settle the case amicably. In order to accomplish this, the plaintiffs secured an extension until May 31 from counsel for Western. However, “counsel for Plaintiffs was under the understanding that the May 31, 1984 date would not be a final deadline, but an approximate date to review the status of settlement negotiations with Summit.” Consequently, the plaintiffs contended, absent any prior notice from Western of its intention to seek a non pros — as was the local custom, a complaint need not have been filed while negotiations with Summit were taking place. To hold otherwise, the plaintiffs urged, would result in a highly inequitable and harsh penalty being imposed upon the petitioners.

On July 3, Western responded in the form of an answer and new matter. In the answer section, it admitted conversing with counsel for the plaintiffs with regard to the extension, that May 31 was agreed upon as the date certain for the extension, and that if any additional extension were needed counsel for the plaintiffs would “contact” defense counsel. All other allegations were denied or could not be responded to because the defendant was without sufficient knowledge to form a belief as to their truth or falsity.

In the new matter portion of the reply, the defendant averred that the plaintiffs’ failure to advise it, as stated in a written communication from the plaintiffs to the defendant dated April 27, 1984, that they were in need of a further extension beyond May 31 rendered the securement of the judgment of non pros on June 5 proper.

In the plaintiffs’ reply to new matter, as herein pertinent, it was alleged that May 31 was not a “deadline” for the filing of the complaint. Rather, “the date was the time to determine the status of negotiations and review the situation.” Thus, it was asserted, “Plaintiff’s counsel was not required to seek a further extension or file a complaint prior to May 31, 1984.”

On petition of the defendant, the court below issued a rule on the plaintiffs to show cause why matters should not proceed as required by Pa.R.Civ.P. 209. The rule was made returnable, “Sec. Leg. Sec. Reg.” In accordance therewith, counsel for the plaintiffs was deposed on October 24, 1984, and in the course thereof gave his reasons for not acting timely in filing a complaint. Thereafter, upon a review of all the evidence, the court below concluded that the “plaintiffs ha[d] not excused their failure to timely file a complaint.” This appeal followed and questions the refusal of the court below to open or strike the judgment of non pros.

The standards we look to in assessing the entry of a judgment of non pros, and its subsequent opening or af-firmance, has been stated by this Court to be the following:

A petition to open a judgment is addressed to the equitable powers of the court. Johnson v. Mulhall, 230 Pa.Super. 183, 326 A.2d 439 (1974); Matyas v. Albert Einstein Medical Center, 225 Pa.Super. 230, 310 A.2d 301 (1973). Accordingly, our Supreme Court has stated that: “A request to open a judgment of non pros is by way of grace and not of right. Its grant or refusal is peculiarly a matter of the lower court’s discretion. An appellate court may not reverse the lower court’s ruling unless an abuse of discretion is clearly evident: Brigham v. Elgin’s of Phila., 406 Pa. 99, 176 A.2d 404 (1962).” Mazer v. Sargent Electric Co., 407 Pa. 169, 171, 180 A.2d 63, 64 (1962). A court will not exercise its discretion and open a judgment of non pros unless three factors coalesce: (1) a petition to open the judgment must be promptly filed; (2) there must be a reasonable explanation or excuse for the default; and (3) facts constituting grounds for a cause of action must be alleged. Goldstein v. Graduate Hospital of the U. of Pa., supra; Thorn v. Clearfield Borough, 420 Pa. 584, 278 A.2d 298 (1966); White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974); Matyas v. Albert Einstein Medical Center, supra.

Lems v. Reid, 244 Pa.Super. 76, 80, 366 A.2d 923, 924 (1976), petition for allowance of appeal denied April 7, 1977. The only criterion in dispute is whether a reasonable excuse was proffered by the plaintiffs to avoid entry of the non pros.

We start our inquiry with a review of the deposition given by counsel for the plaintiffs. At the proceeding, counsel recalled how, after the summons were served upon Summit and Western, he was contacted in January of 1984 by one William Weiler. Mr. Weiler advised him that he would be “representing Summit and maybe Western Auto Supply; he wasn’t sure at that time, and that he would send a letter to confirm it.” In the same phone conversation, according to counsel for the plaintiffs, Weiler had stated that “they would like to try to work out a settlement”, and if counsel would refrain from filing a complaint or any further pleadings to save on the expense of litigation it would be appreciated.

Mr. Weiler’s belief that he would be representing both the manufacturer (Summit) and the distributor (Western) was confirmed by letter to counsel for the plaintiffs dated January 24, 1984. (See Deposition Exhibit “A”) In the same letter, Mr. Weiler asked for medical authorization forms so that he could obtain the coroner’s report and the ambulance report. Also, he asked that the plaintiffs’ expert’s report on the tests conducted on the jack-stand be forwarded to him along with permission to have his investigation company examine the item.

By letter of February 16, counsel for the plaintiffs sent the requested information and advised Mr. Weiler that he had made contact with Weiler’s testing company to have photos taken of the instrument. This was followed-up with a letter dated March 8 to supply what data had not been previously received by Mr. Weiler (See Deposition Exhibit “C”)

It was not until mid-April of 1984 that counsel for the plaintiffs learned that Fred Egler, Jr. had entered his appearance for Western. On April 13, counsel for plaintiffs received a rule to file a complaint as required by Pa.R.Civ.P. 1037(a). This prompted counsel to phone Attorney Egler. He stated he told him that “negotiations were going on to settle the case between the plaintiffs and the manufacturer, ... Summit, who [was] represented by Bill Weiler.” Also, he claimed to have advised Egler that:

... if settlement was to be made, settlement would be made as to all parties [because this was a product liability suit], and that if [the plaintiffs] settle with Summit, that would settle the entire case, including with his [Egler’s] client.

Because counsel for the plaintiffs had not heard from Weiler, in regard to the information forwarded to him, he requested that Egler give the plaintiffs an extension to file the complaint. After some haggling, May 31 was agreed upon. This was confirmed by letter of April 27. (See note 2, supra)

Albeit in the April 27 letter counsel for the plaintiffs wrote that if he needed an additional extension beyond the May 31 period he would so “advise” Attorney Egler, at the deposition he elaborated upon the purported intentions of counsel with regard to the extension date; to-wit:

... you know, at that time[, i.e., May 31,] we would take a look at it and see what position we were in, if we were close to settlement or if we were a million miles away from settlement or what the situation was.

Granted, at Points 9 & 10 of its Answer To Petition To Open Judgment, Western denied the aforementioned interpretation given by counsel for the plaintiffs to the conversation referred to. Nonetheless, since disputed issues of fact in the pleadings (petition and answer) triggered implementation of Rule 209, and, because the deposition of counsel for the plaintiffs was assessed by the court below solely upon a reading of the transcript, we see no justification against this Court drawing its own reasonable conclusions from the record before us. See Bell v. Bell, 326 Pa.Super. 237, 473 A.2d 1069 (1984) (POPOVICH, J.).

Counsel for the plaintiffs received notice on June 7 that a judgment of non pros had been entered on June 5. On June 14, counsel phoned Attorney Egler to inform him that he would be filing a petition to open judgment. This occurred on June 22.

We believe that it is relevant to note that by letter dated May 11, 1984, an associate of Attorney Egler requested that his client’s expert be permitted to conduct non-destructive tests on the jack-stand in question. The letter concluded with the salutation that the writer would “await hearing” from counsel for the plaintiffs on this matter. Counsel responded in writing on May 26. He agreed to make the item available provided one of his representatives be allowed to be present during the testing. In counsel’s closing remarks he asked that he be “advised” of whether these terms were acceptable to counsel for Western. No response ever came. Rather, a judgment of non pros was entered approximately eight (8) days after Attorney Egler should have received the letter through the mails, see generally Franklin Interiors, Inc. v. Browns Lanes, Inc., 227 Pa.Super. 252, 255-256 & n. 2, 323 A.2d 226, 228 & n. 2 (1974), and only five (5) days after the May 31 extension.

Our task, as always, in reviewing the discretion exercised by a lower court is not to substitute our judgment for that of the lower court but to determine if the lower court’s action was manifestly unreasonable. Saint Vladimir Ukrainian Orthodox Church v. Preferred Risk Mutual Insurance Co., 239 Pa.Super. 492, 362 A.2d 1052 (1976). However, our considerations in making this determination, in light of the tripartite test mentioned earlier, is to be tempered by our application of equitable principles, a tool utilized in weighing the propriety of rulings concerning default judgments. See Toplovich v. Spitman, 239 Pa.Super. 327, 361 A.2d 425 (1976). We find the same principles applicable here. See Goldstein v. Graduate Hospital of University of Pa., 441 Pa. 179, 272 A.2d 472 (1971).

Our extensive review of the case law dealing with judgments of non pros, and whether they should be affirmed or vacated, leads us to conclude that, under the unique facts here, the plaintiffs are entitled to have the judgment vacated. We find support for our determination in the reasoning of this Court in Holliday v. Foster, 221 Pa.Super. 388, 292 A.2d 438 (1972).

In Holliday, we dealt with the question of whether the court below abused its discretion or committed an error of law in denying relief where the delay in filing a complaint occurred approximately five years after the service of the summons. Counsel for the plaintiffs offered as one of his reasons for the delay the fact that he was engaged in “negotiations with the insurance carrier of the defendant”. In making our ruling that the judgment should be vacated, we made the following observations:

The normal way of avoiding undue delay in the filing of a complaint, when an action is commenced by service of a summons, is Pa.R.C.P. 1037(a), 12 P.S. Appendix. The plaintiff is given notice, and if he fails to file a complaint within 20 days, the defendant by filing a praecipe can automatically obtain a judgment of non pros. The existence of that procedure does not limit the inherent power of the court to grant the remedy of non pros. Because of the availability of Pa.R.C.P. 1037(a), however, the courts should limit their exercise of power as to failure to file a complaint to cases of rather extreme delay. All such appellate cases have entailed a delay much in excess of five years. Even more important in the instant case, the delay was satisfactorily explained without contradiction and there is nothing of record to show that “the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.” James Bros. Co. v. Union B. & T. Co., supra, 432 Pa. at 132, 247 A.2d at 589.

221 Pa.Super. at 390-391, 292 A.2d at 439-440 (Footnotes omitted).

Instantly, as in Holliday, counsel for the plaintiffs was involved in on-going negotiations (there, with an insurance carrier of the defendant; here, with a co-defendant of Western’s) to resolve the case without having to proceed to trial. As stated by counsel for the plaintiffs during his deposition, he informed Attorney Egler that, “There is no way that the manufacturer was going to settle with [him] when they could be dragged in under subrogation or indemnification.” Thus, from the letter written by counsel for the plaintiffs on May 26, 1984, in response to Western’s counsel’s request to test the jack-stand, it is reasonable to infer that at least by that late date dialogue was continuing among the parties to seek an amicable solution to the dispute short of going to trial.

We have found no cases which would approve of the entry of the sanction imposed by the court below in light of the negotiations persisting in the case at bar. We cannot, in like fashion, lend our imprimatur to such a harsh result when weighed against no evidence that the defendant’s ability to present factual information in the event of trial will be prejudiced. See Lewis v. Reid, supra; Holliday v. Foster, supra.

Order vacated. Jurisdiction is relinquished.

      . Attached to the petition was a 49-page, 18-count complaint in trespass and assumpsit in support of the plaintiffs’ claim that a meritorious cause of action existed against Western and Summit.

      . The letter referred to by the defendant was written by counsel for the plaintiffs to counsel for the defendant on the date stated and reads:
      Dear Mr. Egler:
      This is to confirm our telephone conversation of April 13, 1984 in which you graciously granted an extension to May 31, 1984 to file a complaint in this matter. As we agreed, if at that time I need a further extension I will so advise you.

      . Although the order appealed is interlocutory, Pa.R.App.P. 311(a)(1) permits the taking of such an appeal. See Bottero v. Great Atlantic & Pacific Tea Co., 316 Pa.Super. 62, 462 A.2d 793 (1983); see also Kukich v. Serbian Eastern Orthodox Church of Pittsburgh, 415 Pa. 28, 202 A.2d 77 (1964). We wish to point out that we do not read Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 450 A.2d 157 (1982) to require otherwise, and limit that decision (i.e., exceptions to judgment of non pros treated as reconsideration motion and did not toll statute of limitations to permit appeal beyond 30-day áppeal period) to the facts of the case.

      . Since the plaintiffs’ petition was not directed to defects in the record, their petition should have been simply entitled petition to open. Mazer v. Sargent Electric Co., 407 Pa. 169, 180 A.2d 63 (1962). Consequently, we will treat the petition as merely one to open. See, e.g., Goldstein v. Graduate Hospital of University of Pa., 441 Pa. 179, 272 A.2d 472 (1971); Mazer v. Sargent Electric Co., supra.

      . We are allowing two (2) days for the letter to clear the post office. This period is equal to the passage of time consumed by the mail carrier in delivering Western’s rule to file a complaint by return receipt to the plaintiffs’ counsel in April of 1984.


author: WIEAND, Judge:

text:
    508 A.2d 1200
    Arthur H. HENZE, Executor of the Estate of Virginia M. Henze, Deceased, and Arthur H. Henze, in his own right v. TEXACO, INC., a corporation, David Rice, t/d/b/a Rice’s Texaco, and Leo and Rose Pancari. Appeal of TEXACO, INC., a corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1985.
    Filed April 3, 1986.
    Reargument Denied May 28, 1986.

      Richard L. McMillan, Pittsburgh, for appellant.
    Michael Louik, Pittsburgh, for Authur H. Henze, executor and in his own right, appellee.
    David L. Beck, Pittsburgh, for Rice, appellee.
    Scott Millhouse, Pittsburgh, for Pancari, appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

Virgina Henze fell when she tripped over a threshold which had become loose in the doorway to the office of a Texaco service station operated by David Rice. The service station was owned by Leo and Rose Pancari, but the same had been leased to Texaco, Inc. and sublet to David Rice, t/a Rice’s Texaco. In an action to recover damages for personal injuries, Henze alleged that the threshold had been negligently maintained. A jury apportioned negligence as follows: Mrs. Henze — 35%; Texaco, Inc. — 52%; David Rice — 13%. Texaco’s motions for judgment n.o.v. and for a new trial were overruled, and judgment was entered on the verdict. Texaco appealed.

On appeal, Texaco contends (1) that it is entitled to a judgment n.o.v.; (2) that the trial court erroneously instructed the jury regarding the liability of a “landlord out of possession”; and (3) that the trial court erred in dismissing Texaco’s claim for indemnity against Rice. We con-elude that the evidence was insufficient to support a finding that Texaco was negligent.

On July 2, 1980, Mrs. Henze entered the office at Rice’s Texaco Station for the purpose of making an appointment to have her car inspected. As she was leaving the office, she stepped on a loose threshold in the doorway, which caused her to lose her balance and fall. The service station had been leased to and was operated by Rice continuously after 1970. The lease in existence at the time of the accident contained a clause which required Rice to maintain the service station “in good repair and in good, clean, safe and healthful condition.” The lease provided further that if Rice failed to make the necessary repairs, Texaco could make the repairs and charge them to Rice’s account. Throughout the course of Rice’s tenancy, both parties made repairs in and around the station. Although Rice generally notified Texaco whenever major repairs became necessary, Texaco also sent a representative twice a month to inspect» the station. On one occasion, Texaco had installed a kickp-late on the door to the office. Other minor repairs, however, had been made by Rice. Significantly for our purposes, on two or three occasions prior to Mrs. Henze’s fall, Rice had discovered the looseness of the threshold and had repaired it by tightening the screws that held it in place. At no time did Rice request that Texaco make repairs to the threshold or notify Texaco that the threshold had a propensity for becoming loose. The propensity of the threshold to become loose, moreover, could not be detected by a visual inspection. The evidence did not disclose that Texaco had any knowledge or reason to know that on occasion the threshold had become loose.

On a motion for judgment n.o.v., the facts must be considered in the light most favorable to the party against whom the motion is made. Maravich v. Aetna Life and Casualty Co., 350 Pa.Super. 392, 396, 504 A.2d 896, 898 (1986); Kearns v. Clark, 343 Pa.Super. 30, 34, 493 A.2d 1358, 1360 (1985); 10 Std.Pa.Prac.2d § 64:14 (1982). If, however, the law permits no recovery upon the facts which have been alleged and which the jury may justifiably have found, a judgment n.o.v. is properly granted. Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 589, 375 A.2d 1267, 1273 (1977); Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 893 (1984); 10 Std.Pa.Prac.2d § 64:5 (1982).

A landlord out of possession is generally not responsible for injuries suffered by a business invitee on the leased premises. Dinio v. Goshorn, 437 Pa. 224, 228-229, 270 A.2d 203, 206 (1969); Bouy v. Fidelity-Philadelphia Trust Co., 338 Pa. 5, 7, 12 A.2d 7, 8 (1940); Pierce v. Philadelphia Housing Authority, 337 Pa.Super. 254, 257, 486 A.2d 1004, 1005 (1985); 22 P.L.E. Landlord and Tenant § 257 (1959). See: Prosser and Keeton on Torts § 63 (5th ed. 1984); Restatement (Second) of Torts § 356 (1965). This rule is subject to several exceptions. A landlord out of possession may incur liability (1) if he has reserved control over a defective portion of the demised premises, see: Smith v. M.P.W. Realty Co., 423 Pa. 536, 539, 225 A.2d 227, 229 (1967); Pierce v. Philadelphia Housing Authority, supra; (2) if the demised premises are so dangerously constructed that the premises are a nuisance per se, see: Miller v. Atlantic Refining Co., 12 D. & C.2d 713, 719 (1957), aff'd, 393 Pa. 466, 143 A.2d 380, 383 (1958); (3) if the lessor has knowledge of a dangerous condition existing on the demised premises at the time of transferring possession and fails to disclose the condition to the lessee, see: id.; (4) if the landlord leases the property for a purpose involving the admission of the public and he neglects to inspect for or repair dangerous conditions existing on the property before possession is transferred to the lessee, see: Yarkosky v. The Caldwell Store, Inc., 189 Pa.Super. 475, 481, 151 A.2d 839, 842 (1959); (5) if the lessor undertakes to repair the demised premises and negligently makes the repairs, see: Coradi v. Sterling Oil Co., 378 Pa. 68, 71, 105 A.2d 98, 99 (1954); or (6) if the lessor fails to make repairs after having been given notice of and a reasonable opportunity to remedy a dangerous condition existing on the leased premises, see: Goodman v. Corn Exchange National Bank and Trust Co., 331 Pa. 587, 590, 200 A. 642, 643 (1938). See generally: 22 P.L.E. Landlord and Tenant §§ 257-260; Prosser and Keeton on Torts § 63 (5th ed. 1984); Restatement (Second) of Torts §§ 356-362 (1965).

It is clear in the instant case that Texaco was physically out of possession of the service station. The station was occupied exclusively by Rice and operated independently by Rice and his employees. The trial court, however, believed that Texaco had exercised control over the station because it had made repairs from time to time. The court concluded, therefore, that the jury’s verdict could be made to rest upon a finding that Texaco was in possession of the service station and should have discovered and repaired the loose threshold. We are constrained to disagree. “Reservation by a lessor of the right to enter upon the leased premises for various purposes and to make repairs and alterations, if he should elect to do so, implies no reservation of control over the premises which will render him chargeable with their maintenance and repair. Moreover, the fact that the landlord makes repairs does not impose [on him either a duty] to keep the demised premises in repair, or liability for damages for injuries caused by a failure to keep the premises in repair.” 49 Am.Jur.2d Landlord and Tenant § 775 (1970). See: Moore v. Weber, 71 Pa. 429, 431-432 (1872); 51C C.J.S. Landlord and Tenant § 366(1) (1968). In the instant case, therefore, the mere fact that Texaco occasionally made repairs to the service station did not subject it to liability as a lessor in possession.

Texaco’s activities, moreover, did not bring it within any of the exceptions to the rule limiting the liability of a landlord out of possession. The first exception holds the lessor liable if he reserves control over the offending portions of the demised premises. Here, Texaco did not reserve control over the office or the entrance thereto. The second exception was also inapplicable, there being no evidence that the threshold to the office was a nuisance or that it was inherently dangerous. Similarly, there was no evidence that the threshold to the office had been defective at the time when the service station was leased to Rice or, indeed, that the threshold had at that time a propensity for being loosened by use. There also was no evidence that Texaco should have anticipated that the threshold would become loose during the term of the lease. Moreover and in any event, the evidence was unambiguous that it had been Rice who, in fact, had discovered and repaired the looseness of the threshold whenever it occurred. Thus, the third exception does not apply. For similar reasons, Texaco did not fall within the ambit of the fourth exception, which imposes liability upon a lessor who leases property for a public purpose without inspecting and repairing the property before possession is transferred. See: Prosser and Keeton on Torts § 63, at 439 (5th ed. 1984). The fifth exception, which holds a lessor liable for negligently repairing the demised premises, is also inapplicable, because Texaco had never been called upon to make repairs to the threshold.

The inapplicability of the sixth and final exception, which imposes liability upon a lessor who fails to make repairs after being afforded notice and a reasonable opportunity to do so, requires a more extended review and explanation. A lessor out of possession, as we have observed, is generally under no duty to repair the demised premises. Levine v. McClenathan, 246 Pa. 374, 376, 92 A. 317, 318 (1914); Johnstown Millwork and Lumber Co. v. Varner, 117 Pa. Super. 374, 378, 177 A. 325, 326 (1934). If the lessor has agreed to make repairs, however, he is entitled to timely notice and a reasonable opportunity to remedy any dangerous condition which arises on the premises. Goodman v. Corn Exchange National Bank and Trust Co., supra. Notice may be constructive as well as actual. Smith v. M.P.W. Realty Co., supra 423 Pa. at 539-540, 225 A.2d at 229. See: Dinio v. Goshorn, supra 437 Pa. at 228-229, 270 A.2d at 206. See also: 51C C.J.S. Landlord and Tenant § 371 (1968). Whether a lessor will be charged with constructive notice of a dangerous condition depends upon how frequently he has inspected the leased premises, and for how long the unsafe condition has existed. See: Miller v. Atlantic Refining Co., supra; Smith v. M.P.W. Realty Co., supra. See generally: 49 Am.Jur.2d Landlord and Tenant § 815 (1970). Absent notice and an opportunity to make the repairs, a lessor is not liable to an invitee injured on the premises.

In Miller v. Atlantic Refining Co., supra, the plaintiff slipped and fell after stepping in motor oil which had been allowed to cover the sidewalk adjacent to a service station. An action was brought against both the owner and lessee of the station for negligent maintenance of the sidewalk. A jury failed to agree upon a verdict. The owner then filed a motion for judgment on the whole record. This was granted by the trial court. On appeal to the Supreme Court, the issue was whether plaintiffs evidence was sufficient to support a finding that the owner was liable for the dangerous condition of the sidewalk. Under the terms of the lease, the lessee had been made responsible for keeping the sidewalk clean and clear of obstructions. The evidence disclosed also that the lessee had in fact cleaned the sidewalk regularly. Nevertheless, because of the nature of the service station’s business, the oil and grease had continually reappeared. It was also established that although the owner had periodically inspected the station, it was unaware of the dangerous condition which existed on the sidewalk. In the opinion of the trial court, which the Supreme Court approved, the law was explained as follows:

With a recurring and removable potentially dangerous condition such as we are here considering, a landlord out of possession would be faced with an intolerable burden were he to be charged with notice and the responsibility of removal; he would have to station an employee on the premises for the sole purpose of protecting him from this contingency. We know of no Pennsylvania case that imposes such a burden on a landlord out of possession.

12 D. & C.2d at 722, aff'd, 393 Pa. 466, 143 A.2d 380, 385. In affirming, the Supreme Court agreed with the conclusion of the trial court that “[o]n the basis of the record before us there is nothing on which the jury could base a finding that defendant [the owner of the station] had, or should have had notice of the presence of the oil at the time of plaintiffs fall.” Id.

The Supreme Court of Oregon in McWilliam v. Phillips Petroleum, Inc., 269 Or. 526, 525 P.2d 1011 (1974), sustained the entry of an involuntary nonsuit under facts which are strikingly similar to those in the instant case. There, the plaintiff had been injured when a broken transom window in the restroom of a service station owned by Phillips Petroleum, Inc. and leased to Leland Prather had fallen and had struck the plaintiff. Although the lease between Phillips and Prather required Prather to maintain and repair the station, the parties had followed a practice whereby Phillips made major repairs and Prather made various minor repairs. The procedure followed by the parties had been for Prather to notify Phillips when repairs were needed. Phillips also sent a sales representative who inspected Prather’s station every month or two. The transom window was not readily visible by a person standing below, and neither Prather nor Phillips was aware that the window had been broken. The Court observed that “[a]s a general rule, in the absence of a special agreement to make repairs, a landlord is under no duty to do so. However, he may, under the terms of the lease, covenant to make repairs, but he must have timely notice of the need for repairs before he is obliged to make them.” Id. at 528, 525 P.2d at 1012. The Court concluded that because Phillips had not had notice of the broken window, it could not be held liable to an invitee of the service station. Id. at 529, 525 P.2d at 1013.

In the instant case, the threshold which caused Mrs. Henze’s fall had been maintained and repaired solely by Rice throughout the term of the lease. Despite Rice’s efforts to secure the threshold, it became loose on several occasions. As in Miller, the condition was one which “would happen, be corrected, and happen again.” Miller v. Atlantic Refining Co., supra at 722, aff'd, 393 Pa. 466,143 A.2d 380, 384. Texaco had received no notice that the threshold was susceptible to loosening, and the propensity for becoming loose was not one that would have been detected during Texaco’s bimonthly, visual inspections of the service station. Absent either actual or constructive notice of a loose threshold, however, Texaco could have no liability as a landlord out of possession for injuries sustained by Mrs. Henze when she tripped over the loose threshold.

The record in this case is clear that there was no reason for Texaco to know of the condition of the threshold which caused Mrs. Henze to fall. Therefore, Texaco was not liable for her injuries. Texaco’s motion for judgment n.o.v. should have been granted. The failure to keep the threshold in repair under the facts of this case was a violation of a duty owed by the tenant.

We are now faced with an issue of first impression in Pennsylvania. Having determined that Texaco should have been awarded a judgment n.o.v., what is the effect of the judgment n.o.v. upon the jury’s findings that Mrs. Henze’s causative negligence was 35% and David Rice’s negligence was 13%? An answer can be found in the decisions of the Supreme Court of Wisconsin, where the Court recognized that any attempt by a court to reapportion the negligence found by the jury would be speculative and, therefore, improper. The better practice, the Wisconsin court held, is to order a new trial with respect to the other parties. See: Chart v. General Motors Corp., 80 Wisc.2d 91, 112, 258 N.W.2d 680, 689 (1978); Nelson v. L. & J. Press Corp., 65 Wisc.2d 770, 783, 223 N.W:2d 607, 614 (1974). We are constrained to agree that an attempt by a court to reapportion negligence in this case would be speculative. The issue of damages, however, has been fairly tried. Indeed, none of the parties have suggested error with respect to the trial of the damage issue. Similarly, there is no need to re-try the jury’s finding that Leo and Rose Pancari were not negligent. The only issue requiring a retrial is the apportionment of the negligence of Virginia Henze and David Rice.

Judgment reversed and cause remanded with directions to enter judgment n.o.v. in favor of Texaco, Inc. and for a new trial on the issue of the causative negligence of Virginia Henze and David Rice.

      . The jury found that Leo and Rose Pancari had not been negligent.

      . Virginia Henze subsequently died, and her executor was substituted as a party.

      . Although our decision of the first issue suggests the absence of any need to decide the correctness of the trial court’s jury instructions, our review reveals inaccurate and inadequate instructions which necessarily contributed to an improper verdict.


author: HESTER, Judge:

text:
    508 A.2d 1205
    Gail FORTUNE/FORSYTHE v. Herman FORTUNE, Appellant. Gail FORSYTHE, Appellant, v. Herman FORTUNE.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed April 28, 1986.

      Judy F. Berkman, Philadelphia, for appellant (at 848) and appellee (at 318).
    Harry Frank, Philadelphia, for appellant (at 318) and appellee (at 848).
    Before BROSKY, McEWEN and HESTER, JJ.
   HESTER, Judge:

These are consolidated appeals concerning child support. The first was filed by Herman Fortune from an order denying his petition and amended petition for reconsideration. The other was filed by Gail Forsythe (formerly Fortune) from an order suspending support. Educational expenses for the parties’ son, Jonathan, are at issue.

Fortune and Forsythe executed a marital settlement agreement on January 23, 1976, to settle child custody, support, alimony, distribution of marital property and other matters germane to the dissolution of their marriage. For-sythe was awarded full custody of the parties’ minor children, Jonathan and Vivian, subject to Fortune’s partial custody rights. It was further agreed that Fortune would pay $50.00 per week for the support of Jonathan and $35.00 per week for Vivian. The parties were divorced in 1976.

In March, 1980, Fortune was ordered to pay $130.00 per week for the support of both children. By order dated May 26, 1982, support was reduced to $60.00 per week for Vivian and suspended for Jonathan. Jonathan was a freshman at the University of Tennessee during the 1981-1982 academic year, and it was held that Fortune was not obligated to contribute to educational expenses. The May, 1982 order was retroactive to May, 1981; therefore, Fortune was awarded a credit for support paid from May, 1981 to May, 1982. The May 26, 1982 order was not appealed.

Pursuant to Forsythe’s petition to modify support, an order of October 19, 1983, continued support of $60.00 per week for Vivian and reinstated support for Jonathan in the same amount. As this order was retroactive to May, 1981, it in effect overruled the May, 1982 order.

Thereafter, Fortune filed a petition and amended petition for reconsideration. Following a hearing, both petitions were dismissed by order dated February 14, 1984. Fortune filed an appeal from that order which is the first of the appeals consolidated herein.

In October, 1984, while the first of these appeals was pending, Fortune filed a petition to vacate support for Jonathan. By order dated January 4, 1985, support for Jonathan was suspended and support of $60.00 per week was continued for Vivian. Forsythe’s appeal from the January, 1985 order is the second of these consolidated appeals.

We are confronted with both procedural and substantive issues. We must first determine whether the order denying Fortune’s petitions for reconsideration is appealable.

In Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977), the plaintiff bank was awarded a summary judgment. When the defendant’s petition for reconsideration of the summary judgment was denied, he appealed. The appeal was quashed as it was not filed within thirty days of the summary judgment. It was of no consequence that the appeal was timely filed from the order dismissing the petition for reconsideration; an order dismissing a petition for reconsideration is nonappealable.

The Provident court reasoned that the petition for reconsideration did not toll the thirty-day appeal period which commenced at the entry of the summary judgment. Had a stay or an order granting reconsideration been entered, an appeal could have been timely filed more than thirty days from entry of the summary judgment.

Here, Fortune filed a petition and amended petition for reconsideration of the order of October 19, 1983, but he did not appeal from that order. Both petitions were dismissed on February 14, 1984, and appellant appealed on March 15, 1984. The trial court dismissed the petitions because it acknowledged that it had no authority to reconsider the October, 1983 order once thirty days had elapsed. As noted in Provident, Pa.R.A.P. 1701(b)(3)(H) authorizes the trial court to grant reconsideration only within the appeal period. Therefore, a party is expected to file his notice of appeal and petition for reconsideration simultaneously. If the petition is granted, the appeal becomes inoperative. If the petition is denied, the appeal continues.

By failing to appeal from the October, 1983 order, Fortune cannot challenge it through an appeal from the order dismissing his petitions for reconsideration. The trial court’s refusal to reconsider the support order is not final and reviewable. Provident, supra; Merrick Estate, 432 Pa. 450, 247 A.2d 786 (1968).

Under these circumstances, it appears we are without jurisdiction to review either the support order or the order dismissing Fortune’s petitions for reconsideration. Upon close examination of Fortune’s amended petition for reconsideration, however, we hold that it was actually a petition for modification of support which resulted in a final and reviewable order.

A petition for modification of support is authorized by Pa.R.C.P. 1910.19, and follows the procedure set forth for petitions for support in Pa.R.C.P. 1910.11 and 1910.12. Accordingly, orders modifying support are final and appeal-able. Although the trial court’s order of February 14, 1984, dismissed Fortune’s petitions for reconsideration, it was entered following a hearing which produced testimony on a change in Fortune’s financial condition. Fortune averred in his amended petition for reconsideration and also testified that he became obligated following the October, 1983 order to support a child from his second marriage. For these reasons, we look beyond the title of Fortune’s amended petition and consider its contents in order to characterize it. See Abramson v. Commonwealth, Public Utility Commission, 489 Pa. 267, 414 A.2d 60 (1980). Fortune actually presented a petition for modification, and his appeal was taken from the order of February 14, 1984, which denied modification. Accordingly, the order is reviewable and Fortune’s appeal is timely. We shall hereafter refer to Fortune’s petition and amended petition for reconsideration, collectively, as a petition for modification.

A reviewing court does not have the authority to reverse a support order if there was sufficient evidence to sustain the trial court. The trial court has the unique advantage of observing the parties and hearing their testimony. As a result, there must be an abuse of discretion in order to reverse. Commonwealth ex rel. Grallnick v. Grallnick, 279 Pa.Super. 347, 421 A.2d 232 (1980).

The following facts were pertinent when Fortune filed his petition for modification in 1983. Forsythe was a full-time public school teacher who also worked part-time as a college instructor and as a department store clerk. She was residing in Tennessee with Jonathan and Vivian. Her gross yearly salary from her public school, teaching was $15,-000.00. She earned an additional $1,800.00 yearly from college teaching and $3,000.00 yearly from clerking.

Jonathan was a junior at the University of Tennessee. His yearly expenses for room, board, tuition and miscellaneous items were $6,000.00. A bank loan of $2,400.00, contribution by Forsythe of $1,300.00 and Jonathan’s summer income of $2,000.00 defrayed most of these expenses.

Fortune resided in Philadelphia where he was a full-time professor at the University of Pennsylvania. He earned $49,000.00 annually as a professor, and produced net monthly income of $280.00 as a consultant.

In the absence of an agreement, a parent has no duty to contribute to the college expenses of a child unless the parent has sufficient assets and income to make payments without undue hardship. Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981); Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979). Several factors must be considered in deciding whether support is appropriate for a child in college: 1) the ability and willingness of the child to pursue undergraduate studies; 2) the child’s income; and 3) the assets, earning capacity and income of the parent. Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963). Supporting a child in college without undue hardship may nevertheless entail sacrifice. Lederer v. Lederer, supra.

The 1976 marital settlement agreement obligated Fortune to provide for the college education of Jonathan, provided that Fortune selected the college. Jonathan matriculated at the University of Tennessee against his father’s wishes. Fortune wanted him tp attend the University of Pennsylvania where his tuition would be free. Since Fortune did not select Jonathan’s undergraduate school, the condition to his obligation to support was not met. Therefore, we hold that there was no agreement to provide support, and the modification order must be reviewed under the undue hardship test.

Fortune argues that the order of October 19, 1983, was improper insofar as it reimposed his support obligation retroactive to May 19, 1981. We reject this argument on procedural grounds. Fortune’s appeal is from the order of February 14, 1984, which denied his petition for modification; only issues concerning modification are before us. The propriety of the October, 1983 order is not at issue because Fortune did not appeal from that order, and the order of February 14, 1984, to the extent it refused to reconsider the October, 1983 order, is not appealable.

Next, Fortune argues that the trial court erred in denying his petition for modification because it failed to consider a material and substantial change of circumstances. In Commonwealth ex rel. Stone v. Stone, 293 Pa.Super. 427, 430, 439 A.2d 185, 187 (1981), this Court summarized the principles governing modification of child support.

First, that “the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification,” ...; second, that “only material and substantial changes in circumstances, as proven by competent evidence, will warrant modification of a support order,” ...; and third, that “a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to require such modification,” ... (citations and italics omitted).

Fortune testified that following the order of October 19, 1983, he became obligated to pay $60.00 per week and $3,700.00 in arrearages for the support of his third child, who was born of his second marriage. According to Fortune, this new support obligation constituted a substantial and permanent change in circumstances justifying a modification in support for Jonathan.

This new support obligation might be viewed as a substantial increase in Fortune’s expenses, or a material change of circumstances. See Jaskiewicz v. Jaskiewicz, 325 Pa.Super. 507, 473 A.2d 183 (1984). We iterate that the trial court did not deny Fortune’s petition for modification on grounds that he failed to prove a change of circumstances. The petition was dismissed because it was viewed as a request for reconsideration only, and the court stated that it had no jurisdiction to reconsider support. Perhaps the trial court would have modified support on the basis of the new child support obligation had it entertained a petition for modification. Accordingly, we reverse the order of February 14, 1984, and remand for further proceedings on modification.

Forsythe appeals from the order of January 4, 1985, which vacated support for Jonathan. Prior to reviewing the substantive nature of this order, we must determine whether the trial court had jurisdiction to proceed on the petition to vacate.

Fortune had filed his notice of appeal on March 15, 1984, ten months prior to the order vacating support. Under Pa.R.A.P. 1701(a), the trial court may not “proceed further in the matter” once an appeal is taken. There are several instances, however, when the trial court may proceed. Pa. R.A.P. 1701(b); see Cohen v. Jenkintown Cab Co., 300 Pa.Super. 528, 446 A.2d 1284 (1982). If the trial court had authority to vacate support for Jonathan following Fortune’s appeal, it emanated from subsection (b)(1) of Rule 1701, which states,

After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may:
Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding (emphasis added).

We must determine whether the petition to vacate was ancillary to Fortune’s appeal from the order for modification. We are not aware of precedent on this precise issue; therefore, we shall consider the relationship between Fortune’s appeal and his subsequent petition to vacate. In so doing, we conclude that they were independent of each other, and that the trial court had jurisdiction to proceed.

The petition to vacate concerned matters arising subsequent to those at issue on appeal from the order for modification. It was not necessary for the trial court to possess the record, then before this court, as new evidence only was relevant to the petition to vacate. Furthermore, the appeal from the order for modification was unaffected by the trial court’s disposition of the petition to vacate. In Commonwealth ex rel. Brown v. Brown, 254 Pa.Super. 410, 386 A.2d 15 (1978), an appeal from a divorce decree did not divest the trial court of jurisdiction to award or terminate support. The appeal had suspended the divorce, and support involved issues collateral to the appeal. The same approach is applicable here.

A significant policy consideration supports our holding that the petition to vacate is ancillary to the first appeal. A complaint for support and petition for modification are generally retroactive only to filing. Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983). Should an appeal from a support order delay the filing of a petition for modification until the appeal is terminated, the petitioner would be compelled to wait even though grounds for modification arise in the meantime. Unless modification were retroactive to the time circumstances changed, the petitioner must pay the higher support during the appeal. Making a modification order retroactive to the time circumstances changed would not necessarily solve the problem as the recipient of support might be without means to remit the overpayment.

Finally, we address the question whether the trial court properly suspended support for Jonathan. We refer to our discussion above concerning the standard for modification of support. We further note our limited scope of review in support cases. The trial court vacated support due to Fortune’s new obligation to support his third child. A duty to pay $60.00 per week and to defray arrearages in excess of $3,000.00 constituted a substantial change of circumstances. Considering Fortune’s income, Jonathan’s sources for payment of college expenses and Fortune’s expenses, most notably his obligation to pay $60.00 weekly for two daughters, the trial court did not abuse its discretion in suspending support for Jonathan. Therefore, we affirm this order of January 4, 1985.

Order of February 14, 1984, reversed and remanded for proceedings on Fortune’s petition for modification. Order of January 4, 1985, affirmed. The petition for modification shall be entertained by the trial court for a period terminating with the effective date of the order to vacate. Jurisdiction relinquished.


author: KELLY, Judge:

text:
    508 A.2d 1211
    COMMONWEALTH of Pennsylvania v. Samuel BENNIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1986.
    Filed May 1, 1986.

      Mary McNeil Zell, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   KELLY, Judge:

Following a jury trial, defendant was found guilty of robbery and criminal conspiracy. Post-trial motions were denied, and he was sentenced to serve a term of imprisonment of 3 to 10 years for the robbery conviction and llh to 10 years on the conspiracy count, to be served concurrently. Defendant now appeals.

The evidence presented by the Commonwealth showed that on January 29, 1984, the victims, Father Logan, an elderly member of the clergy, and his wife, were accosted and robbed as they attempted to enter their South Philadelphia home. While the co-defendant pushed the clergyman to the ground and took his wallet, the defendant engaged in a face-to-face struggle with Mrs. Logan, who was trying to keep the assailants out of her home. The two were apparently discouraged from entering the home by the cries for help of Mrs. Logan. The following evening, on January 30, 1984, two Philadelphia police officers stopped an automobile driven by the defendant, with co-defendant as passenger, when they went through a stop sign. As the officers approached the automobile, one of them observed the co-defendant take something from his pocket and place it under the front seat. After ordering the two suspects out of the car, the officer found a wallet under the seat, opened it, and discovered that it contained credit cards of a Father Logan. The suspects were taken to a police station where the Logans positively identified the co-defendant, but failed to identify appellant. Appellant was released. Two days later, he visited the Logan home, purportedly to inform Mrs. Logan that she was mistaken in her identification of the co-defendant. Before the preliminary hearing for the co-defendant, held a few weeks after the incident, Mrs. Logan identified the defendant from a photographic display of nine black males. Defendant was then arrested, and the case against him was consolidated with the case against the co-defendant.

On appeal, defendant alleges that (1) the trial court erred in denying the motion to suppress the wallet, which was seized in the search of the automobile, and (2) trial counsel was ineffective. We find neither of these two arguments to be persuasive. We, therefore, affirm.

Defendant first challenges the validity of the search of the wallet, which was found under the passenger’s seat of the car which he was driving at the time of his arrest. Appellant does not allege that the automobile was improperly stopped pursuant to a traffic violation, nor does he challenge the authority of the police officer to search under the seat of the automobile for the unknown object which the officer had seen the co-defendant hurriedly stow under the seat as the car was pulled over. See Commonwealth v. Baker, 347 Pa.Super. 213, 500 A.2d 483 (1985). Defendant contends that, once the officer discovered that the hidden object was not a weapon or an illegal substance, he could not make a search of the wallet’s contents.

While searches and seizures conducted outside the judicial process, without prior approval by a magistrate, are generally unreasonable under the Fourth Amendment, Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), there is an established departure from the warrant requirement for certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the “diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations.” Commonwealth v. Tim-ko, 491 Pa. 32, 38, 417 A.2d 620, 623, 417 A.2d 620 (1980) citing U.S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Thus, under certain circumstances, an immediate search of an automobile is constitutionally permissible.

In Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972), a police officer stopped the car which appellant was driving and ordered defendant out of the car. As the officer radioed for assistance, he noticed a dark object, later determined to be a sock filled with stolen jewelry, being thrown from the car window. On appeal, the Supreme Court upheld the search of the vehicle. “The attempt to discard valuable jewelry, in itself,” the Court stated, “was sufficient to warrant the officers in the belief that other evidence of the crime or crimes might be found in the automobile.” 288 A.2d at 735. Similarly, in the instant case, the co-defendant’s attempt to hide the wallet, an item of obvious value, justified the officer’s seizure and examination of it.

The key to judging the constitutionality of a search is its reasonableness under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Macolino, 336 Pa.Super. 386, 485 A.2d 1134 (1984). Upon reviewing the totality of the circumstances in the case at bar, we are persuaded that the search of the wallet was reasonable.

Next, defendant raises numerous allegations of ineffectiveness of counsel. In evaluating the effectiveness of counsel, we must utilize a two-step analysis. First, we must determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Counsel is presumed to be effective, and the burden of establishing ineffectiveness rests upon the appellant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). Even though the issues that could have been raised have some arguable merit, counsel is not per se ineffective for failing to raise them, if his conduct could reasonably have furthered his client’s interest. Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982). A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Defendant first asserts that counsel was ineffective for failing to file a motion to suppress the pretrial photograph identification made by Mrs. Logan. Defendant alleges that a motion should have been filed based upon the theories that the identification was (1) the fruit of illegal police conduct in searching the wallet and (2) tainted by two suggestive pre-arrest procedures. As we have already determined that the police properly searched the wallet, defendant’s first contention is without merit. Defendant alleges that the trial identification was tainted because the earlier stationhouse lineup and the photographic array were unduly suggestive. We find that these contentions have no arguable merit. We, therefore, will not proceed to the question of whether the course chosen by defense counsel had some reasonable basis designed to effectuate his client’s interest.

The stationhouse identification did not result in the identification of the defendant. The issue of Mrs. Logan’s credibility, given her inability to identify appellant at the stationhouse, goes to the weight to be accorded her testimony rather than its admissibility. Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). The photographic array, which did result in an identification of defendant, is challenged as being unduly suggestive. Defendant offers no evidence for this speculation. The array, which was made a part of the record, consisted of nine photos of black males, similar in appearance to the defendant. The trial court, therefore, found that the array was proper.

Most importantly, the trial court found that Mrs. Logan’s trial identification had a basis independent of either the stationhouse lineup or the photographic array. See Commonwealth v. Silver, supra. Notwithstanding any prior impermissible suggestive confrontation, a subsequent identification is admissible where there is clear and convincing evidence that it is based upon a source independent of the taint. Commonwealth v. McIntosh, 328 Pa.Super. 255, 476 A.2d 1316 (1984). The factors to be considered in determining whether the in-court identification was based on the witness’ observations at the time of the robbery and thus had a basis independent of the prior taint include: the witness’ “opportunity to observe the criminal act; ... any identification of anyone other than defendant; and the lapse of time between the crime and the identification”. Commonwealth v. McIntosh, supra; 328 Pa.Superior Ct. at 263, 476 A.2d at 1319. Here, the evidence showed that Mrs. Logan had an excellent opportunity to observe the appellant on the night of the robbery. She saw him on the street just prior to the robbery, when the two exchanged greetings; she faced him, illuminated by the street light, for about two minutes during the course of the robbery. The general physical description given to the police fit that of defendant. She identified the defendant from the array within nine days after the robbery. Under these circumstances, the trial identification had a basis independent of the pretrial procedures. Trial counsel correctly chose not to file a motion to suppress the identification.

In his second allegation of ineffectiveness, defendant claims that counsel erred in failing to object to the consolidation of appellant’s case with that of the co-defendant. In the absence of prejudice, defendants charged with offenses arising from the same incident may be joined together in the interest of judicial economy; a joinder is all the more compelling where a conspiracy is alleged and the evidence against each is virtually identical. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985); Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984).

At bar, defendant argues that trial counsel erred in failing to object to consolidation for two reasons. First, defendant claims prejudice because both he and the co-defendant were represented by the public defender’s office until a few months before trial, when appellant obtained appointed counsel. Defendant claims that the public defender’s office gained information while representing appellant which was then used to favor the co-defendant during trial. No evidence of prejudice is offered in support of this bald allegation. Moreover, this argument was specifically rejected by this court in Commonwealth v. Rodgers, 335 Pa.Super. 130, 483 A.2d 990 (1984). Secondly, defendant claims he was prejudiced by the consolidation because one of the co-defendant’s alibi witnesses implicated the defendant, acting alone, in the robbery. Consolidation is proper unless the defenses are “irreconcilable and exclusive”. U.S. v. Desimone, 660 F.2d 532 (5th Cir.1981). The defenses must conflict at the core; mere divergence on peripheral matters or mere hostility between co-defendants does not require severance. U.S. v. Provenzano, 688 F.2d 194 (3rd Cir.1982). Here, only one of the co-defendant’s witnesses directly implicated the defendant. Neither defendant relied primarily upon establishing the other’s guilt in presenting a defense; instead, they focused on challenging the strength of the Commonwealth’s case. Moreover, the trial court found as a fact that the witness’ adverse testimony was “neither raised nor foreseen at the time of the severance motion.” Trial counsel was not ineffective for failing to file a severance motion.

Next, defendant alleges that trial counsel was ineffective because he did not appear on behalf of the appellant for the third day of the suppression hearing. The evidence shows that counsel informed the court he would be unavailable on Friday, October 19, 1984, for religious reasons. The court assured counsel that he would not be required to appear, and that another date would be set for the remainder of the suppression hearing on matters expected to concern only Scott. (N.T. 10/15/84, 172-73). For reasons not revealed by the record, the suppression hearing was resumed on Friday. Defense counsel was not present.

The denial of counsel in pre-trial proceedings will not result in reversal of a subsequent conviction if the error is harmless beyond a reasonable doubt. Commonwealth v. Fowler, 275 Pa.Super. 544, 419 A.2d 34 (1980) (citing numerous cases). “If appellant suffers no prejudice, he is entitled to no remedy”. Commonwealth v. Rines, 247 Pa.Super. 429, 372 A.2d 901 (1977).

In Commonwealth v. Riñes, supra, counsel was absent at the defendant’s preliminary hearing, where the victim positively identified the defendant. The identification was found to have an independent basis. This court concluded that, since the absence of counsel resulted in no harm to the appellant, appellant was not denied his right to effective assistance of counsel. Upon the same reasoning, the court in Commonwealth v. Fowler, supra, found that the absence of counsel at defendant’s Gagnon I hearing did not constitute a denial of the constitutional right to representation. See also Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973) (no prejudice due to absence of counsel at arraignment).

At bar, defendant suffered no harm by the absence of counsel. The sole witness on the date in question was Mrs. Logan; her testimony was limited to the circumstances of the stationhouse confrontation, where she failed to identify the defendant. Thus, nothing about Mrs. Logan’s testimony that day cast doubt upon the validity of the photo array. The jury was made aware of the stationhouse confrontation and the fact that Mrs. Logan failed to recognize defendant. As appellant was not prejudiced by the alleged shortcomings of counsel, counsel will not be deemed ineffective. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Next, appellant alleges that counsel was ineffective for failing to object to the testimony of a police officer to the effect that he knew the defendant. The officer did not state how he knew the defendant; the testimony was offered only as an explanation as to why he did not request any identification from the appellant at the time of his arrest. We have repeatedly held that such testimony does not raise the implication of prior criminal activity. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985); Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979); Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978). The failure to object, therefore, does not constitute ineffectiveness.

During closing arguments in the case, the district attorney urged the jury not to “take an easy out” by coming back with a not guilty verdict without first considering all the evidence, “searching your souls, and ... talking with one another...” Appellant now alleges that defense counsel was ineffective for failing to object to this argument. We disagree. The district attorney did not suggest, as appellant alleges, that if the jurors returned a verdict of not guilty, they would be ignoring their instructions, duty and responsibility. Instead, the prosecutor merely urged the jurors to do its duty. Such an argument is proper and unobjectionable. See Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980).

Finally, defendant alleges error in counsel’s failure to object to the court’s charge regarding the elements of conspiracy and the concept of reasonable doubt. As the instructions were a proper statement of the law, we find no error. Based upon the foregoing reasoning, the judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 903.

      . The Commonwealth asserts that defendant lacks standing to challenge the search of the wallet. In Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), our Supreme Court held that an individual charged with a possessory offense has automatic standing to challenge the admissibility of evidence alleged to be the fruit of an illegal search and seizure. Here, appellant is charged with robbery. The definition of the offense, 18 Pa.C.S.A. § 3701 (a)(1) states that “[a] person is guilty of robbery if, in the course of committing a theft, he...” The definition controlling theft in this case is 18 Pa.C.S.A. § 3921, which states that "[a] person is guilty of theft if he unlawfully takes, or exercises control over movable property of another...” Thus, we find that possession is an essential element of robbery as charged in the instant case. This finding is consistent with prior caselaw. See Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343, 350 (1974) (“An essential element of robbery is the taking of goods from another... In order to have a taking, the robber must have taken possession of the goods of another...) (Emphasis in original).

      . Counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

      . There is some indication in the notes of testimony that counsel did present argument in support of a motion to suppress the identification. (N.T. 10/15/84, p. 10).

      . It is difficult to understand how defendant can claim he was prejudiced by this witness. The jury convicted both appellant and his do-defendant, obviously rejecting the testimony of the witness.

      . The instruction offered on conspiracy is consistent with the definition set forth in the Crimes Code. See 18 Pa. C.S.A. § 903 (a). The charge on reasonable doubt accurately states the law and has been upheld by our courts in the past. See Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1977).


text:
    508 A.2d 1216
    COMMONWEALTH of Pennsylvania, Appellant, v. Randall HALL, Appellee.
    Superior Court of Pennsylvania.
    Argued March 13, 1986.
    Filed May 1, 1986.

      Dennis C. McAndrews, Assistant District Attorney, Wayne, for Commonwealth, appellant.
    Frank J. Marcone, Media, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal by the Commonwealth from an order dismissing a criminal prosecution for homicide, we are called upon to apply Pa.R.Crim.P. 1100(e)(2) to a situation in which the Superior Court granted a new trial and thereafter denied a petition for reargument, and the Supreme Court denied a petition for allocatur and also a subsequent petition to reconsider. The trial court held that the period of one hundred and twenty (120) days within which to com-menee trial began to run when the Superior Court granted a new trial. Because this period had expired before Randall Hall, the appellee, was brought to trial, the trial court dismissed, with prejudice, a pending charge of murder. We reverse.

The facts are as follows. Wanda Nicholson was killed in Darby Borough, Delaware County, on June 21, 1980. Randall Hall was arrested and charged with her murder. Following trial by jury, Hall was found guilty of voluntary manslaughter and possession of a firearm without a license. On direct appeal from the judgment of sentence, the Superior Court, on April 6, 1984, reversed and remanded for a new trial. See: Commonwealth v. Hall, 327 Pa.Super. 390, 476 A.2d 7 (1984). The Commonwealth thereafter filed a timely petition for reargument, which this Court denied on June 18, 1984. On July 17, 1984, the Commonwealth filed a petition for allowance of an appeal to the Supreme Court. Pursuant thereto, the Superior Court forwarded the record to the Supreme Court on July 20, 1984. The Commonwealth’s petition for allowance of an appeal was duly considered by the Supreme Court and was denied on January 16, 1985. A petition for reconsideration, filed on January 31, 1985, was denied by the Supreme Court on April 18, 1985. The record was remanded to the trial court on May 14, 1985.

On June 19, 1985, thirty-six (36) days later, Hall filed a petition to dismiss all charges with prejudice, because the new trial had not commenced within one hundred and twenty days after the Superior Court had ordered a remand for new trial. The trial court agreed that Rule 1100(e)(2) had been violated and, on June 24, 1985, entered an order dismissing the charges against Hall. The Commonwealth appealed.

Rule 1100(e)(2) provides as follows:

When an appellate court has granted a new trial ... the new trial shall commence within one hundred and twenty (120) days after the appellate court remands the record to the trial court. The date of remand shall be the date as it appears in the appellate court docket.

(emphasis added). The trial court in this case computed the one hundred and twenty (120) day period from April 6, 1984 — the date on which the Superior Court entered the order reversing and remanding for a new trial. This was contrary to the clear language of the rule, which provides that the period commences when “the appellate court remands the record to the trial court.”

The Superior Court docket discloses that it did not remand the record to the trial court. Instead, it transferred the record to the Supreme Court after the Commonwealth had filed in that Court a petition for allowance of an appeal. The record was not remanded to the trial court until it was remanded by the Supreme Court on May 14, 1985.

It was on this remand date that the one hundred and twenty (120) day period began to run pursuant to Rule 1100(e)(2). When, on June 19, 1985, the defendant filed a motion to dismiss, only thirty-six days had expired. The motion to dismiss, therefore, was premature and should have been denied.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . See and compare: Commonwealth v. Paprocki, 327 Pa.Super. 270, 475 A.2d 792 (1984); Commonwealth v. Bond, 350 Pa.Super. 341, 504 A.2d 869 (1986) (Concurring Opinion by Wieand, J., joined by Rowley, Beck and Tamilia, JJ.).


author: WICKERSHAM, Judge:

text:
    508 A.2d 1218
    Patsy R. WERTZ v. B. Rodney ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1986.
    Filed May 2, 1986.

      Arthur L. Jenkins, Jr., Norristown, for appellant.
    J. Kitridge Fegley, Reading, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WICKERSHAM, Judge:

B. Rodney Anderson appeals from the decree of the Court of Common Pleas of Berks County denying his post-trial motions and affirming an earlier decree of support entered against him.

Appellant and Patsy R. Wertz, appellee, were at one time husband and wife. The marriage produced three children: Michael, born April 30, 1959, Gregory, born August 23, 1960, and Catherine, born April 14, 1962. Eventually the parties separated and on March 18, 1977, while both parties were represented by counsel, they entered into a comprehensive written postnuptial agreement. Covered under the terms of the agreement were provisions giving appellee custody of the three children and requiring appellant to pay certain set amounts per week to appellee for the support of the children until they turned twenty-one years of age or became self-supporting, whichever occurred first. Another provision of the agreement required appellant to pay, in addition, the costs (within specified limits) of the children’s college educations, should they go to college.

On August 1, 1977, the parties were divorced. The agreement neither merged with nor was incorporated into the divorce decree. Pursuant to the terms of the agreement, from March 30, 1977 through September 30, 1980, appellant paid directly to appellee support installments totaling $38,350.00. At that point, appellant stopped making the support payments directly to appellee. However, he did make certain payments to the children themselves or to individuals and schools on their behalf. On June 4, 1981, appellee filed a complaint in equity to enforce the child support provisions of the agreement. By the time of trial, all the children had turned twenty-one, and thus all payments that were to have been made to appellee under the agreement were past due. Therefore, appellee revised her request from one for specific performance to one for payment of the $12,762.05 due under the agreement, plus $864.00 for reimbursement of medical costs for Catherine.

After the parties filed a stipulation of facts, the lower court, on December 12, 1984, issued an adjudication and decree nisi directing appellant to pay to appellee the above sums due under the agreement. Appellant’s post-trial motions were denied on July 3, 1985, and this appeal timely followed. The sole issue on appeal is:

In an equity [action,] should the defendant be ordered to pay monies to his former wife when he has already paid more than the sums due to or for the benefit of his children with no objections tendered by the wife-plaintiff?

Brief for Appellant at 3.

Before we can consider this question, however, it is incumbent upon our court to determine whether this appeal is properly before us. Huber v. Huber, 323 Pa.Super. 530, 470 A.2d 1385 (1984). Although not questioned by any party to the proceeding, our court may address issues of appealability and jurisdiction sua sponte. M. London, Inc. v. Fedders Corp., 306 Pa.Super. 103, 452 A.2d 236 (1982).

Appellant has characterized this action as having been submitted to the trial court on a “case stated” basis. Brief for Appellant at 4. The appellee and the trial court, however, have referred to the matter as having been submitted to the court on a “stipulation of the facts.” The statement of facts to which the parties stipulated was captioned in the original record as a “stipulation.” The stipulation stated that “the within case shall be submitted to the Court for adjudication upon the following facts____” R.R. at 28a. Two days later, the court issued an order stating, inter alia, “the within case having been scheduled for trial and counsel having submitted the case to the Court for disposition on stipulation of counsel____” R.R. at la.

Whether the case proceeded as a case stated or as one upon stipulated facts is of major importance, because the rights of the parties to appeal vary depending into which category the case fell. “[T]he judgment of the court on a case stated is final unless the agreement to the case expressly reserves the right to an appeal.” County of Allegheny v. Allegheny County Prison Employees’ Independent Union, 53 Pa.Commw. 350, 353-54, 417 A.2d 864, 866 (1980). Since there is nothing in the instant stipulation that expressly reserves the right to appeal, we would have to quash this appeal. Clearfield Bank & Trust Company v. American Manufacturers Mutual Insurance Company, 344 Pa.Super. 588, 497 A.2d 247 (1985). If this was not a case stated, however, then appellant could appeal, assuming he timely filed for post-trial relief. Id.; County of Allegheny, supra. Since appellant filed a timely post-trial motion in the instant case, his appeal would be properly before us. County of Allegheny, supra.

Therefore, we must decide whether this was a case stated or a case tried upon stipulated facts.

A case stated is distinguished from a case tried by the court without jury upon stipulated facts, because on a case stated the parties submit an agreed statement of facts for the judgment of the court, whereas upon a trial without jury upon stipulated facts the case is submitted for the decision of the court.

Clearfield Bank & Trust Company, supra, 344 Pa.Superi- or Ct. at 591, 497 A.2d at 248. In other words, in a trial without jury upon a stipulation of facts, the parties submit an agreed statement of facts. The court then renders a decision, which is subject to exceptions and review by the court before any judgment is entered. County of Allegheny, supra. On the other hand, in a case stated, the parties submit an agreed statement of facts and request entry of judgment by the court upon the facts stated. The judgment thus entered is final, and no exceptions are necessary prior to the taking of an appeal, if the parties reserved the right to appeal in their agreed statement. Id. See generally, Wedgewood Associates v. Caln Township, 54 Pa. Commw. 557, 422 A.2d 1190 (1980). One of the indispensable elements of a case stated is that all parties in interest agree to the entry of judgment by the court upon the facts stated. Frankel v. Reliance Mutual Life Insurance Company of Illinois, 199 Pa.Super. 295, 184 A.2d 305 (1962).

Although, as in the above four cases, we are dealing with a hybrid proceeding which has some of the characteristics of a case stated, we must conclude that the appeal before us is not from a case stated, but rather is from a trial without jury upon a stipulation of facts. The record reveals no request by the parties for the entry of judgment by the court upon the stipulation of facts. Here, the parties did not ask the court to render judgment, but simply concluded that the case “shall be submitted to the Court for adjudication upon the following facts.” Thus, the lower court was compelled to enter an adjudication. The lower court’s decision was, in fact, in the form of an adjudication and decree nisi, to which appellant correctly filed post-trial motions. Therefore, we find that this appeal, despite appellant’s misguided characterization of the proceeding below, is properly before us.

Turning to the merits of appellant’s support issue, appellant argues that since he paid monies directly to the children and to third parties for the benefit of the children, he has equitably complied with and has discharged his support obligations under the parties’ agreement. He contends that it is unconscionable to require him to pay twice pursuant to the agreement.

On the other hand, appellee contends that the payments which appellant made to the children and to third parties did not satisfy the terms of the agreement, which required him to pay child support directly to her. She also maintains that some of these “other” payments were made in compliance with appellant’s obligation to pay for the children’s college educations, as required by the agreement, while other payments were gifts and repayments of loans. In other words, before, during, and after the time appellant made child support payments directly to her in accordance with the agreement, he was making the same payments for which he now seeks credit.

While- at first blush, it seems unfair to require appellant to pay the amount still owed under the agreement when he has, in fact, made payments to others exceeding the amount owed, upon closer examination, we must agree with the lower court that appellant’s decision to “unilaterally disregard the terms of the [ajgreement and to pay out monies to or on behalf of the children for such purposes and in such manner he alone chose does not relieve him of his responsibility under the [a]greement.” Lower ct. op. at 5.

The facts clearly establish that prior to their divorce, the parties entered into a valid separation agreement which covered their entire economic relationship. Both parties were represented by counsel, and neither party suggests that the agreement was one-sided or inadequate. The agreement expressly provided that it would continue in full force and effect regardless of whether or not the parties eventually divorced. In the absence of an uncounseled, one-sided bargain, and where no one argues that the amount of support is inadequate to support the children, the intention of the parties as mutually expressed in the separation agreement must be enforced. Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981). As the Brown court stated:

A holding to the contrary would serve to illegitimize future separation agreements and encourage a party to promise anything to obtain a divorce, knowing he will never be bound by it, even when the promise is in writing and for valid consideration. Needless to say, such a holding would also serve to shake the very foundations of contract law and the sanctity of a bargain made between two parties dealing at arm’s length.

Id., 495 Pa. at 643-44, 435 A.2d at 863. See also Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985); Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983). A property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally. Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985); De Witt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121 (1984); Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981).

Since the agreement clearly provided that the child support payments in issue herein were to be made directly to appellee, we can assume that the parties intended for the money to be applied to the children’s support in the manner which appellee saw fit. Further, it is agreed in the stipulation that the monies appellant paid directly to appellee under the agreement were used to support the children. Our court en banc, in considering whether a paying spouse was entitled to credit under a support order for payments made directly to or on behalf of his son, held that these voluntary expenditures would not be considered as a substitute for payments to the custodial parent for the son’s basic support.

We cannot consider the expenditures that the appellee volunteers for his son as a substitute for a support order. The mother, as the custodial parent, has the responsibility of maintaining a home and providing the necessities of life for the son. She is entitled to the certainty that a reasonable contribution will be made toward that expense and must be in a position to control the expenditures for the necessities of the young man’s existence. Gifts to the son beyond that standard are, of course, welcomed by the son and may contribute to his happiness and well-being; but they cannot be made a substitute for a fair contribution to the custodial parent for basic support.

Shapera v. Levitt, 260 Pa.Super. 447, 452-53, 394 A.2d 1011, 1014 (1978). The same reasoning should apply when the payments are by a valid agreement, as compared to a court order.

Therefore, we conclude, as did the lower court, that the 1977 agreement entered into by the parties with advice of counsel and with the intention that it be binding on the parties as to all matters of property settlement, custody, and amount and method of support payments for the children, is enforceable. While appellant’s later payments directly to or for the benefit of the children are certainly commendable, they are not a substitute for the payments due under the agreement, and he cannot claim credit for those payments against the amount owed. Thus, we find neither error of law nor abuse of discretion in the lower court’s determination that appellee was entitled to a judgment against appellant for $13,626.05, the sum due under the contract.

Decree affirmed.

      . It is well-settled that a parent cannot bargain away a child’s right to adequate support. See, e.g., Abarbanel v. Weber, 340 Pa.Super. 473, 490 A.2d 877 (1985); Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606 (1984). Therefore, a separation agreement will be enforced by the court subject to the fact that the court may, upon petition for a support order, enter an award for a higher amount if it determines that the amount in the agreement is inadequate. See, e.g., Commonwealth ex rel. Shoemaker v. Coulson, 335 Pa.Super. 626, 485 A.2d 70 (1984); Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983).