author: FORD ELLIOTT, Judge:

text:
    573 A.2d 587
    In the Interest of James FEIDLER, Robert Feidler and Christopher Feidler. Appeal of Robert FEIDLER and Christopher Feidler and Carl Feidler, Sr. and Patricia Feidler, His Wife, Appellants, Clinton County Children and Youth Services.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1990.
    Filed April 17, 1990.

      Stephen C. Smith, Lock Haven, for appellants.
    Lewis G. Steinberg, Lock Haven, for Children and Youth Services, participating party.
    Before ROWLEY, WIEAND and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from an order removing minor children from the home of their natural parents and placing them in the legal and physical custody of Clinton County Children and Youth Social Services Agency. Both the minors, Robert, now age 17, and Christopher, now age 12, as well as the natural parents, Patricia and Carl Feidler, have appealed. The child advocate has filed a brief on behalf of the minors in which the parents join. Upon our review of the record, the briefs and the applicable law, we find that the trial court abused its discretion in ordering removal and therefore, reverse.

On May 1, 1987, a petition was filed against Robert and Christopher along with another brother to consider a finding of dependency. The substantive allegation in the petition was one of truancy. On June 23, 1987, following a Stipulation and Agreement, Robert and Christopher were adjudicated as dependent with legal and physical custody to remain with their parents subject to supervision by the Clinton County Children and Youth Social Services Agency. On May 17, 1989, a letter was filed on behalf of the Clinton County Children and Youth Social Services Agency requesting a disposition hearing because of a lack of parental supervision of the minor children and a transfer of legal and physical custody of them to the agency for initiation into the foster care program. On June 6, 1989, a disposition hearing was held and the court ordered legal and physical custody to remain with the parents subject to drug and alcohol evaluations and treatment for the family, cooperation with the C.A.S.S.P. program, a possible referral to the Family Therapy Center for intensive treatment, and curfews for the minor children.

On July 26,1989, on request of the agency, a hearing was held to determine whether there had been violations of the trial court’s order. On July 27, 1989, the trial court transferred legal and physical custody of the children to the Clinton County Children and Youth Social Services Agency, effective August 1, 1989, for foster home placement for Christopher, and a forty-five day evaluation at the Children’s Home of York for Robert. Appellants filed an Application for Stay on July 28, 1989, but were denied relief. On appeal, appellants argue that Robert and Christopher’s removal from the home of their parents was not clearly necessitated on this record.

A fundamental purpose of the Juvenile Act is “to preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter.” 42 Pa.C.S. § 6301(b)(1). “The legislature has placed primacy on the right of parents to raise their own children and the desirability of children to be raised by their natural parents.” In Interest of S.A.D., 382 Pa.Super. 166, 175, 555 A.2d 123, 128 (1989). Even if a child is adjudicated dependent under the Juvenile Act, he cannot be separated from his parents absent a showing that the separation is clearly necessary. In Interest of S.A.D., supra. A “clear necessity is established when the court determines that alternatives to separation are unfeasible.” In Interest of S.A.D., supra, 382 Pa.Super. at 172, 555 A.2d 126, citing In the Interest of Ryan, Michael C., 294 Pa.Super. 417, 440 A.2d 535 (1982). Moreover, it is axiomatic that the Children and Youth Social Services Agency must make reasonable efforts to prevent the unnecessary placement of children in foster homes. Id. “A judicial determination of those efforts serves to closely examine, in the case of each individual child, whether reasonable efforts were made to keep the family intact.” In Interest of S.A.D., supra, 382 Pa.Super. at 174, 555 A.2d at 127. The agency must not only provide preventive and reunification services to families in need, but can be required also to provide services that are generally the province of other agencies. Id.; see Making Reasonable Efforts: Steps for Keeping Families Together, published by the National Council of Juvenile and Family Court Judges, the Child Welfare League of America, the Youth Law Center and the National Center for Youth Law (no publication date).

Presently, the trial court found that the testimony of July 26, 1989, provided clear and convincing evidence that appellants had violated the previous court order, and that a directive to the agency to provide further services would be of no avail. Upon our careful review of the record, we believe that the evidence was not so clear and convincing and that the trial court abused its discretion in finding that it was clearly necessary for Robert and Christopher to be removed from their natural parents.

Initially, we note that this court is presented with a woefully inadequate record upon which to justify removal of children from their family home. The determination of dependency occurred in 1987, on Stipulation and Agreement of the parties as a result of a truancy problem. However, a review of the transcript from that hearing indicates that the mother, the only parent present, thought that the attorney for Children and Youth Services was her attorney as well. Additionally, there is nothing in the record to indicate what prompted the subsequent agency request for the disposition hearing in June, 1989. The only reference contained in the May 4th letter requesting the hearing is that “In the opinion of the Agency, the Juveniles do not have the appropriate parental supervision.” At the subsequent June hearing the agency put no evidence on the record as to what lack of supervision prompted its May 4th letter, but rather advocated that the children remain with the parents subject to conditions imposed by the court.

The June 6, 1989 order provided the following conditions:

1. That the family, including the parents and children, participate in drug and alcohol abuse evaluation and treatment at the Greenridge Center.
2. That the family cooperate with the C.A.S.S.P. program and any possible referral to the Family Therapies Center for Intensive Treatment Program.
3. That Christopher be subject to a 9:00 p.m. curfew and Robert be subject to a 10:00 p.m. curfew.
4. That Christopher and Robert be prohibited from associating with Melisssa Young or going to her residence which is currently 104 Commerce Street, Lock Haven, Pennsylvania.

On July 26, 1989, the minor children were removed from their parents because of alleged violations of these conditions.

As to the first condition, the trial court found that the parents were in violation for failing to attend two scheduled meetings with an agency psychologist, Pam McCloskey. However, the order of court provided for the family to be evaluated and treated for drug and alcohol abuse at the Greenridge Center. It is the agency that set forth the prerequisite that the parents must meet with Ms. McCloskey. As testified to by Mr. Farley, an agency caseworker, the agency employed Ms. McCloskey as its own psychologist subsequent to the June 6th court hearing and then requested the Feidlers to submit to an evaluation by her prior to the evaluation and treatment at Greenridge Center. While the agency may deem this preliminary examination by its own person as relevant, a failure on the part of the Feidlers to submit to it can hardly be characterized as a violation of the court’s first condition as such a meeting was not contemplated at the time the conditions were set.

However, even if we were to find that the initial evaluation by Ms. McCloskey was necessary, we do not find any evidence of record to establish that the failure of the parents to make the scheduled appointment was intentional in order to thwart treatment. It is evident from the record that the failure to attend the first appointment on June 21, 1989, was excused. Mrs. Feidler had cancelled the appointment because she was ill and the appointment was rescheduled for June 29th. It is interesting that according to the testimony of Mr. Farley, even if the Feidlers had attended the June 21 appointment, they would have found the agency closed that afternoon. There is no evidence on the record which discloses why the June 29 appointment was missed. However, we disagree with the trial court that that incident alone represented a violation of the court’s first condition.

As to the second condition, the family was required to participate in a new C.A.S.S.P. Family Therapy Program. The program was designed to gather various service providers from the community in order to help the family in addressing its needs. The Feidlers attended the first meeting on June 19, 1989, but when Mr. Feidler learned that Kim Crossen, Robert’s probation officer, was attending the meeting he would not participate. The meeting was held anyway with Mrs. Feidler and the two boys in attendance. The record reflects that the agency knew of Mr. Feidler’s conflict with Kim Crossen, but determined that she be part of the C.A.S.S.P. team because she was Robert’s probation officer and was the only probation officer in the county. Thereafter, on June 23, 1989, another meeting was scheduled without Ms. Crossen in attendance. The purpose of this meeting was again to explain the program to the Feidlers. Apparently, a component of the Family-based program was to have support personnel go into the Feidler’s home. However, this court cannot determine from this record what support the personnel were to provide within the home. This is also the question which concerned Mr. Feidler, both at the June 6th and the July 26th hearings. During the June 6th hearing, the court indicated to Mr. Feidler that he could have his concerns addressed by the court after the program was explained to him. Following the June 23rd meeting with the C.A.S.S.P. person, the referral to that program was dropped by the agency because Mr. Feidler refused to allow anyone to come into his home. The court thereafter determined at the July 26th removal hearing that this refusal evidenced Mr. Feidler’s “hostility toward any intervention with respect to his family.” Trial court opinion, 6/27/89 at 4. This court cannot agree with this finding based on the record before us. With the exception of the June 29th appointment scheduled with Pam McCloskey, the Feidlers attended all meetings scheduled by the agency. Mr. Feidler showed up for the first C.A.S.S.P. meeting but refused to participate because Kim Crossen was present. It is apparent from the testimony of Mr. Farley, that the agency was fully aware of the personal conflict between the two prior to scheduling this meeting. As to the second meeting which caused the agency to drop the C.A.S.S.P. referral, Mr. Farley testified that the purpose of the meeting was to explain the program to Mr. Feidler. However, Mr. Farley did not attend this meeting and therefore could not answer as to whether Mr. Feidler understood the program as explained. Without more, we cannot agree with the trial court that the second condition was violated and that Mr. Feidler was thwarting any intervention with his family. Mr. Feidler testified that he would be willing to meet with the program people outside his home and if he got to know them better, he might be willing to let them come into his home. As this court has nothing of record to indicate what the C.A.S.S.P. program was designed to do, we have no way of determining whether Mr. Feidler’s refusal was unreasonable.

Thirdly, the order provided that Christopher be subject to a 9:00 p.m. curfew, and Robert a 10:00 p.m. curfew. The record clearly reflects, and the trial court agrees, that Christopher did not break his 9:00 p.m. curfew. However, the trial court found Robert to have broken his curfew twice. Without more, Robert’s violating his 10:00 p.m. curfew twice does not clearly necessitate his removal from his parents’ home, especially in light of the fact that he attended and participated in all appointments that the agency scheduled for him. Moreover, Christopher also attended all of his scheduled agency appointments.

Finally, the trial court found the children to have violated its fourth condition, that of associating with Melissa Young or frequenting her residence. The record reveals that Christopher was spotted on Ms. Young’s porch on one occasion and that Robert was spotted on the property twice. However, there was no direct testimony that either of the boys had contact with Melissa, nor if she was even home at these particular times. Although the order specifically stated that the minors were not permitted at her residence, we do not find that such infractions clearly necessitate the children’s removal from their natural parents.

This court cannot affirm a separation of minor children from their natural parents unless there is clear and convincing evidence on the record that every reasonable effort has been made to keep the family together. Only after this standard has been met will removal be countenanced on the basis of clear necessity. In Interest of S.A.D., supra. Based on the limited record before this court, we cannot find that the agency has exercised all reasonable efforts to keep this family together. Although we recognize that the agency bears a heavy burden in removing children from their natural parents, we would not have it any other way since our legislature and this court have placed primacy on the right of parents to raise their own children; thereby, keeping the family intact.

Further, we cannot find that the parents have intentionally thwarted all attempts at intervention. Admittedly, the Feidlers are not sophisticated or well educated people, and they may not even be the best of parents, however, it must be remembered always, that the Juvenile Act:

was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take children of the illiterate and crude and give them to the educated and cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.

In Interest of S.A.D., supra, 382 Pa.Super. at 176, 555 A.2d at 128 (citations omitted).

The order of the trial court is reversed and this case is remanded to the trial court with instructions that the children be returned to their natural parents with agency services to be provided to appellants consistent with this Opinion. The reinstatement of the parents with the children is always subject to further review by the trial court on an ongoing basis, due to Robert and Christopher’s adjudication of dependency.

Reversed and Remanded.

      . We again note at this juncture, that there is no evidence of record to disclose to this court which family members had an alcohol or drug problem as well as the nature of the problem.

      . The record reflects that Ms. Melissa Young is a young woman with a young child who has been referred to the agency. Also, her residence is speculated to be a teenage hangout for drug and alcohol activity. N.T., 7/26/89 at 20. (emphasis added)


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    573 A.2d 591
    The FIRST NATIONAL BANK OF ALLENTOWN v. George W. KONESKI and Miriam J. Koneski, Husband and Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1990.
    Filed April 23, 1990.

      John M. Yarema, Emmaus, for appellants.
    Charles J. Hair, Allentown, for appellee, (submitted)
    Before CIRILLO, President Judge, and HOFFMAN and BROSKY, J.
   BROSKY, Judge.

This is an appeal from an order of the trial court denying appellants’ petition requesting counsel fees and costs. The sole issue presented for review is whether appellants are entitled to recover counsel fees and costs pursuant to the provisions of the Loan Interest and Protection Law.

The present action arises out of a loan agreement between the First National Bank of Allentown (FNB), appellee, and appellants George Koneski and his wife, Miriam Koneski. In January 1980, appellants obtained a $65,000.00 loan from FNB for the construction of a residence by George Koneski, Inc., a home construction company. George Koneski was the president and sole shareholder of George Koneski, Inc.; Miriam was a secretary of the corporation. George Koneski, Inc. had prior loan arrangements with FNB, and at this time, some of these loans were outstanding and unsecured. Due to the reorganization of the corporate loan department and a change in the loan policy at FNB, George and Miriam Koneski were required to sign a guaranty on the loan. The guaranty contained a confession of judgment clause and purported to hold appellants personally liable for the amount of the loan as well as for all prior debts of George Koneski, Inc.

In August 1981, FNB confessed judgment against appellants in the sum of $170,918.80. A writ of execution was issued in November 1983 which directed the Sheriff to levy upon appellants’ property. The Koneskis filed a petition to open judgment which was granted by order of the trial court and subsequently affirmed by this court in an unpublished memorandum decision. See First National Bank of Allentown v. Koneski, 376 Pa.Super. 646, 541 A.2d 796 (1988) (per curiam). On February 17, 1988, appellants petitioned the trial court to recover attorney’s fees and costs. The trial court denied the petition and held that counsel fees and costs are recoverable under the Loan Interest and Protection Law only where a residential mortgage is involved. Because the mortgage in this case was in excess of $50,000.00, the trial court concluded that it was not a residential mortgage, and therefore found the Loan Interest and Protection Law to be inapplicable. For the reasons set forth below, we reverse the order of the trial court and remand for further proceedings.

We begin our analysis with a review of the Loan Interest and Protection Law, 41 P.S. §§ 101-605 (hereinafter Act 6). No provision in Act 6 specifically defines its scope, nor is there any provision which mandates exclusive application to residential mortgages. Rather, it appears that Act 6 was intended to regulate a variety of loan transactions. See Anderson Contracting Co. v. Daugherty, 274 Pa.Super. 13, 17, 417 A.2d 1227, 1229 (1979), appeal dismissed, 492 Pa. 630, 425 A.2d 329 (1980) and 41 P.S. § 101, Title of Act. Thus, “certain provisions of Act 6 may be applicable to a certain transaction, while others are not.” In re Jackson, 92 B.R. 987, 997 (E.D.Pa.1988).

In determining whether appellants are entitled to recover, we must first ascertain whether specific provisions of Act 6 apply to this case. Initially, appellants contend that counsel fees and costs are recoverable under § 407 of the act which provides:

(a) As to any residential real property, a plaintiff shall not have the right to levy, execute or garnish on the basis of any judgment or decree on confession, whether by amicable action or otherwise, or on a note, bond or other instrument in writing confessing judgment until plaintiff, utilizing such procedures as may be provided in the Pennsylvania Rules of Civil Procedure, files an appropriate action and proceeds to judgment or decree against defendant as in any original action. The judgment by confession shall be changed as may be appropriate by a judgment, order or decree entered by the court in the action. After the above mentioned original action has been prosecuted and a judgment obtained, that judgment shall merge with the confessed judgment and the confessed judgment shall be conformed as to amount and execution shall be had on the confessed judgment____
(b) Any debtor who prevails in any action to remove, suspend or enforce a judgment entered by confession shall be entitled to recover reasonable attorney’s fees and costs as determined by the court. [Emphasis added.]

It is significant to note that § 407(a) is not limited to confession of judgment proceedings involving residential real property which is encumbered by a residential mortgage. Instead, § 407(a) describes the procedure to be utilized in confessing judgment against “any residential real property. [Emphasis added.]” See Drum v. Leta, 354 Pa.Super. 448, 452, 512 A.2d 36, 37 (1986) and In re Jackson, supra. Moreover, subsection (a) refers to “plaintiffs” and does not define this term as relating solely to residential mortgage lenders. Similarly, § 407(b) is not restricted to residential mortgage debtors, but applies to “any debtor”. In view of the amendments to the statute and the terms used by the legislature, we hold that § 407 is not exclusively limited to actions involving confession of judgment against a residential mortgage, but applies to all confession of judgment proceedings where residential real property is concerned.

In determining that Act 6 was inapplicable to this case, the trial court ignored the amended language in § 407 and relied on McDowell National Bank of Sharon v. Stupka, 310 Pa.Super. 143, 456 A.2d 540 (1983). The trial court concluded that Stupka was still good law despite the 1978 amendment and the pronouncements of this court in Drum v. Leta, supra and Gardner v. Clark, 349 Pa.Super. 297, 503 A.2d 8 (1986). Contrary to the decision of the trial court, Stupka is inapplicable to the case before us, as it did not involve an interpretation of § 407(b). Therefore, it was error for the trial court to rely on Stupka and ignore our subsequent decisions.

Even if we were to determine that § 407(b) applies exclusively to residential mortgages, it appears that appellants are still entitled to recover attorney’s fees and costs pursuant to 41 P.S. § 503(a) which provides:

If a borrower or debtor, including but not limited to a residential mortgage debtor, prevails in an action arising under this act, he shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred on his behalf in connection with the prosecution of such action, together with a reasonable amount for attorney’s fee. [Emphasis added.]

Because § 503(a) explicitly applies to all debtors and not just residential mortgage debtors, it is clear that appellants are entitled to recover their reasonable costs and attorney’s fees if they can establish that they have prevailed against the creditor.

Therefore, we must next determine whether appellants have prevailed as described in §§ 407(b) and § 503(a). In Gardner v. Clark, supra, this court held “that a party prevails if he or she succeeds in obtaining substantially the relief sought.” Gardner, 349 Pa.Super. at 302, 503 A.2d at 10. FNB contends in its brief that because the judgment was only opened, it is still a valid judgment. We specifically rejected this argument in Gardner and observed that

[irrespective of future attempts to collect this judgment, [the] ... present attempt to enforce it against [the] ... residence has been successfully resisted____ [0]ne fact remains clear ... [a]ppell[ant]s have prevailed [and] this is not changed by the lingering possibility that appellfee] may at some time in the future collect the judgment by other means.

Id. Thus, despite the fact that the judgment has been opened, we find that the Koneskis have prevailed as described in §§ 407(b) and 503(a) since they have obtained the relief which they sought and successfully prevented FNB from executing on the confessed judgment. Therefore, once it has been found that a debtor has prevailed, the award of reasonable counsel fees and costs is mandatory. See Drum v. Leta, supra, 354 Pa.Super. at 453, 512 A.2d at 38. Accordingly, the Koneskis are entitled to receive reasonable counsel fees and costs from the appellant, and we remand this matter to the trial court for a determination of the precise amount.

Order reversed and the case case is remanded for a determination of the amount of counsel fees and costs appellants are entitled to receive. Jurisdiction relinquished.

      . 41 P.S. § 101 defines a residential mortgage as "an obligation to pay a sum of money in an original bona fide principal amount of fifty thousand dollars ($50,000) or less, evidenced by a security document and secured by a lien upon real property located within this Commonwealth containing two or fewer residential units or on which two or fewer residential units are to be constructed and shall include such an obligation on a residential condominium unit.”

      . The Title states that Act 6 is [a]n Act:
      regulating agreements for the loan or use of money; establishing a maximum lawful interest rate in the Commonwealth; providing for a legal rate of interest; detailing exceptions to the maximum lawful interest rate for residential mortgages and for any loans in the principal amount of more than fifty thousand dollars and federally insured or guaranteed loans and unsecured, uncollateralized loans in excess of thirty-five thousand dollars and business loans in excess of ten thousand dollars; providing protection to debtors to whom loans are made including the provision for disclosure of facts relevant to the making of residential mortgages, providing for notice of intention to foreclose and establishment of a right to cure defaults on residential mortgage obligations, provision for the payment of attorney’s fees with regard to residential mortgage obligations and providing for certain interest rates by banks and bank and trust companies; clarifying the substantive law on the filing of an execution on a confessed judgment; prohibiting waiver of provisions of this act, specifying powers and duties of the secretary of banking, and establishing remedies and providing penalties for violations of this act.

      . Residential real property is defined as "real property located within this Commonwealth containing not more than two residential units or on which not more than two residential units are to be constructed and includes a residential condominium unit.” 41 P.S. § 101.

      . The language in § 407(a), as provided in the original 1974 statute, only applied to residential mortgages. See Act of January 30, 1974, P.L. 13, No. 6., § 407(a). The amendment to this section of the Loan Law, however, changed the term "residential mortgages” to read "residential real property”. See Act of October 5, 1978, P.L. 1100, No. 258, § 407(a). Therefore, by amending the statute, the legislature evinced a clear intent that the provisions of § 407 should be applied to actions involving confession of judgment against all residential real property, and not merely those involving residential mortgages.

      . A residential mortgage debtor is one who is "a non-corporate borrower who is obligated to a residential mortgage lender to repay in whole or in part a residential mortgage and a successor record owner of the property, if any, who gives notice thereof to the residential mortgage lender.” 41 P.S. § 101.

        . The specific issue in Stupka was whether a confession of judgment could be merged with a judgment resulting from mortgage foreclosure. This court determined that mortgage foreclosure and confessed judgments do not merge. Stupka, 310 Pa.Super. at 151-152, 456 A.2d at 544. In arriving at this conclusion, we observed that § 407(a) directs that the creditor first commence an original action and proceed to judgment. Thus, § 407(a) requires that there be two judgments: the judgment obtained in the original action and the confessed judgment. See RCK, Inc. v. Katz, 331 Pa.Super. 163, 170-171, 480 A.2d 295, 299 (1984) and General Electric Credit Corp. v. Slawek, 269 Pa.Super. 171, 179, 409 A.2d 420, 423-424 (1979). As set forth in the Explanatory Note to Pa.R-C.P. 2981(a), a mortgage foreclosure action is excluded from the type of original actions required by § 407(a). Consequently, the merger of mortgage foreclosure and confessed judgments is prohibited by § 407(a) and Rule 2981. Stupka, 310 Pa.Super. at 150 n. 9, 456 A.2d at 544 n. 9.
      In addition to the above, we further stated that § 407(a) was inapplicable because the Stupkas’ mortgage was in excess of $50,-000.00. This conclusion was unnecessary to the resolution of the issue, however. More importantly, it is clear that the panel applied the 1974 version of the statute, despite the fact that the amended 1978 version was quoted. See Stupka, 310 Pa.Super. at 149-150 n. 8, 456 A.2d at 544 n. 8. Although the reason for this discrepancy was not discussed in the opinion, one plausible explanation is that the amended statute did not apply because the confession of judgment was entered in January 1978, prior to the amendment of § 407(a). Therefore, the court might have considered the amendments to be inapplicable. Regardless of the reason for this anomaly, Stupka was correctly decided and need not be overruled. However, because the court did not address the effect of the amended language, the reasoning in Stupka must be rejected to the extent that it conflicts with our discussion here. See In re Jackson, supra.


author: CIRILLO, President Judge:

text:
    573 A.2d 595
    COMMONWEALTH of Pennsylvania v. Alan Jay WARD, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1990.
    Filed April 19, 1990.

      John R. DeAngelis, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Allegheny County. We reverse.

Appellant Alan Jay Ward was found guilty of violating 75' Pa.C.S. § 3367, Racing on the Highways, before District Justice Lee Peglow. A trial de novo was held before the Honorable Raymond Scheib. Judge Scheib found Ward guilty, and sentenced him to pay a fine of $210.00. Post-trial motions were filed and denied, and this appeal followed. Ward raises two issues for our review:

(1) Whether the court erred in finding the defendant guilty of violating 75 Pa.C.S. § 3367 in that the statute specifically criminalizes driving conduct that is competitive or exhibitionary in nature and no evidence was presented that would show involvement by other parties required by nature to meet the competition or exhibition parameters of the statute?
(2) Whether the Commonwealth presented evidence which was sufficient to prove beyond a reasonable doubt that Alan J. Ward was guilty of a violation of 75 Pa.C.S. § 3367?

At trial, Officer John O’Shea testified that on February 28, 1988, he observed Ward driving a 1972 Oldsmobile coupe. Officer O’Shea watched as Ward exited a parking space in the parking lot of the Foodland Shopping Center. Ward backed his vehicle out of the parking space. Officer O’Shea stated that Ward’s acceleration caused his tires to squeal. Ward then stopped at a stop sign, and entered onto the eastbound lane of Route 30. Officer O’Shea testified that as Ward proceeded eastbound on Route 30, he again made a loud squealing sound with his tires. Officer O’Shea pursued Ward, stopped him approximately a mile and a half down the road, and issued Ward a citation for racing on the highway. 75 Pa.C.S. § 3367.

Ward testified on his own behalf. He stated that when he pulled out from the parking lot onto the street, that his “tires might have spun in the gravel[,]” and that there was “an excessive amount of gravel in the parking lot,” which caused his tires to spin.

Section 3367(b) of the Vehicle Code provides:

No person shall drive a vehicle on a highway in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record, and no person shall in any manner participate in any such race, competition, contest, test or exhibition.

75 Pa.C.S. § 3367(b) (emphasis added). Ward argues on appeal that because there was no other car involved, his conduct does not fall within the meaning of the statute. The Commonwealth argues that Ward’s conduct falls within the statutory prohibition of driving a vehicle on a highway in any “exhibition of speed or acceleration[.]” 75 Pa.C.S. § 3367(b).

We must first determine whether the rapid acceleration of an automobile on the highway in such a manner as to cause the tires to spin and squeal constitutes an “exhibition of speed or acceleration” in violation of section 3367(b) of the Motor Vehicle Code. Our review of the case law in Pennsylvania fails to disclose any court decision holding this type of conduct to be in violation of section 3367. Rather, our research has disclosed that each case pertaining to a prosecution under section 3367 involved at least two motor vehicles, and fell within the statutory prohibitions against “racing” or “drag racing.” See, e.g., Commonwealth v. Frye, 357 Pa.Super. 395, 516 A.2d 38 (1986); Commonwealth v. Honeycutt, 227 Pa.Super. 265, 323 A.2d 775 (1974); Commonwealth v. Miller, 197 Pa.Super. 315, 179 A.2d 251 (1962); Anen Motor Vehicle Operator’s License Case, 194 Pa.Super. 379, 169 A.2d 600 (1961); Commonwealth v. Root, 191 Pa.Super. 238, 156 A.2d 895 (1959); Commonwealth v. Looser, 191 Pa.Super. 254, 156 A.2d 905 (1959); Commonwealth v. Levin, 184 Pa.Super. 436, 135 A.2d 764 (1957). In each of these cases, speed competition was a basic element.

Although there has long been legislation directed against speeding or reckless driving, statutes specifically aimed at racing, or drag racing, are of later origin. See generally 71 Am.Jur.2d, Automobiles and Highway Traffic § 323. In defining the illegal activity isolated by the anti-racing statutes, both the statutes and the courts have tended to use the terms “race” and “drag race” without careful distinction, apparently taking the view that any “speed competition” on the highways or public streets was the essence of the unnecessarily dangerous activity which was sought to be proscribed. Id.; Commonwealth v. Honeycutt, 227 Pa.Super. 265, 323 A.2d 775 (1974).

This does not mean, however, that the statute prohibits only competitive conduct. Though the statute is primarily aimed at competitive racing, alternative language in the statute is directed to exhibitions of speed or acceleration. These alternative offenses do not require more than one driver. The language of the statute clearly prohibits a person from driving a vehicle on a highway in any “exhibition of speed or acceleration.” 75 Pa.C.S. § 3367(b). Therefore, the absence of the element of competition in this clause does not necessarily remove Ward’s conduct from the parameters of the statute. Thus, we cannot agree with Ward's argument that his conduct does not fall within the prohibitions of the statute simply because he was not competing with another driver. See Commonwealth v. Hill, 236 Pa.Super. 572, 346 A.2d 314 (1975), affirmed in part, vacated in part, 481 Pa. 37, 391 A.2d 1303 (1978) (statute must be construed to give effect to all of its language).

Ward also argues that his conduct does not fall within the statute’s prohibition against exhibitions of speed or acceleration because there was no indication “that there was a crowd for which [he] was performing.” The statute does not define “exhibition,” nor do the few cases which have interpreted this statute. Webster’s New International Dictionary, 3d edition, defines exhibition as “an act or instance of showing, evincing, or showing off; a public show or showing.” Ward argues that the statute encompasses only those situations where the individual purposefully gathers an audience to observe his conduct. We disagree.

The purpose of section 3367 is to ensure highway safety. It is common knowledge that the deliberate screeching of tires produces tension, which may increase nervousness in drivers and pedestrians, thereby increasing the likelihood of an accident. See Beneficial Consumer Discount Co. v. Savoy, 291 Pa.Super. 469, 436 A.2d 687 (1981) (judicial notice may be taken of matters of common knowledge of facts which are so well known that they are incontestable); see also People v. Grier, 38 Cal.Rptr. 11, 226 Cal.App.2d 360 (1964) (court upheld defendant’s conviction for exhibition of speed or acceleration under a similar statute, stating that a particular audience to such an exhibition was not required under the statute, and taking judicial notice of the fact that screeching tires produces tension in drivers). In our opinion, to require the Commonwealth to prove that an audience or crowd was deliberately assembled would frustrate the purpose of the statute. It is precisely those drivers or pedestrians who do not anticipate such an exhibition who are most affected by it. Thus, we find that Ward’s argument that the statute prohibits this conduct only when an audience is purposefully assembled, is merit-less.

In his second issue, Ward claims that the Commonwealth’s evidence was insufficient to prove his guilt beyond a reasonable doubt. Our standard of review is well established. We must view the evidence in the light most favorable to the Commonwealth, as verdict winner, and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if the evidence is sufficient to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). Moreover, when determining the credibility of witnesses and the weight to be afforded the evidence, the trier of fact is free to believe all, part, or none of the evidence. Id. It is only where the evidence is so inconsistent and unreliable, such that the verdict is based upon conjecture, that the verdict will be overturned. Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981).

The evidence indicates that this incident occurred as Ward left a shopping center parking lot and turned onto a public highway. Shoppers were in the parking lot area and the parking lot was three quarters full. Officer O’Shea testified that he heard tires squealing, and his attention was drawn to Ward, who was backing out of his parking space in the shopping center parking lot. Officer O’Shea testified that Ward stopped at the stop sign at the parking lot exit and proceeded onto Route 30, at which time Ward’s tires squealed again. Officer O’Shea pointed out that “[a]t the time of the incident there [were] a few other vehicles on Route 30 ... It wasn’t a congested time of day.”

Viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, we conclude that the evidence was insufficient to support Ward’s conviction of the offense of exhibition of speed or acceleration. Spinning or squealing tires alone is insufficient to support a conviction under this statute. The record is devoid of any evidence other than the fact that Ward’s tires squealed. There is nothing in the record indicating rapid acceleration, or speed in a short distance travelled. Squealing tires alone does not necessarily lead to the conclusion that one is exhibiting speed or acceleration. Moreover, we point out that road conditions, especially a loose gravel paving, or tire conditions, may cause inadvertent squealing. We conclude that evidence of spinning or squealing tires, without more, is insufficient to support a conviction under this statute.

Reversed.

      . Rapid acceleration, as well as other elements of highway behavior such as simultaneous starting and running abreast, have been frequent evidentiary elements in racing prosecutions. Ordinarily, however, any one of these factors has been only one of several items of adverse evidence in any successful racing prosecution. 71 Am.Jur.2d, Automobiles and Highway Traffic § 323; see also Annotation, 24 ALR 3d 1282.

      . Under the Statutory Construction Act, 1 Pa.C.S. § 1921 et seq., we are bound to consider the object sought to be attained by the legislature in enacting the statute at issue, and to the consequences of a particular interpretation. 1 Pa.C.S. § 1921(c); Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979). See also Busy Beaver Bldg. Centers, Inc. v. Tueche, 295 Pa.Super. 504, 442 A.2d 252 (1981) (language of a statute must be read in a sense which harmonizes with the subject matter and its general purpose and object); Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980) (where superior court determines that words or phrases of act are equivocal or ambiguous, legislative intent may be ascertained by examining the harm sought to be regulated and prevented, the object sought to be obtained, and consequences of any particular construction). The Act of January 8, 1960, P.L. (1959) 2118, Sec. 3, 75 P.S. § 1041, amending The Vehicle Code of April 29, 1959, P.L. 58, 75 P.S. § 101 et seq., made automobile racing on a highway an independent crime punishable by fine or imprisonment or both up to $500 and three years in jail. In 1960 a new section was added to the statute, section 1041, entitled Speed Contests and Drag Races Prohibited, and provided: “It shall be unlawful for any person to operate a vehicle upon any highway in a speed contest, including those commonly known as drag races, whether from a standing start or otherwise, over a measured or unmeasured distance, the object of which is to better or defeat one or more contestants on the basis of elapsed time, superior performance or speed.” In 1976, the statute was amended, 1976, June 17, P.L. 162, No. 81, § 1, effective July 1, 1977. The amendment added definitions of the terms "race" and "drag race," and added as well the language which is the subject of the instant case. Our interpretation of the legislature’s intent in prohibiting such exhibitions of speed or acceleration is consistent with the remaining provisions in section 3367, as well as the other provisions enacted under subchapter F, entitled “Speed Restrictions.” These provisions include § 3361, Driving vehicle at safe speed; § 3362, Maximum speed limits; § 3363, Alteration of maximum limits, § 3364, Minimum speed regulation, § 3365, Special speed limitations, § 3366, Charging speed violations, and § 3368, Speed timing devices.

      . In a California decision construing a similar statute, the California appellate court upheld the defendant’s conviction over a sufficiency of the evidence claim. In People v. Grier, 38 Cal.Rptr. 11, 226 Cal.App.2d 360 (1964), the defendant argued that the evidence was insufficient to show that he was engaged in a speed contest or exhibition of speed in violation of section 23109 of the California Vehicle Code. The California statute, which contains language identical to that of our own statute, provides: "No person shall engage in any motor vehicle speed contest or exhibition of speed on a highway ...”
      The police officer testified that he observed Grier driving out of a private driveway onto the public street, at which time the tires "peeled, screaming quite loud.” 38 Cal.Rptr. at 12, 226 Cal.App.2d at 362. The officer pursued Grier, and when Grier stopped and made a right turn onto a boulevard, the officer testified that Grier’s "automobile tires again peeled, screaming quite loud." Id. The officer stated that Grier attained a speed of approximately 40 miles per hour by continuous acceleration within a distance of about three-quarters of a block, and that there were several vehicles behind Grier’s car.
      Grier testified in his own defense, stating that he possibly slipped on some sand or gravel as he left the driveway, and that when he made a right turn onto the boulevard he heard his tires squealing, but he was not driving in excess of 40 miles per hour at the time. On appeal, Grier argued that there was no observer present and therefore the evidence was insufficient to hold him in violation of the statute.
      The court, quoting the Appellate Department of the Superior Court, stated:
      The statute ... covers much more than “drag” races and similar • "contests.” Clearly such an "exhibition" applies to appellant's driving prior to his arrest---- Such an exhibition was dangerous and imprudent, against which the charging statute inveighed____ No particular type of audience to such an exhibition can nor need be implied in the statute. It was exhibition of speed on a highway, as much as if it had been a prearranged affair with an invited or selected audience of observers.
      38 Cal.Rptr. at 13, 226 Cal.App.2d at 364. The court held that excessive acceleration of an automobile on a highway in a highly developed and populated area in such a manner as to cause the tires to scream loudly and to lose traction on a highway constituted an “exhibition of speed" in violation of the statute. Id.

      This case differs only slightly from the one before us. In Grier, there was evidence indicating that the driver had in fact engaged in rapid acceleration. This was easily inferred from the police officer’s testimony that Grier went from a stop to 40 miles per hour within three-quarters of block. In the case before us, evidence of rapid acceleration or speed is conspicuously absent.


author: ROWLEY, Judge: MONTEMURO, Judge,

text:
    573 A.2d 599
    COMMONWEALTH of Pennsylvania v. David Earl OUSLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 30, 1989.
    Filed April 18, 1990.

      James E. Goodwin, Asst. Public Defender, Sharon, for appellant.
    Lorinda L. Hinch, Asst. Dist. Atty., Mercer, for Com., appellee.
    Before CERILLO, President Judge, and ROWLEY and MONTEMURO, JJ.
   ROWLEY, Judge:

This is an appeal by David Ousley from a judgment of sentence of two to ten years imprisonment imposed following appellant’s guilty plea to attempted burglary. The only issue raised on appeal concerns the discretionary aspects of sentencing. We deny appellant’s petition for permission to appeal.

Appellant’s Rule 2119(f) Statement asserts that there is a substantial question that his two to ten year sentence contravenes the Sentencing Code 1) because the court relied upon matters (unspecified) not properly before it at sentencing, and 2) because “said sentence is not only beyond the standard range of the sentence guidelines, but is also well beyond the aggravated range of the guidelines applicable for appellant and is not specifically tailored to the nature of the offense, the ends of justice and society and the rehabilitative needs of the appellant.” (Appellant’s brief at 5.)

The first of these reasons cannot be relied upon to support the petition for permission to appeal because it was not raised in appellant’s motion to modify sentence and therefore has been waived. Pa.R.Crim.P. 1410; Commonwealth v. Dorman, 377 Pa.Super. 419, 547 A.2d 757 (1988). Even if the issue were not waived, however, it would warrant no relief because appellant has totally failed to articulate in his 2119(f) statement any factors which the trial court relied upon which allegedly were not before it. See Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989).

The second reason advanced by appellant to support his petition for permission to appeal fails to raise a substantial question. To determine whether or not to grant permission to appeal from the discretionary aspects of sentencing, there must be a substantial question that the sentence is not appropriate under the “entire Sentencing Code.” 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Although it is correct that the sentencing court must consider the applicable guidelines, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), they are only one factor of many which the sentencing court must consider. To determine whether there is a substantial question warranting permission to appeal from the discretionary aspects of sentencing, we must ascertain if the Sentencing Code as a whole has been compromised.

In Williams, supra, the court found that appellant had failed to raise a substantial question in her 2119(f) statement where the statement did not include any “specific, articulable reasons why her sentence raises doubts that the sentencing scheme as a whole has been compromised.” Id., 386 Pa.Super. at 326, 562 A.2d at 1388.

In the instant case, appellant’s statement asserts no specific, articulable reasons why his sentence compromises the sentencing code. On the contrary, appellant’s statement includes only the bald averment that the sentence exceeds the guidelines and the conclusion which he would like us to reach: that the sentence “is not specifically tailored to the nature of the offense, the ends of justice and society and the rehabilitative needs of the appellant.” Appellant has failed to advise us, either in his 2119(f) statement or anywhere else in his brief on appeal, what the applicable guideline range is, and he has articulated absolutely no facts to support the conclusion that the sentence is not appropriately tailored to the crime, his needs, and society’s needs. The Supreme Court in Tuladziecki, and the Superior Court in the cases decided thereafter, e.g., Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987), Williams, supra, have made it clear that appeals from the discretionary aspects of sentencing are not to be granted as a matter of course, but are to be granted only in exceptional cases where it can be shown in the 2119(f) statement that despite the “multitude of factors impinging on the sentencing decision,” the sentence imposed contravenes the sentencing code. Tuladziecki, supra, 513 Pa. at 513, 522 A.2d at 20. Because appellant has failed to articulate any specific reasons why his case is one of those extraordinary ones in which we should grant review, we find that he has failed to raise a substantial question.

In addition, Appellant’s conclusory assertion in the 2119(f) statement that the sentence exceeded the guidelines, without more, does not raise a substantial question. The statute provides that although the trial court must consider the guidelines, the trial court is free to sentence a defendant outside the guidelines, and the only limitation on such an exercise of the sentencing court’s discretion is that the court include a statement of reasons why it is deviating from the guidelines. 42 Pa.C.S. § 9721(b). Thus, the mere fact that a person is sentenced outside the guidelines, without any suggestion of how much the sentence imposed exceeded the guidelines, without any averment that the trial court failed to state any reasons for going outside the guidelines, and without any assertion that the court relied upon any inappropriate reasons for sentencing outside the guidelines, does not raise a substantial question that the sentencing code has been compromised because the sentencing court is authorized to sentence outside the guidelines.

The Dissent’s assertion that “[t]he contention that the judge exceeded the applicable guideline recommendation raises a substantial question justifying the use of our discretionary appellate jurisdiction” appears to create a bright line test for determining when a substantial question has been asserted. No authority which has been cited to us establishes such a clear bench mark for establishing a substantial question, and the cases relied upon by the dissent do not support the conclusion that the mere averment of a sentence outside the guidelines, without more, raises a substantial question.

In Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (en banc), aff'd. per curiam, 522 Pa. 153, 560 A.2d 148 (1989), relied upon by the Dissent, appellant received a total sentence of ten to twenty-five years imprisonment. He sought review of the discretionary aspects of his sentence because the trial court had failed to state appropriate reasons for deviating from the guidelines and because the sentence allegedly was so harsh inasmuch as it was nearly twice as long as the maximum minimum sentence under the guidelines (five years, seven months). The Court concluded that “under these circumstances,” appellant had raised a substantial question. Id., 372 Pa.Superior Ct. at 372, 539 A.2d at 841.

Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989), which the Dissent also relies upon, fails to support the conclusion that the mere “contention that the judge exceeded the applicable guideline recommendation raises a substantial question.” In Burdge, the appellant was sentenced to a total of 13V2 to 27 years imprisonment, and challenged the discretionary aspects of sentencing by questioning, inter alia, whether the sentence imposed was excessive in light of the underlying crimes. Upon considering the question of whether this raised a substantial question, the Court cited Sanchez, noted that the guidelines were inapplicable to appellant, and stated: “the sentence imposed considerably exceeded the recommendation of both the prior and pending sentencing guidelines. Therefore, we find that the propriety of the sentence presents a substantial question.” Id., 386 Pa.Superior Ct. at 198, 562 A.2d at 866 (emphasis added). The only other reference made by the Court in Burdge regarding the relationship of the prior and proposed guidelines to the sentence which was imposed was that “the trial court sentenced him significantly in excess of prior and pending sentencing guidelines.” Id., 386 Pa.Superior Ct. at 196, 562 A.2d 865 (emphasis added).

In the instant case, appellant’s sentence exceeds the guidelines by six months. We find this differential to be significantly different than the almost four and one-half year differential in Sanchez. Also, applying the language of the Court in Burdge, we do not find the 24 month minimum sentence actually imposed in the instant case to be either “significantly” or “considerably” in excess of the maximum guideline recommendation of 18 months imprisonment. Because the finding of a substantial question in both Sanchez and Burdge was premised on the amount by which the sentence imposed exceeded the maximum guideline recommendation, and in neither case was a substantial question found simply because appellant had asserted that the sentence exceeded the guidelines, we conclude that the Court has not established a per se rule that the bald assertion that one’s sentence is outside the guideline recommendation raises a substantial question that the sentence imposed contravenes the sentencing code.

The Commonwealth argues that we should deny the petition for permission to appeal based on Commonwealth v. Ziegler, 379 Pa.Super. 515, 550 A.2d 567 (1988), (petition for permission to appeal denied for failure to include in the Statement of Reasons the identity of the crime of which appellant was convicted) because appellant has failed to include in his 2119(f) statement the identity of the crime for which he was sentenced. However, we find it more appropriate instead to follow the analysis adopted by the Court en banc in Williams, which was also a case in which the identity of the crime was not mentioned in the 2119(f) Statement.

The Dissent faults us as being “disingenuous” for following Williams and avoiding what it perceives to be the “exceedingly simplistic” resolution of the instant appeal. Yet to reach that “exceedingly simplistic” resolution would require us to reach out and resolve an issue unnecessary for the disposition of the case before us, would require us to infer from Williams that which was not decided therein, and would require deviating from the analysis that was used by the Court in Williams.

In Williams, despite the fact that the Court ordered the parties to address Ziegler and Commonwealth v. Cummings, 368 Pa.Super. 341, 534 A.2d 114 (1987), upon which Ziegler relied, in their briefs before the Court en banc, neither party did so. In addition, at oral argument before the Court en banc, the issue of Ziegler and Cummings was never addressed by either the Court or the parties. Because it was possible to decide Williams without reference to either Ziegler or Cummings, the Court en banc did not address the continuing viability of either of those cases. Considering this history of Williams, as well as the fact that the instant case is factually similar to Williams insofar as appellant’s statement of reasons is woefully inadequate to assert a substantial question because it fails to articulate any specific facts, because it asserts as reasons for granting permission to appeal only the conclusions which appellant wants us to reach, and because it does not identify why this is one of the exceptional cases in which an appeal should be granted, we will neither infer from Williams that Ziegler or Cummings has been overruled sub silentio, nor will we undertake to address those cases here where it is unnecessary to do so in order to dispose of the appeal.

Petition for permission to appeal denied.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

I disagree with the majority’s decision to deny appellant permission to appeal the discretionary aspects of his sentence because the majority concluded that he failed to raise a substantial question regarding the propriety of that sentence. I would find that appellant raised a substantial question, and that he failed to show a manifest abuse of discretion by the sentencing judge. Rather than denying permission to appeal, I would affirm the judgment of sentence.

Appellant pled guilty to attempted burglary, a felony of the second degree. The offense has a gravity score of four, and appellant’s prior record score is three. The sentencing guidelines recommend a minimum sentence of twelve to eighteen months in the aggravated range. See 204 Pa. Code ch. 303, reprinted at, 42 Pa.C.S.A. § 9721. The trial court sentenced appellant to a prison term in state prison of two years to ten years. Appellant’s sole contention on appeal is that the sentence is manifestly excessive in length.

This is a challenge to the discretionary aspects of sentencing. An appellant who challenges a discretionary aspect of sentencing must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence. See Pa.R.A.P. 2119(f). See also Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Contrary to the finding by the majority on this issue, I would find that appellant has complied with this requirement.

In his brief, on a separate page appearing before the summary of his argument, appellant has included the following “statement of the reasons relied upon for allowance of appeal:”

The appellant, by and through his attorney, believes a substantial question is involved concerning the legality of his sentence because the court below erred in imposing a period of imprisonment of not less than two nor more than ten years in a state penal institution on the appellant, because the court below relied upon matters not properly before it in sentencing appellant, and because said sentence is not only beyond the standard range of the sentence guidelines, but is also well beyond the aggravated range of guidelines applicable for appellant and is not specifically tailored to the nature of the offense, the ends of justice and society and the rehabilitative needs of the appellant.

It could be argued that pursuant to Commonwealth v. Ziegler, 379 Pa.Super. 515, 516-17, 550 A.2d 567, 568 (1988) appellant failed to properly set forth his reasons for allowance of appeal because he omitted from the statement the identity of the crime from which the sentence stems. The Ziegler court relied entirely on Commonwealth v. Cummings, 368 Pa.Super. 341, 534 A.2d 114 (1987). See 379 Pa.Super. at 517, 550 A.2d at 568. Under Ziegler and Cummings the Commonwealth’s argument would control.

Recently, however, in Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) an en banc panel of this court declined to follow the clear dictates of Ziegler and Cummings. Judge Rowley, in his unanimous opinion, quoted the entire “statement of reasons why appeal should be granted.” Id., 386 Pa.Superior Ct. at 324-27, 562 A.2d at 1387-88. The appellant in Williams did not include the crime for which she was convicted. Instead of dismissing the appeal for that reason alone, as Ziegler and Cummings would require, Judge Rowley considered the statement in its entirety. Id., 386 Pa.Superior Ct. at 326-28, 562 A.2d at 1388. He then concluded that the statement did not include “any specific articulable reasons why [appellant’s] sentence raises doubts that the sentencing scheme as a whole has been compromised.” Id., 386 Pa.Superior Ct. at 326, 562 A.2d at 1388.

Judge Rowley, in his majority memorandum in this case, holds that Williams did not overrule Ziegler and Cummings because there was an alternate basis for denying permission to appeal in Williams. Op. at 552-553 (citing Williams, supra at 326-28, 562 A.2d at 1388). I find it somewhat disingenuous for a court to claim that it will apply the foregoing standard to determine whether a claim is raised, when it could dismiss on an exceedingly simplistic basis; that is, the appellant did not include the crime for which there was a conviction in the Rule 2119(f) statement. That the Williams court could have denied permission to appeal on the basis of the appellant’s failure to include the crime in his Rule 2119(f) statement, indicates to me that the court no longer had faith in the standard that was more concrete and easier to apply. Similarly, Judge Rowley’s decision to apply the Williams standard in this case rather than denying permission to appeal under Ziegler and Cummings draws into question the continuing vitality of Ziegler and Cummings.

Judge Rowley concludes that, independent of his failure to include the crime for which he was convicted, appellant failed to meet the “specific, articulable reasons why her sentence raises doubts that the sentencing scheme as a whole has been compromised” standard. I disagree. Even if the rule from Ziegler and Cummings were still good law, I would ignore it, because appellant has otherwise raised a substantial question justifying our review of his sentencing claims.

Appellant’s Rule 2119(f) statement includes two allegations. First, appellant alleges that the trial court relied upon matters not properly before it. Second, appellant contends that the sentence is well beyond the sentencing guideline’s recommended aggravated range. The second issue was raised in appellant’s motion to modify sentence, and is preserved for this appeal. The contention that the judge exceeded the applicable guideline recommendation raises a substantial question justifying the use of our discretionary appellate jurisdiction. Commonwealth v. Burdge, 386 Pa.Super. 194, 197-99, 562 A.2d 864, 866 (1989) (claim that sentence considerably exceeded recommended sentence raises a substantial question) (citing Commonwealth v. Sanchez, 372 Pa.Super. 369, 372-73, 539 A.2d 840, 841 (1988) (en banc) (claim that sentence more than doubled guideline range raised a substantial question) aff'd per curiam, 522 Pa. 153, 560 A.2d 148 (1989)).

Judge Rowley finds that appellant did not articulate a reason that the sentencing procedure as a whole had been compromised by stating that the judge sentenced him outside of the guideline range, because he reads Sanchez and Burdge to require that the sentence imposed “considerably exceed” the sentencing guidelines in order to raise a substantial question. While I recognize that trial courts, as well as trial counsel, are frequently called upon to apply vague standards enunciated by appellate courts, to appropriately, consistently and fairly apply Judge Rowley’s newly invented “considerably exceeded]” standard is not only a formidable task, but in my view impossible. In the instant case, the sentence was six months greater than the eighteen month recommended minimum in the aggravated range. Reasonable minds could certainly disagree on the question of whether the amount by which appellant’s sentence exceeded the guideline range was considerable for purposes of the new standard. If the guidelines recommended no incarceration, would a six month sentence considerably exceed the recommended range? I would instead follow the clear dictates of Burdge and Sanchez, and I would conclude that the allegation that the sentence imposed is outside the guideline range poses a substantial issue permitting us to grant permission for allowance to appeal.

We must not lose sight of our task in these cases. The analysis over which members of this panel disagree is not whether appellant is entitled to relief in the form of vacating his sentence. Instead, our quarrel is over whether to give appellant a forum in which to raise his sentencing claims. I do not read Rule 2119(f) or 42 Pa.C.S.A. § 9781 or Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) to require the kind of hair splitting the majority seeks to engage in. I would conclude that appellant raised a substantial question regarding the trial court’s exercise of discretion in sentencing appellant.

Since I reach the foregoing conclusion, I will now proceed with an examination of the merits of appellant’s allegation that the trial judge abused his discretion in imposing his sentence. Such an examination is limited, and this court will reverse only when a manifest abuse of the trial court’s discretion is shown. Commonwealth v. White, 341 Pa.Super. 261, 270, 491 A.2d 252, 257 (1985).

The sentence imposed here exceeds the guidelines recommended range, and for that reason appellant contends that the sentence is manifestly excessive. Pursuant to 42 Pa.C. S.A. § 9781(c)(3) unless this court concludes that a sentence exceeding the guidelines is unreasonable, we are required to affirm. Section 9781(d) requires that, in reviewing the record, this court “shall have regard for (1) the nature and circumstances of the offense and the history and characteristics of the defendant. (2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation. (3) The findings upon which the sentence was based. (4) The guidelines promulgated by the commission.”

The record reflects that the trial judge properly considered the circumstances of the case, and the history of the defendant. He gave substantial weight to appellant’s convictions or juvenile adjudications that were not reflected in the guidelines.

The judge also based his decision on many other findings in the record that legitimately support a conclusion that greater punishment is deserved and required. Appellant attempted to flee from the jurisdiction when he learned that the police were looking for him in connection with the attempted burglary, to which appellant pled guilty. At the time of his arrest appellant possessed a gym bag full of the tools of a professional burglar. Appellant’s girlfriend testified that appellant beat her, and threatened her life; charges that appellant did not deny, but chose not to discuss with the judge at the sentencing hearing. As a result of all of his trouble with the law, and because much of it stems from appellant’s abuse of alcohol, appellant was required to attend several alcohol rehabilitation programs, yet the judge determined that appellant has shown no effort to change his habits. See Commonwealth v. Darden, 366 Pa.Super. 597, 606, 531 A.2d 1144, 1150 (1987) (unincorporated criminal history, and victimization of young woman are substantial aggravating factors). In light of the trial judge’s consideration of all of these facts, I could not conclude that he abused his discretion in fashioning appellant’s sentence. I would therefore affirm the judgment of sentence.

      . The opinion in Burdge is silent as to what the prior or proposed guideline recommendation applicable to appellant would have been. In addition, the opinion does not indicate what appellant’s prior record score was, although the opinion recites that the presentence investigation provided information about appellant’s "criminal record.” Without precise information concerning appellant's prior record score, we cannot calculate what the applicable prior and prospective guideline ranges were in Burdge, and therefore we also cannot determine precisely how much in excess of the prior and proposed guidelines appellant’s actual sentence was.

      . Judge Tamilia concurred in the result.

      . Appellant did not raise this claim in his post-trial motion to modify sentence. The issue is therefore waived. Commonwealth v. Brown, 288 Pa.Super. 171, 175, 431 A.2d 343, 345 (1981) (claim that judge did not sufficiently set forth his reasons for sentence not preserved because it was not included in the motion to modify sentence).

      . We do not even know, from reading Commonwealth v. Burdge, supra, the amount by which appellant’s sentence in that case exceeded the guideline recommendation.

      . The majority makes light of the impact that the guidelines have on the sentencing scheme. I disagree with such a characterization. While the guidelines are only one factor to be considered by the sentencing court, they are indeed a substantial factor to be considered. The legislature considered the guidelines important enough to require that they be consulted when fashioning the sentence, and to require a statement of reasons on the record for deviating from the guidelines whenever the judge decided to sentence outside of the guidelines. If these procedures are not followed the sentence imposed must be vacated. 42 Pa.C.S.A. § 9721(b). Also, the legislature made it grounds for vacating a sentence if the judge misapplied the guidelines, 42 Pa.C.S.A. § 9781(c)(3). The guidelines were promulgated to inject a certain amount of uniformity in sentences imposed by courts of this Commonwealth. While courts may deviate from the guidelines, they may do so only under certain circumstances. I see no reason to not make those circumstances subject to this court’s review when the appellant challenges them on appeal.


author: TAMILIA, Judge:

text:
    573 A.2d 606
    COMMONWEALTH of Pennsylvania, Appellant, v. Dean P. MICELLI.
    Superior Court of Pennsylvania.
    Argued March 28, 1990.
    Filed April 20, 1990.
    James Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Norma Chase, Pittsburgh, for appellee.

      Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal by the Commonwealth from the trial court’s Order of June 28, 1989, denying the Commonwealth’s request for postponement or, in the alternative, the petition for nolle prosse, and dismissing the charges with prejudice.

Appellee was charged on December 20, 1988 with two counts of driving under the influence and one count of possession of drug paraphernalia after an investigation by Officer Patrick J. Manning of the Penn Hills police department. While in the custody of Officer Manning, appellant made inculpatory statements and the Commonwealth intended to call Officer Manning as a main witness in the prosecution. Following a pretrial conference on April 17, 1989, the trial date was set for June 28, 1989. On May 12, 1989, the Commonwealth sent a subpoena to Officer Manning, notifying him of the trial date. On May 16, 1989, however, the Pennsylvania National Guard issued orders to Officer Manning to report for reserve duty for a two-week period, beginning June 24, 1989. On June 15, 1989, the Commonwealth received notice from Officer Manning that he was unavailable on June 28th due to the order he received and, therefore, the Commonwealth petitioned the court on June 19, 1989 for a postponement of trial on the basis that an essential witness would be unavailable. The defense did not consent to a postponement so a full hearing was held on June 28, 1989, at which time the court denied the application for postponement. The Commonwealth immediately petitioned for nolle prosse to stop the prosecution, but this was also denied because the court did not want the Commonwealth to have the opportunity to refile the charges, and appellee’s motion to dismiss was granted with prejudice.

The trial court, believing Officer Manning had received his orders “months ago”, found the Commonwealth failed to act diligently and, as a result, wasted valuable court time. Finding no excuse for the Commonwealth’s failure to notify the court earlier of Officer Manning’s unavailability, the court dismissed the charges. The Commonwealth argues this was an abuse of discretion and we agree.

Pa.R.Crim.P. 301, Continuances, provides:

(a) The court may, in the interests of justice, grant a continuance of its own motion, or on the motion of either party. The court shall on the record identify the moving party and state of record the court’s reasons justifying the granting or denial of the continuance.
(b) A motion for continuance on behalf of the defendant shall be made not later than forty-eight (48) hours before the time set for the trial. A later motion shall be entertained only when the opportunity therefor did not previously exist, or the defendant was not aware of the grounds for the motion, or the interests of justice require it.

The Commonwealth petitioned the court nine days prior to the scheduled trial date so part (b) of the rule has been met. The only question is whether the court abused its discretion in refusing to grant the continuance. The court agreed it was required to consider the factors set forth in Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976), when deciding a motion for continuance to secure a material witness:

In [Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971)], this Court set out the criteria to determine the proper exercise of this discretion: (1) the necessity of the witness to strengthen the defendant’s case; (2) the essentiality of the witness to defendant’s defense; (3) the diligence exercised to procure his presence at trial; (4) the facts to which he could testify; and (5) the likelihood that he could be produced at the next term of court.

Id., 469 Pa. at 264, 365 A.2d at 143 (citation omitted).

As the Commonwealth notes, there is no real question as to the necessity or essentiality of Officer Manning’s testimony; Officer Manning was the investigating and arresting officer to whom appellee made his inculpatory statements. Furthermore, the facts to which he would testify form the basis of the Commonwealth’s case against appellee and the Commonwealth would have no problem securing Officer Manning’s presence at the next term of court. This Court finds the Commonwealth did act with due diligence in attempting to prepare for trial on June 28th. Officer Mánning was given notice on May 12th of the trial date but did not receive his orders for reserve duty until May 16th. He did not notify the district attorney’s office of the conflict in his schedule until June 15, 1989 which was a Thursday. The following Monday the Commonwealth petitioned for a continuance. We find the Commonwealth acted diligently and cannot be expected to continually verify the trial date with all of its witnesses. We understand the trial court’s concern for not allowing a lackadaisical attitude on the part of litigants to backlog the court with cases being continued but in this instance we find the Commonwealth, in the interests of justice, should have been granted a continuance.

Order reversed. Case remanded for trial.

      . 75 Pa.C.S. § 3731(a)(3, 4).

      . 35 P.S. § 780-113(a)(32).

      . Although the factors are stated in relation to a defense motion for continuance, they are equally applicable when the prosecution requests a continuance.


author: HUDOCK, Judge:

text:
    573 A.2d 608
    Rebecca Ann VAN DYKE, Appellant, v. Richard James VAN DYKE, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1990.
    Filed April 20, 1990.
    Theodore B. Ely, II, Erie, for appellant.
    Before McEWEN, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from an order which modified the amount of payments to be made by Appellee, Richard James Van Dyke (hereinafter “Father”), to his spouse, Appellant Rebecca Ann Van Dyke (hereinafter “Mother”) for the support of their four children. We reverse.

Mr. and Mrs. Van Dyke were parties to an agreement for order of support. Prior to separation Mr. Van Dyke claimed all four of his children as tax exemptions. The marital settlement agreement subsequently entered into between these two parties incorporated the support order and provided that the “wife shall have all of the children as exemptions for Federal, State, and local income tax purposes with the exception that husband shall for the taxable year 1988 receive one of the children for an exemption.” “Separation Agreement”, VI,i. This agreement was incorporated into the divorce decree which followed.

Father, who then experienced a slight increase in income as a result of a wage increase, also experienced a decrease in net income as a sole result of this tax arrangement. He therefore filed a petition to modify the support order, claiming a change in circumstances and an inability to pay the then current amount of support. A de novo support hearing followed a conference, and the order which resulted, now on appeal, reduced father’s support obligation from $758.33 to $660.00 per month.

Mother contends that Father should not be allowed to reduce support payments due to a circumstance which was known to him at the time that the marital settlement agreement was entered into. She further maintains that he has failed to prove a change of circumstances which would be sufficient to allow modification.

Father responds that "... the settlement agreement was signed in July. In all fairness, [he] could not reasonably be held to [have] know[n] the impact of the loss of deductions until the end of the calendar year.” Appellee’s Brief, p. 10. He argues that a substantial change in circumstances resulted, and that it was within the court’s proper exercise of discretion to modify his support obligations accordingly.

Moreover, mother and father disagree over whether modification of a support order, as contrasted with the modification of a support obligation pursuant to a contract, is sought. Mother urges us to find that the amount of support can not be modified because of the existence of the marriage settlement agreement. This agreement is merely “incorporated” and not “merged” into the divorce decree. As such, she cites authority to the effect that the trial court should not reduce its terms. Father, on the other hand, argues that he seeks reduction of a modifiable support order, not a “separate, unique support contract.”

The record indicates that father is correct insofar as he claims that the modification of a preexisting order, and not a support agreement, is sought. “[A] court order ... is always modifiable, upwards or downwards, as the circumstances may require.” Knorr v. Knorr, 380 Pa.Super. 11, 17, 550 A.2d 1338, 1341 (1988). When questioned on appeal, the modification of support is reviewed to determine only if the court below clearly abused its discretion. Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 421 A.2d 762 (1980). “A finding of abuse is not lightly made but only upon a showing of clear and convincing evidence.” Id.

The question presented on appeal, as such, is whether the court below clearly abused its discretion by finding a change of circumstances which warranted the reduction of child support in a case where the father agreed to forfeit certain tax deductions in a settlement agreement but later claimed that the consequences of this agreement, allegedly unforeseen by him at the time of its making, constituted a change in circumstances which rendered him unable to pay the agreed-to amount of support, and which justified a court-ordered modification of said amount. We hold that by finding a change of circumstances which warranted modification the court below clearly abused its discretion.

The trial court in its opinion relies on Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976), to observe that “the effect of income taxes upon the parties is a proper matter for consideration in determining the amount of a support order.” Trial Court Opinion, pp. 3-4. While Eppolito does state this broad proposition, it does not, however, hold that the effect of income taxes constitutes a change in circumstances which justifies reduction of support where the parties have contractually agreed to their income tax arrangement. No such holding has been drawn to our attention. Moreover, Eppolito, did not involve an independent separation agreement; rather, the court merely clarified tax consequences between the parties by allocating the amount of support that husband paid to wife between wife and daughter, without modifying the actual amount itself.

We are of the opinion that no change of circumstances can be claimed where a party agrees to a provision governing tax deductions in a settlement contract, and only later realizes that its terms may be unfavorable, or may render his financial situation more difficult than originally anticipated. Although the sting of its ramifications may be felt long after its creation, the agreement entered into remains unchanged, as does the set of circumstances which it produced. The only change which can be claimed in this situation is the change of heart which has occurred in the complaining party, and not one in the financial circumstances which he participated in creating, which remain the same, and which do not provide a base upon which to justify the judicial reduction of his child support obligation.

Accordingly, we reverse the order and remand for reinstatement of the Order of Support dated February 12, 1988.

      . Trial courts may also modify child support obligations where the parties have contractually agreed to the amount of support. The relevant statute, 23 F.S. § 401.1(b), provides: "A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.”
      We also note that in the case at bar the parties specifically agreed between themselves to allow for modification in the event of changed circumstances.


author: HESTER, Judge:

text:
    573 A.2d 610
    Carol J. FERRY, Administratrix of the Estate of John M. Ferry, Sr., Deceased, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1990.
    Filed April 18, 1990.
    Monica M. Lovre, Pittsburgh, for appellant.
    James A. McGregor, Jr., Beaver, for appellee.

      Before CAVANAUGH, TAMILIA and HESTER, JJ.
   HESTER, Judge:

This appeal is from the May 2, 1989 order entered by the Lawrence County Court of Common Pleas, granting appellee, Liberty Mutual Insurance Company, judgment on the pleadings. Appellant’s husband was killed when he was struck by an uninsured motorist on August 20, 1985, while engaged in painting crosswalks beside a truck with a flashing amber light in New Castle, Pennsylvania. The deceased was employed by the Public Works Department of the City of New Castle and was working within the scope and authority of his employment.

Appellant sought to obtain uninsured motorist benefits from his employer’s fleet automobile policy, but appellee denied coverage. Appellant argues that the Pennsylvania Motor Vehicle Financial Responsibility Law (“Responsibility Law”), 75 Pa.C.S. § 1701 et seq., provides a separate source for recovery for employees injured by uninsured motorists that is independent of the exclusive remedy for work-related accidents provided under The Pennsylvania Workmen’s Compensation Act (“Act”), 77 P.S. § 1 et seq., as amended, and therefore, the trial court erred in granting judgment on the pleadings. We agree and reverse.

Appellant concedes that the Act was intended to provide the exclusive remedy for employees injured in work-related accidents in the course of their employment. Appellant, however, maintains that the purpose of the Act is to improve safety in the workplace and to provide workers with prompt and uncontested benefits. She further argues that negligence in operating motor vehicles is not closely related to the purpose of the Act, since whether an injured party is within the scope of his duties at the time of an automobile accident is unrelated to safety in his workplace, to highway safety, or to ensuring coverage of injured parties in automobile accidents generally. Application of the Act to bar recovery would result in similarly situated parties injured in automobile accidents by uninsured motorists being treated differently. Appellant further argues that since the legislature enacted the Responsibility Law which provided for mandatory uninsured motorist coverage but failed to provide any exception to the coverage after it recently had revised the Act, the legislature supplanted the earlier exclusive remedy under the Act by providing a separate remedy for workers injured in automobile accidents by uninsured drivers.

Our recent panel decision in Chatham v. Aetna Life & Casualty Co., 391 Pa.Super. 53, 570 A.2d 509 (1989), is dispositive. There we held that our supreme court in Selected Risks Insurance Co. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989), in dicta, interpreted the legislature as approving receipt of benefits from mandated uninsured motorist coverage included in an employer’s insurance policy pursuant to the Responsibility Law in addition to workmen’s compensation benefits. In Chatham, we stated:

We read Thompson to approve the payment of claims for benefits originating, and subject to obtainment by a claimant, through the workmen’s compensation scheme of recovery and the uninsured motorist policy obtained by an employee’s employer. In other words, the high court having spoken on the issue to be resolved, albeit in glancing terms, we read Thompson to embrace the action we take today. [affirming receipt of benefits from mandated uninsured motorist coverage included in employer's insurance policy pursuant to the Responsibility Law as well as workmen's compensation benefits.]

Chatham v. Aetna Life & Casualty Co., supra, 391 Pa.Super. at-, 570 A.2d at 512, (footnote omitted) (emphasis added).

In Thompson, our supreme court held that an individual could collect uninsured motorist benefits from a volunteer fire department fleet policy in addition to workmen’s compensation benefits from his municipal employer. This was based on the fact that the uninsured motorist coverage was part of the fireman’s policy as an insured member of the volunteer fire company and not part of his municipal employer’s insurance coverage. The court in dicta then cited subsection 1735 of the Responsibility Law for the proposition that such coverage would not be excluded even if it were derived from an employer’s insurance policy since the legislature now mandated uninsured motorist coverage for all automobile insurance policies, without exclusion or reduction for workmen’s compensation payments. The supreme court recognized that the Responsibility Law is controlling, since it was enacted after the most recent amendment of the Act.

Our Supreme Court, in Thompson, speaking through Justice McDermott, stated:

... first, uninsured motorist coverage is paid for by a separate premium, and to give the uninsured motorist carrier a set-off based on the fortuitous existence of a collateral source would result in a windfall to the carrier; second, uninsured motorist coverage is mandated by statute and any variations from that statutory mandate should come from the legislature; third, workmen’s compensation only covers a fraction of what tort damages would cover, (e.g. workmen’s compensation does not provide 100% of wage loss coverage, nor pain and suffering, nor other consequential damages) and a dollar-for-dollar set-off does not recognize this reality; and fourth, there is no public policy against an individual purchasing additional uninsured motorist coverage to protect himself and his family against the shortfall which could result from a dependency on workmen’s compensation benefits.

Chatham v. Aetna Life & Casualty Co., supra, 391 Pa.Super. at -, 570 A.2d at 512 quoting Selected Risks v. Thompson, supra, 520 Pa. at 142-43, 43, 552 A.2d at 1388.

Since we find Chatham and Thompson controlling, we find appellee’s argument that the Act is exclusive remedy, relying on Lewis v. School District of Phila., 517 Pa. 461, 538 A.2d 862 (1988), and Azpell v. Old Republic Insurance Co., 382 Pa.Super. 255, 555 A.2d 168 (1989), is an incorrect reading of current law. Additionally, appellee’s arguments that the general provisions of the Responsibility Law should not be interpreted to revoke the specific immunity provisions of the Act, that appellant should not recover as a third party beneficiary when he is not a named insured as in Thompson, and that appellant received workmen’s compensation benefits, so that the purpose of the Act is not in conflict with the Responsibility Law, each lack merit in light of the dictates of Chatham and Thompson.

Summary judgment reversed and case remanded for proceedings consistent with this memorandum.

      . 75 Pa.C.S. 1735 provides (emphasis added):
      The coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any workers’ compensation benefits payable as a result of the same injury.

      . See § 1936 of Statutory Construction Act of 1972, 1 Pa.C.S. § 1501 et seq., which states:
      Whenever the provisions of two or more statutes enacted finally by different General Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.