author: POPOVICH, Judge:

text:
    503 A.2d 417
    Leo M. BUNDY v. NATIONAL SAFETY LIFE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Nov. 29, 1985.
    Reargument Denied Jan. 31, 1986.

      James H. Devittorio, Ridgway, for appellant.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Potter County, later reduced to judgment, in favor of Leo M. Bundy, appellee, and against National Safety Life Insurance Co., appellant, in the principal amount of $7,213.15 plus interest. We affirm and modify.

The facts, viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, reveal that on March 7, 1980 Mr. Bundy sustained a head injury (commonly referred to as “whip-lash”) when the vehicle he was driving struck another vehicle broadside.

Mr. Bundy filed proof of loss with his insurance carrier/appellant, claiming that he was “wholly and continuously disabled”. With the filing of such documents, the insurer made payments for the following periods of disability: March 9-31, 1980; April 1 — June 1, 1980; and June 2 — September 4, 1980. Thereafter, National terminated payment of benefits upon learning from a Dr. Li that Bundy had been “released to return to work” as of September 4, 1980.

However, because the stress of hauling 80-100 pounds of gun powder up a flight of stairs caused a re-occurrence of Bundy’s headaches and neck pains, the job which Bundy was able to secure lasted no longer than 4 hours. The same inability to carry heavy objects precluded the claimant from returning to his job as “parts-runner” with Givens’ junkyard — the position he held at the time of the accident.

With the aid of counsel, Bundy submitted a supplemental claim on August 27, 1982 seeking reinstatement of his disability benefits beginning with March 18,1981 to August 17, 1982. Attached to the claim were two documents. The first, captioned “Attending Physician’s Supplementary Report”, was filled out by a Dr. Chaudhuri, who wrote that, based on some 12 monthly office visits starting on 6/18/81 for treatment, his patient (Bundy) was totally disabled from performing any duties of his employment “from 3/18/81 to unknown”.

The second writing was authored by a Dr. A.B. King. He suspected, based on the manner in which Bundy sustained injury — striking his head against the windshield and breaking it — that damage to the cervical spine (discs C5 and C6) had occurred since the pulling of a “lot of ligaments is not at all surprising.” Given that Bundy’s symptoms had lasted so long they tend to become chronic and go on for years, according to Dr. King. Thus, he advised that Bundy be evaluated further and “corrective measures [be] undertaken when discovered”.

By letter dated September 9, 1982, National denied Bundy’s request for additional benefits on the grounds that his return to work, when coupled with the fact that he did not commence seeing Dr. Chaudhuri until June 18, 1981, violated the policy of insurance, which required that one be “wholly and continuously disabled”, confined to one’s immediate premises and be regularly visited by a physician.

Bundy reacted by filing a complaint alleging, as is herein relevant, that National had breached its contract of insurance in failing to honor his claim for benefits “from September 5, 1980 to and including August 17, 1982”. Thereafter, National filed a response in the form of an Answer and New Matter. Therein, National would admit to no more than that Bundy’s injuries rendered him “wholly and continuously disabled from the date of the said accident ... up and through September 4, 1980” and not thereafter. If Bundy was still convalescing, National contended, “such alleged disability was not of such [a] nature so as to be compensible [sic] under the terms of [the] ... contract of insurance”. (Paragraph 6)

National expressly denied, in paragraph 11, that Bundy had submitted proper proof of entitlement to benefits for the period in question, and, in paragraph 14, asserted that the complaint was the first it learned of the claim.

Under New Matter, National stated that it ceased making payments to Bundy upon learning from his physician (Dr. Li) that he had been certified to go back to work, and that from October 22, 1980 until August 27, 1982, Bundy presented no proof of loss. Thus, National argued, Bundy had not presented any documentation warranting the payment of any claim and that Bundy’s inaction from the date of the last payment (October 22, 1980) constituted a waiver of his right to seek now additional benefits.

In his “Reply”, Bundy asserted that he had provided proper documentation to National to recover for hi's disability, and that he had not acquiesced to the denial of his claim by failing to object thereto. Also, Bundy noted that he did return to work subsequent to receiving certification from his doctor, however this did not take place after the alleged final payment from National.

At the time set for the non-jury trial, Bundy recalled how he sustained a head injury in March of 1980 in an automobile collision, that his neck and shoulder began to bother him thereafter and that his right arm became numb so as to prevent him from gripping objects with any force. He also complained of getting headaches 2 or 3 times a week, that sometimes they lasted 3 or 4 days and were brought on either with a quick movement of his head or for no apparent reason. They were so severe, Bundy stated, that he would rub his head until blood came out in an effort to relieve the pain. Another symptom of the injury was the enduring of back pains by Bundy so “fierce” that they brought tears to his eyes if he had to “even straighten up”.

Bundy’s typical day, as far as what physical exertion he engaged in, consisted of, as stated by him:

I sit and watch t.v., I get up and walk around the house, go and visit my neighbors, go outside and walk around outside, watch the kids feed their animals.

Any physical work around the house is performed by his step-son or he has to hire others to do things for him. Bundy complained that if he tried to bend or stoop he becomes “dizzy”, and on two occasions he fell from bending over and injured his ribs. The witness has experienced neck problems if he sleeps improperly or misjudges a step. He experiences “terrific headache[s] and it bothers [his] neck something fierce [to the point where he] don’t get no sleep at all.”

Bundy also remarked that his neck snaps since the accident. This causes him pain and is “getting worse and worse as it goes along. It is happening more to [him] now than it did back in 1980."

Bundy went on to recount that his inability to read or write and his 7th grade education relegated him to a 20-year work history, although varied, consisting of driving trucks, junk hauling, tool polishing, maintenance work and other unskilled jobs, all of which required heavy lifting, stooping and bending. Thus, he had not sought work, other than at the Joyce Power Co., since the accident on the recommendation of a Dr. Chaudhuri. Bundy’s wife confirmed her husband’s testimony.

The testimony of Dr. Chaudhuri (a consulting orthopedic surgeon at Charles Cole Memorial Hospital in Coudersport, Pa.), along with that of a Dr. Mosch (a board certified family practitioner and a member of the staff of Charles Cole Memorial Hospital), was presented in deposition form to the trial court.

On three of the six occasions when Dr. Mosch saw Bundy, i.e., October 27, November 4 and November 19 of 1980, the patient complained of headaches related to an injury he sustained in an automobile accident. On the last visit in February of 1983, the patient had injured his ribs falling against a vehicle.

Dr. Mosch sent an abstract of Bundy’s record to his attorney. The last paragraph read:

I am, therefore, not able to give you any further information about his loss of time from work but it is clear from the records of 1980 [ — October 27, 1980 through March 31, 1982] that on those visits he was working, at least part-time, but went home from work when he had the headache.

Although the doctor conceded that he never told Bundy not to work, he admitted that he was not cognizant of whether Bundy was under Dr. Chaudhuri’s care during the same period or whether the patient had been certified as disabled or unable to be gainfully employed.

When counsel for National asked Dr. Mosch if he had an opinion, based on the three office visits, as to whether Bundy, to a reasonable medical certainty, was wholly disabled from performing any gainful occupation for which he might be qualified at that time to perform, he stated: “That during part of that time the patient would have been able to perform some gainful occupation.”

However, on cross-examination by Bundy’s counsel, the doctor opined further that:

... when [Bundy] had his severe headaches he would not then be able to fulfill the usual duties for which he might have been hired. He wouldn’t be a full time employee when he had to leave because of the headache[s].
******
... So during the time when he had the headaches he would have been incapable of full time employment.

A reading of Dr. Chaudhuri’s deposition indicates that he first saw Bundy on March 18, 1981, which would have been during the period that Bundy was seeing Dr. Mosch.

Dr. Chaudhuri’s examination of the patient disclosed that his range of motion of the cervical spine was limited to 20-30% of normal range. His left lateral flexion and right rotation was limited. There was evidence of paravertebral muscle spasm in the cervical spine, mainly on the right side. He had some sensory deficit of the entire right hand along the ulnar border, but it was not clear cut. Also, Bundy did have some atropy of the deltoid and tricep muscles.

Between the initial visit with Dr. Chaudhuri and July 22, 1982, Bundy was referred to two other neurosurgeons (Dr. Okawara of the Medical Center at the University of Rochester and Dr. King of the Guthrie Clinic in Sayre, Pa.) and a Dr. Baska, who operated a pain clinic. Based on the correspondence received from these doctors, Dr. Chaudhuri testified:

... we do not have an exact diagnosis as yet. We do feel that he has problems and he would require investigations. Until you come to investigations you don’t know exactly what he has, but he has symptoms and signs, and we feel that he has soft tissue injury to the cervical spine from which he is suffering.
******
I did not feel until we solved his problems and until he was asymptomatic he could go to work.

The doctor noted that since he first saw Bundy, “I don’t think he has made any significant improvement.” Bundy “has got weakness of the right hand; he has restriction of neck movement; and that basically has remained unchanged.”

Although Dr. Chaudhuri’s admission of Bundy to the hospital for 4 days in May of 1981 for continuous traction, followed by home treatment with intermittent traction, did improve the patient’s condition so as to allow him to bend and lift some, he cautioned, in regard to the cervical spine injury:

This is an ongoing problem, as I told you. It has been waxing and waning. When the patient’s symptoms get worse we advise him to be more careful. When his symptoms improve then we ask less [sic] careful. Basically his symptoms have been waxing and waning and you know there are sometimes when he came with severe pain and at that time we would restrict any lifting in any way. When his symptoms improve he can lift some.

Additionally, in response to a question regarding Bundy’s testimony at trial that he was getting “worse” and the doctor’s “waxing and waning” theory, Dr. Chaudhuri answered:

Well, his symptoms are getting more frequent, you know, or acute; there are more frequent attacks than before. He seems to be seen [by me] more and more often than before.

Lastly, when posed with the question of whether the patient’s condition was caused, to a reasonable medical certainty, by the automobile accident, Dr. Chaudhuri responded, "... it is conceivable that his symptoms have resulted from his accident.”

After the record was closed, the trial court granted National’s motion for a compulsory non-suit for Bundy’s failure to establish through his medical testimony (produced in deposition form) that there existed “a causal relationship between the accident and the ultimate injuries and symptoms as endured by the plaintiff.” (Trial Court Opinion filed December 6, 1983, at page 5) The trial court went on to note that National’s payment of Bundy’s claim for the period between March 9 and September 4, 1980 did not constitute an “admission by payment” dispensing with the presentation of proof establishing a disability on Bundy’s part for the time thereafter.

Following the submission of a petition for reconsideration and a hearing thereon, the trial court reversed its initial order and found in favor of Bundy. It did so by concluding that:

... if the causal connection between trauma and initial injury is admitted, and payment is made thereunder by the defendant insurance company, all that is needed to recover for payments due under [the] policy after the insurance company stopped payment to the plaintiff is testimony that the symptoms suffered by the plaintiff are the same or worse in kind and degree as he suffered from the initial injury to the date the payment was stopped. Certainly the evidence presented by the plaintiff, viewed in the light most favorable to the plaintiff, in the instant case, would satisfy that requirement.

(Trial Court Opinion filed April 23, 1983, at pages 2-3) (Emphasis added) The admission the trial court made reference to in its Opinion appeared in paragraph 6 of National’s Answer to Bundy’s complaint, wherein National stated that Bundy had sustained personal injuries as a result of an automobile accident and was rendered “wholly and continuously disabled from the date of said accident, March 7,1980, up and through September 4, 1980”. The trial court found that the aforecited was sufficient to establish the link between the accident and injury to entitle Bundy to the relief requested.

Post-trial motions and a hearing followed to consider National’s argument to reverse the order and ultimate judgment entered in favor of Bundy. The trial court was not persuaded and denied National’s motions. This appeal followed.

The first two issues raised by National question the sufficiency of the evidence. In particular, that the appellee failed to establish that he was “wholly and continuously” disabled from performing any occupation which he might ordinarily be capable of performing.

Language similar to that appearing in the policy under consideration here has not been interpreted with such rigidity that a claimant must be a helpless invalid in order to recover benefits.

In Cooper v. Metropolitan Life Insurance Co., 317 Pa. 405, 177 A. 43 (1935), where the policies provided that disability payments were to be made if the insured should become wholly and continuously disabled “from engaging in any and every occupation or employment for wage or profit”, our Supreme Court defined the perimeters of permanent disability in a common sense fashion which has become the benchmark against which the grant or denial of one’s claim is assessed. The Cooper Court said:

While the words of the policy must receive reasonable construction and, literally interpreted, the words ‘total disability’ to engage ‘in any and every occupation of employment for wage or profit’ would require that an insured be a helpless invalid before he would be entitled to benefits under the policy, this cannot be what the parties intended. It is rare that any man is incapacitated from doing some work; many a blind man weaves baskets; a man with both legs and one arm off can sit in a doorway and sell lead pencils, or act as a telegraph operator; but it cannot well be argued that either is not totally disabled.

317 Pa. at 408, 177 A. at 44. See also Pearlman v. Metropolitan Life Insurance Co., 336 Pa. 444, 448, 9 A.2d 432, 434 (1939), wherein the same Court, interpreting a similar provision of a life insurance policy, wrote: A claimant under such a policy is not

barred from recovery because he may be able to perform a few trivial and desultory acts or light work of a limited character and at irregular intervals, but it does mean that it is not enough for the insured to show that he is unable to do a substantial part of his ordinary work.

In like fashion, the Supreme Court of the United States said in Lumbra v. United States, 290 U.S. 551, 559, 54 S.Ct. 272, 276, 78 L.Ed. 492 (1934):

“Total disability” does not mean helplessness or complete disability, but it includes more than that which is partial. “Permanent disability” means that which is continuing as opposed to what is temporary. * * * The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life. * * * It may be assumed that occasional work for short periods by one generally disabled by impairment of mind or body does not as a matter of law negative total permanent disability.

Similarly, it has been rightly held that “an insurance company cannot conjure up some imaginary occupation for its insured and defend upon the phantasy of its own creation ____” Cobosco v. Life Assurance Co. of Pa., 419 Pa. 158, 164, 213 A.2d 369, 372 (1965), quoting Moskowitz v. Prudential Insurance Co. of America, 154 Pa.Super. 362, 365, 35 A.2d 567, 569 (1944).

Instantly, we had testimony that Bundy was authorized to return to work by his then doctor. However, his effort proved futile because the amount of manual labor required at the Joyce Powder Co. aggravated his injury and brought on a re-occurrence of his debilitating headaches to the point where he had to leave the job-site after just a half-day of work. We find “this interval in his enforced idleness would not, from a legal standpoint, impair the totality of his disability.” Pearlman v. Metropolitan Life Insurance Co., supra, 336 Pa. at 448, 9 A.2d at 434 (Citations omitted).

Unlike the trial court, we are not inclined to discount the deposition testimony of Doctors Chaudhuri and Mosch, not to mention the exhibits admitted by Bundy regarding the views of several doctors (e.g., Okawara and King) relating to his disability and recommendations for continuing evaluation and treatment.

Admittedly there were statements in the deposition of Dr. Mosch insinuating that the claimant was working part-time during the period when he claims he was totally disabled. This was in stark contrast to the testimony of Mr. Bundy that after the debacle at the Joyce Powder Co. he curtailed his efforts to seek any other type tíf employment. With the clear cut issue of fact facing the trial judge who heard the claimant’s version, we find the evidence sufficient in quantity and quality to have the matter resolved by the trier of fact. See Wuerfel v. Metropolitan Life Ins. Co., 343 Pa. 291, 22 A.2d 747 (1941); Sebastianelli v. Prudential Ins. Co. of America, 337 Pa. 466, 12 A.2d 113 (1940); Woolford v. Equitable Life Assur. Soc. of United States, 149 Pa.Super. 225, 27 A.2d 411 (1942); Milich v. Metropolitan Life Ins. Co., 145 Pa.Super. 430, 21 A.2d 458 (1941).

In the same vein, we note that National’s belief that Bundy, based on his 20-year work history, should be able to find some employment commensurate with his inability to lift heavy objects above his shoulders is, we believe, specious, “as plaintiff’s claim would not be defeated merely because he might be able to perform some kinds of occupation, and as [National] did not specify the ‘forms’ of occupation [it] had in mind” the ruling of the trial court will not be overturned. See Sebastianelli v. Prudential Ins. Co. of America, supra, 337 Pa. at 467, 12 A.2d at 114. In fact, the lack of specificity on the part of National’s counsel as to what job Bundy could perform, notwithstanding his inability to return to the position he held with Givens’ junkyard, precluded Dr. Chaudhuri from offering an opinion during his deposition as to what other work the claimant would/could be able to engage in.

Furthermore, the fact that the claimant had an injury which the doctors were not able to diagnose with certainty, and, therefore were unable or unwilling to express a positive opinion as to whether the disability would be permanent, would not prevent a recovery by the claimant. Mirabella v. Metropolitan Life Ins. Co., 143 Pa.Super. 500, 18 A.2d 474 (1941). The trier of fact, the trial judge here, found that Bundy was not capable of performing the duties of any occupation, which he might be ordinarily capable of performing, or engaging in or carrying on any gainful business or occupation and himself performing an effective part of the work incident thereto. Id.; see also Feigenbaum v. Prudential Ins. Co. of America, 144 Pa.Super. 412, 19 A.2d 542 (1941). We see no reason to alter the trial court’s decision.

The third issue proffered by the insurer is that the claimant failed to present “proof of loss” for the period “of September 5, 1980 through March 18, 1981.”

We need only consider what the evidence shows that the claimant did, or caused to be done, to advise the insurer that the conditions had arisen in which he would be entitled to receive the disability benefits and what the insurer did with, or in consequence of, the information received. Astrin v. Metropolitan Life Ins. Co., 341 Pa. 120, 123, 17 A.2d 887, 888 (1941).

On the insurance policy was printed the following instruction:

Notice of Claim: Written notice of injury on which claim may be based must be given to the company within twenty days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as is reasonably possible. Notice given by or on behalf of the insured or the beneficiary to the Company, its Home Office, Philadelphia, Pennsylvania, or to any authorized agent of the Company with information sufficient to identify the insured, shall be deemed notice to the Company.
Claim Forms: The Company upon receipt of such notice, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which the claim is made.
Proofs of Loss: Written proof of loss must be furnished to the Company at its said office within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it shall be shown not to have been reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible, and in no event, except in the absence of legal capacity later than one year from the time proof is otherwise required. It is undisputed that from the date of the accident until

September 4, 1980, the claimant had provided the insurer with sufficient. proof of loss to warrant his receipt of benefits. It was only when Dr. Li, the claimant’s physician at the time, certified that Bundy could return to work that the insurer stopped making payments. At this juncture it is appropriate to observe that it was proper for the insurer to cease making payments, with “the right subsequently to arrive at a different conclusion, if the facts warranted it.” Mirabella v. Metropolitan Life Ins. Co., supra, 143 Pa.Super. at 505, 18 A.2d at 477.

In his brief to us at pages 9-10, counsel for Bundy acknowledges that the submission of proof of loss for September 4, 1980 through March 18, 1981 was sent to Bundy’s physician for his signature on August 6, 1981, and that “Dr. ’ Chaudhuri apparently did not complete nor send [it] back to the insurer.” Counsel then argues that because National had the means by which to determine Bundy’s physical condition, and, in fact, did so through their Doctor Michael Skovron who prepared a report dated May 13, 1982 on his condition, that the requirements of the policy of insurance were met. We find this to be fatuous.

To begin with, the insurance policy specifically requires that the insured provide proof of loss for the period he/she seeks benefits. It is nowhere written that the insurer has the obligation to expend time and money to seek out and examine its insured to see if he/she is entitled to coverage. Moreover, Dr. Skovron’s report was not favorable to Bundy. Rather, it concluded that he was not disabled. Accordingly, we fail to see the logic or sense in counsel’s argument.

It is true that where an insurer rejects a claim as not compensable, but it finds no fault with the manner in which the proof was presented nor with its substance, the cases require that the proof must be treated as sufficient to justify payment. Astrin v. Metropolitan Life Ins. Co., supra.

Here, we have no formal rejection by National of Bundy’s claim covering September 5, 1980 — March 18, 1981 because, simply put, no proof of loss was ever filed with the insurer for this period, at least from our assiduous review of the record. In fact, Dr. Chaudhuri confirmed that he neither signed nor mailed any such proof of loss statement to National on behalf of Bundy.

What evidence does appear of record on this matter discloses no more than the mailing to the insurer of an “Attending Physician’s Supplementary Report” by Bundy on August 27, 1982. Even there, in response to question # 5, i.e., “Patient was totally disabled from performing any duties of his employment”, Dr. Chaudhuri wrote only “from 3/18/81 to unknown”.

Thus, albeit the sufficiency of the submission of proofs is for the trial court to determine (see Union Trust Co. of Butler v. Guardian Life Ins. Co., 176 Pa.Super. 424, 107 A.2d 584 (1954)), we cannot affirm that which is not supported by the record. Since the trial court calculated that period between September 5, 1980 and March 18, 1981 in arriving at its award, we will remand for a recalculation in light of our determination that proof of loss was established as of March 18, 1981, and not as of September 5, 1980. See Milich v. Metropolitan Life Ins. Co., supra.

Lastly, we address National’s protestation that because Bundy was not confined to his immediate premises, a condition precedent to payment under the policy of insurance was not met. See note 1, supra.

In particular, National argues:

... the Plaintiff’s excursions outside [ ]his home from September 5, 1980 to the date of trial were not in any manner connected with a physician’s advice. Plaintiff testified under cross examination that he was not subpoened to trial. (R.R. at p. 134a) and that he did not need his physician’s approval to attend trial. (R.R. at p. 134a). Moreover, Plaintiff admitted to not being confined to his household and, on the contrary, to walking, at times, twice a day a distance of two and one half blocks to the Valley Restaurant from September 1980 through the date of said restaurant’s burning in December, 1982. (R.R. at p. 127a). Plaintiff also testified that he spent the evening of the restaurant’s burning with his girlfriend at her second floor apartment. (R.R. at p. 109a); that he went hunting in the fall of 1981 (R.R. at pp. 110a-lla); that he drove himself to Olean, New York, to marry his present wife (R.R. at p. 109a), and that he drove to the courthouse on the date of September 6, 1983 trial of this matter. (R.R. at p. 134a). Plaintiff at no time specified that such outdoor activity was prescribed by his treating physicians. Indeed, Dr. Chaudhuri himself admitted that Plaintiff was in no manner confined to his premises and that he was “free to come and go as he pleases”. (R.R. at p. 243a). Dr. Chaudhuri never indicated that he advised Plaintiff to be active outdoors in the manner of record in this case for therapeutic purposes or otherwise.

The law of this Commonwealth has never required that in order for a person to be labelled totally disabled he had to remain within the confines of his home or risk the likelihood that his right to disability benefits would be denied. The principle is elaborated upon by our Supreme Court in Albert v. Mutual Ben. Health & Accident Ass’n, Omaha, 350 Pa. 268, 271-272, 38 A.2d 321, 322-323 (1944) (Emphasis added):

We do not interpret the[ ] cases as holding that under insurance provisions such as [we have here] we are not interpreting continuous confinement “within doors” [a]s a sine qua non of the recovery of a claim under the policy. If such a literal interpretation of language is called for in these cases an insured who was “confined within doors” by an illness could not be carried “out doors” though the place of his “confinement” was on fire, without defeating his rights to recover benefits under the policy. Insurance policies, like statutes, must receive “a sensible construction”. See on the question of “construction” the opinion this day filed by us in McGregor v. Young Township, [350 Pa. 93] 38 A.2d 313.
Couch on Insurance, sec. 1678, p. 5791, says: “ * * * it may be stated, as a general rule, that the provisions of a life, health, or accident policy requiring the insured to be confined to the house in order to be entitled to recover disability benefits do not have to be literally complied with; in other words, the insured is not required to remain continuously within the four walls of his home under every and all circumstances. * * * Furthermore, the words, ‘continuously and necessarily confined in the house,’ mean merely a substantial confinement, not that one should be so closely confined as to be unable to sit, or to go out occasionally to get fresh air or sunshine, or for some other purpose not inconsistent with the reasonable requirements, needs, or betterment of a sick person, * *; rather, the words must receive a reasonable application in view of the necessities of the case and attendant circumstances. * * * Thus, total disability necessarily confining insured to the house does not require confinement continuously within the walls of a house, but refers to a condition of illness and disability, * * *. American Jurisprudence p. 883, sec. 1171, says: “While some courts have given a literal construction to a requirement that the insured be confined to the house, most courts have adopted the view that the provisions of a health or accident policy requiring the insured to be confined to the house do not have to be literally complied with in order to entitle the insured to indemnity. According to these courts, a person may be totally incapacitated and confined to his house within the meaning of a policy although he takes some exercise outdoors or visits his physician, provided he is entirely incapacitated for work or business on account of his injury or illness."

In short, without going into an extended discussion of the facts, the sum and substance of which appear throughout this Opinion, we hold in accordance with the tenets espoused in Albert that Bundy’s excursions outside the confines of his home do not cloud or negate the fact that “he is entirely incapacitated for work or business on account of his injury.”

We affirm all but that portion of the trial court’s actions relating to the amount of the award, and, accordingly, remand for a re-tabulation of the monies due and owing Bundy as more fully discussed herein. Jurisdiction is relinquished.

      . The pertinent portions of the insurance policy read:
      THE INSURING CLAUSE
      Part I
      This policy insures against loss, as herein limited and provided, from accidental bodily injury sustained while driving or riding within any automobile, truck or bus for business or pleasure during the term of this policy, provided such injuries are caused solely by reason of collision or upset of automobile, truck or bus and not excluded under Part V (exclusions and limitations).

        INDEMNITIES
      Part II
      MONTHLY ACCIDENT DISABILITY BENEFITS
      If "Such Injuries” as described in Part I and not hereinafter excepted in Part V (Exclusions and Limitations) shall immediately thereafter wholly and continuously disable the Insured and prevent the Insured from performing any and every duty pertaining to any business or occupation, and if as a result thereof the Insured is confined to his immediate premises and requires regular visits by a legally licensed medical or osteopathic physician or surgeon (at home or physicians office), the Company will pay the Insured for each day of such continued disability at the rate of the Monthly Accident Benefits for a period of sixty (60) months.

      . It requires mentioning, inasmuch as the trial court and the litigants below were unclear on the matter, that the testimony of the claimant alone would not have been sufficient to establish his total disability.
      Although a laywitness may testify as to certain matters involving health, and as to his obvious symptoms, his testimony must be confined to the facts within his knowledge, and may not be extended to matters involving the existence or non-existence of a disease, which is only discoverable through the training and experience of a medical expert. Woolford v. Equitable Life Assur. Soc. of United States, 149 Pa.Super. 225, 27 A.2d 411 (1942).
      We do not believe that the injury sustained by the appellee is so immediately and directly, or naturally and probably, the result of the accident that the connection between them dispenses with the need that a professional or expert witness testify to it. Compare Tabuteau v. London Guarantee & Accident Co., 351 Pa. 183, 40 A.2d 396 (1945). This was confirmed by Dr. Chaudhuri at his deposition, i.e., that headaches similar to those suffered by the claimant could have been the product of a tumor, and this would have shown up if the traction administered to the claimant had not reduced some of the pain.
      Since there is no professional testimony regarding the claimant’s condition between September 4, 1980 and March 18, 1981, we cannot rule that the evidence established the existence of a disability during such time. However, there is a preponderance of evidence to prove the presence of the disability from March 18, 1981 onward. Moskowitz v. Prudential Ins. Co. of America, 154 Pa.Super. 362, 35 A.2d 567 (1944). National’s position is consistent with this finding in that it does not dispute a nexus between the injury and the disability. Rather, National argues at page 12 of its brief that the evidence presented no more than a "partial” disability.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    503 A.2d 427
    Carl CIMINA and Elizabeth Cimina, His Wife, Appellants, v. Tony BRONICH. Tony BRONICH v. Carl CIMINA and Elizabeth Cimina, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1984.
    Filed Dec. 6, 1985.
    Reargument Denied Jan. 28, 1986.

      Richard DiSalle, Pittsburgh, for appellants.
    Donald J. McCue, Connellsville, for appellee.
    Before BROSKY, ROWLEY and JOHNSON, JJ.
   JOHNSON, Judge:

Carl and Elizabeth Cimina [hereinafter “the lessors”], appeal from the order of the trial court which: 1) dismissed the lessors’ action in ejectment against their tenant, Tony Bronich [hereinafter “the tenant”], and 2) granted the tenant’s prayer for specific performance of an option to purchase, contained in the lease. For the reasons set forth below, we affirm dismissal of the ejectment action, but reverse the granting of specific performance.

On September 15, 1970, a two-year lease agreement, with right of renewal for additional yearly terms, was entered into between the lessors and the tenant. The lease provided that the tenant was to pay the real estate taxes on the land leased to him. The relevant provision of the lease read:

7. During the term of this lease, Lessee will pay all real estate taxes levied and assessed against the subject premises, whether statements therefor are sent to Lessors or Lessee. If the real estate taxes on the leased premises are combined with real estate taxes on other property now owned by Lessors, then Lessee will pay only those taxes attributable to the leased premises and any improvements which may hereafter be erected thereon.

The lease also included an option to purchase, which could be exercised by the tenant at any time during either the original or the renewal terms.

For eleven years, from 1970 to June of 1981, the real estate taxes were paid by Elizabeth Cimina. Although she was a signatory to the lease, Mrs. Cimina testified that she was unaware of the tenant’s responsibility to pay his share of the taxes. The tenant, on the other hand, contended that he asked the lessors at least once a year if he owed anything for taxes, but that the lessors always said “no”. The trial court found that the tenant never refused to pay the taxes and stood ready to perform, but was never notified of his share of the taxes.

On June 18, 1981, Carl Cimina sent a letter to the tenant, which read in toto:

Request your payment of all monies due me through March 14, 1981.

On August 7, 1981, the tenant received from the lessors a Notice to Quit, ordering him to vacate the premises because of the allegedly breached provisions of the lease. On August 24, 1981, the tenant notified lessors, in writing, of his intention to exercise the option to purchase the property. The lessors then filed their confession of judgment in ejectment. The tenant filed a petition to open confessed judgment and, by a separate petition, sought specific performance of the option to purchase. These actions were consolidated for non-jury trial. The trial court ruled in the tenant’s favor on both actions.

I.

The lessors first argue that the trial court erred in finding that the tenant’s failure to pay real estate taxes was not a material breach of the lease as would warrant a forfeiture. We find no such error.

Equity does not favor forfeiture and courts greatly hesitate to enforce one, especially when the contract has been carried out or its literal fulfillment has been prevented by oversight or uncontrollable circumstances. Barraclough v. Atlantic Refining Company, 230 Pa.Super. 276, 326 A.2d 477 (1974). “When a party has honestly and faithfully performed all material elements of its obligation under a contract, but has failed to fulfill certain technical obligations, causing no serious detriment to the injured party, it would be odious and inequitable to compel forfeiture of the entire contract.” Id., 230 Pa.Superior Ct. at 282, 326 A.2d at 480.

The test for determining the materiality of a breach includes consideration of the following elements:

(a) the extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated; (b) the extent to which the injured party may be adequately compensated for damages for lack of complete performance; (c) the extent to which the party failing to perform has already partly performed or made preparation for performance; (d) the greater or less hardship on the party failing to perform in terminating the contract; (e) the wilful neglect or innocent behavior of the party failing to perform.

Jennings v. League of Civic Organizations of Erie County, 180 Pa.Super. 398, 403, 119 A.2d 608, 611 (1956) (citations omitted). When this test is applied to the instant case, it is apparent that the trial court was correct in its finding of a non-material breach. The lessors will have obtained the anticipated substantial benefit when the tenant reimburses them for the taxes; payment of the taxes will adequately compensate the lessors; also, as the trial court found, the tenant has in all other ways complied with the terms of the lease; it would be a great hardship for the tenant to be compelled to move his established business, mid-term, after eleven years in the same locale; lastly, the tenant’s breach was not willful. In consideration of all of the above, we affirm the trial court’s opening of the confessed judgment in ejectment on the grounds that the breach was not of such magnitude as to require a forfeiture. As the supreme court has observed,

From the strict legal standpoint the creditor is entitled to enforce the forfeiture according to the terms of the contract, but equity, or a court administering equitable principles under legal forms, will not permit him to do so if by lulling the debtor into a false sense of security he has led him into a default which otherwise the debtor might have avoided____ The relief is not against the obligation but against the forfeiture, on the ground of surprise____

Warren Tank Car Company v. Dodson, 330 Pa. 281, 286-87, 199 A. 139, 142 (1938) (emphasis in original). See also Bedillion v. W.A. Wilson Stave Company, Inc., 271 Pa.Super. 292, 413 A.2d 411 (1979).

II.

The lessors next argue that the trial court erred in specifically enforcing the option to purchase contained in the lease. The trial court gave two reasons in support of its decision. First, the court held that because the tenant’s breach did not warrant a forfeiture, there was no impediment to the tenant’s exercise of the purchase option. However, the court seemingly overlooked the fact that in the instant case the tenant did not attempt to exercise the option until after the lessors had taken steps to terminate the lease because of the tenant’s breach.

An option to purchase contained in a lease -is a continuing obligation of the lessor which, if no time for its exercise is otherwise prescribed, the lessee may accept at any time within the period of the tenancy. Cities Service Oil Company v. Haller, 393 Pa. 26, 142 A.2d 163 (1958); Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380 (1947). The within option clause states “that lessee shall have the option at any time during the original term of this lease or any renewal thereof to purchase the leased premises----” It is clear that the option was to exist only so long as the lease existed. In the instant case, the tenant was in default and the lessors had sent a notice to quit. The court sitting in equity, however, intervened and properly exercised its discretion, ruling against forfeiture in consideration of the particular facts of the case. Nevertheless, this does not mean that the court was required to specifically enforce the option to purchase.

Specific performance is an equitable remedy and, as such, is not available as a matter of course but only in unique situations. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). Thus, while the courts of equity have the power to grant specific performance, the exercise of the power is discretionary — a matter of grace, not of right. Payne v. Clark, 409 Pa. 557, 187 A.2d 769 (1963). Where hardship or injustice will result to either of the parties, specific performance will be withheld. Barr v. Deiter, 190 Pa.Super. 454, 154 A.2d 290 (1959). Specific performance should only be granted where (1) the facts clearly establish the plaintiffs right thereto, (2) no adequate remedy at law exists, and (3) the chancellor believes that justice requires it. Clark v. Pennsylvania State Police, 496 Pa. 310, 436 A.2d 1383 (1981).

Here we cannot find that the facts clearly establish the tenant’s right to secure specific performance, nor do we believe that justice requires the invocation of this equitable remedy on these facts. It was not until the tenant had been notified of his breach of the lease, and received the notice to quit, that he attempted to exercise the option to purchase the leasehold property. Although the complaint upon which the tenant seeks to secure specific performance alleges that the tenant has been in compliance with all terms of the lease at all times following execution of the lease, the trial judge found as a fact that the tenant had not paid any of the taxes as per the lease agreement.

We are thus faced with a situation where a breach has clearly occurred, which is not sufficiently weighty to effectuate a forfeiture. Does it follow, therefore, that specific performance must flow on behalf of the breaching party? We think not. Even though the failure to pay the taxes might be said to be insufficient to mandate a forfeiture, the tenant still must demonstrate a clear right to specific performance before this separate, distinct remedy may be invoked by a court.

Based upon the trial court’s findings that the tenant had not complied with all the terms of the agreement, we must conclude that the averments set forth in the complaint were not proved, and the facts as found by the trial judge would not establish the tenant’s right to specific performance.

The trial court, however, stated as an alternate rationale that, even if the tenant’s breach could be said to be material, the option could still be exercised because an option to purchase has been characterized as an independent clause by our courts. See, e.g., Cerbo v. Carabello, 376 Pa. 571, 103 A.2d 908 (1954); Pettit v. Tourison, 283 Pa. 529, 129 A. 587 (1925); Signor v. Keystone Consistory, A.A.S.R., 277 Pa. 504, 121 A. 320 (1923). While our courts have termed an option to purchase as an “independent clause,” an examination of the cases in context shows that the court was holding only that option clauses are not automatically extended by further renewal terms of the lease, unless explicitly provided. In the present case, even though the lease contained an express provision allowing for exercise of the option during the renewal term, the right to secure specific performance of the option existed only so long as the tenant performed all of his obligations under the lease. As we stated before, we do not find the facts of the instant case to be such as would clearly establish the lessee’s right to specific performance.

III.

The lessors make two other arguments, both of which challenge the findings of fact of the trial court. The lessors contend that the court erred in finding that the tenant did not breach the lease by violating the zoning ordinances and by not keeping the property in good repair. A chancellor’s findings of fact, when approved by the court en banc, have the force and effect of a jury verdict and will not be disturbed on appeal if supported by adequate evidence. Bedillion v. W.A. Wilson Stave Co., Inc., supra. We find no reason to overturn the trial court’s findings of fact that the tenant was in compliance with all of the other terms of the lease.

Accordingly, we affirm the trial court’s dismissal of the lessors’ action in ejectment. We reverse as to the trial court’s granting of the tenant’s action for specific performance.


author: CERCONE, Judge:

text:
    503 A.2d 431
    COMMONWEALTH of Pennsylvania v. Robert COFONI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Jan. 10, 1986.

      Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norristown, for Com., appellee.
    Before McEWEN, CERCONE and TROMMER , JJ.

       Honorable Evelyn M. Trommer of the Court of Common Pleas of Philadelphia County, Pennsylvania is sitting by designation.

   CERCONE, Judge:

This is a direct appeal from judgment of sentence which was entered following appellant’s open plea of guilty on February 14, 1984, to Robbery, Recklessly Endangering Another Person, Terroristic Threats, Possessing an Instrument of Crime and related charges. These charges arose from an incident on October 14, 1983, in which appellant placed a .22 caliber starter pistol against the back of a gas station attendant with the warning that unless the attendant gave appellant all the money, appellant would shoot. The attendant complied and appellant and two accomplices fled with $300.00.

On February 15, 1984, the Commonwealth gave written notice to appellant that it intended to proceed at sentencing under 42 Pa.C.S.A. § 9712, which provides for a mandatory minimum five (5) year prison sentence for certain crimes, including robbery, committed with a firearm. Counsel for appellant then filed a Motion to Declare § 9712 unconstitutional.

At the sentencing hearing, testimony was taken and argument was presented on the applicability and constitutionality of the challenged section. This appeal represents appellant’s challenge to the trial court’s finding by a preponderance of the evidence that the mandatory sentencing provisions of § 9712 were constitutional and the court’s sentence of appellant thereby to a term of imprisonment of from five to ten years. We affirm.

Appellant challenges the constitutionality of § 9712 in four respects. We will consider them seriatim. Because the Commonwealth is not required by the Act to provide an accused with pre-trial notice of its intent to proceed under § 9712, appellant asserts that the statute lacking this requirement is unconstitutional. In this argument and in others which he poses, appellant elevates the visible possession of a firearm aspect to an element of a crime, necessitating notice before trial. It is true that any element of a crime must be specifically charged in the indictment or information. Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339 (1970). In fact, appellant does not question the allegations in the charges relating to the fact that he possessed a firearm as to robbery, recklessly endangering another person and possessing an instrument of crime. He merely asserts that his due process rights are violated for lack of notice, pre-trial, as to the Commonwealth’s intent to proceed at sentencing under § 9712, arguing therefore that possession of a firearm was an element of the crime to be proved beyond a reasonable doubt.

In Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), cert. granted, McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985) the Supreme Court disposed of this issue by finding that § 9712 applies only in the event the defendant is convicted of one of the offenses enumerated in the Act. The Court specifically refused to find that visible possession of a firearm is an element of a crime. Moreover, it concluded that § 9712 does not alter the degree of guilt as to the crimes to which it may be applied. Thus, the pre-trial notice mandated by crimes and their elements for which a defendant faces prosecution does not require notice that § 9712 will be applicable to a defendant at sentencing. Thus, appellant’s first argument must be rejected.

Commonwealth v. Wright, supra, also addresses appellant’s contentions that the Act is a violation of his due process rights in that it permits a lower standard of proof, a preponderance of the evidence rather than the beyond a reasonable doubt standard, for imposition of the mandatory minimum sentence. Appellant’s third contention as to his rights to a jury’s determination in this regard is addressed in this argument also. In deciding that the preponderance of the evidence standard was constitutional, the Supreme Court weighed the defendant’s liberty interest against the Commonwealth’s interest in imposing a mandatory sentence. The Court concluded that it is reasonable for a defendant and the Commonwealth to share equally in any risk of error which may be present in the fact-finding process.

In the context of a section 9712 proceeding, moreover, the risk of error is slight. Visible possession of a firearm is a simple, straightforward issue susceptible of objective proof. There is scant potential that suspicion and conjecture will enter into the factfinder’s decision. In addition, evidence of visible possession is amenable to meaningful appellate review. Thus, we are convinced that the preponderance standard satisfies the minimum requirements of due process as employed'in the legislature's mandatory sentencing scheme.
Wright, supra, 508 Pa. at 41, 494 A.2d at 362.

Appellant’s second and third contentions are, therefore, meritless.

Finally, appellant argues that the Act confers “complete unbridled power upon the prosecutor to decide which case after conviction are (sic) to be subject to the possible imposition of a mandatory sentence of imprisonment.” On this point appellant asserts violations of the constitutional doctrines of separation of powers between the executive and judicial branches of government and due process of law. He characterizes the role assigned by the Act to the prosecutor as an intrusion of the powers of the judiciary. The relevant section of 42 Pa.C.S.A. § 9712 provides:

(b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable, (emphasis added)

However, the Act states in section (a), Mandatory sentence, supra at n. 1, that any person found guilty of certain enumerated crimes while visibly possessing a firearm “shall” be sentenced to a minimum sentence of at least five years confinement. And the use of the word “shall” in a statute has been generally regarded as imperative. See Statutory Construction Act, 1 Pa.C.S.A. § 1903; Matter of Columbia Borough, 24 Pa. Commonwealth Ct. 190, 354 A.2d 277 (1976).

A reading of this mandatory language, then, in subsection (a) of § 9712 combined with the requirement that a defendant receive notice of its applicability after conviction but prior to sentencing, leads us to conclude that the prosecutor does not possess the “unbridled” discretion argued by appellant. Rather than conferring an option on the Commonwealth to apply or not to apply the Act, the notice under the statute “shall” be provided and clearly assures an additional safeguard to the defendant. It affords a defendant the opportunity to marshall whatever evidence he or she has as to whether he or she visibly possessed a firearm in the commission of the crime for which sentencing is pending.

Thus, as we read the statute, the prosecutor has no discretion to apply or not to apply § 9712 in a proper case. Where some quantum of evidence exists that an enumerated crime was committed by a defendant who visibly possessed a firearm, the district attorney must invoke § 9712 pursuant to the required notice to the convicted defendant. It is then for the sentencing court to decide whether the evidence introduced at the sentencing hearing rises to the preponderance standard. See Commonwealth v. Anderson, 345 Pa. Superior Ct. 407, 498 A.2d 887 (1985); Commonwealth v. Wildermuth, 347 Pa. Superior Ct. 640, 501 A.2d 258 (1985); Commonwealth v. Walker, 348 Pa. Superior Ct. 207, 501 A.2d 1143 (1985).

As for appellant’s claim that the doctrine of separation of powers is violated by this limitation on the court’s discretion in sentencing a defendant, we note that such discretion is not an innate power of the judiciary. It derives entirely from statute. Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959). And, as this court explained regarding a similar challenge to the mandatory life sentence for first degree murder,

“... our legislature has seen fit to impose a mandatory life sentence, choosing to deny the judiciary the discretion allowed in sentencing many other types of offenders.” Commonwealth v. Waters, 334 Pa. Superior Ct. 513, 526, 483 A.2d 855, 861 (1984).

Thus, the doctrine of separation of powers is not violated.

Additionally, in Commonwealth v. Cooke, 342 Pa. Superior Ct. 58, 492 A.2d 63 (1985), this court specifically found that the mandatory sentencing provision in § 9712 does not violate due process of law.

The weapon used in the commission of the instant robbery was a .22 starter pistol. § 9712(e) sets forth the definition of firearm as

“any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.”

Appellant contends that the evidence submitted by both the Commonwealth and defense expert at the sentencing hearing failed to prove by a preponderance that the pistol in question could “readily be converted” to expel a projectile. He asserts this with emphasis on the word “readily” and suggests that because the Commonwealth’s expert testified that conversion could only be accomplished by proper drilling, the starter gun in question could not be. “readily” converted. This argument is specious. The trial court in its opinion quoted the report of the defense expert that it would take a skilled machinist with proper tools only fifteen minutes to accomplish a conversion to a firearm with projectile capability; it would take an unskilled person with basic tools and limited knowledge approximately one hour to accomplish the task. This information, supplied by appellant’s own expert, fully supports the trial court’s finding that the instant starter pistol qualified as a firearm under the definition supplied by § 9712.

Therefore, for the above reasons, judgment of sentence affirmed.

      . 42 Pa.C.S.A. § 9712 provides in relevant part:
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii), or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
      (b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
      (c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
      (d) Appeal by Commonwealth. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

      . In Commonwealth v. Wright, supra, 508 Pa. at 40, n. 4, 494 A.2d at 361, n. 4 the Supreme Court referred to the prosecution as having a "measure of discretion” under § 9712 and that such was a proper exercise of legislative judgment. This comment was not a holding in the case, and is not at odds with our finding today. Under the language of the Act, we merely refuse to accord the prosecutor any discretion where facts warrant application of the mandatory sentence.


author: TAMILIA, Judge:

text:
    503 A.2d 435
    COMMONWEALTH of Pennsylvania v. James F. WOLFE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Jan. 17, 1986.

      John R. Merrick, Public Defender, John J. Stanzione, Assistant Public Defender, West Chester, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before Mc EWEN, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

This appeal lies from judgment of sentence entered pursuant to appellant’s pleas of guilty on November 28, 1984, to four counts each of burglary and criminal conspiracy contained in four separate informations. The charges stemmed from burglaries committed over a two-week period. In imposing the sentence (an aggregate of four to eight years) the court expressly cumulated offenses committed earlier in time to apply them as prior convictions for enhancing the sentences imposed on the later incidents. This geometric escalation of punishment forms the basis for the instant appeal as it is claimed to be an improper application of the sentencing guidelines. Appellant also characterizes the sentence as excessive in light of his individual circumstances.

We believe the resolution of the difficulty to lie in statutory interpretation. Despite appellee’s pronouncement that the Statutory Construction Act, 1 Pa.C.S.A. § 1928(b)(1), is inapplicable because the governing section of the sentencing code is “clear and unambiguous”, we are not reassured. The provision does not exist in a vacuum; it was written and must be read in conjunction, that is, in pari materia, with the rest of the statute so as to give effect to all provisions, 1 Pa.C.S.A. § 1922, and in addition must be interpreted in light of existing Pennsylvania law. The root of the confusion is 204 Pa.Code § 303.7(g).

(g) Prior conviction. A prior conviction is defined as a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal taken on the offense.

The trial court has obviously construed the notion of priority to encompass immediacy as well. However, we find this construction inimical both to principles of substantial justice, and the manifest intent of the legislature in fashioning penalties specific to recidivists.

When a criminal statute is susceptible of two constructions, both reasonable, it is not the construction that is supported by the greater reason that is to prevail but the one that operates in favor of the defendant’s liberty, and if there is doubt, the defendant must be given the benefit of the doubt.

Commonwealth v. Smith, 333 Pa.Super. 155, 161, 481 A.2d 1352, 1355 (1984) (citations omitted). This principle is in turn consistent with the theory underlying habitual criminal legislation, viz. that:

It was not intended that the heavier penalty prescribed for the commission of a second offence should descend upon anyone, except the incorrigible one, who after being reproved, ‘still hardeneth his neck.’ If the heavier penalty prescribed for the second violation----is visited upon the one who has not had the benefit of the reproof of a first conviction, then the purpose of the statute is lost.

Commonwealth v. Sutton, 125 Pa.Super. 407, 189 A. 556 (1937) (citations omitted). The point then of enhancement provisions is to punish those more severely who have persevered in criminal activity despite the (theoretically) salutary effects of penal discipline. Under these circumstances the question of priority becomes one of temporal relations: whether the conviction for the enhancing act must antedate the act resulting in the principle conviction, or the enhancing act without more, precede the act resulting in the principle conviction.

The former interpretation is supported not only by Pennsylvania case law, Commonwealth ex rel. Turpack v. Ashe, 339 Pa. 403, 15 A.2d 359 (1940); Commonwealth v. McDermott, 224 Pa. 363, 73 A 427 (1909); Rauch v. Commonwealth, 78 Pa. 490 (1875); Commonwealth v. Lane, 236 Pa.Super. 462, 345 A.2d 233 (1975); Commonwealth v. Calio, supra.; Commonwealth ex rel. Flory v. Ashe, 132 Pa.Super. 405, 1 A.2d 685 (1938); Commonwealth v. Sutton, 125 Pa.Super. 407, 189 A. 556 (1937), Commonwealth v. Neill, 16 Pa.Super. 210 (1901), but is the majority rule nationally, Annot., 24 A.L.R.2d 1247, even where, as here, the statute is unclear as to the application of “priority”.

Legislation authorizing the imposition of increased punishment on recidivists is directed at those who persist in criminality after having once been convicted of an offense. It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.

39 Am.Jur.2d Habitual Criminals § 6.

Guidance on this point may be drawn from 42 Pa.C.S.A. § 9714(b) which designates a five-year enhancement for recidivist perpetrators of certain enumerated violent crimes. Unless this section is read to provide not only a conviction of one or more of the enumerated offenses but also commission of the principle offense, it makes no sense, and when aligned with § 303.7(g) must require that conviction for the enhancing offense antedate commission of the principal offense to escape the imputation of a sophistic intent to both. Section 303.6, which appellant utilizes as a counterpoint, refers only to computations internal to each conviction, not cumulative application of separate convictions to each other. Otherwise the consequences are ludicrous since not only charging, but sentencing would in effect be delegated to the district attorney’s office which may, by the simple expedient of charging incidents separately which allow of any argument supporting discretion, assure longer penalties than the law might otherwise allow.

We do not now nor will we ever deny the propriety of consideration by the court of other offenses in determining sentence. “Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized [in sentencing].” Commonwealth v. Laskaris, 341 Pa.Super. 338, 340, 491 A.2d 845, 847 (1985) (citations omitted). In point of fact, this consideration was given by the court to appellant’s two federal convictions, which qualify under our definition for inclusion in a prior record score, and to one Montgomery County -offense which did not so qualify, as no sentence had yet been pronounced. The federal offenses were not factored with regard to appellant’s prior record score because of the difficulty of translating them into offenses described by the Pennsylvania Crimes Code. They were, therefore, in the trial court’s perception, unavailable for utilization as sentence enhancers; we now declare the convictions herein challenged to be similarly inapplicable for that purpose.

We, therefore, hold that prior convictions must precede commission of the principal offense to be included in prior record score calculations.

In appellant’s case, we find only the logic behind the sentence and not the totality of the sentence itself unacceptable. Had the court chosen to sentence consecutively at the top of the minimum range for each offense, that is 12 to 24 months, the aggregate would have been the same, and well within the allowable statutory maximum of 20 years imprisonment for a felony of the first degree. 18 Pa.C.S.A. § 1103(1).

We, therefore, vacate judgment of sentence and remand to the lower court for resentencing in accordance with this Opinion.

      . The burglaries in question were committed variously on November 12, 18, 26, 29, 1982, and the sentences imposed therefor were 6-12 months, 10-20 months, 14-28 months, and 18-36 months, for a total of 48-96 months or 4-8 years.

      . 1 Pa.C.S.A. § 1928(b)(1)
      (b) All provisions of a statute of the classes hereafter enumerated shall be strictly construed:
      (1) Penal provisions.

      . Alabama, Code 1975 § 13A-5-9

        Alaska, AS 12.55.185 State v. Rastopsoff, 659 P.2d 630 (1983)
      Arizona, ARS § 13-604(A)
      Colorado, CRS 1973 16-13-101-(1)
      Connecticut, CGSA § 53a-40
      District of Columbia, DCCE § 22-104(a)(2)
      Florida, WEST’S FSA § 775.084
      Georgia, Code 17.10.7
      Illinois, SHA ch. 38 § 1005-5-3(c)(8)
      Indiana, IC 35-50-2-8 (1985 Supp.)
      Iowa, ICA § 902.8 State v. Hollins, 310 N.W.2d 216 (1981)
      Kentucky, KRS 532.080
      Louisiana, LSA-RS 15:529.1
      Maryland, Code 1957 Art. 27 § 643B(c)
      Michigan, MCLA § 750.227b, People v. Sawyer, 410 Mich. 531, 302 N.W.2d 534 (1981)
      Minnesota, MSA § 609.11 sub. 1, .155 sub. 2, .225 sub. 2
      Missouri, VAMS § 558.016 State v. Medley, 588 S.W.2d 55 (1979); State v. Ryder, 598 S.W.2d 526 (1980)
      Montana, MCA 46-18-501
      Nevada, NRS 207.010 Brown v. State, 97 Nev. 101, 624 P.2d 1005 (1981).
      New Jersey, 2C:44:4 State v. Rowe, 140 N.J.Super. 5, 354 A.2d 701 (1976) att'd 81 N.J. 296, 406 A.2d 169
      New Mexico, NMSA 31-18-17 State v. Rogers, 93 N.M. 519, 602 P.2d 616 (1979); State v. Linham, 93 N.M. 307, 600 P.2d 253 cert. denied 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979)
      New York, PENAL LAW 70.06l.(b)ii
      North Carolina, GS § 14-7.1
      Ohio, RC 2929.01(A)(1), (4)
      Oklahoma, 21 OS § 51(A)
      Oregon, ORS § 161.725(4)(b)
      South Carolina, Code § 17-25-45(l)(C)
      Texas, VTCA Penal Code § 12.34, .42(a) Seals v. State, 634 S.W.2d 899 (1982)
      Washington, RCWA 9.92.090 State v. Rinier, 93 Wash.2d 309, 609 P.2d 1358 (1980)
      West Virginia, Code 62-12-18 Wanstreet v. Bordenkircher, 276 S.E.2d 205 (1981)
      Wisconsin, WSA 939.62(2)

        See abo ABA Standards for Criminal Justice, Sentencing and Corrections, § 3-105; 18 U.S.C.A. § 3575(e)(1).

      . § 9714. Sentences for second and subsequent offenses
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, arson as defined in 18 Pa.C.S. § 3301 9a (relating to arson and related offenses), kidnapping or robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), or attempt to commit any of these crimes, or who is convicted of aggravated assault in which the offender intentionally, knowingly or recklessly causes serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life, shall, if they have previously been convicted of a crime of violence as specified in subsection (b), be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
      (b) Prior convictions for crimes of violence. — For the purposes of subsection (a), an offender shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold:
      (1) The offender was previously convicted in this Commonwealth or any other state of the District of Columbia or in any Federal court of murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii), arson as defined in 18 Pa.C.S. § 3301(a), kidnapping or aggravated assault in which the offender intentionally, knowingly or recklessly causes serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life, an equivalent crime under the laws of the Commonwealth in effect prior to the effective date of Title 18 (relating to crimes and offenses) or an equivalent crime in another jurisdiction. The previous conviction need not be for the same crime as the instant offense for this section to be applicable.
      (2) The previous conviction occurred within seven years of the date of the commbsion of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison or other place of detention shall not be considered in computing the relevant seven-year period. Convictions for other offenses arising from the same criminal episode as the instant offense shall not be considered previous convictions for the purpose of this section. A previous conviction shall include any conviction, whether or not litigation is pending concerning that conviction, (emphasis added)

      . 204 Pa.Code § 303.6 Consecutive sentences.
      (b) When imposing consecutive sentences for convictions arising out of separate transaction, the prior record score shall be computed independently for each conviction.


text:
    503 A.2d 439
    Ronald E. TAYLOR v. Cora L. Young TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed Jan. 17, 1986.

      Stephen H. Silverman, Jenkintown, for appellant.
    Edward F. Kane, Norristown, for appellee.
    Before CAVANAUGH, McEWEN and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County, issued February 21, 1985, which granted appellee’s Petition for Bifurcation and which decreed the parties to be divorced.

Appellant first argues that the trial court did not have jurisdiction to hear the issues in this case because of her pending bankruptcy proceedings. She argues that the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a)(1), precludes a state court from ruling on a divorce petition against a debtor unless the non-debtor spouse has petitioned the bankruptcy court for, and received, relief from the automatic stay provision pursuant to 11 U.S.C. § 362(d). This issue appears to be one of first impression in this court. Therefore, we will look to general principles of law and to decisions of the federal bankruptcy court.

From an historical point of view, the consummation and dissolution of marriages has always been treated as a matter which is quite properly reserved to the states. See Barber v. Barber, 21 How. 582, 62 U.S. 582, 16 L.Ed. 226 (1859). This issue was clearly dealt with in In re Cunningham, 9 B.R. 70 (1981), wherein the bankruptcy court dismissed a petition requesting relief from the automatic stay provision and, thus, allowing the parties to continue with divorce proceedings. The court held that a federal bankruptcy court does not have subject matter jurisdiction over the divorce petition itself and, therefore, the request for relief was not pertinent. The Cunningham court noted, however, that, “The denial of jurisdiction over the divorce petition itself is not to deny jurisdiction over the property of the divorce proceeding when one of the parties is a debtor in bankruptcy, In re Benavidez, No. 80-166J (D.N.M., June 3, 1980).” 9 B.R. at 71. See also Schulze v. Schulze, 15 B.R. 106 (1980). The bankruptcy court is in a much better position to interpret the meaning of the bankruptcy code than is this court. We find its determination as to its lack of subject matter jurisdiction in the divorce proceedings, within the historical view, persuasive. Accordingly, we find that the trial court did not err in exercising its jurisdiction over the divorce proceeding below.

Appellant next argues that the lower court abused its discretion in granting appellee’s petition to bifurcate the divorce proceeding from the resolution of economic matters. This court’s opinion in Wolk v. Wolk, 318 Pa.Superior Ct. 311, 464 A.2d 1359 (1983), is the seminal case which sets the parameters on the trial court’s discretion when deciding a bifurcation issue. Therein we stated:

[I] t is obvious that the decision to bifurcate, though permissible, should not be made pro forma ... Rather, such a determination should be .made only after the disadvantages and advantages have been carefully explored and analyzed. Each case must be reviewed on its own facts and only following the court’s determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition.

Id., 318 Pa.Superior Ct. at 318, 464 A.2d at 1362. The Wolk court further set forth the standard for appellate review.

Since the decision to bifurcate is discretionary, we will review lower court decisions pertaining to bifurcation by using an abuse of discretion standard. So long as the trial judge assembles adequate information, and then explains his [or her] decision regarding bifurcation, we defer to his discretion. In other words, this determination should be the result of a reflective examination of the individual facts of each case.

Id.

The parties to this case have been separated since 1980 and have two children living with appellant. Appellee filed the divorce action in November, 1983. At the hearing on the bifurcation petition, appellee asserted his reason for seeking bifurcation, and a prompt divorce decree, was that he wished to remarry. At the hearing, both parties appeared to agree that, if bifurcation was not allowed, a final order could not be entered for at least three more years— the scheduled pendency of the bankruptcy proceeding. Appellant opposed the petition because, due to medical problems, she relies on appellee’s medical insurance, which she alleges will terminate upon their divorce. She also opposes the petition because she will lose support payments upon divorce and yet not have the property settlement to rely upon. Finally, appellant alleges that a non-bifurcated proceeding will provide greater stability for her children and that there are potential problems should appellee die prior to final disposition of the economic matters.

While we may be sympathetic to appellant’s plight, the disadvantages that she has alleged are not so overwhelming or of such magnitude that we are compelled to reverse the discretionary decision of the trial court. Appellant has an enforceable support order in place. If appellee is not making the required payments, as alleged, appellant has a remedy which is unrelated to the bifurcation issue. If a significant change in circumstances occurs, such as the loss of medical benefits, appellant can petition for a modified support order. See 23 P.S. § 501(e).

The entry of a divorce decree does not alter the right of a former spouse to alimony pendente lite or counsel fees, see Pastuszek v. Pastuszek, 346 Pa.Superior Ct. 416, 499 A.2d 1069 (1985), or to a support or alimony award. McNulty v. McNulty, 347 Pa.Superior Ct. 363, 500 A.2d 876 (1985). However entitlement to support, alimony pendente lite, counsel fees and costs would cease upon appellee’s death, Pastuszek, supra, whether or not the parties were divorced. Appellant argues that if appellee should die before the final disposition of the case, but while they were still married, she somehow would be in a better position. She never explains how she would be advantaged, other than the fact that the marital property would be held by the parties as tenants by the entireties rather than tenants in common and the fact that appellee’s future spouse might claim an interest in appellee’s share of the estate.

These factors cannot be outside the scope of probabilities considered by the Legislature as reasonable incidents of bifurcation. Therefore, appellant’s mere assertion of such potentialities, without providing evidence of specific disadvantages to herself, is not enough. We further note that appellant’s interest in the marital property would not be altered by appellee’s untimely death. In Pastuszek, supra, this court specifically held that pending ancillary matters, following a divorce decree, survive the death of one of the parties. Therein we stated:

Once the [divorce] decree has been entered, the right of the spouse to the distribution of marital property and other economic claims where these matters have been properly put in issue before the death of the spouse, is vested. We do not perceive any conflict between this rule and the provisions of any statute dealing with the estates of decedents. By virtue of equitable distribution of marital property and the disposition of other economic claims, some property may become an asset of the decedent’s estate and shall be treated by the personal representative as any other estate asset.

Pastuszek v. Pastuszek, supra, 346 Pa.Superior Ct. 426, 499 A.2d at 1074 (footnote omitted).

Finally, we note appellant’s claim that the lower court abused its discretion by not allowing evidence of the special needs of the children for residential stability. The trial court correctly stated that instability is an incident of every divorce and will be considered at the equitable distribution proceedings. If, as we find, the economic interests of appellant are not unduly jeopardized by the bifurcated proceeding, we will not find that the lower court erred in disallowing evidence of the children’s special needs for residential stability. We affirm the trial court’s conclusion that bifurcation is advantageous in that it will accelerate the dissolution of an irretrievably broken marriage, and, thus, not hold appellee’s personal life hostage to economic disputes. This consideration is especially significant here where the parties must wait at least three years before finally settling their economic disputes due to the pending bankruptcy proceeding. Appellant has failed to adequately show how her economic interests would be disadvantaged by this procedure. Accordingly, the order of the court below is hereby affirmed.

      . The grant of a bifurcated proceeding separates the divorce decree from the resolution of ancillary matters, most notably the equitable distribution of marital property. The Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 101 et seq., permits such bifurcation as provided in section 401(b) of the Code, 23 P.S. § 401(b):
      ... In the event that the court is unable for any reason to determine and dispose of matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment ...
      Further, Rule 1920.52, Pa.R.Civ.P., dealing with the procedure in divorce cases, permits the entry of separate decrees involving marital property, divorce, and alimony pendente lite.

      . Appellant had filed a voluntary petition for bankruptcy under Chapter 13 of the United States Bankruptcy Code, prior to the time appellee had filed the underlying divorce complaint.

      . 11 U.S.C. § 362(a)(1) provides, in pertinent part:
      (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
      (1) the Commonwealth or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title ...

      . While appellant contends that she needs economic protection for the next three years, we note that she does have the option to petition the bankruptcy court for relief from the stay so as to proceed to a resolution of the economic issues. Relief was granted for such purpose in Schulze v. Schulze, supra. Appellant cannot use the stay provision as both a sword and a shield.

      . McNulty v. McNulty, supra, 347 Pa.Superior Ct. at 371, 500 A.2d at 880:
      "Alimony" ... is a duty arising out of marriage but is distinguished in that it continues after divorce when fixed in conjunction with a divorce or annulment decree. Its purpose is not to reward one party and to punish the other, but rather to ensure that reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met. Semasek v. Semasek, 331 Pa.Superior Ct. 1, 479 A.2d 1047 (1984).

      . We note here that any future spouse of appellee would be stayed from asserting any interest in the subject matter of the bankruptcy proceeding, just as the parties herein are stayed from proceeding to the equitable distribution of the marital property.


author: WICKERSHAM, Judge:

text:
    503 A.2d 443
    COMMONWEALTH of Pennsylvania v. Eugene BECKHAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 6, 1985.
    Filed Jan. 21, 1986.

      Richard E. Johnson, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, TAMILIA and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Eugene Beckham, a.k.a. Eugene Beckman, appeals from the judgment of sentence for third degree murder and possession of an instrument of crime imposed by the court below.

The procedural history of this case is as follows: Appellant Beckham was found guilty of the above crimes in a jury trial before the Honorable Theodore B. Smith, Jr. Appellant’s counsel filed post-trial motions in arrest of judgment and/or a new trial which were argued December 2, 1981. On February 3, 1982 the lower court granted a new trial. On appeal by the Commonwealth, the Superior Court reversed the grant of a new trial and remanded the case for sentencing. Commonwealth v. Frazier, 331 Pa.Super. 128, 480 A.2d 276 (1984). On September 28, 1984, Judge Smith denied any remaining post-verdict motions and sentenced appellant to a term of eight and one-half (8V2) to seventeen (17) years imprisonment for the third degree murder conviction and a concurrent term of two-and-one-half (2%) to five (5) years imprisonment for the possession of an instrument of crime conviction.

Appellant present two issues for appellate review:

I. Whether the trial court erred when it allowed the Commonwealth to introduce evidence of an [unrelated] shooting incident into the appellant’s present trial to establish his culpability for the crime charged.
II. Whether the verdict, of conviction was contrary to the weight of the evidence.

Brief for Appellant at 4.

The only written post-trial motions of record are appellant’s motions for new trial and/or in arrest of judgment filed April 10, 1981, in which he moved for relief on the following grounds:

1. The verdict is contrary to the evidence.
2. The verdict is contrary to the weight of the evidence.
3. The verdict is contrary to the law.

Appellant’s Motion for New Trial and In Arrest of Judgment.

Since appellant did not specifically raise the issue of the admissibility of the previous shooting incident in post-trial motions, a threshold question which must be addressed is whether appellant’s first issue is preserved for review in this court. After the decision in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), effective September 4, 1979, it should be clear that only issues specifically raised in post-verdict motions are preserved for our review. Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983). “[I]t is no longer merely a warning, but the law, that all issues not specifically raised in post-verdict motions are waived on appeal.” Id., 316 Pa.Superior Ct. at 386, 463 A.2d at 14. See Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980); Commonwealth v. Gravely, supra; Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

We therefore hold that appellant has not preserved for review his first issue concerning the admissibility of the previous shooting incident since he failed to raise this issue in his post-verdict motions.

Appellant’s second issue concerning the weight of the evidence however may not be similarly dismissed. While appellant’s boiler plate post-verdict motions, reproduced supra, allege only the most general grounds for new trial, including that the weight of the evidence was contrary to the verdict, we find these motions receive the benefit of the grace period enunciated in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983).

After appellant’s post-verdict motions were filed, but well before the filing of appellate briefs in this case, the Superi- or Court en banc in Holmes comprehensively reviewed the state of the law regarding boiler plate motions. As discussed in Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984), the court in Holmes determined that “thenceforth general allegations that ‘the evidence was insufficient’ or the verdict [was] against the weight of the evidence would be held inadequate to preserve any issues for appellate review.” Id., 336 Pa.Superior Ct. at 126, 485 A.2d at 462. The Holmes court, however, expressly stated that this rule should have prospective application only in order to assure full notice to the bar. See id. The court further decreed a sixty-day grace period before the expiration of which boiler plate sufficiency or weight claims could still be made in post-verdict motions. Id.

Finding appellant’s weight claim thus preserved for appellate review, we now reach the merits of his argument. The applicable standard of review for such issues has been articulated by this court in Commonwealth v. Whiteman, id., 336 Pa.Superior Ct. at 125, 485 A.2d at 462, as follows:

Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Applying this standard in the instant case, we do not find that the decision of the trial judge should be reversed. Appellant asserts that the testimony of Commonwealth witnesses Clara Sims and Katrina Branch was “so fraught with errors, half-truths and misstatements to be practically worthless”. Brief for Appellant at 9.

Credibility is a factual issue and is most appropriately resolved in the first instance by the trier of fact and reviewed on post-trial motions by the trial court, which has also observed the witnesses as they testified. Assessment of a witness’s credibility is not an appropriate function of appellate review. Commonwealth v. Cristina, 481 Pa. 44, 391 A.2d 1307 (1978).

Nonetheless, courts in this jurisdiction have recognized that where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (considering sufficiency of evidence claim). See Commonwealth v. Cristina, supra (sufficiency of evidence claim); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976) (weight of evidence claim); Commonwealth v. Whiteman, supra (sufficiency of evidence claim); Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973) (sufficiency of evidence claim). Yet only in those limited circumstances where a verdict based on the evidence is unreasonable does this principle apply.

Here, appellant sets forth inconsistencies within witness Branch’s testimony regarding her particular location when she observed the crime, in support of his contention that the verdict was contrary to the weight of the evidence. It is significant, however, that Branch’s specific vantage point did not relate to any crucial fact and her testimony was otherwise consistent in its essentials.

Appellant also cites contradictions between witness Sims’ various statements to the police and her testimony at trial. Appellant’s “reliance on contradictions between [Sims’] out-of-court statements and [her] in-court testimony is misplaced, for such discrepancies concern credibility and do not render impossible rational consideration of the evidence presented.” Commonwealth v. Goldblum, supra 498 Pa. at 467, 447 A.2d at 240. “A new trial may be appropriate where the testimony at trial is hopelessly contradictory, but in this case testimony at trial was consistent.” Id. (emphasis in original)

Finding the verdict of the jury not “so contrary to the evidence as to make the award of a new trial imperative”, Whiteman, supra, we affirm the judgment of sentence.

      . Counsel for appellant's co-defendant below, Larris Frazier filed a separate post-trial motion on April 15, 1981, which also requested a new trial. Additionally, Frazier’s counsel filed a memorandum in support of post-trial motions on December 2, 1981 and supplemental post-trial motions on December 4, 1981.

      . The docket entries from the trial court reflect only appellant’s motions filed on April 10, 1981. No supplemental motions appear in the record transmitted to this court, nor do the trial court docket entries suggest that such motions were ever filed. Since our record consists solely of ”[t]he original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court ...”, Pa.R.A.P. 1921 (emphasis added), we may consider on appeal only appellant’s original post-trial motions denied by Judge Smith on September 28, 1984.

      . Assuming arguendo that this issue were to deserve further discussion, we find that the disputed evidence was admissible to establish Beckham’s identity. See Commonwealth v. Bastone, 262 Pa.Super. 590, 594-95, 396 A.2d 1327, 1329 (1979). Evidence of the ballistics match of bullets found in the bodies of Sears (the victim of the previous shooting incident) and Armour (the victim in the instant case) showed that the same gun was used in both shootings. We are unpersuaded by appellant’s attempts to distinguish Commonwealth v. Evans, 488 Pa. 38, 410 A.2d 1213 (1979) and Commonwealth v. Nolen, 330 Pa.Super. 366, 479 A.2d 595 (1984) from the case at bar.

      . Accord Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1 (1985); Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984); Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799 (1983).


author: WATKINS, Judge:

text:
    503 A.2d 446
    Charles E. BROOKS v. Charles McMENAMIN and Audrey McMenamin, His Wife, and Camelot of the Poconos, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued June 18, 1985.
    Filed Jan. 21, 1986.

      Meyer Simon, Glenside, for appellants.
    Mark S. Love, Stroudsburg, for appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the Order entered November 30, 1984, in the Court of Common Pleas of Monroe County denying appellants’ petitions to amend their answer to the complaint and for an extension of time to respond to the motion for summary judgment and granting appellee’s partial summary judgment.

This case arises out of an agreement between the parties by which appellee was to purchase one-third of the stock of the corporate appellant and become an employee. Appellee subsequently filed a Complaint against appellants containing seven counts, seeking inter alia, to rescind the stock purchase agreement (Count I). The trial court later granted appellee’s motion for partial summary judgment regarding Count I with the order directing appellants to return to appellee the money he had paid for the stock plus interest.

Appellants present the following questions on appeal ;

1. Did the trial court abuse its discretion by refusing to grant appellants’ petitions to amend their answer to the complaint and for an extension of time to answer the motion for partial summary judgment?

2. Did the trial court err in granting the motion for partial summary judgment on the basis that appellant violated the Pennsylvania Securities Act in conjunction with the stock purchase agreement?

After appellee filed a motion for partial summary judgment appellants simultaneously filed petitions (1) for an extension of time to respond to the motion and (2) for leave to amend their answer to the complaint to include new matter asserting the defenses of the Statute of Limitations and laches.

Appellants contend that the trial court abused its discretion in denying the petitions because it did not discuss any potential prejudice sustained by appellee if they had been granted.

In Berman v. Herrick, 424 Pa. 490, 227 A.2d 840 (1967), the Pennsylvania Supreme Court stated that:

Although the allowance of an amendment to a pleading is a matter of judicial discretion, such amendments are liberally permitted except where surprise or prejudice to the other party will result, or where the amendment is against a positive rule of law.

This principle of liberally permitting amendments was reiterated by this Court in Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Superior Ct. 311, 484 A.2d 148 (1984):

The decision to permit an amendment to pleadings is committed to the sound discretion of the trial judge. That discretion however is not unfettered. Our courts have established as parameter a policy that amendments to pleadings will be liberally allowed to secure a determination of cases on their merits. Tanner v. Allstate Ins. Co., 321 Pa.Superior Ct. 132, 467 A.2d 1164 (1983).

The trial court in the case sub judice denied the petition to amend because of appellant’s failure to explain their “unreasonable delay” of six (6) months since the filing of the answer.

Although the time of the amendment is a factor to be considered, it appears that it is to be considered only insofar as it presents a question of prejudice to the opposing party. The Pennsylvania Supreme Court in Bata v. Central Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972); cert. denied 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973) (allowing amendment to a complaint after the trial court’s decree was entered):

All amendments have this in common: They are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have allowed inclusion in the original pleading (the usual case) then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered.

Considering the foregoing we conclude that the trial court by denying the petition to amend, based on nothing more than unreasonable delay, abused its discretion. Accordingly, the order is vacated. We do not reach the merits of appellant’s remaining claims.

Order vacated.

      . Although appellants list six (6) issues in their Statement of Questions Presented, the argument section of their brief has not been so divided as required by Pa.R.A.Pro. 2119(a). Accordingly, we have consolidated some issues for purposes of discussion.