author: WATKINS, Judge:

text:
    442 A.2d 1158
    VEND-A-MATIC, INC., Appellant, v. FRANKFORD TRUST COMPANY and Fotias H. Malitas.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed March 12, 1982.

      Milton Becket, Philadelphia, for appellant.
    H. Kenneth Tull, Philadelphia, for appellees.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia and involves plaintiff-appellant’s appeal from an order of the trial court which granted summary judgment to the defendants.

Plaintiff-appellant had filed a Complaint to Quiet Title against both defendants on August 23, 1978 alleging that through the willful and deliberate conduct of the defendant-bank, plaintiff never had received notice of a Sheriff’s sale of a piece of real estate which the plaintiff owned. Plaintiff requested that the Sheriff sale of the real estate be set aside, that the Sheriff’s deed conveying the real estate be cancelled and that plaintiff be declared the owner of same. Both defendants filed motions for summary judgment independent of each other. Both motions were ultimately granted and plaintiff has appealed from the order of court granting said summary judgments.

The real estate in question, situated at 5233-45 Torresdale Avenue, Philadelphia, Pennsylvania was acquired by the plaintiff on January 18, 1974. Plaintiff obtained a $20,000 mortgage on the property through Frankford Trust Company on the same date. Plaintiff then defaulted on the mortgage by failing to pay the required monthly installments when due. . The defendant bank then initiated foreclosure proceedings on the mortgage which initially went to judgment on May 3, 1977. On May 8, 1978, the defendant bank filed a second Writ of Execution pursuant to which a Sheriff’s Sale was held. The defendant bank was the successful bidder at the sale and subsequently conveyed the real estate to Malitas by deed which was recorded on August 27, 1978. Plaintiff contends that the defendant bank failed to comply with Pa. Rule Civil Procedure 3129 and for that reason the Sheriff Sale was invalid.

Pa. Rule Civil Procedure 3129 provides as follows:

NOTICE OF SALE. REAL PROPERTY
(a) No writ of execution to sell real property shall issue upon a judgment until the plaintiff or some person on his behalf has filed of record with the prothonotary an affidavit setting forth to the best of his knowledge, information and belief the name and last known address of the owner or reputed owner and of the defendant in judgment. A copy of the affidavit shall be delivered to the sheriff together with the writ of execution. If after a good faith investigation the name of the owner or reputed owner or his address or the whereabouts of the defendant in the judgment cannot be ascertained, the affidavit shall so state.
(b) Notice of the sale of real property shall be given by handbills, by written notice to the defendant in the judgment and the owner or reputed owner and by publication, as hereinafter provided.
(1) The handbills shall be posted by the sheriff in his office and upon the property at least twenty (20) days before the sale, briefly describing the property to be sold, its location, the improvements if any, the judgment of the court on which the sale is being held, the name of the owner or reputed owner, and the time and place of the sale. The handbill shall also include the notice of a schedule of distribution required by subdivision (c) of this rule.
(2) The written notice shall be prepared by the plaintiff and shall contain the same information as the handbills and shall be served by the sheriff at least twenty (20) days before the sale on the defendant in the judgment if his whereabouts are known and on the owner or reputed owner if his name and address are known and on no other person, either
(a) in the manner provided for the service of a writ of summons in assumpsit, or
(b) by registered mail, return receipt requested, addressed to each one at his last known address set forth in the affidavit
as the plaintiff may direct at the time he delivers the written notice to the sheriff for service, or, if the plaintiff fails to direct, as the sheriff may elect.
(3) If the written notice is served by registered mail, service is complete when the letter is mailed, and if for any reason the letter is not delivered or claimed or if delivery is refused or if the return receipt is not executed or if the sheriff fails to receive any information from the post office respecting the letter before the date fixed for sale, the validity of the service shall not be impaired and the sale shall proceed at the time fixed in the notice. All information or material received by the sheriff from the post office respecting the letter, whether before or after the sale, shall be filed of record.
(4) Notice containing the information required by subdivision (b)(1) shall also be given by publication by the sheriff once a week for three (3) successive weeks in a newspaper of general circulation in the county and in the legal publication, if any, designated by rule of court for publication of notices, the first publication to be made not less than twenty-one (21) days before the date of sale.
(c) The notice of sale provided in subdivision (b) shall include a notice directed to all parties in interest and claimants that a schedule of distribution will be filed by the sheriff on a date specified by the sheriff not later than thirty (30) days after sale and that distribution will be made in accordance with the schedule unless exceptions are filed thereto within ten (10) days thereafter. No further notice of the filing of the schedule of distribution need be given.
(d) If the sale is stayed or continued or adjourned generally, new notice shall be given as provided by subdivisions (b) and (c). If the sale is continued or adjourned at the direction of the plaintiff to a date certain within forty-five (45) days, and public announcement of the adjournment and new date is made to the bidders assembled at the time and place originally fixed for the sale, no new notice shall be required but there may be only one such continuance or adjournment to a date certain without new notice.
(e) Rescinded and effective Nov. 6, 1975.
Adopted March 30, 1960, effective Nov. 1, 1960; amended March 22, 1972, effective April 2, 1962; amended and effective Nov. 6, 1975; Nov. 21, 1975.

Plaintiff claims that the court below erred when it granted defendants’ motions for summary judgments because there existed a material issue of fact as to whether the notice provided by the defendant bank was adequate and as to whether the Sheriff’s Sale price of the property was grossly inadequate.

The record reveals that the defendant bank did provide notice of the sale by sending a certified letter regarding same to plaintiff at its corporate place of business at 5233-45 Torresdale Avenue, Philadelphia, Pennsylvania. Said letter was returned “unclaimed”. However, plaintiff argues that the notice was deficient because the defendant bank had discussed many affairs of plaintiff with a John C. Berkery who resided at 22 Church Road in Elkins Park, Pennsylvania and failed to send Berkery any notice of the sale. Berkery was an officer of plaintiff, testified at his deposition that plaintiff was merely a “straw owner” and that he and his then-wife, Rosalie, were the real owners of the real estate in question, testified that he had notified defendant bank to correspond with him at his Elkins Park address and further testified that he had no notice of the Sheriff Sale. He did admit that he had failed to notify the United States Post Office to forward plaintiffs mail from Torresdale Avenue to his Elkins Park address. Plaintiffs contention is that the defendant bank knew that Berkery was involved with the plaintiff, had dealt with Berkery before regarding the plaintiff, knew or should have known of Berkery’s address, and therefore, did not provide adequate notice of the Sheriff Sale to plaintiff when it merely sent a certified notice of same to plaintiffs corporate address but failed to notify Berkery. The plaintiff also claims that the sale price was grossly inadequate because the bank bought in the real estate at the Sheriff Sale for $2475, its costs, and then resold it to Malitas for $35,000. The plaintiff claims the property is worth $65,000 to $80,000. Plaintiff also claims that the Sheriff Sale and subsequent sale to Malitas constituted a fraudulent conspiracy between the defendant bank and the defendant Malitas.

A motion for summary judgment should be granted only in cases where there exists no genuine issue as to any material fact and where the moving party is entitled to judgment as a matter of law. Pennsylvania Rule of Civil Procedure 1035(b).

Turning to plaintiffs last argument we find that there is no genuine issue as to any material fact regarding plaintiffs claim that the defendant bank and defendant Malitas had entered into any type of fraudulent conspiracy to plaintiffs detriment. The record reveals that Malitas had been attracted to the real estate when he saw a “For Sale” sign thereon after the Sheriff Sale, that he didn’t know who owned the real estate at that time, was not referred to the property by the defendant bank and knew nothing of the Sheriff Sale at which the defendant bank “bought in” the real estate. Berkery, in his deposition, admitted that he had no evidence of any conspiracy between the defendant bank and the defendant Malitas and stated that so far as Malitas is concerned, “we think it was all innocent”. Thus, despite the allegations of a fraudulent conspiracy between the defendants alleged by the plaintiff in its complaint there is no genuine issue as to any material fact which could support the charge. The court did not err in granting the summary judgment with respect to this contention.

The record also reveals that plaintiff purchased the real estate in 1974 for $40,000. After “buying it in” for Sheriff’s costs of $2475 on a mortgage debt of $21,561.04 the defendant bank sold the premises to defendant Malitas for $35,000. The record also reveals that the premises was in a “bad neighborhood” and had been unoccupied for some time. Thus, we cannot say that the price in the Sheriff Sale was grossly inadequate as the outstanding mortgage balance must be considered in evaluating the adequacy of the sales price. Mere inadequacy of price is not a sufficient reason to set aside a Sheriff Sale. Fidelity Bank v. Pierson, 437 Pa. 541, 264 A.2d 682 (1970). To set aside such a sale the price must be grossly inadequate. Capozzi v. Antonoplos, 414 Pa. 565, 201 A.2d 420 (1964). There is no genuine issue of fact regarding the amounts set forth above. Therefore, the summary judgment is warranted on this issue. The court below, however, did not address this issue because plaintiff had failed to raise it below. A party may not raise an issue for the first time on appeal. Herskovitz v. Vespico, 238 Pa.Superior Ct. 529, 362 A.2d 394 (1976). Because plaintiff did not raise this issue below we will not reverse the court below for its failure to address the issue in its opinion.

Plaintiff’s final argument is that the defendant bank had an obligation to see to it that John C. Berkery was notified of the Sheriff Sale. Of course Pennsylvania Rule of Civil Procedure 3129 requires that the owner or reputed owner of the real estate be notified of the Sheriff Sale. Plaintiff, and not John C. Berkery, was the owner of the real estate and plaintiff’s address, as indicated on documents filed with the Commonwealth of Pennsylvania, Department of State, was 5233-45 Torresdale Avenue, Philadelphia, PA which is exactly where the notice was sent. The certified letter containing same was never forwarded to Berkery because he had not notified the Postal Service to forward mail for plaintiff to him. Berkery also admitted that he had been informed several times by the defendant bank that they were initiating mortgage foreclosure proceedings against the plaintiff. He further admitted informing the bank that he was in the process of attempting to sell his stock in plaintiff to a prospective buyer. Under these circumstances we cannot say that the court below erred when it granted the summary judgments. It is clear to us that plaintiff was the owner of the premises and was given proper notice of the Sheriff Sale via the certified letter of May 3, 1978 sent to plaintiffs legal address. Although the bank may have known that Berkery was involved with plaintiff as an officer and/or stockholder he had informed the bank that he was attempting to sell his stock in plaintiff. Thus, when defendant bank was confronted with the question of where to tell the Sheriff to forward the notice it wisely relied on the information that plaintiff had provided to the Commonwealth of Pennsylvania, Department of State, Corporation Bureau and had the notice sent to said address. Berkery, on the other hand, knew that mortgage foreclosure proceedings were imminent yet failed to check the mail at the real estate, failed to direct the post office to forward plaintiff’s mail to him at Elkins Park and had informed the defendant bank that he was trying to sell his stock in plaintiff. He also failed to attack the Sheriff’s Sale until after the deed had been delivered. After the Sheriff’s deed has been delivered, the only attacks permitted on the Sheriff’s Sale are those based upon fraud or on lack of authority to make the sale. Garrison v. Erb, 424 Pa. 306, 227 A.2d 848 (1967). Because there is nothing to support plaintiff’s allegations of fraud he is foreclosed from attacking the sale on the grounds of improper notice or inadequacy of price. For all of the above reasons, we affirm the decision of the court below.

Order affirmed.

PRICE, J., did not participate in the decision of this case.


source: Caselaw Access Project

license: Public Domain

text:
    442 A.2d 1163
    COMMONWEALTH of Pennsylvania, Appellant, v. Gary LONG.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1981.
    Filed March 12, 1982.
    Petition for Allowance of Appeal Denied Sept. 10, 1982.

      Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Edward Reif, Philadelphia, for appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Criminal Division, and involves a Commonwealth appeal from an order of the court below which denied the Commonwealth’s petition seeking to extend the time in which to bring the defendant to trial.

The defendant was arrested on November 1, 1979 when Philadelphia police officers executed a search warrant at defendant’s home and seized over 10,000 quaaludes. The defendant was charged with manufacturing, possession with intent to deliver and knowing possession of a controlled substance in violation of 35 Pa.C.S.A. 780-113. He was preliminarily arraigned on the same date. His case was assigned to Philadelphia’s Municipal Court.

The defendant’s trial was listed for December 24, 1979. On that date defendant’s counsel, who had just entered his appearance, requested a continuance of the case because he was unprepared. The case was continued until February 8, 1980, a period of 45 days.

On February 8, 1980, the defendant’s counsel was unavailable and the defendant waived his rights under Pa.R.Crim. Pro. 6013 which rule provides that a defendant who is to be tried in a municipal court must be tried within 120 days of his preliminary arraignment. Pa.R.Crim.Pro. 6013(a)(2). On February 8, 1980 defendant waived his Rule 6013 rights from that date until the next listing of the case on March 5, 1980. It is uncontested that this 26 day delay period is chargeable solely to the defendant.

At the March 5, 1980 listing defendant’s oral motion to suppress the physical evidence obtained pursuant to the search warrant was heard by the Municipal Court Judge. On April 2, 1980 the judge granted the defendant’s suppression motion. On the same day the Commonwealth filed a petition to extend the time in which to bring the defendant to trial pursuant to Rule 6013(c). On April 17, 1980 the Commonwealth appealed the Municipal Court’s suppression order to the Court of Common Pleas. On May 7, 1980 the Court of Common Pleas heard both the Rule 6013(c) petition and the appeal from the suppression order. On that date the court below reversed the Municipal Court’s decision pertaining to the suppression order but also denied the Commonwealth’s petition to extend the time in which to bring the defendant to trial. The court held that the Commonwealth’s petition to extend the time was not timely filed.

On May 12, 1980 the Commonwealth filed a Petition for Reconsideration of the court’s decision which denied its Rule 6013 petition. On May 21, 1980, the court below denied the Commonwealth’s reconsideration request. On June 5, 1980 the Commonwealth filed its Notice of Appeal with the Superior Court. On October 7, 1980 the court below filed its opinion which held that the Commonwealth’s petition to extend the time was timely filed but that the Commonwealth failed to exercise due diligence in attempting to bring the defendant to trial.

The defendant having been preliminarily arraigned on November 1,1979, the original time in which to bring him to trial expired on February 29, 1980. The defendant does not contest the delay between February 8,1980 and March 5, 1980 as he admits that it was due to the unavailability of his counsel. Adding 26 days to February 29, 1980 yields a new “run date” of March 26, 1980. The defendant argues, however, that the entire period between December 24, 1980 and February 8, 1980 is to be charged to the Commonwealth. Rule 6013(d)(2) provides that the first 30 days of any continuance requested by defendant’s counsel is chargeable to the Commonwealth. The Commonwealth argues, however, that the 15 additional days of the original 45 day continuance is chargeable to the defendant since it was his attorney who requested the continuance. The defendant argues that the additional 15 days in excess of the 30 days (which 30 days are admittedly charged to the Commonwealth) is to be charged to the Commonwealth since in his request for a continuance the defendant’s counsel did not mark the specific number of days for the continuance that he was requesting on the appropriate form and that the court administrator re-scheduled the case for February 8, 1980. If the additional 15 days are attributable to the Commonwealth then the new “run date” was March 26, 1980 and the Commonwealth’s Petition to Extend, filed as it was on April 2, 1980, was untimely.

In its October 7, 1980 Opinion, the court below held that the Commonwealth was entitled to exclude 41 days from the “run time”. This includes the uncontested 26 day period and the additional 15 day period. Thus, the new “run date” was April 10, 1980 and the Commonwealth’s Petition to Extend, filed on April 2, 1980, was timely. We agree. It was the defendant who requested the continuance on December 24, 1979 and the court granted the 45 day extension. Pa.R. Crim.Pro. 6013(d)(2) provides that “any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney”, is excluded from the “run time” of the rule, “provided that only the period beyond the thirtieth (30th) day shall be so excluded”. The defendant requested the continuance on December 24, 1979. He did not specify the amount of time he requested for the continuance. The court granted a 45 day continuance. Thus, pursuant to Rule 6013(d)(2) the additional 15 days beyond the 30th day are attributable to the defendant. Thus, the Commonwealth was entitled to a new “run date” 161 days after the preliminary arraignment. The new “run date” was April 10, 1980 and the Commonwealth’s petition, filed on April 2, 1980, was timely.

The defendant argues that the Commonwealth’s appeal should not be heard because the Commonwealth did not appeal the May 7, 1980 decision which denied its Petition to Extend the time in which to try the defendant. The defendant argues that the Commonwealth has only appealed the lower court’s May 21, 1980 order which denied its request for reconsideration of the May 7, 1980 order. The defendant argues that the Commonwealth is attempting to extend its appeal period by filing for reconsideration of the May 7, 1980 order and cites Commonwealth v. Demby, 264 Pa.Superior Ct. 438, 400 A.2d 165 (1979) and Commonwealth v. Thomas, 266 Pa.Superior Ct. 381, 404 A.2d 1340 (1979) in support of its contention. However, our Supreme Court recently reversed the holding in Commonwealth v. Demby, supra, and held that a lower court may reconsider its previous ruling with regard to a grant or denial of a petition to dismiss filed pursuant to Rule 1100. Commonwealth v. Demby, 496 Pa. 509, 437 A.2d 1156 (1981). In its decision, the Supreme Court held that “If a petition for reconsideration is to have any legal efficacy in the context of Rule 1100, a grant of a petition for reconsideration after the Rule 1100 run date must relate back to the date the petition for extension of time is filed.” Thus, we hold that the court below did not err when it granted the Commonwealth’s request for reconsideration of its Rule 1100 petition.

The ultimate question in our case was whether the Commonwealth failed to exercise due diligence in bringing the defendant to trial. After the Municipal Court judge suppressed the Commonwealth’s evidence, the Commonwealth took a timely appeal of that issue to the Common Pleas Court. (The decision to suppress the evidence was rendered on April 2, 1980 and the Commonwealth appealed the decision on April 17, 1980). The court below held that the 15 day delay between the suppression order and the Commonwealth’s appeal constituted a lack of “due diligence” on the part of the Commonwealth. We do not agree. Pa.Rules Crim.Pro. 6005(c) provides that the Commonwealth has 30 days in which to appeal an adverse pre-trial ruling from the Municipal Court to the Court of Common Pleas. At the time that the Commonwealth took its appeal in our case the permissible time period for the appeal was 15 days. The decision as to whether to appeal an adverse pre-trial ruling involves complex factual, legal and policy determinations. Where the Commonwealth appeals an adverse pretrial ruling within the time established by the applicable rule we will not hold that it lacked “due diligence” in prosecuting the case. In the instant case the Commonwealth’s successful appeal of the suppression order may well have resulted in a delay of the proceedings. It did not, however, constitute action which was not consonant with due diligence. See Commonwealth v. Romberger, 490 Pa. 258, 416 A.2d 458 (1980).

The court below also found that the Commonwealth failed to exercise “due diligence” in bringing the defendant to trial because defendant’s attorney requested a copy of the search warrant on December 24, 1979, the date for which defendant’s first trial was listed and the Commonwealth did not provide him with the search warrant until 45 days had elapsed. However, any delay in providing defendant’s counsel with a copy of the search warrant did not affect the promptness of the defendant’s trial since the reason for defendant’s request for a continuance on February 8, 1980 was defendant’s counsel’s availability. We agree that the Commonwealth’s 45 day delay in providing defendant’s counsel with the search warrant was unwarranted. However, because said delay was unrelated to the Commonwealth’s ability to try the defendant before the new “run date” we hold that it is not a reason to charge the Commonwealth with additional time pursuant to Rule 6013 computations. This is so because the delay occurred during a defense requested continuance and had no impact on the rescheduling of defendant’s trial nor the ultimate suppression date. We hold that the court below erred when it dismissed the case against the defendant.

Order reversed and record remanded for trial.


author: O’KICKI, Judge:

text:
    442 A.2d 1166
    COMMONWEALTH of Pennsylvania v. Robert STAHL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1979.
    Filed March 12, 1982.

      L. Dale Pretz, Pottstown, for appellant.
    David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       Pres. Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   O’KICKI, Judge:

This is an appeal from a Verdict and Order of Sentence of Judgment for the summary offense of disorderly conduct out of the Court of Common Pleas of Delaware County, Pennsylvania.

Two citations were issued against Robert Stahl on December 9, 1978 by Sergeant John W. Francis of the Springfield Township Police Department. These charged him with the violation of 18 Pa.C.S.A. Section 5503 (disorderly conduct) and 18 Pa.C.S.A. Section 5507 (obstructing public.passage) at or about 2:30 a.m. at the Sportman’s Club of Delaware County. At the hearing on January 4, 1979 before District Justice Carl J. Malone, the charge of obstructing public passage was dismissed, appellant was found guilty of disorderly conduct and was fined $300.00.

Mr. Stahl appealed the conviction from the District Justice to the Court of Common Pleas on January 18, 1979. At the beginning of the trial, appellant’s counsel objected to the form and the content of the citation. He maintained that appellant was not put on notice of the offense since the citation failed to include any factual allegations of his conduct. The motion was denied and, after trial, appellant was found guilty of disorderly conduct on May 2, 1979 and was sentenced to a $100.00 fine. This appeal was subsequently taken to the Superior Court of Pennsylvania.

This issue evolves from the appeal: Does the weight of the evidence, in fact and in law, support the Trial Court’s verdict? Did the citation, as issued to appellant, sufficiently advise him of the offense charged pursuant to Pa.R.Cr.P. 52(l)(e)? Is the citation valid pursuant to Pa.R.Cr.P. 51?

Appellant contends that the evidence presented by the Commonwealth was not enough to convict him of the crime of disorderly conduct. He submits that there was no evidence presented of any act or conduct which constituted the crime and therefore his conviction was improper. He bases this on the notes of testimony wherein the District Attorney responded to the Trial Court’s question: “What is the specific act of disorderly conduct?” by saying:

“Your Honor, I think this is a situation where it is taken as an entirety, the continual persistence of Mr. Stahl egging on Mr. Byrne along with his voice patterns, it’s sort of a homogenization of a group of sessions .. . which is offensive.” (N.T. 84a)

The Trial Court then decided:

“Well, the inferences that I draw are that Mr. Stahl and his party were unhappy at not being admitted and Mr. Stahl being the employer would act as the spokesman, I tend, therefore, and I do believe the Commonwealth’s testimony. I find the defendant guilty.” (N.T. 84a)

Appellant contends that the Trial Court found him guilty as a result of inferences taken by the Judge and not as a result of any particular act. This, of course, would not be sufficient to convict the accused of a crime. A crime must be based on facts and conditions proved; mere conjecture or surmise is insufficient. Commonwealth v. Baily, 448 Pa. 224, 292 A.2d 345 (1972), Commonwealth v. Leonhard, 245 Pa. Super. 116, 369 A.2d 320 (1976).

Although mere presence at the scene of a crime without affirmative evidence of participation is insufficient to convict, Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966), Leonhard, (supra). The Trial Court found that appellant’s inferential conduct was sufficient to find guilt.

The Trial Court’s determination of credibility is left undisturbed. He occupied a much better position to evaluate the testimony as it was given with regard to witness demeanor etc. In reviewing the sufficiency of the evidence, we must examine the evidence in a light most favorable to the verdict winner, together with all reasonable inferences flowing therefrom. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1971), Leonhard, (supra). Therefore, in doing this, we dismiss appellant’s argument that the inferences taken by the Judge from presented testimony and evidence are not to be considered. The totality of the situation here supports a finding that the appellant actively incited and encouraged the blocking of the doorway, participated in it and defiantly and loudly refused reasonable requests to leave the landing. Public inconvenience, annoyance, and alarm were caused by the hazardous and physically offensive condition they created by defiantly and persistently obstructing the 6' X 10' patio/doorway to the club, thereby blocking ingress and egress. They had no legitimate purpose for being there or remaining there; none was a member of the club.

Blocking the doorway to a facility frequented by a number of people is hazardous, creating possibilities of a fire trap, bumping and jostling of patrons and other injuries. The actions of appellant and his friends were “alarming” both to the bouncer and to the bystander/customers. (N.T. 25a)

Both counsel have touched on the elements of Disorderly Conduct, 18 Pa.C.S.A. § 5503(a)(1), (2), (3), and we acknowledge here that appellant’s actions do not meet the test of subsections 1-2-3. However, he was cited particularly for violation of section 5503(a)(4) which required that the offender “create a hazardous or physically offensive conduct by any act which serves no legitimate purpose of the actor.”

Although the testimony reveals that there was no profanity used (subsection (a)(3)), that, arguendo, the noise created may not have been “unreasonable” (subsection (a)(2)) and that appellant himself may not have been engaged in fighting behavior (subsection (a)(1)) since Byrne was the physically active participant; appellant’s actions, in toto, did create a hazardous or physically offensive condition. His conduct served him no legitimate purpose as demonstrated by our previous recapitulation of the pertinent facts in evidence. These delineate the appellant’s role in encouraging and continuing the hazardous condition.

We therefore support the Trial Court in its determination of the credibility of the witnesses. It was correct in finding that the Commonwealth established that appellant committed the offense of disorderly conduct beyond a reasonable doubt.

The second issue we treat here is easily disposed of: Was the citation, as issued sufficiently detailed enough to satisfy Pa.R.Cr.P. 52(l)(e)? This rule provides that a citation must include:

A citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts alleged sufficient to advise the defendant of the nature of the offense charged.

The citation here named the charge, specified statutory section indicating time, date and place of the offense and described the offense as follows:

Defendant engaged in conduct which was disorderly and caused public annoyance at the below location.

In reviewing the case of Commonwealth v. Weed, 3 D&C 3rd 151 (C.P.Cumb.1977), we must uphold the Commonwealth’s position that the summary requirement is meant to “accurately describe the gravamen” of the offense rather than lay out a blow-by-blow description of events. The Weed case, id., made the following observation in reference to this:

Although a citation must include a specific section of the statute violated, it need only show a summary of the facts sufficient to advise the defendant of the nature of the offense charged, notifying him of the pending prosecution and affording him a chance to defend himself. . . This lenient description of the offense is all that is necessary because the defendant must be served upon the issuance of the citation, giving him immediate notification of the alleged infraction when he is best able to observe and recall facts and circumstances surrounding the incident. . . Thus, we conclude that the description of the offense on a citation is adequate so long as it advises the defendant of the nature of the charge. See, too, Commonwealth v. Yarnell, 57 D&C 2d 541 (Lebanon Co. 1972), Commonwealth v. Colbert, 56 D&C 2d 419 (Bucks Co. 1972).

We find no serious question that the citation, summary included, advised the appellant of the nature of the charges. Who is better able to know what conduct occurred which requires a defense but the defendant himself, being present at the issuance of the citation? Notice is the operative term here and we find that the summary, as interpreted by Weed, supra, was sufficient. The citation, as far as specificity is concerned, was valid.

Now to the heart of the matter. Is the arrest valid either by the on-duty policeman as an arrest for a summary offense or by the off-duty policeman as a citizen’s arrest? Stated succinctly, is the arrest valid pursuant to Pa.R.Cr.P. 51?

First, we address the authority of the on-duty officer who issued the citation. Pa.R.Cr.P. Section 51(A)(3)(a) allows issuing a citation to a defendant by “a police officer who shall be in uniform . . . when the offense charged is any other violation of an ordinance or summary offense.” There is no question of the officer’s authority under this rule. However, the circumstances of this case give rise to the controversy over this matter, the comments to that section (titled “Citation Procedure”) state that:

Evidence upon which a police officer may issue a citation may be received by him in any one of the following ways: a personal observation of the commission of the offense; ... or his determination based upon his investigation at the scene that he has probable cause to believe the defendant has committed a summary violation.

In testimony, it was stated that the officer came upon the scene when appellant was already up against the wall (N.T. 35a) and that the Sergeant was acting under the direction of a superior officer without conducting an investigation of his own. He merely asked a few questions to obtain some facts for his report (N.T. 38a). This cannot be considered even a cursory investigation. Without such an investigation, there could be no probable cause for the officer to believe appellant’s conduct occurred prior to his arrival on the scene and, in fact, the altercation was substantially at an end at the time he arrived. Thus, although the citation was issued by an on-duty police officer, it was not valid pursuant to Pa.R.Cr.P. 51(A)(3)(a) and comments thereto.

In addition, the Commonwealth relies upon Pa.R.Cr.P. 51(A)(3)(c) and 51(C). Although the circumstances here evidence the requirements of section 51(A)(3)(c) in that the arrest was necessary in the judgment of the officer, the officer displayed his badge as a sign of authority and the arrest was authorized by law, the determining factor is that Sergeant Grandizio was out of uniform and off-duty. In addressing that factor, section 51(C) limits the arresting power to a person “given the powers of a public officer when acting within the scope of his employment.” This is the operative phrase. When off-duty, the officer was not within the scope of his employment and, the assertion that he was making a citizen’s arrest substantiates his knowledge of his lack of authority. This citizen’s arrest in itself was not valid. It is black letter law, reiterated and statutorily defined by Pa.R.Cr.P. 51, that a private citizen may not make an arrest for a summary offense. This rule is “not intended to give powers of arrest to any person who does not otherwise by law possess such powers” and those persons include only “regularly constituted police departments...” and the like. (See comments to that section entitled Person Who May Issue Citations and Make Arrests).

Thus, Sergeant Grandizio was merely acting, in effect, as a doorman, a private citizen without authority in these circumstances to effectuate any type of arrest for a summary offense.

Neither the on- or off-duty police officers, for the reasons discussed above, could arrest appellant for his conduct, disorderly though it may have been. Therefore, based upon a review of the testimony, facts, law, and findings as to the operative issues, we find the Trial Court in error in its verdict of guilty of disorderly conduct and in its imposition of a $100.00 fine.

Accordingly, we reverse.

REVERSED.

SPAETH and CAVANAUGH, JJ., concur in the result.


author: CERCONE, President Judge:

text:
    442 A.2d 1170
    COMMONWEALTH of Pennsylvania v. Michael DABROWSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed March 19, 1982.

      Douglas J. Wright, Assistant Public Defender, Girard, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CERCONE, President Judge, and PRICE and MONTEMURO, JJ.
   CERCONE, President Judge:

The sole issue presented to this Court is whether appointed counsel should be permitted to withdraw from this direct appeal. We conclude that counsel has not satisfied the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), and therefore we deny counsel’s request to withdraw.

On February 20, 1979, appellant was convicted by a jury on the charge of robbery. A few weeks later, on March 13, 1979, appellant pleaded guilty to a charge of receiving stolen property stemming from the same incident. Subsequently, appellant was sentenced to Zl/z to 7 years in prison on the robbery charge and was ordered to pay the costs of prosecution and a $100.00 fine; appellant received no term of imprisonment on the charge of receiving stolen property but was ordered to pay the costs of prosecution and a $100.00 fine for this conviction. Appellant then filed an appeal in this Court. Sometime thereafter, appellant’s counsel filed his first request for permission to withdraw. We denied the request and entered the following per curiam order:

AND NOW, this 18th day of May, 1981, the petition to withdraw is denied. Counsel for appellant is directed either (1) to file an amended request for leave to withdraw that meets in all respects the requirements of notice to the appellant, see Commonwealth v. Liska, 252 Pa.Superior Ct. 103, 109, 380 A.2d 1303, 1306 (1977), and to file a withdrawal brief that meets the description in Commonwealth v. Greer, 455 Pa. 106, 108-09, 314 A.2d 513, 514-15 (1974), or (2) to proceed with the appeal by filing an advocate’s brief on the merits. In either case, counsel is to file a new brief and request, or new brief alone, within thirty (30) days, or risk sanctions.

In response to this order, counsel filed an amended application for leave to withdraw as counsel with an accompanying notice to appellant; counsel also filed a duplicate of his original brief. Having reviewed this second request thoroughly, we conclude that it must be denied. The Anders/Baker line of cases require that before counsel may withdraw he must thoroughly analyze the record and conclude that an appeal is wholly frivolous. Commonwealth v. Greer, supra, 455 Pa. at 108-109, 314 A.2d at 514. As the Supreme Court stated in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981):

[I] t is apparent that the right to withdraw is in the first instance tied to a finding, after a conscientious review of the record, that the appeal is “wholly frivolous.” This court has also noted “that lack of merit in an appeal is not the legal equivalent of frivolity.” Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974).

As required by Anders, supra, 386 U.S. at 744, 87 S.Ct. 1396, this Court has made a full examination of all proceedings and we conclude that the case is not wholly frivolous. Appellant was convicted of and sentenced for both robbery and receiving stolen goods on charges arising from the same incident. It could be argued that these charges merged. See Commonwealth v. Turner, 248 Pa.Superior Ct. 306, 375 A.2d 110 (1977). As stated in Turner, supra, Id., 248 Pa.Superior Ct. at 309, 375 A.2d at 111, “while this issue may ultimately prove non-meritorious, it certainly cannot be deemed wholly frivolous.”

Accordingly, counsel’s request for leave to withdraw is denied, and counsel is directed to file an advocate’s brief.

PRICE, J., concurs in the result.

      . In many ways, the Turner case is strikingly similar procedurally to appellant’s case. Turner also involved an amended petition by counsel to withdraw. The defendant in Turner had been convicted of robbery and of theft by unlawful taking on charges stemming from the same incident. We refused counsel’s request to withdraw and ordered counsel to file an advocate’s brief, particularly addressing the issue of merger. Ultimately, we found this to be a meritorious issue and defendant Turner’s conviction for theft by unlawful taking was reversed. Commonwealth v. Turner, 265 Pa.Superior Ct. 486, 402 A.2d 542 (1979).


author: CAVANAUGH, Judge: WIEAND, Judge, POPOVICH, Judge,

text:
    442 A.2d 1172
    George MILLER v. Joan A. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 23, 1981.
    Filed March 19, 1982.
    Petition for Allowance of Appeal Denied July 9, 1982.

      Kenneth R. Williams, Doylestown, for appellant.
    Terry W. Clemons, Cornwell Heights, for appellee.
    Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, WICKERSHAM, BROSKY, WIEAND, JOHNSON, MONTEMURO, POPO-VICH, DiSALLE and SHERTZ, JJ.
   CAVANAUGH, Judge:

Defendant, Joan Miller, appeals the lower court’s order denying her petition to transfer the action under the Divorce Code of 1980. For the reasons which follow we remand the case to the lower court.

Plaintiff, George Miller,. filed a complaint in divorce against his wife in January, 1979. Various motions and petitions were filed by the parties thereafter. However, on July 24, 1980, before a master’s hearing had been scheduled, the wife filed a petition to transfer the action under the Divorce Code of 1980. The husband filed an answer and new matter in response to the wife’s petition. The lower court denied the petition to transfer and this appeal followed.

In its opinion the lower court asserts that the instant appeal is interlocutory. In Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), a majority of this court held that an appeal from an order denying a petition to transfer under the Divorce Code of 1980 is immediately appealable. Hence, the instant case is properly before us.

In denying the petition to transfer the lower court held that it had wide discretion to deny the petition. Lower court opinion at 4. Moreover, the reason the court denied the petition was that the husband would suffer hardship if the petition was granted. Id. at 3. In the lower court’s opinion a wife’s petition to transfer should be denied:

in a situation where if she had acted in good faith toward her spouse and had not persisted in delaying resolution of their marital difficulties, all proceedings would have been, and should have been, brought to conclusion by the time the new law became effective.

Id. at 5.

The lower court’s reasoning was erroneous. In Gordon v. Gordon, supra, a majority of this court stated that “the range of discretion is extremely narrow, being limited to a consideration of whether granting the application [to proceed under the Divorce Code of 1980] will be consistent with the objectives described in Section 102 of the Divorce Code.” Gordon v. Gordon, supra, 293 Pa.Superior Ct. 491, 439 A.2d 683. Thus the lower court’s holding that it had wide discretion was erroneous. Moreover, its reliance on the hardship suffered by the husband if the petition would be granted was also erroneous; instead the lower court should have considered whether granting the petition would be consistent with the provisions of Section 102 of the Divorce Code, 23 P.S. § 102.

Based on the record before us it appears that granting the petition would be consistent with the objectives of Section 102 of the Divorce Code. However, we realize that the parties and the court below did not have the benefit of the Gordon opinion when the court denied the wife’s petition. The transfer issue should be reconsidered in light of the Gordon principles.

Furthermore, since the lower court denied the petition to transfer the action under the Divorce Code of 1980, it did not consider the husband’s argument that the Divorce Code was unconstitutional. Thus we do not have the benefit of a complete record with the lower court’s views of the constitutional issue. Moreover, we note that the constitutional question is presently before the Pennsylvania Supreme Court in two cases in which the issue was fully developed and considered by the lower court; Bank v. Bank, No. 81-3-479 and Bacchetta v. Bacchetta, No. 81-3-411. Under these circumstances we decline to reach the constitutional issue.

Order vacated. Case remanded for reconsideration of the wife’s petition and for consideration of the husband’s constitutional argument and further development of the record if necessary. We do not retain jurisdiction.

WIEAND, J., files dissenting opinion in which HESTER, J., joins.

POPOVICH, J., files dissenting statement.

SHERTZ and DiSALLE, JJ., did not participate in the consideration or decision of this case.

WIEAND, Judge,

dissenting:

For reasons appearing in my concurring opinion in Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981), and my dissenting opinion in Gordon v. Gordon, 293 Pa. Superior Ct. 491, 439 A.2d 683 (1981), I am of the opinion that the order appealed is interlocutory. Therefore, I would quash the appeal.

HESTER, J., joins in this dissenting opinion.

POPOVICH, Judge,

dissenting:

I would reverse the court’s Order for the reason that appellant’s application to proceed under the new Divorce Code should be granted as of right. The Divorce Code, Act of April 2, 1980, P.L. 63, Act No. 26, 23 P.S. § 101 et seq. See Gordon v. Gordon, 293 Pa.Super. 491, 535-36, 439 A.2d 683, 704 (1981) (Popovich, J., Concurring Opinion).

      . We recognize that because of the stage of the litigation at which the petition was filed certain economic consequences may have ensued. However, as we noted in Gordon v. Gordon, supra, such consequences can be taken into account in determining the husband’s economic circumstances if equitable distribution is ordered or alimony is awarded. Gordon v. Gordon, supra, 293 Pa.Superior Ct. 491, 439 A.2d 683.


author: CAVANAUGH, Judge:

text:
    442 A.2d 1174
    Donald FERNANDES, Appellant, v. WARMINSTER MUNICIPAL AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1982.
    Filed March 19, 1982.
    Donald Fernandes, in pro. per.

      William H. R. Casey, Richboro, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   CAVANAUGH, Judge:

Appellant Donald Fernandes, acting pro se, commenced this appeal by filing notice of appeal in the lower court on February 3, 1981. A verdict was entered on January 9, 1981 in favor of appellee following a non-jury trial which was conducted by the Honorable William Hart Rufe III. The case was tried de novo on appeal from decision by a board of arbitration. Following the verdict the trial Judge, aware of the appeal to this court, wrote an opinion pointing out that no motions for a new trial had been filed and that there had been no specification of grounds of appeal. This opinion was dated July 24, 1981. The record also contains a motion in the lower court on behalf of appellant “to correct the record-nunc pro tunc” and “to order the record transcribed”. This motion is dated July 31, 1981. There is also an order signed by the trial court on August 11, 1981, responding to appellant’s motion to file issues and grounds for taking his appeal to the Superior Court. This order simply states that “said motion shall be filed.” It thus appears there has been no judgment entered in the lower court. Under the circumstances, even though the issue has not been raised by either party, we consider the issue of jurisdiction sua sponte and are constrained to quash the appeal since there has been no judgment entered. See Pa.R.App.P. 301; Rule 1038 and 1048 of the Pennsylvania Rules of Civil Procedure; Black Top Paving v. John Carlo, Inc., 292 Pa.Super. 404, 437 A.2d 446 (1981); Karpe v. Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1981).

We further observe that appellant has failed to file any exceptions to the verdict of the trial court but took a direct appeal to this court. It is a basic precept of Pennsylvania law that where a claim of error is not properly preserved for review, an appellate court must not consider that claim on appeal. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Specifically by failing to file post-verdict motions an appellant has not adequately preserved for appeal his claim of error. Benson v. Penn Central Transportation Co., 463 Pa. 37, 342 A.2d 393 (1975). Of course this is not blind insistance on a mere technicality since post-trial motions serve an important function in adjudicatory process in that they afford the trial court in the first instance the opportunity to correct asserted trial error and also clearly and narrowly frame issues for appellate review. Commonwealth v. Kinsey, 249 Pa.Super. 1, 375 A.2d 727 (1977); Commonwealth v. Koch, 288 Pa.Super. 290, 295, 431 A.2d 1052, 1055 (1981). See also Pittsburgh National Bank v. Mutual Life Insurance Co. of New York, 273 Pa.Super. 592, 417 A.2d 1206 (1980); Baccare v. Mennella, 246 Pa.Super. 53, 369 A.2d 806 (1976).

Appeal quashed.


author: WIEAND, Judge:

text:
    442 A.2d 1175
    COMMONWEALTH of Pennsylvania v. Curtis Lee HARGROVE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 25, 1981.
    Filed March 19, 1982.

      Robert A. Longo, Lancaster, for appellant.
    Michael H. Ranek, District Attorney, Lancaster, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

Curtis Lee Hargrove was tried by jury and convicted of criminal conspiracy, robbery, aggravated assault, and burglary as a result of events which occurred at a Lancaster home on July 9, 1979. Post trial motions were denied, and a sentence of 10 to 20 years imprisonment was imposed. On appeal, Hargrove argues that a reference to his prior incarceration, made by a Commonwealth witness during cross-examination by defense counsel, was prejudicial and required a new trial. We disagree and affirm the judgment of sentence.

Appellant had been accompanied during the robbery by one Donna Marie Williams. She testified at trial that appellant had struck the elderly victim and had stolen a purse containing $225. On cross-examination, Ms. Williams testified that she had been a former girlfriend of appellant but had not seen appellant for some time prior to the incident because she had been residing in Philadelphia. During cross-examination by defense counsel, the following exchange took place:

Q. And you were staying with Curtis?
A. No, I was staying at my sister’s house.
Q. Were you seeing Curtis alot while you were here?
A. I only seen him about once or twice because I think he had just got out of jail somewhere.

Defense counsel moved for a mistrial. The motion was denied, but the trial judge immediately gave precautionary instructions as follows:

You are to ignore this witness’ last answer as not being responsive to the question at all and being totally irrelevant and immaterial to the issues involved in this case. As a matter of fact, it is not correct that Mr. Hargrove had just gotten out of jail. He was not in jail.
So you are directed to ignore this answer, and I am directing that that answer not be considered by you in any way. You eliminate it entirely from your minds and your consideration of the evidence on these particular charges that have been filed, and the Commonwealth has been instructed to advise their witnesses to be responsive to the questions and to answer only the questions that are asked. That goes for you as well as any other Commonwealth witness.
Now you understand my clear instruction. Just ignore that answer because it wasn’t correct and it was totally irrelevant and immaterial to the charges that are brought here.

“It is established, beyond argument, that a testimonial reference indicating to the jury that the accused has been engaged in other criminal activity, denies the accused a fair trial and requires a retrial, except under well-defined and limited circumstances. . . . ” Commonwealth v. Washington, 488 Pa. 133, 138, 411 A.2d 490, 492 (1979). However, as noted in Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977), “there are situations where the taint, resulting from an improper reference to an unrelated criminal act, may be expunged without resort to the extreme remedy of aborting an otherwise fair trial.” Where the improper remark has been unintentional and innocuous, “immediate and effective curative instructions may remedy the error.” Commonwealth v. Williams, id., 470 Pa. at 178, 368 A.2d at 252.

In the instant case, the question answered by the witness had been asked by defense counsel. There was no basis for concluding, and appellant does not contend, that the response of the witness was an intentional attempt to prejudice him or that the representatives of the Commonwealth were in any way responsible for it. The answer of the Witness, in fact, was unresponsive to the question asked. She had not been uncooperative or hostile at any other point during the questioning. Cf. Commonwealth v. Durant, 268 Pa.Superior Ct. 191, 407 A.2d 1311 (1979). The remark was unsolicited and isolated, and was of the type which “[fell] far short of depriving appellant of a fair and impartial trial.” Commonwealth v. Whitman, 252 Pa.Superior Ct. 66, 77, 380 A.2d 1284, 1289 (1977) (witness asked how often she had seen defendant; she replied “I had seen him about a week before that, he had just had his ... you know, come home from prison.” Held: no prejudice).

Furthermore, the judge gave a prompt and extensive cautionary instruction which removed any possible prejudicial effect of the unresponsive answer by the witness. See: Commonwealth v. Hutchinson, 290 Pa.Superior Ct. 254, 434 A.2d 740 (1981). Not only did the judge tell the jury to ignore the remark, but he went further and told them that the witness’ information was factually incorrect.. Corrective instructions of this nature were sufficient to neutralize the effect of the witness’ statement. Commonwealth v. Williams, supra, 470 Pa. at 179, 368 A.2d at 252.

Judgment of sentence affirmed.

SPAETH, J., concurs in the result.


author: BECK, Judge:

text:
    442 A.2d 1177
    PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY v. Rudolph J. DI MASSA, Sr., Rudolph J. Di Massa, Jr., Anthony Di Massa and Rita Di Massa, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 23, 1981.
    Filed March 19, 1982.

      Rudolph J. DiMassa, Philadelphia, for appellants.
    John D. Killian, Harrisburg, for appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   BECK, Judge:

Appellee Pennsylvania Higher Education Assistance Agency sued appellants in trespass in the Court of Common Pleas of Dauphin County alleging that it had paid appellants monies for scholarship grants based upon applications submitted to it which contained false representations.

Appellants filed preliminary objections alleging that appellee had failed to state facts constituting fraud and alleging that the Court of Common Pleas lacked subject matter jurisdiction. The basis of the latter objection was that the administrative regulations, promulgated by appellee, provided for appeal from denial of an application for a scholarship grant to be made only to the Commonwealth Court.

The lower court dismissed appellants’ Preliminary Objections, and it is from this order that appellants filed the within appeal.

In their “Statement of Jurisdiction” on appeal, appellants recite:

This Court has jurisdiction pursuant to a Notice of Appeal from the Order of the Court below entered on January 22, 1980, on the question of jurisdiction and an Affidavit of Service thereof having been filed on February 4, 1980.

Jurisdiction of this Court is clearly not conferred by a filing of Notice of Appeal, but arises only under the Constitution and statutes of the Commonwealth. The Order appealed from is clearly interlocutory in character. This court has jurisdiction of appeals from interlocutory orders only where specifically authorized by statute or general rule. Evans v. Government Employees Insurance Company, 291 Pa.Super. 342, 435 A.2d 1258 (1981); Metropolitan Federal Savings and Loan Association v. Bailey, 244 Pa. Super. 452, 458-59, 368 A.2d 808, 812 (1976).

An appeal of an interlocutory order may be allowed by the Appellate Court pursuant to 42 Pa.C.S. 702, subsection (b) of which provides:

“When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.”

However, 42 Pa.C.S. 702(b) has not been complied with. While the opinion of the lower court states that the “question of jurisdiction . . . involves a controlling question of law,” the other elements of certification under 42 Pa.S.C. § 702(b) are not contained in the order or opinion. Furthermore, appellants did not petition this court for permission to appeal pursuant to 42 Pa.S.C. 702(b).

This court has jurisdiction of this appeal, therefore, only if it involves matter as to which interlocutory appeal as of right is granted by statute or rule. While earlier cases did hold that blanket jurisdiction over appeals from orders determining subject matter jurisdiction did exist in this court, these cases were decided under Act of March 5,1925, P.L. 23, § 1, then 12 P.S. § 672 which conferred jurisdiction of appeals from orders ruling on a “question of jurisdiction ... of the cause of action for which the suit is brought. ...” This act was superceded by Act of July 9, 1976, P.L. 586, No. 142, § 2 as amended, 42 Pa.C.S. § 5105. Subsection (c) relating to interlocutory appeals places in the Supreme Court of Pennsylvania the authority to promulgate general rules establishing rights to appeal from specific classes of interlocutory orders. Pursuant to this authority, Pa.R.App.P. 311 specifies those interlocutory orders from which appeal may be taken as of right. Subsection (b) states:

An appeal may be taken as of right from an order in a civil action or proceeding sustaining venue of the matter or jurisdiction over the person or over real or personal property .... under enumerated circumstances.

No provision of Rule 311 confers jurisdiction of an appeal from an order sustaining subject matter jurisdiction under any conditions.

Since this court has not been authorized by statute or rule to exercise jurisdiction over this interlocutory appeal, the appeal is quashed.

      . Appellants also demanded dismissal of plaintiffs complaint “because of ... c. Lack of jurisdiction over the persons of the defendants.” However, no fact was alleged to support such grounds and a claim of lack of personal jurisdiction has not been raised on this appeal.

      . Hollinger v. Department of Public Welfare, 469 Pa. 358, 365 A.2d 1245 (1976); Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24 (1962). But see General Teamsters, Chauffeurs and Helpers Local Untion 249 v. W. J. Dillner Transfer Co., 213 Pa.Super. 438, 249 A.2d 806 (1968).

      . 12 P.S. § 672 was repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2, 42 Pa.C.S.A. § 20002(a) [1069], effective June 27, 1978.


author: HOFFMAN, Judge: BECK, Judge,

text:
    442 A.2d 1179
    In the Matter of MARK T., a Minor. Appeal of CARRIE T.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1981.
    Filed March 19, 1982.

      Garry Wamser, Lock Haven, for appellant.
    Larry Coploff, Lock Haven, for participating party.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in finding her minor son “dependent” as defined in the Juvenile Act. We agree and, accordingly, vacate the orders of the lower court and remand for proceedings consistent with this opinion.

Mark, the subject of this appeal, was born to appellant and her husband, on May 19, 1972. Following his parent’s divorce, Mark remained in the custody of appellant in Pennsylvania, while his father settled in Florida. After a pattern of unexcused absences from school, the Clinton County Children and Youth Social Services Agency (CYS) filed a petition on October 6, 1980, alleging that Mark was without proper parental care or control and requesting that he be adjudicated dependent. The lower court held a series of hearings and found that although Mark’s physical needs were being adequately met and a close mother-son relationship had developed, appellant’s bizarre behavior could very well have serious long-range detrimental effects upon Mark and declared him dependent. A disposition hearing was held, 42 Pa.C.S.A. § 6351, and the lower court awarded custody to CYS. This appeal followed.

A “dependent child” is defined under the Juvenile Act as a child “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental or emotional health or morals. ...” 42 Pa.C.S.A. § 6302. “The question ‘Is the child without proper parental care or control?’, includes two questions: ‘Is the child at this moment without proper parental care or control?’, and if so, ‘Is such care or control immediately available ?’.” In the Interest of LaRue, 244 Pa.Superior Ct. 218, 233, 366 A.2d 1271, 1278 (1976). Accord In the Interest of Theresa E., 287 Pa.Superior Ct. 162, 178, 429 A.2d 1150, 1158 (1981); In the Interest of Black, 273 Pa.Superior Ct. 536, 543, 417 A.2d 1178, 1182 (1980). A finding of dependency must be supported by evidence that is clear and convincing. 42 Pa.C.S.A. § 6341(c); In the Interest of Pernishek, 268 Pa.Superior Ct. 447, 457, 408 A.2d 872, 877 (1979).

The lower court relied solely upon evidence relating to Mark’s relationship with appellant in adjudicating him dependent. We find such evidence by itself insufficient to support a finding of dependency. Assuming, arguendo, that the lower court correctly found Mark was without proper parental control at the time of the hearing, he could “not be adjudicated dependent unless there [was] clear and convincing evidence that such care [was] not immediately available.” In re: A.E.M., 288 Pa.Superior Ct. 284, 288, 431 A.2d 1049, 1052 (1981) (emphasis added). To make such an adjudication, the lower court was required to determine whether Mark’s father was capable of rendering the requisite care and control for the child—a determination which cannot be made on the record before us. The lower court did not consider the availability of the father before adjudicating the child dependent, despite the express purpose of the Juvenile Act to provide care and protection for children “in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.” 42 Pa.C.S.A. § 6301(b)(3). See also In the Interest of Pernishek, supra; In the Interest of LaRue, supra. Accordingly, because the record is insufficient, we must vacate the orders of the lower court and remand the case for further proceedings. The lower court shall direct an investigation of the father’s home and consider the results of such an investigation before making its adjudication. “Additionally, the court should consider obtaining disinterested testimony from neighbors, social workers, and/or psychological experts before making its adjudication.” In re: A.E.M., supra, 288 Pa.Super. at 289, 431 A.2d at 1052. After the hearing, the lower court shall enter an appropriate order and prepare an opinion with specific findings of fact. Id.

Orders vacated and case remanded for further proceedings consistent with this opinion.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I concur and would vacate the order adjudicating Mark dependent pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq.

The lower court erred in finding Mark dependent. The state failed to meet its burden of persuasion by clear and convincing evidence that Mark was “without proper parental care or control” at the time of the hearing. 42 Pa.C.S.A. § 6302. On the basis of this conclusion alone, I would vacate the order.

In reviewing the evidence in this dependency proceeding, we are mindful that it “is a serious matter for the long arm of the state to reach into a home to snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity.” Rinker Appeal, 180 Pa.Super. 143, 148, 117 A.2d 780, 785 (1955).

Richard R. Mays, M.D., the psychiatrist who examined both Mark and his mother, testified that the mother exhibited symptoms generally associated with schizophrenic illness. This condition caused the mother to believe that unspecified persons were beaming radio and television signals at her through the walls of her apartment and using her electrical appliances to launch electrical impulses and shocks at her. He further testified that Mark revealed “no effects,” “no signs of emotional disturbance ... no overt symptomatology” as a result of his mother’s condition. (N.T., pp. 21, 29.) Moreover, the psychiatrist stated that there was no danger that the mother would physically harm the child and that if the mother accepted medication and therapy, her symptoms might be remitted within a week or two. (N.T., pp. 20, 34.) He did add, however, that if the mother’s condition persisted, there was a “moderate possibility” that the child would be psychologically damaged through continued exposure to her. (N.T., pp. 23, 24.)

The lower court found that the mother was “suffering from delusional formations, ideas of reference which were consistent with a schizophrenic illness that is no longer in remission.” This condition, however, the court concluded, had had no harmful physical or psychological effects on the boy. The lower court’s adjudication of dependency was based not on the present condition of the child, but on testimony of potential long range psychological harm to the child. Such testimony alone will not support a finding of dependency. This case is distinguishable from In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980), where this Court upheld a lower court finding that where parental incapacity had resulted in the death of two prior children, and where that parental incapacity had not been corrected, there were adequate grounds for adjudicating dependent a new born child of the same parent, even though the parents had caused no harm to the new born child. In this case, there has been no testimony that the mother’s condition has harmed Mark or anyone else. Nor was there testimony that her condition would cause harm to Mark in the future. Absent a finding that the parent’s conduct or condition has caused actual harm to the child, testimony concerning hypothetical prospective psychological harms does not constitute clear and convincing evidence of lack of “proper parental care or control.” Matter of DeSavage, 241 Pa.Super. 174, 185, 360 A.2d 237, 243 (1976).

In light of the fact that the evidence does not support the finding that Mark was without proper parental care or control, I conclude that it was not necessary for the lower court to reach the issue whether such care was immediately available from a non-custodial parent. However, since the majority has raised this issue, a few observations are in order.

This court has developed a two pronged test in dependency proceedings. A child may be adjudged dependent: (1) if the child is currently without proper parental care or control; and (2) if such care is not immediately available from a non-custodial parent.

The genesis of this formulation is In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). In LaRue, twin boys aged six months had been placed in foster care by their mother under an entrustment agreement with the Child Welfare Service (“Agency”). Four years later, the mother requested the Agency to return the children to her. The Agency refused, and initiated a dependency proceeding, alleging that the children were “deprived” within the meaning of the Juvenile Act. In such a situation, this Court held that the Juvenile Act required both a finding of lack of proper parental care and a finding that such parental care was not immediately available. LaRue, supra, 244 Pa.Super. at 1278, 1279, 366 A.2d 1271. The “immediately available parent” test thus originated in special circumstances. The state had already acquired de facto custody of the children and had been caring for them for some time. The children not in the custody of their parent could have been deemed automatically without proper parental care. The LaRue court found such a result to be inconsistent with the purposes of the Juvenile Act, one of which is to preserve the unity of the family. That court therefore ordered inquiry into whether the non-custodial parent, in this case the mother, was immediately available to provide care.

The two-pronged dependency test has properly been confined to circumstances where the state already has de facto custody óf a child and has initiated a dependency action to defeat attempts by a non-custodial parent to obtain the return of the child. In the Interest of Black; supra; In the Interest of Pernishek, 268 Pa.Super. 447, 408 A.2d 872 (1979); In the Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780, 785 (1976); In the Interest of LaRue, supra. Until today, no holding of this court has extended this test to other types of situations involving dependency petitions under the Juvenile Act. Moreover, this court has strongly disapproved the use of a dependency proceeding as a means of transferring custody of a child from one parent to another. In Interest of Theresa, E., 287 Pa.Super. 162, 429 A.2d 1150 (1981). Where as here, a non-custodial parent desires legal custody of a child in the de facto or legal custody of another parent, that parent must initiate a custody action. The majority’s endorsement of the two-pronged test in the instant case is therefore misplaced.

Moreover, if the two-pronged test were applied in the instant case, it would defeat an adjudication of dependency. The court would then have no statutory basis for a transfer of custody to the “immediately available” father. Under the Juvenile Act, the court has no authority to interfere with a child’s custody absent an adjudication of dependency. If the court fails to find a child dependent, then it must dismiss the dependency petition and order the child discharged to the custodial parent. 42 Pa.C.S.A. § 6341.

Appellees contend that this appeal should be dismissed as moot, because the father obtained custody through a separate custody action while this appeal was pending. We disagree. The foundation of the mother’s appeal is that the court erred in finding dependency based on a failure of “proper parental care or control.” The issue of dependency, however, has not lost its significance. Should the mother seek to regain custody of her child, a record finding of dependency might prejudice her. Her appeal involves more than a purely abstract or academic question. See Community Sports, Inc. v. Denver Ringsby Rockets, Inc., 429 Pa. 565, 240 A.2d 832 (1968).

I would vacate the order of dependency and would not remand for further hearing.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 6301 et seq.

      . Dr. Richard R. Mays of the Divine Providence Community Medical Health Center described appellant’s condition as schizophrenia that ■ is no longer in remission.

      . In an independent action, the lower court subsequently awarded the father custody of the child. That award is not before this Court, and we express no opinion on its propriety.

      . In point of fact, the father here correctly sought custody by bringing an independent custody action during the pendency of this appeal.

      . Section 6341, concerning adjudication of dependency petitions, states in pertinent part: “.. . If the court finds that the child is not a dependent child ... it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.”

      . The majority cites In re A.E.M., 288 Pa.Super. 284, 431 A.2d 1049 (1981) as authority for its holding that where a dependency petition has been filed against a custodial parent, the court may not adjudicate a child dependent without a showing by clear and convincing evidence that no other parent is immediately available to provide the necessary care to the child. Although his proposition appears as dicta in A.E.M., the case itself merely holds that a dependency court can make no disposition concerning a child until it has found the child dependent. Id., at 1052.

      . This opinion in no way forecloses the mother from petitioning the court for a modification of its custody order of August 26, 1981.


text:
    October 2, 1981.
    438 A.2d 622
    Brown, etc. v. Bannon, etc., Appellants.
    Argued February 3, 1981.
    Penn B. Glazier, for appellants; John L. Lachall, for appellees.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Final decree affirmed.

POPOVICH, J., concurred in the result.


text:
    438 A.2d 622
    Commonwealth v. Bailey, Appellant.
    Petition for Allowance of Appeal Denied Dec. 18, 1981.
    Argued December 5, 1980.
    Marc Alan Krefetz, for appellant; Anne Lebowitz, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 622
    Commonwealth v. Bond, Appellant.
    Submitted February 3, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., concurred in the result.


text:
    438 A.2d 623
    Commonwealth v. Bossick, Appellant.
    Submitted March 21, 1980.
    Thomas J. Munley, Assistant Public Defender, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 623
    Commonwealth v. Brown, Appellant.
    Argued March 18, 1980.
    George Gershenfeld, for appellant; Mary Ann Killinger, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 623
    Commonwealth v. Brown, Appellant.
    Submitted May 22, 1981.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 624
    Commonwealth v. Buckwalter, Appellant.
    Argued February 3, 1981.
    Henry C. Haefner, for appellant; Michael H. Ranck, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., dissented.


text:
    438 A.2d 624
    Commonwealth v. Cummings, Appellant.
    Submitted March 9, 1981.
    Robert S. Blasi, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   The judgment of sentence is hereby affirmed.


text:
    438 A.2d 624
    Commonwealth v. Dayton, Appellant.
    Petition for Allowance of Appeal Denied Jan. 10, 1982.
    Argued January 26, 1981.
    Robert E. Gabriel, for appellant; Michele A. Goldfarb, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Judgment of sentence dated February 25, 1980 is affirmed.


text:
    438 A.2d 624
    Commonwealth v. Donley, Jr., Appellant.
    Argued February 3, 1981.
    R. S. Trigg, for appellant; Michael H. Ranck, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 625
    Commonwealth v. Dziedzina, Appellant.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.
    Submitted June 11, 1980.
    Dennis J. Cogan, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    441 A.2d 440
    Commonwealth v. Eberts, Appellant.
    Reargument Denied Jan. 2, 1982.
    Petition for Allowance of Appeal Denied March 18, 1982.
    Submitted March 19, 1980.
    John D. Kuhn, submitted a brief on behalf of appellant; Theodore B. Smith, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 625
    Commonwealth v. Jennings, Appellant.
    Submitted March 11, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   The judgment of sentence is hereby affirmed.


text:
    438 A.2d 625
    Comm-ley v. Kirk, Appellant.
    Argued January 13,1981.
    John J. Kirk, for appellant; Dara A. DeCourey, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   Order affirmed.


text:
    438 A.2d 626
    Commonwealth v. Kovalak, Jr., Appellant.
    Argued May 22, 1981.
    Linda R. Tallent, for appellant; Michael Oreski, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CERCONE, P. J., and MONTGOMERY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 626
    Commonwealth v. Larew, Appellant.
    Petition for Allowance of Appeal Denied Feb. 25, 1982.

      Submitted May 22, 1981.
    Michael J. Antkowiak, for appellant; F. Walter Bloom, District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed on the basis of the lower court opinion of President Judge William E. Breene.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 626
    Commonwealth v. Lindsey, Appellant.
    Petition for Allowance of Appeal Denied Dec. 21, 1981.
    Submitted June 13, 1980.
    William L. Kinsley, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 627
    Commonwealth v. Mann, Appellant.
    Argued December 5, 1980.
    William T. Cannon, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   The judgment of sentence is hereby affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 627
    Commonwealth v. McAfee, Appellant.
    Petition for Allowance of Appeal Denied Jan. 15, 1982.
    Submitted March 11, 1981.
    Burton A. Rose, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, DiSALLE and MONTGOMERY, JJ.
   Order affirmed.


text:
    438 A.2d 627
    Commonwealth v. McKinney, Appellant.
    Submitted March 10, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 627
    Commonwealth v. Mika, Appellant.
    Petition for Allowance of Appeal Denied Jan. 11, 1982.
    Argued May 20, 1981.
    Joseph M. Gula, for appellant; Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   The judgment of sentence is hereby affirmed.


text:
    438 A.2d 628
    Commonwealth v. Mitchell, Appellant.
    Petition for Allowance of Appeal Denied Dec. 22, 1981.
    Submitted March 10, 1981.
    Christopher G. Furlong, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   Order affirmed.


text:
    438 A.2d 628
    Commonwealth v. Myers, Appellant.
    Petition for Allowance of Appeal Denied Jan. 18, 1982.
    Submitted December 5, 1980.
    Gary S. Fronheiser, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 628
    Commonwealth v. Neely, Appellant.
    Petition for Allowance of Appeal Denied Jan. 11, 1982.
    Argued May 27, 1981.
    Daniel M. Preminger, for appellant; Nancy D. Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   Judgment of sentence affirmed.

WIEAND, J., concurred in the result.


text:
    438 A.2d 629
    Commonwealth v. Phillips, Appellant.
    Submitted April 20, 1981.
    John M. Corcoran, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   The judgment of sentence by the lower court is hereby affirmed.


text:
    438 A.2d 629
    Commonwealth v. Powellson, Appellant.
    Submitted March 9, 1981.
    Gary S. Fronheiser, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 629
    Commonwealth v. Sloneem, Appellant.
    Submitted March 9,1981.
    Joseph Sloneem, appellant, in propria persona; Gailey C. Keller, District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   Order affirmed.


text:
    438 A.2d 629
    Commonwealth v. Sweigart, Appellant.

      Submitted March 10, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 630
    Commonwealth v. Valentine, Appellant.
    Submitted June 13, 1980.
    Elaine DeMasse, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 630
    Commonwealth v. Wilson, Appellant.
    Submitted January 28, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Affirmed.


text:
    438 A.2d 630
    Commonwealth ex rel., Hunter v. Hunter, Appellant.
    Argued September 11, 1980.
    William B. Borrebach, Jr., for appellant; I. B. Sinclair, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    438 A.2d 631
    Commonwealth ex rel., Wray v. Wray, Appellant.

      Argued June 22, 1981.
    Warren R. Baldys, for appellant; Cleveland C. Hummel, for appellee.
    Before HESTER, CAVANAUGH and DiSALLE, JJ.
   Order affirmed.


text:
    438 A.2d 631
    Com. To Use Of Steiner v. Rosato, et al. Appeal of John W. Steiner, Jr.
    Argued November 11, 1980.
    Allen N. Brunwasser, for appellant; Norma M. Caquatto, for appelu lees.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 631
    Dodds v. Surety Indemnity Co., et al., Appellants.
    Petition for Allowance of Appeal Denied April 2, 1982.
    Argued June 11, 1980.
    John H. Potts, for appellants; Michael J. Pepe, Jr., for appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 631
    Garofalo, Appellant, v. Graney, et ux.
    Argued June 9, 1980.
    John A. Morano, for appellant; Todd J. O’Malley, for appellees.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 632
    Hawkins, Sr., Appellant, v. Corrado, etc., et al.
    Submitted November 14, 1980.
    Byrd R. Brown, for appellant; Louis Anstandig, for appellees.

      Before PRICE, DiSALLE and MONTEMURO, JJ.
   The order is affirmed on the comprehensive opinion of Judge Silvestri Silvestri.

Before PRICE, DiSALLE and MONTEMURO, JJ.

DiSALLE, J., concurred in the result.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 632
    In The Interest Of Elias Colon. Appeal of Elias Colon.
    Submitted March 21, 1980.
    William F. Ochs, Jr., Public Defender, for appellant; Michael J. Morrissey, District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 632
    Manning, etc., Appellant, v. Karsnak, etc.

      Argued November 13, 1980.
    G. N. Evashavik, for appellant; Daniel R. Delaney, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Judgment affirmed.


text:
    438 A.2d 633
    McCaslin, et ux. v. Excelsior Ins. Co. Of N. Y., Appellant.
    Argued September 8, 1980.
    Lester L. Greevy, Jr., for appellant; Richard Gahr, for appellees.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    438 A.2d 633
    McHugh, Appellant, v. Interstate Oil Trans. Corp., et al.
    Petition for Allowance of Appeal Denied Jan. 22, 1982.
    Argued September 10, 1980.
    Donald E. Matusow, for appellant; Stuart M. Goldstein, for Interstate Oil, appellee; Larry Richard Barron, for Mobile, appellee.

      Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Orders affirmed.


text:
    438 A.2d 633
    Meade Land and Development, et al., Appellants, v. Funk.
    Argued September 10, 1980.
    Paul J. Duca, appellants; Joseph G. Feldman, submitted a brief on behalf of appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    440 A.2d 1237
    Sabatasse, et ux. v. Tustin, et al., Appellants.
    Reargument Denied March 3, 1982.
    Argued November 12, 1980.
    Peter M. Suwak, for appellants; George Retos, Jr., for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   Order affirmed.


text:
    438 A.2d 633
    Souderton Shopping Center, Appellant, v. Acme markets.
    Argued December 4, 1980.
    Peter F. Baughman, for appellant; Scott D. Patterson, for appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   The order of the lower court is hereby affirmed.


text:
    438 A.2d 634
    Steele et ux. v. R. D. Baughman Coal, Co., Appellant.
    Argued November 11, 1980.
    Stuart J. Horner, Jr., for appellant; R. Thomas Strayer, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    438 A.2d 634
    Zabec, Appellants, v. General McLane School District.

      Argued November 12, 1980.
    Andrew J. Conner, for appellants; John M. Wolford, for appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    October 9, 1981.
    438 A.2d 634
    Baux, Appellant, v. Perella.
    Submitted November 11, 1980.
    John M. Grubor, for appellant; Frederick L. Segal, for appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    438 A.2d 634
    Borgard v. Borgard, Appellant.
    Argued February 17, 1981.
    Andrew F. Malone, for appellant; Joan B. Stuart, for appellee.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.

MONTEMURO, J., concurred in the result.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 635
    Cardinale v. Cardinale, Appellant.
    Argued May 28, 1981.
    John H. Broujos, for appellant; Arthur Goldberg, for appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   The order of the Cumberland County Court of Common Pleas awarding custody to the father is affirmed.


text:
    438 A.2d 635
    Commonwealth v. Bell, Appellant.
    Petition for Allowance of Appeal Denied Dec. 21, 1981.
    Argued June 11, 1980.
    Daniel M. Preminger, for appellant; Kenneth S. Gallant, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.

   Judgment of sentence affirmed.


text:
    438 A.2d 635
    Commonwealth v. Brown, Appellant.
    Petition for Allowance of Appeal Denied Jan. 18, 1982.
    Argued May 27, 1981.
    Elkin A. Tolliver, Jr., for appellant; Ellen Mattleman, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 636
    Commonwealth v. Burton, Appellant.
    Submitted May 26, 1981.
    Donald C. Marino, for appellant; Gaele McLaughlin Bart-hold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   The judgment of sentence is affirmed.


text:
    438 A.2d 636
    Commonwealth v. Campolei, Appellant.
    Submitted December 5, 1980.
    Arthur J. King, Assistant Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 636
    Commonwealth v. Hodgin, Appellant.
    Petition for Allowance of Appeal Denied May 5, 1982.
    Argued May 28, 1981.
    Robert J. Kerns, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 637
    Commonwealth v. Jackson a/k/a Pino a/k/a Jefferson, Appellant.
    Submitted March 2, 1981.
    Robert Lee Moore, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WICKERSHAM and BRO-SKY, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    438 A.2d 637
    Commonwealth v. Krajci, Appellant.
    Petition for Allowance of Appeal Denied Jan. 15, 1982.
    Argued December 5, 1980.
    Brian R. Williams, for appellant; Mark S. Gurevitz, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.

HOFFMAN, J., concurred in the result.


text:
    438 A.2d 637
    Commonwealth v. O’Hara, Appellant.
    Submitted December 5, 1980.
    Charles B. Swigart, for appellant; Daniel L. Howsare, District Attorney, for Commonwealth, appellee.
    Before HESTER, SHERTZ and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 637
    Commonwealth v. Sierra, Appellant.
    Submitted March 4, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WICKERSHAM and BRO-SKY, JJ.
   Judgment of sentence affirmed.


text:
    443 A.2d 366
    Evans, Appellant v. Davis, et al.
    Rehearing En Banc Denied April 13, 1982.

      Argued April 15, 1981.
    John R. Friedlander, for appellant; Ernest P. Dehaas, for appellees.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   Affirmed.

SHERTZ, J., filed a memorandum dissenting opinion.


text:
    438 A.2d 638
    Husack, Appellant v. Husack.
    Argued January 28, 1981.
    John R. Greisamer, for appellant; Michael J. Piosa, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   The order dated July 3, 1980 is affirmed.

CAVANAUGH, J., concurred in the result.


text:
    438 A.2d 638
    Lewis v. Lander’s Service, Inc., Appellant v. Leonard.
    Argued November 12, 1980.
    James P. McKenna, for appellant; John E. Evans, Jr., for appellees.

      Before HESTER, BROSKY and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    438 A.2d 638
    Estate of Neely, et al. v. Jack, Appellant.
    Petition for Allowance of Appeal Denied Feb. 26, 1982.
    Argued February 11, 1981.
    Joseph T. Strong, for appellant; M. L. McBride, Jr., for appellees.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   Order affirmed.

SHERTZ, J., concurred in the result.


text:
    438 A.2d 639
    Phelan v. Chambers Dam Assoc., Inc. Appeal of Jean McStea Phelan.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.
    Argued November 13, 1980.
    John W. McCreight, for appellant; William C. Porter, did not file a brief on behalf of appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 639
    Seay, Appellant v. Flewellen.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.
    Argued April 7, 1981.
    Joseph Mellace, for appellant; J. Vincent Roche, for appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    438 A.2d 639
    Vislocky et al. v. Gillenberger, Appellant v. Longo, Jr.
    Submitted May 22, 1981.
    P. Andrew Diamond, for appellant; James Villanova, for appellees.
    Before CERCONE, P. J., and MONTGOMERY and VAN der VOORT, JJ.
   The judgment and order of the lower court is affirmed.


text:
    October 16, 1981.
    438 A.2d 639
    Chorney, et al., Appellants v. Widener College, et al.

      Argued December 2, 1980.
    Michael T. McDonnel, Jr., for appellants; George J. McConchie, for Widener, appellee; Charles W. Craven, did not submit a brief on behalf of Day & Zimmerman, Inc., appellees; Joseph X. Heincer, did not submit a brief on behalf of Luppold, Inc., et al. appellees.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   The order of the lower court is hereby affirmed.

HOFFMAN, J., concurred in the result.


text:
    438 A.2d 640
    Commonwealth v. Bovell, Appellant.
    Petition for Allowance of Appeal Denied Feb. 24, 1982.
    Submitted December 5, 1980.
    Emil W. Kantra, II, for appellant; William H. Platt, District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   Orders affirmed.


text:
    438 A.2d 640
    Commonwealth v. Cable, Appellant.
    Submitted April 30, 1981.
    Nicholas H. Krayer, for appellant; Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and BROSKY and HOFFMAN, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    438 A.2d 640
    Commonwealth v. Capers, Appellant.
    Submitted March 11, 1981.
    Robert F. Pappano, Assistant Public Defender, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   The judgment of sentence is hereby affirmed.


text:
    438 A.2d 641
    Commonwealth v. Carey, Appellant.

      Submitted May 22, 1981.
    Basil M. Degrazia, for appellant; William M. Kern, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and MONTGOMERY and VAN der VOORT, JJ.
   The judgment of sentence is hereby affirmed.


text:
    438 A.2d 641
    Commonwealth v. Dorch, Appellant.
    Submitted December 5,1980.
    Robert J. Breslin, Jr., for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    438 A.2d 641
    Commonwealth v. Irvin, Appellant.
    Petition for Allowance of Appeal Denied Feb. 25, 1982.
    Argued December 2, 1980.

      Michael Borish, for appellant; Michele A. Goldfarb, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   The judgments of sentence of the lower court are hereby affirmed.


text:
    438 A.2d 641
    Commonwealth v. Mercer, Appellant.
    Argued June 11, 1980.
    Robert S. Esposito, for appellant; Nancy Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 642
    Commonwealth v. Norris, Appellant.
    Petition for Allowance of Appeal Denied Jan. 26, 1982.

      Argued March 19, 1980.
    Carol E. Haltrecht, Assistant Public Defender, for appellant; Robert J. Donatoni, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    438 A.2d 642
    Commonwealth v. Timmons, Appellant.
    Submitted May 27, 1981.
    Ronald Segal, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   The judgment of sentence of the court below is affirmed.