author: HOFFMAN, Judge:

text:
    524 A.2d 970
    COMMONWEALTH of Pennsylvania v. Kimberly WRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1987.
    Filed April 20, 1987.

      Deborah K. Hoff, Assistant Public Defender, Waynesboro, for appellant.
    John F. Nelson, III, District Attorney, Chambersburg, for Com., appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for driving under the influence of alcohol. Appellant contends that (1) the evidence was insufficient to support the verdict, and (2) the trial court erred in denying appellant’s motion to withdraw her waiver of the right to trial by jury. Because we find that appellant should have been allowed to withdraw her waiver of a jury trial, we reverse the judgment of sentence and order a new trial.

On November 26, 1984, appellant was arrested after an auto accident and charged with driving under the influence of alcohol. On May 13, 1985 she waived her right to a trial by jury after a full colloquy by the trial court. On May 16, 1985, appellant appeared for trial and made a motion to withdraw her earlier waiver of her right to a jury trial. The trial court denied the motion. After a bench trial, appellant was convicted of the charge. Her timely post-verdict motions were denied, and she was sentenced to forty-eight hours to twenty-three months incarceration and a $400.00 fine. This appeal followed.

Appellant contends that the evidence was insufficient to support the verdict. Specifically, she argues that the Commonwealth did not prove that she had consumed alcohol prior to the time of the accident. We disagree. In reviewing whether the evidence was sufficient to support the verdict, we must first determine whether, accepting as true all of the evidence reviewed in the light most favorable to the verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1258 (1986); Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982), cert, denied subnom Pennsylvania v. Lovette, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). To establish that a defendant is guilty of driving under the influence of alcohol, the Commonwealth must prove beyond a reasonable doubt that he or she was operating a motor vehicle while under the influence of alcohol to a degree which rendered the person incapable of safe driving, or with the amount of alcohol by weight in the blood in excess of 0.10% or greater. 75 Pa.C.S.A. § 3731(a)(1), (4). See also Commonwealth v. Slout, 288 Pa.Super. 471, 474 n. 4, 432 A.2d 609, 610 n. 4 (1981). Absent an abuse of discretion, it is within the province of the trier of fact to believe all, some, or none of the evidence. Commonwealth v. Eckert, 244 Pa.Super. 424, 429, 368 A.2d 794, 797 (1976).

Here, the arresting police officer testified that appellant admitted to drinking one-half of a bottle of wine prior to the accident. N.T. May 16, 1985 at 15. This admission was corroborated by another officer present during questioning. Id. at 66. Appellant and her boyfriend later testified that they had consumed the wine after the accident but before going to the hospital, id. at 86, 91, 99. However, we cannot hold that the trier of fact abused its discretion in resolving this conflict in favor of the Commonwealth. Commonwealth v. Griscavage, supra. Additionally, the officers testified that appellant smelled of alcohol at the time of questioning, N.T. May 16, 1985 at 8, 57, and that blood alcohol tests produced results above the proscribed level. N.T. May 16, 1986 at 57-58. We, therefore, find that the evidence was sufficient to support the verdict.

Appellant next contends that the trial court erred in denying her motion to withdraw her waiver of a jury trial. We agree. The right to a trial by jury for non-petty criminal offenses is a fundamental principle of American law. U.S. Const, amend. VI; Pa. Const, art. I, §§ 6, 9; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Commonwealth v. Boyd, 461 Pa. 17, 25 n. 5, 334 A.2d 610, 614 n. 5 (1975). A criminal defendant may waive his or her right to a jury trial provided that the waiver is knowing and voluntary. Pa.R.Crim.P. 1101. See also North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Commonwealth v. Hines, 496 Pa. 555, 559, 437 A.2d 1180, 1182 (1981). Because a defendant’s waiver concerns a fundamental right, our rules provide:

At any time prior to the commencement of trial the defendant may withdraw his waiver of a jury trial. Thereafter, at any time prior to verdict the trial judge on his own motion may order the withdrawal of such waiver or permit the defendant, upon motion, to withdraw his waiver.

Pa.R.Crim.P. 1102(b). This rule provides that at any time prior to the commencement of trial a defendant has an absolute right to withdraw his or her waiver of the right to trial by jury. Commonwealth v. Kennedy, 271 Pa.Superior Ct. 1, 9, 411 A.2d 1249, 1253 (1979); Commonwealth v. Fulton, 268 Pa.Superior Ct. 547, 552, 408 A.2d 1138, 1140 (1979). After commencement of trial, any withdrawal of such a waiver is within the sound discretion of the trial court. See, e.g., Commonwealth v. Starks, 298 Pa.Superior Ct. 213, 219, 444 A.2d 736, 739 (1982). The threshold determination, therefore, is when trial can be said to have commenced for the purposes of Pa.R.Crim.P. 1102(b). There exists no Pennsylvania case or rule directly dispositive of this question. We are guided, however, by the determination of a similar issue relative to the commencement of trial under Pa.R.Crim.P. 1100.

Rule 1100(a)(2) mandates that a criminal trial commence within 180 days after the filing of a complaint. Commencement, for the purposes of the rule, has been interpreted to mean:

[Wjhen the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial or to the taking of testimony, or to some other such first step in the trial.

Id., comment. See also Jones v. Commonwealth, 495 Pa. 490, 495, 434 A.2d 1197, 1199 (1981); Commonwealth v. Fooks, 345 Pa.Superior Ct. 145, 149, 497 A.2d 1346, 1348 (1985). This interpretation is based upon the principle that the commencement of trial should be “marked by a substantive, rather than a pro forma, event.” Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) (EAGEN, C.J., concurring). This principle should also apply to Rule 1102(b), particularly since our determination will have a profound effect upon a fundamental right — trial by jury. Seen in that light, it seems especially appropriate that in limiting a defendant’s right to withdraw his waiver of the right to trial by jury we do so upon a “substantive” and not “pro forma” basis.

Here, appellant attempted to withdraw her waiver of the right to a jury trial in the following way:

MR. NELSON (District Attorney): Your Honor, we call the case of Commonwealth versus Kimberly Wright. THE COURT: Very well.
MS. HOFF (Defense Counsel): Your Honor, could we approach the bench?
THE COURT: Certainly.
$ 3: $ * * *
MS. HOFF: Your Honor, at this time on behalf of the defendant in this case I would like to request that the jury waiver which was executed on Monday, May 13, 1985, be withdrawn and that the case be continued until the July term of court. The defendant is willing to waive Rule 1100 from this date until the beginning of the July term. She does feel that proceeding before a jury would be in her best interest and that she would like to proceed that way at this point, Your Honor.
* * * * * *
THE COURT: ... your request is denied. You may proceed. You may call your first witness.

N.T. May 16, 1985. Appellant’s request was the first order of business after the case had been called. Clearly, the trial had commenced in only a pro forma way. The trial court had not directed that opening arguments begin, testimony start, or motions reserved for trial be argued. Thus, no substantive step had been taken in the trial. Under this analysis, therefore, trial had not commenced for the purposes of Rule 1102(b) and appellant had an absolute right to withdraw her waiver of the right to a trial by jury. Commonwealth v. Kennedy, supra; Commonwealth v. Fulton, supra. Accordingly, we hold that the trial court erred in refusing to allow appellant to withdraw her waiver. The judgment of sentence is reversed and a new trial is ordered.

Judgment of sentence is reversed and a new trial is ordered. Jurisdiction is relinquished.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    524 A.2d 973
    COMMONWEALTH of Pennsylvania v. William RUE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 26, 1987.
    Filed April 27, 1987.

      Robert S. Robbins, Philadelphia, for appellant.
    Jane C. Greenspan, Stuart Wilder, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.

      Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence imposed after a jury found appellant, William Rue, guilty of simple assault, rape and involuntary deviate sexual intercourse. Appellant was sentenced to three (3) to six (6) years imprisonment on the charges of rape and involuntary deviate sexual intercourse, to be served concurrently. Sentence was suspended for simple assault. This appeal followed.

In January, 1984, the victim, Lillian Bersin, went out to buy some milk for her children. After she bought the milk, Joseph Bozine, the appellant’s brother-in-law, a man whom the victim recognized from around the neighborhood, offered to drive her home. Instead of taking her home, he brought her to appellant’s residence, where she was forced to remain for three days. The victim’s clothing was taken and hidden from her. She was ordered to have sex with appellant and was told that if she refused, appellant would harm her and her children. Appellant threatened to blow up her house and told the victim that he was a member of the Mafia. The victim testified that there were other people in the house while she was held there and that one of them eventually helped her leave the apartment.

The victim reported the crime to the police. A physical examination was performed which revealed bruises all over her body, a second degree burn on her thigh, and abrasions and sperm in the genital area.

Appellant raises four issues on appeal: (1) whether the trial court erred in refusing a requested jury instruction on character evidence; (2) whether the trial court erred in refusing to instruct the jury that “forcible compulsion” as used to define rape and involuntary deviate sexual intercourse is equivalent to physical compulsion and not psychological duress; (3) whether the lower court improperly disallowed the use of preliminary hearing notes to impeach the victim’s testimony; and (4) whether the evidence was sufficient to support the verdict? We find that the trial court committed no error. Accordingly, judgment of sentence is affirmed.

Appellant’s first contention on appeal is that the trial court erred in refusing a requested jury instruction which would have informed the jury that evidence of good character, in and of itself, may be sufficient to justify an acquittal. Appellant claims that during the trial, the appellant’s brother-in-law (the man who brought the victim to the place where she was raped) testified as to the appellant’s good reputation within the community. The relevant testimony on direct examination was as follows:

Q. What is your relationship to William Rue?
A. I’m married to Bill’s sister.
Q. How long have you known him?
A. Eighteen, nineteen years.
Q. Do you know other people who know him?
A. Lots of people, sure.
Q. Among the people who know him, what would his reputation be for being a peaceful, law abiding citizen?
A. Bill’s never been arrested, as far as I know. I mean he’s never bothered anybody. He’s disabled and he lives alone.
Q. Have you heard bad things about him?
A. No.
On cross examination of appellant’s brother-in-law, the prosecuting attorney asked,
Q. Basically you are here to testify to the good character of your wife’s brother; is that correct?
A. He’s a good guy, he is.
This was the totality of character evidence offered during the two day trial.

It has long been the law in Pennsylvania that a criminal defendant is permitted to introduce evidence of his good reputation. Commonwealth v. Luther, 317 Pa.Superior Ct. 41, 463 A.2d 1073 (1983); Commonwealth v. Castellana, 277 Pa. 117, 121 A. 50 (1923). Such evidence has been allowed on a theory that general reputation reflects the character of the individual and a defendant in a criminal case is permitted to prove his good character in order to negate his participation in the offense charged. Commonwealth v. Luther, supra. The importance of this evidence is demonstrated by the requirement that a jury be instructed that such evidence, in and of itself, may be sufficient to justify an acquittal. Commonwealth v. Schultz, 335 Pa.Superior Ct. 306, 484 A.2d 146 (1984).

However, it is equally well established that a trial judge is not obliged to instruct a jury upon legal principles which have no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at the trial. Commonwealth v. Coleman, 402 Pa. 238, 166 A.2d 525 (1961). We find that during the course of appellant’s trial, there was no proof of reputation for good character. There was only testimony that the appellant had never been arrested and good character cannot be shown by the absence of a criminal record. Commonwealth v. Presbury, 329 Pa.Superior Ct. 179, 478 A.2d 21 (1984). Furthermore, appellant’s brother-in-law demonstrated no knowledge of appellant’s reputation in the community and could express only his personal opinion regarding appellant’s character. See id. This does not amount to character evidence warranting a jury instruction.

Appellant also contends that the trial court erred in refusing to instruct the jury that “forcible compulsion” as used to define rape and involuntary deviate sexual intercourse is equivalent to physical compulsion and not psychological duress. Appellant contends that the victim was held against her will and raped solely through the use of psychological force. He relies on Commonwealth v. Mlinarich, 345 Pa.Superior Ct. 269, 498 A.2d 395 (1985), petition for allowance of appeal granted, 512 Pa. 115, 516 A.2d 229 (1986), an en banc decision which held that the term “forcible compulsion” requires physical compulsion or violence or a threat of physical compulsion or violence sufficient to prevent resistance by a person of reasonable resolution. The court concluded that a threat to withdraw custodial care and return a juvenile to a detention home did not amount to “forcible compulsion” and therefore, the rape conviction was vacated.

We find the facts of the Mlinarich case distinguishable from those in the case sub judice; the threats used to frighten the victim in the instant case were of a violent nature; she was told that if she did not cooperate, appellant would hurt her children and blow up her house. The court in Mlinarch framed the issue before it as follows: “Did the legislature intend to include within the crime of rape acts of sexual intercourse induced by threats to do non-violent acts?” (emphasis supplied) Commonwealth v. Mlinarich, supra, 345 Pa.Superior Ct. at 271, 498 A.2d at 396. The court concluded that threats of non-violent acts did not constitute sufficient force for rape. Since that holding is limited to threats of non-violent acts, it is not applicable to this case.

Furthermore, a trial court is not required to accept a requested instruction verbatim so long as the court’s charge adequately, accurately and clearly explains the principles of law to the jury. Commonwealth v. Larkins, 340 Pa.Superior Ct. 56, 489 A.2d 837 (1985). The trial judge denied appellant’s requested instruction in favor of the standard jury charges for the crimes involved. The charge was a fair, accurate and complete statement of the law; no reversible error occurred.

The appellant’s next assignment of error is that the court improperly disallowed the use of preliminary hearing notes to impeach the victim’s testimony during trial. At the preliminary hearing, the victim was asked with whom she had intercourse, and she indicated appellant. She was not asked whether she had also had intercourse with others present in the apartment and she was silent on this point. During her trial testimony the victim stated that she was forced to have sex with several people during the ordeal.

Appellant contends that the preliminary hearing testimony and the trial testimony “directly and materially” contradicted each other. Defense counsel attempted to impeach the victim by way of implying an inconsistency in her testimony when in actuality there was none. Omissions of facts in prior statements do not render them inconsistent statements which may be used for purposes of impeachment at trial. Commonwealth v. Hammond, 308 Pa.Superior Ct. 139, 454 A.2d 60 (1982). The extent of cross-examination is within the discretion of the trial judge, Commonwealth v. Vander Weele, 356 Pa.Superior Ct. 152, 514 A.2d 189 (1986); Commonwealth v. Hammond, supra, and the trial court properly exercised its discretion on this issue.

Appellant’s final contention is that the evidence was insufficient to support the verdict. The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. McGinnis, 336 Pa.Superior Ct. 601, 486 A.2d 428 (1985). After a thorough review of the trial transcript, we are convinced that the facts proved by the Commonwealth in this case were sufficient to support the jury’s finding that appellant committed simple assault, rape and involuntary deviate sexual intercourse.

Judgment of sentence is affirmed.

      . Three months after the trial in the instant case, the Supreme Court of Pennsylvania held that forcible compulsion as used in the rape statute includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). Therefore, appellant would certainly not be entitled to his requested instruction under the current law. When submitted points for charge do not represent accurate statements of the law, the trial court acts properly in refusing them. Crotty v. Reading Industries, Inc., 237 Pa.Superior Ct. 1, 345 A.2d 259 (1975); Richardson v. LaBuz, 81 Pa.Commonwealth Ct. 436, 474 A.2d 1181 (1984).


author: CIRILLO, President Judge:

text:
    524 A.2d 976
    COMMONWEALTH of Pennsylvania v. Ralph C. BLANKENBILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1987.
    Filed April 28, 1987.

      Lawrence J. Hracho, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.

      Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Berks County. After a jury trial, appellant, Ralph Blankenbiller was found guilty of “owning, controlling, managing, supervising or otherwise keeping, alone or in association with others, ... a prostitution business.” 18 Pa.C.S. § 5902(b)(1). The defendant was sentenced to a period of incarceration of three to twelve months. We reverse.

On appeal, the appellant presents four issues for our review: (1) whether the evidence presented was sufficient to sustain a verdict of guilty; (2) whether there was sufficient evidence linking the defendant with the alleged prostitution to establish a prima facie case against him in order to deny the writ of habeas corpus; (3) whether the trial court abused its discretion in charging the jury with the lesser included offense of criminal attempt to promote prostitution when neither party had notice of such a charge; and (4) whether the trial court erred in permitting hearsay testimony under the co-conspirator exception to the hearsay rule. Because we find for the appellant on the first issue, we need not review the other issues.

Appellant argues that the evidence was insufficient to sustain a conviction of promoting prostitution. The standard of review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences in their favor, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 305, 489 A.2d 1340, 1342 (1985).

On June 3, 1984, there was a large party at the recently closed restaurant known as Rasputin’s in West Lawn, Berks County, Pennsylvania. The party was for the benefit of Rasputin’s softball team. The appellant had paid for the team uniforms several months before the party. The $15 ticket for admission to the party entitled each purchaser to beer, snacks and a go-go dancer show. Two undercover state troopers from the vice squad attended the party after purchasing tickets for the event at the Tenth and Marion Cafe in Reading. The appellant was an officer in corporations that owned both Rasputin’s Restaurant and the Tenth and Marion Cafe.

At trial, the state troopers testified that in the course of the afternoon’s entertainment there were continuing announcements over the speaker system to the effect that sex was available for money. The appellant was seen in the vicinity of the speaker system during some of the announcements. Two of the nine women who attended the party also testified at the trial. Buffy St. Clair, the woman who ran a booking agency for the go-go dancers, stated that she had hired four women to do the dancing at $150 each and that she was paid $100 for making the arrangements and acting as a hostess. She brought four other women along for purposes of prostitution. The second woman who testified stated that she had turned two “tricks” that afternoon and that she had the responsibility of collecting $5 per trick from each of the other girls. The money was to be used to benefit the softball team. She also testified that she did not give the money to the appellant, nor did she even know who he was.

In order to sustain the conviction for promoting prostitution, this Court must be satisfied that the evidence was sufficient to convince the jury beyond a reasonable doubt that the Commonwealth proved: (1) that there was a prostitution business; and (2) that the accused had a connection with the “running, control, supervision or keeping of the prostitution business.” 18 Pa.C.S. § 5902(b). We find that the Commonwealth has met its burden of proving, beyond a reasonable doubt, that there was a prostitution business in progress on the afternoon of June 3, 1984. Our Supreme Court has defined prostitution as “sexual relations for hire.” Commonwealth v. Miller, 469 Pa. 24, 28, 364 A.2d 886, 887 (1976). Furthermore, this court has found that a “business” is “a commercial activity engaged in for gain.” Commonwealth v. Potts, 314 Pa.Super. 256, 271, 460 A.2d 1127, 1135 (1983) (defendant who agreed to engage in sexual activity and accepted an advance payment of $140 was engaged in prostitution as a business). However, we find that the evidence is not sufficient to prove beyond a reasonable doubt that the appellant had a connection with the “running, control, supervision or keeping” of that business.

Though it is clear that a prostitution business was operating at the date and time in question, the Commonwealth did not prove that the appellant received any income from the business. While a criminal conviction may rest upon wholly circumstantial evidence, it may not be based upon mere surmise or conjecture. Commonwealth v. Stores, 317 Pa. Super. 109, 117, 463 A.2d 1108, 1112 (1983).

Appellant alleges that he was merely present at the scene of the offense. The mere presence of a person at the scene of a crime does not establish that person’s guilt. Commonwealth v. Smith, 490 Pa. 374, 377, 416 A.2d 517, 518 (1980). There must be additional facts which point to that individual’s active participation in the crime. See, e.g., Commonwealth v. Juliano, 340 Pa.Super. 501, 490 A.2d 891 (1985) (mere presence of appellant in car containing closed satchel of controlled substance, is not strong factor indicative of guilt); Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286 (1984) (mere presence at scene of crime is insufficient to support conviction; evidence indicating participation in the crime is required); Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1983) (neither mere presence at scene of crime nor mere association with perpetrator is sufficient to infer participation in crime).

The Commonwealth presented the following evidence as proof of the appellant’s active participation in the crime: (1) one month before the party the appellant was president and director of the company that owned the property where the party took place; (2) the appellant was president and secretary of the company that owned the Tenth and Marion Cafe in Reading where the party tickets were on sale preceding the event in question; (3) a number of months before the party the appellant had paid for uniforms for the softball team, the organization that benefitted from the proceeds of the event; (4) the appellant was seen taking a roll of money from one of two men who spoke with him in the parking lot; (5) the appellant was seen selling one ticket; (6) the appellant helped two of the girls carry their bags into the building before the party; and (7) the appellant was present when the announcements of girls for hire were made. Even when viewed as a unit, these facts do not support appellant’s conviction.

It is unreasonable to infer, from the fact that he either had allowed the party organizers to sell tickets at the restaurant or had allowed the use of the property for the party, that the appellant ran, controlled, supervised, or kept a prostitution business at the party. The Commonwealth did not produce any evidence that appellant told anyone that prostitutes would be available at the event. Nor has it been shown that he personally made any of the “arrangements” with the women in question. The Commonwealth also failed to demonstrate that he took part in any way in the illicit activities on the day of the party. The evidence shows only that the appellant was present while the crimes took place and that he had helped promote the party. These facts do not make him criminally responsible for everything that occurred at the event. As discussed above, mere presence does not establish guilt. Smith, 490 Pa. at 377, 416 A.2d at 518.

The Commonwealth’s additional evidence that allegedly links the appellant to the prostitution activities was the testimony by Chief of Police Schlegel of Spring Township. He and one of his officers had watched the entryway to Rasputin’s from the first floor of a neighboring house, which was about fifty-five feet away. He stated that with the use of binoculars he had observed the appellant outside the door of Rasputin’s from 1:30 to 5:30 p.m., except for a few brief periods when the appellant went inside. On one occasion, Schlegel saw the appellant take a ticket from someone. At 3:45 p.m. he saw the appellant talk to two men in the parking lot, take a roll of bills from one of the men, and place the money in his truck. There was no evidence indicating why this money was given to the appellant nor was there any evidence as to the identity of the two men. The woman who collected the $5 kickbacks from the girls for the softball team testified that she collected the money from the “early afternoon until 5:00.” If she turned over the kickback money at 5:00 p.m., it was one hour and fifteen minutes after the troopers saw a man give the roll of money to the defendant. This evidence does not merit the inference that the money received was from the prostitution activities. See Commonwealth v. Robertson, 178 Pa.Super. 281, 288, 116 A.2d 224, 228 (1955) (court found evidence insufficient to prove acceptance of bawd money where girl testified that before she went upstairs to have intercourse with a man she saw him hand some money to defendant). It is at least equally reasonable to infer that the money that was given to the appellant was the proceeds from the ticket sales, a rental fee for the premises, or a reimbursement for food and drink. See Commonwealth v. Key, 342 Pa.Super. 31, 34, 492 A.2d 48, 49 (1985), (A conviction will not stand when the circumstantial evidence is as consistent with innocence as it is with guilt.)

The Commonwealth asserts that the appellant’s active involvement in the prostitution business can be inferred from the fact that he helped two of the girls carry their bags from the car into the building and from the fact that he was present during the microphone announcements of “sex for hire.” One could reasonably infer that appellant knew that the girls were there for dancing; it is likely that this fact was known by anyone attending the party. This inference, however, does not logically lead to the conclusion that appellant had something to do with the arrangements for the prostitution business. The “hostess,” who knew the appellant previously, stated that she had made the party arrangements with Chip Savini, who was the manager of the softball team. Both of the women who testified stated that the girls themselves told the guests that sex was available, that the appellant had not made any of the announcements on the public address system, and that none of the entertainment arrangements, including the prostitution arrangements, had been made with the appellant.

Upon close examination, it is apparent that the Commonwealth’s entire case is built upon a fragile house of cards, supported by surmise, conjecture and far-fetched inferences. See Stores, 317 Pa.Super. at 109, 463, 463 A.2d at 1112. This faulty structure is far too weak to provide the basis for a criminal conviction.

Although prostitution clearly occured at the party, there is no evidence of the appellant’s participation in a conspiracy to commit that crime, nor is there evidence to show that he was in any way connected with that business. It would appear that the instant conviction is a case of guilt by association. The evidence demonstrates that only appellant was in the wrong place at the wrong time. That does not constitute proof beyond a reasonable doubt that he committed the alleged crime.

Accordingly, the judgment of sentence is vacated. Jurisdiction is relinquished.

ROWLEY, J., notes dissent.


text:
    524 A.2d 980
    Santos GARCIA, Appellant, v. COMMUNITY LEGAL SERVICES CORPORATION.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1987.
    Filed April 28, 1987.
    Reargument Denied July 10, 1987.

      Daniel A. Rendine, Philadelphia, for appellant.
    Janel W. Mason, Assistant Public Defender, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   CIRILLO, President Judge:

This is an appeal from the grant of defendant’s motion for summary judgment by the Court of Common Pleas of Philadelphia based on a statute of limitations defense in an action alleging legal malpractice. We affirm.

Appellant, Santos Garcia, owns a home in Philadelphia which allegedly was damaged through demolition work at an adjacent property during November, 1977. Appellee, Community Legal Services Corporation (CLS), represented Mrs. Garcia in her attempts to recover for the property damage. She later retained a private attorney, Jack M. Bernard, who instituted suit on April 2, 1981 against the company which had performed the demolition work.

The statute of limitations for trespass to real property was three years until the legislature shortened the period to two years, effective June 27, 1978. The new statute provided that, wherever the limitation period was reduced, an action must be brought within one year after the effective date of the statute or the period provided for under the old statute, whichever is less. Therefore, the statute expired on Mrs. Garcia’s claim on June 27, 1979.

During that time period, she was represented by CLS. She later retained Mr. Bernard, who filed suit in April, 1981 because he felt that it was possible to make a viable legal argument that the statute applicable to Mrs. Garcia’s claim was 42 Pa.C.S. § 5536, which provided a twelve year period to file claims. However, on August 28, the Superior Court filed a decision holding that § 5536 was a statute of repose with no effect upon the provisions of § 5524. See Mitchell, v. United Elevator Co. Inc., 290 Pa.Super. 476, 434 A.2d 1243 (1981). Based on Mitchell, the trial court dismissed Mrs. Garcia’s action on October 2, 1981 as barred by the statute of limitations. Bernard was notified by the court of the entry of judgment against his client on October 5, 1981. He then mailed Garcia a letter explaining the court’s action. However, because she does not read English, Garcia was allegedly unaware of the contents of the letter until it was translated for her on October 19, 1981.

Mrs. Garcia commenced the present action on October 6, 1983. She filed a complaint in trespass, alleging that CLS acted negligently in failing to bring an action to recover for the damage to her home before the applicable statute of limitations expired.

CLS filed a motion for summary judgment, asserting that Mrs. Garcia’s malpractice claim was governed by a two year statute of limitation (42 Pa.C.S. § 5524). They claimed that her action should have been brought no later than two years after October 2, 1981, the date summary judgment was entered in the earlier proceeding. The trial court granted the motion and Mrs. Garcia appealed to this court.

Appellant presents two issues for our review: (1) whether the trial court erred in holding that the two year statute of limitation applies to her claim for legal malpractice; and, (2) whether the trial court erred in granting summary judgment because there is a genuine issue of material fact as to when the appellant reasonably discovered the existence of her malpractice claim. Because of our disposition of this matter, we need not address these issues separately.

Mrs. Garcia argues that the trial court erred in dismissing her action. She claims that the relevant statute of limitations is either the four year period of 42 Pa.C.S.A. 5525(4) or the six year period of 42 Pa.C.S. § 5527(6). Section 5524(4) is applicable to implied contracts while § 5527(6) is a catchall provision for all civil actions not subject to a specific statute of limitation. CLS asserts that we should apply the two year period specified in § 5524. This section provides in pertinent part:

The following actions and proceedings must be commenced within two years: ... (3) An action for taking, detaining or injuring personal property____

42 Pa.C.S.A. § 5524(3).

Mrs. Garcia counters that even if we apply the two year period of § 5524, the statute was tolled until October 12, 1981 because that is when she was first able to reasonably discover that she possessed a cause of action against CLS. Because her claim was instituted on October 6, 1983, she argues that it was timely filed within two years of the date the statute started to run.

An action for legal malpractice may be brought in either contract or tort. Guy v. Liederbach, 501 Pa. 47, 55, 459 A.2d 744, 748, (1983). See also Trice v. Mozenter, 356 Pa.Super. 510, 520, 515 A.2d 10, 15 (1986); Hoyer v. Frazee, 323 Pa.Super. 421, 425, 470 A.2d 990, 992 (1984) Duke & Co. v. Anderson, 275 Pa.Super. 65, 70, 418 A.2d 613, 616 (1980).

But, at the time Mrs. Garcia instituted the present suit against CLS, the applicable Pennsylvania rules of pleading provided in pertinent part:

If a transaction or occurrence or a series of transactions or occurrences gives rise to causes of action in assumpsit and trespass against the same person ... they shall be joined in an action against any such person in separate counts. Each count shall specify whether the cause of action stated therein is in assumpsit or trespass....

Pa.R.Civ.P. 1020(d)(1).

If a plaintiff fails to properly plead separate causes of action, the cause he did not plead is waived. Bachman v. Artinger, 285 Pa.Super. 57, 60, 426 A.2d 702, 703 (1981). See also Pa.R.Civ.P. 1020, Note of the Procedural Rules Committee (a) (“Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action”).

Mrs. Garcia’s complaint in the matter before us was designated a “complaint in trespass.” She alleged that CLS negligently represented her and she did not include a count in assumpsit. Because an action for breach of contract was formerly a claim in assumpsit, Mrs. Garcia’s failure to designate such a count in her complaint constituted a waiver of that cause of action. Therefore, Mrs. Garcia may not assert a claim for breach of an implied contract and § 5525(4) is inapplicable to this matter. The relevant statutory period is either two years as specified in § 5524 or six years as provided in § 5527.

In Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841 (1983), a panel of this court applied the two year statute for “injuries to the person” to an action for legal malpractice. Id., 313 Pa.Superior Ct. at 270, 459 A.2d at 844. Moore had been found guilty of murder and sentenced to life imprisonment. He alleged that his attorney’s negligent conduct of the trial was the cause of his conviction and imprisonment. Id. The court held that the nature of the plaintiff’s asserted injury governs which statute of limitations applies in a particular malpractice case. Id. See also Murray v. University of Penna. Hosp., 340 Pa.Super. 401, 405, 490 A.2d 839, 841 (1985). Moore claimed that he had been injured by virtue of his conviction and incarceration. The court observed that personal injury includes any invasion of personal rights. If a person is wrongfully labeled a murderer his personal rights have been invaded much like those of a person who has been libeled. The same holds true for a person who has been wrongfully imprisoned. In such a case the plaintiff’s complaint is that he is not free to come and go as he pleases. This is similar to a person alleging the tort of false imprisonment. Id.

In the instant case, Garcia alleges that CLS mishandled her earlier claim against the demolition company. She asserts that these mistakes resulted in the loss of monies she would have received if CLS had handled her claim properly. The injury claimed by Garcia is the damage to her cause of action against the demolition company. Unlike Moore, she has not alleged any injury to her person. Her complaint does not contain any recitation of injury to her reputation or emotional distress and suffering or harm to her physical well-being. Therefore, resolution of this issue hinges upon the proper interpretation of the phrase, “taking, detaining or injuring personal property”. See 42 Pa. C.S. § 5524(3). If the damage to Mrs. Garcia’s cause of action is an injury to personal property, the two year statute applies. If it is not such an injury, the six-year catchall provision of § 5527 applies.

Mrs. Garcia claims that the Pennsylvania legislature intended that the six year period control actions of this type. She notes that prior to the 1978 amendment of the Judicial Code, a six year statute of limitations had applied to legal malpractice actions for over a century. She argues that based upon accepted principles of statutory construction, a court should not change the legal effect of a statute without a clear indication of legislative intent. Commonwealth v. Miller, 469 Pa. 24, 27, 364 A.2d 886, 887 (1976). She also states that in 1983, the legislature reamended the Judicial Code to provide such a clear change. Under the present version of § 5524, the period of limitation for a tort action for legal malpractice is two years. See 42 Pa.C.S. § 5524(7). At the time of this amendment, the legislature provided that it would become effective in February, 1983 or 60 days after its enactment. Mrs. Garcia cites the maxim that subsequent acts of a legislative body may be probative as to an earlier legislative intent. Barnes v. Cohen, 749 F.2d 1009 (3d Cir.1984). She asserts that the legislature’s prospective application of the 1983 amendment indicates that the new legislation was intended as a change in the law. If it did not alter the then existing law, there was no reason for the legislature to announce that it was effective only in the future. If the legislature intended the 1983 amendment to change the statutory period to two years, then it is logical that the period which was previously in effect was not two years.

But, legislative intent is only relevant to statutory construction when the statutory language is ambiguous. If the language is clear and unambiguous, it is to be interpreted in accord with its plain and ordinary meaning. Barasch v. Pennsylvania Public Utility Comm., 507 Pa. 430, 439, 490 A.2d 806, 810 (1985).

Personal property is defined as:

[E]verthing that is the subject of ownership, not coming under determination of real estate. A right or interest in things personal ... or any right or interest which one has in things movable.
The term “personal property” in its broadest legal signification includes everything the subject of ownership not being land or any interest in land, as goods, chattels, money, notes, bonds, stocks and choses in action generally, including intangible property.

Black’s Law Dictionary 1096 (5th ed. 1979).

Injury is defined as:
Any wrong or damage done to another, either in his person, rights, reputation or property.
Civil Injury is defined as:
Injuries to person or property ... which may be redressed by means of a civil action.

Id. at 706.

Juxtaposition of these definitions demonstrates that the ordinary meaning of an injury to personal property includes damage to a chose in action which may be redressed by means of a civil action. Mrs. Garcia is complaining that her chose in action against the demolition company was damaged in that she lost its potential value and she is seeking redress through a civil action. Based on a plain reading of the statutory language, Mrs. Garcia’s claim is encompassed within the scope of § 5524(4).

In order to arrive at a different result, we would be forced to adopt a very constrained and artificial interpretation of the section. We would have to read “injuring” as meaning physical injury instead of the broader definition meaning damage or loss in value. However, it is a canon of statutory construction that a court has no power to insert a word into a statute if the legislature has failed to supply it. Worley v. Augustine, 310 Pa.Super. 178, 183, 456 A.2d 558, 561 (1983). If the legislature intended to restrict the provision in question to “physical” injuries, it should have used the qualifying term. The difference between “injury” and “physical injury” is so great that we cannot assume the legislature failed to distinguish the terms.

We have changed the legal effect of § 5524 but we did so because the wording of § 5524(3) is unambiguous. Therefore, we believe that it does express a clear legislative intent. The 1983 amendment may also be interpreted as supporting our decision. It can logically be viewed as a clarification of the legislature’s earlier intentions. It simply made clear a matter which the legislature intended to resolve in 1978. Subsequent to that time, the legislature observed that some persons believed the provisions were unclear. The lawmakers then re-legislated that which they had intended to settle in 1978. The prospective effective date was nothing more than a safeguard to protect litigants in case amended § 5524 was eventually interpreted as including a broader range of causes of action than its prior version.

A common sense interpretation of the legislature’s 1978 intent also supports our conclusion. Section 5524 was made applicable to causes of action resulting from alleged negligence. Claims arising from written documents such as contracts were given longer periods of limitation. This distinction is logical since the purpose of a statute of limitations is to bar stale claims and avoid problems of proof arising from stale memories. It is more likely that problems of proof will occur in negligence cases which may not involve written documents. Therefore, it makes sense that the legislature intended all such actions not expressly covered elsewhere, including those for legal malpractice, to be governed by § 5524. We see no reasonable justification for treating legal malpractice differently from other claims sounding in negligence. Yet, that would be the result if we accepted Mrs. Garcia’s arguments.

The logic of our holding is buttressed by our review of similar cases from other jurisdictions. See, e.g., Mazzanti v. Merck & Co., Inc., 770 F.2d 34 (3d Cir.1985) (tortious interference with a contract held to be damaging personal property); In re Bobroff, 37 B.R. 847 (B.R.E.D.Pa.1984) (in Pennsylvania two year statute is the general statute for tort claims); Shideler and Barnes v. Dwyer, 275 Ind. 270, 417 N.E.2d 281 (1981) (chose in action is personal property for statute of limitation purposes); Cordial v. Grimm, 169 Ind.App. 58, 346 N.E.2d 266 (Ind.App. 3d Dist.1976) (alleged malpractice involving workmen’s compensation claim held to be “damage to personal property”); Hood v. McConemy, 53 F.R.D. 435 (D.Del.1971) (legal malpractice is tort action for injury to personal property).

As noted previously, Mrs. Garcia asserts that even if the applicable statute is two years, her claim was timely because the statute was tolled until October 12, 1981. She argues that her claim was timely because it was filed on October 6, 1983, six days before the statute was to expire. We disagree.

In Pennsylvania, the statute of limitations is triggered upon occurrence of the alleged breach of duty. Moore v. McComsey, 313 Pa.Super. 264, 270, 459 A.2d 841, 844 (1983). In this case, CLS supposedly breached its duty to Mrs. Garcia when it allowed the statute to run on her underlying claim for damage to her property. This took place on June 27, 1979. Therefore, unless the statute’s operation was tolled, it expired long before Mrs. Garcia brought suit on October 6, 1983.

The Pennsylvania Rules of Civil Procedure provide in pertinent part:

summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Pa.R.Civ.P. 1035.

In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Any doubt must be resolved against the moving party. Helinek v. Helinek, 337 Pa.Super. 497, 487 A.2d 369 (1985). Summary judgment may only be entered in a case that is clear and free from doubt. Rossi v. Pennsylvania State Univ., 340 Pa.Super. 39, 45, 489 A.2d 828, 831 (1985).

Resolving all issues of material fact in favor of Mrs. Garcia as the non-moving party, we find the statute was tolled until October 5, 1981. As applied in Pennsylvania, the equitable discovery rule provides that the statute of limitations does not begin to run until the injured party is aware or reasonably should be aware of his injury and its cause. Pocono Raceway v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). However, it is well settled that mere mistake, misunderstanding or lack of knowledge do not toll the statute of limitations. Walters v. Ditzel, 424 Pa. 445, 449, 227 A.2d 833, 835 (1967).

Mrs. Garcia could not reasonably have been aware that her claim was barred until the Court of Common Pleas so ruled in October of 1981. Until this court’s decision in Mitchell, 290 Pa.Super. 476, 434 A.2d 1243 (1981), it was unclear to even the most experienced attorney whether such a claim was governed by the twelve year period of § 5536 or the shorter period of § 5524. Therefore, it would be completely unreasonable to expect a layperson to possess that knowledge. Resolving all factual questions in her favor, we find that Mrs. Garcia was reasonably unable to learn of her injury until the court notified her that her suit was dismissed. Applying this standard, we cannot rule that her lack of awareness was clearly caused by mistake, misunderstanding, or lack of knowledge.

However, Mrs. Garcia claims the statute should be tolled until October 12 because that is when her attorney’s letter was read to her in Spanish. We must reject this claim. Mrs. Garcia is deemed to have knowledge of the court’s action on October 5, which is the day her attorney was notified. Notice from a court to a person’s attorney is considered notice to the client as long as it concerns a matter within the scope of the representation. Yeager v. United Natural Gas Co., 197 Pa.Super. 25, 176 A.2d 455 (1961). See also Lewis v. Commonwealth of Pennsylvania, Board of Probation & Parole, 97 Pa.Commw. 271, 508 A.2d 644 (1986); Ozark v. Zoning Hearing Board of West Pittston, 96 Pa.Commw. 414, 507 A.2d 932 (1986); U.S. Steel v. Workmen’s Comp. App. Board, 57 Pa.Commw. 201, 426 A.2d 207 (1981); Appeal of Gossy, 22 Pa.Commw. 448, 349 A.2d 811 (1975).

On October 5, 1981, Jack Bernard received notice that Mrs. Garcia had been injured and the court’s order explained the basis for that injury. Her claim against the demolition company was barred by the statute of limitations because it was not filed in time by her previous attorney, CLS. Bernard was aware of the injury and its purported cause. As Mrs. Garcia’s agent, his knowledge was immediately imputed to her. That he chose to notify her by sending her a letter she could not understand does not alter this principle. Also, the notice certainly involved a matter within the scope of the representation. The court informed Bernard that the action was dismissed, thus it concerned the very heart of Bernard’s representation of Garcia.

It matters not that the malpractice action is separate from the cause dismissed in 1981. It is true that Bernard was not yet representing Garcia in the malpractice case when he received the notice in question. However, he was representing her in the action which the court dismissed. Notice of that dismissal triggered the statute of limitation for malpractice purposes because it provided the underlying facts which established the basis for that action. Those facts were communicated by a court to Garcia’s agent on October 5, 1981. They concerned a matter within the scope of the agency and therefore, were imputed to Garcia as of that date. The two year statute of limitations on her malpractice claim then began to run and it expired on October 5, 1983, barring her claim which was not instituted until October 6.

It has also been suggested that the pendency or potential pendency of an appeal should toll the statute of limitations in a legal malpractice action.

There are two possible justifications for this rule. In some jurisdictions, the statute of limitations on a malpractice claim accrues at the time of the damage. When the claim is based upon a previously unsuccessful cause of action, the damage would be the entry of judgment or sentence in that previous action. If an appeal suspends the rights of the parties, that judgment is not yet final and enforceable. Therefore, the limitation period should arguably be suspended until the appeal is adjudicated and the party may enforce his rights.

This rationale is inapplicable to Pennsylvania because in our state courts, the limitation period begins to run when the alleged breach of duty occurs. It is tolled only until the injured party should reasonably have learned of this breach. If the client’s underlying suit has been dismissed, he should be aware that his attorney has committed a breach of duty. The connection between the dismissal of a case and the failure to file suit before the running of the limitation period is so obvious that even the most innocent client should understand the relationship. Certainly, the client does not need to pursue the appellate process in order to make the requisite connection.

However, some jurisdictions follow the Pennsylvania rule but also hold that an action for legal malpractice is tolled until the appellate process is complete. These courts hold that the malpractice action is not ripe until an appellate court has disposed of the underlying suit. See Amfac v. Miller, 138 Ariz. 152, 673 P.2d 792 (1983).

The Amfac court reasoned that only after the appeal is complete are the client’s damages fully ascertainable. If the appellate court reverses the decision of the trial court, the client will have suffered no harm. In the absence of actual injury, a litigant is not entitled to bring a tort action. Id. But, a litigant may decide not to appeal the trial court’s judgment. This brings up a complicating factor. It is arguable that the statute of limitation should be tolled until the statutory period to file an appeal has passed. The underlying suit is considered open until the appeal is concluded because of the possibility that the appellate court will reverse. It is similarly open until the litigant decides not to appeal because the same possibility of reversal remains present. That possibility is eliminated only when no further right to appeal exists. That right may be extinguished by decision or by passage of the statutory time period for taking an appeal. Therefore, it is a plausible contention that the statute of limitation should be tolled until one or the other of these events has taken place.

This argument has theoretical merit but it is inapplicable to this case. Mrs. Garcia’s alleged injury occurred when she lost the right to prosecute her tort claim against the demolition company. This took place on June 27, 1979 because that is the date the statute expired. Her injury was ripe at that point and she was then entitled to bring her tort claim for malpractice. The court’s dismissal of her cause of action against the company merely served as notice to her of the injury which had previously occurred.

In some situations, appellate disposition of a case might be necessary before a litigant could rightfully complain that he was actually injured. For instance, a person may wish to sue his attorney because the lawyer’s alleged incompetence led to a large jury award against the client. The client is not injured until that jury award becomes enforceable. If the judgment is stayed during appeal, the client's malpractice claim may not be ripe until the appellate process is complete and the stay lifted. We point this out only to illustrate that our decision does not foreclose such an argument. We do not hereby endorse this position in that it is not relevant to the situation before us.

We must note that we are surprised and disappointed at the turn of events in this case. Mrs. Garcia’s underlying claim was not filed until the statute of limitations had expired. Her attorney then brought a malpractice action against CLS alleging negligent failure to file within the period of limitation, but he also failed to file within the applicable period of limitation. A professional playwright would be hooted out of the theater if he employed such an unbelievable plot device.

Based upon the foregoing discussion, the judgment of the Court of Common Pleas of Philadelphia is affirmed.


author: BROSKY, Judge:

text:
    524 A.2d 987
    Gary FRIEDMAN and Sharon Friedman, His Wife, Appellants, v. Bonnie LUBECKI, i/t/a Whitestown Farms, a Sole Proprietorship.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1987.
    Filed April 24, 1987.

      Bradley S. Gelder, Pittsburgh, for appellants.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   BROSKY, Judge:

This is an appeal from a judgment entered on an order denying appellants’ Petition to reinstate their appeal after entry of a rule to show cause upon appellee why their appeal from a judgment entered against them by a District Justice should not be stricken for failure to file their complaint timely.

The issue presented in this appeal is whether the delay in filing the complaint, occasioned by late notice of the judgment by the District Justice 24 days after entry of judgment and a limited work schedule in appellants’ counsel’s office due to the Christmas holidays, constitutes good cause to require reinstatement of the appeal. For reasons appearing below, we reverse and remand.

On November 18, 1985, judgment was entered by the District Justice for appellee, a boarder, seller and buyer of horses. On December 12, 1985, 24 days after entry of judgment, the District Justice notified appellants of the judgment entered against them. The following day, December 13, 1985, and well within the 30-day period prescribed by Pa.R.C.P.DJ. 1002, appellants perfected an appeal from the said judgment to the Court of Common Pleas of Butler County, Pennsylvania.

Subsequently, on January 6, 1986, appellants filed their Complaint against appellee alleging specific damage in the amount of $55,000, the purchase price of two Arabian fillies, plus interest, as well as damages for the expenses of boarding and caring for the horses and in pursuing the litigation. The complaint alleged breach of an oral contract to resell two Polish Arabian fillies which appellants had purchased from a third party for $55,000.

On January 10, 1986, in accordance with Pa.R.C.P.DJ. 1006 but four days after appellants had filed their Complaint, appellee praeciped to strike appellants’ appeal from the judgment of the District Justice for failure of appellants to file their Complaint against appellee within 20 days of the filing of their notice of appeal from the said judgment pursuant to Pa.R.C.P.DJ. 1004 A. As provided by Pa.R.C. P.D J. 1006, appellants, on February 7, 1986, filed a Petition to reinstate their appeal alleging, as the sole reason for good cause to allow reinstatement, that the shortened holiday work period prevented the timely preparation and filing of their Complaint with the Prothonotary of the Butler County Common Pleas Court. The Petition was denied on June 3, 1986, and judgment was entered pursuant to Pa.R. App.P. 301(d) on June 27, 1986. This timely appeal followed.

We note that appellee filed her praecipe to strike after appellants’ Complaint had already been filed in Common Pleas Court. If appellee expected that appellants be sanctioned by not having their appeal processed to ultimate determination, her remedy, immediately available after the 20-day period had passed for appellants to timely file their complaint pursuant to Pa.R.C.P.DJ. 1004 A, was to praecipe, at that time, to strike the appeal as provided by Pa.R.C.P.DJ. 1006. We do not deem the effect of striking an appeal in this context to be automatic from the first day after appellants’ default. Rule 1006 is not self-enforcing. Therefore, it became the duty of appellee, upon default of appellants, to praecipe to strike the appeal.

To fully accomplish the purpose of its terms, we hold that the Rule 1006 procedure must be triggered before an appellant files his Complaint in Common Pleas Court. Instantly, the filing of the Complaint by appellants pursuant to Pa.R.C.P.DJ. 1004 A barred appellee from thereafter invoking her remedy under Pa.R.C.P.DJ. 1006.

Our Supreme Court has construed an analogous situation interpreting the Rules of Civil Procedure relating to joinder of parties. Alexander v. Mastercraft Constr. Co., Inc., 455 Pa. 579, 317 A.2d 278 (1974). There, the original defendant failed to file his complaint against the additional defendant within the 20-day period prescribed by then Pa.R.C.P. 2252(b), after having first joined him by praecipe. The Alexander court held that it was then incumbent upon the additional defendant to pursue his remedy under Pa.R.C.P. 1037(a). Rule 1037(a) provides that a defendant may praecipe for a rule on the opposing party to file its Complaint within 20 days of the entry of the rule. If such Complaint is not forthcoming within the prescribed time, the Rule further provides that a defendant may then praecipe for entry of a default judgment.

In Alexander, the original defendant did file his Complaint, albeit untimely, and the additional defendant then proceeded to attack this unseasonable filing by means of preliminary objections, without having first invoked Rule 1037(a) before the untimely Complaint had been filed. The trial court dismissed original defendant’s Complaint on this basis.

However, the Supreme Court reversed, holding that then Pa.R.C.P. 2252(b) did not mandate automatic dismissal of the action against the additional defendant. Rather, the additional defendant, to avail himself of a remedy, was required, under Rule 1037(a), first to rule the original defendant to file his Complaint. Absent the original defendant’s compliance with this rule within 20 days of entry upon him, the additional defendant then had to trigger the second tier of relief provided by Rule 1037(a), i.e., he had to praecipe for the entry of a default judgment against the original defendant. The Alexander court held that the additional defendant could not seek his remedy by filing preliminary objections after the original defendant’s complaint had been filed, even though untimely.

Employing this analogy instantly, we hold that appellee was required to invoke her remedy under Pa.R.C.P.DJ. 1006 before appellants filed their untimely Complaint in Common Pleas Court. Rule 1006 speaks in terms of striking the appeal. This, in our view, contemplates a situation where the Complaint has not yet been filed. Once appellants had filed their Complaint, it was then too late for appellee to seek relief under Rule 1006, even though the Complaint was unseasonable. She had, by then, lost the race to the Courthouse.

We repeat, Rule 1006 is not self-enforcing. Its effect is not automatically triggered even if, after 20 days have passed, an appellant has not filed his Complaint. In that event, it is incumbent upon an appellee to proceed under Rule 1006 to strike the appeal from the record. Rule 1006 only provides for the striking of an appeal filed pursuant to Pa.R.C.P.DJ. 1002. We discern no language in Rule 1006 which encompasses within its terms the striking of an untimely filed Complaint, as well, nor will we read any such requirement into a Rule which clearly on its face provides for a method by which an appeal is to be stricken from the record for failure to comply with Pa.R.C.P.DJ. 1004 A. As we have stated earlier, this rule mandates the filing of a Complaint within 20 days of the taking of an appeal from the judgment of a District Justice.

Just as the Alexander court refused to hold that then Pa.R.C.P. 2252(b) called for automatic dismissal of the original defendant’s claim against the additional defendant unless the latter first invoked the procedures available under Pa.R.C.P. 1037(a) before the Complaint had been filed, we, too, conclude that Pa.R.C.P. 1004 A lacks a similar self-enforcement mechanism.

In this regard, we point appellee to the remedy provided by Pa.R.C.P.DJ. 1006, but, once again, we caution that this remedy must be invoked before an appellant files his Complaint in Common Pleas Court. To hold otherwise would frustrate the purpose of Rule 1006 which, we deem, by its terms, is to punish an appellant for failure to file his Complaint pursuant to Rule 1004 A.

We note again, as we did earlier in this discussion, that the additional defendant in Alexander did not proceed the Rule 1037(a) route but, rather, filed preliminary objections to the Complaint, whereas here, appellee did file her Rule 1006 praecipe to strike the appeal. Even so, her action was without effect, and we do not consider it as compelling a different result from that reached in Alexander. The common denominator of both cases was the parties’ failure to proceed properly under the applicable Rules of Civil Procedure at the appropriate time.

We note that appellants have filed a civil action in the nature of a complaint requesting, as we stated earlier, damages in the amount of the purchase price of the Arabian fillies, plus interest, and damages for amounts expended in connection with the boarding and care of these horses, which claim is properly within the jurisdiction of Common Pleas Court. Pa. Const, art 5, § 5; 42 Pa.C.S.A. § 931; see also Martino v. Transport Workers Union, 301 Pa.Super. 161, 447 A.2d 292, aff'd, 505 Pa. 391, 480 A.2d 242 (1984).

In view of this, we reverse the judgment entered on the order denying appellants’ Petition to reinstate and remand the instant matter to the trial court so that it may proceed to disposition according to the Pennsylvania Rules of Civil Procedure governing civil actions.

Judgment reversed and case remanded. Jurisdiction relinquished.

      . We are unable to ascertain the amount or the exact nature of the claim upon which the District Justice entered judgment because of the incomplete record of the proceedings before that tribunal.

      . The taking of appeals from final orders of District Justices is governed by § 932 of the Judicial Code, 42 Pa.C.S.A. § 932, which vests the Courts of Common Pleas with exclusive jurisdiction to entertain such matters.

      . Appellants raise for the first time on appeal the issue of the 24-day lapse between entry of judgment by the District Justice and their notification of the judgment. Below, their contention of good cause to reinstate was limited solely to the shortened holiday work period as posing a barrier to the preparation and timely filing of their Complaint. We would deem the 24-day lapse aspect of that issue waived as it was not initially raised in the trial court. See Pa.R.App.P. 302(a).


author: MONTGOMERY, Judge:

text:
    524 A.2d 990
    BECK COMPUTING SERVICES INCORPORATED, Appellant, v. Scott A. ANDERSON, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 5, 1987.
    Filed April 20, 1987.

      Vincent F. Lackner, Jr., Pittsburgh, for appellant.
    Michael A. Della Vecchia, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The genesis of the instant dispute was a Complaint in equity instituted in the lower court in October, 1985 by the Plaintiff-Appellant, Beck Computing Services Incorporated (hereinafter referred to as “Beck”), seeking an injunctive order against its former employee, Scott Anderson, the Defendant-Appellee. More specifically, Beck sought to enjoin Anderson: from using or disclosing confidential information, including computer programs, allegedly obtained by Anderson during the term of his employment with Beck; from soliciting business from Beck’s customers; and from soliciting Beck’s employees to work for Anderson. Further, the Appellant sought the impounding and destruction of copies of its computer programs allegedly in the Appellee’s possession or under his control, and requested an accounting with regard to all revenues obtained by the Appellee in the course of his competition with the Appellant. On October 21, 1985, without holding a hearing, the lower court issued an order denying the Appellant’s request for a preliminary injunction. On this appeal, the Appellant urges that the lower court erred in refusing to hold an evidentiary hearing on its request for a preliminary injunction.

In the review of this appeal, we initially refer to Pennsylvania Rule of Civil Procedure 1531, which provides in pertinent part, in subsection (a):

In determining whether a preliminary or special injunction should be granted and whether notice or a hearing should be required, the court may act on the basis of the averments of the pleadings or petition and may consider affidavits of parties or third persons or any other proof which the court may require.

See also Philadelphia Minit-Man Car Wash v. Building and Construction Trades Council of Philadelphia and Vacinity, AFL-CIO, 411 Pa. 585, 192 A.2d 378 (1963). It is clear that on appeal from a lower court’s denial of a preliminary injunction, an appellate court will only look to determine if there were any apparently reasonable grounds for the action of the lower court. Carl A. Colteryahn Dairy, Inc. v. Schneider Dairy, 415 Pa. 276, 203 A.2d 469 (1964). We must also be mindful that a preliminary injunction is an extraordinary remedy, and the trial court’s power to enter such an injunction should be exercised only after careful deliberation has resulted in the conclusion that such relief is a necessity. Rush v. Airport Commercial Properties, Inc., 28 Pa.Cmwlth. 51, 367 A.2d 370 (1976). Moreover, a preliminary injunction may only be issued when essential prerequisites of law are met. Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corporation, 450 Pa. 367, 301 A.2d 816 (1973). Thus, prior to granting a preliminary injunction, the lower court must find: immediate and irreparable harm which could not be compensated by damages; that greater injury would result by refusing it than by granting it; that it would properly restore parties to their status as existing immediately prior to the alleged wrongful conduct; and that the activity sought to be restrained is actionable and that an injunction is reasonably suited to abate such activity. New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978).

In its review of the Appellant’s request for a preliminary injunction, the lower court relied upon fact set forth in the Complaint, as well as in two supporting documents attached to that Complaint. The attached documents included a letter from .the Appellant to the Appellee dated April 11, 1980, setting forth the conditions of the Appellee’s employment, which was to begin May 1, 1980. Included in that letter were several “conditions” of employment, and thereafter, a sentence stating: “At the beginning of your employment you will be asked to sign a confidentiality nondisclosure agreement.” The second attachment to the Complaint was a nondisclosure agreement which was dated December 5,1984, over four years after the inception of the Appellee’s employment. The agreement provided that it was to be “retroactive to the date on which [the Appellee] commenced his employment.”

In reviewing these matters, the lower court concluded that the agreement concerning nondisclosure was a restrictive covenant which was not ancillary to the initial employment of the Appellee. Moreover, the lower court noted that the Appellant had not asserted that the restrictive agreement was supported by any new consideration when it was eventually signed in 1984. Based upon such facts, the lower court determined that the agreement would not be enforceable, and that the Appellant’s right to relief based thereon was questionable. Thus, the lower court determined that it would be inappropriate to issue a preliminary injunction because the Appellant was not likely to prevail in the case.

In urging that the lower court committed error in denying it a hearing on its preliminary injunction request, the Appellant contends that it was entitled to such relief based upon the Appellee’s past relationship with it, without regard to the enforceability of the 1984 restrictive agreement. In support of that position, it points out its allegations that the Appellee served as a vice-president of Beck for four years, prior to going out to compete with Beck. The Appellant maintains that such a relationship obviated the necessity of having an express written contract in order to support a ruling that such an employee may not disclose information revealed to him in the course of his confidential employment relationship.

The Appellant cites cases, including Boyd v. Cooper, 269 Pa.Super. 594, 410 A.2d 860 (1979), as authority for its position. The holding in that case appears to be directly applicable here. The lower court in that case also failed to conduct a hearing to address the issue of the duty of a former officer not to adopt or use information obtained in confidence from his prior employment, to the detriment of his former employer, for his own benefit or profit. Moreover, the lower court in Boyd v. Cooper, like the lower court in the instant case, lacked a sufficient factual basis for determining whether or not the other prerequisites for injunctive relief were present. Based upon the authority of that case, we are constrained to conclude that the lower court erred in failing to hold a hearing on the Appellant’s request for a preliminary injunction.

The Order of the lower court is vacated and this case is remanded for a hearing on the Appellant’s injunction request. Jurisdiction is not retained.

      . On the duty of a former officer or person employed in a position of trust to not use confidential information, obtained in former employment, to the prejudice of or in competition with his former employer, see Carl A. Colteryahn Dairy, Inc. v. Schneider Dairy, supra, and cases cited in Judge Price's Concurring Opinion in Boyd v. Cooper, supra.


author: MONTEMURO, Judge:

text:
    524 A.2d 993
    LEVY AND SURRICK, A Professional Corporation, Appellant, v. Robert B. SURRICK, Appellee.
    Superior Court of Pennsylvania.
    Argued March 11, 1987.
    Filed April 30, 1987.

      Michael F. Wenke, Media, for appellant.
    William J.C. O’Donnell, Paoli, for appellee.
    Before MONTEMURO, KELLY and ROBERTS, JJ.
   MONTEMURO, Judge:

Appellant Levy and Surrick, a professional corporation, challenge the entry of judgment in favor of appellee Robert B. Surrick by the Court of Common Pleas of Delaware County. The sole issue on appeal is whether the trial court should have instructed the jury on the law of agency as well as on the “corporate opportunity” doctrine. Because the charge to the jury included an adequate explanation of the law as it applies to the evidence presented, we affirm.

Levy and Surrick (the corporation), a professional corporation engaged in the practice of law, brought this action against its former president and 50-percent shareholder, Robert B. Surrick. Among other things, the corporation alleged that Mr. Surrick usurped for his private gain a business opportunity that rightfully belonged to the corporation. The jury returned a verdict in favor of Mr. Surrick, and the court denied the corporation’s motions for post-trial relief. This timely appeal followed.

The evidence produced at trial reveals the following: In 1978, Mr. Surrick sold a piece of his personal real estate holdings to Haverford 2 Associates, a partnership that consisted of Vincent and Thomas Spano. At that time, the Spanos owned commercial real estate known as the “Wallingford Mini-mall” in Delaware County. The Spanos had advertised the Mini-mall for sale to the general public, and Thomas Spano approached Mr. Surrick as a potential purchaser. Mr. Surrick began sporadic negotiations with the Spanos regarding the possible sale. Meanwhile, in February of 1979 American Cablevision of Pennsylvania, Inc. (ACP), a client of appellant corporation, began to rent space in the Mini-mall from the Spanos. As an employee of appellant corporation, Mr. Surrick represented ACP in numerous legal matters. This representation included drafting the lease agreement between ACP and the Spanos.

ACP extended their Mini-mall lease in July of 1979 for a period of 10 years. In August, Mr. Surrick purchased the Mini-mall from the Spanos by assuming the Spanos’ mortgage and by canceling the balance of the debt that Haverford 2 Associates had incurred when it purchased Mr. Surrick’s real estate in 1978. As a part of this transaction, the Spanos assigned to Mr. Surrick the 10-year ACP lease. Mr. Surrick purchased the Mini-mall and acquired the ACP lease on his own behalf, not on behalf of appellant corporation. Arthur Levy, the other 50-percent shareholder in the corporation, testified that Mr. Surrick did not disclose his potential interest in the Mini-mall until the day of the settlement in August of 1979. Mr. Surrick, however, testified that he had disclosed his interest to Mr. Levy early in 1979, during the course of the negotiations with the Spanos.

At the close of evidence, appellant corporation submitted, among others, the following points for charge:

(1) I instruct you as a matter of law that the DefendantSurrick was acting as an agent of the Plaintiff-corporation in his handling of American Cablevision of Pennsylvania, Inc.
(2) I instruct you as a matter of law that the Defendant is not permitted to make any profit, gain or advantage in connection with his representation of American Cablevision of Pennsylvania, Inc.
(3) I instruct you as a matter of law that any profit, gain or advantage coming to Defendant during the execution of his agency must be turned over by him to Plaintiff. In that regard it does not matter whether such profit, gain or advantage was the result of his proper or improper handling of American Cablevision of Pennsylvania, Inc____

The trial court refused these points because the corporation, in the court’s view, neither pleaded nor proved that Mr. Surrick had authority to act as an agent of the corporation for purposes of acquiring real property.

The corporation contends on appeal that Mr. Surrick acted as its employee and therefore as its agent in representing ACP and that the law of agency requires Mr. Surrick to account for any “profit, gain or advantage” he acquired during this representation. We agree that an agent “is subject to a duty not to compete with the principal concerning the subject matter of his agency.” Restatement (Second) of Agency § 393 (1958). Nevertheless, “an agent can properly act freely on his own account in matters not within the field of his agency and in matters in which his interests are not antagonistic to those of the principal.” Id. at § 393, comment a. Nothing in the record of this case indicates that acquisition of the Mini-mall fell within the scope of the agency relationship between the corporation and Mr. Surrick or that the acquisition was otherwise antagonistic to the interests of the corporation. Moreover, nothing in the record suggests that the corporation existed for any purpose other than to practice law. It was not in the land-acquisition business, nor did it authorize Mr. Surrick, either generally or specifically, to acquire land on its behalf. Ownership of the Mini-mall did not necessarily place Mr. Surrick in competition with his law practice.

The corporation nonetheless appears to believe that the mere existence of an agency relationship renders the agent liable to his or her principal even for profit earned in transactions that fall outside the agent’s authority. None of the cases that the corporation cites in its brief support this extraordinary proposition. In Kribbs v. Jackson, 387 Pa. 611, 129 A.2d 490 (1957), the defendant had acted as an agent of the plaintiff for the purpose of collecting rent on property that the plaintiff owned. The trial court found that the defendant had fraudulently concealed the full amount of rent collected and had thereby earned a profit in excess of his commission. The court ordered the defendant to account for the fraudulently-earned profit. Our supreme court affirmed, reasoning that “[a]ll profits made and advantage gained by the agent in the execution of the agency belong to the principal.” Kribbs, supra, 387 Pa. at 619, 129 A.2d at 494 (emphasis added). Similarly, in Graham v. Cummings, 208 Pa. 516, 57 A. 943 (1904), the shareholders of a corporation had authorized the defendant shareholder to sell their stock. The defendant secretly negotiated to receive a higher amount for his stock than for that of his fellow shareholders. Our supreme court concluded that an agent “cannot make profits out of his principal in the business of his agency.” Graham, supra, 208 Pa. at 534, 57 A. at 949 (emphasis added). Thus, the existence of an agency relationship alone does not render the agent liable for any income he or she earns above his or her compensation as an agent. The principal must show some connection between the income and the “business of the agency.” Appellant corporation failed to establish this connection in the present case.

Moreover, even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant. See Gallo v. Yamaha Motor Corp., — Pa.Super. —, 526 A.2d 359 (1987); Mickey v. Ayers, 336 Pa.Super. 512, 485 A.2d 1199 (1984). In light of the trial court’s thorough charge on the “corporate opportunity doctrine,” the lack of an instruction on agency could not have prejudiced the corporation in this case. The “corporate opportunity doctrine” imposes liability on officers and directors who take personal advantage of business opportunities when these opportunities fall within the “scope of activities” of, and constitute a “present or potential advantage” to, the corporation. See Seaboard Industries, Inc. v. Monaco, 442 Pa. 256, 262, 276 A.2d 305, 309 (1971). See also CST, Inc. v. Mark, 360 Pa.Super. 303, 520 A.2d 469 (1987). This duty of loyalty is broader than the duty that an agent owes to his or her principal. It prohibits the officer or director from competing with the corporation in any way, even in areas unrelated to the work that the officer or director performs for the corporation. The duty of the agent, on the other hand, extends only as far as the agency relationship itself. The agent can compete with his or her principal in “matters not within the field of his agency.” Restatement (Second) of Agency § 394, comment a. Appellant corporation therefore would have gained nothing by having the trial court in its charge characterize Mr. Surrick as an “agent.” Nor would the corporation have benefited from any instruction on the law of agency. If acquisition of the Mini-mall did not breach Mr. Surrick’s duty as an officer of the corporation, it certainly did not breach his duty as an agent. The proposed points for charge would only have confused an otherwise adequate discussion of. the law.

For the above reasons/ we affirm the judgment of the trial court.

Judgment affirmed.

      . Mr. Surrick argues that the corporation effectively withdrew these proposed points for charge and that it therefore has waived any challenge to the instructions. We disagree. Although we recognized that counsel for the corporation offered to remove the words "agent” and “agency” from the proposed points and to insert the words "officer and director,” we do not believe this minor change of terminology would have altered the substance of the instruction. The corporation therefore has not waived its right to challenge the denial of its points.

      . Appellant corporation does not challenge the sufficiency of the “corporate opportunity” instruction. It challenges only the lack of an agency instruction.


text:
    524 A.2d 995
    John J. KOZLOWSKI v. Gloria H. KOZLOWSKI, Now by Change of Name Gloria H. Bernardini, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1987.
    Decided April 22, 1987.

      James H. Richardson, Jr., Erie, for appellant.
    Frank L. Kroto, Jr., Erie, for appellee.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   BROSKY, Judge:

This is an appeal from the Order of the trial court which found appellant in contempt and transferred custody of two minor children from the mother (appellant) to the father (appellee).

The issues raised by appellant are as follows: (1) whether appellant complied with all of the court orders, that granted appellee visitation privileges, such that she should not have been held in contempt of court; (2) whether appellant, having been awarded custody of the children, should have been permitted to move with the children outside of the Commonwealth of Pennsylvania; (3) whether the best interests of the children are served by allowing appellant to retain custody of both children; and (4) whether the trial court erred in transferring custody of two teenage children based on a stale and incomplete record.

After a careful review of the record and briefs, we affirm in part and reverse and remand in part.

The procedural history of this case is quite long and complicated. During a five year period the parties have filed numerous Petitions for Contempt Citations and Modifications of Visitation. The final Petition filed by appellee, which gave rise to the Order now in question, requested that appellant be found in contempt and that custody be transferred to appellee.

It must also be noted that after appellant took an appeal to this Court, from the Order of the trial court, and while the appeal was pending, she filed a Petition for Modification and Temporary Custody Order with the court of Missoula County, Montana. Because the action in Montana was never instituted until this appeal was already taken, we need not consider the Montana petition as it has no relevance to the order at hand.

Turning now to the actions taken by the Courts of this Commonwealth, we must separate the Contempt Citation from the Custody determination.

The trial court, upon appellee’s Petition for Contempt, held a hearing, at which appellant was represented by counsel, in order to determine the contempt issue. This finding of contempt is within the purview of the trial court and will not be disturbed absent an abuse of discretion. See Commonwealth ex rel. Ermel v. Ermel, 322 Pa.Super. 400, 469 A.2d 682 (1983). Because the record does contain evidence which would support a finding of contempt we affirm that part of the trial court’s order.

Looking now at the issue of custody we find that the court below acted improperly in making the determination it did. On August 31, 1984, appellee requested a change in custody. A hearing on custody was heard on October 23, 1984, however no determination was made. Finally, on September 25, 1985, appellee filed his brief entitled “Brief in Support of Custody and Petition for Contempt.” It was in response to this that the trial judge combined the custody and contempt actions. Additionally, we have no indication from the trial judge as to what information he relied upon in issuing his 1986 order. From the wording of the Order and Opinion it would appear that the change in custody was a sanction for contempt, rather than the carefully weighed and deliberated process that should be taken in a custody hearing.

This court has previously stated that, “[i]t is well established that in any custody proceeding where there exists a valid prior custody order the burden rests upon the party seeking modification of that order to prove a substantial change in circumstances that would justify a court’s reconsideration of the custody disposition.” Espersen v. Davidow, 359 Pa.Super. 531, 519 A.2d 479 (1986). Once a substantial change in circumstances has been shown, the court must then consider the best interest of the child. Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982).

This court has held that a custodial parent’s obstruction of the noncustodial parent’s right to visit the child may serve as thé basis for an order changing custody. Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980). Also, our court has already stated that relocation may be sufficient to constitute a material change in circumstances. Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983); Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978). It, therefore, became the function of the trial court to determine the best interests of the children involved, taking into account the relocation.

The Pennsylvania Supreme Court has discussed the standard of appellate review in the following manner:

(O)ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type ...
******
However, we have also taken great care to stress: “... (T)his broader power of review was never intended to mean that an appellate court is free to nullify the factfinding function of the hearing judge ...” (but, instead, is to remain) within the proper bounds of its review and (base a decision) upon its own independent deductions and inferences from the facts as found by the hearing judge. (Citations omitted).
Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge ...” (citation omitted).

Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236-237, 478 A.2d 800, 806 (1984) quoting, Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

The Superior Court, also discussing the scope of review, has stated:

So as to facilitate this broad review, we have consistently emphasized that the hearing court must provide us not only with a complete record ... but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision____ Absent an abuse of discretion, we will not reverse a hearing judge who complies with these requirements, (citations omitted). Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981), citing In re Custody of White, 270 Pa.Super. 165, 167-68, 411 A.2d 231, 232-33 (1979).

Turning now to the custody order entered by the trial court, the trial judge, in his opinion, did state what he believed to be in the children’s best interest, however, a thorough analysis of the evidence was clearly lacking. In fact, very few references were made, in the trial court opinion, as to the findings of fact relied upon by that court in rendering its decision. Without a more complete record, and an analysis thereof, it is difficult for this court to arrive at a decision regarding the conclusions drawn by the court below.

It should also be noted that the testimony from which the trial court’s conclusions were drawn, was, for the most part, almost two years old at the time the order in question was entered. Because our decision, as well as that of the trial court, rests upon what is currently in the children’s best interest, it must be based upon an up-to-date record. Additionally, the children involved are presently 16 and 14 years of age, ages at which their preferences may be considered by the trial court, see, Ellingsen v. Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984).

In view of the fact that the record contains evidence which shows that appellant has been living, with her children, in Montana for approximately 18 months, we will remand this case to afford counsel and the trial court, the opportunity of deciding, in the first instance, where the determination of custody is to be made in accordance with the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. § 5341, et seq., see also, Grun v. Grun, 344 Pa.Super. 432, 496 A.2d 1183 (1985), affirmed 511 Pa. 374, 514 A.2d 1372 (1986).

Thus, we affirm the part of the Order dealing with contempt, but reverse and remand on the issue of custody.

Order affirmed in part, reverséd and remanded in part.