text:
    488 A.2d 5
    James J. MATTHEWS, Jr. and Isabelle R. Matthews, Administrators of the Estate of James Thomas Matthews, Deceased v. John KONIECZNY and J-B Beverage Distributors, Inc. and Paul and Gloria Berkowitz Appeal of: John KONIECZNY.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1984.
    Filed Jan. 25, 1985.
    Petition for Allowance of Appeal Granted Aug. 22, 1985.

      Joseph F. Van Horn, Jr., Philadelphia, for appellant.
    James M. Marsh, Philadelphia, for J-B, appellee.
    Margaret T. Murphy McKeown, Broomall, for Berkowitz, appellee.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   CIRILLO, Judge:

Appellant, John Konieczny, appeals from the trial court’s order granting appellees’, J-B Beverage Distributors, Inc. and Paul and Gloria Berkowitz, motions for summary judgment. We affirm.

On December 8, 1979, Matthew Capriotti, a minor, purchased a case of beer from J-B Beverage Distributors, Inc. (J-B), of which Paul and Gloria Berkowitz were owners and employees. At Capriotti’s deposition, he testified that he alone purchased the beer, and that he had taken no medication, narcotics, or intoxicants prior to the purchase. James Matthews, another minor, waited in the car outside J-B while Capriotti obtained the beer.

Following the purchase, Matthews and Capriotti picked up appellant and proceeded to drive around while all consumed the beer. At appellant’s deposition, he testified that he drank approximately five or six beers before he began to drive the automobile. Five or ten minutes after he started driving, the automobile struck a tree. Matthews was fatally injured as a result of the collision.

The administrators of the estate of James Matthews initiated an action against appellant, J-B and the Berkow-itzes. It was alleged, inter alia, that: (1) appellant’s negligence in driving the automobile was the cause of the injuries resulting in Matthews’s death; and (2) J-B and the Berkowitzes negligently failed to determine the age of the purchaser of the beer, violated a statute of the Commonwealth of Pennsylvania, and failed to exercise due care under the circumstances.

In his answer and new matter, Konieczny filed cross-claims against J-B and the Berkowitzes. No additional facts were alleged; however, those portions of plaintiff’s complaint which pertained to J-B and the Berkowitzes were incorporated by reference into the cross-claims. Thereafter, J-B and the Berkowitzes moved for summary judgment against the plaintiff and against appellant on his cross-claims. All motions were granted by the trial court. Appellant appeals the granting of summary judgment in favor of J-B and the Berkowitzes.

At issue in this appeal is the application of Section 4-497 of the Liquor Code, 47 P.S. § 4-497, which provides:

No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employe when the said customer was visibly intoxicated. (Emphasis added)

We were first confronted with the effect of Section 4-497 in Simon v. Shirley, 269 Pa.Super. 364, 409 A.2d 1365 (1979). In Simon, a minor, who was not visibly intoxicated, was served alcoholic beverages in violation of 47 P.S. § 4-493(l). Shortly thereafter, the minor was involved in an automobile accident, which fatally injured the driver of another car. This Court, speaking through then President Judge Cercone, held that, “Section 4-497 makes apparent the General Assembly has chosen to condition a licensee’s civil liability to third persons who are injured off the premises by a customer of the licensee upon a showing that the customer was visibly intoxicated when served.” Id., 269 Pa.Superior Ct. at 367, 409 A.2d at 1366 (footnote omitted). We affirmed the trial court’s decision to grant summary judgment in favor of the tavern owner, and rejected appellant’s argument that Section 4-493(1) rendered a licensee liable to injured third persons for serving a minor.

More recently we have addressed the applicability of Section 4-497 to facts virtually identical to those of the case at bar. In Mancuso v. Friel’s Beverage, Inc., 338 Pa.Super. 328, 487 A.2d 990 (1985), a minor purchased beer from the defendant, Friel’s Beverage. Subsequently, two six packs of the beer were consumed by another minor who was then involved in an automobile accident. We held that under the facts presented, and “without a showing that the purchaser was visibly intoxicated at the time of the sale, no liability can be attributed to the licensee.” At 338 Pa.Superior Ct. 328, 487 A.2d 990. Cf. Speicher v. Reda, 290 Pa.Super. 168, 173, 434 A.2d 183, 186 (1981) (discussing Section 4-497’s “required showing of visible intoxication in order to find a licensee liable for serving a person who injures a third person.”).

Pa.R.Civ.P. 1035 provides that a motion for summary judgment shall be granted:

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

See Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983); Vend-A-Matic, Inc. v. Frankford Trust Co., 296 Pa.Super. 492, 442 A.2d 1158 (1982). We find that the trial court properly granted summary judgment pursuant to Rule 1035.

At the time summary judgment was granted, the pleadings and depositions on file clearly showed that Matthew Capriotti was the only individual to purchase beer from J-B. Moreover, Capriotti testified that prior to buying the beer, he had taken no medication, narcotics, or intoxicants. The uncontradicted conclusion to be drawn from the above is that Capriotti was not visibly intoxicated at the time he purchased the beer from J-B. Therefore, as we made clear in Simon and Mancuso, without a showing of visible intoxication, the requirement of Section 4-497 has not been satisfied.

Appellant attempts to escape the effect of Section 4-497 by claiming he was a “co-purchaser” of the beer because he shared the cost with Capriotti and Matthews. According to this argument, there would be no injury to a third person as defined in Section 4-497, since all were co-purchasers. Further, appellant asserts that he may have had a beer earlier in the afternoon of the accident, and that this presents a question for the jury as to the issue of whether, as a co-purchaser, he was visibly intoxicated at the time the beer was bought from J-B.

Both of appellant’s arguments seem to ignore the fact that Capriotti was the only minor to enter J-B’s place of business. The statute only speaks of customers who were sold alcoholic beverages and who were visibly intoxicated. As the trial court stated in its opinion, “In light of the fact that the employees who sold Capriotti the beer never saw Konieczny, the absurdity of this argument is evident.” Slip op. at 5. To find otherwise would disregard the clear intent of the statute.

Appellant has also appealed the granting of summary judgment in favor of the Berkowitzes. He argues that they may not claim the statutory immunity granted by Section 4-497 because the Berkowitzes are not licensees as required by the statute. However, the General Assembly has chosen to condition a licensee’s civil liability. See Simon, supra. To grant immunity to the licensee, while holding the owner or employee liable, would clearly subvert the intent the General Assembly expressed in enacting Section 4-497.

For the foregoing reasons, we affirm the order of the trial court granting appellees’ motions for summary judgment.

Order affirmed.

      . See infra note 2.

      . § 4-493. Unlawful acts relative to liquor, malt and brewed beverages and licensees
      It shall be unlawful—
      (1) For any licensee of the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.


source: Caselaw Access Project

author:
      SPAETH, President Judge:
      CIRILLO, Judge:

license: Public Domain

text:
    488 A.2d 8
    COMMONWEALTH of Pennsylvania v. William EASTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1984.
    Filed Feb. 6, 1985.

      Brian S. Quinn, Hovertown, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and CIRILLO, JJ.
   SPAETH, President Judge:

This is an appeal from an order denying relief under the Post Conviction Hearing Act. 42 Pa.C.S. § 9541 et seq. Appellant argues that the court reviewing the PCHA petition erred in refusing to hold an evidentiary hearing as this court ordered. We agree, and therefore reverse and remand for hearing.

Appellant’s first PCHA and appellate counsel was granted leave to withdraw as counsel. Appellant’s second PCHA counsel then filed a petition in this court requesting that we remand for an evidentiary hearing on appellant’s claim that first PCHA and appellate counsel was ineffective. The petition stated in part

that there are facts and circumstances that support his allegations that he was denied effective assistance of counsel with respect to his Post Conviction Hearing counsel’s appeal filed on his behalf, and he believes that counsel’s brief was grossly deficient, [and that] his position therein was prejudiced.
Petition for Remand for Evidentiary Hearing, para. 12.

This court, per BROSKY, J., issued the following order:

AND NOW, this 3rd day of November 1982, [u]pon consideration of appellant’s Petition for Remand for Evi-dentiary Hearing on ineffective assistance of counsel claim, said petition is granted and, accordingly, the case is hereby remanded. This court does not retain jurisdiction.

On remand, the PCHA court recognized that this court had remanded for an evidentiary hearing, slip op. at 2, but nonetheless did not hold such a hearing, instead ordering that appellant file specific reasons for relief, and eventually denying any relief on the ground that appellant’s response to its order for specificity was untimely, unverified, and the reasons alleged were “frivolous and ha[d] no support in the record,” slip op. at 3-4. The PCHA court cited Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981), in support of its position that it had “a right, if not a duty, [under the Post Conviction Hearing Act] to request specific grounds” for the allegations in the petition. Slip op. at 3.

Pettus is not on point. It held that remand is not appropriate where petitioner only alleges boiler-plate reasons why counsel was ineffective. Cf. Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983). Here, the correctness of the remand order was not before the PCHA court. While a PCHA court in the first instance has the authority to order further specificity of the allegations, Pa.R.Crim.P. 1502(c), the PCHA court here was not in the position of reviewing the allegations of the PCHA petition until after this court’s order remanding the case for an evidentiary hearing.

“It [is] the duty of the court below, on remand, to comply strictly with our mandate____” Commonwealth v. Tick, Inc., 431 Pa. 420, 425, 246 A.2d 424, 426 (1968). “A lower court is without power to modify, alter, amend, set aside or in any manner disturb or depart from the judgment of the reviewing court as to any matter decided on appeal.” Haefele v. Davis, 380 Pa. 94, 98, 110 A.2d 233, 235 (1955). See also Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977); Drew v. Laber, 277 Pa.Super. 419, 419 A.2d 1216 (1980).

Order reversed and case remanded for an evidentiary hearing.

Jurisdiction is relinquished.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge:

I must dissent from the majority’s disposition of this appeal, because I find it to be in contravention of the law on remands of PCHA petitions.

In Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984), our Supreme Court recently said that “where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” Id., 505 Pa. at 361, 479 A.2d at 957. The record in this case demonstrates that appellant’s claims of ineffectiveness of his first appellate counsel, who filed the original amended PCHA petition, are baseless and merit-less.

Our Supreme Court and this Court have said repeatedly, in the growing plethora of ineffective assistance of counsel cases, that a petitioner must show arguable merit to his claim of counsel’s ineffectiveness; that counsel is not ineffective if his chosen strategy had some reasonable basis meant to protect his client’s interests; that he is ineffective only if there was no reasonable basis for the course taken; that counsel is not ineffective for not pursuing baseless claims; and that we will not evaluate counsel’s effectiveness by hindsight, presuming ineffectiveness simply because the particular strategy failed. Commonwealth v. Brinkley, 505 Pa. 462, 480 A.2d 980 (1984); Clemmons, supra; Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth ex rel. Washington v. Maro-ney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Garrity, 331 Pa.Super. 475, 480 A.2d 1133 (1984); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984).

The amended PCHA petition filed by first appellate counsel, whose effectiveness is challenged here, alleged three grounds of trial counsel’s ineffectiveness: 1) failure to present a defense; 2) failure to file post-trial motions; and 3) failure to appeal. The issue before us is first appellate counsel’s effectiveness in filing this petition. That determination, however, requires an examination of trial counsel’s conduct of the case, so that we may ascertain first appellate counsel’s adequacy in raising these three claims, and decide what other grounds of trial counsel’s ineffectiveness first appellate counsel should have raised, if any.

In its opinion denying this petition, the hearing court noted that trial counsel’s strategy was to attack the credibility of the Commonwealth’s main witness. That witness was appellant’s former co-defendant, who had pled guilty to charges relating to the instant prosecution and agreed to testify against appellant. In exchange for his plea and testimony, this witness was to enter a drug treatment facility rather than receive a traditional criminal sanction. A witness’s bias against a defendant or “deal” with the prosecution is proper grounds for impeachment. See Commonwealth v. Fulton, 318 Pa.Super. 470, 465 A.2d 650 (1983); Commonwealth v. Baston, 242 Pa.Super. 98, 363 A.2d 1178 (1976). Here, however, the witness’s testimony was corroborated by physical evidence.

First appellate counsel thus made a valid attack on trial counsel’s strategy: the lack of a defense here was an arguable ground for trial counsel’s ineffectiveness. However, first appellate counsel is not ineffective simply because the PCHA court rejected this claim of trial counsel’s ineffectiveness and found that that counsel had a reasonable basis for his defense strategy.

Similarly, first appellate counsel is not ineffective because the hearing court rejected the ineffectiveness claims based on trial counsel’s failure to file post-trial motions and to appeal. As the hearing court pointed out, appellant was aware of his post-trial rights and retained his trial counsel through sentencing. The court also noted that appellant was uncooperative with trial counsel regarding the handling of post-trial matters. Appellant’s self-serving statements now to the contrary do not render trial counsel ineffective. In turn, while the handling of post-trial matters may be grounds for an appellate-level claim of trial counsel’s ineffectiveness, appellate counsel is not ineffective wherever the court finds that such a claim is meritless, or that trial counsel had a reasonable basis for his handling of those matters.

In conclusion, I cannot say that first appellate counsel had “no reasonable basis” for his conduct of the instant petition so as to justify finding him ineffective. He raised valid issues regarding trial counsel’s actions, specifically, trial counsel’s non-presentation of a defense and his treatment of post-trial matters. That the hearing court did not agree with first appellate counsel’s arguments on these issues is no proof of his ineffectiveness, and I see in the record no other grounds for an ineffective trial counsel claim which were overlooked by first appellate counsel.

The majority notes that I reach the merits of appellant’s allegations of ineffective assistance of counsel, although the precise question presented in this appeal is whether the Court of Common Pleas was obliged to obey our earlier order remanding for an evidentiary hearing on appellant’s petition. As a matter of general law, it may be true that “the duty of the court below, on remand, [is] to comply strictly with our mandate____” Commonwealth v. Tick, Inc., 431 Pa. 420, 425, 246 A.2d 424, 426 (1968) (quoted by the majority). However, that general rule does not relieve a PCHA petitioner of his own duty to allege specific facts and circumstances which, if proven, would validate his claim for relief. The burden of pleading and proving claims for post-conviction relief remained on appellant. See Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983). That burden was not met by appellant’s refusal to comply with the intended hearing court’s request for specificity. I reach the merits of the instant case simply to observe that appellant possibly did not allege specific grounds for relief because he could not: the present record in this case gives adequate evidence of both trial and appellate counsel’s effectiveness.

I make one final observation on the majority’s decision to remand again. The Post-Conviction Hearing Act is intended to safeguard a criminal defendant’s right to the effective assistance of counsel. Our review of ineffectiveness claims is nonetheless limited, as discussed above. Counsel is not ineffective for failing to take baseless or meritless action, nor is he ineffective for having taken action which was ultimately unsuccessful. In remanding for an evidentiary hearing on ineffectiveness, this Court has ignored the evidence of effectiveness which is already in the record, contrary to Clemmons, supra, and has disregarded the law on the PCHA petitioner’s burden of pleading and proving, contrary to Owens, supra. As a result, the PCHA is transformed into a procedural labyrinth, so that each succeeding determination adverse to a defendant requires a full-blown examination of that counsel’s competence.

I cannot agree with such a misuse of the Act. Appellant has had his day in court; several, in fact. The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel; it does not promise him the aid of a miracleworker. Appellant herein has had that assistance, from both trial and appellate counsel.

I would affirm the hearing court’s denial of appellant’s petition for post-conviction relief.

      . Appellant makes other arguments, but we need not address them.

      . The dissent discusses the proposition that a remand is inappropriate where claims of ineffectiveness of counsel are clearly devoid of merit. Relying on the first opinion of the PCHA court and a review of the record, the dissent determines that appellate counsel was not ineffective. We note that our court did not reach the merits of the PCHA court’s first order denying relief but instead, remanded for an eviden-tiary hearing. This order was not challenged as erroneous by the Commonwealth.


author: TAMILIA, Judge:

text:
    488 A.2d 11
    Geraldine WING v. Joseph D. WING, Appellant.
    Superior Court of Pennsylvania.
    Argued July 17, 1984.
    Filed Feb. 6, 1985.
    Petition for Allowance of Appeal Denied Aug. 27, 1985.

      Stephen D. Ivey, Philadelphia, for appellant.
    Joseph V. Restifo, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of the Court of Common Pleas, Philadelphia County, entered February 2, 1983, requiring appellant, Joseph D. Wing, to pay appellee, Geraldine Wing, alimony in the amount of $100 per month and arrearages in the amount of $100 per month. On October 16, 1978, an Ohio court entered a decree divorcing appellee from appellant. The decree of divorce incorporated a separation agreement which, inter alia, required appellant to pay appellee $100 each month as alimony for her support and maintenance, so long as she did not remarry. At the time of this agreement, appellant had a net income of $600 per month and appellee had a gross income of approximately $9,000 per year, which after deductions, averaged $600 net income per month. The divorce decree was registered with the Court of Common Pleas of Philadelphia County on December 15, 1980, pursuant to section 506 of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 506, 23 P.S. § 506. On April 8, 1981, appellee instituted an action in the lower court to enforce the Ohio alimony order. Hearings were held before the Honorable Vito F. Canuso, and after finding that the Ohio decree had been duly registered in the Philadelphia court, the lower court entered an Order on February 2, 1983 confirming and adopting the Ohio decree. A timely appeal was taken. We affirm.

Appellant presents the issues in this appeal as follows:

1. Did the trial court err in finding that the appellant, Mr. Wing, has a present net monthly income of $800, and an earning capacity of $17,000 annually?
2. Did the trial court err by failing to apply Ohio law to the facts of this case?
3. Did the trial court err in failing to modify the Ohio alimony order, err in enforcing that order, and err in ordering Mr. Wing to pay additional monthly payments towards alimony arrearages, given the evidence that Mrs. Wing is a gainfully employed teacher with a Masters Degree at a salary of $17,200 for ten months work, while Mr. Wing is unemployed?
4. Given the substantial change in circumstances of both Mr. Wing and Mr. Wing’s long-standing unemployment, did the court err in failing to modify the Ohio alimony order, err in enforcing that order, and err in ordering Mr. Wing to make additional payments toward alimony arrearages?

We reject appellant’s first assignment of error since our review indicates that appellant nets approximately $859 per month and has the capacity to earn approximately $17,000 annually.

We treat appellant’s other assignments of error as one, and also find them to be without merit. Ohio law applies to this case in view of 23 P.S. § 506 and the parties’ court-approved stipulation that it should apply. Ohio law provides that alimony based upon a separation agreement between the parties may be modified by the court if the agreement is incorporated into the decree of divorce, the alimony award is indefinite (even though the provision is to terminate upon remarriage) and there is no property settlement (or if there is a settlement, alimony is independent thereof). Wolfe v. Wolfe, 46 Ohio St.2d 399, 350 N.E.2d 413 (1976); see Schifano v. Schifano, 324 Pa.Super. 281, 471 A.2d 839 (1984). We conclude that this rule has application here.

Under Ohio law, a change in circumstance in the relative economic situations of the parties does permit a court to modify an alimony award, although it is not settled whether such change in circumstance must be drastic or material or whether the magnitude of change one must show shifts in different contexts. Compare Wolfe, supra at 418, 350 N.E.2d at 425 (“fair [separation] agreements may be rendered manifestly oppressive ... such as ... where the economic situation of either or both of the parties drastically changes”) (dictum), with Nash v. Nash, 77 Ohio App. 155, 157, 65 N.E.2d 728, 730 (1945) (court award of alimony may be modified where “changes in circumstance of the parties that may be considered must be material, ... and must be considered on the basis that the judgment sought to be modified was justified and proper when made”).

Irrespective of the exact degree of change of circumstance one must show to obtain a modification, we reject appellant’s contention that the lower court ignored the increase in salary enjoyed by appellee and current unemployment experienced by appellant. The lower court had before it a complete record of all the relevant facts and circumstances upon which to base its determination and pursuant to Ohio Rev. Code Ann. § 3105.18, it considered all relevant factors, which included but was not limited to the eleven factors enumerated. In addition to consideration of change in income, Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974) it is relevant to consider the change in age of children, Commonwealth ex rel. Balph v. Balph, 210 Pa.Super. 244, 232 A.2d 76 (1967) and inflation, Shap-era v. Levitt, 260 Pa.Super. 447, 394 A.2d 1011 (1978); Commonwealth ex rel. Luongo v. Tillye, 229 Pa.Super. 453, 323 A.2d 172 (1974) as justifying a modification of an alimony or support award. These factors are not considered in isolation, as appellant would have us view his reduction in income, but as each of them affects the other.

Likewise, we do not agree with appellant that the lower court committed an abuse of discretion by failing to find a sufficient change in circumstance. An increase in appellee’s salary does not ipso facto require the court to reduce the amount of the award, and appellant’s current status as an unemployed, though unfortunate, does not diminish his capacity to earn. We distinguish the case of Campbell v. Campbell, 17 Ohio App.2d 87, 244 N.E.2d 525 (1968) wherein the Ohio court found an abuse of discretion committed by the lower court awarding wife alimony in an amount greatly exceeding what husband could pay. There, husband was $24,000 in debt, without assets, job or earning capacity. In our case, appellant has net income, earning capacity, a rental property, and is paying off his indebtedness under a favorable reorganization plan pursuant to Chapter 13 of the United States Bankruptcy Code. Appellant may not withdraw from gainful employment when he has support or alimony payments to maintain, when he has reasonable capacity for employment. Appleton v. Appleton, 191 Pa.Super. 95, 155 A.2d 394 (1959).

Since we are comparing the income of appellant at the time of the separation agreement with that of the appellee, both of whom then had income of $600 per month, we must likewise consider the change in circumstance in light of that income and the conditions existing at that time. Both parties started on an equal basis under the agreement which set the amount of alimony at $100 per month in favor of the appellee. While we can only conjecture as to the reason for the parties’ agreeing to an alimony order for the former spouse when their income was approximately equal, our assumption is that since the child was residing with the mother, despite the agreement of $200 per month for child support pursuant to the agreement, payment of alimony would give the appellant a tax benefit as would the agreement to claim the child as a dependent, while assisting the mother in maintaining the household. Thus, the allocation for tax purposes would provide the husband with a larger amount available for himself than the raw figures would indicate. See Reisinger v. Reisinger, 324 Pa.Super. 223, 471 A.2d 544 (1984). Also, the record indicates that appellant’s income may have been greater as he was unable to “recall” what it was at trial and he readily agreed to the $600 estimate at the time of the agreement. In fact, however, the record establishes that the husband/appellant has failed to make any alimony payments since October of 1980 and thus, until the date of the present Order, January 19, 1983, he was in arrears $2,900.

The first issue is whether or not there is a substantial change in circumstance of either party which would warrant a change in the alimony order. We believe not. As to the wife, the 1978 separation agreement provides for payment of $100 per month. Five years later in 1983, despite an inflation rate which conservatively diminished the value of that amount by one-half, it remains at $100. The increase of the wife/appellee’s net income is somewhat less than double the 1978 income allowing a minimal 20 per cent for deductions (that is a net of $7,200 yearly in 1978 as opposed to the net of $13,800 in 1983) so the effect, when the 1978 salary is indexed to the inflation rate, is to wipe out any real change in income and an actual decrease in the value of the 1978 Order. As to the husband/appellant, his income vacillated upward and downward between 1978 and 1983. From January of 1980 to June of 1981 he was employed at the General Accident and Insurance Company at a rate of $19,000 per year. Between June of 1981 and December of 1981 he worked at Gino’s earning $240 per week which translates into $12,480 per year. Between June of 1982 and October of 1982 the defendant worked for Farmer Reliance Insurance Company at a salary of $17,700 per year. In October of 1982 he left that employment to work for the Franklin Institute at a salary of over $22,000 per year, this job lasting approximately one month. During the time he worked for General in October of 1980, on the advice of an attorney, he stop paying alimony which he has not paid since, and upon Jeffrey’s graduation from high school in June of 1982 he stopped paying support for Jeffrey, through the court, and paid on whatever basis he thought was reasonable or felt he was able to pay. It is unquestionably true that between the time the support order was agreed upon in 1978 through November of 1982, despite periods of unemployment, the defendant was employed and with the supplemental income from a duplex which he owned, he was more than able to maintain the alimony payment as well as the child support payment without hardship. It was only during the period of time that this action was in progress that his income dropped and then only for a period of three months to the date of the Order appealed from. In relation to the basis upon which the agreement was made, his income increased by 50 to 100 per cent except for the period of the last three months under consideration by the Court in these proceedings. Thus, in relation to the 50 per cent diminished value of the 1978 Order for $100 and considering his generally increased income, the defendant’s failure to pay was unwarranted and could be considered a basis for contempt action. In fact, this action commenced on a petition to increase child support and to collect arrears on the alimony order, based on defendant’s increased income at the time of filing in February, 1981. If this case had moved through the lower court in anything less than the two years it took to obtain an Order, there was sufficient evidence to grant the request of the petitioner/appellee.

As to the present income, though diminished, $129 per week that he receives from unemployment compensation in addition to the $510 rental of which approximately $300 is clear, results in defendant’s net income being presently $859 per month. Thus, in relation to the diminished value of the $100 alimony order and the diminished value of the $859 of actual income, there is still not a sufficient permanent decrease in income that would warrant diminution or vacation of the alimony order. The alimony award consisted of one-sixth of appellant’s net monthly income in 1978, whereas at present it is one-eighth of his monthly income and during most of the intervening years, it dropped to less than one-twelfth of his income. Also, the record is clear that the defendant has no physical or mental ailments which would prevent him from employment, and he has shown over the years the ability to obtain rather high level and remunerative employment although a somewhat lessened capacity to retain such employment so that a period of three months unemployment cannot be a basis upon which to postulate a permanent change of circumstance. The defendant has shown no clear effort to obtain employment other than to send out written employment applications in the mail. This is not an unemployed steel worker who has limited skills and education but a person with extensive managerial and educational experience for which there is always a market. The Court thus has the right under the law to consider the defendant’s earning potential, Balph, supra; setting that potential at $17,000 yearly is fully justified based on his employment record since 1978 to the present time. The defendant’s present income calculated at $859 per month is $10,308 a year. Virtually any entry job in education, insurance, or office management would provide the $14,000 yearly income, as a substitute for the unemployment compensation he now receives, in addition to his rental income, he needs to obtain to reach the level established by the court as his reasonable earning capacity. It is necessary for a man who has obligations of child support particularly, if not alimony obligations, to be more flexible in his employment outlook and while it would appear the defendant is not interested in employment that is likely available to bring him into comformity with the court Order, the Court must look to this potential in fairly deciding whether or not the alimony order should be vacated or reduced. Appellant is also not being left to dangle as the lower court is monitoring his employment efforts by reviewing the matter on a continued hearing basis.

Other factors that must be considered are the need of the plaintiff for the alimony payment in relation to the additional expenses of a son who has gone from pre-teens to college student since the time of the separation agreement. Admittedly, the defendant is not fulfilling his obligation to pay for the support and maintenance of the child. In addition, he was required by the agreement to pay hospitalization expenses which he has failed to do. This burden is being assumed by the mother who wisely has carried hospitalization to protect herself and the child in the event of need for treatment. The wisdom of this is manifested by the fact that Jeffrey has, in the last two or three years, been diagnosed as a hydrocephalic child; in the year preceeding the support hearing he required six hospitalizations and the expense born by the mother was $1,050 over and beyond that paid for by her Blue Cross and Blue Shield. Additionally, Jeffrey is asthmatic and requires weekly allergy shots at a cost of $11 per week; the trips to the neuro-surgeon for checkups cost $25 per trip. Thus, the mother has gone far beyond what was contemplated in the support agreement in terms of her obligation to maintain the child, including paying for additional expenses relating to college and transportation and because the father has diminished his payment for the child’s support within the last two years, the mother’s expenses in this respect have gone up considerably. Thus, while the increase in her gross income to $17,000 per year appears to reduce her need for the $100 monthly alimony award, when viewed in light of the additional expenses attributable to the child which should be born by the father, her need for the $100 per month alimony is all the greater. Also, during the past few years, she has incurred additional expenses for her own advanced education during summer sessions, necessary to enhance her ability to increase her income as an educator.

The purpose of the law in making support and alimony orders modifiable either upward or downward is to take into account the multiple variables of living and working conditions including the effect of change in employment, health, inflation and age of children and the parties — none of which can be foreseen and provided for at the time of the entry of the support order. In this case, the appellee would have been justified at several points throughout the intervening years to request an increase based on the husband’s change of circumstances. Despite this, the appellant, even when receiving substantial income, failed to fulfill his obligations to pay the alimony and support agreement. Now he claims diminished earnings (which appear temporary). The trial court was reasonably skeptical. One of the reasons the law provides for consideration of potential earning ability, as well as actual earnings to establish the basis for a support order, is due to the well-documented reluctance of obligors to pay and their propensity to withdraw from income producing activity and to avoid gainful employment so as to defeat the effect of the court Order or to bring about a reduction or vacation of the Order. This experience shows that frequently once the Order is reduced or vacated, the obligor’s employment picture brightens considerably. The trial court’s skepticism is further enhanced by the fact that the record indicates that in June of 1980 the appellant went into bankruptcy and claimed as part of his obligations, $340 per month in support and alimony payments. This occurred at the same time he had withdrawn from paying alimony totally and subsequently withdrew from court-directed payments in support for the child through the court, and began paying on his own schedule and according to his own desires. Yet, he acknowledged to the Bankruptcy Court income of $1,280 per month throughout that period of time.

The defendant does not appear to be interested in employment which, although it might temporarily bring in a lesser salary than he desires, could bring him up to the level established by the court as his earning potential at this time. It can only be assumed that his reluctance has some bearing on the fact that the mother has filed for an increase in the support for the child and for enforcement of the alimony payments. Thus, we conclude, based on the record as a whole and the mandate of the Ohio statute which has an equivalent mandate in the Pennsylvania law, that under all the relevant facts and circumstances, only one of which is present income, the defendant has the ability to pay the $100 a month alimony. To permit him to escape this obligation would be unwarranted not to mention discriminatory and unfair. This is all the more true since the trial court did nothing concerning the requested increase for child support, and in effect, permitted the father to continue paying to his son, on an informal basis, whatever he felt he was able.

Likewise, appellant’s failure to keep current on his payments justifies the lower court’s Order to pay arrearages.

We can reverse the finding of the trial court on a support order only if we find that the Order cannot be sustained on valid grounds. Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983).

Finding no abuse of discretion, we affirm the Order of the lower court. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

Order affirmed.

BECK, J., concurs in the result.

      . Ohio Rev. Code Ann. § 3105.18, provides:
      (A) In a divorce, dissolution of marriage, or alimony proceedings, the court of common pleas may allow alimony as it deems reasonable to either party.
      The alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court deems equitable.
      (B) In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including:
      (1) The relative earning abilities of the parties;
      (2) The ages, and the physical and emotional condition of the parties;
      (3) The retirement benefits of the parties;
      (4) The expectancies and inheritances of the parties;
      (5) The duration of the marriage;
      (6) The extent to which it would be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home;
      (7) The standard of living of the parties established during the marriage;
      (8) The relative extent of education of the parties;
      (9) The relative assets and liabilities of the parties;
      (10) The property brought to the marriage by either party;
      (11) The contribution of a spouse as homemaker.
      (C) In an action brought solely for an order for alimony under section 3105.17 of the Revised Code, any continuing order for periodic payments of money entered pursuant to this section is subject to further order of the court upon changed circumstances of either party.

      . Defendant would have the court deduct the rent or other expenses he pays for his own home from the rent he receives from the rental property to reduce net income. This is improper as those expenses are attributable to his living expenses and are not considered when computing income.
      The $129 per week unemployment compensation comes to $554 per month, when multiplied by 4.33, the average weeks per month obtained by dividing 12 into 52.


text:
    488 A.2d 17
    Wilbur B. GANTZ v. Lillie I. Heisey GANTZ, Appellant.
    Superior Court of Pennsylvania.
    Argued July 17, 1984.
    Filed Feb. 6, 1985.

      Arthur L. Jenkins, Jr., Norristown, for appellant.
    Joan B. Stuart, Norristown, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from a final Decree in Divorce, entered September 26, 1983, in the Court of Common Pleas of Delaware County. We are here presented with an issue of first impression under the 1980 Divorce Code 23 P.S. § 101 et seq.

Appellant, Lillie Gantz, was the named defendant in a divorce action filed April 13, 1981 in Delaware County under § 201(c) of the Divorce Code. No issues other than dissolution of the marriage were joined. Appellee filed his plaintiff’s affidavit under § 201(d) on August 18, 1983. Appellant, without denying the averments of a three year separation or irretrievable breakdown, filed exceptions contending that the Delaware County Court was without jurisdiction to proceed to final judgment. The basis of this claim was that on February 28, 1983, approximately one year and seven months after the filing of the Delaware County action, appellant instituted another divorce action, as plaintiff, in the Court of Common Pleas of Montgomery County in which economic issues were included. The Montgomery County master recommended divorce after resolution of the economic issues. This proceeding, appellant claimed in her exceptions and now claims in appealing from the decree, deprived the Delaware County Court of the authority to grant a divorce. We disagree.

Appellant cites Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983) in advancing the proposition that the court of Delaware County erred in refusing to bifurcate the proceedings, thus rendering its decree invalid. However, the court had no economic issues before it on which to base bifurcation (none having been pleaded), and given appellant’s failure to deny the averments of appellee’s § 201(d) affidavit, was not only justified in addressing the dissolution issue alone, but deprived of discretion to do otherwise. Thill v. Larner, 321 Pa.Super. 62, 467 A.2d 894 (1983).

Although appellant attempted to protect her property rights, harmed it is claimed, by entry of the final decree, by filing a separate complaint in Montgomery County, we find this action violative of the spirit if not the letter of the joinder and counterclaim provisions of the 1980 Divorce Code. Section 301(a) reads in pertinent part:

(d)(1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
(i) the respondent does not deny the allegations set forth in the affidavit; or
(ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.
301 Jurisdiction (a)
The courts of this Commonwealth as defined in § 104 shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and where they have jurisdiction, shall determine in conjunction with any decree granting a divorce ... the following matters where raised in the complaint or the answer, an issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
(1) the determination and disposition of property rights and interests between spouses. ...

As the legislative history and the Joint State Government Commission Report, June 1961, Proposed Divorce Code for Pennsylvania, Comments on this section indicate, the intent is to make mandatory, rather than permissive, the consolidation of all issues germane to the dissolution of a marriage so as to prevent fragmentation such as is displayed by this case. See Rounick, Pa. Matrimonial Practice, Volume 1, §§ 13.3-13.4.

The case of Betz v. Betz, 103 Pa.Super. 306, 157 A. 359 (1931) decided when counterclaims were not permitted in divorce, and necessarily relied on by those few lower courts faced with the issue, held that parallel jurisdiction was permissible because such jurisdiction eliminated “... the deadlock which resulted from denying a divorce to a plaintiff and at the same time refusing to permit a defendant, who had grounds for divorce, to file a crossbill [by permitting] the defendant ... to file a separate action for divorce or annulment even while the plaintiffs action was pending.” See Goodrich Amram 2d 1130(b):l. Prior rule 1130(b) allowed for such counterclaims while making them clearly permissive in nature and retained the option of separate actions. We feel that 23 P.S. § 301(a) must be interpreted to require consolidation of all issues in divorce so as to counter the “monumental waste of judicial time and litigant’s money” Ravetz, supra at 126, which is represented by continued application of an antiquated procedure no longer justifiable by circumstances or policy. Altschuler v. Altschuler, 334 Pa.Super. 111, 482 A.2d 1106 (1984). After consolidation has been achieved, bifurcation may then proceed or not according to the governing rules, the wishes of the parties and the discretion of the one court which can oversee the matter in its entirety. The same regularity, consistency and predictability must be brought into the proceeding for divorce as has occurred in custody and to a lesser extent, support actions. We do recognize that this ruling must be prospective only and therefore, may not be applied in the instant case.

It is clear from the hearing held before Judge Tressler of Montgomery County that appellant’s main purpose in filing a duplicate action, rather than joining economic issues in Delaware County, was to escape what counsel felt were less advantageous local rules regarding equitable distribution. Keeping in mind appellant’s attempt at forum shopping, and the prospective application of a consolidation requirement, the question of remedy remains.

Appellant has requested that the Order of the Delaware County Court dissolving her marriage be stayed pending an adjudication by the Montgomery County Court. We see no reason for such an action and, in fact, see no reason for any action whatever. Appellant’s economic claims are before the Montgomery County Court where she has voluntarily placed them; she has received a divorce, albeit not when or where she desired. A stay of the Delaware County decree would, therefore, serve no useful purpose.

In conclusion we would urge that with all deliberate speed, the Pennsylvania Supreme Court Civil Rules Committee promulgate rules which provide guidance to the Bench and Bar as to appropriate considerations of venue, consolidation, certification and bifurcation. Such rules should contain provisions to guide the trial judges in the determination of the appropriate venue and include but not be limited to consideration of: residence of the parties, county of dominant interest, issues to be resolved (i.e., divorce, property, support, custody), location of property subject to distribution, employment, relative convenience and expense. Obviously an absolute rule could create as many problems as none at all, but with a reasoned approach and trust in the good sense and discretion of the trial judges, much of the current confusion and manipulation can be eliminated.

Order of the Court of Common Pleas of Delaware County granting the Decree in Divorce is affirmed.

      . 23 P.S. § 201(c)
      (c) It shall be lawful for the court to grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

      . 23 P.S. § 201(d)

      . September 25, 1977, HJ 1825R, 1826L.

      . Ravetz v. Ravetz, 109 Montg. Co. LR 125 (1981). Bem v. Bem, 30 Ches.Co.Rep. 276 (1982).

      . Our ruling herein does not effect Rules 1920.31(c) or 1920.32(b) which allow claims for child support or custody respectively to be brought at any time.

      . The general rule that judicial notice may not be taken of proceedings in other courts is inapplicable in divorce cases. Buncher v. Buncher, 207 Pa.Super. 322, 217 A.2d 861 (1966); Verbalis v. Verbalis, 206 Pa.Super. 87, 211 A.2d 130 (1965); Commonwealth ex rel. Branch v. Branch, 175 Pa.Super. 373, 104 A.2d 183 (1954).


author: CERCONE, Judge:

text:
    488 A.2d 21
    Kenneth SEEWAGEN v. Hans VANDERKLUET & Priscilla Vanderkluet, Individually and t/a Red Lion Inn, Appellants. Kenneth SEEWAGEN v. VANDERKLUET, INC., trading as Red Lion Inn, Appellants.
    Superior Court of Pennsylvania.
    Argued June 12, 1984.
    Filed Feb. 6, 1985.

      Robert I. Cottom, Reading, for appellants.
    John P. Yatsko, Norristown, for appellee.
    Before CIRILLO, BECK and CERCONE, JJ.
   CERCONE, Judge:

Kenneth Seewagen (“plaintiff”) filed actions in trespass against Hans Vanderkluet and Priscilla Vanderkluet, individually and trading as Red Lion Inn, and against Vanderk-luet, Inc., trading as Red Lion Inn (“defendants” or “appellants”). Plaintiff claimed that he sustained personal injury involving the loss of an eye caused by defendants’ negligence while plaintiff was business invitee on defendants’ premises. The actions were tried under the Comparative Negligence Act of July 9, 1976, as amended, 42 Pa.C.S.A. § 7102. In response to special interrogatories, the jury found defendants 51 percent negligent and the plaintiff 49 percent negligent. The trial court accordingly molded the verdict for plaintiff in the amount of $27,277.86, which included damages for delay.

Defendants filed motions for judgment n.o.v. and for a new trial. The lower court denied both of defendants’ motions and this appeal followed. For the reasons following, we affirm.

The issues on appeal are (1) whether the lower court erred in refusing appellants’ motion for judgment n.o.v.; (2) whether the appellants’ are entitled to a new trial because the verdict is against the weight of the evidence; and, (3) whether the trial judge erred in refusing the appellant’s point for Charge No. 3.

The facts necessary for this opinion are fully set forth herein.

On appeal from the refusal of the trial court to enter judgment n.o.v. for the defendant, the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner, the appellee here, the benefit of every reasonable inference reasonably to be drawn from the evidence. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991, 993 (1982) (citations omitted). All unfavorable testimony and inferences must be rejected. Id.

Appellants argue that, as a matter of law, plaintiff failed to submit evidence sufficient to prove the alleged negligence, that is that defendants (1) failed to provide plaintiff with safety goggles; (2) failed to furnish penetrating oil; and (3) failed to inspect the premises. Appellants also contend that, as a matter of law, plaintiff’s comparative negligence exceeded that of the appellants’.

The essence of appellants’ argument is that plaintiff should have realized the risk involved after inspecting the situation himself and requested safety goggles and penetrating oil. Since plaintiff admittedly did not do so, appellants’ argue, he has failed to prove their negligence. Further, appellants argue that had they inspected, all they could have seen was that which the plaintiff himself saw. By arguing thus, appellants misconstrue plaintiff’s burden of proof. Plaintiff was only required to set forth facts sufficient to establish by a fair preponderance of the evidence that appellants had not met their duty of care as set forth in Section 343. It then comes within the province of the jury to determine the reasonableness of each party’s actions and to reconcile conflicting statements. The plaintiff does not have the burden of disproving his own contributory negligence as appellant’s would suggest. To impose such a burden would defeat the purpose of Pennsylvania’s Comparative Negligence Statute, 42 Pa.C.S.A. § 7102 (“statute”).

The plaintiff testified that he had been employed by appellants to assist in painting, cleaning and refurbishing their newly-acquired bar and restaurant premise. While performing an assigned chore of removing an old sign which was attached to an outdoor post and secured by a metal clamp with rusted screws, a sliver of metal snapped off and struck plaintiff’s eye. He further testified that appellants were present and in charge of the renovation, that they had supplied the tools and material for the job, and they had not furnished safety goggles or solvent for loosening rusted screws. Appellants admitted that they had failed to inspect the property for hidden defects.

While the record contains other conflicting testimony, the recited testimony is sufficient for the jury to determine whether defendants had been negligent by not discovering the condition and realizing that it involved a risk to plaintiff which he would not realize or protect against. Defendants offered no testimony or evidence on their own behalf. They offered no testimony that they had warned plaintiff of the possible danger or that they knew he had special knowledge and would realize the danger involved. They rested on the assertion that plaintiff had failed to make out a prima facie case of negligence. As previously stated, this court can only view the evidence to determine whether the record contains sufficient credible evidence to support the jury’s verdict. It goes without saying that this court is not to substitute its judgment for that of the jury on issues of fact.

The question of what could reasonably be discovered upon inspection, what is an unreasonable risk of harm, and whether the appellants could reasonably have expected the plaintiff to realize the risk are all issues for the jury. See, for example, Peair v. Home Ass’n of Enola Legion No. 751, 287 Pa.Super. 400, 430 A.2d 665 (1981). The issue here is not whether defendants were negligent in any active conduct, but whether they were negligent in their failure to realize a potential problem and to take steps to guard against it.

The appellants direct this court’s attention to several cases in which a judgment n.o.v. was granted on appeal. Most of these cases are distinguished by the fact that they occurred before the comparative negligence statute was passed and they are based on a finding by the appellate court that the plaintiff was, as a matter of law, contributorily negligent. Since the passage of the statute, simple contributory negligence is no longer a complete bar to plaintiff’s recovery. Ryden v. Johns-Manville Products, 518 F.Supp. 311 (Eastern D.Pa.1981). The principle of comparative negligence applies to causes of action arising after September 7, 1976, regardless of when the case was tried. Fahringer v. Rinehimer, 283 Pa.Super.Ct. 93, 423 A.2d 731 (1980). Therefore, the following cases, cited by appellant, are inapposite here: Atkins v. U.R.A. of Pgh., 489 Pa. 344, 414 A.2d 100 (1980); Jewell v. Beckstine, 255 Pa.Super.Ct. 238, 386 A.2d 597 (1978); Kubacki v. Citizens Water Co., 403 Pa. 472, 170 A.2d 349 (1961); Thompson v. Goldman, 382 Pa. 277, 114 A.2d 160 (1955). Other cases cited by the appellants are also not persuasive. In Palenscar v. Bobb, Inc., 439 Pa. 101, 266 A.2d 478 (1970), the plaintiff was an electrician who was specially called by the defendant to fix an electrical problem. The court found as a matter of law that the landowner had discharged his duty by notifying plaintiff of the possible defect. Similarly, the passage cited by appellants from Mathis v. Lukens Steel Co., 415 Pa. 262, 203 A.2d 482 (1964), does not affect the outcome of this case. The court there held that an owner of land can not be liable for injuries caused by a latent defect which could not be discovered by the exercise of reasonable care and diligence. While this is a correct statement of Pennsylvania law, appellants fail to realize that to determine whether appellants could have discovered the defect or had exercised reasonable care are questions of fact. It is clearly inappropriate for this court to make that factual determination when it is a question upon which reasonable people could reach different conclusions. The decision in Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. 641, 359 A.2d 440 (1976) is also distinguishable. There the court granted a judgment n.o.v. because the appellee-plaintiff had failed to show any facts that the defect was caused by some discoverable condition or structural defect of which the appellant could have been aware had it performed an inspection and, therefore, an inference of negligence on the part of appellants necessarily was based on conjecture. In the present case, Mr. Seewagen did show that the screws to be worked upon were old and rusty and that appellant could have become aware of the potential risk upon inspection. At argument on appeal, appellants’ counsel requested this court to note Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). Again, this case is distinguishable as it turned on the trial court’s misunderstanding of the effect of an “assumption of the risk” defense as compared to a defense of contributory negligence. In that case, the trial court refused appellant’s “assumption of the risk” charge reasoning that the charge was incompatible with Pennsylvania’s comparative negligence statute. On appeal, the Pennsylvania Supreme Court held that “assumption of the risk” is still a viable defense which may relieve a possessor of land of a duty of care. The court found plaintiff-appellee’s own admission that she saw dangerous ice and recognized the risk to be sufficient, as a matter of law, to establish that plaintiff had assumed the risk by walking on the ice when alternative paths were available. Again, the facts in the present case are not as clear cut as those in Carrender. Although Mr. Seewagen testified that he saw the rusty condition, he did not admit that he knew of the potential danger. Also, “[i]n determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered.” Quinn v. Kumar, 437 Pa. 268, 274, 263 A.2d 458 (1970) citing Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 584, 187 A.2d 646 (1963). The facts in this case do not, as a matter of law, show that plaintiff fully realized the risks involved or manifested a willingness to accept them or waived his right to later complain of defendant’s negligence.

Finally, appellant argues that there is no proof that the sliver which was removed from plaintiff’s eye came from the object on which he was working and, therefore, plaintiff has failed to prove the causation element of his claim. This argument is without merit. Appellants argue that the sliver was made of aluminum and that since the straps holding the sign were rusty, they could not have been made of aluminum. Appellants offered no proof as to the material from which the straps were made and plaintiff testified that the straps were “like aluminum”. This is certainly sufficient evidence for the jury to make an inference that the sliver originated from the strap and, thus, found a causal relationship.

Based on the foregoing discussion, the denial of appellants’ motion for a judgment n.o.v. is hereby affirmed.

Appellants argue that the verdict was against the weight of the credible evidence and if they are not entitled to a judgment n.o.v., then they are entitled to a new trial.

A court may grant a new trial only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Baldino v. Castagna, 308 Pa.Super. 506, 454 A.2d 1012 (1982). Appellants argue that there were too many inconsistencies in plaintiff’s testimony to give him any credibility. We agree with the court below that the inconsistencies and contradictions were neither of great quantity nor of serious magnitude. In resolving this issue, the court does not consider the evidence in the light most favorable to the verdict winner; rather, the court must view all of the evidence. Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970). Upon review of the entire record, we find that there is sufficient evidence for the jury to have reached its conclusion without resort to mere speculation.

Appellants’ final issue on appeal is that the trial court erred in refusing their Point for Charge No. 3 and, therefore, a new trial should be granted. The essence of this point for charge was that if the jury found that plaintiff deliberately and intentionally attempted to free the frozen bolt, knowing its condition, without asking for advice, protective goggles or penetrating oil, the jury could find that he was contributorily negligent and assumed the risk. The totality of the instructions given to the jury was sufficient to encompass the concept contained in the requested point for charge. Specifically, the concept of contributory negligence or assumption of the risk, as that term is used in the point for charge, were covered by the following instructions by the court:

A possessor of land is not liable to a business invitee for physical harm caused to him by any activity or condition on land whose danger is known or obvious to the invitee, ...

coupled with

The defendants in this case claim that the plaintiff was contributorily negligent, and under the law the defendants have the burden of proving the existence of such negligence. You must, therefore, determine whether the plaintiff was negligent in that as an ordinarily prudent person, under all the circumstances, then present, he failed to exercise reasonable care for his own protection.

A trial judge has wide latitude in charging the jury and may use any particular language provided the language used adequately and fully conveys the laws applicable to the facts of the case. Fish v. Gosnell, supra, 316 Pa.Superior Ct. at 580, 463 A.2d at 1050 (citations omitted). The lower court’s charge here adequately explained contributory negligence.

The order of the trial court is hereby affirmed.

      . 42 Pa.C.S.A. § 7102 reads, in relevant part:
      (a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff should be diminished in proportion to the amount of negligence attributed to the plaintiff.

      . Both appellants and appellee set forth Restatement of Torts, Second, § 343 as the standard for measuring appellants’ duty of care. It provides as follows:
      343. Dangerous Conditions Known to or Discoverable by Prosses-sor
      (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

        (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      (c) fails to exercise reasonable care to protect them against the danger.

      . The issue on appeal in Mathis, supra, was the accuracy of the trial judge’s charge to the jury on the question of whether the landowner had, in fact, warned the plaintiff of the potential danger.

      . Appellants’ Point for Charge No. 3 reads as follows:
      Mr. Seewagen testified that after he climbed the ladder, he observed that the sign and the brackets holding it were rusted, and he further testified that when he first tried to loosen the first bolt with his screwdriver, the bolt or screw was frozen and the screwdriver slipped out of his hand and fell. He further testified that no one saw this occur, and that after it did occur, he did not go in and report it to anyone inside the building. He did not ask for any penetrating oil, and he did not ask for any safety goggles. Instead, he testified that he went back up the ladder, and once again tried to loosen the screw with the screwdriver, using both hand to apply additional force. Therefore, if you find that Mr. Seewagen deliberately and intentionally attempted to free the frozen bolt, knowing that it was frozen, without asking for advice, protective goggles or penetrating oil, you may find that he was contributorily negligent and assumed the risk. (R. 195a-196a)

      . Had the appellants requested specific instructions on “assumption of the risk,” we might be compelled to reach a different conclusion today based on Corrender v. Fitterer, supra. However, that issue is not before us at the present time. See Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983) for a discussion on the role of the “assumption of the risk” defense in negligence cases.


author: BROSKY, Judge:

text:
    488 A.2d 27
    In re Trust of Melvin BACHMAN. Appeal of Eleanor J. BACHMAN, Individually and as Administratrix of the Estate of Melvin E. Bachman.
    Superior Court of Pennsylvania.
    Argued Aug. 7, 1984.
    Filed Feb. 8, 1985.

      Alfred G. Yates, Jr., Pittsburgh, for appellant.
    Before BROSKY, WATKINS and HESTER, JJ.
   BROSKY, Judge:

This appeal is from the dismissal of a Petition to Vacate the Decree of Distribution of a trust estate. Appellant contends that she was not given notice of the proceedings and that an adjudication of her interest in the estate must be undertaken. Along with the Court of Common Pleas, we find this issue waived due to its absence from the petition and, accordingly, affirm.

The instant petition was brought under 20 Pa.C.S. § 3521, providing the opportunity for a challenge to be made to the decree of distribution. This petition did not allege that appellant had not received notice of the prior proceedings, which had involved her now deceased husband. The Court of Common Pleas held that the notice issue was waived by its absence in the petition.

Appellant counters that the inclusion of the notice claim in the brief supporting the Petition and in oral argument on the petition acts to preserve the issue. In support of this appellant cites In re Estate of Chiara, 467 Pa. 586, 359 A.2d 756 (1976). Chiara held that an issue not included in the exceptions to an account of an estate would nonetheless be preserved through inclusion in the brief.

While the item in question should, of course, have been the subject of a formal objection to the account, failure to do so should not prove fatal in this case. The trial memorandum presented to the court on Gloria’s behalf before hearing on the objections and the brief submitted before decision was rendered were in effect, amendments to the formal objections, and should have been so treated by the court. The rules of the orphans’ court divisions are to be “liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Rule 2.1 (formerly Section 2 of Rule 1) of the Orphans’ Court Rules of this Court. The same rule allows the orphans’ court to “disregard any error or defect of procedure which does not affect the substantial rights of the parties in interest.” See also 20 Pa.C.S. § 3521. If, therefore, the court’s failure to consider the issue was because of the “defect of procedure” referred to, the court abused its discretion in the premises.

In re Estate of Chiara, supra, 467 Pa. at 594, 359 A.2d at 760.

If Chiara is binding precedent, it would lead to the disposition of this case in appellant’s favor. We conclude, however, that Chiara is not precedential.

Six, rather than seven, Justices participated in the Chiara decision. One of these Justices concurred in the result. As such, that vote does not contribute to a majority of the court participating necessary to create precedent. “Their votes represent only their agreement with the mandate affirming the judgment of sentence, and nothing more.” Commonwealth v. Glover, 497 Pa. 433 at 436, 441 A.2d 1216 at 1217 (1982). Two additional Justices did not join the opinion but “would affirm the decree of the Orphans’ Court.” The portion of the opinion quoted above resulted in a remand in part and thus those two Justices clearly did not adopt the rule in question. The net result is that only three of six participating Justices joined Chiara on the issue before us. This is insufficient to create precedential value.

While the rule adopted in [Commonwealth v. Jones [457 Pa. 563, 319 A.2d 142 (1974) ] that a defendant is entitled to a requested instruction on voluntary manslaughter received the support of all six participating Justices, the harmless error analysis in the opinion in support of affirmance was adopted by only three of the six Justices. Thus, the opinion in support of affirmance has no precedential value on the harmless error issue; we consider it only for its persuasive value.

Commonwealth v. Covil, 474 Pa. 375 at 380-1, 378 A.2d 841 at 844 (1977).

Since Chiara does not state the law in this Commonwealth, it remains for us to consider its persuasive value. Because the proposition in Chiara is an anomoly, inconsistent with analagous areas of the law, we find it unpersuasive and decline to adopt it.

In the landmark case of Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) the high court of this Commonwealth repudiated the fundamental error doctrine and heralded a new era emphasizing the waiver of issues for lack of preservation. That orientation was given an application of interest here in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). Gravely held that a brief raising issues was insufficient to overcome their absence from the post verdict motions. See also Commonwealth v. Perry, 279 Pa.Super. 32, 420 A.2d 729 (1980).

This rule of law has also been extended to civil cases. In Cherry v. Willer, 317 Pa.Super. 58 at 63, 463 A.2d 1082 at 1084 (1983) this Court wrote, “... we, therefore, hold that hereafter, in civil as well as criminal cases, only issues specifically raised in post-verdict motions can be considered and will be preserved for appeal, and issues raised only in briefs in support of those issues may not be considered.”

Cherry is consonant with Pa.R.C.P. 1038(d), in effect at the time this case was in the Orphans’ Court, and with Pa.R.C.P. 227.1(b)(2) currently in effect.

This is of particular significance in light of the fact that the practice in Orphans’ Court “is to conform to the practice in equity.” Orphans’ Crt.R. 3.1. Equity practice, in turn, “shall be in accordance with the rules relating to a civil action.” Pa.R.C.P. 1501.

The dissonance between Cherry and Chiara becomes even more apparent when one looks to the rationale used by Chiara — that Orphans’ Crt.R. 2.1 justifies its result. The language of Orphans’ Crt.R. 2.1 quoted in Chiara, above, is identical to that of Pa.R.C.P. 126. Given the same guiding principle in both the Civil and Orphans’ Court Rules, the incongruity of having briefs preserve exceptions in Orphans’ Court but not in the Civil division of the Court of Common Pleas becomes both apparent and insupportable.

Consequently, we hold that the practice in Orphans’ Court is to follow that in criminal and civil cases: issues not included in exceptions or petitions will not be preserved by virtue of their having been argued in the supporting brief or at oral argument.

The lack of notice issue, argued in the appellate brief, was not, therefore, properly preserved. The court below properly declined to review the issue not before it.

Order affirmed.

      . Our reading of that petition verifies the absence of an allegation regarding lack of notice.

      . The procedural distinction, that Chiara involved exceptions and the case sub judice a petition, would not be a sufficient basis for the non-application of Chiara here.

      . While divided on the retrospective effect of this holding, six of seven Justices agreed on the prospective validity of the rule in Gravely.

      . In Cherry v. Willer, the court applied waiver prospectively only because the appellant in that case had filed his post-verdict motions subsequent to the decisions concerning post-verdict motions. Cherry v. Willer, supra, 317 Pa.Superior Ct. at 64, 463 A.2d at 1085. Here, however, post-verdict motions were filed after those cases: Commonwealth v. Gravely, supra; Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981).

      . "... Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters.”

      . “Post-trial relief may not be granted unless the grounds therefor, ... (2) are specified in the motions ... Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.”


author: WIEAND, Judge: McEWEN, Judge,

text:
    488 A.2d 29
    COMMONWEALTH of Pennsylvania v. Alfred PEDUZZI, III, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 27, 1984.
    Filed Feb. 8, 1985.

      Robert D. Kodak, Harrisburg, for appellant.
    John M. Eakin, District Attorney, Carlisle, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

Alfred Peduzzi, III, was tried nonjury and was found guilty of theft by failure to make required disposition of borrowed money. After post-trial motions had been filed and argued, the trial court concluded that the evidence did not support the conviction. Instead of discharging Peduzzi, however, the trial court amended its verdict and found Peduzzi guilty of theft by deception. Peduzzi was subsequently sentenced on this conviction and thereafter appealed. We reverse.

In the first place, the trial court’s procedure was defective. Appellant had not been charged with the crime of theft by deception and had not been tried for that offense. Informations filed to Nos. 941 to 946 of 1980 charged that Alfred Peduzzi, III had used funds loaned to him by others for purposes other than the purposes for which the loans had been made, allegedly in violation of 18 Pa.C.S. § 3927. After all the evidence had been received, the trial court found Peduzzi guilty in a verdict recorded as follows:

“AND NOW, March 2, 1981, at 4:25 p.m., after hearing and careful consideration of the evidence, the court finds the defendant guilty on each charge in the informa-tions, as presented by the District Attorney. Bail to remain as heretofore set.” (Emphasis added.)

This verdict was unambiguous. Peduzzi had been found guilty of theft by failure to make required disposition of the moneys which he had borrowed. The trial court subsequently concluded that the evidence was insufficient to establish offenses of theft by failure to make required disposition as defined at 18 Pa.C.S. § 3927. In view of this determination, Peduzzi should have been discharged. Instead, the court belatedly found him guilty of another offense.

To alter the verdict after trial so as to find appellant guilty of a new and different offense, without any notice or opportunity to be heard, was error. Contrary to the trial court’s belief, 18 Pa.C.S. § 3902 does not sanction such a procedure. See: Commonwealth v. Lewis, 299 Pa.Super. 367, 371, 445 A.2d 798, 800 (1982). Cf. Commonwealth v. Morin, 237 Pa.Super. 533, 542-543, 352 A.2d 189, 194 (1975) (Spaeth, J. concurring), rev’d on other grounds, 477 Pa. 80, 383 A.2d 832 (1978). Section 3902 of the Crimes Code was intended to allow the Commonwealth to introduce evidence at trial of any form of theft regardless of the form of theft charged but subject to the defendant’s right to fair notice and an opportunity to defend. Commonwealth v. Lewis, supra; Comment, Theft And Related Offenses In The New Pennsylvania Crimes Code: A New Concept In Property Offenses, 78 Dick.L.R. 44, 48 (1973-1974). See also: Commonwealth v. Adams, 236 Pa.Super. 534, 345 A.2d 192 (1975) (Hoffman, J. concurring). The consolidation contemplated by section 3902 must occur prior to, not after, a verdict has been returned and recorded. The court cannot amend a verdict post-trial so as to find the defendant guilty of a new and different offense than the one for which he was tried. The sentence imposed for theft by deception, therefore, was improper.

The evidence, moreover, was insufficient to show that appellant had committed the crime of theft by deception. “The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial 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. Carter, 329 Pa.Super. 490, 495-496, 478 A.2d 1286, 1288 (1984).

Peduzzi was an unorthodox, perhaps even incompetent, businessman who found it necessary to borrow frequently. His practice was to borrow significant sums of money at excessive rates of interest for relatively brief periods of time. On prior occasions, his loans had usually been repaid with interest. The charges of theft by failure to make required disposition in the instant case were filed against Peduzzi when he failed to repay moneys borrowed from six persons in the total amount of $67,500.00.

The crime of theft by deception is defined by statute as follows:

(a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
(b) Exception. — The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.

18 Pa.C.S. § 3922. The moneys of other persons in these cases were expressly obtained by appellant in the form of loans. To be guilty of theft by deception, therefore, it was essential that appellant obtain the loans by deception intending not to repay the moneys borrowed. Cf. Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977); Commonwealth v. Bentley, 302 Pa.Super. 264, 448 A.2d 628 (1982). His intention not to repay the loans at the time the moneys changed hands was a matter of proof. It could not be inferred from the fact alone that he was unable subsequently to repay the moneys. 18 Pa.C.S. § 3922(a)(1).

Peduzzi, according to the evidence, had represented to his lenders that he required money to purchase inventory for his automotive parts store. He had said that he wanted to purchase spark plugs, spark plug wires and oil filters and that he could get them for a good price. Although he went into bankruptcy after repaying only $2,700.00 of the moneys borrowed, there was no evidence that Peduzzi had intended to defraud his lenders at the time when he borrowed from them. There was no evidence that he had deceived his lenders or that he did not intend to repay the loans.

The Commonwealth did not prove that Peduzzi had failed to purchase spark plugs. It proved, instead, certain statements made by Peduzzi to the effect that the purchased spark plugs had been defective and without salvage value. Peduzzi testified in his own behalf and said that ninety percent of the spark plugs had been cracked and were so defective as to have no value. He assumed that they had “been in a wreck.” He also testified that some money had been used to pay outstanding debts and to help his family. When his financial structure appeared to be collapsing around him, he tried to recoup his losses at the track. Instead of improving his financial outlook, he lost what he did have.

The trial court did not believe Peduzzi’s explanation regarding the spark plugs. The court found that his testimony concerning the purchase of spark plugs was incredible. Therefore, concluded the court,

“it follows that his representations to each of the complainants were false. Peduzzi created a false impression in the minds of the complainants as to what he intended to do with their money and the repayment of their funds. By means of this deception he obtained the complainants’ money. In addition, by informing complainants that he was unable to dispose of the plugs and had not received payment from his customers, Peduzzi withheld the property by reinforcing the false impression previously created. This Court finds that Peduzzi had no intention of purchasing auto parts or returning the funds. The facts he asserted were false and by means of these assertions he obtained and withheld complainants’ property. We thus find the evidence sufficient to establish the elements of a § 3922 violation and to sustain a conviction for the crime of theft by deception.”

Trial court opinion at 16-17 (emphasis added). This was error. The fact that the court disbelieved appellant’s explanation with respect to spark plugs did not relieve the Commonwealth from its burden of proving each and every element of the crime charged beyond a reasonable doubt. This burden never shifted from the Commonwealth. See: Commonwealth v. Clinton, 391 Pa. 212, 216, 137 A.2d 463, 465 (1958) (accused is not required to explain anything, the Commonwealth must prove guilt); Commonwealth v. Da-rush, 256 Pa.Super. 344, 349, 389 A.2d 1156, 1158 (1978) (Commonwealth has never shifting burden of proving all elements of the charged offense). In fact, the Commonwealth did not offer any evidence that Peduzzi had failed to purchase spark plugs. The fact that the trial court did not believe the explanation offered by appellant for his losses was not a substitute for proof. If the appellant was a liar, as the court found, it did not necessarily follow that he was also a thief. The fact finder’s disbelief of appellant’s testimony did not relieve the Commonwealth of its burden of proving that he had committed a theft.

Not only was there no evidence that appellant had failed to purchase spark plugs with the borrowed money, but there also was no evidence from which it could be inferred that he had intended to defraud his lenders. The Commonwealth failed to show that Peduzzi had entered anything other than bona fide loan transactions. On prior occasions when Peduzzi had similarly borrowed money, the loans had been repaid, usually with interest. The loan of $25,000.00 made by William Rowe was evidenced by a note signed by Peduzzi for $30,000.00 (this included agreed interest of $5,000.00). John McKeehan, who loaned Peduzzi $22,-000.00, took in return a note signed by Peduzzi and was also given the title to Peduzzi’s Cadillac automobile to hold. McKeehan had frequently loaned money to Peduzzi on prior occasions; all prior loans had been for short terms and most of them had been repaid, frequently with “pretty hefty” interest. Earl Windermaker and his nephew, Jeff Davis, loaned Peduzzi the combined sum of $12,000.00. They took in exchange a note for $13,500.00 and also a check in the same amount (the loan was to be for five or six days, and each lender was to be paid interest of $750.00). The sum of $1,500.00 was subsequently repaid by Peduzzi in order to obtain an extension of the agreed due date. William G. Miller, who loaned Peduzzi $6,000.00 also received a note and a check in repayment. The check was for $7,000.00. A week later Peduzzi repaid $200.00. The check, however, was uncollectible. George Plough loaned appellant $2,500.00. He received both a note and a check in the amount of $3,300.00. These lenders conceded that the loans had been made primarily because of Peduzzi’s promise to pay interest and not because Peduzzi wished to buy spark plugs at a good price. The evidence did not show whether the notes, when given, had value or whether they were collectible from appellant’s business or personal assets. The Commonwealth’s failure to prove that appellant did not intend to repay the moneys borrowed is understandable. The charges which it brought and the proof which it submitted suggested a belief that appellant had committed an offense merely because he had failed to make a required disposition of the borrowed moneys.

Although one can speculate about the number of transactions, the simple fact is that the Commonwealth failed to prove that Peduzzi had committed a crime. The trial court set aside a finding of guilt of theft by failing to make required disposition; and our review of the record fails to disclose either an intent to defraud or an intentional misrepresentation of the purposes for which the moneys were being borrowed.

For these reasons we reverse. Appellant was neither charged with nor tried for theft by deception. He could not be found guilty of theft by deception without notice and an opportunity to be heard. The evidence presented during a trial on charges of theft by failure to make required disposition, moreover, was insufficient to establish that appellant had committed the crime of theft by deception.

The judgment of sentence is reversed, and appellant is discharged.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

I concur in the result of the very thoughtful opinion of our eminent colleague Judge Donald E. Wieand since I share the view that a court may not, after a verdict of guilty of the type of theft for which he was tried, determine the defendant was guilty of a different type of theft. However, as careful and persuasive as are the views expressed in that opinion upon the nature of the proof of the crime of theft by deception, I cannot agree that the Commonwealth must assume the burden that the lead opinion would impose in order to convict an accused of that charge.

      . It is incorrect that a consolidation of theft offenses occurred at the demurrer stage of the trial and that the case was thereafter tried as though there were a charge of theft by deception. The trial transcript discloses that the following occurred when the defense demurred to the evidence:
      MR. KODAK: Your Honor, I have a memorandum in support of demurrer I’d like to make at this time for the prosecution's case.
      THE COURT: Do you have a copy of this, Mr. Eakin?
      MR. EAKIN: Yes, sir.
      THE COURT: Any oral argument you want to make?
      MR. KODAK: Yes, Your Honor, I’d request a few moments of your time.
      (Thereupon, counsel made their arguments to the court. A brief recess was held at this time.)
      THE COURT: For purposes of demurrer, Mr. Kodak, I’m overruling your demurrer. If you want to proceed.
      MR. KODAK: Yes, Your Honor. I’m going to call Mr. Peduzzi. Whereupon,
      ALFRED PEDUZZI, III
      having been duly sworn according to law, testified as follows:

      . Although the record discloses that a brief discussion regarding a possible consolidation of theft offenses occurred at the conclusion of the trial, the court’s verdict is clear that appellant was found guilty of the offenses charged in the information.

      . The correctness of this conclusion is not now before us, and with respect thereto we express no opinion. See generally: Commonwealth v. Coward, 330 Pa.Super. 122, 478 A.2d 1384 (1984); Commonwealth v. Austin, 258 Pa.Super. 461, 393 A.2d 36 (1978). See also: Commonwealth v. Bartello, 225 Pa.Super. 277, 301 A.2d 885 (1973).


author: WIEAND, Judge:

text:
    488 A.2d 34
    COMMONWEALTH of Pennsylvania v. William Charles RAINEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1984.
    Filed Feb. 8, 1985.

      Charles D. Daugherty, Carlisle, for appellant.
    Theodore B. Smith, III, Carlisle, for Commonwealth, ap-pellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WIEAND, Judge:

William C. Rainey was convicted by a jury of having weapons or implements of escape in his possession while an inmate at the State Correctional Institution at Camp Hill. He was sentenced to serve a consecutive sentence of imprisonment for not less than three nor more than twenty-six months. Both Rainey and the Commonwealth filed petitions requesting the court to reconsider the sentence. Upon doing so, the court determined that it had deviated from the sentencing guidelines without good cause. Therefore, the court imposed an increased prison sentence of not less than six nor more than thirty months. On appeal, Rainey argues that the increased sentence violated principles of double jeopardy. We disagree and, accordingly, affirm the judgment of sentence.

In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Supreme Court of the United States considered a double jeopardy argument directed against provisions of the Dangerous Special Offenders Act, 18 U.S.C. § 3575 et seq., which permitted government appeals from sentences deemed too lenient. The Court held that the “Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents [review and] later increase.” Id. at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346. In so doing, the Court rejected contrary language in Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874) and United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931), to the effect that double jeopardy principles precluded a subsequent increase in a sentence already imposed.

Pa.R.Crim.P. 1410 makes provision for the Commonwealth to file a post-sentencing motion to modify a sentence. The allowance by the court of a modification petition filed by the Commonwealth is not proscribed by double jeopardy principles. Commonwealth v. Anderson, 304 Pa. Super. 476, 482, 450 A.2d 1011, 1014 (1982). “[N]o sentence,” said the Court in Anderson, “is final until the right of appellate review has been exhausted or waived.” Id. Thus, double jeopardy principles do not prevent a sentencing court from correcting, modifying, or increasing a sentence which the same court previously imposed. See: Commonwealth v. Adams, 333 Pa.Super. 312, 482 A.2d 583 (1984).

In Commonwealth v. Bossche, 324 Pa.Super. 1, 471 A.2d 93 (1984), the defendant had entered pleas of guilty to charges of theft by deception and writing bad checks. He affirmatively represented to the court that the offenses to which he was pleading constituted first convictions. The trial court, therefore, imposed a sentence of probation. Later the same day, the Commonwealth filed a petition to reconsider the sentence and, during a hearing on the following day, established that defendant had previously entered three separate guilty pleas to similar charges. The trial court then modified the sentence and imposed a sentence of imprisonment for not less than one nor more than two years. On direct appeal, this Court held that the increased sentence did not violate the defendant’s double jeopardy rights. “[T]he prohibition against multiple punishment ... is inapplicable when the sentencing guideline is explicit and any sentence imposed thereunder is specifically subject to prosecutorial appeal.” Id., 324 Pa.Superior Ct. at 6, 471 A.2d at 95, quoting Commonwealth v. Love, 295 Pa.Super. 276, 284-285, 441 A.2d 1230, 1234 (1982) (Hoffman, J., concurring).

In Pennsylvania, the Sentencing Code, at 42 Pa.C.S. § 9781(a) and (b), specifically provides for a prosecution appeal from an inappropriate sentence. Pa.R.Crim.P. 1410 requires, however, that the sentencing court must first be given an opportunity to reconsider any sentence which the prosecution alleges to be inappropriate. An inappropriate sentence may be modified thereafter without offending constitutional principles of double jeopardy.

The judgment of sentence is affirmed.

      . This is made a misdemeanor by the provisions of 18 Pa.C.S. § 5122.

      . Possession of weapons or implements for escape is a misdemeanor of the first degree. 18 Pa.C.S. § 5122(a)(2). Appellant had previously been convicted of murder of the second degree and at least one other felony, which gave him a prior record score of six (6). 204 Pa.Code § 303.7. Under these circumstances, the guidelines recommended a minimum range of 21 to 30 months and a mitigated minimum range of 16 to 21 months. 204 Pa.Code § 303.9(b).

      . The increased sentence still is lower than the minimum mitigated range suggested in the guidelines.

      . The double jeopardy clause of the Fifth Amendment is applicable to the states by virtue of the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Overruled on other grounds by Commonwealth v. Anderson, supra.