author: KELLY, Judge: ROWLEY, Judge,

text:
    544 A.2d 1000
    COMMONWEALTH of Pennsylvania v. Charles C. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 14, 1988.
    Filed July 6, 1988.

      Susan F. Burt, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, KELLY and CERCONE, JJ.
   KELLY, Judge:

Appellant, Charles Miller, appeals from the denial of his third Post Conviction Hearing Act petition after appointment of counsel but without an evidentiary hearing. We affirm.

FACTS AND PROCEDURAL HISTORY

Appellant shot and killed Arthur James Ruth in 1948. He pled guilty to murder generally, was found guilty of first degree murder, and was sentenced to life imprisonment. No appeal was taken from judgment of sentence.

Eighteen years later in 1967, appellant filed a pro se PCHA petition making numerous general allegations of constitutional violations by checking boxes on a PCHA form. This petition was dismissed without prejudice to reapply, and the matter was referred to a volunteer defender.

In July 1969, appellant filed a second pro se PCHA petition making five general allegations of constitutional violations, and attaching a pro se brief in support of the petition. In November 1971, the petition was granted as to leave to file post-verdict motions nunc pro tunc but denied as to all other issues. However, the assigned judge died prior to filing findings of fact in support of the denial of the issues raised in the PCHA petition. As a result, appellant was permitted to file post-verdict motions nunc pro tunc and was given reconsideration of the other PCHA claims. Both the post-verdict motions nunc pro tunc and the PCHA petition were subsequently denied. The orders were consolidated for review by our Supreme Court and affirmed in Commonwealth v. Miller, 454 Pa. 67, 309 A.2d 705 (1973).

Twelve years later in 1985, appellant filed his third pro se PCHA petition accompanied by a pro se brief alleging that the evidence at the 1949 degree of guilt hearing was insufficient to sustain a finding of guilt of murder in the first degree. Counsel was appointed but no amended petition was filed and no evidentiary hearing was granted. The petition was denied. Notice of appeal was filed and new counsel was appointed to represent appellant.

On appeal, appellant contends that: the issue of whether the evidence at the degree of guilt hearing was sufficient to sustain a verdict of murder in the first degree was not “finally litigated; ” all prior counsel were ineffective for failing to raise and properly litigate that claim; and, the evidence was in fact insufficient to sustain the verdict. The Commonwealth responds alternatively that appellant’s claim has been waived, was finally litigated against appellant previously, and is without merit. The trial court expressed no opinion as to whether appellant’s claim had been waived or as to the merits of the claim, but did find that the claim had been finally litigated against appellant previously.

I.

The Commonwealth argues that we should summarily affirm the order denying post-conviction relief based upon the fact that appellant waived the present claim by failing to raise it in prior PCHA petitions. Though the argument is well-founded, we decline to dispose of the present appeal on waiver grounds for the reasons which follow.

All claims for post-conviction relief must be raised in a petitioner’s first PCHA petition:

Any person desiring to obtain relief under this subchapter shall set forth in the petition all of his then available grounds for such relief for any particular sentence he is currently serving and he shall be entitled to only one petition for each crime. The failure to raise any issue in the petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented.

42 Pa.C.S.A. § 9545(c). (Emphasis added). However, in Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980) (plurality), our Supreme Court held that issues raised in a second PCHA petition were not finally litigated or waived when appellant asserted the “serial ineffectiveness” of all prior counsel; the Court held that an allegation of “serial ineffectiveness” was an allegation of “extraordinary circumstances” under 42 Pa.C.S.A. § 9544(b)(2) which precluded a finding of waiver notwithstanding the language of 42 Pa.C.S.A. § 9545(c) to the contrary. See also Commonwealth v. Sawyer, 355 Pa.Super. 115, 512 A.2d 1238 (1986). Appellant has alleged such serial ineffectiveness on appeal in the instant case. (Appellant’s Brief at 11-14).

The Watlington exception to the waiver rule, however, was subjected to strong criticism as permitting (and even encouraging) evasion of the § 9545(c) waiver rule through the vehicle of pro forma “serial ineffectiveness” claims. See e.g. Comment, Repetitive Post-Conviction Petitions Alleging Ineffective Assistance of Counsel: Can the Pennsylvania Supreme Court Tame the “Monster?”, 20 Duquesne L.Rev. 237, 237-271 (1982). The separate opinions in Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981) (plurality) indicated erosion of the support for the sweeping language of the Watlington exception to the waiver rule, but did not establish a consensus as to the limitations to be placed on the exception. See Comment, supra, at 264-267.

In Commonwealth v. Hagood, 516 Pa. 340, 532 A.2d 424 (1987), our Supreme Court again reconsidered the waiver provision of 42 Pa.C.S.A. § 9545(c) and the impact of the broad “serial ineffectiveness” exception recognized in Watlington, and concluded:

The stated purpose of the Act is to provide relief from convictions and sentences imposed without due process of law, 42 Pa.C.S.A. § 9542, not review of prior post conviction proceedings. Thus, persons currently serving sentences in this Commonwealth may, consistent with the Act, file one and only one PCHA petition. Failure to raise all claims that might have been raised in the first PCHA petition constitutes a waiver which will only be avoided by ‘extraordinary circumstances,’ 42 Pa.C.S.A. § 9544(b). Extraordinary circumstances have been variously defined by members of this Court, see, e.g., this author’s dissenting opinion in Commonwealth v. Watlington, 491 Pa. 241, 246, 420 A.2d 431, 434 (1980); see also the opinion of Mr. Justice Larsen in Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981). However, this case does not present any ‘extraordinary circumstances’ sufficiently compelling to persuade us that the conduct of an evidentiary hearing on appellee’s third PCHA petition is warranted.

532 A.2d at 426. The majority specifically noted:

Of course, appellee’s petitions have raised all issues in the context of the ‘layered’ claims of ineffectiveness prescribed in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Appellee is here represented by his seventh attorney.

532 A.2d at 425 n. 3.

Thus, in Hagood, the mere allegation of “layered” or “serial” ineffectiveness was deemed not to constitute “extraordinary circumstances” sufficient to avoid application of the 42 Pa.C.S.A. § 9545(c) waiver rule. See also Commonwealth v. Alexander, supra, 432 A.2d at 185 (Larsen, J.); id., 432 A.2d at 189 (Nix, then J., concurring); id., 432 A.2d at 189 (Flaherty, J., concurring; Kaufman, J., joins). The rejection of Hagood’s “serial ineffectiveness” claim, coupled with citation to the dissent of Justice Flaherty in Watlington and the plurality opinion of Justice Larsen in Alexander, marks a clean break from the sweeping language of the Watlington exception and a revitalization of the waiver rule.

In his dissent to Watlington, supra, Justice Flaherty opined: “I would limit collateral review to claims (1) constituting a denial of due process or fundamental fairness that (2) significantly implicate the truth determining process. Thus, defense counsel’s waiver of an issue, whether for reasons of strategy or negligence, would not constitute ineffectiveness cognizable in a second PCHA petition unless the issue met the two prong test.” 420 A.2d at 437 (emphasis in original); cf. Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364, 381 (1986) (Powell, J., plurality opinion) (would require a showing of colorable factual innocence to support a successive petition for federal habeas corpus)', accord Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970).

In his plurality opinion in Alexander, supra, Justice Larsen opined, “Justice Flaherty’s two-fold test sets forth important factors for the PCHA court’s consideration, but they should not be exclusive.” 432 A.2d at 186. (emphasis in original); cf Kuhlmann v. Wilson, supra, 477 U.S. at 476, 106 S.Ct. at 2639, 91 L.Ed.2d at 396 (Stevens, J., dissenting) (colorable showing of innocence is a factor to be considered, not a prerequisite; the ultimate decision should be left to the district court’s sound discretion). The factors which Justice Larsen suggests for consideration are: the length of time between the occurrence and the assertion of the alleged error; whether the judgment of sentence arose from a guilty plea; whether the circumstances indicate abuse of PCHA proceedings; whether concrete prejudice has been asserted in relation to alleged ineffectiveness; and, whether the second petition merely asserts new theories in support of claims finally litigated. 432 A.2d at 186-188. Justice Larsen indicated that these factors were illustrative rather than exclusive and that the decision whether to entertain a successive petition should be addressed to the sound discretion of the trial court. 432 A.2d at 188.

Chief Justice Nix, on the other hand, has expressed the opinion that the concerns addressed by the proposed tests of Justices Larsen and Flaherty are already met by the statute and existing case law. In Commonwealth v. Alexander, supra, he stated:

Nor do I believe that a fair reading of prior decisions suggests that a mere assertion of ineffectiveness justifies a finding of extraordinary circumstances that would avoid the waiver provision of section 1180 [predecessor to 42 Pa.C.S.A. 9545(c) ]. The Act itself requires that the petition itself must fully set forth the factual basis supporting the claim. Additionally, ineffective assistance of counsel, as it has been developed under our cases, addresses substantial derelictions on the part of counsel and not merely a showing of trivial and inconsequential errors or omissions.

432 A.2d at 189 (citations omitted).

It remains uncertain which, if any, of the above approaches to serial ineffectiveness claims and the section 9545(c) waiver provision controls; we note that the same result may obtain under each of the approaches in many cases. Because, however, the trial court did not apply any of the above waiver tests and because we may dispose of the appeal on adequate alternate grounds, we decline to remand the case to the trial court for application of the tests and we decline to attempt to apply the tests for the first time on appeal.

II.

The trial court found that appellant’s contention that the evidence was insufficient had been finally litigated against appellant. We agree.

Appellant contends that the evidence at the degree of guilt hearing was insufficient to establish the specific intent to kill. He argues that evidence contained in the portion of the record of the 1949 degree of guilt hearing still available establishes imperfect self-defense in that he:

... was reacting to what he perceived as a threatening situation; his intent was to stop Ruth not to kill him. Therefore, the premeditation and wilfulness necessary for murder in the first degree was not present in the evidence before the trial court.

(Appellant’s Brief at 17).

The trial court found that this claim had been finally litigated against appellant. In his 1973 opinion explaining the denial of the prior PCHA petition, Judge Doty stated:

The defendant further contends that his plea was not valid because his statement was exculpatory and made out a ‘viable claim of self-defense.’ In Commonwealth v. Sampson, 445 Pa. 558 [285 A.2d 480] (1971), the Pennsylvania Supreme Court held that where a guilty plea is followed by testimony of defendant which exculpates or which tends to exculpate him, the plea should be vacated and trial ordered. In this matter there was no such testimony which followed his guilty plea and, moreover, his statement did not make out a viable claim of self-defense.

(Trial Court Opinion 1/31/73 at 3). (Emphasis in original). The opinion of our Supreme Court affirming Judge Doty’s order noted:

6 Appellant has advanced the argument that he was unaware that self defense might have constituted a defense to the murder charge. The record, however, clearly indicates that there is no merit to his claim of self defense. Three eyewitnesses testified at the degree of guilt hearing that the shooting was unprovoked.
7 In this confession, appellant admitted that he had shot and killed the decedent, Arthur James Ruth.

309 A.2d at 708 nn. 6-7. (Emphasis added). We are not persuaded that the scope of the prior review of the self-defense claim was so narrow as to exclude consideration of the effect of imperfect self-defense on the mens rea requirement for first degree murder. Consequently, we agree with the trial court that the substance of appellant’s claim had been finally litigated against appellant in the prior proceedings.

III.

Alternatively, we find appellant’s underlying claim, that the evidence at the degree of guilt hearing in 1949 was insufficient to sustain the conviction of first degree murder, to be wholly without merit. Consequently, no hearing was required prior to dismissing the ineffectiveness claim and denying the PCHA petition.

In Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987), this Court stated:

When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985). However, remand for an evidentiary hearing is not a discovery tool wherein counsel may conduct investigation and interrogation to search for support for vague or boilerplate allegations of ineffectiveness. Rather, appellant ‘must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective,’ before remand for an evidentiary hearing will be granted. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Moreover, if it is clear that: the allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant’s interests existed for counsel’s actions or inactions; or appellant was not prejudiced by the alleged error by counsel, then an evidentiary hearing is unnecessary. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

534 A.2d at 485. See also Kitrell v. Dakota, 373 Pa.Super. 66, 74, 540 A.2d 301, 305-306 (1988) (same). Appellant’s underlying claim was wholly without merit; consequently, we find that the trial court did not err in dismissing the claim without a hearing.

In his brief to this Court, appellant argues that his statement to the police and isolated excerpts of the testimony of prosecution witnesses give rise to a reasonable doubt as to whether appellant had the specific intent to kill when he shot the victim. (Appellant’s Brief at 14-18). Appellant’s argument views the evidence in the light most favorable to appellant.

However, in reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part, or none of the evidence presented. See Commonwealth v. Pearsall, 368 Pa.Super. 327, 329-331, 534 A.2d 106, 108 (1987).

The trial court was free to disbelieve the portion of appellant’s confession which might tend to suggest that he acted in the unreasonable belief that deadly force was necessary for his self-defense. Moreover, there was clear testimony from three eyewitnesses, one of whom was a disinterested bystander, that appellant, without any physical or verbal provocation, fired six shots from a revolver with an eight inch barrel at Arthur James Ruth and Marion Blocker, and that one of the shots struck and killed Arthur James Ruth. See Commonwealth v. Miller, supra, 309 A.2d at 708 n. 6; (see also N.T. 1/31/49 at 9-18, Marion Blocker; at 32-36, John Brown; at 36-42, John Sillman). Upon careful review of the record of the 1949 hearing as a whole, including appellant’s statement (which was read into the record verbatim), we have no hesitancy whatsoever in concluding that the evidence was sufficient to sustain a first degree murder conviction. Consequently, we find appellant’s underlying claim and his allegations of ineffective assistance of all prior counsel are wholly meritless.

CONCLUSION

Based upon the foregoing, the order denying post-conviction relief is affirmed.

CERCONE, J., concurs in the result.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I JOIN in Parts II and III of the Majority Opinion and the order affirming the trial court’s order.

      . A panel of this Court recently opined that:
      ‘Failure to raise all claims that might have been raised in the first PCHA petition constitutes a waiver which will only be avoided by "extraordinary circumstances”, 42 Pa.C.S. § 9544(b).’ Commonwealth v. Hagood, [516] Pa. [340, 345], 532 A.2d 424, 426 (1987). Appellant's assertion of layered ineffective assistance of counsel constitutes an extraordinary circumstance; therefore, we will consider the allegations of appellant's second PCHA petition. See Commonwealth v. Watlington, [supra]; Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982).

        Commonwealth v. Baker, 371 Pa.Super. 588, 591, 538 A.2d 892, 894 (1988). The highlighted portion of the excerpt above should not be construed to imply a finding of extraordinary circumstances based upon the mere assertion of serial ineffectiveness. As discussed above, Hagood and Alexander clearly require more than the mere assertion of serial ineffectiveness in order to warrant an exception to the waiver rule provided by Pa.C.S.A. § 9545(c).

      . Apparently, in the intervening thirty-nine years, some of the pages of the transcript have been lost. We do not find the absence of those pages material, however, to the disposition of this appeal.


source: Caselaw Access Project

author: BECK, Judge: KELLY, Judge,

license: Public Domain

text:
    544 A.2d 1005
    COMMONWEALTH of Pennsylvania v. Patrick John SMICKLO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed July 5, 1988.

      Michael Handler, Assistant Public Defender, Indiana, for appellant.
    Pamela Miller, Assistant District Attorney, Indiana, for Com., appellee.

      Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   BECK, Judge:

This is an appeal by John Smicklo from a prison sentence imposed by the Court of Common Pleas of Indiana County. We conclude that the judgment of sentence must be affirmed.

John Smicklo was arrested and charged with stealing a lawn tractor valued at over two thousand dollars from the Burrell Township Elementary School on November 18, 1985. He pleaded guilty to theft by unlawful taking and receiving stolen property as felonies of the third degree. On August 4, 1986, the Honorable W. Parker Ruddock sentenced Smicklo under the Youth Offenders Act (which was subsequently repealed, effective February 9, 1987). In accordance with the provisions of the Act, the Judge imposed no minimum term of confinement, and imposed a maximum term of confinement of six years to be served at the State Correctional Institutional at Camp Hill. See Pa. StatAnn. tit. 61 §§ 484, 485. Smicklo filed a motion to modify sentence which was denied. He appealed to this court, and the case was certified for en banc review.

Appellant contends that the trial judge did not have authority to sentence him under the Youth Offenders Act because the Act was invalid as a sentencing statute. He claims that the Youth Offenders Act, which prohibits a minimum sentence, is inconsistent with the 1982 Sentencing Guidelines, which specify suggested ranges of minimum sentences. We recently rejected this argument in Com monwealth v. Smith, 375 Pa.Super. 419, 544 A.2d 991 (1988) (en banc). As we noted in Smith, “A judge could fulfill his responsibilities under both the guidelines and the Act by: 1) considering the minimum sentence range suggested by the guidelines; 2) stating on the record his reasons for deviating from the guidelines and applying the Act; and 3) imposing a sentence without a minimum term of confinement.” Id., 375 Pa.Super. at 430, 544 A.2d at 997. Therefore, the Act and the guidelines are not in conflict. Since appellant qualified for sentencing under the Act and was sentenced before the repeal of the Act, the trial judge had authority to invoke the Act and impose a sentence with no minimum limit.

Appellant also maintains that the trial court erred by failing to state on the record his reasons for not sentencing under the guidelines. We must determine at the outset whether this issue implicates a discretionary aspect of the sentence or the legality of the sentence. A challenge to the legality of a sentence may be appealed as of right and cannot be waived. On the other hand, we cannot reach the merits of a discretionary sentencing issue unless we find: 1) that the issue was properly preserved in the trial court; 2) that the appellant has filed a brief with this court which does not contain a fatal defect; and 3) that the issue presents the appearance of a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. Smith, 375 Pa.Super. at 435, 544 A.2d at 998; see Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

We find that appellant Smicklo’s second claim involves a discretionary aspect of sentence rather than a question of sentence legality. “A legality issue is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down____ A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant’s crimes.” Commonwealth v. Smith, 375 Pa.Super. at 426, 544 A.2d at 994. As we have noted, appellant’s sentence of no minimum term and six years maximum term was specifically authorized by the Youth Offenders Act, and the Act was in force at the time of appellant’s sentencing hearing. We therefore conclude that the judgment of sentence was not illegal.

By characterizing appellant’s second claim as “discretionary”, we do not mean to imply that the trial court need not explain its reasons for departing from the guidelines. The trial court has been directed by the legislature to state on the record its reasons for deviating from the guidelines, and the trial court’s failure to provide such a statement is cause for vacating and remanding a judgment of sentence. 42 Pa.Cons.Stat.Ann. § 9721(b) (Purdon 1982). However, it does not follow that the failure to state reasons for sentencing outside the guidelines implicates the court’s power to impose a legislatively mandated sentence. It must bé emphasized that not every error committed during the course of the sentencing hearing is sufficient to divest the trial court of jurisdiction. See, Commonwealth v. Krum, 367 Pa.Super. 511, 513-14, 533 A.2d 134, 135 (1987) (en banc) (consideration of impermissible factor does not render sentence illegal). See generally Commonwealth v. Hartz, 367 Pa.Super. 267 at 285-89, 532 A.2d 1139 at 1148-1149 (1987) (Cirillo, P.J., concurring) (collecting cases on waiver).

In Commonwealth v. Tolassi, 303 Pa.Super. 177, 449 A.2d 636 (1982), we considered the analogous question of whether the trial court’s failure to give an overall statement of reasons for the sentence imposed, as required by the Pennsylvania Supreme Court’s decision in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), resulted in an illegal sentence. This court held in an opinion by former President Judge Spaeth that:

The requirements that the lower court must state of record its reasons for not ordering a pre-sentence report, Pa.R.Crim.P. 1403(A)(2); that sentences must not be uniform but individualized, Commonwealth v. Martin, [466 Pa. 118, 351 A.2d 650 (1976)]; Commonwealth v. Riggins, supra; and that the lower court must state of record its reasons for the sentence, Commonwealth v. Riggins, supra; Pa.R.Crim.P. 1405(b), are all requirements intended to improve the quality of sentencing and to aid appellate review. They do not implicate the power of the court to impose sentence, and the failure to comply with them does not render a sentence “illegal” within the principle that the illegality of a sentence is not subject to waiver, any more that a judge’s failure to make a correct evidentiary ruling makes the resulting verdict “illegal.” Thus we have repeatedly held that the claim that a sentence should be vacated because of the lower court’s failure to state of record its reasons for the sentence will be waived if not made in a motion to modify sentence, filed pursuant to Pa.R.Crim.P. 1410____ Any other result would be inconsistent with the principle of Commonwealth v. Clair, [458 Pa. 418, 326 A.2d 272 (1974) ], that even claims of “fundamental error” may be waived.

303 Pa.Super. at 180-82, 449 A.2d at 638.

Since Tolassi, we have customarily treated claims relating to statement of reasons requirements not as challenges to sentence legality but rather as challenges to discretionary aspects of a sentence. We have reaffirmed the holding that such claims are waived unless raised before the trial court in a motion to modify sentence. See, e.g., Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984) (en banc); Commonwealth v. Warden, 335 Pa.Super. 315, 484 A.2d 151 (1984). We have also found that such claims are not appealable as of right, and are subject to the Pennsylvania Supreme Court’s decision in Commonwealth v. Tuladziecki, supra. See, e.g., Commonwealth v. Johnson, 373 Pa.Super. 312, 328-330, 541 A.2d 332, 340 (1988); Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (en banc); Commonwealth v. Thomas, 370 Pa. Super. 544, 537 A.2d 9, 12 (1988); Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987); Commonwealth v. Osborn, 364 Pa.Super. 505, 528 A.2d 623, 630 (1987); Com monwealth v. Thomas, 363 Pa.Super. 348, 354-55, 526 A.2d 380, 383 (1987).

In Tuladziecki, the Court emphasized the importance of compliance with Pennsylvania Rule of Appellate Procedure 2119(f). Rule 2119(f) directs the appellant to “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence.” Appellant’s brief does not contain a Rule 2119(f) statement. This court will overlook a Rule 2119(f) violation where the appellee has failed to object to the defect. Commonwealth v. Krum, supra. In this case, however, the Commonwealth specifically objected to the defect. Supplemental Brief of Appellee at 3-4. Therefore we will not consider whether the trial court provided a sufficient statement of reasons for sentencing appellant outside the guidelines.

Judgment of sentence affirmed.

KELLY, J., files a concurring and dissenting opinion.

KELLY, Judge,

concurring and dissenting:

I agree with the majority that the Youth Offenders Act was not impliedly repealed by adoption of the Sentencing Guidelines. I also agree that a sentence under the Youth Offenders Act is a sentence “outside” the guidelines, is subject to the written statement requirement of 42 Pa.C. S.A. § 9721(b) and 204 Pa.Code § 303.1(h), and is reviewable under 42 Pa.C.S.A. § 9781(b) and 9781(c)(3). See Commonwealth v. Felix, 372 Pa.Super. 145, 154 n. 4, 539 A.2d 371, 375 n. 4 (1988).

I do not agree that: 1) if the Commonwealth fails to raise a challenge to an appellant’s failure to comply with Pa.R. A.P. 2119(f), that procedural defect is waived and will be ignored; and, 2) if the Commonwealth properly raises a challenge to an appellant’s failure to comply with Pa.R.A.P. 2119(f), appellant’s challenge to the discretionary aspects of sentence must be deemed to have been waived. Those pronouncements improperly and unduly restrict this Court’s inherent discretionary authority to enforce the rules of procedure sua sponte, and to decide in our sound discretion what the proper response to a procedural defect is in a particular case. See Commonwealth v. Zeitlen, 366 Pa.Super. 78, 81-86, 530 A.2d 900, 902-04 (1987) (Kelly, J., joining and concurring); see also Commonwealth v. Graham, 372 Pa.Super. 365, 367, 539 A.2d 838, 839 (1988); Commonwealth v. Felix, supra, 372 Pa.Super. at 155, 539 A.2d at 376 (1988); Commonwealth v. Douglass, 370 Pa.Super. 104, 106, 535 A.2d 1172, 1174 (1988); Commonwealth v. Pickford, 370 Pa.Super. 444, 453, 536 A.2d 1348, 1356-57 (1987) (Kelly, J., concurring and dissenting).

In the instant case, appellant argues that the trial court failed to comply with the written statement requirement of 42 Pa.C.S.A. § 9721 and 204 Pa.Code § 303.1(h). This issue was properly preserved by a timely motion to modify sentence, timely notice of appeal, and inclusion of the issue in the statement of questions presented. However, counsel failed to include the required Pa.R.A.P. 2119(f) statement in appellant’s brief. Rather than find the issue waived based upon counsel’s procedural default, I would simply direct counsel to file a supplement to the brief to comply with Pa.R.A.P. 2119(f), and thereby avoid the inevitable PCHA petition raising this identical claim in an ineffective assistance of counsel claim. See Commonwealth v. Zeitlen, supra, 366 Pa.Super. at 81-85, 530 A.2d at 902-03.

Thus, I concur in part and dissent in part.

      . 18 Pa.Cons.Stat.Ann. § 3921(a) (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 3925(a) (Purdon 1983).

      . Youth Offenders Act, Act of April 28, 1887, P.L. 63, § 6, as amended, Pa.Stat.Ann. tit. 61, §§ 483-495 (Purdon 1964), repealed by Act of Dec. 11, 1986, P.L. 1521, No. 165, § 10, effective in 60 days.

      . The 1982 Sentence Guidelines, 204 Pa.Code ch. 303, were invalidated by the Pennsylvania Supreme Court in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). In Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988), an en banc panel of this court recently held that the Sessoms Court’s invalidation of the guidelines applies retroactively only to cases in which a constitutional challenge to the guidelines has been properly preserved at all stages of adjudication up to and including any direct appeal. Id., 372 Pa.Super. at 373 n. 7, 539 A.2d at 842 n. 7. No constitutional challenge of any kind was preserved in the instant case.
      We note that a new set of sentencing guidelines was recently promulgated by the Pennsylvania Commission on Sentencing. See 17 Pennsylvania Bulletin 5012 (Dec. 5, 1987). These new guidelines apply only to sentencing for offenses committed after April 25, 1988.

      . The parties agree that appellant had a prior record score of "0” and an offense gravity score of "5". For this combination, in the absence of aggravating or mitigating factors, the guidelines recommend a minimum sentence of “0-12” months. It must be noted, however, that a minimum sentence of "0” months is not the same as no minimum sentence at all.
      The guidelines state that all “sentence ranges are months of minimum confinement as defined in 42 Pa.C.S. §§ 9755(b) and 9756(b) (relating to partial and total confinement)." 204 Pa.Code § 303.9(a). Sections 9755(b) and 9756(b) both provide: “The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.” This language in section 9756(b) has been interpreted as requiring that every sentence of confinement imposed by a court must have a specific and definite minimum length; a prison sentence with no minimum is not permitted under the Sentencing Code. Commonwealth v. Smith, 375 Pa.Super. at 430-431, 544 A.2d at 997. Commonwealth v. Baughman, 333 Pa.Super. 458, 482 A.2d 658 (1984). Since the guidelines must be construed with reference to section 9756(b), and since section 9756(b) prohibits sentences of confinement with no minimum limit, the guidelines recommendation of "0” months minimum confinement cannot be viewed as authorizing a sentence of confinement with no minimum term. The guidelines recommendation of “0" months minimum confinement could be interpreted as authorizing either a sentence of non-confinement, or a sentence of confinement with some definite minimum length that is less than one month. However, by imposing a sentence of confinement with no minimum term pursuant to the Youth Offenders Act, the trial court clearly deviated from the sentencing guidelines.

      . Section 9721(b) of the Code provides in part:
      In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating sentence and resentencing the defendant.

      . This requirement was subsequently incorporated into section 9721(b) of the Sentencing Code. See n. 6, supra.


author: OLSZEWSKI, Judge:

text:
    544 A.2d 1010
    Mary Beth STEENLAND-PARKER, Appellee, v. Richard PARKER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 8, 1988.
    Filed July 18, 1988.

      Thomas S. McNamara, Philadelphia, for appellant.
    Joan Esmonde, Philadelphia, for appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This appeal is from a trial court order granting appellee’s exceptions to the permanent hearing officer’s (PHO) recommendations, and modifying a previous child support order. Appellant raises the following issues on appeal: (1) whether the trial court abused its discretion in granting appellee’s exceptions, without sufficient evidence of the reasonable needs of the child residing with appellee and of appellee’s ability to pay; (2) whether the trial court entered a child support order that is punitive and confiscatory; and (3) whether the trial court abused its discretion in permitting appellee to be represented by a Philadelphia assistant district attorney in proceedings that do not arise under the Revised Uniform Reciprocal Enforcement of Support Act, 42 Pa.C.S.A. §§ 6741-80 (1982), amended by and reenacted at 23 Pa.C.S.A. §§ 4501-40 (Supp.1986) (“RURESA”).

Appellant and appellee are parents of two sons, Eric and Ian. Both children resided with appellee and her second husband in Scottsdale, Arizona. In December of 1986, Eric left to permanently reside with appellant in Yardley, Pennsylvania. Because of this change of circumstances, appellant petitioned the Common Pleas Court of Philadelphia, Family Court Division, to modify an existing support order entered by the Philadelphia trial court. At the hearing before the PHO, appellant and Eric testified on behalf of the petition. Appellee was not present at the proceedings; however, she was represented by a Philadelphia assistant district attorney. Both parties filed updated income and expense statements.

The PHO recommended that appellant’s petition for modification be granted, reducing the $290.00 support order in half and crediting appellant with $145.00 per week from the date of Eric’s move to the date of the proposed order. Thereafter, appellee filed exceptions to the PHO’s proposed order. Granting the appellee’s exceptions, the trial court entered an order requiring appellant to pay $210.00 per week for Ian and increasing appellant’s arrearage payments from $55.00 to $80.00. This timely appeal followed. For reasons stated below, we affirm the order of the trial court.

In evaluating child support orders, our scope of review is very narrow. Michael v. Michael, 360 Pa.Super. 312, 520 A.2d 473 (1987). No child support order will be disturbed unless there is insufficient evidence to sustain the order or there has been an abuse of discretion by the lower court. Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986). “An abuse of discretion is not ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” (Citations omitted.) Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793, 794 (1985).

In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), the Supreme Court set forth uniform guidelines for the calculation of child support by the trial court. In making its calculation, the trial court must determine the reasonable needs of the children and respective abilities of the parents to pay support. Melzer, supra. The Supreme Court stated:

In order to define the support obligation of each parent, a court must first determine the needs of the children: a court has no way of arriving at a reasonable order of support unless it knows how much money is actually required to care for the children involved.

Id., 505 Pa. at 470, 480 A.2d at 995 (footnote omitted).

Appellant argues that the trial court failed to indicate the basis of its decision. Appellant further contends that the record is devoid of any competent evidence of Ian’s needs and appellee’s ability to pay support. We, however, disagree. In its opinion, the trial court acknowledged that a determination of Ian’s needs could be made from the ample information submitted by the parties. Trial court opinion at 2. This information includes appellee’s updated income and expense statement indicating Ian’s monthly expenses in the amount of $3,345.65. Although appellee and Ian were not present to testify before the PHO or the lower court, Eric was questioned by appellant’s counsel regarding particular expenses assigned to Ian in appellee’s statement.

The trial court opinion and record also disclose competent evidence of appellee’s ability to contribute towards Ian’s support. The trial court previously determined appellee’s earning capacity to be $11,000.00 per year. During the hearing, Eric testified as to the earnings and specific expenses paid by appellee’s second husband. The assistant district attorney further stipulated on the record that appellee has no income and that her expenses are paid by her current spouse. In addition, Eric provided testimony of appellee’s comfortable living conditions at her current residence. In considering appellee’s expenses and the contributions of appellee’s second husband, however, the trial court recognized that housing and utility expenses do not decrease when a child departs the residence. Trial court opinion at 2. The trial court reasonably considered increased expenses in assessing appellee’s ability to pay support. Moreover, although the lower court is required to consider “the extent that a parent’s expenses are lessened by the contribution of a third party,” Melzer, supra; accord, Fee v. Fee, supra, the trial court did not err in giving some consideration to the fact that appellee’s second spouse is not legally responsible for the two children. Riess v. De Luca, 353 Pa.Super. 622, 510 A.2d 1239 (1986) (Tamilia, J., concurring).

Appellant’s second argument is also without merit. Appellant contends that the effect of the trial court’s order, taken as a whole, is punitive and confiscatory. Appellant argues that, by decreasing his support payments by $80.00 and by increasing his payment for outstanding arrears by $25.00, his net reduction is only $55.00. At the same time, he is directly responsible for supporting one child. As a result, appellant contends, he is required to pay almost half of his net income for the support of his two children.

It is well settled that:

The amount of a child support order is largely within the discretion of the trial judge____ A child support order must be fair, not confiscatory, and must be consistent with the parent’s station in life and customary standard of living, making due allowance for the reasonable living expenses of the parent.

Shank v. Shank, 298 Pa.Super. 459, 462, 444 A.2d 1274, 1275-1276 (1982) (citations omitted); accord, Loring v. Loring, 339 Pa.Super. 92, 488 A.2d 324 (1985); Michael v. Michael, supra. In Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986), the Superior Court stated:

Support of a minor child is the equal responsibility of both parents. The amount contributed by each parent will be determined by their ability and capacity to pay. All income, from whatever source, is to be evaluated as well as financial resources and property interests as of the time at which support payments are sought.

(Citations omitted.)

Of equal interest to the support determinations are the parties’ expenses. The award must be fair and not confiscatory and must make allowance for the reasonable living expenses of the parent. As always the support order must be in the best interest of the child. Id., 350 Pa.Superior Ct. at 279-80, 504 A.2d at 356. In addition, the court must consider a parent’s direct payments to the children when fashioning a support order. Melzer, supra. These well established rules have been incorporated into the Melzer guidelines. Melzer, supra; accord, Shindel, supra.

In the instant case, appellant filed an updated income and expense statement and accompanying documentation, indicating biweekly net salaried earnings in the amount of $2,279.64, income attributed to free-lance work in the amount of $1,940.00 per year, property holdings amounting to over $200,000.00 and a 1986 federal tax refund of $11,-253.00. Appellant further testified that he has in the past received tax refunds ranging from $5,000.00 to $15,000.00. In addition, appellee submitted to the trial court appellant’s income tax returns for the tax years 1984 and 1985 indicating refunds in the amounts of $8,873.00 and over $14,-000.00, respectively. The record also discloses appellant’s expenses. Appellant testified regarding his expenses for Eric. Appellant’s income and expense statement indicates these expenses, and further provides the expenses of appellant and his second spouse. The lower court, in applying Melzer, supra, properly considered along with Ian’s needs and appellee’s increased expenses, appellant’s parental obligation to support his children and the disparity between appellee’s earning capacity and appellant’s substantial income offsetted by his reasonable expenses and direct support of Eric. In reviewing the record before us, we hold that the trial court determined a fair and reasonable amount of support to be paid by appellant.

Appellant next argues that the trial court erred in appointing a Philadelphia assistant district attorney to represent appellee in a child support proceeding not arising under RURESA. RURESA establishes procedures whereby out-of-state residents can commence proceedings for the enforcement of child support orders in this Commonwealth and enables Commonwealth residents to commence proceedings in another state. RURESA specifically provides that if the “Commonwealth is acting as an initiating state the prosecuting attorney upon the request of the court, or a Commonwealth or local welfare official shall represent the obligee in any proceeding under this chapter.” 42 Pa.C.S.A. § 6752, substantially reenacted at 23 Pa.C.S.A- § 4512. In addition, RURESA provides for representation by the district attorney of the obligee when the support proceeding is initiated in another state against an individual who resides in this Commonwealth. 42 Pa.C.S.A. § 6758(b), reenacted at 23 Pa.C.S.A. § 4518(b). The remedies under RURESA, however, are not exclusive nor are they substitutions for other remedies available for enforcement of child support. See 42 Pa.C.S.A. § 6743, reenacted at 23 Pa.C.S.A. § 4503 (“The remedies provided in this Chapter are in addition to and not in substitution for any other remedies.”). This is further illustrated by the stated purposes of RURESA. See 42 Pa.C.S.A. § 6741(b), reenacted at 23 Pa.C.S.A. § 4501(b) (“The purposes of this chapter are to improve and extend by reciprocal legislation the enforcement of duties of support.”). Direct proceedings can be instituted pursuant to the Civil Procedural Support Law, 42 Pa.C.S.A. §§ 6701-13 (1982), amended by and reenacted at-23 Pa.C.S.A. §§ 4301-53 (Supp.1986) (the “Support Law”); see also Ross v. Ross, 359 Pa.Super. 357, 518 A.2d 1274 (1986). The Support Law also specifically provides for representation by the district attorney:

The district attorney shall at all times aid in the enforcement of the duty of support and shall cooperate with the domestic relations section in the presentation of complaints or in any proceeding designed to obtain compliance with any order of the court.
The district attorney, upon the request of the court or a Commonwealth or local public welfare official, shall represent any complainant in any proceeding under this subchapter.

42 Pa.C.S.A. § 6711(a), (b), reenacted at 23 Pa.C.S.A. § 4306(a), (b).

In the present case, appellant filed in the Philadelphia Common Pleas Court a petition to modify an existing support order. Pursuant to the statutory provisions of the Support Law, the trial court properly exercised its discretion in the appointment of an assistant district attorney to represent appellee.

Accordingly, we affirm the trial court’s order.

      . Eric testified as follows:
      Q: Do you still talk to Ian?
      A: Yes.
      Q: Are you aware whether he is presently seeing a psychotherapist?
      A: He says that he is.
      Q: Are you aware whether Ian is taking piano lessons?

        A: Yes, he is.
      Q: Does your mother own a piano?
      A: No, she does not.
      N.T. at pp. 24, 25.

      . We take note that part of the support order constituted payment for outstanding arrears amounting in excess of $15,000.00. Trial court opinion at p. 3.

      . Jurisdiction was based upon the fact that appellee voluntarily subjected herself to the jurisdiction of the trial court by filing an earlier petition for modification. See docket entry at 7/10/86. Furthermore, the Support Law provides that "[the trial] court making an order of support shall at all times maintain jurisdiction of the matter for the purpose of enforcement of the order and for the purpose of increasing, decreasing, modifying or rescinding the order, without limiting the right of the obligee to institute additional proceedings for support in any county wherein the obligor resides or in which property of the obligor is situated.” 42 Pa.C.S.A. § 6710, reenacted at 23 Pa.C.S.A. § 4352; Ross v. Ross, supra.


author: JOHNSON, Judge:

text:
    544 A.2d 1014
    COMMONWEALTH of Pennsylvania v. David B. BARRETT, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1988.
    Filed July 11, 1988.

      Thomas K. Kistler, Bellefonte, for appellant.
    Glenn, Davis, Harrisburg, for Com., appellee.
    Before BROSKY, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

Upon appeal from a summary criminal conviction appellant was tried de novo before the Court of Common Pleas of Centre County and found guilty of driving an unregistered vehicle in violation of 75 Pa.C.S. § 1301(a). The conviction for this summary offense was based on appellant’s driving a truck with trailer on Route 144 in Centre County. The truck was not registered in Pennsylvania. Appellant was sentenced to pay a fine of $1,890 plus costs. His motion to modify sentence was denied and on direct appeal from judgment of sentence appellant raises the following issues:

I. DO 75 PA.C.S. §§ 1301(c), 1101(b) AND 1102(6) EXEMPT MOTOR VEHICLES REGULARLY ENGAGED IN INTERSTATE COMMERCE FROM PENNSYLVANIA REGISTRATION?
II. IS THERE A LEGISLATIVE CONFLICT, SUCH THAT SECTIONS 75 PA.C.S. 1301(c) AND 75 PA. C.S. 1101(b) ARE IRRECONCILABLE, AND IF SO, WHICH SECTION SHOULD CONTROL?
III. DID THE COURT ACT OUTSIDE OF ITS AUTHORITY BY IMPOSING A FINE BASED UPON FACTS WHICH WERE NOT CONTAINED WITHIN THE TESTIMONY OR RECORD IN ANY WAY WHATSOEVER?

II] In his first argument appellant contends that the operative language of 75 Pa.C.S. § 1301(a) does not require that a vehicle be registered in this Commonwealth, but only that a vehicle must be registered. This argument is waived by appellant’s failure to include it in his post verdict motion and post verdict motion filed nunc pro tunc. Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984). Whatever procedural irregularities may have occurred in providing appellant notice of right to appeal pursuant to Pa.R.Crim.P. 1123(c)(1) were remedied when the court permitted the filing of appellant’s post verdict motion nunc pro tunc and ruled thereon.

In his second argument appellant contends that his vehicle is not required to be registered in Pennsylvania because it is a vehicle regularly engaged in interstate commerce. We have reviewed the applicable provisions of the Vehicle Code, 75 Pa.C.S. § 101 et seq., and find no merit in appellant’s position.

Section 1301(a) of the Vehicle Code as it existed at the time of the offenses provided that “No person shall drive or move and no owner shall knowingly permit to be driven or moved upon any highway any vehicle which is not registered unless the vehicle is exempt from registration.” 75 Pa.C.S. § 1301(a). Exceptions are found in the exemptions of sections 1302 and 1303. Thus, unless exempt, all vehicles driven upon a highway must be registered. A prerequisite of registration is the application for or issuance of a certificate of title for the vehicle, if a certificate of title is required by Chapter 11 of the Vehicle Code. 75 Pa.C.S. § 1301(c) (hereinafter in this opinion references to titling of vehicles shall be construed to include application for or issuance of a certificate of title). Chapter 11 provides that a certificate of title shall not be issued for a vehicle regularly engaged in the interstate transportation of property if a currently effective certificate of title has been issued by another state. 75 Pa.C.S. § 1102(6).

It is uncontested that appellant’s vehicle was engaged in such interstate transportation. A certificate of title was issued in Ohio, where the truck was also registered. The Commonwealth concedes that the vehicle is thus exempt from Pennsylvania titling. However, the Commonwealth argues and we agree that the vehicle must nonetheless be registered in Pennsylvania.

Section 1301(c) establishes application for or issuance of a certificate of title as a prerequisite for registration i/such a certificate of title is required by Chapter 11. Since a certificate of title is not required by Chapter 11 for appellant’s vehicle then one is not required for his vehicle to be registered. This does not however mean that he is exempted from registration. Section 1301(a) still applies and it requires registration unless an exemption is applicable. Appellant does not show how his vehicle could even qualify for one of the statutorily provided exemptions set forth at 75 Pa.C.S. § 1302 and 1303. Thus he must still comply with the clear mandate of § 1301(a) and register his vehicle. We are aware that § 1101(b) provides that:

The department shall not register or renew the registration of a vehicle unless a certificate of title has been issued by the department to the owner or an application for a certificate of title has been delivered by the owner to the department.

75 Pa.C.S. § 1101(b). If this were the only section to speak to the titling prerequisite it would suggest that since appellant’s vehicle need not be titled in Pennsylvania it cannot be registered in Pennsylvania. However, as we have already seen § 1301(c) also speaks to the titling requirement and says that titling is a prerequisite to registration if a title is required by Chapter 11. In resolving whatever inconsistency exists between these two provisions we can be aided by the heading prefixed to the chapter, see 1 Pa.C.S. § 1924. We must remember that if clauses in the same statute are irreconcilable, the clause last in order of date or position shall prevail, unless an exception not here applicable applies. 1 Pa.C.S. § 1934. Chapter 13, of which 1301(c) is a subsection, comes under the heading “Registration of Vehicles”, while Chapter 11, which contains § 1101(b), comes under the heading “Certificate of Title and Security Interests”. What we seek to determine here is the registration requirement for appellant’s vehicle and not the titling requirement. Thus, if there is a conflict, we see Chapter 13 as controlling on the registration issue. Additionally, § 1301(c), is later in order of date and position than § 1101(b), and should prevail if the sections are irreconcilable. Thus, whether or not a conflict exists between the above-discussed sections, appellant’s vehicle must be registered in this Commonwealth.

In issue three appellant argues that the court imposed a fine based on facts not contained within the record. The vehicle with which we are here concerned is a truck tractor. Accordingly, the penalty upon conviction for a violation of the registration requirement is a fine of double the registration fee for the maximum weight at which the vehicle could have been registered in this Commonwealth. 75 Pa.C.S. § 1301(d). Trooper Young’s testimony is that the vehicle was a 1973 Kenworth Truck Tractor with three axles. Under 75 Pa.C.S. § 1916 the maximum weight at which the truck tractor could have been registered was 79,001 to 80,000 pounds, resulting in a registration fee of $945. The court set the fine at $1,890, which is double the $945 fee, plus costs. We find no impropriety in this fine.

Judgment of sentence affirmed.


author: JOHNSON, Judge: MONTEMURO, Judge,

text:
    544 A.2d 1017
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Brian G. Stuck v. John E. MOORE, June A. Moore, Darrin E. Moore, a Minor, by his Parents and Natural Guardians John E. Moore and June A. Moore, Charles L. Royer, Kay Royer, John E. Reed and Ohio Casualty Insurance Company. (Two Cases) Appeal of OHIO CASUALTY INSURANCE COMPANY. (Two Cases)
    Superior Court of Pennsylvania.
    Argued April 7, 1988.
    Filed July 20, 1988

      Peter J. O’Donnell, Lewistown, for appellants.
    Theresa Shade, Harrisburg, for State Farm and Stuck, appellees.
    Before BROSKY, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

Before us is an appeal from declaratory relief granted in favor of appellees State Farm Mutual Automobile Insurance Company and Brian Stuck. The case involves the interpretation of an “omnibus clause” contained in an automobile insurance policy issued by Ohio Casualty Insurance Company.

The accident underlying this action occurred in 1980, while Brian Stuck was driving a 1961 Pontiac owned by Charles Royer and insured by Ohio Casualty. Although owned by Charles Royer the Pontiac was paid for and primarily used by his daughter Leigh Ann Royer. On the night of the accident Leigh Ann, Brian Stuck and some friends visited several bars. Initially, Leigh Ann drove the Pontiac. Later in the evening, when she wished to ride in her friends’ car she gave Brian Stuck the keys to the Pontiac so that he could drive her car to the agreed upon destination. Brian Stuck did not have a driver’s license. On the way to the destination an accident occurred.

Personal injury actions were brought naming Brian Stuck as defendant. Ohio Casualty denied coverage claiming, in part, that because Stuck was not licensed to drive he was excluded from coverage under the policy. At the time of the accident Stuck resided with his parents who had a no-fault insurance policy with State Farm Mutual Automobile Insurance Company. State Farm undertook the defense of claims asserted against Stuck. State Farm maintains that its policy provides only excess coverage. State Farm commenced the instant declaratory judgment action seeking a determination that primary liability coverage should be furnished by Ohio Casualty.

Following trial the jury returned a verdict specifically finding that Brian Stuck had a reasonable belief that he was entitled to use the vehicle in question. Accordingly, the trial court found Ohio Casualty’s exclusion was avoided and that Brian Stuck was entitled to liability coverage under the Ohio Casualty policy.

Appellant, Ohio Casualty, filed a notice of appeal on September 21, 1987 from an order entered August 27, 1987 denying Ohio Casualty’s Motion for Post-Trial Relief. This order is interlocutory and unappealable. Slagter v. Mix, 441 Pa. 272, 272 A.2d 885 (1971). No appeal should have been filed until a final judgment was entered. Id. Accordingly, the appeal at Number 596 Harrisburg 1987 is quashed.

Appellant filed a separate notice of appeal on October 20, 1987 in which it represented that the order of August 27, 1987 had been reduced to judgment. In fact judgment was entered upon the jury verdict and the grant of declaratory relief on October 19,1987. Thus, the appeal at Number 651 Harrisburg 1987 is properly before us and shall be addressed on the merits.

In its appeal Ohio Casualty raises four issues:

1. Whether the lower court misconstrued the pertinent insurance policy exclusion?
2. Whether the policy exclusion applied as a matter of law?
3. Whether the lower court’s charge and argument of opposing counsel were unfairly prejudicial?
4. Whether the jury verdict was based upon sympathy and prejudice?

In its first issue Ohio Casualty contends that the trial court misconstrued the policy provision in question. This clause, contained in Ohio Casualty’s policy, stated: We do not provide Liability Coverage:

11. For any person using a vehicle without a reasonable belief that the person is entitled to do so.

Ohio Casualty argues that “entitled” encompasses not only permission of the owner but also possession of a driver’s license.

The trial court instructed the jury that they were to decide the narrow issue of whether or not Mr. Stuck had a reasonable belief that he was entitled to operate the vehicle. In charging on the meaning of “entitled” the court stated:

Now, the other word which we have trouble with here is entitled. What does entitled mean? And if we go to Websters Dictionary, New Collegiate Dictionary, it was copywrited [sic] in 1975, we find that “entitled” is stated as “to give a title to, designate”. That’s the definition one. “To furnish with proper ground for seeking or claiming something.” As in “this ticket entitles bearer to free admission.”
In this case, however, entitled, as I said, to give title to, designate. So, in this case here you must decide was Brian Stuck reasonable in his belief that he was entitled to drive the motor vehicle in question on that night? And in considering that, as I said, you should consider all the testimony including the question I asked Brian, “did you ever drive before?”

N.T., Judge’s Charge to Jury, 6/26/86 at 26-27. Additionally the court charged that:

The term “entitled” as used in the Ohio Casualty policy means “permitted by the owner or person in lawful possession of the vehilce” [sic]____

Id. at 28. Ohio Casualty argues that this additional charge was erroneous. It argues that the term “entitled” is not ambiguous and that it includes not only permission but also possession of a license.

The question of the meaning of “entitled” in the Ohio Casualty policy is a question of interpretation. The often-quoted principles applicable to interpretation of insurance contracts provide that:

The task of interpreting a contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.

Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304-05, 469 A.2d 563, 566 (1983) (citations omitted). As applied to the case at hand what is essential is the determination of whether the policy provision is ambiguous. In determining this we have stated that:

A provision of a contract of insurance is ambiguous if reasonably intelligent persons, considering it in the context of the whole policy, would differ regarding its meaning.

Musisko v. Equitable Life Assurance Society, 344 Pa.Super. 101, 106, 496 A.2d 28, 31 (1985) (citations omitted).

Once again the clause at issue states:

We do not provide Liability Coverage:
11. For any person using a vehicle without a reasonable belief that the person is entitled to do so.

Considering the clause in the context of the whole policy, we believe reasonably intelligent persons would differ regarding its meaning. Certainly one interpretation is that advanced by Ohio Casualty. That is, for a person to reasonably believe that he is entitled to use a car a person must have the owner’s permission and a valid driver’s license. However, the clause could also be interpreted to mean that a person can reasonably believe he is entitled to use a car once he has obtained the owner’s permission. The mere use of the word “entitled” in the policy language does not require that one interpretation be accepted to the exclusion of the other. If Ohio Casualty had wanted to specifically exclude from coverage unlicensed drivers it could have defined the word “entitled” in its policy. We note that it has a section entitled “Definitions” in its policy and “entitled” is not one of the words it chose to define. Ohio Casualty could also have listed persons without a driver’s license as an additional exclusion. The clause we are now interpreting is number 11 of 12 separate exclusions. Unlicensed drivers could have been specifically set forth as exclusion number 13. This was not done.

Accordingly we find that “entitled” as it is used in the clause at issue is ambiguous. As such, the provision is to be construed against the insurer, who was the drafter of the agreement. Standard Venetian Blind Co., supra. As applied to these facts we then agree with the trial court that it is “sufficient to avoid Ohio Casualty’s exclusion that Brian Stuck have had a reasonable belief that he had the permission of the owner or a person in lawful possession of the Royer vehicle.” Opinion 11/17/87 at 5. The trial court’s charge was not in error. We find no merit to appellant’s first argument.

In issue two appellant contends that the policy-exclusion applies as a matter of law. It argues that:

no reasonable man would believe that he had the right to operate a motor vehicle when he was unlicensed, knew it was illegal, never drove the vehicle before, had very limited operating experience, another operator was present and no emergency situation existed.

Brief of appellant at 12. Thus appellant concludes there was no jury issue on this question. This position seems contrary to that taken by counsel for Ohio Casualty at trial. Following the close of plaintiff’s case-in-chief it was plaintiffs’ (State Farm and Stuck’s) counsel who expressed the view that the interpretation of the policy was a question of law, that the Court should rule as a matter of law on the issue and there was no issue to be submitted to the jury. Ohio Casualty took the position that there was a jury question. Specifically, counsel argued that irrespective of how the court charged on the meaning of entitle, there remained a jury question as to the reasonable belief. See N.T., Jury Trial 6/26/86 at 31-32. Appellant cannot successfully advance a new theory of relief on appeal, different from those raised in the trial court. Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984). This theory is not only new but contrary to that raised at trial. Additionally, in light of our finding that “entitlement” consists of permission of the owner or lawful possessor, there was a jury question about Stuck’s reasonable belief.

Issues three and four are interrelated and will be discussed together. In issue three, appellant contends that the policy construction charge and opposing counsel’s summation argument were unfairly prejudicial to Ohio Casualty. At one point during its lengthy and detailed charge the court made a two sentence reference to the rule that provisions in insurance contracts are strictly construed against the insurance company. In closing argument, counsel for State Farm and Stuck made reference to the same rule and argued that if Ohio Casualty meant to exclude unlicensed drivers they should have written such a provision into their policy. Counsel for State Farm and Stuck also argued that Ohio Casualty’s proposed interpretation of the policy was contrary to certain public policy considerations. Finally, appellee’s counsel contrasted the liability coverage exclusion with the personal injury protection exclusion in the same policy. Ohio Casualty now argues that the above statements of the court and opposing counsel were inappropriate or improper and prejudiced Ohio Casualty. ■

In argument four Ohio Casualty again directs this Court’s attention to the summation of counsel for State Farm wherein counsel remarked that the insurance coverage would benefit not only Stuck but also those people injured as a result of the accident. Ohio Casualty contends that this remark along with the points raised in argument three prejudiced Ohio Casualty and resulted in a verdict based upon sympathy and prejudice.

We have carefully reviewed the remarks and charge cited by counsel. We have also reviewed the summation of State Farm and the judge’s charge in their entirety. With respect to the remarks made during closing argument, counsel for Ohio Casualty asked the trial court to give correcting instructions. The court gave such instructions and cautioned the jury to limit its deliberations to the facts at issue. The court explained to the jury that they were not to be concerned with the accident that occurred, with the injured parties or with the fact that there may be more insurance money available. The trial court is in a better position than we to observe the atmosphere at trial and determine whether a statement made by counsel had a prejudicial effect on the jury. Clark v. Hoerner, 362 Pa.Super. 588, 525 A.2d 377 (1987). Our supreme court has stated that:

[i]n reviewing a trial judge’s charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.

Reilly by Reilly v. Southeastern PA Transportation Authority, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985). In applying these principles to the concerns appellant raises in issues three and four we find that the court’s charge was proper and adequately dissipated any prejudicial effect appellees’ counsel’s remarks may have had on the jury. While the court did not give a curative instruction on each point complained of by appellant, the trial judge was in a better position than we to fashion a remedy. We find no error in that court’s decision. Whether or not the portion of the court’s charge relating the strict interpretation rule was improper, these were only two short sentences of a charge ten pages long in the written transcript. Its impact was slight, in light of the rest of the charge, and merits no relief. In summary, appellant fails to persuade us that either opposing counsel’s remarks or the court’s charge merit a new trial. We are similarly unpersuaded that the verdict was based on sympathy and prejudice.

Finding no merit to appellant’s issues we affirm the judgment.

Appeal at Number 596 Harrisburg 1987 is quashed. With respect to the appeal at Number 651 Harrisburg 1987 the judgment is affirmed.

MONTEMURO, J., files a concurring and dissenting Opinion.

MONTEMURO, Judge,

concurring and dissenting:

Although I would concur in the majority’s treatment of the procedural issue, I would strongly dissent as to the substantive matters in this case. As is correctly pointed out, “The task of interpreting a contract is generally performed by a Court rather than by a jury.” Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304, 469 A.2d 563, 566 (1983). Here, in regard to the single crucial question in the case, that is whether appellee Stuck had a reasonable belief in his own entitlement to drive the vehicle, the trial Court specifically instructed the jury to undertake this function. (N.T. 24) Because the instruction directly contradicts Pennsylvania law, this portion may not be isolated from the remainder of the charge as it irremediably taints the whole, and fails to offer proper guidance to the jury in its deliberations.

Further, this contract of automobile insurance does not contemplate coverage for the deliberate perpetration of an illegality, as is clear from the reasonableness requirement. Had appellant’s policy merely referred to the insurability of permissive users as did the agreement in Federal Kemper Insurance Co. v. Neary, 366 Pa.Super. 135, 530 A.2d 929 (1987), there would be no difficulty in finding coverage for Stuck. See Kelly, P.D., Blashfield Automobile Law and Practice, Vol. 8, § 321.5 (1987). However, the clause here under examination speaks of reasonable belief, a phrase which implies the exercise of sound judgment. Insofar as the test for such a belief is concerned, it “takes into account a variety of circumstances, including the borrower’s age, personality, and social milieu, and the effect of such attendant influences on his judgment and mind as may be credibly discerned from the proofs.” Miller v. U.S.F. & G. Co., 28 D. & C.3d 389 (1983).

At the time of the accident Brian Stuck was 23 years old and a high school graduate. He admitted, both in deposition and at trial, to knowledge that it was illegal to operate a motor vehicle without a license, and that his prior driving experience had been limited. Although, given all these factors, it is remotely possible that Stuck thought himself “entitled,” that is, empowered by permission of the owner to operate the car simply by virtue of having been handed the keys, that conclusion involves more wishful thinking than reasonableness. Such judgment as it demonstrates is neither sound nor rational since it endows the (putative) teenage owner of an automobile with the authority to permit an activity, driving without a license, which the state clearly and specifically forbids.

The majority also finds that there is ambiguity in the concept of entitlement sufficient to require an express exclusion of unlicensed drivers from coverage. From the dictionary definitions and usage of the word in the policy, I would find no lack of clarity. Moreover, within the context of this case, the specifics of entitlement matter less than Stuck’s knowledge that he was prohibited by law from operating any automobile. We therefore arrive where we began, with the question of reasonableness.

I would reverse.


author: CAVANAUGH, Judge: WIEAND, Judge,

text:
    544 A.2d 1022
    Revella BOWSER, Appellee, v. Theodore ZACHARY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 27, 1988.
    Filed July 25, 1988.

      Malvin L. Skaroff, Philadelphia, for appellant.
    Fern L. Kletter, Assistant District Attorney, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   CAVANAUGH, Judge:

The issue in this case is whether the eighteen year statute of limitations under 23 Pa.C.S. § 4343(b) applies to a support action involving a child born out of wedlock on August 14, 1974 when the petition is filed after the effective date of the new statute of limitations. 23 Pa.C.S. § 4343(b) provides in part:

(b) Limitations of actions. — An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.

The Act of October 30, 1985, P.L. 264, No. 66, § 1, containing the above statute of limitations, repealed the statute of limitations established under 42 Pa.C.S. § 6704(e) and provided for an expanded limitation. The eighteen year statute became effective on January 28, 1986. The six year statute of limitations found in 42 Pa.C.S. § 6704(e) provided:

(e) Limitations of actions. — All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgement by the reputed father.

Ravella Bowser gave birth to a son, Ortelin Bowser, who was born out of wedlock on August 14, 1974. The statute of limitations in effect when Ortelin was born was the six year statute under 42 Pa.C.S. § 6704(e). This statute has recently been declared unconstitutional as violative of the equal protection clause of the United States Constitution. Clark v. Jeter, — U.S. —, 108 S.Ct. 1910, 100 L.Ed.2d 465, (United States Supreme Court, Opinion filed June 6, 1988) reversing Clark v. Jeter, 358 Pa.Super. 550, 518 A.2d 276 (1986).

On August 1, 1986 Ortelin’s mother commenced an action in support against Theodore Zachary alleging that he was the child’s father and failed to support his child. Mr. Zachary filed an answer to the complaint contending that he was not the father of the child and he had never supported the child. He also raised the defense of statute of limitations under new matter.

On July 7, 1987 the court below through Zaleski, J. denied the defendant’s motion for judgment on the pleadings based on the defense of the statute of limitations and held that the eighteen year statute of limitations was applicable. The court also held a paternity hearing on October 22, 1987 and found the defendant to be Ortelin’s father. A support order was entered. The defendant appealed to this court.

The sole issue on appeal is whether the eighteen year statute of limitations applies in this case where the child was born prior to the effective date of the statute and the action was commenced subsequent to the effective date. The court below held that the statute of limitations applicable to the complaint for support was the eighteen year statute of limitations found in 42 Pa.C.S. § 6704(e) as that statute of limitations was in effect on August 1, 1986 when the present action was commenced. The court relied on Paulussen v. Herion, 859 Pa.Super. 520, 524, 519 A.2d 473, 475 (1986), allocatur denied 515 Pa. 614, 530 A.2d 868 (1987) which held that: “[t]hat the statute in force when the complaint is filed is controlling as to timeliness.” See also Hatfield v. Hazelbaker, 306 Pa.Super. 555, 452 A.2d 863 (1982) and Commonwealth ex rel. Pugh v. Callahan, 312 Pa.Super. 246, 458 A.2d 607 (1983). In Paulussen, supra, a child was born out of wedlock on March 5, 1972 and a petition in paternity and support was filed on February 17, 1980. The hearing court granted summary judgment in favor of the alleged father on the basis of the defense of the six year statute of limitations and we affirmed applying the statute of limitations in effect when the action was brought.

The United States Supreme Court in Clark v. Jeter, supra, held that our former six year statute of limitations was unconstitutional as violative of the equal protection of the law clause of the United States Constitution. The court noted that it has developed a particular framework for evaluating equal protection challenges to statutes of limitation applicable to actions to establish paternity which limit the ability of children born out of wedlock to obtain support. To meet the heightened scrutiny under the equal protection clause (1) the time period for obtaining support must be sufficiently long to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf and (2) any time limitations placed on that opportunity must be substantially related to the state’s interest in avoiding the litigation of stale or fraudulent claims. The Supreme Court opined that it is not entirely evident the six year limitation is a necessarily unreasonable limit for providing an opportunity to assert a claim on behalf of an illegitimate child. However, the court held that the six year statute is not substantially related to Pennsylvania’s interest in avoiding the litigation of stale or fraudulent claims to pass constitutional muster. The court noted various Pennsylvania statutes including our statute that tolls the statute of limitations for personal injuries during minority as found in 42 Pa.C.S. § 5533(b).

While the Supreme Court held that our six year statute of limitations was unconstitutional, it declined to reach the issue of whether the eighteen year statute of limitations was to be applied retroactively. Nevertheless, it did rule that the six year statute of limitations was unconstitutional and if the eighteen year statute of limitations were not to be applied retroactively, we would have no statute of limitations in place for cases formerly covered by the six year statute. The holding in Paulussen, supra, that the statute of limitations in effect at the time the complaint is filed is controlling, necessarily gives retroactive application to the eighteen year statute if the child involved is born prior to the effective date of 23 Pa.C.S. § 4343(b).

Applying the holding of Paulussen, supra, to the facts before us, the petition filed on August 1, 1986 was timely filed under 23 Pa.C.S. § 4343(b) which is the applicable statute of limitations in the instant paternity action as it is the statute in effect at the time of filing the petition.

Our decision also finds support in the case of Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982) where we held that a civil action for support of a child born out of wedlock was not barred by the running of a two year criminal statute of limitations when paternity was denied. The criminal statute relating to paternity was repealed and the six year statute of limitations for civil support proceedings replaced it under 42 Pa.C.S. § 6701 et seq. We held that the repeal of the criminal statute of limitations did not extinguish the civil right to support, but only the ancillary criminal enforcement remedy and that an action commenced after the effective date of 42 Pa.C.S.A. § 6701 et seq., is not barred by the running of the two year criminal statute of limitations under 18 Pa.C.S.A. § 4323(b), which was repealed in 1978. See also Commonwealth ex rel. Johnson v. King, 297 Pa.Super. 431, 444 A.2d 108 (1982) which relief on Williams v. Wolfe, supra.

Order affirmed.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur in the majority’s decision to affirm the order of the trial court. To reach this result, however, it is necessary only to determine that the instant action is not barred by any statute of limitations. The six-year statute of limitations contained in 42 Pa.C.S. § 6704(e) is not a bar because it has been declared unconstitutional by .the United States Supreme Court in Clark v. Jeter, — U.S. —, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). Because appellee’s action was not barred by any other statute of limitations, the order of the trial court awarding support to a child born out of wedlock on August 14, 1974 was proper and must be affirmed. Under these circumstances, I find it unnecessary to explore the applicability of 23 Pa.C.S. § 4343(b) to paternity actions relating to children born prior to enactment of the statute. Even if it were applicable to the claim in this case, it would not be a bar thereto, for the action was filed prior to the child’s eighteenth birthday.

      . Paulussen v. Herion, supra, is subject to the criticism that it determined the statute of limitations in effect when an action is commenced is controlling, rather than when the cause of action arose. However, it is a decision of our court en banc which we must follow. The issue of the constitutionality of the six year statute was not discussed in Paulussen as our Supreme Court had already determined it to be constitutional in Astemborski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983).


author: MONTGOMERY, Judge:

text:
    544 A.2d 1025
    Gerald E. MARCINAK, Appellant, v. SOUTHEASTERN GREENE SCHOOL DISTRICT, Appellee.
    Superior Court of Pennsylvania.
    Argued April 14, 1988.
    Filed July 18, 1988.

      Gary D. Monaghan, Uniontown, for appellant.
    John A. Stets, Public Defender, Waynesburg, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellant, Gerald Marcinak, instituted the instant action seeking the payment of a retirement benefit which he alleged he was entitled to pursuant to the terms of an employment contract between himself and the Appellee Southeastern Greene School District. The employment contract applied to the Appellant’s position as Superintendent of the District for a three year term. The dispute was heard before the trial court, sitting without a jury. It determined that the Appellant was not entitled to the retirement benefit he sought.

The Appellant contends that the trial court erred in construing the contract between the parties. He maintains that his agreement with the Appellee mandated a payment of a retirement incentive benefit. The Appellant also argues that if the contract of employment contained doubtful or ambiguous language, the trial court erred by failing to construe it against the Appellee, which drafted it.

The record shows that the Appellant, who had been an employee of the Appellee School District for over twenty years prior to that time, was retained as the Superintendent of the District in early 1982, for a three year term. His employment contract, a three page document, does not specifically indicate when it was signed by the Appellant and a representative of the Appellee. However, it makes reference to the hiring of the Appellant for the position at a special monthly meeting of the Board of Education of the Appellee, held on January 27, 1982. Further, it declares that the specific term of employment was for three years, commencing July 1, 1982. Particularly relevant in this case is the following provision of the employment agreement:

That the Board shall provide the Superintendent during this Contract, all benefits as accrued and as accorded and equal to those provided the members of the professional staff. Such benefits shall include Blue Cross and Blue Shield coverages, as well as personal and emergency days, tuition and other payments granted during the life or term of this Contract. Earned sick leave is to be pro-rated in accordance with that earned by the teaching staff. A vacation of one month will be granted annually.

The specific retirement benefit sought by the Appellant in this action is provided for in a separate labor agreement between the Appellee School District and the employee association which represented the teaching employees of the School District. That collective bargaining agreement, which by its terms was effective from September 1, 1982 until August 31, 1985, provided, in Article XXI, entitled “Retirement Incentive Program”, for the following retirement benefit payments:

Any employee, having completed 25 years of service or having attained 55 years of age with the most recent ten (10) years of consecutive service performed in the Southeastern Greene School District, shall be entitled to receive a retirement incentive payment as follows:
at age 55 or less.....................................$ 7,000
at age of 56 ......................................... 6,000
at age of 57 ......................................... 5,000
at age of 58 ......................................... 4,000
at age of 59 ...;..................................... 3,000
at age of 60 .......................................... 2,000
at age of 61......................................... 1,000
Payment shall be made during the month of January of the succeeding calendar year after retirement.

The record shows that in December, 1984, the Appellee gave notice that the position of Superintendent would be open for applications, for the term following the completion of the Appellant’s contract. The Appellant did not reapply, and in February, 1985, the Appellee District hired another person to succeed the Appellant as Superintendent, commencing July 1, 1985. In late May or early June, 1985, the Appellant gave notice to the District that he intended to retire at the expiration of his contract.

Appellant urges that he is entitled to the retirement incentive payment, provided for in the collective bargaining agreement, as a result of the above-quoted provision of his own employment agreement which extended benefits to him “as accorded and equal to” those provided members of the professional staff during the term of his agreement. No question is presented as to the Appellant’s satisfaction of requirements of years of service and other qualifications for the retirement benefit. The only issue is whether the provisions of his employment contract encompassed a right to the retirement benefit sought in these proceedings.

The trial court determined that the critical clause in the Appellant’s employment contract was not ambiguous, as its meaning could be clearly determined by the application of a well-established principle of contract construction. That rule, as enunciated by the Pennsylvania Supreme Court in In Re Alloy Manufacturing Company Employees Trust, 411 Pa. 492, 192 A.2d 394 (1963), provides that specific provisions of a written contract ordinarily will be regarded as qualifying the meaning of broad general terms in relation to a particular subject. See also City of Philadelphia v. Philadelphia Transportation Co., 345 Pa. 244, 26 A.2d 909 (1942), concerning this rule. The trial judge pointed out that the employment contract contained a general expression of benefits followed by specifically enumerated benefits. He concluded that the aforementioned rule of construction required a finding that Appellant was limited to the specific benefits which were particularly stated in his employment agreement with the Appellee. Because there was no reference to the “Retirement Incentive Program” in the Appellant’s employment contract, it was ruled that the Appellant’s claim to that benefit could not succeed.

We cannot agree with these conclusions reached by the trial judge. The trial court’s analysis directed attention only to those specific benefits, such as personal and emergency days, which are listed in the employment contract. However, that analysis failed to consider the additional language in the contract stating that “all benefits as accrued and as accorded and equal to those provided the members of the professional staff” was intended to include those specifically listed as well as “other payments granted during the life or term of this Contract ” (emphasis added). Such terminology is a clear indication of the intent of the parties to extend to the Superintendent some payments not specifically enumerated in the employment agreement.

The general inclusive clause “other payments granted during the life or term of this Contract” should have been considered by the trial court, as it is well-established that a court may not disregard a provision in a contract if a reasonable meaning may be ascertained therefrom. Further, in construing a contract, each and every part of it must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument. On these points, see Giuliani Construction Co., Inc. v. School District of Philadelphia, 207 Pa.Super. 498, 217 A.2d 793 (1966).

Our analysis would violate these rules and be deficient, if it were to attach no significance the reference to “other payments granted during the life or term of this Contract.” By the use of such a phrase, in the context of the other parts of the same section of the employment agreement, the parties evidenced their intent that the Appellant would be afforded a right to all of the payments which any other professional employee could receive while the agreement was in effect. We can discern nothing ambiguous about that mutual intention. Accordingly, the teacher’s retirement benefit sought by the Appellant should have been made available to him because it was available to other professional employees.

While the interpretation of ambiguous writings is left to the discretion of the finder of fact, unambiguous terms are construed by a court as a matter of law. Community College v. Society of the Faculty, 473 Pa. 576, 592, 375 A.2d 1267, 1275 (1977). The intent of the parties to a written contract is to be regarded as being embodied in the writing itself, and when the words are clear and unambiguous, the intent is to be discovered only from the express language of the agreement. Estate of Breyer, 475 Pa. 108, 379 A.2d 1305 (1977). When the words of the contract are unequivocal, it speaks for itself and a meaning cannot be given to it other than that expressed, and there is no need to refer to extrinsic aids or evidence to determine the intentions of the parties. East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865 (1965).

The Appellant did not elect to apply for a renewal of his appointment as the Appellee’s Superintendent for another term. Prior to the end of the term of his contract, he gave notice of his retirement. He had fulfilled all requirements for the retirement benefit he sought, which was available to other professional employees. In these circumstances, applicable rules of contract interpretation required that the trial court order that he be paid the benefit in issue.

The Order of the trial court is reversed, and the case is remanded to the trial court for entry of judgment for the Appellant. Jurisdiction relinquished.


author: PER CURIAM:

text:
    544 A.2d 1028
    Carmen VALENTIN, Administrator of the Estate of Jesus Valentin, Dec’d, and Carmen Valentin in her own right, Appellant, v. Officer Hiram A. CARTEGENA and Daniel F. Dunn, Former Commissioner of the Pennsylvania State Police (Individually and in His Official Capacity) and Lt. Col. Nicholas G. Dellarciprete, Former Acting Commissioner and Chief of Staff of the Pennsylvania State Police (Individually and in His Official Capacity) and Cyril Laffey, Former Acting Commissioner of the Pennsylvania State Police (Individually and in His Official Capacity), Dominick Spigarelli, Commanding Officer Troop K, Pennsylvania State Police Belmont Barracks and the Commonwealth of Pennsylvania, Appellees.
    Superior Court of Pennsylvania.
    Argued March 10, 1988.
    Filed July 26, 1988.

      John W. Craynock, Philadelphia, for appellant.
    Carl Vaccaro, Philadelphia, for Dellarciprete, Laffey, Spigarelli and Com., appellees.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   PER CURIAM:

On December 7, 1984, Jesus Valentin was shot and killed by Hiram Cartagena, a Pennsylvania State Police Officer. On November 18, 1986, Carmen Valentin, as administrator of her son’s estate and in her own right, commenced an action for wrongful death and the alleged violation of her son’s civil rights. One of the defendants named in the action was Cyril Laffey, a former acting Commissioner of the Pennsylvania State Police. When service of the complaint was attempted upon Laffey, it was discovered that he was deceased, having died on November 30, 1984, seven days before plaintiff’s decedent was shot. Thereafter, on December 3, 1986, plaintiff filed with the prothonotary a document labelled “Suggestion of Death and Substitution of Personal Representative.” This document, with a copy of the complaint attached, was served upon Mary Ann Laffey, the widow of Cyril Laffey and the personal representative of his estate, on December 29, 1986. Mrs. Laffey filed preliminary objections alleging an improper substitution of a party defendant and lack of jurisdiction because of defective service. The trial court sustained the preliminary objections, struck the attempted substitution of Mrs. Laffey as a defendant, quashed the service, and struck Cyril Laffey as a defendant. This appeal followed.

Because Cyril Laffey had died before the lawsuit against him was commenced, the suit against him was a nullity. “A dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect.” Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597, 598 (1935) (citations omitted). See also: Longo v. Estep, 289 Pa.Super. 19, 21, 432 A.2d 1029, 1030 (1981). Therefore, the court properly struck Laffey as a party defendant. Moreover, because a dead person cannot be a party to an action commenced after his death, substitution of a personal representative of the dead person’s estate is improper. Erhardt v. Costello, 437 Pa. 556, 560-561, 264 A.2d 620, 622-623 (1970). It follows that plaintiff’s attempt to substitute as a party the personal representative of Laffey’s estate was also invalid and of no effect. Cyril Laffey had never been a party to the action; and, therefore, there was no party defendant for whom Mrs. Laffey, as personal representative, could be substituted.

Because plaintiff’s original action against Laffey was a nullity and because the attempted substitution of Mrs. Laffey was improper, plaintiff’s only remaining recourse was to file a new action against Mrs. Laffey in her capacity as personal representative of her late husband’s estate. See: 8 Goodrich Amram § 2352(b):4. This the plaintiff failed to do. Rule 1007 of the Rules of Civil Procedure provides that “[a]n action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons, (2) a complaint, or (3) an agreement for an amicable action.” Pa.R.C.P. 1007. Plaintiff concedes that Rule 1007 was not followed in the instant case. She argues, however, that this fact should be overlooked because the “Suggestion of Death” was filed prior to the running of the statute of limitations and a copy of the complaint was served upon Mrs. Laffey within 30 days thereof. We cannot accept this argument.

A suggestion of death is not a writ of summons or a complaint. Nor is it an agreement for an amicable action. Therefore, it is an inadequate means by which to “commence” an action against a new party. The Rules of Civil Procedure simply do not permit the commencement of an action by filing a “Suggestion of Death.” Cf. Hartmann v. Peterson, 438 Pa. 286, 265 A.2d 127 (1970) (action cannot be commenced by petition for rule to show cause).

Even were we to consider the “suggestion of death” as a hybrid praecipe for writ of summons, it was nevertheless ineffective to start an action against Mary Ann Laffey. It was ineffective for this purpose because the copy of the complaint served on her as substituted defendant did not name her as a defendant. It named, rather, Cyril Laffey who, as we have seen, was dead.

Appellant’s cause of action against Laffey was premised upon Laffey’s alleged responsibility for the course of training which Valentin’s killer received as a state trooper. In view of our holding that a valid action was not commenced against Laffey or his estate, we express no opinion regarding the alleged liability of a Commissioner of State Police for decisions regarding the training to be received by state police personnel.

Order affirmed.