author: SPAETH, President Judge:

text:
    474 A.2d 1124
    James Henry CARPENTER, III, James Henry Carpenter, Jr., and Evelyn Carpenter, his wife, Appellants, v. Rachel Brink CARPENTER and Bernadette B. Brink.
    Superior Court of Pennsylvania.
    Submitted Nov. 15, 1983.
    Filed March 30, 1984.

      William Caprio, III, Williamsport, for appellants.
    John F. Pyfer, Jr., Lancaster, for appellees.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   SPAETH, President Judge:

This is a child custody case. The trial court vacated its temporary custody order, and stayed the custody proceeding before it, on the ground that it should defer to a trial court in Massachusetts, which was exercising its jurisdiction to decide custody. We affirm.

Appellant, James Carpenter, III, is the father of two boys, one born September 9, 1981, the other, August 22, 1982. Appellants James Carpenter, Jr., and Evelyn Carpenter are the paternal grandparents of the children. Appellee Rachel Carpenter is the mother and appellee Bernadette Brink the maternal grandmother of the children. The children lived with their parents in Atglen, Chester County, until September 1982, when their father was placed in the Allenwood Federal Penitentiary. The children continued to live with their mother in Atglen until April 5, 1983, when their mother voluntarily relinquished custody of them to their maternal grandmother, who on the same day took them to Massachusetts to live with her. On April 8 the maternal grandmother filed a petition for custody of the children with a court in Massachusetts. The Massachusetts court granted the maternal grandmother temporary custody of the children for 90 days, and ordered that a hearing be held on June 15 to determine custody; the court also issued a temporary restraining order prohibiting the paternal grandparents from removing the children from Massachusetts.

On April 14, 1983, the children’s mother was taken into custody and placed in the Lancaster County prison. The children’s father instituted divorce proceedings the same day.

On April 15, 1983, appellants petitioned the trial court in Chester County for temporary custody of the children. On April 18 the court, unaware of the Massachusetts custody order, issued an order granting temporary custody to appellant and scheduled a custody hearing for June 6.

On May 6, 1983, the trial court in Massachusetts entered jurisdictional findings of fact and conclusions of law in support of its April 8th order. Appellees then petitioned the trial court in Chester County for a stay of the custody proceeding before it on the ground that the Massachusetts court was already exercising its jurisdiction to decide custody. On May 20 the court granted appellees’ petition for a stay and vacated its April 18th order granting temporary custody to appellants. The appeal now before us is from this order of May 20.

The Uniform Child Custody Jurisdiction Act (UCCJA) was enacted in Pennsylvania (with only insubstantial changes in wording) by the Act of#June 30, 1977, P.L. 29, No. 20, now found at 42 Pa.C.S.A. § 5341 et seq. Section 5344(a)(1), (2) provides:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;

The Act defines “home state” as the state in which the child lived with his parents for at least six months immediately-preceding the custody action. 42 Pa.C.S.A. § 5343. Therefore,- here the trial court in Chester County had jurisdiction under section (1) of Section 5344(a), since Pennsylvania is the home state and the parents live in Pennsylvania, and also under section (2), since both the parents and the paternal grandparents live in Pennsylvania and there is substantial evidence in Pennsylvania concerning the case.

As has been stated, at the time the custody proceeding was initiated in the trial court in Chester County, the Massachusetts court had already entered a temporary custody order and scheduled a hearing. 42 Pa.C.S.A. § 5347(a) provides:

(a) General rule. — A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter.

The trial court in Chester County was unaware of this fact, for appellants did not inform the court of the Massachusetts proceeding, although they had been notified of it. See, Appellants’ Answer to Petition to Stay Custody Proceedings, paragraph 7. Once informed of the Massachusetts proceeding by appellees’ petition for a stay, the trial court in Chester County was required to enter a stay. 42 Pa.C. S.A. § 5347(c) provides:

(c) Stay; communication with other court. — If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged.
If a court of this Commonwealth has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact.

Thus, here, in entering its order of May 20, 1983, vacating its earlier award of temporary custody and staying the custody proceeding before it, the trial court simply complied with Section 5347(c). Also in compliance with Section 5347(c), the court communicated with the Massachusetts court, and was advised by that court that it intended to assert continuing jurisdiction. Slip op. of trial court at 4.

Appellants argue that the Massachusetts court does not have jurisdiction. However, we need not determine whether the Massachusetts court has jurisdiction; we need only determine whether the trial court in Chester County erred in refusing to exercise its jurisdiction.

42 Pa.C.S.A. § 5347(a) provides that the court in one state must not exercise jurisdiction if the court in the other state is exercising jurisdiction substantially in conformity with the Act. Here, the Massachusetts court was exercising jurisdiction substantially in conformity with Section 3(a)(3) of the UCCJA, which provides for parens patriae jurisdiction:

(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(3) the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected [or dependent].
9 Uniform Laws Annotated, p. 122, West Publishing Co. 1979. See also, 42 Pa.C.S.A. § 5344(a)(3).

The children were present in Massachusetts. The father was in no position to exercise his parental rights, and the mother had voluntarily relinquished custody of the children. Since the parents were therefore either not able or not willing to care for the children, the Massachusetts court determined that the children were abandoned, and assumed parens patriae jurisdiction. Slip op. of Massachusetts court in support of jurisdictional findings at 3. Cf., Wenz v. Schwartze, 183 Mont. 166, 598 P.2d 1086 (1979) (abandonment found for jurisdictional purposes where mother relinquished custody and father took no action to gain custody).

Even if the Massachusetts court did not have jurisdiction, the underlying policy of the UCCJA supports the decision of the trial court in Chester County not to exercise its jurisdiction. The Commissioners’ Note to Section 6 of the UCCJA concerning simultaneous proceedings in other states states:

When the courts of more than one state have jurisdiction ... priority in time determines which court will proceed in the action____ While jurisdiction need not be yielded ... if the other court would not have jurisdiction under the criteria of the Act, the policy against simultaneous custody proceedings is so strong that it might in a particular situation be appropriate to leave the case to the other court even under such circumstances.
Commissioners’ Note, 9 Uniform Laws Annotated, supra at 135. See also 42 Pa.C.S.A. § 5347(c).

Appellants argue that even if the Massachusetts court has jurisdiction, Pennsylvania is the more appropriate forum since it is the home state of the children and substantial evidence concerning the case is in Pennsylvania. However, under 42 Pa.C.S.A. § 5347(c) the trial court is not obliged to exercise its jurisdiction when there is substantial evidence in Pennsylvania. Rather the trial court’s action was proper in the circumstances. As has been stated, the court communicated with the Massachusetts court to determine whether that court intended to assert continuing jurisdiction. When advised by that court that it would continue to assert jurisdiction, the trial court stayed its proceedings, stating that it “[took] this action reluctantly but clearly mindful of the necessity to ‘avoid jurisdictional competition and conflict with Courts in other states in matters of child custody which have in the past resulted in shifting children from state to state with harmful effects on their well-being.’ ” Slip op. at 4, quoting 42 Pa.C.S.A. § 5342(a)(1).

Appellants argue that the trial court’s action goes against the stated purposes of the UCCJA. 42 Pa.C.S.A. § 5342(a) provides:

1) Purposes. — The general purposes of this subchapter are to:
(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.
(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.
(3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.
(4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.
(6) Avoid relitigation of custody decisions of other states in this Commonwealth insofar as feasible.
(7) Facilitate the enforcement of custody decrees of other states.
(8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this Commonwealth and those of other states concerned with the same child.

Appellants rely on subsections (2), (3), and (5). They argue that Pennsylvania can best decide the case, it is the state that the children have the closest connection with, and

[m]ost importantly, the Court below should have exercised its jurisdiction to deter the type of conduct engaged in by the Appellees in this case, i.e. the abduction and unilateral removal of the two minor children to Massachusetts, solely to obtain an advantageous and sympathetic forum.
Brief for Appellants at 13-14.

This argument is not supported by the record, which is not that the children were “abduct[ed]” but that the mother voluntarily relinquished custody of them to the maternal grandmother. See Affidavit of Rachel B. Carpenter in Support of Petition for Guardianship. Appellants would have this court order the trial court to entertain their custody petition without regard to the Massachusetts proceeding. The result would be two competitive proceedings, resulting in separate and perhaps conflicting custody decrees. Such an order would contravene the purposes of the UCCJA, see, 42 Pa.C.S.A. § 5342(a)(1), (4), (6), (7), (8), and the policy that underlies the Act:

Underlying the entire Act is the idea that to avoid the jurisdictional conflicts and confusions which have done serious harm to innumerable children, a court in one state must assume major responsibility to determine who is to have custody of a particular child____ If this can be achieved, it will be less important which court exercises jurisdiction but that courts of the several states involved act in partnership to bring about the best possible solution for a child’s future.
Comment of Commissioners, 9 Uniform Laws Annotated, supra at 114 (emphasis in original).

Appellants rely on Commonwealth ex rel. Octaviano v. Dombrowski, 290 Pa.Super. 322, 434 A.2d 774 (1981). In that case, after the father of the child filed a custody action in Pennsylvania, the mother and child moved to New York. The trial court dismissed the father’s custody action, finding that since the mother and child lived in New York, Pennsylvania was an inconvenient forum. This court reversed, holding that Pennsylvania was the more appropriate forum. Octaviano is distinguishable from this case. In Octaviano there was not, as there is here, any simultaneous proceeding in another state. Here the trial court declined to exercise jurisdiction, not because Pennsylvania was an inconvenient forum but because the Massachusetts court had already assumed and was exercising jurisdiction.

Appellants also rely on Matter of D.L.S., 278 Pa.Super. 446, 420 A.2d 625 (1980). In that case the trial court asserted its jurisdiction despite a pending custody proceeding in Florida. This court affirmed, finding that Pennsylvania was the more appropriate forum. D.L.S. is distinguishable from this case in two respects. First, in D.L.S. we found that the court in Florida could not exercise jurisdiction substantially in compliance with the Act. Second, in D.L.S. there was nothing in the record to prove that there was a custody proceeding pending in Florida. We said:

We also find it significant ... that the allegation of a pending action was not made under oath or substantiated in any manner. Since appellant has made no further reference to a pending action in her brief to this court we conclude it should not be considered a barrier to the exercise of jurisdiction by a court of this Commonwealth. Matter of D.L.S., supra, 278 Pa.Superior Ct. at 452, 420 A.2d at 628.

In this case, the record includes certified copies of the Massachusetts proceeding, and, as has been discussed, it appears that the Massachusetts court is exercising jurisdiction substantially in compliance with the Act.

Finally, appellants argue that they were denied due process of law because they were not notified of the Massachusetts hearings on temporary custody and jurisdiction. We are mindful that section 5 of the UCCJA provides that notice to persons outside of the state must be given before a hearing on custody is held. See also, 42 Pa.C.S.A. § 5846. However, we are not prepared to hold that the Massachusetts proceeding is, or was, a nullity. The Massachusetts court’s temporary custody order of April 8th was to be effective for 90 days only and the hearing on custody was scheduled to take place before the expiration of the 90 days. Although appellants were not notified of the hearing on temporary custody and jurisdiction, but see 42 Pa.C.S.A. § 5346(a) (notice to persons outside Commonwealth), they were notified of the entry of the temporary custody order and of the fact that a hearing to determine custody was scheduled for June 15th. They therefore had the opportunity to raise the issues of jurisdiction and inconvenient forum at the June 15th hearing. 9 Uniform Laws Annotated, UCCJA, § 7, see also, 42 Pa.C.S.A. § 5348. In addition, appellants had the opportunity, in fact the obligation, to bring the jurisdictional issue before the trial court in Chester County. 42 Pa.C.S.A. § 5350(c) requires every party to inform the court of any custody proceedings in another state. Instead, appellants did not so inform the trial court, but chose to ignore the Massachusetts proceeding and to attempt to obtain a custody order from the trial court.

Affirmed.

      . The court’s order erroneously refers to the paternal grandfather as Joseph Carpenter, Sr., rather than Jr.

      . Although “orders staying proceedings to await the termination of related proceedings in another court are generally interlocutory in nature, [this] should not be viewed as a blanket rule without exception to be applied in all cases involving stay orders. Whether or not a stay order should be considered final for appeal purposes depends to a large extent upon the practical effect and impact the stay order might have on the relief requested by the litigants. If the effect of the stay order is tantamount to a dismissal of the cause of action or amounts to a permanent denial of relief requested, the party aggrieved should undoubtedly be afforded the opportunity to appeal on the basis that such stay order is a final disposition of some, if not all, of the rights involved." Philco Corp. v. Sunstein, 429 Pa. 606, 609, 241 A.2d 108, 109 (1968) (footnotes omitted). Here, appellants request that we order the trial court to exercise its jurisdiction to decide custody. Under the Uniform Child Custody Jurisdiction Act, enacted in Pennsylvania by the Act of June 30, 1977, P.L. 29, No. 20, now found at 42 Pa.C.S.A. § 5341 et seq., the courts of this Commonwealth must recognize and enforce out-of-state custody decrees. 42 Pa.C.S.A. § 5354. Thus, if the Massachusetts trial court awards, or has already awarded, custody to appellees, appellants will have to seek a modification of that order. To obtain such a modification, appellants will have to show a change in circumstances, Reed v. High, 254 Pa.Super. 367, 385 A.2d 1384 (1978), and meet the requirements of 42 Pa.C.S.A. § 5355(a) (relating to modifications of custody decree of another state). By its order of May 20, vacating its earlier award of temporary custody and staying the custody proceeding before it, the trial court effectively precluded appellants from litigating the case in Pennsylvania. Its order thus has the same effect as a dismissal and is therefore a final appealable order.

      . Massachusetts has not adopted the UCCJA, although the courts there, including the Massachusetts court in its opinion in this case, have cited it with approval. See, e.g., Murphy v. Murphy, 380 Mass. 454, 404 N.E.2d 69, (1980). We nevertheless apply the provisions of the Act to this case, for it "is not a reciprocal law. It can be put into full operation by each individual state regardless of enactment of other states.” Comment of Commissioners, 9 Uniform Law Annotated at 114, West Publishing Co. 1979.

      . The court also assumed jurisdiction under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A(c)(2)(C), which provides:
      (c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
      (1) such court has jurisdiction under the law of such State; and
      (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;

      . This appeal was filed before the June 15th custody hearing in Massachusetts. The record therefore does not reflect who was awarded custody of the children by the Massachusetts court.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    474 A.2d 1131
    DREAM POOLS OF PENNSYLVANIA, INC. v. Frank BAEHR and Mary Ann Baehr, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1983.
    Filed March 30, 1984.

      James J. Regan, Jr., Bala-Cynwyd, for appellants.
    Thomas A. Landis, Lansdale, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Montgomery County, entered in favor of appellee and against appellants for $1650.00.

Appellee, Dream Pools of Pennsylvania, Inc., entered into a written contract with appellants, Mr. and Mrs. Baehr, on August 11, 1977. Dream Pools promised and agreed to construct and the Baehrs promised and agreed to purchase a swimming pool, which was to be built on the Baehrs’ property for $5000.00. The contract provided for a refund of the down payment ($20.00) if the contract were cancelled within three (3) days. The Baehrs did not cancel within three days. However, on August 24, 1977, thirteen (13) days later, Mrs. Baehr telephoned Dream Pools and announced the Baehrs’ unconditional repudiation and cancellation of the contract.

Dream Pools subsequently sued the Baehrs for lost profits of $1,650.00, plus incidental expenses of commissions, advertising, and overhead. The case was initially heard by a board of arbitrators, which found in favor of Dream Pools for $2,150.00. The Baehrs appealed from this award, and the case was tried again before the Honorable Horace A. Davenport. After a non-jury trial, Dream Pools again received a verdict in its favor, this time for $1,650.00. Thereafter, the Baehrs filed a motion for a new trial. That motion was denied on November 24, 1981 and judgment was entered accordingly on December 4, 1981. The Baehrs filed this timely appeal.

The Baehrs raise two questions for our consideration:

(a) Where no agreement, written or otherwise, has been made by the parties to submit any case to a trial by and before a Judge alone without a jury, may a judge validly order such a trial before himself alone and render a valid judgment th[e]rein?
(b) Where, in a written contract to excavate and construct a swimming pool on defendants’ residential property is cancelled by defendants in ten (10) days (too late for refund of earnest money); and the plaintiff-contractor thereafter does nothing; i.e. digs no excavation, nor sends equipment, workmen, or tools to defendants’ property and makes no part performance whatever, may such plaintiff-contractor sue and obtain a judgment for general business expenses and loss of profits?

Brief for Appellants at 1. We answer the first affirmatively but are unable to answer the second for reasons explained herein.

The Baehrs urge us to adopt the position that a trial judge cannot render a valid judgment following a bench trial before himself or herself, where there is no agreement, written or otherwise, waiving trial by jury. We find that such a position does not represent the current law in Pennsylvania.

The law pertaining to trial by jury and waivers thereof is set forth in 42 Pa.C.S.A. § 5104(a):

(a) General rule. — Except where the right to trial by jury is enlarged by statute, trial by jury shall be as heretofore, and the right thereof shall remain inviolate. Trial by jury may be waived in the manner prescribed by general rules.

Dream Pools points to Pa.R.C.P. 1007.1 as such a general rule. Pa.R.C.P. 1007.1 states in pertinent part:

(a) In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty (20) days after service of the last permissible pleading. The demand shall be made by endorsement on a pleading or by a separate writing.
(b) Where an appeal is taken from an award in compulsory arbitration and a jury trial has not theretofore been demanded, the right to a jury trial shall be deemed waived unless the appellant endorses a demand for a jury trial on his appeal, or unless the appellee files and serves a written demand for a jury trial not later than ten (10) days after being served with the notice of appeal.
Note: Trial without jury shall be conducted in accordance with Rule 1038.

Examination of the pleadings and other writings filed by the parties reveals that no such written demand for a jury trial was requested. This case was originally heard before an arbitration board; the Baehrs appealed from that adverse ruling to the Court of Common Pleas of Montgomery County. However, whether the time for a jury demand was ten days under Rule 1007.1(b) or twenty days under Rule 1007.1(a) is immaterial in this case, because no jury trial was ever demanded. The record is devoid of any showing that the Baehrs did not willfully proceed in the manner that they did. The explicit language of Rule 1007.1 compels us to conclude that the Baehrs waived their right to trial by jury.

The Baehrs also question whether Dream Pools can properly obtain a judgment for general expenses and loss of profits. In order to get to the merits of this issue, we must first cut through some procedural underbrush. Pa.R.C.P. 1038(d) governs the procedure to be used after the filing of a decision in a nonjury assumpsit trial.

(d) Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a nonsuit may be filed.

No exceptions, timely or otherwise, were filed by the Baehrs. Instead, they filed a motion for a new trial, with an added hand-written notation moving for judgment non obstante veredicto, both of which are specifically prohibited by the rule. Such motions have been abolished in non-jury assumpsit and trespass actions. Camp Construction Corp. v. Lumber Products Co., 311 Pa.Super. 381, 384 n. 1, 457 A.2d 937, 939 n. 1 (1983); Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 561 n. 1, 434 A.2d 1292, 1293 n. 1 (1981).

We believe that the rules of civil procedure should be followed in order to insure the smooth and efficient operation of the judicial process. However, in applying these rules, we are guided by the policy embodied in Pa.R. C.P. 126, which provides for liberal construction of the rules in order to ensure that justice is accorded to the parties involved. We are permitted to disregard procedural errors which do not affect the substantial rights of the parties. Therefore, even though the motion filed by the Baehrs was captioned improperly, we will treat it in the same manner as the trial judge apparently did, as timely-filed exceptions to the verdict of September 3, 1981. Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978); Camp Construction Corp. v. Lumber Products Co., supra; Karpe v. Borough of Stroudsburg, supra; Norris Van Tops, Inc. v. Kopitsky, 278 Pa.Super. 77, 419 A.2d 1365 (1980).

Even treating the motion for a new trial as the filing of exceptions does not give the Baehrs clear sailing. The motion was dismissed by the trial judge for the Baehrs’ failure to file a brief supporting the motion within thirty (30) days after filing a praecipe to list the motion for argument. The matter was praeciped for argument on October 14, 1981. On November 24, 1981, 41 days later, the lower court entered an order dismissing the motion for a new trial.

The reason for the dismissal of the motion was the failure to file a timely brief according to local rule 302(d) of the Montgomery County Rules. Rule 302(d) has been the subject of a number of previous cases. Until recently, our decisions upheld the validity of Rule 302(d). See Dunham v. Temple University, 288 Pa.Super. 522, 432 A.2d 993 (1981); Hesselgesser v. Glen-Craft Contractors, Inc., 287 Pa.Super. 319, 430 A.2d 305 (1981). However, starting in 1981, in Haney v. Sabia, 59 Pa.Commw. 123, 428 A.2d 1041 (1981), the automatic nature of Rule 302(d) began to be questioned. A series of decisions reversing or remanding cases involving Rule 302(d) followed: Bassion v. Janczak, 299 Pa.Super. 195, 445 A.2d 521 (1982); Fred Lowenschuss Associates v. DePallo, 296 Pa.Super. 88, 442 A.2d 310 (1982); Seidel v. Great Factory Store, 291 Pa.Super. 255, 435 A.2d 896 (1981); Shapiro v. Albright, 287 Pa.Super. 414, 430 A.2d 672 (1981). Two cases which reached our supreme court held that a rule mandating strict enforcement of filing requirements for reply briefs to motions was invalid as being inconsistent with the fairness mandated by the Rules of Civil Procedure. Byard F. Brogan v. Holmes Electric Protective Company, 501 Pa. 234, 460 A.2d 1093 (1983); DeAngelis v. Newman, 501 Pa. 144, 460 A.2d 730 (1983).

Here, we deal not with the Rule 302(d) which was the subject of the above-named cases, but with the revised Rule 302(d), which went into effect October 27, 1980. The rule, as amended, now gives the court discretion to determine and impose an appropriate sanction for failure of a party to comply with the time constraints imposed by the rule. Seidel v. Great Factory Store, supra. Just recently, in Murphy v. Brong, 321 Pa.Super. 340, 468 A.2d 509 (1983), we were called upon to comment on amended Rule 301(d), the companion rule to 302(d). Rule 301(d), which was also revised in 1980, now gives the court discretion, as compared to the old mandatory rule, to determine and impose proper sanctions for failure of a party to comply with similar time constraints for filing briefs.

[W]e note that the order from which this appeal was taken would appear to be a proper exercise of the discretion of the trial judge, pursuant to the amended Montgomery County Rule 301(d). The opinions of the Supreme Court in Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983) and DeAngelis v. Newman, 501 Pa. 144, 460 A.2d 730 (1983) and the decision of this Court in Ricci v. Ricci, 318 Pa.Super. 445, [465 A.2d 38] (1983) would not, therefore, be dispositive of this appeal since those decisions reviewed the prior Montgomery County Rules 301(d) and 302(d) which prohibited the exercise of discretion by the court and required that mandatory sanctions be imposed.

Id., 321 Pa.Superior Ct. at 344, 468 A.2d at 511.

While not dispositive, we find upon closer examination that Ricci v. Ricci, 318 Pa.Super. 445, 465 A.2d 38 (1983) is very persuasive because of its similarity to our case. Ricci was an equity action by a party seeking specific performance of a property settlement agreement against her ex-spouse. After trial, the court filed findings of fact, conclusions of law, and a decree nisi, to which both parties excepted.

On August 6, 1980, [plaintiff] praeciped all exceptions on the argument list and thereby triggered Montgomery County R.C.P. 301(d) which required the parties to file briefs in support of their respective exceptions within thirty days. [Defendant] did not file his brief within the required time, and the court denied a request for an extension. On September 26, 1980, [defendant’s] exceptions were dismissed by an order which provided, in part, as follows: “Plaintiff having filed a praecipe to have both plaintiff’s and defendant’s exceptions listed for argument and thirty (30) days having passed and defendant having failed to file briefs, defendant’s exceptions are, therefore, dismissed as required by M.C.R.C.P. 301(d).”

Id., 318 Pa.Superior Ct. at 447, 465 A.2d at 38-39, footnote omitted. The case was remanded by this court, using the following reasoning:

In the instant case, the trial court dismissed [defendant’s] exceptions solely because his counsel had failed to file a brief within the time allowed therefore by Montgomery County R.C.P. 301(d). The record permits no other explanation; and the court’s order itself confirms that it was entered in reliance upon the local rule. This constituted the same strict application of a local filing rule, without regard for considerations of equity and fairness, which the Supreme Court condemned in Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, supra.

Id., 318 Pa.Superior Ct. at 448-49, 465 A.2d at 39-40, footnote omitted.

We acknowledge that the Rule 301(d) in Ricci was the old mandatory rule, while we deal with the amended, discretionary rule in the instant case. What is apparent to us, however, is the automatic nature of the trial judge’s order in this case. Despite the discretionary nature of Rule 302(d), as amended, and as in effect at the time of the order in question, the lower court’s order is automatic in nature. The order dismissing the Baehr’s motion for a new trial reads as follows:

AND NOW, this 24th day of November, 1981, Plaintiff having filed a praecipe to have Defendants Motion for New Trial listed for argument and thirty (30) days having passed without the requisite filing of supporting briefs, as required by Rule 302(d) the Motion is therefore dismissed. [emphasis added].

Nor does the trial court’s opinion of February 19, 1982 give us any reason to believe that this order was anything but an automatic act by the trial judge. There is no evidence that the judge considered the circumstances surrounding the delay or the reasons for the failure of the Baehrs to comply with the rule before concluding that the appropriate sanction was to dismiss the motion for a new trial.

We do not hold that Montgomery County Rule 302(d), as amended, is faulty in anyway. What we do hold is that under the facts of this case, the trial judge abused his discretion by applying the rule strictly without regard for considerations of fairness and equity. Ricci v. Ricci, supra. Therefore, we remand to the lower court for further proceedings not inconsistent with this opinion.

Reversed and remanded. Jurisdiction is relinquished.

      . The captions appearing on both briefs indicate that the appeal is from the order of December 4, 1981. On November 24, 1981, the Honorable Horace A. Davenport, ordered the dismissal of appellants’ motion for a new trial. Judgment was entered in favor of appellee against appellants for $1,650.00 on December 4, 1981. On December 28, 1981, appellants appealed from “the order dated December 4, 1981.” We can only assume they refer to the entry of final judgment on December 4, 1981. Pa.R.App.P. 301(c) specifically says that an order denying a motion for a new trial is not an appealable order; rather, it must first be reduced to judgment and docketed before an appeal is taken. Thus, we find that appellants’ appeal must be considered to be taken from the entry of judgment. See Donson v. Satterthwaite, 297 Pa.Super. 496, 444 A.2d 141 (1982); Anskis v. Fischer, 294 Pa.Super. 212, 439 A.2d 826 (1982); Davanzo v. Finelli, 293 Pa.Super. 70, 437 A.2d 995 (1981).

      . The total amount requested, including interest and costs, less the down payment, was $2,280.00 in the original complaint, and $3,330.00 in the amended complaint.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2. As amended Act of April 28, 1978, P.L. 202, No. 53, §§ 10(57), 21.

      . Effective October 27, 1980, Montgomery County Rule 302(d) was revised as follows:
      (d) Brief required — In Interlocutory matters, 302(c)(1), briefs or memoranda of law may be submitted by counsel to the court administrator at any time prior to the day of argument or to the hearing judge at the time of argument. In Appealable matters, 302(c)(2), the moving party or parties shall file its brief within 30 days»'of the filing of the motion, petition or preliminary objection, and shall file the same by giving three copies of the brief to the court administrator’s office, who shall stamp the same received, and by serving concurrently therewith copies upon all other parties of record. The court administrator shall distribute to the judge or judges assigned to hear those matters, a copy of said brief or briefs.
      The responding party or parties, within 30 days of the filing and service of the moving party's brief, shall likewise file three copies of its brief with the court administrator’s office, who shall stamp the same received, and shall serve concurrently therewith copies upon all other parties of record. The court administrator shall distribute to the judge or judges assigned to hear those matters, a copy of said brief or briefs.
      If the briefs of either the moving party or responding party are not timely filed within the period above stated, unless the time shall, be extended prior thereto by the court for good cause and reason shown, the court administrator shall notify the court. The court may then, or at any time subsequent thereto:
      (1) Dismiss the motion, petition, preliminary objection or other matter, where the moving party has failed to comply, or
      (2) Grant the requested relief where the responding party has failed to comply, or
      (3) Direct the matter to be listed for argument, at which time the complying party or parties shall alone be heard and/or
      (4) Impose such other sanction upon a noncomplying party as it shall deem proper. No extention [sic] of time for the filing of briefs by agreement of counsel shall be permitted.
      The moving party shall file a praecipe in duplicate with the prothonotary at the time it files its Appealable matter and the prothonotary shall time-stamp the praecipe. The moving party shall serve a copy of the praecipe on opposing counsel or unrepresented party along with the motion or petition.


text:
    474 A.2d 1137
    HANOVER BANK OF PENNSYLVANIA, Trustee, and Hanover Bank of Pennsylvania, Executor of the Estate of Edward B. Abend v. UNITED PENN BANK v. Deborah DAVIS and Donna Davis, Appellants.
    Superior Court of Pennsylvania.
    Argued May 12, 1983.
    Filed March 30, 1984.

      Mark A. Ciavarella, Jr., Wilkes-Barre, for appellants. John E. Morris, III, Wilkes-Barre, for Hanover, appellee.
    Arthur L. Piccone, Wilkes-Barre, for United Penn, appellee.
    Thomas P. Brennan, Wilkes-Barre, for participating parties.

      Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order of the Orphans’ Court of Luzerne County dismissing the exceptions filed by appellants.

Edward B. Abend died on August 6, 1980. A Last Will and Testament dated July 11,1980, was filed for probate by Hanover Bank of Pennsylvania as Executor of the Will. The Will contained eleven specific bequests totalling $15,-700, to various friends, relatives, and charities. The rest, residue, and remainder of the estate was left to Hanover Bank of Pennsylvania as Trustee, to hold as a charitable trust for the benefit of Project Remain, a social agency operated by the Sisters of Mercy in Wilkes-Barre, Pennsylvania. The assets of the trust are expected to exceed $100,000.00. The dispute centers around ownership of three certificates of deposit assigned to the trust.

On July 3, 1978, the decedent purchased a Certificate of Deposit from United Penn Bank, Wilkes-Barre, in the amount of $20,000.00. The Certificate was made payable to “Edward Abend or Deborah Davis,” Deborah being a grandniece of Mr. Abend and 19 years old at the time. On November 9, 1978, the decedent purchased another Certificate of Deposit from United Penn Bank, in the amount of $20,000.00. This Certificate was made payable to “Edward Abend or Donna Davis,” Donna being a grandniece of decedent and 20 years old at the time. On February 18, 1980, the decedent purchased a third Certificate of Deposit from United Penn Bank in the amount of $1,879.40. This Certificate was made payable to “Edward Abend or Donna Davis.” All three certificates were bought by Mr. Abend, using his own funds. He retained exclusive control and possession of the certificates at all times.

In the lower left-hand corner on the face of each certificate is the following language:

This Certificate is not negotiable and any assignment hereof shall be valid only upon written consent of this Bank.

The signature cards signed by the decedent and the Davises reads as follows:

The undersigned hereby agree(s) that the Certificate of Deposit ... is governed by the Pennsylvania Uniform Commercial Code and the rules and regulations as set forth on the Certificate of Deposit. The Certificate of Deposit, shall be deemed to belong to us, if husband and wife, as tenants by the entireties, otherwise as joint tenants with right of survivorship and not as tenants in common, and in case of the death of any one of us, the bank is authorized and directed to deal with the survivor or survivors as the absolute owner or owners thereof. Each joint owner whether husband or wife or otherwise, is agent for the other to give or receive any notice or to take any other action affecting this certificate.

On June 27, 1980, decedent entered into an inter-vivos trust agreement whereby the Hanover Bank of Pennsylvania, Wilkes-Barre, as Trustee, collected, maintained, and managed the decedent’s financial affairs. On the same day, decedent signed the back of each certificate beneath the following language:

Assigned To: Hanover Bank of Pennsylvania, Trustee Edward B. Abend Trust U/A dated 6-27-80

On July 11, 1980, an officer of Hanover Bank forwarded to United Penn Bank the three certificates, requesting that the change in record ownership be noted and that the certificates be returned to Hanover Bank. United Penn Bank received the certificates and returned them to Hanover Bank on July 15, 1980. However, United Penn Bank took no action to recognize or accept the assignments of June 27, 1980.

The decedent died on August 6, 1980 of self-inflicted gunshot wounds. He was 89 years old.

On October 21, 1980, Hanover Bank again wrote to United Penn Bank, requesting that the changed ownership of the certificates be acknowledged. On November 4, 1980, United Penn Bank advised Hanover Bank that it could not redeem or assign the certificates without the signature of both parties listed on the certificates.

Hanover Bank, as Executor, filed a petition for a rule to show cause why United Penn Bank should not be compelled to recognize and accept the assignments of the certificates. The Davises were also served as interested parties and were later granted leave to intervene. Project Remain, as the residuary beneficiary of the trust, was also served as an interested party. Both the Inheritance Tax Bureau and the Attorney General’s Office of the Commonwealth of Pennsylvania were likewise served. The lower court heard arguments on February 23, 1982 and on August 16, 1982, filed an Order and Opinion recognizing the validity of the assignments and directing United Penn Bank to make the appropriate changes in record ownership. Exceptions to the court’s order, filed by United Penn Bank and the Davises, were dismissed on November-12, 1982.- The Davises filed a timely appeal from this order.

The issue before us is deceptively simple. As framed by appellants Davis, we must decide:

Was the Lower Court’s findings of fact, conclusions of law and Order concluding that Edward B. Abend, prior to his death, assigned three Certificates of Deposit purchased from the United' Penn Bank to the Edward B. Abend inter vivos trust with Hanover Bank as Trustee error?

Brief for Appellants at 3. Appellants admit that if the assignments were valid, they would not be entitled to the proceeds of the certificates even though they were valid payees on the face of the certificates. Appellants argue, however, that the assignments were not perfected, and therefore, appellants are owners of the certificates and entitled to the proceeds thereof. We agree with the lower court that the assignments of the certificates by Mr. Abend were valid.

It is first necessary to establish ownership of the certificates on June 27, 1980, the date of the assignment. The lower court determined the ownership in this manner:

The record indicates that the Certificates of Deposit were purchased solely from the funds of the decedent. The actual Certificates were always in the decedent’s possession. The Certificates of Deposit contain only his address and Social Security Number. In fact, it appears that the only activity of either grandniece, Deborah or Donna Davis, was to sign the signature card. The Multi-Party Accounts Act, 20 Pa.C.S.A. § 6301, et se[q], establishes ownership of a joint account during the lifetime of the account owners. In 20 Pa.C.S.A. § 6303(a), it is stated as follows:
A joint account belongs, during the lifetime of all parties, to the parties in the proportion to the net contributions by each to the sum on deposit unless there is clear and convincing evidence of a different intent.
There is no evidence that the decedent wished to divest ownership from himself in favor of his grandnieces. The activities of the decedent in relation to the Certificates of Deposit, such as keeping them in his possession, and attempting to assign them to the Trust, clearly indicates that it was his intention to retain ownership of the entire amounts on deposit. Therefore, as of June 27, 1980, the decedent, Edward B. Abend, was the sole owner of the Certificates of Deposit.

Lower ct. op. at 6.

Appellants argue that section 6303(a) of the Multiple-Party Accounts Act is applicable only during the lifetime of the parties; upon the death of a party, section 6304 becomes the controlling section of the Act. Appellants are correct that section 6303(a) applies to ownership of joint accounts during the lifetimes of the parties, and section 6304(a) applies to rights of survivorship upon the death of a party. 20 Pa.C.S.A. § 6304(a) provides that upon the death of a party to a joint account, the sum remaining on deposit belongs to the surviving party. What appellants ignore is that the assignments took place during the lifetimes of the parties. Appellants admit that under section 6303, Mr. Abend could have redeemed the certificates during his lifetime without incurring any liability to the Davises. We find the fact that the decedent assigned the certificates to the trust, rather than cashing them in and then putting the proceeds in the trust, to be immaterial. Mr. Abend was unquestionably alive on June 27, 1980, when he assigned the certificates. We find that on that day he was the sole owner of the certificates, according to the provisions of 20 Pa.C.S.A. § 6303(a).

Nor do appellants show us any clear and convincing evidence of an intent contrary to the assumption in section 6303 that Mr. Abend did not intend to make an irrevocable gift of any or all of his funds invested in the certificates of deposit. We find the decedent’s intent to be clear. He wanted to transfer the certificates to the inter-vivos trust that he had established, and upon his death, to have them used as the trust corpus for a charitable trust to benefit Project Remain. Mr. Abend clearly did not abandon the Davises. On the same day that the assignments were made he signed his will, which provided for specific devises to the Davises. The assignment of the certificates was a means of funding the charitable trust, not an attempt to 'disinherit the Davises.

Appellants next contend that the mere fact that the decedent was the owner of the funds during his lifetime does not mean that he could assign the certificates without first complying with the terms and provisions of the contracts the parties entered into when the certificates were purchased. Appellants assert that because United Penn Bank did not issue a written consent for the assignments, such assignments were invalid, and ownership of the certificates reverts to the Davises as survivors.

As has been detailed, the decedent and the Davises signed signature cards when the certificates were purchased. These cards, all of which are identically worded, state that the certificates are governed by the Uniform Commercial Code and the rules and regulations as set forth on the certificates themselves. All the parties agree that these instruments are non-negotiable. Therefore, the Pennsylvania Uniform Commercial Code does not apply to these certificates. We find no error in the lower court’s discussion of 13 Pa.C.S.A. § 9318(d). The lower court expressly stated that it did not rely on the Pa.U.C.C. in reaching its decision, but merely noted § 9318(d) to show the modern trend against enforcing restrictions on assignments.

The signature cards also provide that each joint owner is agent for the other to take any action affecting the certificates. Edward Abend’s actions, therefore, were those of the Davises, to which they cannot now object or contest. Edward Abend’s signature on the back of the certificates was in essence the signature of both parties. Thus, United Penn Bank was required by its own printed form contract to recognize the actions of an individual joint owner in relation to these certificates.

The signature cards also state that the certificates are governed by the rules and regulations as set forth on the certificates themselves. The only rule or regulation set forth on the certificate that is applicable is the following: “This Certificate is not negotiable and any assignment hereof shall be valid only upon written consent of this Bank”. The non-negotiability of the certificates is not in dispute. We note that the certificates do not forbid the assignment; they simply condition the validity of the assignment on the Bank’s consent.

The record shows that on July 11, 1980, Hanover Bank forwarded the three certificates to United Penn Bank and asked that record ownership be changed to Hanover Bank, Trustee of the Edward B. Bend Trust. No action was taken by United Penn Bank prior to Mr. Abend’s death one month later, because United Penn Bank maintained that the consent of the appellants was required first. Prior to his death, the decedent took all possible actions to effectuate the assignment. It is obvious that the decedent believed he had the right to assign or transfer the certificates as he pleased. The only matter left was the “consent” from United Penn Bank. We agree with the lower court that such consent was not necessary; United Penn Bank was merely the stakeholder in this case, as it had no real interest as to which of the contestants were declared the owners of the certificates.

[T]he bank takes the position that in order to consent to the assignment it required the signatures of both joint owners. This is contrary to the bank’s own signature card. If the Certificates of Deposit were recorded in what are commonly known as “and” accounts, this position would have merit. But where the accounts are “or” accounts, the individual has the right to rely in good faith upon the form of the contract. If the bank’s position were accepted by the Court, it would have the effect of changing the nature of the Certificates from “or” accounts to “and” accounts. This is clearly contrary to the intention of the purchaser of the Certificates of Deposit, namely the decedent. When the assignment was made by the decedent, he was acting as the agent under the terms of the contract for the other joint owner and no consent from the other owner was required. The bank had no legal reason to withhold consent under the terms of its own contract.
An anti-assignment clause, as appears on the face of the Certificates of Deposit, is solely for the benefit of the obligor, namely, the bank, and not for the benefit of either the assignee or assignor. Kehoe v. Kehoe-Berg Coal Company, 388 Pa. 79, 130 A.2d 182 [165] (1967). It is designed to protect the bank from making an erroneous payment and then being subject to a double payment on the same account. The purchase of a Certificate of Deposit creates a debtor-creditor relationship between the purchaser and the financial institution. The bank is obligated to pay according to the terms of the Certificate. In this case, the only obligation of the bank was to pay a sum certain at a date certain. It should be noted that the Certificate does not forbid an assignment, it simply conditions the validity of the assignment on the bank’s consent. The issue then becomes whether a contract prohibiting an assignment without the consent of the obligor should be enforced when all that is being done by the assignment is the transfer from one person to another monies due under a contract without in any manner altering the duty owed by the obligor. (See Am.Jur. “Assignments” § 21 and 22, pp. 206-209[) ]. The anti-assignment clause is for the protection of the obligor. In the present case, this point is moot as the Court will direct United Penn Bank to pay the appropriate party and no further litigation will be possible against the bank by any of the contestants. Further, had United Penn Bank paid money to either of the joint owners, it would have no liability to the other joint owner as under the terms of its own contract, the signature card, each of the owners acted as the agent for the other. The main reason for upholding such a clause is, therefore, absent in the present case.

Lower ct. op. at 8-10.

Nowhere in the signature card or on the certificates themselves does it state that consent to an assignment shall be withheld until both parties sign the assignment. This was a requirement which was never put on either form. The certificates say the United Penn Bank’s consent was necessary for the assignment. The signature card clearly provides that either payee could act as the agent for the other. There is clearly an inconsistency between the initial terms of the contract which required the action or consent of only one payee for any dealings with the certificates, and United Penn Bank’s subsequent provision that both payees were required to sign if the alienation of the certificates happened to take the form of assignment. The signature card requires compliance only with the Pa.U.C.C. and any rules set forth on the certificate itself

United Penn Bank, therefore, had no right to give or withhold written consent to the assignments. It took an arbitrary position that the assignment must have the consent of both joint owners despite the expressed terms of its own contract with the joint owners. This requirement was designed solely to protect the bank; it was not required by law and was contrary to the rights of the decedent and the terms of the signature cards.

The order of the lower court is affirmed.

      . We note some confusion among the parties as to their status on appeal. The Davises filed a timely notice of appeal and are therefore before us as appellants. Hanover Bank is the appellee. United Penn Bank views itself as an appellant and writes a brief oh that basis. However, after careful review of the record, we find no notice of appeal, timely or otherwise, having ever been filed by United Penn Bank. Sisters of Mercy, Project Remain, also filed a brief, which chiefly addresses the arguments of United Penn Bank. Since United Penn Bank has not followed Pa.R.A.P. 902, which requires the filing of a notice of appeal with the clerk of the lower court, we do not address its arguments and issues directly. Upon a thorough review of all parties’ briefs, however; we note that if United Penn Bank had perfected its appeal, we would not find its arguments persuasive.

      . We wish to acknowledge one further argument of appellants. They complain that the lower court’s decision failed to take into account the potential liability facing United Penn Bank if the Bank does not have the right to consent to all assignments. We note that all the forms involved in this litigation were written by United Penn Bank and any dilemma created by these contradictions and inconsistencies has been created by the Bank itself. Rules of law determine those actions which the Bank may or may not take, not the reverse. The lower court’s statements as set forth in its Order and Decree of November 12, 1982 more than adequately address this argument.


text:
    April 3, 1984.
    474 A.2d 638
    Commonwealth v. Ashford, Appellant.
    Petition for Allowance of Appeal Denied Aug. 13, 1984.
    Submitted February 23, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.

      Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 638
    Commonwealth v. Hefferon, Appellant.
    Petition for Allowance of Appeal Denied July 24, 1984.
    Submitted February 21, 1984.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 639
    Cruttenden, Appellants, v. D’Imperio.
    Argued March 6, 1984.
    Ronald J. Bayer, for appellants; Thomas L. DeLevie, for appellee.

      Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   Order affirmed.


text:
    474 A.2d 639
    Hall, Appellants, v. Lucas.
    Argued March 7, 1984.
    Marvin W. Factor, for appellants; Patrick C. McDonald, for appellee.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   Order affirmed.


text:
    April 6, 1984.
    474 A.2d 639
    Citibank v. Elfman, Appellant.
    Submitted November 23, 1983.
    Irv Elfman, appellant, in propria persona; Drew Salaman, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.

MONTEMURO, J., concurred in the result.


text:
    475 A.2d 159
    Commonwealth v. Abbett, Appellant.
    Reargument Denied June 5, 1984.
    Petition for Allowance of Appeal Denied Oct. 12, 1984.
    Submitted February 14, 1984.
    James M. Shellow, for appellant; John Michael Eakin, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 639
    Commonwealth v. Alston, Appellant.
    Petition for Allowance of Appeal Denied July 31, 1984.
    Submitted November 28, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   The judgment of sentence is hereby affirmed.


text:
    474 A.2d 640
    Commonwealth v. Clark, Appellant.
    Petition for Allowance of Appeal Denied Sept. 6, 1984.
    Submitted October 14, 1983.
    Richard S. Levine, Assistant Public Defender, for appellant; Kemal A. Mericli, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    474 A.2d 640
    Commonwealth v. Copney, Appellant.
    Submitted October 14, 1983.
    John A. Halley, for appellant; Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order reversed and case remanded for proceeding consistent with this opinion.

This court does not retain jurisdiction.


text:
    476 A.2d 54
    Commonwealth v. Cummings, Appellant.
    Reargument Denied June 18, 1984.
    Submitted September 22, 1983.
    Richard M. Kastendieck, Deputy Public Defender, for appellant; Wallace H. Bateman, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Judgment of sentence affirmed.

JOHNSON, J., filed a dissenting memorandum.


text:
    474 A.2d 640
    Commonwealth v. Cunningham, Appellant.
    Submitted November 18, 1983.
    Robert A. Rovner, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Order affirmed.


text:
    475 A.2d 159
    Commonwealth v. Ellis, Appellant.
    Reargument Denied June 5, 1984.
    Submitted October 11, 1983.
    Alan Ellis, for appellant; Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   Case remanded. Jurisdiction is relinquished.


text:
    474 A.2d 641
    Commonwealth v. Everett, Appellant.
    Submitted January 4, 1984.
    Robert E. Donatelli, for appellant; Henry S. Perkin, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   Judgment of sentence is affirmed.

Jurisdiction relinquished.


text:
    474 A.2d 641
    Commonwealth v. Gatewood, Appellant.
    Submitted November 18, 1983.
    Cynthia C. Martelli, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Stanley L. Kubacki is affirmed.


text:
    474 A.2d 641
    Commonwealth v. Giacalone, Appellant.
    Submitted October 7, 1983.
    James Thomas I. Rague, III, for appellant; Laurence M. Kelly, District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Appeal quashed.


text:
    474 A.2d 642
    Commonwealth v. Hargett, Appellant.
    Petition for Allowance of Appeal Denied Sept. 25, 1984.

      Submitted January 5, 1984.
    Elaine De-Masse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and ROBERTS, JJ.
   Affirmed.


text:
    474 A.2d 642
    Commonwealth v. Hill, Appellant.
    Submitted February 15, 1984.
    Michael J. Stack, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 642
    Commonwealth v. Hill, Appellant.
    Submitted November 18, 1983.
    Barry H. Denker, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed. Jurisdiction is relinquished.


text:
    474 A.2d 642
    Commonwealth v. Kriest, Appellant.
    Submitted November 8, 1983.
    Timothy M. Carland, Public Defender, for appellant; Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence vacated; case remanded for resentencing and for appointment of new counsel. Jurisdiction relinquished.


text:
    474 A.2d 643
    Commonwealth v. Lapcevich, III, Appellant.
    Argued October 26, 1983.
    Charles F. Gilchrest, for appellant; Harry Alan Penich, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    475 A.2d 159
    Commonwealth v. Lewis, Appellant.
    Reargument Denied June 5, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.
    Submitted November 18, 1983.
    Mitchell S. Strutin, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   The order of the distinguished Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    474 A.2d 643
    Commonwealth v. Lyons, Appellant.
    Petition for Allowance of Appeal Denied July 13, 1984.

      Submitted January 19, 1984.
    Joseph Mistrano, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 643
    Commonwealth v. Murphy, Appellant.
    Submitted January 4, 1984.
    Charles B. Swigart, for appellant; Stewart L. Kurtz, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   Judgment of sentence affirmed.

Jurisdiction relinquished.


text:
    474 A.2d 644
    Commonwealth v. Ortiz, Appellant.
    Submitted November 28, 1983.
    Nicholas M. Zanakos, Assistant Public Defender, for appellant; Christopher T. Spadoni, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 644
    Commonwealth v. Phillips, Appellant.
    Petition for Allowance of Appeal Denied July 27, 1984.
    Submitted October 21, 1983.
    Edward J. O’Halloran, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Order affirmed.

SPAETH, P.J., concurred in the result.


text:
    474 A.2d 644
    Commonwealth v. Rabuttino, Appellant.
    Petition for Allowance of Appeal Denied Aug. 30, 1984.

      Submitted November 28, 1983.
    Michael A. DeFino, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 645
    Commonwealth v. Sampson, Appellant.
    Petition for Allowance of Appeal Denied Aug. 16, 1984.
    Submitted January 19, 1984.
    Ronald J. Sharper, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Order affirmed.


text:
    474 A.2d 645
    Commonwealth v. Scott, Appellant.

      Submitted November 8, 1983.
    Thomas Albert Bowlen, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 645
    Commonwealth v. Sheppard, Appellant.
    Submitted November 18, 1983.
    Edward M. Flannery, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    474 A.2d 645
    Commonwealth v. Terrell, Appellant.
    Petition for Allowance of Appeal Denied July 17, 1984.

      Submitted October 7,1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 646
    Commonwealth v. Walker, Appellant.
    Petition for Allowance of Appeal Denied July 17, 1984.
    Submitted October 20, 1983.
    David M. Seltzer, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Levy Anderson is affirmed.


text:
    474 A.2d 646
    Commonwealth v. Wielgosz, Appellant.

      Submitted November 18, 1983.
    Clement E. Kisailus, for appellant; Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.

LIPEZ, J., filed a dissenting memorandum.


text:
    474 A.2d 646
    In re Jennifer Lynne Arnold. Appeal of Merrill S. Arnold.
    Argued December 13, 1983.
    Lynne Z. Gold Bikin, for appellant; Stephen A. McBride, for Jennifer Arnold, appellee (at No. 3320) and Strock, participating party, (at No. 351).
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Orders affirmed.

SPAETH, P.J., concurred in the result.


text:
    474 A.2d 647
    Provident National Bank v. Broderick, Appellant.
    Argued January 17, 1984.
    Carole Ann Broderick, appellant, in propria persona; Walter Weir, Jr., for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Order affirmed.


text:
    474 A.2d 647
    Trunzo v. Trunzo, Appellant.
    Argued September 28, 1983.
    Ann Hansen Gamble, for appellant; Melvin B. Bassi, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   Order affirmed.


text:
    April 13, 1984.
    474 A.2d 647
    Brigham v. Brigham, Appellant.

      Argued November 1, 1983.
    Ira H. Weinstock, for appellant; John R. Gailey, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   Order of the lower court is affirmed.


text:
    474 A.2d 647
    Commonwealth v. Aczel, Appellant.
    Submitted November 18, 1983.
    Louis Perez, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed in part and reversed in part. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.


text:
    474 A.2d 648
    Commonwealth v. Anderson, Appellant.

      Submitted January 20, 1984.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 648
    Commonwealth v. Banjoman, Appellant.
    Submitted November 18, 1983.
    David Scott Keller, for appellant; Edgar Bayley, Jr., District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   The judgment of sentence of the learned Cumberland County Common Pleas Court Judge Harold E. Sheely is affirmed.

LIPEZ, J., filed a dissenting memorandum.


text:
    474 A.2d 648
    Commonwealth, Appellant, v. Barnett.

      Argued September 29, 1983.
    Melinda G. Tell, Assistant District Attorney, for Commonwealth, appellant; Thomas Allen J. Crawford, Jr., for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The order of the Court of Common Pleas of Allegheny County is reversed and the case remanded for trial. Jurisdiction is relinquished.

BECK, J., filed a dissenting memorandum.


text:
    474 A.2d 649
    Commonwealth v. Brown, Appellant.
    Petition for Allowance of Appeal Denied July 10, 1984.
    Submitted March 23, 1983.
    James Lee Goldsmith, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., and CIRILLO and HOFFMAN, JJ.
   Order vacated and case remanded for an evidentiary hearing. Jurisdiction relinquished.


text:
    474 A.2d 649
    Commonwealth v. Brown, Appellant.
    Submitted November 18, 1983.
    Eric L. Lilian, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 649
    Commonwealth v. Caesar, Jr., Appellant.
    Submitted November 18, 1983.
    Wallace L. Walker, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Order affirmed.


text:
    474 A.2d 650
    Commonwealth v. Chartock, Appellant.

      Submitted January 19, 1984.
    Jeffrey M. Voluck, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Order of probation affirmed.


text:
    474 A.2d 650
    Commonwealth v. Clayton, Appellant.
    Submitted November 4, 1983.
    Mario F. Driggs, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgments of sentence are affirmed.


text:
    474 A.2d 650
    Commonwealth v. Cunningham, Appellant.
    Submitted January 5, 1984.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 650
    Commonwealth v. Diggs, Appellant.
    Submitted October 7, 1983.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 651
    Commonwealth v. Eaddy, Appellant.
    Submitted November 4, 1983.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    474 A.2d 651
    Commonwealth v. Edwards, Appellant.
    Submitted January 20, 1984.
    Joseph C. Michetti, for appellant; Thomas E. Boop, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   Order affirmed.


text:
    474 A.2d 651
    Commonwealth, Appellant, v. Estep.
    Argued January 11, 1984.
    Floyd Paul Jones, Assistant District Attorney, for Commonwealth, appellant; Larry Estep, appellee, in propria persona.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   Order affirmed.

WICKERSHAM, J., filed a dissenting memorandum.


text:
    474 A.2d 652
    Commonwealth v. Fischetti, Appellant.
    Petition for Allowance of Appeal Denied Aug. 23, 1984.
    Argued January 26,1984.
    John A. Halley, Assistant Public Defender, for appellant; Kemal A. Mericli, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Order of the Court of Common Pleas of Allegheny County denying appellant’s post conviction petition affirmed. Judgment of sentence affirmed.

POPOVICH, J., filed a concurring memorandum.

WIEAND, J., concurred in the result.


text:
    474 A.2d 652
    Commonwealth v. Hall, Appellant.
    Petition for Allowance of Appeal Denied Sept. 5, 1984.

      Argued December 9, 1983.
    Leslie J. Carson, Jr., for appellant; Frances G. Gerson, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 652
    Commonwealth v. Hanna, Sr., Appellant.
    Submitted January 5, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Richard A. Sheetz, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 653
    Commonwealth v. Harris, Appellant.
    Submitted November 18, 1983.
    Richard B. Moore, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 653
    Commonwealth v. Hill, Appellant.
    Submitted January 20, 1984.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   Order affirmed.


text:
    474 A.2d 653
    Commonwealth v. Hillen, Appellant.
    Submitted February 9, 1984.
    George W. Bills, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 653
    Commonwealth v. Johnson, Appellant.
    Submitted November 16, 1983.
    Daniel A. Rendine, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    474 A.2d 654
    Commonwealth v. Johnston, Appellant.
    Submitted March 24, 1983.
    James W. Harris, for appellant; Gary E. Hartman, District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 654
    Commonwealth v. Jones, Appellant.

      Argued November 2, 1983.
    Arthur L. Goldberg, for appellant; Katherine Holt-zinger, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   Judgment of sentence affirmed.

WIEAND, J., concurred in the result.


text:
    474 A.2d 654
    Commonwealth v. Jones, Appellant.
    Submitted January 20, 1984.
    Moira Dunworth, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 655
    Commonwealth v. Lambert, Appellant.

      Submitted October 21, 1983.
    Paul S. Herzberg, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   The judgment of sentence imposed for possession of an instrument of crime is reversed and set aside. The judgments of sentence for criminal conspiracy are affirmed.

SPAETH, President Judge, concurred in the result.


text:
    474 A.2d 655
    Commonwealth v. Lauer, Appellant.
    Argued January 25, 1983.
    Samuel K. Gates, for appellant; Roy Alan Keefer, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    476 A.2d 472
    Commonwealth v. Leininger, Appellant.
    Reargument Denied June 22, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      Argued January 17, 1984.
    Harry C.J. Blair, for appellant; Michael J. Garfield, First Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 655
    Commonwealth v. Loften, Appellant.
    Submitted November 18, 1983.
    Arthur Henry James, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 655
    Commonwealth v. Maciuska, Appellant.
    Submitted November 18,1983.
    James E. O’Brien, Jr., Assistant Public Defender, for appellant; Michael Krushinski, Assistant District Attorney, for Commonwealth, appellee.

      Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence vacated. Case remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.


text:
    474 A.2d 656
    Commonwealth v. Mason, Appellant.
    Submitted November 18, 1983.
    Peter V. Marks Sr. for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 656
    Commonwealth v. McCall, Appellant.
    Petition for Allowance of Appeal Denied Sept. 11, 1984.
    Submitted November 28, 1983.
    George Howard Eager, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.

      Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed on the comprehensive opinions by the Honorable D. Richard Eckman, Judge, Court of Common Pleas, Lancaster County.


text:
    474 A.2d 656
    Commonwealth v. McClure, Appellant.
    Submitted November 7, 1983.
    Raymond R. Smith, for appellant; Douglas H. Gent, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The judgment of sentence of the learned York County Common Pleas Court Judge John R. Rauhauser, Jr. is affirmed.


text:
    474 A.2d 657
    Commonwealth v. McDonald, Appellant.
    Submitted May 26, 1983.
    John A. Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    474 A.2d 657
    Commonwealth v. Meyers, Appellant.
    Submitted October 21, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    474 A.2d 657
    Commonwealth v. Miller, Appellant.
    Petition for Allowance of Appeal Denied July 10, 1984.
    Argued January 18, 1984.
    Arnold F. Laikin, for appellant; Frances Gerson, Assistant District Attorney, for Commonwealth, appellee.

      Before ROWLEY, HESTER and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 657
    Commonwealth v. Myers, Appellant.
    Submitted February 3, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 658
    Commonwealth v. Nealon, Appellant.
    Petition for Allowance of Appeal Denied Sept. 5, 1984.
    Submitted January 5, 1984.
    Thomas P. Kennedy, Assistant Public Defender, for appellant; Nancy A. White, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence below affirmed.


text:
    476 A.2d 54
    Commonwealth v. Noel, Appellant.
    Reargument Denied June 18, 1984.
    Petition for Allowance of Appeal Denied Oct. 25, 1984.
    Argued January 19, 1984.
    David S. Lubin, for appellant; Leslie Ann Sudock, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 658
    Commonwealth v. Pierce, Appellant.
    Argued January 12, 1984.
    Spero Thomas Lappas, for appellant; Katherine E. Holtzinger, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction is not retained.

WICKERSHAM, J., filed dissenting memorandum.


text:
    474 A.2d 658
    Commonwealth v. Rose, Appellant.
    Petition for Allowance of Appeal Denied Aug. 9, 1984.
    Argued February 8, 1984.
    Claudia Davidson, for appellant; Kenneth J. Benson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 659
    Commonwealth v. Russell, Appellant.
    Submitted November 7, 1983.
    Harold N. Fitzkee, Jr., for appellant; Floyd P. Jones, Assistant District Attorney, for Commonwealth, appellee.'
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 659
    Commonwealth v. Schaeffer, Appellant.
    Submitted January 20, 1984.
    James A. Consoli, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 659
    Commonwealth v. Smith, Appellant.
    Argued January 10, 1984.
    Charles M.J. Nester, Assistant Public Defender, for appellant; Rundbaken Streitel, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    476 A.2d 54
    Commonwealth v. Smolarski, Appellant.
    Reargument Denied June 18, 1984.
    Petition for Allowance of Appeal Denied Nov. 12, 1984.

      Argued January 17, 1984.
    Burton Rose, for appellant; Marciana C. Sorensen, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   judgment of sentence affirmed.


text:
    474 A.2d 660
    Commonwealth v. Thomas, Appellant.
    Petition for Allowance of Appeal Denied Sept. 5, 1984.
    Submitted November 28, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 660
    Commonwealth v. Turner, Appellant.

      Submitted November 4, 1983.
    Robert F. Pappano, Assistant Public Defender, for appellant; Dennis C. McAndrews, Assistant District Attorney, for appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    474 A.2d 660
    Commonwealth v. Ulisky, Appellant.
    Petition for Allowance of Appeal Denied Jan. 9,1985.
    Argued October 26, 1983.
    Richard E. Goldinger, Assistant Public Defender, for appellant; Robert F. Hawk, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

CAVANAUGH, J., filed a dissenting memorandum.


text:
    474 A.2d 661
    Commonwealth v. Valentine, Appellant.
    Submitted January 20, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 661
    Commonwealth v. Vasquez, Appellant.
    Submitted February 3, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 661
    Commonwealth v. Warren, Appellant.
    Petition for Allowance of Appeal Denied July 10, 1984.
    Argued November 16, 1983.
    Theodore J. Chylack, for appellant; Joseph HyIan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    474 A.2d 661
    Commonwealth v. Wharton, Appellant.
    Submitted October 21, 1983.
    Methuselah Z.I. Bradley, IV, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.

SPAETH, President Judge, concurred in the result.


text:
    474 A.2d 662
    Commonwealth ex rel. Leo v. McCabe, Appellant.
    Argued January 12, 1984.
    C. Price, for appellant; Marvin D. Weintraub, for appellee.

      Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   Order affirmed.


text:
    474 A.2d 662
    Gable v. Gable, Appellant.
    Argued November 1, 1983.
    William H. Neff, Jr., for appellant; John W. Thompson, Jr., for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   The order of support is affirmed.


text:
    474 A.2d 662
    Gain v. Gain, Appellant.
    Argued February 1, 1984.
    Fronefield Crawford, Jr., for appellant; Edward G. Conroy, for appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   Order affirmed.


text:
    474 A.2d 662
    Gorman v. Gorman, Appellant.
    Argued February 7, 1984.
    Walter P. James, for appellant; Wayne A. Kablack, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   Decree affirmed, in part, and reversed, in part consistent with the accompanying opinion. Having made an independent study of the entire record, we are of the opinion that the court below properly granted a decree in divorce and an award of alimony. The appellant will be given the option of paying $7,000.00 in cash or relinquishing $7,000.00 worth of marital assets within his control.

JOHNSON, J., dissented.


text:
    474 A.2d 663
    Gutshall, et ux. v. Bear, Appellant.
    Argued February 14, 1984.
    Fred H. Hait, for appellant; George F. Douglas, Jr., for appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Judgment affirmed.


text:
    474 A.2d 663
    Hatalowich, Appellants, v. Bednarski.
    Petition for Allowance of Appeal Denied Aug. 30, 1984.
    Argued February 9, 1982.
    D. Keith Melenzer, for appellants; William C. Porter, for appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Order affirmed.


text:
    474 A.2d 663
    Hobbs, Appellant, v. Wilcox.
    Argued February 9, 1984.
    Richard W. Mutzabaugh, for appellant; Barry Lee Smith, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   Order affirmed.


text:
    474 A.2d 664
    Hughes, Appellant, v. Games.

      Argued February 15, 1984.
    Allen L. Feingold, for appellant; Joseph P. Selfridge, for appellee.
    Before CAVANAUGH, CHULLO and WATKINS, JJ.
   Judgment affirmed.


text:
    474 A.2d 664
    Interest of B.V.D., a minor etc. Appeal of L.G.M., Natural Mother of B.V.D.
    Submitted September 29, 1983.
    Rabe F. Marsh, III, for appellant; Suzanne J. Mahady, for participating party.
    Before BROSKY, McEWEN and BECK, JJ.
   Order affirmed.


text:
    474 A.2d 664
    In the Matter of Estate of Stauffer.
    Argued January 12, 1984.
    Victor A. Bihl, for appellants; Bruce Albert Feldman, for participating parties.

      Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   Order affirmed on the comprehensive opinion of the Honorable Lee F. Swope, President Judge, Orphans’ Court Division, Court of Common Pleas, Dauphin County.


text:
    474 A.2d 664
    Noyes, Appellant, v. Finnegan a/k/a Mundorff.
    Argued February 9, 1984.
    Barry R. Scatton, for appellant; Gregory J. Karlick, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   Order affirmed.


text:
    476 A.2d 55
    Parker v. Parker, Appellant.
    Reargument Denied June 18, 1984.
    Petition for Allowance of Appeal Denied Oct. 15, 1984.
    Argued January 12, 1984.
    William Hintze, for appellant; Kent H. Patterson, for appellee.

      Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   Order affirmed.

MONTEMURO, J., concurred in the result.


text:
    474 A.2d 665
    Reape, Sr. v. Keystone Ins. Co., Appellant.
    Argued April 20, 1983.
    Charles W. Craven, for appellant; Arthur W. Hankin, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment affirmed.


text:
    474 A.2d 665
    Stewart, Appellant v. Zitney, Appellants
    (at No. 741),
    (at No. 379).
    Submitted September 29, 1983.
    W. Terrence O’Brien, for appellants, (at No. 379) and appellees, (at No. 741); David B. Reiss, for appellant, (at No. 741) and appellee, (at No. 379).
    Before BROSKY, McEWEN and BECK, JJ.
   The judgment that is the subject of appeal No. 379 is affirmed. The order that is the subject of appeal No. 741 is affirmed. Jurisdiction relinquished.


text:
    474 A.2d 665
    Pa Bank & Trust Co. v. Erich, Appellants.
    Petition for Allowance of Appeal Denied Aug. 31, 1984.
    Argued November 21, 1983.
    Paul J. Malizia, for appellants; Alvin B. Coppolo, for appellees.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.

MONTEMURO, J., filed concurring memorandum.