author: POPOVICH, Judge:

text:
    450 A.2d 1376
    In the Matter of Mildred J. TERWILLIGER, an alleged incompetent. Appeal of Mildred J. TERWILLIGER.
    Superior Court of Pennsylvania.
    Argued April 26, 1982.
    Filed Sept. 24, 1982.

      Sharon L. Smith, Brookville, for appellant.
    David. G. Matson, Brookville, for Melvin and Florence Terwilliger, participating parties.
    Lawrence A. Frolik, Pittsburgh, submitted a brief on behalf of American Civil Liberties, participating party.

      Eva Borsody Das and llene W. Shane, Philadelphia, submitted a brief on behalf of Developmental, participating party.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Jefferson County, Orphans’ Court Division, appointing a guardian for Mildred J. Terwilliger and authorizing said guardian to give consent to the sterilization of his ward.

We vacate and remand for proceedings consistent with this Opinion.

The scenario of this case began to unfold with the filing of a Petition for Appointment of Guardian of The Person of Mildred J. Terwilliger by Melvin L. and Florence K. Terwilliger, the parents of the ward. In said Petition, Melvin sought to have Mildred declared incompetent and to have himself appointed as guardian for the purpose of consenting to Mildred’s sterilization by means of a tubal ligation. The court, after a hearing, granted both requests by Order dated May 8, 1981. Thereafter, Mildred’s court-appointed counsel appealed the Order. Moreover, pursuant to a Petition For Supersedeas filed by counsel for Mildred, the lower court stayed its May 8, 1981, Order pending the outcome of the appeal. See Pa.R.App.P. 1732, 1733 and 1736. Additionally, Mildred’s counsel also secured the appointment of Carol Holland as her guardian ad litem.

The issue raised on appeal for our consideration, which all parties concede is one of first impression in this Commonwealth, is whether the trial court had the power to authorize a guardian to consent to the sterilization of a person adjudged incompetent. Inextricably tied to such an issue is the determination of whether there was sufficient evidence presented by the petitioning parties to justify the lower court’s ruling that tubal ligation was warranted.

On the question of jurisdiction, we observe that the petition for the appointment of a guardian was filed in the Orphans’ Court division of the Court of Common Pleas of Jefferson County. The authority of said court, to entertain such a petition, is specifically set forth in 20 Pa.C.S.A. § 712 (Supp.1982-83) and reads:

“§ 712. Nonmandatory exercise of jurisdiction through orphans’ court division
The jurisdiction of the court of common pleas over the following may be exercised through either its orphans’ court division or other appropriate division:
(1) Title to real estate. The determination of the persons to whom the title to real estate of a decedent or of the creator of an estate or trust has passed by devise or descent or by the terms of the trust instrument where jurisdiction of such estate or trust is exercised through the orphans’ court division: Provided, That nothing herein shall be construed to restrict the provisions of section 711 of this code (relating to mandatory exercise of jurisdiction through orphans’ court division in general) relating to distribution of real estate in an estate or trust.
(2) Guardian of person. The appointment, control and removal of the guardian of the person of any incompetent.
(3) Other matters. The disposition of any case where there are substantial questions concerning matters enumerated in section 711 (relating to mandatory exercise of jurisdiction through orphans’ court division in general) and also matters not enumerated in that section.
(4) Powers of attorney. All matters pertaining to the exercise of powers of attorneys in fact or agents acting under powers of attorney as provided in Chapter 56 (relating to powers of attorney) when the principal is or may be deceased, disabled or incapacitated.” (Emphasis added)

Based on the preceding, jurisdiction to hear the instant matter was not restricted solely to the orphans’ court, but could have been pursued in another “appropriate division” of the court of common pleas. Id.; see also In re Estate of R. L. L., 487 Pa. 223, 409 A.2d 321 (1979). Thus, it cannot be gainsaid that under 42 Pa.C.S.A. § 931 (1981) the courts of common pleas, “hav[ing] unlimited original jurisdiction of all actions and proceedings,” have been vested with the mantle of authority to rule on the petition for the appointment of a guardian. Moreover, under 42 Pa.C.S.A. § 323 (1981), captioned “Powers,” and dealing with the general structure and authority of the courts of this Commonwealth, it is set forth that:

“Every court shall have power to issue, under its judicial seal, every lawful writ and process necessary or suitable for the exercise of its jurisdiction and for the enforcement of any order which it may make and all legal and equitable powers required for or incidental to the exercise of its jurisdiction, and, except as otherwise prescribed by general rules, every court shall have power to make such rules and orders of court as the interest of justice or the business of the court may require.”

Consequently, it appears that neither by statute nor case law has the jurisdiction granted to the courts of common pleas, in particular the orphans’ court division, been circumscribed to foreclose consideration of a petition seeking authorization for a guardian to consent to an incompetent’s sterilization. See Stump v. Sparkman, 435 U.S. 349, 356-358, 98 S.Ct. 1099, 1104-1105, 55 L.Ed.2d 331, 338-340 (1978).

Having reached the conclusion that the orphans’ court was a proper forum for ruling on the petition in question, we must now decide, as a necessary corollary thereto, whether the relief granted (authority to consent to the performance of a tubal ligation) had any basis in law, be it statutory or judicial. Initially, we observe, and all parties agree, that no statute exists in Pennsylvania that specifically authorizes a guardian to consent to a sterilization operation on behalf of his or her ward.

Although a court-appointed “guardian” is vested with the “care and management of the person ... under legal disability[,]’’ 46 P.S. § 601(47) (1969); see Daniels v. Metropolitan Life Insurance Co., 135 Pa.Super. 450, 5 A.2d 608 (1939), the appointee, being an officer of the court, is always under the court’s control and is subject to its directions as to the person of the ward. See generally Beaver's Estate, 121 Pa.Super. 159, 182 A. 744 (1936); In re Shenk, 5 Lanc.Rev. 361 (1950). This has been interpreted by some courts to mean:

“.. . that prior judicial approval is required before a guardian may consent to administering or withholding of proposed extraordinary medical treatment. E.g., Guardian of Roe,-Mass.-, Mass.Adv.Sh. (1981) 981, 421 N.E.2d 40; In the Matter of Spring, [380 Mass. 629, 405 N.E.2d 115 (1980) ]; Superintendent of Belchertown State School v. Saikewicz, [373 Mass. 728, 370 N.E.2d 417 (1977) ]. Since sterilization is an extraordinary and highly intrusive form of medical treatment that irreversibly extinguishes the ward’s fundamental right of procreative choice, we conclude that a guardian must obtain a proper judicial order for the procedure before he or she can validly consent to it. Guardians and parents, therefore, absent statutory or judicial authorization, cannot consent to the sterilization of a ward in their care or custody.” In re Matter of Moe, 385 Mass. 555, -, 432 N.E.2d 712, 716-717 (1982).

We agree with the aforesaid on the basis that the Commonwealth, acting in its role as parens patriae, has the right and the duty to act to protect its weaker members. See In re William L., 477 Pa. 322, 383 A.2d 1228 (1978) (termination of parental rights); see also In re Green, 273 Pa.Super. 397, 417 A.2d 708 (1980) (involuntary commitment); Commonwealth v. Johnson, 211 Pa.Super. 62, 234 A.2d 9 (1967) (juvenile proceedings); Commonwealth ex rel. Snively v. Snively, 206 Pa.Super. 278, 212 A.2d 905 (1965) (child support); Commonwealth ex rel. Tate v. Shovlin, 205 Pa.Super. 370, 208 A.2d 924 (1965) (proceedings under the mental health act).

Despite the fact that the doctrine of parens patriae has been subject to criticism, see, e.g., In re Gault, 387 U.S. 1, 16, 87 S.Ct. 1428, 1437-38, 18 L.Ed.2d 527 (1967), there is general agreement that the state is not precluded from acting to protect its citizenry and to require both parents and children to act in ways beneficial to society. In re William L., supra, 477 Pa. at 338, 383 A.2d at 1236. As stated by our Supreme Court:

“The state’s responsibility to protect its weaker members authorizes interference with parental autonomy and decisionmaking in appropriate circumstances. The moral and practical importance of this authority was set forth by Chief Justice Maxey in Commonwealth ex rel. Children’s Aid Society v. Gard:
‘Societies which like the relator are entrusted by the sovereign with power over the lives of infants should ever bear in mind that consideration for the sensibilities of children and solicitude for their well-being is the hallmark of an humane individual and of a civilized state.’
362 Pa. 85, 99, 66 A.2d 300, 307 (1949).” Id., 477 Pa. at 338, 383 A.2d at 1236.

The parens patriae power of our courts derives from the inherent equitable authority of the sovereign to protect those persons within the state who cannot protect themselves because of a legal disability. See 67A C.J.S. Parens Patriae at 159 (1978). Consistent therewith, it is acknowledged that a court’s authority is at its widest reach when acting as an equity court to protect the person or property of an incompetent, In re Matter of C. D. M., 627 P.2d 607 (Alaska, 1981); In re Grady, 85 N.J. 235, 426 A.2d 467 (1981), and has been described as “plenary and potent to afford whatever relief may be necessary to protect his interests.” 27 Am.Jur.2d Equity § 69, at 592 (1969). However, it is noteworthy to mention that, as we have stated in the past, “ ‘ “[t]he admonition to function in a ‘parental’ relationship is not an invitation to procedural arbitrariness.” ’ ” (Citation omitted) Commonwealth v. Johnson, 211 Pa.Super. at 71, 234 A.2d at 15 (1967).

This doctrine of inherent parens patriae jurisdiction over incompetents has been extended to decisions involving irrevocable consequences for the incompetent individual. For example, courts have accepted responsibility for deciding whether to authorize a kidney transplant from an incompetent to his gravely ill brother, Strunk v. Strunk, 445 S.W.2d 145 (Ky.App.1969); whether to consent on behalf of the incompetent to shock treatment, Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976); whether to administer chemotherapy treatment, Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); and whether to discontinue artificial life support mechanisms, In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). Given the aforecited, we see no reason why the orphans’ court’s inherent parens patriae jurisdiction should not apply as well to a petition for sterilization of an incompetent. Although there are a number of jurisdictions that have refused to approve of such authority in the absence of legislation, see e.g., Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), rev’d sub nom. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Wade v. Bethesda Hosp., 337 F.Supp. 671 (S.D.Ohio 1971); Guardianship of Tulley, 83 Cal.App.3d 698, 146 Cal.Rptr. 266 (1978), cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979); Guardianship of Kemp, 43 Cal.App.3d 758, 118 Cal.Rptr. 64 (1974); In re S. C. E., 378 A.2d 144 (Del.Ch.1977); A. L. v. G. R. H., 163 Ind.App. 636, 325 N.E.2d 501 (1975), cert. denied, 425 U.S. 936, 96 S.Ct. 1669, 48 L.Ed.2d 178 (1976); Holmes v. Powers, 439 S.W.2d 579 (Ky.Ct.App.1968); In re M. K. R., 515 S.W.2d 467 (Mo.1974); Application of A. D., 90 Misc.2d 236, 394 N.Y.S.2d 139 (Surr.Ct.1977), aff’d on other grounds, 64 A.D.2d 898, 408 N.Y.S.2d 104 (1978); Smith v. Command, 231 Mich. 409, 204 N.W. 140 (1925); Frazier v. Levi, 440 S. W.2d 393 (Tex.Civ.App.1969), we view such decisions as being insensitive to the constitutional rights of the incompetent person. Furthermore, we side with the minority of courts that have found inherent power (parens patriae) to decide these issues, as well as acknowledging the existence of a statutory scheme in this Commonwealth delineating the scope of authority and power vested in our unified court system to address and remedy such an issue as faced by the lower court instantly. See In re Matter of Moe, supra; In re Matter of C. D. M., supra; In re Grady, supra. As aptly stated by the Supreme Court of Alaska on this question of jurisdiction:

“Indeed, to ignore this well-settled doctrine [parens patriae] in favor of the so-called majority rule would amount to nothing less than an abdication of our judicial responsibilities, leaving [the incompetent] and her parents without any means of recourse. Although we recognize that this petition, and others like it, present many troublesome questions, we are also ‘mindful that a court “cannot escape the demands of judging or of making .... difficult appraisals.” ’ Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635, 637 (1980), quoting Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513, 521 (1963).” In re Matter of C. D. M., supra, 627 P.2d at 611; see also Stump v. Sparkman, supra.

Therefore, we determine that the orphans’ court, albeit a court of limited jurisdiction, see Jervis Will, 443 Pa. 226, 279 A.2d 151 (1971); In re Sadowski’s Estate, 158 Pa.Super. 119, 43 A.2d 907 (1945), does have the power, given its statutory (42 Pa.C.S.A. § 323 and 20 Pa.C.S.A. § 712) and inherent (parens patriae) authority, to review and act upon a petition seeking authorization for a guardian to consent to the sterilization of an incompetent.

Having established that the orphans’ court does, in fact, have jurisdiction over the subject matter of the petition, we now turn to the minimum standards that should govern the court’s exercise of this jurisdiction. We caution that because sterilization necessarily results in the permanent termination of the intensely personal right of procreationi, the trial judge must take the greatest care to ensure that the incompetent’s rights are jealously guarded. In re Matter of C. D. M., supra.

In formulating the procedural requirements that need to be met in ruling on a petition for sterilization, and the concomitant standard of proof essential to such determination, we have assiduously reviewed those court decisions which have dealt with the identical subject matter. See In re Matter of Moe, supra; In re Matter of A. W., 637 P.2d 366 (Supr.Ct.Colo.1981); In re Matter of C. D. M., supra; In re Grady, supra.

Preliminarily, we note that in making the decision of whether to authorize sterilization, a court should consider only the best interest of the incompetent person, not the interests or convenience of the individual’s parents, the guardian or of society. In re Grady, supra. While on this topic, it is to be noted that we will demand from the advocates of the proposed operation proof by clear and convincing evidence that sterilization is in the best interest of the incompetent. In re Matter of C. D. M., supra, quoting Addington v. Texas, 441 U.S. 418, 433, 99 S.Ct. 1804, 1813, 60 L.Ed.2d 323, 335 (1979). We believe that such a standard of proof is necessary in a case such as this one, where a fundamental right is concerned. In re Matter of A. W., supra; In re Matter of C. D. M., supra; In re Grady, supra. The United States Supreme Court has mandated no less of a standard of proof in the analogous case of a civil commitment proceeding. Addington v. Texas, supra. In Pennsylvania, we require the clear and convincing evidence standard for involuntary civil commitment. Commonwealth ex rel. Gibson v. DiGiacinto, 261 Pa.Super. 53, 395 A.2d 938 (1978), rev’d on other grounds, 497 Pa. 66, 439 A.2d 105 (1981). Thus, because of our overriding concern to prevent any abuse of judicial authority, we are prompted to establish no less of a standard in cases which require the determination of whether sterilization is in the best interest of an incompetent person.

Having set forth the standard of proof that obtains, we will proceed to delineate those requirements which must be complied with as a condition precedent to legitimizing a court order authorizing a guardian to consent to the sterilization of an incompetent.

First, upon the filing of the petition with the court, the judge shall appoint an independent guardian ad litem, who will vigorously defend the interests of the incompetent at a full judicial hearing. It goes without saying that due notice of the proceedings must be given to all interested parties to guarantee adherence to the requirements of procedural due process under the law. The guardian ad litem must have full opportunity to meet with the ward, present evidence and cross-examine witnesses at the hearing. In addition, to ensure that adequate evidence will be presented, the court must assure itself that a comprehensive medical, psychological and social evaluation is made of the incompetent. In re Matter of Moe, supra; In re Matter of A. W., supra; In re Matter of C. D. M., supra; In re Grady, supra. If need be, the trial judge is not foreclosed from appointing its own experts to assist in the evaluation of the incompetent’s best interests by examining the individual or testifying at the hearing. Ibid.

On the question of whether the incompetent person should be present at the hearing, we are of the view that the judge presiding over the proceeding must meet with the individual to obtain his own impressions of competency, regardless of whether he decides ultimately that the incompetent’s presence either is or is not required at the hearing. The meeting need not be conducted formally and can occur in any convenient and appropriate place, such as chambers, counsel’s office, an institution or the incompetent person’s home. The trial judge should talk with the person and observe the person’s physical and mental condition. More importantly, the incompetent should be given the opportunity to express his or her own views on the subject being reviewed, and, albeit not controlling, his or her wishes not to be sterilized must weigh heavily against authorizing the procedure. See In re Matter of A. W., supra; In re Grady, supra. Despite the fact that the individual may be labelled an “incompetent person,” does not mean that his or her apparent preferences can be totally ignored. In re Matter of C. D. M., supra.

Secondly, the trial judge must find that the individual lacks capacity to make a decision about sterilization and that the incapacity is not likely to change in the foreseeable future. In re Matter of C. D. M., supra; In re Grady, supra. Therefore, the proponent of sterilization has the burden of proving by clear and convincing evidence that the person to be sterilized lacks the capacity to consent or withhold consent. In re Grady, supra.

Thirdly, the person for whom sterilization is requested must be proven capable of reproduction. In the instant case, such a determination need not be made, inasmuch as the person sought to be sterilized has already given birth out of wedlock. Within this framework, it must be established that sterilization is the only practicable means of contraception, i.e., all less drastic contraceptive methods, including supervision, education and training are unworkable and detailed medical testimony must show that the sterilization procedure requested is the least significant intrusion necessary to protect the interests of the individual. In re Matter of Moe, supra; In re Matter of A. W., supra; In re Matter of C. D. M., supra. Toward this end, and in addition to the aforesaid, we adopt the following guidelines, as set forth by the court in In re Grady, supra, to facilitate the trial judge’s determination of whether clear and convincing proof has been presented to establish that sterilization is in the incompetent’s best interest:

“(2) The possibility that the incompetent person will experience trauma or psychological damage if she becomes pregnant or gives birth, and, conversely, the possibility of trauma or psychological damage from the sterilization operation.
(3) The likelihood that the individual will voluntarily engage in sexual activity or be exposed to situations where sexual intercourse is imposed upon her.
(4) The inability of the incompetent person to understand reproduction or contraception and the likely permanence of that inability.
* * * *
(7) The ability of the incompetent person to care for a child, or the possibility that the incompetent may at some future date be able to marry and, with a spouse, care for a child.
(8) Evidence that scientific or medical advances may occur within the foreseeable future which will make possible either improvement of the individual’s condition or alternative and less drastic sterilization procedures.
(9) A demonstration that the proponents of sterilization are seeking it in good faith and that their primary concern is for the best interests of the incompetent person rather than their own or the public’s convenience.” (Footnote omitted) Id. at 264, 426 A.2d at 483.

It is to be noted that a similar analysis is to be made where sterilization is requested for a male. We see no justification for formulating a different standard, i.e., sterilization is to be authorized only when it is in the individual’s best interest.

We hasten to caution that the above-stated guidelines are not intended to be an exhaustive list of the factors which the trial court should consider before ruling on a petition for sterilization. Rather, they constitute what we believe to be the minimal requirements that need to be examined to protect the constitutional rights of the incompetent. The need for additional inquiries and the weight to be given to each factor will vary with the particular facts and circumstances of each case. In re Matter of C. D. M., supra. Additionally, because of the sensitive and irrevocable nature of a sterilization operation, we wish to make it clear that appellate review of the instant type of case will be of the broadest scope, and this Court will not be bound by the inferences or deductions of the lower court. See Bender v. Bender, 261 Pa.Super. 12, 395 A.2d 279 (1978) (custody case); In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977) (semble); Commonwealth ex rel. Hickey v. Hickey, 213 Pa.Super. 349, 247 A.2d 806 (1968) (semble).

Given the importance of the fundamental procreative rights involved and the potential for abuse in connection with termination of those rights, we find there is a compelling need to have developed a more searching inquiry into the best interest of the incompetent, including, e.g., the medical necessity or other justification for the procedure called for, and a careful explanation of, as well as a more incisive look at, less drastic alternative forms of birth control than have been set forth in the instant record. In the absence of such evidence, this Court is hampered in its effort to render a jurisprudentially sound ruling.

A review of the evidence substantiates this Court’s determination that the record is woefully deficient on an issue of such magnitude. For example, at the March 20, 1981, hearing, the trial court made its determination that Mildred was incompetent; that the appointment of a guardian on her behalf was necessary; and sterilization was justified on the testimony of: 1) Mildred’s father; 2) the family physician; 3) a visiting nurse; 4) the local chief of police; and 5) Mildred herself. An examination of the evidence presented falls short of complying with the standards set forth by this Court in the case at bar.

At the hearing, Mildred’s father testified that his daughter was 25 years old and had attended “special schooling.” However, he stated she could neither read nor write. The father also recounted that because of Mildred’s mental deficiency, she has been exploited; e.g., she has given birth to an illegitimate child in December of 1980 and continues to be the object of designing men. Such conduct has persisted for “a period of over maybe two years.” As far as the care and feeding of the infant is concerned, Mildred has assumed none of her maternal duties; rather, her parents have taken it upon themselves to raise the child.

The next witness to take the stand was Dr. Wayne S. McKinley, the Terwilliger’s family physician. In the course of his testimony, he opined that Mildred was retarded. Such conclusion was predicated upon knowledge that Mildred had attended special education classes and that she was not able to keep pace with the normal education process. Additionally, the witness noted that, two years prior to the hearing, he had to fill out documents for Social Security in regard to Mildred’s competency and retardation. In the course thereof, the doctor observed that Mildred could not add two and two, nor could she write her name. These deficiencies led the witness to “conclu[de] that she was incompetent and retarded.” On cross-examination, Dr. McKinley admitted that an effective alternative to sterilization would be the birth control pill, at least, “[f]or a while.” Nonetheless, he discounted the feasibility of such an approach since he doubted that: 1) Mildred could “count[] her pills,” necessitating her parents to maintain constant monitoring of her intake; and 2) “the hectiness [sic] and all the friction that is prone to be in th[e Terwilliger] household, or lack of [a] household.” (N.T. 24^-25)

It is interesting to note that when questioned by the trial judge as to whether Mildred understood her own sexuality and the consequences thereof, Dr. McKinley stated: “I’m right on the fence there. In a way I wonder that, too[.]” Id. at 25. Later on in the questioning, although the witness dismissed the practicability of any alternative form of birth control, save for surgery, he admitted: “... I’d frankly, I’d have gone along with the pill here—go along with it—go along with an IUD suggestions. It’s my favorite operation.” Id. at 28.

The third witness, the visiting nurse, made merely conclusionary statements as to Mildred’s lack of maternal instinct, which were premised on Mildred’s absence from the home when the nurse appeared, twice a week, to supervise the baby’s care and health.

The chief of police, for the Brookville Police Department, also appeared and testified to no more than his observations of Mildred walking the streets of the community in the earlier morning hours, that citizens had informed him of being propositioned by Mildred and that Mildred could be sexually abused by several men in the community.

The last witness to take the stand was Mildred. Her testimony consisted of no more than two and a quarter pages of the record in toto. During the questioning, which was conducted by court-appointed counsel, Mildred stated that she understood the consequences of sterilization, and that she did not want any more children because her father told her to have “[n]o more.” Id. at 39. Additionally, the test results administered by the Clarion Intermediate Unit was introduced into evidence, which indicated that Mildred’s I.Q. was 33. After her testimony, the hearing came to a close and the trial court, thereafter, entered his order granting the petition which is the subject of the instant appeal.

When the evidence adduced at the March 20th hearing is aligned against the standards itemized by this Court today, it becomes obvious that a remand is necessary in order to develop a more comprehensive and detailed record on all the relevant issues before a clear and convincing case for sterilization can be established.

We vacate the Order of the lower court and remand the case for further proceedings consistent with this opinion. Jurisdiction is not retained by this Court.

      . In the case at bar, the fundamental right involved is that of a person to be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942) (right to sterilization implicitly recognized); In re Matter of Moe, 385 Mass. 555,-, 432 N.E.2d 712, 719 (1982). Mildred Terwilliger has the same constitutional right of privacy as anyone else to choose whether or not to undergo sterilization. Unfortunately, if the trial court, after a hearing, determines that she lacks the ability to make that choice for herself, we do not pretend that the choice of her guardian to consent to sterilization would be her own choice. As the court in In re Grady, supra, stated:
      “... it is a genuine choice nevertheless—one designed to further the same interests she might pursue had she the ability to decide herself. We believe that having the choice made in her behalf produces a more just and compassionate result than leaving [the incompetent] with no way of exercising a constitutional right.” Id. at 262, 426 A.2d at 481.

      . At this point, we wish to acknowledge the considerable assistance we have received from the amicus briefs filed by the American Civil Liberties Union of Pittsburgh and The Development Disabilities Advocacy Network, Inc., of Pennsylvania.


source: Caselaw Access Project

author: BECK, Judge: POPOVICH, Judge, dissenting:

license: Public Domain

text:
    450 A.2d 1386
    Adam Lawrence GIVENS, Mark Patrick Givens, Suzanne R. Givens, Appellants v. Austin GIVENS.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1981.
    Filed Oct. 1, 1982.

      Timothy G. Wojton, Pittsburgh, for appellants.
    No appearance entered nor briefs submitted on behalf of appellees.
    Before BECK, JOHNSON and POPOVICH, JJ.
   BECK, Judge:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, Family Division, denying appellant Suzanne Russell Givens’ Motion to Appoint Guardian Ad Litem for her co-plaintiff son Adam Lawrence Givens, age 16, in this support action. The appellant mother made this motion pursuant to Pennsylvania Rule of Civil Procedure No. 2031, which governs the appointment of guardians ad litem for minor parties for actions in law or equity. Because we hold that the order denying this appellant’s Motion to Appoint Guardian Ad Litem was not a final, appealable order, we quash this appeal. Although no parties have questioned the authority of this Court to review the lower court order, this Court may raise the issue of appealability sua sponte. Jones v. Crossgates, Inc., 220 Pa.Super. 427, 289 A.2d 491 (1972).

On January 27, 1981, appellant Suzanne R. Givens filed pro se a Petition to Reduce [Support] Arrearages to Judgment” (hereafter “Support Arrearage Petition”). The Support Arrearage Petition was captioned, “Adam L. Givens, Mark P. Givens, Suzanne R. Givens, Plaintiffs v. Austin Givens, Defendant.” Contending that appellee had made no support payments to them since May 1979, petitioners sought to enforce an alleged support order requiring defendant to pay them $350.00 per month. On January 29, 1981, a hearing on the Support Arrearage Petition was held. The lower court did not reach the merits of the petitioners’ Support Arrearage Petition because no existing support order could be found in the record. The guardian ad litem issue presently before this Court arose at that hearing. At that abortive hearing, Timothy G. Wojton, the attorney for the appellant mother Suzanne R. Givens, informed the Court that he was “representing .. . [the mother] in the court order for her children.” (N.T. 1/29/81, 68). It is not exactly clear why, but appellee’s counsel objected, stating that no guardian ad litem had been appointed for the children in any Domestic Relations Division case involving the parties. (N.T. 1/29/81, 67). Next, Mr. Wojton asked the court to appoint him as guardian ad litem for Adam and Mark Givens. (N.T. 1/29/81, 69). The court refrained from considering this oral motion because “there . . . [was] nothing before the [c]ourt yet on that subject,” (N.T. 1/29/81, 72) and continued the proceedings until March 16, 1981, when the Support Arrearage Petition was to be heard on the merits.

Into this already confused picture the appellant mother, acting pro'se, on February 4, 1981, presented the Motion to Appoint Guardian Ad Litem to the trial judge. The Motion alleged that the appellant mother’s son Adam, age 16, was “under decisive legal disability” and requested the court to grant a hearing on whether the attorney Mr. Wojton should be appointed his Guardian Ad Litem. The trial court denied this Motion to Appoint Guardian Ad Litem, without notice and hearing to the minor or to any other designated person. Hence, this appeal.

In considering the instant case, we are mindful that in all proceedings in law or equity, the law aims to dispose of litigation by a single appeal, and preliminary orders are not generally appealable in advance of a final judgment. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). It is well settled that an order is final when it determines the whole action, ends the litigation, and precludes appellant from further action in the court issuing the order. In the Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979); Alessandro v. State Farm Mut. Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979). By this standard, the lower court order denying the appellant mother’s Motion to Appoint Guardian Ad Litem was clearly not final. Such order in no way prevents the mother from continuing to pursue the support action. When a final judgment has been rendered on that action in the lower court, she will then have the opportunity to raise on appeal the issue whether the lower court acted properly in denying her Motion to Appoint Guardian Ad Litem.

This appeal is accordingly quashed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge, dissenting:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, Family Division, denying appellant Suzanne Russell Givens’ request for a hearing, selection and appointment of a guardian pursuant to Pa.R.Civ.P. 2031.

I cannot agree with the Majority’s view to eschew jurisdiction over the case at bar; therefore, I dissent.

The factual matrix surrounding the instant litigation began to unfold with the scheduling of a hearing on January 29, 1981, on appellant’s “Petition to Reduce Arrearages to Judgment” (Petition). The hearing judge noted that: “[t]he issues to be heard shall be limited to questions relating to the duty of . . . Austin L. Givens[ ] to make payment to .. . Suzanne W. Russell[ ] for Support of the parties’ sons. (Record No. 42)

At the January 29th hearing, the lower court discovered that the record was devoid of any evidence, of a support order. (N.T. 1/29/81, at 71) Since neither party had possession of nor access to a copy of such docühient, the lower court declined to hear any testimony regarding appellant’s Petition until it was satisfied that, in fact, “there was a support order[,]” and “where and at what number and term the original support order was filed . .. . ” Id. at 28, 26-27. Toward this end, the court directed that all parties engage in whatever discovery was necessary to locate the instrument so that the court could proceed at the correct number and term. All parties agreed to do so.

Before the hearing came to a close, appellant’s counsel made it clear that in the context of seeking enforcement of the support payments, he was “representing [appellant] in the court order for her children.” (N.T. 1/29/81-, at 68) Appellee’s counsel objected on the basis that he was aware of no guardian ad litem being so designated. When appellant’s counsel countered with an oral request to have himself appointed in such capacity, the court refrained from considering the guardian ad litem question because “there [was] nothing before the [c]ourt yet on that subject.” (N.T. 1/29/81, at 72) In other words, the court required that a petition be submitted requesting the appointment of a guardian ad litem, and, until such was complied with, no ruling on the question would be made. The court also directed that the proceedings be continued until March 16, 1981, at which time “the limited issue of [appellant’s] entitlement to support payments for the support of the parties[’] sons” would be heard. (Record No. 48)

In the interim, i.e., on February 4, 1981, appellant, acting pro se, presented a “Motion to Grant Hearing Selection [sic] and Appointment of Guardians Rule CRP 3021 ” (Motion) in open court. The Motion set forth the following:

“1. That on November 14, 1980 the Honorable Bernard McGowan appointed the Natural Mother, Suzanne Russell Givens, as Guardian Ad Litem to represent minor sons. (Copy of order attached)
2. That eldest son, Adam Lawrence, age 16, is under decisive legal disability, and has become the victim of designing persons.
3. That the eldest sons [sic] rights are prejudiced by this ommission, [sic] and that to the best of the Natural Mother’s information and belief has no guardian.
4. That Timothy G. Wojton, ..., Attorney at Law, made an oral proposal in court on January 27th, [sic—29th], 1981 that he be permitted to act as Guardian Ad Litem for said minor.
,5. WHEREFORE, the Natural Mother, as appointed ‘Guardian Ad Litem’ under definition of Rule 75 requests this Honorable Court to grant a hearing for the appointment of Timothy G. Wojton.”

The court, after reviewing the Motion, denied appellant’s request for a hearing. This appeal followed.

Unlike the Majority, I find the order appealed from to be final, and do so based on the case of Senseman’s Appeal, 21 Pa. 331 (1853), which, albeit not a mirror image of the instant litigation, is helpful in resolving the finality question. In Senseman, the uncle of two minor children had the executor of the estate of which the minors were beneficiaries assigned as their guardian. The appellant, the minors’ father, objected and requested that he be appointed instead. The lower court denied the request, and the father took an appeal. The Supreme Court reversed the lower court’s ruling, and, in so doing, held:

“The appointment of a guardian is a final decision upon the right to care and control of the person of the minor, or to the possession and management of its estate, or both, as the case may be. It is not an interlocutory order, but a ‘definitive order,’ from which an appeal lies to this Court.” (Emphasis in original) Id. at 334.

Instantly, as in Senseman, we are dealing with “the right to care and control of the person of a minor,” and an appeal from the trial court’s refusal to appoint a specific individual as guardian for said minor. Thus, I find Senseman apposite to the case at bar so as to give this Court jurisdiction to examine the issue raised. Cf. In re Katic, 294 Pa.Super. 347, 439 A.2d 1235 (1982) (appellate court reviewed an appeal from an order “appointing a guardian for a minor alleged to be incompetent^ s]ince the order was entered ex parte and without notice or hearing[.]”). Consequently, having concluded that the order appealed from is final, I would reach the merits of the case.

The standard of review in appointment of guardian cases was delineated by our Supreme Court in In re Estate of Morrissey, 440 Pa. 439, 269 A.2d 662 (1970), where it was stated:

“The discretion of a court in the appointment or non-appointment of a guardian will not be disturbed on appeal in the absence of an abuse of discretion or an error of law. Cf. McCann’s Appeal, 49 Pa. 304, 309 (1865); Gray’s Appeal, [96 Pa. 243 (1880)].” Id., 440 Pa. at 446, 269 A.2d at 666. Accord Appeal of Pote, 106 Pa. 574 (1884); Hornsey Will, Pa.Fiduc.Rpt.2d 149, 151 (Montg., 1981).

An examination of the facts in the case at bar discloses that the lower court’s denial of appellant’s Petition was premised on The Act of April 28, 1978, P.L. 202, No. 53, § 10(88), as amended 42 Pa.C.S.A. § 6704(b) (Pamphlet, 1981), which provides in pertinent part:

“(b) Moving party.—A complaint may be filed by any person, including a minor spouse, to whom a duty of support is owing. It shall be filed on behalf of a minor child by a person having custody of the minor, without appointment as guardian ad litem....”

Based on the aforesaid, the lower court went on to hold: “To the extent that petitioner, here, has any standing to raise a claim for the support of the two minor children, she must be ‘a person having custody of the minor[s]’, and she must maintain the action without appointment of a guardian ad litem.’’ (Lower Court Opinion at 2-3) See 42 Pa.C.S.A. §§ 6704(b) and 6708(a) (Pamphlet, 1981); see also Commonwealth ex rel. Kessler v. Kessler, 260 Pa.Super. 169, 393 A.2d 1205 (1978) (custodial parent had standing to seek support for 18-year-old dependent child); Children & Youth Services, Inc. v. Roman, 13 Pa.D. & C.3d 594 (Somerset, 1979) (agency having custody of a child over 18 may file complaint for support); Bruce v. Froeb, 15 Ariz.App. 306, 488 P.2d 662 (1971); 24 Am.Jur.2d, Divorce and Separation, § 272 and § 866, at 986 (1966).

Instantly, the persons for whom a court order reducing arrearages to judgment was being sought were Adam and Mark Givens. The defendant in the action was their father, Austin Givens. As a general rule, a parent must support his or her child. It is clear that orders of support are not final and may be increased or decreased where the financial condition of the parties change or where other proper reasons appear. Commonwealth ex rel. Magaziner v. Magaziner, 276 Pa.Super. 169, 419 A.2d 149 (1980). Furthermore, as was stated by this Court in Commonwealth v. Bishop, 185 Pa.Super. 362, 137 A.2d 822 (1958):

“A father who is willing to take his children and properly care for and maintain them is, ordinarily, entitled to their custody and should not be compelled to pay another for their support. However, the burden rests with one making this defense to satisfy the court that the offer is made in good faith and would be for the best interest of his children. But a custody order cannot be construed as a magic wand to ward off responsibility for support regardless of the circumstances.
******
The duty is upon the father to support his child.
******
Even though custody has been awarded to him, if such children are compelled to leave his home or live apart from him because of his misconduct or wrongdoing, the father remains liable for support during their absence from his home.” (Emphasis added) (Citations omitted) Id., 185 Pa.Superior Ct. at 366, 137 A.2d at 824.

Applying the aforementioned precepts to the case at bar, a review of the record reveals that on April 30,1979, the lower court,, per Judge Brosky (now a member of the Superior Court), entered an order awarding custody of the children to the appellee. Thereafter, appellant only relinquished custody of her older son, Adam. Appellee, in turn, sought to have appellant held in contempt for not complying fully with the custody order and discontinued payment of child support.

Next, we observe that the decree of the court granting (de jure) custody of the children to the appellee had the effect of completely divesting the appellant of all right to the control over the children, see 27B C.J.S. Divorce § 316. Albeit the appellee only obtained actual (de facto) custody of only one of his sons, i.e., Adam, the fact that appellant sought to have a guardian appointed for him alone, renders specious the lower court’s argument that Section 6704(b) was applicable to the case. In other words, subsection (b) of Section 6704 dispenses with the need for the appointment of a guardian ad litem for a minor in support matters when the complainant has “custody of the minor,” and since Adam was being cared for and maintained by the appellee, he could not have been in appellant’s custody so as to trigger the implementation of the particular provision.

However, this does not mean that a guardian should have been appointed, for “[e]xtreme care should always be exercised to avoid unnecessary appointments.” In re Kenna’s Estate, 348 Pa. 214, 219, 34 A.2d 617, 619 (1943). The record discloses the entry of a court order dated November 14,1980, naming appellant “as the guardian ad litem for Adam Lawrence Givens and Mark Patrick Givens.” Thus, inasmuch as there already was a lawfully appointed and duly qualified guardian ad litem, it would have been improper to have appointed another. See In re Kenna’s Estate, supra.

Additionally, I find no evidence to indicate that the appellant has any interests adverse to those of her children in seeking to have the arrearages for support reduced to judgment; therefore, for the reasons set forth herein, although different from those advanced by the court below, 1 find no abuse of discretion on the part of the lower court in denying appellant’s Petition. See In re Estate of Morrissey, supra. Consequently, the Order entered should be affirmed. Since the Majority’s decision is to the contrary, I respectfully dissent.

      . Appellant’s motion is entitled “Motion to Grant Hearing Slection [sic] and Appointment of Guardians Rule CRP 2031.”

      . A guardian ad litem appointed under Pa.R.C.P. No. 2031 is a person “representing the interest of a minor in ... [the] action,” Pa.R.C.P. No. 2026, with the power to “supervise and control the conduct of the action in behalf of the minor.” Pa.R.C.P. No. 2027. Pa.R.C.P. No. 2031 provides as follows for the appointment of such guardians:” (b) If a minor party to an action is not represented, the court shall appoint a guardian for him either upon its own motion or upon the petition of (1) the minor party, (2) a guardian of the minor appointed by any court of competent jurisdiction, or by a will duly probated, (3) any relative of the minor, or (4) any other party to the action----”

      . In the instant case, we hold only that an order denying a motion to - appoint a guardian ad litem for a minor party is not final. We are not here concerned with whether a court’s refusal to appoint a
        testamentary guardian for a minor should be considered a final, appealable order. See Senseman’s Appeal, 21 Pa. 331 (1853).

      . For the purposes of this appeal, we assume without deciding that there was an original support order at the specific term and number at which appellants’ Support Arrearage Petition was filed. We further assume without deciding that at the time of the filing of the Support Arrearage Petition, the minors Mark and Adam were named plaintiffs in that action. We recognize that such information is normally clear from the record itself, but in this case, our review has been hampered by the fact that considerable portions of the record apparently no longer exist.

      . Pa.R.C.P. § 2031(e) states: “When the petition [to appoint guardian ad litem] is filed by a person other than the minor, the court shall direct a rule to be served upon the minor or upon such other person as the court may designate to show cause why the prayer of the petition should not be granted.”

      . An order denying a Pa.R.C.P. No. 2031 motion for the appointment of a guardian ad litem for a minor party does not fall within any of the exceptions enumerated in Rules 311(a-c) of the Pennsylvania Rules of Appellate Procedure, Pa.R.App.P. Nos. 311(a), 311(b), 311(c).

      . The Pennsylvania Rules of Civil Procedure contain special provisions outlining procedures by which certain unrepresented minor plaintiffs and defendants may obtain post judgment relief at the trial court level, without invoking an appellate court'. Pa.R.C.P. No. 2035, relating to minor plaintiffs, states: “The non-representation of a minor plaintiff may not be assigned by a defendant as a ground for a non-suit, directed verdict, or judgment n.o.v., but may be assigned by the minor plaintiff as ground for a new trial when a setoff or counterclaim has been successfully asserted against the minor plaintiff.” Pa.R.C.P. No. 2034(d), relating to minor defendants, states: “If, after the conclusion of the trial, or after the entry of a finding, verdict or judgment against a minor, application is made for the appointment of a guardian for a minor party against whom any relief is sought, the court shall, in either case, forthwith appoint a guardian for such minor, and may vacate the finding, verdict or judgment and may enter an order in the nature of a procedendo.”

      . We note that it has been held that an appeal from an order overruling a defendant’s preliminary objections, alleging plaintiff’s failure to join an indispensable party is interlocutory. DeAngelis v. Laughlin, 436 Pa. 75, 258 A.2d 615 (1969) (Roberts, Pomeroy, JJ., concurring). By the same token, the order at issue here, which might result in the minor’s interests being less than fully protected, should not be considered final.

      . Rule 2031. Selection and Appointment of Guardians
      (a) A minor plaintiff may select his guardian, but such selection shall not bar the court from removing the guardian for cause in accordance with these rules.
      (b) If a minor party to an action is not represented, the court shall appoint a guardian for him either upon its own motion or upon petition of (1) the minor party, (2) a guardian of the minor appointed by any court of competent jurisdiction, or by a will duly probated, (3) any relative of the minor, or (4) any other party to the action.
      (c) The petition shall state the name and address of the person proposed as guardian, and his relationship, if any, to the subject matter of the actioh or to any of the parties thereto. In case the person proposed as guardian is a guardian appointed by any court of competent jurisdiction or by a will duly probated, the petition shall contain a reference to the record of such appointment.

        (d) When the petition is filed by the minor the court may make the appointment ex parte.
      (e) When the petition is filed by a person other than the minor, the court shall direct a rule to be served upon the minor or upon such other person as the court may designate to show cause why the prayer of the petition should not be granted.

      . If the order denying the appointment of a guardian were considered interlocutory we would never reach the question of whether the trial court abused its discretion in issuing such order. In other words, the nature of the order entered would preclude examination of the merits of the case. Therefore, the existence of a standard of review in such situation lends support to the proposition that the order appealed from is a final one.

      . For clarification purposes, we note that appellant is seeking only to have a guardian ad litem appointed for her son Adam, since, as she averred below, “the court appointed an attorney for youngest [sic] son, Mark Patrick; therefore his rights are not prejudiced.” (See Appellant’s “Matters Complained Of On Appeal,” Point 5)

      . Appellant filed exceptions to said order, which were dismissed after oral arguments by the court on November 16, 1979.

      . The entire order reads:
      “IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY PENNSYLVANIA, CIVIL DIVISION This Court does hereby appoint this 14th day of November, 1980, Suzanne Givens as the guardian ad litem for Adam Lawrence Givens and Mark Patrick Givens. This appointment is-made-because the two miner—sons are under decisive legal disability.
      /s/ McGowan J. By the Court J.”
      (Interlineations in original)

      . Reviewing court may affirm if any ground for affirmance exists, though not employing the same rationale as employed by the lower court. Sones v. Aetna Casualty and Surety Co., 270 Pa.Super. 330, 411 A.2d 552 (1979). Accord E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 381 A.2d 441 (1977); Mazer v. Williams Bros. Co., 461 Pa. 587, 337 A.2d 559 (1975); Taub v. Merriam, 251 Pa.Super. 572, 380 A.2d 1245 (1977); Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 363 A.2d 1265 (1976).


text:
    450 A.2d 1031
    Banks v. Davis, Appellant.
    Argued April 27, 1982.
    Melvin Clark, Jr., for appellant; Richard F. Kronz, for appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Decree and judgment affirmed.


text:
    450 A.2d 1032
    Bertolet, Appellant v. The Cement National Bank.
    Argued January 6, 1982.
    James C. Lanshe, for appellant; Alfred S. Pierce, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   The order of the lower court is affirmed.


text:
    450 A.2d 1032
    Brodsky & Satinsky v. B. F. Goodrich Co., et al. Appeal of The City of Philadelphia. Appeal of The B. F. Goodrich Company.
    Petition for Allowance of Appeal Denied Jan. 14, 1983.
    Argued October 5, 1981.
    Gabriel Bevilacqua, Assistant City Solicitor, for City of Phila., appellant (at No. 1860) and appellee (at No. 2017); James M. Marsh, for B. F. Goodrich, appellant (at Ño. 2017) and appellee (at No. 1860); Donald F. Manchel, for Brodsky and Satinsky, appellees.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 1032
    Carlisle, Appellants v. Gatto.
    Argued March 16, 1982.
    Christopher F. Spina, for appellants; August J. Costanzo, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the lower court is affirmed.


text:
    450 A.2d 1032
    Commonwealth v. Anderson, Appellant.
    Submitted September 15, 1981.
    John W. Anderson, appellant, in propria persona; Edgar Bayley, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WATKINS and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1033
    Commonwealth v. Beagle, Jr., Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.

      Submitted December 8, 1981.
    Neil L. Albert, for appellant; Heather J. Mumma, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment of sentence is affirmed.


text:
    450 A.2d 1033
    Commonwealth v. Bufford, Appellant.
    Submitted January 18, 1982.
    Warren R. Hamilton, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Order affirmed.


text:
    450 A.2d 1033
    Commonwealth v. Clark, Appellant.
    Petition for Allowance of Appeal Denied May 11, 1983.

      Submitted June 21, 1982.
    Adam O. Renfroe, Jr., for appellant; Ronald Eisenberg, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed. Jurisdiction of the Superior Court of Pennsylvania is relinquished. The lower court shall enforce its sentence.


text:
    450 A.2d 1034
    Commonwealth v. Cornish, Appellant.
    Submitted November 6, 1981.
    David R. Eshelman, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Orders affirmed.


text:
    450 A.2d 1034
    Commonwealth v. Dorsey, Appellant.

      Submitted September 22, 1981.
    William A. Fetterhoff, Assistant Public Defender, for appellant; Marion E. Mac Intyre, First Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 1034
    Commonwealth, Appellant v. Duden.
    Argued June 2, 1981.
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellant; Vincent Ziccardi, for appellee.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.
   The order of the learned Montgomery County Common Pleas Court Judge Horace A. Davenport is affirmed.

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


text:
    450 A.2d 1035
    Commonwealth v. Edwards, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.

      Submitted December 15, 1981.
    Joel Harvey Slomsky, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 1035
    Commonwealth v. Ellingsworth, Appellant.
    Submitted November 5, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Judgment of sentence is affirmed.


text:
    450 A.2d 1035
    Commonwealth v. Fortson, Appellant.
    Submitted March 6, 1980.
    Steven Y. Manbeck, Public Defender, for appellant; C. Joseph Rehkamp, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    450 A.2d 1035
    Commonwealth v. Fowler, Appellant.
    Submitted October 6, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKÉRSHAM, McEWEN and POPOVICH, JJ.
   The judgment of sentence of the learned Montgomery County Common Pleas Court Judge Horace A. Davenport is affirmed.


text:
    450 A.2d 1036
    Commonwealth v. Garland, Appellant.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.

      Submitted February 22, 1982.
    Susan Iris Schulman, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 1036
    Commonwealth v. Hardy, Appellant.
    Petition for Allowance of Appeal Denied Dee. 22, 1982.
    Submitted January 7, 1982.
    Ronald F. O’Driscoll, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Judgment of sentence affirmed.

SPAETH, J., concurred in the result.


text:
    450 A.2d 1036
    Commonwealth v. Herrold, Appellant.

      Argued September 22, 1981.
    Daniel Stern, for appellant; C. Joseph Rehkamp, District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The order of the Court of Common Pleas of Perry County, docketed at No. 205 of 1979 is affirmed.


text:
    450 A.2d 1037
    Commonwealth v. Hinton, Appellant.
    Argued May 3, 1982.
    Nancy V. Larkin, Assistant Public Defender, for appellant; William F. Merz, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1037
    Commonwealth v. Johnson, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      Submitted January 18, 1982.
    Steven J. Zwicky, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1037
    Commonwealth v. Johnson, Appellant.
    Submitted September 14, 1981.
    Joseph V. Monaghan, III, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WATKINS and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1037
    Commonwealth v. Knight, Appellant.
    Petition for Allowance of Appeal Denied March 3, 1983.

      Argued January 19, 1982.
    John Patrick Williamson, for appellant; Garold Edward Tennis, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1038
    Commonwealth v. Lerie, Appellant.
    Argued May 3, 1982.
    Nancy V. Larkin, Assistant Public Defender, for appellant; William F. Merz, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1038
    Commonwealth v. Lewis, Appellant.
    Submitted March 6, 1980.
    Blake E. Martin, Public Defender, for appellant; John R. Walker, District Attorney, for Commonwealth, appellee.

      Before CERCONE, P. J., WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1038
    Commonwealth v. McDowell, Appellant.
    Submitted March 29, 1982.
    Thomas H. A. Gallagher, for appellant; Gerald B. Ingram, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Bernard Snyder is affirmed.


text:
    450 A.2d 1039
    Commonwealth v. McKay, Appellant.
    Submitted March 31, 1982.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before WIEAND, McEWEN and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1039
    Commonwealth v. Miller, Appellant.
    Petition for Allowance of Appeal Denied Jan. 17, 1983.
    Submitted November 9,1981.
    William R. Shaffer, for appellant; David A. Hepting, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Order dismissing post conviction relief is affirmed.


text:
    450 A.2d 1039
    Commonwealth v. Mills, a/k/a Sanders, Appellant.
    Argued April 23, 1982.
    Fred J. Silverman, for appellant; Ronald Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed. Jurisdiction of the Superior Court of Pennsylvania is relinquished. The lower court is directed to enforce its sentence.


text:
    450 A.2d 1040
    Commonwealth v. Myers et al., Appellants.
    Argued March 22, 1982.
    Daniel W. Shoemaker, for appellant; Gary E. Hartman, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgments of sentence affirmed.


text:
    450 A.2d 1040
    Commonwealth v. Parker, Appellant.
    Submitted December 14, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1040
    Commonwealth v. Prosser, Appellant.
    Submitted January 11, 1982.
    Worstell Janette Baisley, for appellant; Grayce R. Kovacs, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1040
    Commonwealth v. Rhodes, Appellant.
    Petition for Allowance of Appeal Denied Nov. 23, 1982.
    Submitted May 20, 1982.
    Richard S. Levine, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   The judgment of sentence of the learned Allegheny County Common Pleas Court Judge John W. O’Brien is affirmed.


text:
    450 A.2d 1041
    Commonwealth v. Sanders, Appellant.
    Petition for Allowance of Appeal Denied Jan. 14, 1983.
    Submitted March 6, 1980.
    Bruce D. Foreman, for appellant; Marion E. Mac Intyre, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    450 A.2d 1041
    Commonwealth v. Slinger, Appellant.
    Submitted June 22, 1982.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The judgment of sentence of the learned Philadelphia County, Common Pleas Court Judge Louis G. Hill is affirmed as modified.


text:
    450 A.2d 1041
    Commonwealth v. Smith, Appellant.
    Submitted December 16, 1981.
    Stephen P. Patrizio, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1042
    Commonwealth v. Snyder, Appellant.
    Submitted March 30, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The judgment of sentence of the learned Montgomery County Common Pleas Court Judge Samuel W. Salus, II is affirmed.


text:
    450 A.2d 1042
    Commonwealth v. Supples, a/k/a Laue, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.
    Submitted November 10, 1981.
    John H. Corbett, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1042
    Commonwealth v. Tillman, Appellant.
    Submitted September 9, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.

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


text:
    450 A.2d 1043
    Commonwealth v. Turner, Appellant.
    Submitted December 5, 1980.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., HESTER and WIEAND, JJ.
   Remanded to the Municipal Court of Pennsylvania with directives. Jurisdiction is retained by the Superior Court.


text:
    450 A.2d 1043
    Commonwealth v. Weary, Appellant.
    Submitted September 13, 1979.
    Perry DeMarco, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WATKINS and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1043
    Commonwealth v. Wesley, Appellant.
    Submitted June 16, 1982.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1043
    Commonwealth v. Wesley, Appellant.
    Submitted June 4, 1982.
    Norris E. Gelman, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    450 A.2d 1044
    Continental Bank v. Moore et ux., Appellants.

      Argued May 4, 1982.
    Edward A. Savastio, for appellants; Walter Weir, Jr., for appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    450 A.2d 1044
    Cowen v. Krasas et al., Appellants.
    Submitted January 26, 1982.
    Arsen Kashkashian, for appellants; Marvin J. Levin, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 1044
    Dasher, Appellant v. Dasher.
    Argued December 14, 1981.
    Dwight Danser, for appellant; Michael J. Rotko, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 1044
    Hamilton v. Hamilton, Appellant.
    Argued February 17, 1982.
    Arthur L. Jenkins, for appellant; Joan B. Stuart, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   The order dated March 16, 1981 is affirmed.


text:
    451 A.2d 1044
    Hostler, Appellants, v. Wm. Penn. School Dist. et al.
    Reargument Denied Nov. 10, 1982.
    Argued December 1, 1980.
    Michael J. Pepe, Jr., for appellant; William C. Beatty, for Wm. Penn, appellee; Andrew J. Forbes, for Carson, appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    450 A.2d 1045
    Ins. Co. of North America etc. v. Karol, Appellant.

      Argued December 15, 1981.
    Jeffry L. Gilbert, for appellant; Donald E. Wieand, Jr., for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 1045
    Kline, Jr., Appellant v. Kline.
    Petition for Allowance of Appeal Denied Dec. 1, 1982.
    Argued November 6, 1981.
    Penn B. Glazier, for appellant; Michael W. Babic, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Appeal quashed.


text:
    450 A.2d 1045
    Liverant, Senft and Cohen v. Vogel et al., Appellants.
    Submitted March 6, 1980.
    Henry Vogel, appellant, in propria persona; Etta Vogel, appellant, in propria persona; Robert J. Stewart, for appellee.
    Before CERCONE, P.J., WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    450 A.2d 1045
    Lundy v. Manhattan Shirt Company et al. Appeal of Manhattan Shirt Company.
    Argued February 3, 1982.
    Martin J. King, for appellant; Kevin Gerard Amadio, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Order affirmed.


text:
    450 A.2d 1046
    Murphy, Appellant v. Hoesch.
    Argued January 6, 1982.
    Robert J. Murphy, for appellant; Edward L. Edelstein, for appellees.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Order affirmed.


text:
    450 A.2d 1046
    Quakertown Brick and Tile Co., Inc., v. Baumann. Appeal of Erie Indemnity Co., Attorney-in-Fact for subscribers at Erie Insurance Company.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.

      Argued February 3, 1981.
    Michael P. Shay, for appellant; David G. Welty, for Quakertown, appellee; David Baumann, appellee, in propria persona.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 1046
    Rose v. Meyer, Appellant.
    Submitted March 6, 1980.
    Daniel F. Wolfson, for appellant; Harold E. Stambaugh, for appellee.
    Before CERCONE, P.J., WATKINS and MONTGOMERY, JJ.
   Decree affirmed.


text:
    450 A.2d 1047
    Serkin a/k/a Ludwig v. Veneziale, Appellant.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.
    Argued September 14, 1981.
    Sheridan P. Hunt, Jr., for appellant; Glen D. Hains, for appellee.

      Before CAVANAUGH, DiSALLE and WATKINS, JJ.
   Order affirmed.

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


text:
    450 A.2d 1047
    Spinosa v. Spinosa, Appellant.
    Argued January 19, 1982.
    Sandor Engel, for appellant; Paul A. McGinley, for appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Order affirmed.


text:
    450 A.2d 1047
    Stantzos, Appellant v. Jerdan.
    Argued March 23, 1982.
    Joseph R. Adamczyk, for appellant; George F. Douglas, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 1047
    Strohl v. Welsh, Appellant.
    Argued June 2, 1982.
    Arnold Sousa, for appellant; Michael Lewis Ozalas, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment affirmed.


text:
    451 A.2d 1044
    Wrona v. Helmick. Appeal of Anne F. Wrona.
    Reargument Denied Nov. 15, 1982.
    Petition for Allowance of Appeal Denied Jan. 24, 1983.
    Argued March 5, 1980.
    Richard H. Wix, for appellant; Thomas P. Harlan, for appellee.
    Before CERCONE, P.J., WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    450 A.2d 1048
    Amer. Bk. & Tr. Co. of Pa. v. High Vista et al. Appeal of Title Insurance Co. of Pa. and The Unity Savings Association.
    Submitted December 14, 1981.
    Michael J. Donohue, for Title Insurance, appellant; Robert J. Hoelscher, for Unity Savings, appellant; Charles A. Shea, III, for Amer. Bk. and High Vista, et al., appellees; Pasco L. Schiavo, for Butler Enterprises, appellee (at No. 2923); Philip S. Seltzer, appellee, in propria persona (at No. 2923); Nathan P. Seltzer, appellee, in propria persona (at No. 2923); William Seltzer, appellee, in propria persona (at No. 2923).
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 1048
    Brown, Appellant v. Collins v. McGrath.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.
    Argued January 13, 1982.
    William S. Scott, for appellant; David H. Patterson, for Collins, appellee; W. Arch Irvin, for McGrath, appellee; S. Asher Winikoff, for Amer. Motors Ins. and Kemper Ins., appellees.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 1048
    Burkett etc. v. Pelczarski, Appellant v. Sekscinski. Pelczarski, Appellant v. Burkett.
    Petition for Allowance of Appeal Denied Nov. 23, 1982.
    Argued March 16, 1982.
    John A. Robb, for appellant; John F. Becker, for appellees.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   Affirmed.


text:
    450 A.2d 1049
    Commonwealth v. Allen, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Submitted November 10, 1981.
    John H. Corbett, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 1049
    Commonwealth v. Arabia, Appellant.
    Submitted May 12, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1049
    Commonwealth v. Beck, Appellant.
    Argued January 11,1982.
    David Henry Acker, for appellant; David Hepting, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 1050
    Commonwealth v. Brown, Appellant.
    Submitted February 24, 1982.
    Ronald J. Harper, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 1050
    Commonwealth v. Brunner, Appellant.
    Submitted March 2,1982.
    Gary Spohn Fronheiser, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 24
    Commonwealth v. Casuccio, Appellant.
    Reargument Denied Nov. 22, 1982.
    Petition for Allowance of Appeal Denied March 30, 1983.
    Argued January 11, 1981.
    Phillip L. Clark, for appellant; John Lee Brown, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 555
    Commonwealth v. Christjohn, Appellant.
    Reargument Denied Dec. 1, 1982.
    Petition for Allowance of Appeal Denied April 8, 1983.
    Submitted March 16, 1982.
    Charles J. Duke, for appellant; Jay Paul Kahle, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   Affirmed.


text:
    450 A.2d 1050
    Commonwealth v. Colon, Appellant.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Submitted February 22,1982.
    Ronald F. O’Driscoll, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1050
    Commonwealth v. Davanzo, Jr., Appellant.
    Submitted June 22, 1982.
    Ronald John Karasek, for appellant; Christopher T. Spadoni, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed and jurisdiction of the Superior Court of Pennsylvania relinquished. The lower court is directed to enforce the sentence.


text:
    450 A.2d 1051
    Commonwealth v. Dunbar, Appellant.
    Submitted January 12, 1982.
    Richard E. Goldinger, for appellant; David A. Hepting, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 1051
    Commonwealth v. Ginsberg, Appellant.
    Argued June 22, 1981.
    Howard B. Zavodnick, for appellant; Ronald T. Williamson, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before HESTER, CAVANAUGH and BECK, JJ.
   Order affirmed.


text:
    450 A.2d 1051
    Commonwealth v. Hobbs, Jr., Appellant.

      Submitted November 18, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   The judgment of sentence of the learned Lancaster County Common Pleas Court Judge Ronald L. Buckwálter is affirmed.


text:
    450 A.2d 1052
    Commonwealth v. Johnson a/k/a Young, Appellant.
    Submitted April 16,1980.
    John H. Corbett, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., BROSKY and MONTGOMERY, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    450 A.2d 1052
    Commonwealth v. Jones, Appellant.

      Submitted November 14, 1980.
    G. William Bills, Jr., for appellant; Kathryn L. Simpson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., WIEAND and JOHNSON, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 1052
    Commonwealth v. Mountain, Appellant.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Argued April 28, 1982.
    Jay Stuart Nedell, for appellant; Shad Connelley, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., BECK and MONTEMURO, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    450 A.2d 1053
    Commonwealth v. Rodgers, Appellant.
    Petition for Allowance of Appeal Denied Feb. 7, 1983.

      Submitted May 20, 1982.
    John H. Corbett, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   The judgment of sentence of the learned Allegheny County Common Pleas Court Judge Thomas A. Harper is affirmed.


text:
    450 A.2d 1053
    Commonwealth v. Shambor, Appellant.
    Submitted June 3, 1982.
    Michael J. Rowley, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Affirmed.


text:
    450 A.2d 1053
    Commonwealth v. Sopin, Appellant.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.

      Argued May 11, 1982.
    Craig Sopin, appellant, in propria persona; Anthony Watkins, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Appeal quashed.


text:
    450 A.2d 1053
    Commonwealth v. Still, Jr., Appellant.
    Argued February 22, 1982.

      Frank J. Marcone, submitted a brief on behalf of appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1054
    Commonwealth v. Warren, Appellant.
    Submitted May 4, 1982.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1054
    Commonwealth v. White, Appellant.
    Submitted April 16, 1980.
    David Metinko, for appellant; Charles W. Johns, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., BROSKY and MONTGOMERY, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    450 A.2d 1054
    Commonwealth v. White, Appellant.
    Submitted March 17, 1981.
    John H. Corbett, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., BROSKY and MONTEMURO, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    450 A.2d 1055
    Commonwealth v. Wilson, Appellant.
    Submitted April 27,1982.
    John H. Corbett, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 1055
    Commonwealth, Appellant v. Ziegler.
    Petition for Allowance of Appeal Granted Dec. 22, 1982.
    Argued September 10, 1981.
    Eric B. Henson, Deputy District Attorney, for Commonwealth, appellant; Burton A. Rose, for appellee.
    Before HESTER, McEWEN and SHERTZ, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge George J. Ivins is affirmed.

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


text:
    452 A.2d 25
    DeAngelis v. Commonwealth Land Title Ins. Appeal of Edwin K. Daly and Jeanne G. Daly.
    Reargument Denied Nov. 19, 1982.
    Petition for Allowance of Appeal Denied Jan. 17, 1983.
    Argued March 20, 1980.
    Edwin K. Daly, Jr., appellant, in propria persona; Raymond T. Cullen, no appearance entered nor briefs submitted on behalf of appellees; Harry P. Begier, Jr., participating party, in propria persona.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   The orders of April 20, 1976, June 4, 1976 and May 19, 1976 are affirmed.


text:
    450 A.2d 1055
    Eaton Credit Corp., Appellant v. Economy Industrial.
    Argued January 12, 1982.
    John Wesley Jorden, for appellant; Edward C. Leckey, for appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 1055
    Est. of Louise E. Fischer Dec’d. Appeal of Kidney Foundation of Southeastern Pennsylvania.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.
    Argued November 17, 1981.
    Abraham M. Mora, for appellant; Paul E. Bomze, for appellee; Mercer D. Tate, for participating parties.
    Before CERCONE, P. J., McEWEN and HOFFMAN, JJ.
   We affirm the en banc order of the Court of Common Pleas of Montgomery County which dismissed the exceptions of the appellant and adopted the adjudication of the learned Judge Alfred L. Taxis, Jr.


text:
    452 A.2d 554
    Harrison, Jr. v. American Hoist and Derrick Co. Appeal of Economy Baler Company. Harrison v. American Baling Co., Appellant.
    Reargument Denied Dec. 1, 1982.
    Argued March 17,1982.
    Timothy D. Appelbe, for appellants; David H. Trushel, for appellee.

      Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the court is affirmed.


text:
    450 A.2d 1056
    Heist, Appellant v. Braun etc.
    Argued December 16, 1981.
    Neil E. Jokelson, for appellant; Frederick C. Fletcher, III, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Judgment and order affirmed.


text:
    450 A.2d 1056
    Estate of: Zelmore. Appeal of Wilma Ruth Minor.
    Submitted January 12, 1982.
    James N. Fitzsimmons, for appellant; Vincent J. Roskovensky, for participating party.

      Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 1056
    Lorie etc., Appellant v. Rositer et ux.
    Submitted September 29,1981.
    Wm. Patrick Delaney, for appellant; T. Dana Watson, for appellees.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 1057
    McIlrath, Appellant v. Sanctis et al.
    Argued April 14,1981.
    Neal R. Cramer, for appellant; Bart M. Beier, for appellee.

      Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   Order affirmed.

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


text:
    450 A.2d 1057
    Passmore et ux. v. Braha et ux., Appellants.
    Petition for Allowance of Appeal Denied Jan. 11, 1983.
    Argued December 15,1981.
    William A. Hebe, for appellants; James E. Carlson, submitted a brief on behalf of appellees.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The order is affirmed.


author: ROWLEY, Judge:

text:
    451 A.2d 1
    COMMONWEALTH of Pennsylvania v. John Robert SUTHERLAND, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1982.
    Filed Sept. 24, 1982.
    Petition for Allowance of Appeal Denied Jan. 17, 1983.

      Scott Lee Kelley, Hanover, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

John Robert Sutherland, Jr., appellant, was convicted by a jury of robbery and simple assault in April of 1976. Post-trial motions were denied, and appellant was sentenced to 7V2 to 15 years imprisonment. On direct appeal, the judgment of sentence was affirmed by this Court. Commonwealth v. Sutherland, 266 Pa.Super. 615, 405 A.2d 540 (1979).

On January 14, 1980, appellant filed a pro se petition for post-conviction relief seeking either his release from custody and discharge or the grant of a new trial on the ground that his trial counsel was ineffective. Counsel was appointed, and after an evidentiary hearing the petition was dismissed. Appellant’s post-conviction counsel failed to file a timely appeal from that order. As a result, a second petition for post-conviction relief was filed by the appellant seeking the restoration of his appeal rights. The trial court granted his petition, appointed new counsel and reinstated the appellant’s appeal rights. This appeal followed.

It has been said, generally, that in evaluating claims of ineffective assistance of counsel, the court must first determine whether or not the issue underlying the charge of ineffectiveness is of at least, “arguable merit”. If it is, then the court must determine whether or not the course chosen by counsel had “some reasonable basis designed to effectuate” the interest of his client. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980). If the issue is without arguable merit or there was a reasonable basis for counsel’s actions, counsel will be considered effective. “Furthermore, a finding of ineffectiveness can never be made unless it is demonstrated that the alternatives not chosen offered a potential for success substantially greater than the course actually followed”. Commonwealth v. Burton, 491 Pa. at 20, 417 A.2d at 614. Initially, however, it is necessary to ascertain whether the petitioners factual averments underlying the ineffectiveness claim are consistent with the record.

Prior to appellant’s arrest on the charges involved in this case, his victim identified appellant’s photograph contained in a photographic display at the police station. Later the victim observed appellant, who was under arrest on other charges, in a room of the police station in the custody of a police officer. The trial court found that this view was accidental and was not planned. Although his trial counsel filed a motion to suppress any evidence of the photo identification, the victim’s view of appellant at the station and any in-court identification by the victim, appellant now argues that counsel was ineffective for neglecting “to examine [a] crucial element necessary to a fair trial, that of failure of the Commonwealth to provide counsel for” him at the photographic display and when he was viewed by the victim at the station. This argument, however, is contradicted by the record. Trial counsel raised the issue of counsel in the pre-trial motion to suppress and in post-trial motions filed on behalf of appellant. The question of the need for counsel at the pre-arrest identification proceedings and the view of appellant was likewise raised on direct appeal by appellant’s trial counsel in the brief he filed on appeal to this Court. Appellant’s trial counsel, therefore, was not ineffective for failing to move to suppress the victim’s in-court identification on the ground claimed by appellant. The record shows that the issue of the right to counsel at the photo display and the view at the station was fully litigated, pre-trial, post-trial, and on direct appeal contrary to appellant’s present claim.

At the suppression hearing, held April 29, 1976, on the motion filed by trial counsel, the Commonwealth was unable to present the collection of photographs used in the display. Counsel argued that this failure rendered any identification evidence by the victim inadmissable. The trial court held that the failure to produce the photographs did not render evidence of the victim’s photographic identification inadmissible, nor did it require suppression of an in-court identification. Appellant now argues that counsel was ineffective for failing to cite, to the trial court, the decision of this Court in Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974). It is true that the Court in Commonwealth v. Jackson, required the suppression of any evidence concerning a photographic identification when the photographs are not produced for examination by defendant’s counsel and the court. However, appellant was not harmed by the trial court’s erroneous ruling in this regard since no evidence of the victim’s photographic identification was offered or received in evidence at appellant’s jury trial. Error in the abstract affords no basis for relief. It is only when the error is of sufficient dimension to have denied a defendant a fair trial that a remedy must be afforded the accused.

Additionally, Commonwealth v. Jackson, does not require suppression of an in-court identification when the photographs are not available. Thus, the citation by counsel of the decision in Jackson, would not have required a different result insofar as the court’s refusal to suppress an in-court identification is concerned. The trial court made it clear, in a “supplemental opinion” filed April 6, 1977, in which both Commonwealth v. Jackson and Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977) were discussed, that a sufficient, independent, source existed for the victim’s in-court identification, thereby making such testimony admissible. Thus, even had counsel cited Jackson during the suppression hearing the court would not have suppressed the in-court identification. Finally, Commonwealth v. Jackson, in addition to being cited in the trial court’s supplemental opinion filed with this Court on direct appeal, was cited by the Commonwealth in its brief filed on direct appeal. Thus, counsel’s failure to cite Commonwealth v. Jackson, during the suppression hearing led to no harm or prejudice to defendant.

Finally, appellant claims that his. trial counsel “neglected to argue” the fact that his trial was commenced fifty-eight (58) days after the expiration of the one hundred eighty (180) days allowed for commencement of trial under Pa.R. Crim.P. 1100. The original run-date under Rule 1100 was March 3, 1976. Trial was scheduled for the February, 1976 term of court. The trial, however, was continued pursuant to an application for a continuance filed by the appellant’s trial counsel on February 27, 1976. Although appellant’s present counsel argues in his written brief that “[a]t no time did the defendant consent to or authorize any such continuances”, a review of the original record shows that the application was signed by appellant. On the same day the application for a continuance was filed, February 27, 1976, the Commonwealth filed an application for an extension of time in which to commence trial. The reason given for the application was that the trial could not be commenced within the required period because of the continuance requested by appellant. A hearing on the Commonwealth’s application was set for March 19, 1976. On March 19, 1976, after hearing at which no objection was made, the trial court granted the Commonwealth’s petition and extended the time for commencement of trial until May 28, 1976. On March 22 and 23, appellant was tried in York County on other, unrelated charges. Appellant was tried on the charges in this case in April 1976, well within the extended run-date of May 28, 1976.

“ ‘(D)efense-requested continuance(s) may realistically obstruct diligent efforts by the Commonwealth to try an accused and may, therefore, justify an extension under Rule 1100(c)’ Commonwealth v. Mancuso, 247 Pa.Super. 245, 253-54, 372 A.2d 444, 448 (1977)” Commonwealth v. Hill, 290 Pa.Super. 399, 403, 434 A.2d 813, 815 (1981). The continuanee requested by the appellant clearly prevented his trial from being commenced within 180 days after the criminal complaint had been filed. The request for a continuance was presented on the trial date which was only four (4) days prior to the run-date. Additionally, appellant’s counsel stated that he was unavailable for trial during the succeeding week. Therefore, when appellant’s petition for a continuance was granted by the Court and the trial was set for “the March, 1976, session of court” (after the original run-date) without any objection being raised, appellant effectively waived his right to be tried within 180 days. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981).

That continuance also effectively prevented the appellant from being brought to trial during the March term of court since it caused a potential conflict with appellant’s trial scheduled for March, 1976, on unrelated charges. The possibility of prejudice to an accused by requiring that he proceed to two trials on unrelated charges before the same jury panel has been held to require a new trial. Commonwealth v. Free, 214 Pa.Super. 492, 259 A.2d 195 (1969). Accord, Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973); Commonwealth v. Strohl, 226 Pa.Super. 245, 311 A.2d 708 (1973); Commonwealth v. Trapp, 217 Pa.Super. 384, 272 A.2d 512 (1970). Therefore, trial counsel’s avoidance of the possibility of prejudice to appellant by not seeking a March, 1976 trial date was a reasonable course of action that was designed to protect appellant’s best interest. The Commonwealth, therefore, was entitled to an extension of time under Pa.R.Crim.P. 1100(c), Commonwealth v. Hill, supra, and counsel’s failure to oppose the requested extension does not constitute ineffectiveness. There has been no prejudice to appellant and both his counsel and the Commonwealth brought him to trial as soon as was consistent with his best interest after he requested a continuance and well within the extended run-date.

Order affirmed.