author: MONTGOMERY, Judge.

text:
    454 A.2d 60
    COMMONWEALTH of Pennsylvania v. Roger HAMMOND, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1982.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Denied April 14, 1983.

      William T. Cannon, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

Appellant was convicted, by a jury, of voluntary manslaughter and possession of an instrument of crime. Following the denial of his post verdict motions, appellant was sentenced to consecutive terms of imprisonment of five (5) to ten (10) years for voluntary manslaughter, and two and one-half (2V2) to five (5) years for possession of an instrument of crime. This appeal raising several assignments of error followed.

Appellant first alleges that evidence resulting from an “intercepted communication” was improperly introduced and admitted. During the trial the victim’s sister testified that approximately six (6) days prior to the shooting of the decedent, appellant called the decedent, his estranged wife, at her mother's home. Ms. Sturdevant, the victim’s sister, further testified that she listened to the conversation on an extension telephone without the consent of her sister or appellant. She heard appellant tell his wife that he had intended to kill her when he saw her with William Dowdy, her boyfriend, a few days prior to the telephone conversation. A timely objection to this testimony was made by defense counsel, but overruled by the trial court. The objection, and appellant’s present claim, was based upon the Wiretapping and Electronic Surveillance Act (hereinafter “the Act”).

Counsel argued then, as he does now, that Ms. Sturdevant violated the Act by listening in on the conversation without the consent of the parties. As a result, he asserts that the evidence should not have been admitted. In presenting his argument, appellant relies on this court’s opinion in Commonwealth v. Baldwin, 282 Pa.Super. 82, 422 A.2d 838 (1980). We are not, however, persuaded by appellant’s position.

Baldwin interpreted the Pennsylvania Anti-Wiretap Statute as prohibiting listening in on or overhearing a telephone conversation via a telephone extension without the consent of the conversors. This conclusion was reached by the court after they determined that such actions constituted an “interception” of the conversation. Notably, however, this court was interpreting the Act of 1972, which was applicable to the issue in Baldwin as the present Act became effective after the incident at issue therein occurred.

The Act of 1972 at 18 Pa.C.S.A. § 5702 stated that: “A person commits a misdemeanor of the second degree if he:
(1) intercepts without permission of the parties to the communication a message or other communication by telephone or telegraph...”

The Baldwin decision was premised on the fact that based upon the definition given above, only two elements need be proven to establish a violation: (1) interception of a telephone communication, (2) without the permission of the parties. The Act of 1972 contained no further provisions or definitions which would exempt the behavior in Baldwin or in the instant case.

Section 5702 of the Act of 1978, which is applicable to the matter now before us, defines “intercept” as the

“[a]ural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device.”

Standing alone, this definition may be interpreted as including the act of eavesdropping on an extension. When read in conjunction with the definition of an “intercepting device”, however, that possible interpretation is negated.

At 18 Pa.C.S.A. § 5702, an intercepting device is defined as

“[a]ny device or apparatus ... that can be used to intercept a wire or oral communication other than:
(1) any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a communication common carrier in the ordinary course of its business, or purchased by any person, and being used by the subscriber, user, or person in the ordinary course of its business...” [Emphasis added]

This definition makes it clear that a telephone extension is not to be categorized as an intercepting device.

If a telephone is not an intercepting device under the present Act, it then follows that the use of the instrument in the manner employed by Ms. Sturdevant does not constitute an interception.

As the legislature obviously intended to exclude eavesdropping as a violation, we find no reason to rule contrary to that intent and the clear statutory language. The testimony of Ms. Sturdevant was, therefore, properly admitted into evidence as it did not result from a violation of the Act of 1978.

Appellant next asserts that the lower court erred in denying his motion to suppress his statement despite the Commonwealth’s purported failure to establish that he was informed of the charges against him, and the purported failure to give him his Miranda rights.

After being located by the police on the day of the shooting, appellant was taken to Northwest Detective Division. At that point in time, the police were not aware that the victim had died as a result of her wounds. Therefore, appellant was informed by Detective Hahn that he was being charged with simple and aggravated assault, recklessly endangering another person and weapons offenses. Appellant was then given his Miranda warnings, during which the detective assigned to the investigation, Detective Kennedy, was called from the room to receive a telephone call. The caller informed Detective Kennedy that the victim had died. Kennedy returned to the room immediately following the completion of the warnings and informed appellant that the questioning concerned the shooting of Dorothy Hammond who had died as a result of the gunshot wounds.

When Kennedy asked appellant if he still desired to talk, appellant responded affirmatively and proceeded to give a one page statement admitting the shooting. Approximately ten minutes after the Miranda warnings were given, the interview was concluded.

At the request of homicide detectives, appellant was transferred to the Homicide Division at another physical location. Appellant was again questioned about the shooting, a scant one hour and forty-five minutes following the administration of the Miranda warnings, by Detective Kennedy with a homicide detective present as an observor. Appellant agreed to give a further statement. The interview, in which appellant explained how he had come to be at the deceased’s home, lasted approximately ten minutes. No Miranda warnings were given during this interview.

In the first half of appellant’s two-fold argument, he asserts that he was not informed that he would be charged with murder during the first interview. We do not agree. At the least, an implication of such a charge is present on the record due to the information concerning the victim’s death which was given to appellant by Detective Kennedy prior to questioning.

In Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553 (1977), which is cited as support by appellant, two separate incidents which may have led to the questioning of Dixon existed. The Supreme Court found that Dixon’s waiver of her Miranda rights was invalid as she misapprehended which of two offenses the police were investigating when she was questioned. Dixon is not applicable to the matter before us as appellant was being questioned regarding one incident, not two separate transactions.

In order to validly waive his Miranda rights, a suspect must have an awareness of the general nature of the transaction giving rise to the investigation. Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), accord, Commonwealth v. Hart, 266 Pa.Super. 190, 403 A.2d 608 (1979). Knowledge of the technicalities of the offense is not needed, but the suspect must have knowledge of the transaction. Commonwealth v. Hart, supra.

As appellant was given specific information as to the transaction he was being questioned about and the death of his wife, we find such knowledge to be sufficient to constitute a valid waiver.

The latter half of appellant’s argument regarding this issue concerns the second statement he gave to the police after being moved to another physical location—the Homicide Division. Prior to the second interview, he was not given his Miranda rights.

Miranda warnings need not be given prior to each interview, but the totality of the circumstances must be considered to determine whether rewarnings are necessary. Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971); Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977). The totality of the circumstances includes the length of time between the warnings and the challenged interrogation, whether the interrogation was conducted at the same place where the warnings were given, whether the officer who gave the warnings also conducted the questioning, and whether the statements obtained are materially different from other statements that may have been made at the time of the warnings. Commonwealth v. Ferguson, supra; Commonwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971).

In the instant matter, the warnings occurred one hour and forty-five minutes prior to the challenged statements. Both statements given by appellant were substantially the same. In the first statement, appellant admitted to shooting his wife. The admission was again made during the second interrogation, and appellant supplied additional information as to specifics. Although one detective administered the Miranda warnings and another detective conducted the interrogation, the interrogator handled both interviews. Despite the change in locale, we find that the other circumstances—particularly the short period of elapsed time between the administration of the warnings and the second statement, and the consistency of the interrogator—render the admission of the second statement into evidence valid.

Appellant also alleges that the lower court erred in restricting his cross-examination of a Commonwealth witness, William Dowdy. During trial, Dowdy testified that he heard appellant tell the victim immediately before the shooting, “I told you I was going to kill you.” Defense counsel attempted to impeach him with a pre-trial statement taken immediately after the crime which made no mention of appellant making such a statement.

The extent of cross-examination is within the discretion of the trial judge, who will not be reversed except for a clear abuse of discretion or an error of law. Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976); Commonwealth v. Rhem, 283 Pa.Super. 565, 424 A.2d 1345 (1980). In determining the extent of cross-examination, the trial judge may consider whether the cross-examination would be likely to conflict or mislead the jury. Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978).

During trial, defense counsel’s attempt to impeach Dowdy was by way of implying an inconsistency in his testimony when in actuality there was none. We do not view an omission as one and the same as an inconsistency. Thus, the trial court properly exercised its discretion by not allowing the proposed cross-examination.

Appellant next asserts that the lower court erred in allowing the prosecutor to display the victim’s blood-stained clothing before the jury, and in admitting a, purportedly, highly inflammatory photograph into evidence. Specifically, appellant argues that the jacket worn by the victim at the time of the shooting was inflammatory due to bullet holes and old, dried blood stains in and on it. The jacket was used by a chemist testifying for the Commonwealth for reference. It was not examined by the jury. Instead, the witness used his own body to describe the entry of the bullets into the victim.

The record reveals that the victim was shot five times from a distance of less than twelve inches. As the witness merely used the jacket for reference while describing the entry of those five shots, we cannot find that this use was inflammatory. It is proper to employ clothing of a victim to illustrate oral testimony as to the nature and violence of an attack. Commonwealth v. Nahodil, 462 Pa. 301, 341 A.2d 91 (1975); Cf., Commonwealth v. Oates, 269 Pa.Super. 157, 409 A.2d 112 (1979); and, Commonwealth v. Phillips, 273 Pa.Super. 321, 417 A.2d 669 (1979).

As to the photograph which appellant claims was highly inflammatory, we find no evidence on the record to support that contention. The photograph was black and white and depicted the crime scene after the removal of the victim. A small stain was shown in the photograph, but had to be identified as blood by one of the police officers who originally arrived on the scene. The photograph was used as an aid in presenting the testimony of those officers and the eyewitness, Dowdy. It was also used during the cross-examination of appellant.

The mere existence of blood in a black and white depiction of a crime scene does not render a photograph inflammatory. Commonwealth v. Miller, 268 Pa.Super. 123, 407 A.2d 860 (1979). The receipt of such a photograph is properly within the discretion of the trial court when it is not inflammatory and has significant probative value to show location and other specifics of the crime. Commonwealth v. Oates, supra. The trial court’s admission of the photograph was, therefore, proper.

Finally, appellant contends that the lower court erred in permitting the prosecution to cross-examine his character witnesses concerning a prior conviction. The prior conviction was that of appellant. Approximately fourteen years prior to the trial in the instant case, appellant was convicted of attempted assault and served two years for that conviction. A string of character witnesses testified that appellant enjoyed a good or excellent reputation as a peaceful, law-abiding citizen. During cross-examination, each witness admitted to having no direct or indirect knowledge of appellant’s prior conviction.

The cross-examination of a character witness for the defense regarding the defendant’s prior criminal record is not an abuse or discretion as the defense opens the door to such an inquiry by placing his reputation at issue in calling such witnesses. Commonwealth v. Mayfield, 262 Pa.Super. 96, 396 A.2d 662 (1978) (Opinion in Support of Affirmance); Commonwealth v. Hodge, 270 Pa.Super. 232, 411 A.2d 503 (1979). Even with the adoption of this approach, concerns may arise when the impeachment tool is as remote in time as that at issue herein. Commonwealth v. Mayfield, supra (Opinion in Support of Reversal by Spaeth, J.)

The record evinces that those character witnesses who were questioned about the prior conviction knew appellant for, at the most, eleven years, and, at the least, three years.

This sole prior conviction occurred in the state of Virginia in 1966. All of the character witnesses testified to having met appellant subsequent to 1966. It is not unlikely that appellant reformed after serving two years, and subsequently enjoyed a reputation as a peaceful and law-abiding citizen as testified to by his witnesses. Under these circumstances, the remoteness of the conviction may outweigh its effectiveness as a tool of impeachment, and may have served only to prejudice appellant. See, Commonwealth v. Mayfield, supra (Opinion in Support of Reversal by Spaeth, J.)

Any error which may have been committed by the trial court in allowing this line of cross-examination, however, was harmless. Appellant, in testifying on his own behalf, admitted to shooting his wife. He was charged with and tried for, inter alia, murder, voluntary manslaughter and involuntary manslaughter. He asked the jury for a finding of voluntary manslaughter and received it. If the prejudice which may have attached from the impeachment process was as harmful as appellant maintains, a verdict of guilty of murder could have been returned. As a result, we find that any error which attached to the use of appellant’s prior conviction to impeach his character witnesses was harmless.

Judgment of sentence affirmed.

      . Act of 1978, October 4, P.L. 831, No. 164, § 2, effective in 60 days, 18 Pa.C.S.A. §§ 5701-5726.

      . Act of 1972, December 6, P.L. No. 334, § 1, effective June 6, 1973, 18 Pa.C.S.A. §§ 5701-5705, as amended. Repealed by the Act of 1978, October 4, P.L. 831, No. 164, § 1, 18 Pa.C.S.A. §§ 5701 et seq.

      . Section 5705 of the 1972 Act specifically defined eavesdropping with electronic, mechanical or other devices as a crime. The repeal of the Act of 1972, and the promulgation of the Act of 1978 did not result in any statutory language regarding the offense of eavesdropping.

      . Section 5721 of the Act of 1978 clearly states that a motion to suppress may be made if, "[t]he communication was unlawfully intercepted ...” Based upon our finding of no unlawful interception, a motion to suppress was not in order; and, it therefore follows that the ruling that the evidence was admissible was proper.

      . The defendant in Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553 (1977) initially thought that she was being questioned about her failure to make restitution as a result of a malicious mischief charge, when in fact she was being questioned about the murder of her son.

      . The following definitions as found in Webster's New International Dictionary of the English Language, Second Edition, Unabridged, lend ample support to this conclusion:
      Omit: 1. To leave out or unmentioned; not to insert, include, or name.
      Omission: Act or instance of omitting.
      Inconsistent: 1. Not consistent; incompatible; incongruous; inharmonious; specifically, of propositions, ideas, beliefs, etc., so related that both (or all) cannot be true ...; as, inconsistent statements.

      . An evenly divided court resulted in an affirmance in Commonwealth v. Mayfield, 262 Pa.Super. 96, 396 A.2d 662 (1978).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    454 A.2d 66
    COMMONWEALTH of Pennsylvania v. Gary CHEATHAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 15, 1981.
    Filed Dec. 10, 1982.

      Louis J. Presenza, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.

      . This case was reassigned to the above-named panel on October 21, 1982.

   PER CURIAM:

On March 1, 1977, appellant was convicted, after a jury trial, of rape and involuntary deviate sexual intercourse. Judgment of Sentence was affirmed in a direct appeal to this Court. Commonwealth v. Cheatham, 261 Pa.Super. 401, 395 A.2d 964 (1978). On January 26, 1979, appellant’s Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court.

On September 2, 1980, appellant filed a pro se petition for relief under the Post-Conviction Hearing Act (PCHA), alleging that he had been denied effective assistance of counsel. He also alleged that he was indigent and requested that counsel be appointed to represent him.

On March 10, 1981, the trial court denied appellant’s petition without a hearing and without appointing counsel, concluding that appellant’s claim was without merit.

An initial pro se petition filed by an unrepresented PCHA petitioner may not be summarily denied without the appointment of counsel, if counsel is requested, unless the same issues have been previously adjudicated adversely to petitioner in a counseled proceeding or one wherein he has knowingly waived the right to counsel. Commonwealth v. Lee, 494 Pa. 216, 431 A.2d 226 (1981). The issue raised by appellant in his petition has never been ruled on by any court. Therefore, since appellant alleged indigency and requested the appointment of counsel, the PCHA court was required to determine whether appellant was in fact indigent and, if so, to appoint counsel to assist him in presenting his petition. Id.

The fact that the issue raised in the pro se petition appeared to lack arguable merit is not determinative. Only after counsel has had an opportunity to review and amend the petition should a decision be made as to whether to grant a hearing. Commonwealth v. Williams, 266 Pa.Super. 118, 403 A.2d 122 (1979).

Therefore, we will reverse the order and remand this case to the PCHA court. The court will first determine if appellant is indigent. If so, counsel will be appointed and will be given an opportunity to file an amended petition for relief.

Order reversed and case remanded for further proceedings.

Jurisdiction relinquished.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53 § 2(a) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2 delaying repeal until June 27, 1981 as further amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 417, No. 1982-122, § 3, replaced by 42 Pa.C.S. § 9541 et seq.


author: PRICE, Judge: CAVANAUGH, Judge,

text:
    454 A.2d 67
    MARINE NATIONAL BANK v. NORTHWEST PENNSYLVANIA BANK & TRUST COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Dec. 17, 1982.
    Petition for Allowance of Appeal Denied June 8, 1983.

      Robert S. Bailey, Meadville, for appellant.
    Walter A. Dart, Jr., Erie, for appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   PRICE, Judge:

This is an appeal in an action to quiet title to rentals due under a lease. We modify and, as modified, we affirm.

Anne and Myron Brink (“debtor-lessors”) owned an undivided one-half interest in a certain tract of land together with a commercial building erected thereon. In 1973, this property was leased for a period of ten (10) years to a joint venture doing business as Edinboro Donuts (“tenants”). Debtor-lessors at all pertinent times owed both appellant and appellee substantial sums of money.

On December 12, 1974, appellee Marine confessed a judgment against debtor-lessors. By reason of 41 P.S. § 407, Marine was precluded from executing on this judgment until it had filed and proceeded to judgment in an independent action. That statute contemplates that the subsequent judgment will then “merge” with the earlier confessed judgment. 41 P.S. § 407(a).

On May 30, 1975, appellant entered judgment against debtor-lessors and filed a Writ of Execution together with interrogatories in attachment to the tenants. On June 24, 1975, tenants answered that they owed the debtor-lessors rent for the remaining term of the lease.

On November 18, 1975, appellant entered judgment against tenants in the attachment proceedings for the rentals due and owing and to become owing to debtor-lessors. No execution was ever issued on this judgment.

Also on November 18, 1975, Marine secured its final merged judgment against debtor-lessors under 41 P.S. § 407. On April 1, 1976, Marine finally issued a Writ of Execution on its judgment. On May 14, 1976, the Sheriff sold all that real property constituting debtor-lessors’ undivided one-half interest to the high bidder, Marine.

Marine then brought this action to quiet title to the unaccrued rents due from the tenants for the remaining term of the lease.

The court below, per Judge Pfadt, held that appellant Northwest was entitled to the remaining rentals due because Marine’s prior judgment became a lien only as to debtor-lessors’ real property and, further, the unaccrued rents were not real property but rather were personal property as to which Marine’s prior judgment did not become a lien before Northwest had attached the rentals due and to become due. Opinion and Order of November 7, 1978 at 5-7.

On review by the court en banc, this determination was reversed on the grounds that Northwest’s writ of attachment was only effective “until judgment” under Rule 3111(b), Pa.R.Civ.P. Opinion and Order of January 29, 1980. The court en banc ordered that the rents due “from November 18, 1975” should go to Marine and all prior rents should go to Northwest under its writ of attachment.

Appellant first argues that Marine did not argue Rule 3111(b) to Judge Pfadt and therefore that Marine failed to properly raise and preserve that point for appeal. The unstated premise for this argument is that Rule 1038, Pa.R.Civ.P., states that “matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters.”

Since the trial judge’s opinion is only interlocutory, the “final judgment” referred to in Rule 1038 is the determination by the court en banc. First Valley Bank v. Steinmann, 253 Pa.Superior Ct. 8, 12, 384 A.2d 949, 951 (1978). We hold that the en banc panel’s actions constituted constructive compliance with the proviso of Rule 1038, Pa.R. Civ.P. The “Supplemental Briefs” filed had the force and effect of filing, with leave from the en banc panel, additional exceptions raising the applicability of Rule 3111(b)’s limiting language. See generally Pomerantz v. Goldstein, 479 Pa. 175, 177, 387 A.2d 1280, 1281 (1978).

Moreover, Judge Pfadt himself quoted Rule 3111(b), Pa. R.Civ.P., at length, albeit for a contrary conclusion. Opinion and Order of November 7, 1978 at 7. To hold that the force and effect of this rule quoted and relied on by both the trial judge and the en banc panel was waived by the failure to file an exception specifically raising that rule’s limitations in haec verba given the “Supplemental Briefs” filed addressing that very issue would ignore the substance of the proceedings below.

We also hold that Marine’s first exception substantially raised the issue of the priority between the attachment creditor and the prior judgment creditor. It is not necessary to raise authorities in support of exceptions in the exceptions. It is only necessary to raise the issue.

We are next urged, by appellee, that the purchaser of real estate at a Sheriff’s sale is entitled to all rentals which accrue after the sale and that it has always been thus. This argument, however, assumes that the execution and Sheriff’s sale of the real property were not subject to the prior attachment and conveyed the right to unaccrued rents as part of the real estate. This being a large portion of the question presented, this argument, while perhaps historically sound, begs the question. More particularly, property which has been attached is in custodia legis, 10 Goodrich-Amram, Std.Pa.Prac., Attachments, § 87 (collecting cases at 132, n. 10), § 127 (collecting cases at 188, n. 2) and § 301 (collecting cases at 375, n. 3); see also In Re Consol. Container Carriers, Inc., 385 F.2d 362, 364 (3d Cir.1967) (Pa. Law), aff'g, 254 F.Supp. 605, 607 (E.D.Pa. 1966), and is therefore immune to execution. Commonwealth v. Myers, 298 Pa.Superior Ct. 272, 444 A.2d 1170, 1175 (1982).

Property so attached remains in custodia legis until the attachment is properly dissolved. By its own force, the writ of attachment continues in effect “until judgment” under Rule 3111(b), Pa.R.Civ.P. At that point, should judgment be for plaintiff, the prior attachment is merged in that judgment.

The legal force and effect of the merged writ of attachment in the subsequent judgment is at the heart of the dispute in this case. Appellant claims that the writ of attachment continues in effect automatically and appellee contends that the writ simply dissolves.

We disagree with both parties. The attaching creditor’s rights may be continued in the attached property after judgment in the garnishment proceeding has been rendered in favor of the plaintiff therein, but this must be done by execution process on the judgment against the garnishee under Rule 3148, Pa.R.Civ.P. This is what was meant in Lewycka v. Springfield Mut. Ins. Co., 201 Pa.Superior Ct. 341, 344, 191 A.2d 925, 926 (1963), when it was said that the judgment against the garnishee “created a vested right in this plaintiff.” That right was the right to have execution issue against the property in the garnishee’s hands due to the judgment debtor.

No such process was sought below. As such, we conclude that the attachment was properly dissolved after judgment had been rendered and therefore that the Sheriff’s sale conveyed the real property free of the prior attachment.

That brings us to the question whether the right to unaccrued rents was part of the real property conveyed by the Sheriff or was personal property unaffected by the Sheriff’s sale. The right to accrued rents is a personal property right. II Casner, American Law of Property, § 9.41 at 455; 49 Am.Jur.2d, Landlord & Tenant, § 515 at 495. The right to unaccrued rents is, however, an “incorporeal hereditament” and part of the reversionary real property. Id. While it is true that both accrued and unaccrued rents may be severed from the reversion and assigned, 49 Am.Jur.2d, supra, at § 528, at the time the judgment lien attached, the unaccrued rents were as much real property subject to that lien as any other real property of the judgment debtor. While the attachment “works an equitable assignment of the debt owed to the judgment debtor”, Wheatcroft v. Smith, 239 Pa.Superior Ct. 27, 32, 362 A.2d 416, 419 (1976), that assignment was itself subject to the prior lien to the extent that the rent remained “unaccrued” at the time of execution, just as a sale of any other real property of a judgment debtor after a judgment is entered is subject to the judgment creditor’s prior lien. See generally 20 Pa. Law Encyc., Judgments, § 38 at 536 (collecting cases at nn. 14-16).

The judgment below may not, however, be affirmed in toto, for it entitled Marine to the rents from “November 18, 1975.” In its Complaint, however, Marine only asked for the rentals from May 14, 1976, the date of the Sheriff’s sale.

Rule 1066, Pa.R.Civ.P., provides the proper form of judgment in an action to quiet title:

Upon granting relief to the plaintiff, the court (1) shall order that the defendant be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interest or claim of the plaintiff set forth in his complaint____

Rule 1066(b)(1), Pa.R.Civ.P.

Since relief in an action to quiet title is thus limited to that prayed for in the Complaint, we conclude that the judgment below must be modified to provide that Marine is entitled only to the rentals from the date of the Sheriff’s sale, May 14, 1976, and not from November 18, 1975.

In all other respects, the action of the trial court is affirmed and the matter is remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

CAVANAUGH, J., files a concurring statement.

HOFFMAN, J., concurs in the result.

CAVANAUGH, Judge,

concurring.

I concur in the majority’s result only, that is, that appellee Marine National Bank is entitled to the rents in question commencing from May 14, 1976.

      . No issue as to the effect, if any, of this statute on Marine’s previously confessed judgment was either raised, preserved, argued or presented in this court or below.

      . This rule is applicable to actions to quiet title by virtue of Rule 1067, Pa.R.Civ.P.

      . The attaching creditor himself may of course have execution under Rule 3148, Pa.R.Civ.P., against previously attached property once he has obtained a judgment against the garnishee.

      . See 4 Goodrich-Amram 2d Std.Pa.Prac.: Procedural Rules Serv., § 1260(c)(1) at 157-158.

      . See also 3 Goodrich-Amram 2d. Std.Pa.Prac.: Procedural Rules Serv., § 1066(b)(3) at 71, n. 48.

      . This determination is reviewable since the en banc court was the first to indulge this error and appellant complains of it on this appeal from that error in appellant’s br. at 19.
      An equally viable avenue to review of this matter is also provided by the doctrine that appellate courts may notice errors “such as appear on the face of the record", In Re Frankstown Tp. Road, 26 Pa. 472, 473 (1856).


author: CAVANAUGH, Judge:

text:
    454 A.2d 71
    TOWNSHIP OF MIDDLETOWN, Appellant, v. FRIED & GERBER, INC., Irvin Fried and Albert D. Gerber.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1981.
    Filed Dec. 17, 1982.

      Paul M. Lewis, Philadelphia, for appellant.

      Gilbert J. Golding, Morrisville, for appellees.
    Before CAVANAUGH, DiSALLE and WATKINS, JJ.
   CAVANAUGH, Judge:

We consider on appeal the trial court’s order granting a petition to strike a judgment which had been taken in favor of appellant, Township of Middletown and against appellee, Irvin Fried.

The instant action is a suit to recover amusement taxes allegedly due the township as the result of revenues from auto races conducted at the Langhorne Speedway in Bucks County. The complaint filed in June of 1970, alleged that Fried was President of Fried and Gerber, Inc. and that he, together with the other defendants, was liable to the township for substantial sums representing amusement tax revenue. Fried was never served with the complaint, although service was made upon the co-defendants Fried and Gerber, Inc. and Albert Gerber. After the filing of the complaint, the defendants met with their attorney, John W. Dean, III, concerning defense of the suit. There were some preliminary discussions with the attorney for the township, Mr. Nathan, but the matter laid at rest until October 1971 when Nathan advised Dean’s office that he intended to proceed with the litigation. Shortly thereafter, Donald B. McCoy, Esquire, on behalf of the law firm of Dean and McCoy, filed an appearance for all three defendants and filed preliminary objections to the complaint on behalf of all defendants. Again the matter went into repose, and it was about five years later when counsel for the township notified attorney McCoy of his renewed intention to puruse the case. The township then proceeded without response from defendants to seek and obtain a dismissal of the 1971 preliminary objections and thereafter it obtained a default judgment against defendants for want of an answer, since at that time there were appearances on behalf of all defendants of record and no responsive pleadings. The matter in course proceeded to the assessment of damages against the defendants in the sum of $82,852.02 in August of 1977. Appellee Fried petitioned to strike the judgment in Decernber of 1977. After submission of depositions taken of Fried, Dean, McCoy and Nathan, the court entered its order striking the judgment from which the township has filed this appeal.

The first argument which we treat on appeal is that since the court considered matters extrinsic to the record, it should not have entered an order to strike the judgment under Pennsylvania law. Since the record admittedly shows that there has been an appearance entered on behalf of Fried and since the appellee’s claim is that the appearance was unauthorized, the court of necessity had to consider the depositions and other material taken in support to the motion to strike the judgment in reaching the conclusion that the appearance was unauthorized, thereby striking the judgment. It is often repeated in Pennsylvania cases that a petition to strike a judgment is a common law proceeding and operates as a demurrer to the record and that a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. If the record is self-sustaining the judgment will not be stricken and matters dehors the record will not be considered. Kophazy v. Kophazy, 279 Pa.Super. 373, 421 A.2d 246 (1980). See also Parliament Industries, Inc. v. Vaughan Company, 287 Pa.Super. 458, 430 A.2d 981 (1980); Bethlehem Steel Corporation v. Tri-State Industries, Inc., 290 Pa.Super. 461, 434 A.2d 1236 (1981); J.F. Realty Company v. Yerkes, 263 Pa.Super. 436, 398 A.2d 215 (1979); Equibank v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981). Moreover, we are precluded from considering this matter as a petition to open judgment because, initially, the original petition here was only a petition to strike and that is the remedy which the court allowed, and secondly, since in Kophazy, supra, a panel of our court after a review of the cases concluded that trial courts may not sua sponte convert a petition to strike into a petition to open. The court held:

We therefore hold that a lower court commits error when it sua sponte converts a petition to strike a judgment into a petition to open a judgment and grants relief without first giving the opposing party the opportunity to contest the petition to open as a petition to open. Since that is what the lower court did here, its order must be reversed.

279 Pa.Super. at 380, 421 A.2d at 250.

Certainly, if the trial court is prohibited from a conversion on the basis of giving the opposing party fair notice, we may not do so on appeal.

It follows then that the order of the trial court may only be affirmed if this case is an exception to the rule that in determining a motion to strike no evidence outside the record may be considered. In the case of Bryn Mawr Bank v. James, 152 Pa. 364, 25 A. 823 (1893), decided in 1893, Mr. Chief Justice Paxson wrote (we include the entire opinion due to its brevity):

Opinion by Mr. Chief Justice Paxson, January 16, 1893:
The only specification of error is, that the court below erred in striking off the judgment which had been entered in favor of the plaintiff. The appellant’s paper book does not give us the entire record necessary to an intelligent understanding of the case. The appellee, however, has given us the affidavit of the defendant upon which the court granted the rule to strike off the judgment, by which it appears that the first knowledge that the defendant had that a suit had been brought against her was the execution issued upon the judgment; that one John J. Clark, attorney at law, had accepted service of the writ and statement issued and filed therein as attorney for the defendant; that the said John J. Clark was not her attorney; that she had never consulted him professionally in respect to the said suit, and that he had no authority from her to accept service as her attorney of such writ and statement. While the court may not, as a general rule, strike off a judgment, regular upon its face, yet it may do so where a judgment has been entered wholly without authority. The judgment so entered is no judgment at all, so far as it affects the rights of the defendant. In this case the question of fact, as to the authority of the attorney, has been decided by the court below in favor of the defendant. We must presume it to have been correctly decided in the absence of anything to show the contrary.

Judgment affirmed.

It is tempting to quibble with the decision in Bryn Mawr Bank for it takes a tidy rule which says, “if you must go outside the record then you must pursue your remedy by a petition to open judgment and you may not proceed by a petition to strike the judgment” and makes a troublesome exception. Moreover, Bryn Mawr was a case where the court was lacking a sufficient record on appeal to allow the court, “an intelligent understanding of the case” and indeed, our examination of the paper books (as they were entitled in those days) for appellant Bryn Mawr discloses a simple ten line argument citing only a single case. The court was obviously impressed by the affidavit furnished in appellee’s paper book wherein Emma James swore that the attorney who had entered an appearance on her behalf thereby enabling the default was not in fact her attorney; that she had never consulted him and that she first learned of the suit against her when execution was issued upon the judgment. The deposition of John J. Clarke, the attorney who accepted the writ on Emma James’ behalf, was taken and he admitted to the lack of authority. Nevertheless, Bryn Mawr has never been overruled and is therefore authority for the proposition that if the judgment is based upon an unauthorized entry of appearance or acceptance of service, then extrinsic evidence may be submitted to show the lack of authority on the part of the attorney. The lower court, then, could consider extrinsic evidence in making the determination that in entering an appearance and filing preliminary objections, Attorney McCoy acted without authority from Fried. And in fact, the court did so con-elude. The court in its opinion stated that it was established that the relevant papers purported to be on Fried’s behalf because of a “clerical error” in copying the caption of the entry of appearance and preliminary objections from the caption of the complaint, and cites the fact that the affidavit to the preliminary objections was signed only by Gerber, thereby supporting the testimony as to the clerical error. It is true that when Attorney McCoy filed the Petition to Strike Off Judgment he alleged in the petition and filed an affidavit to the effect that he was specifically instructed not to enter an appearance by Mr. Fried and that despite this instruction through “secretarial oversight” an entry of appearance was filed including the name of Fried. It is further alleged that the caption of the complaint was merely transposed onto the entry of appearance form. However, at a later date the testimony of Attorney McCoy was taken. At that time he stated that he was called into a conference in the summer of 1970 after the suit had been filed and met with his associate Dean and the defendants, Fried and Gerber. At that time it was decided that the strategy would be for him to prepare preliminary objections to the complaint but to hold them in the file pending further developments. The preliminary objections were then prepared and were filed by McCoy over a year later together with an entry of appearance when it appeared that opposing counsel was again preparing to push the matter. Mr. McCoy at that time assumed that Mr. Fried had been served. The appearance was for Fried and the preliminary objections repeatedly refer to Mr. Fried in the body of the pleading as well as the caption. Mr. McCoy testified that they were prepared under his direction. Thus, contrary to the court’s findings, the relevant testimony contains nothing about a clerical error but rather demonstrates that the papers were prepared with the full intention of including Mr. Fried as party thereto. The court could not accept the averments of a pleading which contradict the subsequent sworn testimony of the crucial witness on the issue of authority. We, therefore, conclude that the premise on which the court found lack of authority is in error.

We must reverse when we find that the evidence does not justify and sustain the conclusions of the court below. Lawner v. Engelbach, 433 Pa. 311, 249 A.2d 295 (1969). Since the basis on which the court granted the petition to strike is invalid, we reverse and reinstate the judgment.

Appellant also asserted below that Attorney Dean had accepted service on behalf of Fried thereby submitting to the jurisdiction of the court. The argument here is that Fried having authorized acceptance of service on his behalf without thereafter answering or otherwise pleading subjected himself to the default judgment. The lower court considered the testimony of Fried and the attorneys, as well as letter communications, in making a determination that there was no acceptance of service. In view of our disposition, however, that the order to strike the judgment is not supportable and the ground relied upon by the trial court, we think it would not be prudent to examine this issue at this time since neither party nor the lower court considered the acceptance of service problem in the context of the limitations upon a motion to strike.

Reversed and remanded. Jurisdiction is relinquished.

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

      . A close reading of cases citing Bryn Mawr shows that for the most part they are cases which did not necessarily, as in Bryn Mawr, include consideration of material outside the record. In Mullen v. Slupe, 360 Pa. 485, 62 A.2d 14 (1948), the court stated: (with respect to a document attached to the petition to strike which the court considered) "Nor did the authenticated registration constitute matters dehors the record. The official public information which the defendants thus introduced by their amended petition supplied a patent omission with respect to material manner (sic) which it was the plaintiffs’ duty to establish in lumine and for which their declaration actually gave the source reference.” In Citizens National Bank v. Hileman, 233 Pa. 432, 82 A. 770 (1912), the note upon which the judgment was taken was marked “paid” and the Supreme Court simply enforced that and struck the judgment since the note “ceased to be in itself a valid obligation”. The court in Wilkinsburg Boro v. School District, 298 Pa. 193, 148 A. 77 (1929) concluded from an examination of the claim filed that it was not based on any statutory imposition of liability, a necessary basis for the suit. Romberger v. Romberger, 290 Pa. 454, 139 A. 159 (1927) involved a judgment void on its face. In Saupp v. Streit, 258 Pa. 211, 101 A. 939 (1917) the impropriety of the entry of judgment as to the petitioner was apparent from an examination of the record. But see Long v. Lemoyne Borough, 222 Pa. 311, 71 A. 211 (1908) where the court relying on Bryn Mawr did consider matters outside the record.

        Exler v. American Box Company, 226 Pa. 384, 75 A. 661 (1910) reversed an order striking a judgment because it was regular on its face and distinguished Bryn Mawr thusly, “It is only when the fact upon which the court is asked to strike off a judgment regular on its face is admitted or not questioned that it may be stricken off”. Citing Bryn Mawr; Long v. Lemoyne Borough, supra, and Humphreys v. Rawn, 8 Watts 78 (1839 Pa.). The same distinction was recognized in Lawrence v. Smith, 215 Pa. 534, 537, 64 A. 776 (1906), wherein the court stated:
      There are cases where the distinction has apparently been disregarded, but they will all be found to be cases where the facts which would constitute an irregularity in the judgment were undisputed, and the form of the remedy was unimportant. But, as said in O’Hara v. Baum [82 Pa. 416], “it is nevertheless important to observe the distinction in practice in all cases.”

        See also, S.D. Hall v. West Chester Publishing Company, 180 Pa. 561, 37 A. 106 (1897). Although these last cases present a basis for distinguishing Bryn Mawr from the present i.e. that when the fact though outside the record, is admitted or not questioned it may be considered on a petition to strike but not where, as in our case, the authority is disputed, we do not think that this is a distinction warranted by the broad language of Bryn Mawr. The Bryn Mawr decision does not make this distinction and speaks only in terms of a judgment entered wholly without authority and determined that the question of fact as to the authority of the attorney had been decided by the lower court. It is only from our examination of the paperbooks that we find the lower court really had no issue of fact to decide since the deposition of the attorney admitted that he had no authority to accept service. And Cf. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938) where the court citing Bryn Mawr commented that the distinction between motions to open and motions to strike have at times "not been observed.”


author: WICKERSHAM, Judge: LIPEZ, Judge,

text:
    454 A.2d 75
    William BOLAND, Appellant, v. Mary Pamela LESKA.
    Superior Court of Pennsylvania.
    Submitted June 21, 1982.
    Filed Dec. 17, 1982.
    Petition for Allowance of Appeal Denied March 22, 1983.

      Henry J. Lunardi, Philadelphia, for appellant.
    Jon C. Sirlin, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order of the Philadelphia County Court of Common Pleas, which awarded custody of Sean and Michael Boland to their mother, appellee Mary Pamela Leska. The pertinent facts and procedural history are as follows.

Mary Pamela Leska and William Boland were married in 1964 and divorced in March of 1976. During their marriage two children were born to them; Sean in 1971, and Michael in 1975. At the time of their divorce it was agreed between them that Mary Pamela Leska should have custody of the two boys. Both parents subsequently remarried; Mary to Gerald Leska, and William to Mary Rose Cunningham Boland.

On June 14, 1977, William Boland went to the Leska home, examined the boys and discovered some bruises on Sean: he then took Sean to the Children’s Hospital of Philadelphia where Sean was examined by Dr. Steven Ludwig. Dr. Ludwig thought the bruises might be the result of child abuse and so informed the local child protective services agency. William Boland took the boys to his home and refused to return them to the custody of their mother.

Mary Pamela Leska subsequently filed a petition for a writ of habeas corpus seeking the return of the boys to her custody. On September 26, 1977, after a hearing, Judge William J. Lederer ordered the boys returned temporarily to their mother’s custody. Numerous hearings were subsequently held at which many witnesses testified as to the boys’ abilities, progress and best interests. On August 1, 1980, Judge Lederer issued an opinion and order awarding custody of the boys to Mary Pamela Leska except on certain holidays and vacation periods when their father would have custody. This appeal followed.

Appellant Boland frames the first question involved as follows:

Did the Hearing Court Err as a Matter of Law by Refusing to Consider the Testimony of Numerous Witnesses for Appellant.

Brief for Appellant at 3.

Boland asserts that the hearing court did not consider the evidence of several witnesses based on the following quotation from Judge Lederer’s opinion:

The Court did not consider the testimony of witnesses Joan Taylor, Rosalind Ritchie, Sandra Calobrisi, Lois Roush, Reverend John Freeman and Dr. Anthony Pillegi on the issue of fitness or abusive conduct particularly germane or probative and was not persuaded in any direction by any of it.

Lower ct. op. at 75.

The lower court did not refuse to consider this evidence, as Boland asserts, but did consider it and did not find it particularly helpful.

“To constitute capricious disbelief [of a witness] there must be a willful deliberate disbelief of an apparently trustworthy witness, whose testimony, one of ordinary intelligence could not possibly challenge or entertain the slightest doubt as to its truth.” Giordano v. Bianco, 210 Pa.Super. 469, 473, 233 A.2d 623, 625 (1967).

Here, there is no evidence of such capricious disbelief of witnesses by the hearing court judge. The witnesses allegedly ignored by the hearing court were able to provide some information concerning the children, however, none of these witnesses provided information particularly germane to custody. The hearing court was correct in viewing the witnesses’ testimony as not particularly helpful.

Appellant Boland frames the second issue involved as follows:

Did the Hearing Court Manifest Prejudice, Bias, and 111 Will Toward Appellant by Summarily Returning Sean and Michael Boland to the Leskas on September 26, 1977.

Brief for Appellant at 3.

Boland asserts that the hearing court displayed a bias against him by ordering that the children be returned to their mother based on the record before it on September 26, 1977.

The basis of Boland’s claim that he should have custody of the two boys is that they were allegedly abused by Gerald Leska. The lower court concluded, in its findings of fact (Reproduced Record at 84-94), that the bruises and abrasions incurred by the boys were not the result of child abuse. As such allegations were the only basis for Boland’s claim, and the hearing court concluded no child abuse occurred, it is difficult to see how the hearing court abused its discretion in returning the children to their mother, who had custody of them before the allegations were made.

Appellant Boland frames the third issue involved as follows:

Did the Hearing Court Abuse its Discretion and Err as a Matter of Law in Evaluating Appellant’s Evidence of Child Abuse.

Brief for Appellant at 3.

Although an appellate court is not compelled to accept the hearing court’s determination in a child custody dispute, it will defer to such determination, absent an abuse of discretion, if the hearing court judge has thoroughly investigated the facts, that investigation is documented by a complete record and a comprehensive analysis is contained in his opinion. Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa.Super. 325, 328, 442 A.2d 791, 793 (1982). Here, the hearing court, in a ninety-seven page opinion, thoroughly reviewed the testimony concerning the alleged abuse of the two boys and concluded that the relatively minor injuries they had receive were generally the result of an assortment of typical childhood accidents and occurrences. Lower ct. op. at 61-71.

Two incidents, one resulting in a bruise on Sean’s neck and the other involving the slapping of Sean, were the subject of further consideration by the hearing court. The court found that the neck bruise resulted from Gerald Leska grabbing Sean by his pajama top as a result of his frustration at Sean’s refusal to answer his mother’s questions concerning a missing key. There was no intent to cause a bruise to Sean’s neck or otherwise injure him; Leska merely sought to show Sean that he was angry. The bruise was minor and required no treatment other than usual skin care. The slapping incident also occurred as the result of disciplinary measures. Sean had lost a sweater and Gerald Leska slapped him once on the face. Leska immediately apologized to Sean and acknowledged during his testimony that the slap was an inappropriate punishment. No observable physical injury resulted from the slap.

The hearing court concluded that neither incident constituted child abuse. We agree. Parents or guardians may use corporal punishment to discipline their children so long as the force used is not designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. 18 Pa.C.S. § 509(1); see also Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978). At some point, however, permissible corporal punishment no longer is such, but becomes malicious abuse; this point is reached when the parent or guardian acts with malicious intent in so punishing the child. Commonwealth v. Kramer, 247 Pa.Super. 1, 7, 371 A.2d 1008, 1011 (1977).

Presently, we find no evidence that Gerald Leska’s motives in administering corporal punishment to Sean were improper. Both instances considered closely followed errant behavior by the child and neither involved extreme force or was part of a repeated course of unwarranted punishment. There was no abuse of discretion by the hearing court.

Appellant Boland frames his final issue as follows: Did the Hearing Court Abuse its Discretion by delaying its decision for two years.

Brief for Appellant at 3.

In addressing this issue we note that the hearing court reinterviewed Sean on March 1, 1980, and subsequently issued its custody order and opinion on August 1, 1980. No new evidence of potential abuse of the boys, or any other evidence relevant to custody, was advanced during the period Boland complains of. We find no abuse of discretion.

The most important concern in any child custody case is the best interest and permanent welfare of the child. An appellate court must, in a custody matter, exercise an independent judgment based on the evidence and make such an order as right and justice dictate. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981).

We agree with the hearing court that both the Bolands and the Leskas have many fine qualities and that either household would be an excellent place for the boys to reside. A stable relationship with an established parental figure and a known physical environment is important to the development of a child. In deciding who should have custody of a child it is always essential to consider how long the child has spent with each of the parties. In the Interest of Tremayne Quame Idress R., 286 Pa.Super. 480, 493, 429 A.2d 40, 47 (1981). “[T]his court has long recognized that the removal of a young child from his environment is a factor which bears on its emotional well being____ Therefore, continued residence of children with one parent may be controlling.” Hugo v. Hugo, 288 Pa.Super. 1, 6, 430 A.2d 1183, 1185 (1981). See also In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982) (if custodial parent has taken care of child properly, court may surmise he will continue to do so) (Id., 304 Pa.Superior 82, 450 A.2d 111).

Both boys have lived with their mother since 1975, except for the short period in 1977 when their father took them. We agree with the hearing court that they have been properly cared for during this period and that to take them from their mother would be unnecessarily emotionally disruptive to them. It is in the best interests of the boys to remain in their current custody situation.

Order affirmed.

LIPEZ, J., files a concurring opinion.

LIPEZ, Judge,

concurring:

I agree generally with the majority’s analysis, and specifically with their conclusion that it is in the boys’ best interests that they remain in the custody of their mother. However, their use of an abuse of discretion standard (which appears in a number of this court’s opinions, as the majority opinion demonstrates) is incompatible with the broadest type of review and independent judgment effecting a just result mandated by a whole host of Supreme Court decisions. See, e.g., Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961). (“It is our duty not simply to determine from the record whether the trial court has abused its discretion but to examine all the evidence and render an independent determination.”) See also the rejection of the abuse standard in: panel opinion by Spaeth, J. in L.D. v. B.D., 291 Pa.Super. 589, 436 A.2d 657 (1981); concurring opinions by Spaeth, J. in Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa.Super. 325, 442 A.2d 791 (1982) and Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981); concurring opinion by Hoffman, J. in In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981); panel opinion by Brosky, J., in Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981). Nevertheless, the majority here expressly states that their independent review of the record confirms the finding of the hearing court, and I agree.

      . “[T]he order awarding custody is a final order, and, therefore, is the order from which any appeal to this court is to be taken____" In re Custody of Frank, 283 Pa.Super. 229, 233, 423 A.2d 1229, 1232 (1980). See also Ray v. Ray, 293 Pa.Super. 216, 438 A.2d 614 (1981) (appeal from order granting custody permitted.)
      Here, an order awarding custody of the children to appellee Mary Pamela Leska was entered on August 1, 1980. An appeal from the order was filed on August 27, 1980. This appeal is timely and proper.

      . While this standard of review has been criticized in Robert H.H. v. May L.H., 293 Pa.Super. 431, 434 n. 1, 439 A.2d 187, 189 n. 1 (1981), it has been cited with approval in a later case, In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). In any event, our independent review of the record confirms the findings of the hearing court.
      The concurring opinion criticizes the use of the standard of review enunciated in Commonwealth ex rel. Montgomery v. Montgomery, supra. The Pennsylvania Supreme Court has never specifically ruled on the standard, however, and we note that while the standard has been criticized, the cases following it have not been overruled or reversed on that basis.
      We emphasize that under an independent review of the record, conducted in conformance with the standard advocated in the concurrence, we reach the same conclusions reached by the trial court, and so conclude for the same reasons expressed below.
      It is difficult to conceive of circumstances in which the use of one standard or the other would lead to a different result. Under both standards the lower court is the finder of fact. It would be impossible for the hearing court to write a comprehensive analysis after a thorough investigation documented by a complete record that did not reach the same conclusions as an independent review by an appellate court: if the hearing court did reach a different conclusion in a case than the reviewing court it would only indicate that the hearing court’s investigation was not thorough enough, or that its analysis was not comprehensive enough, or that the record was not complete enough.

      . Michael was not interviewed because he is handicapped and unable to speak.

      . I too joined in one such opinion, In re custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). I now recant my error.


author: WIEAND, Judge:

text:
    454 A.2d 80
    Michael BRESLIN, a minor, by his parent and natural guardian, Charles BRESLIN, and Charles Breslin in his own right, Appellants v. Camille RIDARELLI and Robert Ridarelli.
    Superior Court of Pennsylvania.
    Argued March 31, 1982.
    Filed Dec. 17, 1982.
    Petition for Allowance of Appeal Denied April 4, 1983.

      James Wormer, Philadelphia, for appellants.
    Sean James J. O’Callaghan, Philadelphia, for appellees.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

Michael Breslin, a minor pedestrian, was struck by a vehicle owned by Robert Ridarelli and operated by his wife, Camille Ridarelli, in Wildwood, New Jersey. The owner was not present in the car at the time of the accident. An action for the minor’s injuries was commenced against Camille Ridarelli and also against Robert Ridarelli. The trial court entered summary judgment in favor of the owner, Robert Ridarelli; and the minor, by his father and natural guardian, appealed. We affirm.

Paragraph four of appellants’ complaint averred that Michael Breslin sustained injuries as a result of “the carelessness, recklessness and negligence of defendant, Camille Ridarelli, as the agent or servant of defendant, Robert Ridarelli____” Appellees’ answer to the complaint specifically denied that Camille Ridarelli was the agent or servant of Robert Ridarelli at any time relevant to the instant action and averred that she was acting on her own behalf at the time of the accident.

Extensive discovery proceedings disclosed no factual support for the averment that Camille Ridarelli had been acting as either the agent or servant of her husband when the accident occurred. Therefore, Robert Ridarelli served upon appellants a supplemental interrogatory asking for the facts upon which the complaints’ averment of such relationship was based. After objections had been dismissed by the court, appellants answered:

“The defendant, Camille Ridarelli, was coming from Philadelphia to Wildwood to rejoin her husband with her daughter. Her coming to Wildwood was a family benefit as well as a benefit to her husband. She was driving her husband’s car at the time of the accident and was going to meet him. We were informed that she was bringing various items of her husband’s clothing with her as well as various items for the house in Wildwood.”

Thereafter, a motion for summary judgment was filed on behalf of the owner. A decision was deferred by the court, which, on July 9, 1980, directed appellants to file one or more affidavits setting forth the facts relied upon to support the averment that an agency or master-servant relationship existed at the time of the accident. In response to this order, Charles Breslin, the minor’s father, stated under oath that on the day of the accident and on the day following the accident he had spoken by telephone with Camille Ridarelli, who told him “that she was driving her husband’s car; that she was coming from Philadelphia to meet .him; that she was bringing him clothing and other personal items; and that she was bringing other items for the family house in Wildwood.” On September 16, 1980, the court denied the motion for summary judgment but “without prejudice to [appellee] to reapply for summary judgment following the taking of a deposition of the plaintiff, Charles Breslin.”

Depositions of Charles Breslin were scheduled for November 26, 1981; Breslin’s counsel, however, sought to prevent the depositions by protective order. His motion for protective order was denied on January 21, 1981, and the trial court ordered Breslin to appear for depositions within sixty (60) days. The order concluded: “If Charles D. Breslin fails to comply with this Order, then he will not be permitted at trial to testify in support of the matters contained in the affidavit filed in response to this Court’s Order of July 9, 1980.” Ridarelli’s counsel gave notice of depositions for March 6, 1981, but neither Breslin nor his counsel appeared. The depositions were rescheduled for March 19, 1981. By letter of March 9, 1981, appellants’ counsel, Allen Feingold, notified appellees’ counsel and the Honorable Lawrence A. Brown, trial judge, that Breslin had “no intention of again coming to Philadelphia for this deposition” and suggested that an appropriate motion be filed “so that the sanctions entered on the order is [sic] allowed.” Robert Ridarelli again moved for summary judgment and, following argument, this motion was granted. The court’s order did not terminate or affect in any way the action against Camille Ridarelli, the driver.

Pa.R.C.P. 1035(b) directs a court to enter summary judgment "... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In making such a determination, “all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.” Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 203, 280 A.2d 570, 573 (1971), citing Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). Accord: Tom Morello Construction Company, Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980).

However, “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Pa.R.C.P. 1035(d).

Ordinarily, the question of the existence of a principal-agent or master-servant relationship is one of fact for the jury to determine. Feller v. New Amsterdam Casualty Company, 363 Pa. 483, 486, 70 A.2d 299, 300-301 (1950); Mitchell v. Ellmaker, 134 Pa.Super. 583, 587, 4 A.2d 592, 594 (1938); 8 P.L.E. Automobiles & Motor Vehicles, § 434, p. 200. However, where the facts giving rise to the relationship are not in dispute, “the question of the relationship between the parties is one which is properly determined by the court.” Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 335, 431 A.2d 1073, 1076 (1981) citing Feller v. New Amsterdam Casualty Company, supra.

Viewing the facts in the light most favorable to appellants it is evident, nevertheless, that the trial court properly granted Robert Ridarelli’s motion for summary judgment.

The family use doctrine is not a part of the law in Pennsylvania. Haskey v. Williams, 360 Pa. 78, 60 A.2d 32 (1948). The mere fact of the spousal relationship is insufficient to impose liability upon the husband-owner for the wife-driver’s negligence, if any. Richardson v. Patterson, 368 Pa. 495, 497, 84 A.2d 342, 343 (1951); Hildock v. Grosso, 334 Pa. 222, 5 A.2d 565 (1939); Warman v. Craig, 321 Pa. 481, 184 A. 757 (1936); Piquet v. Wazelle, 288 Pa. 463, 467, 136 A. 787, 788 (1927). Similarly, the mere fact that the husband-owner has given permission to his wife to use the vehicle is insufficient to establish an agency or master-servant relationship. Warman v. Craig, supra; Rosen v. Diesinger, 306 Pa. 13, 158 A. 561 (1932); Mitchell v. Ellmaker, supra. To establish liability against an absent owner, it must be shown not only that the driver was the owner’s servant but also that such servant was at the time engaged in the master’s business so as to be subject to the master’s control or right of control. Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Hildock v. Grosso, supra 334 Pa. at 224, 5 A.2d at 566, quoting from Warman v. Craig, supra 321 Pa. at 482-483, 184 A. at 758; Mitchell v. Ellmaker, supra; Arndt v. Brockhausen, 126 Pa.Super. 269, 191 A. 362 (1937). Vicarious liability will be imposed in situations involving non-commercial vehicles only where the master possessed the right to control the servant’s acts. “If a particular agent is not a servant, the principal is not considered a master who may be held vicariously liable for the negligent acts of the agent. Smalich v. Westfall, supra; Turley v. Kotter, [263 Pa.Super. 523, 398 A.2d 699 (1979)]. A servant is an agent whose physical conduct in the performance of the service is controlled or is subject to the right of control by the master; that is, a master controls not only the results of the work, but the manner in which the work is to be performed.” Juarbe v. City of Philadelphia, supra 288 Pa.Super. at 335, 431 A.2d at 1076 (citations omitted) (emphasis in original). To impute negligence, the party so contending must show that the driver was under the control of the owner as fully as if the driver were a paid servant. Negligence will not be imputed to the husband of a motorist where the uncontradicted evidence is that the motorist was on a mission of her own and that her husband had not ordered or requested her to do any thing for him. Graham v. Sieger, 196 Pa.Super. 622, 624, 176 A.2d 457, 458 (1961). As our Supreme Court noted in Klein v. Klein, 311 Pa. 217, 219, 166 A. 790, 791 (1933):

In a long line of cases, running at least from Scheel v. Shaw, 252 Pa. 451 [97 A. 685], to Double v. Myers, 305 Pa. 266 [157 A. 610] we have consistently held, in cases not involving business automobiles, that “In an action to recover damages for injuries resulting from an automobile accident, it is necessary for plaintiff to prove not only that the driver was his servant, but that such servant was at the time engaged in the master’s business.” No such proof was produced here.
This rule applies with peculiar force when the parties are husband and wife. Appellees’ counsel contend, however, that the relation between appellant and her husband, in respect of driving the car when this accident happened, was that of principal and agent, or of master and servant, and hence she is liable for the negligence of her husband, as her agent or servant. We think otherwise. Although such relations, legally speaking, may exist between a husband and wife, it is only in rare instances that they do. While the unity, which for so long a time was held to exist between them, has, by statute, been modified to a considerable degree, in matters like the present it has not been changed at all. In the use of the property of each other, no one, least of all the husband or wife, thinks of the husband as being the principal or master of the wife, or the wife as being the agent or servant of the husband, or vice versa, and the law must recognize this fact in exactly the way that the world at large recognizes it, for such is actually the relation of the parties.

In the instant case, there was no suggestion whatsoever of any right of the owner to control the operation of his vehicle. Mrs. Ridarelli’s depositions disclose unequivocally that she had gone home to Philadelphia for personal reasons. Appellants’ affidavit recites only that she intended to meet her husband, who was already in Wildwood, and that she was carrying in the car items of her husband’s clothing and items for the house in Wildwood. However, there is no suggestion that she was the agent or servant of her husband, that she went to Philadelphia at her husband’s direction, or that the husband had reserved the right to control her activities or the manner in which she operated the vehicle. A master-servant relationship is not established merely by evidence that the wife-driver, without request, had determined to bring with her to Wildwood items of clothing or items for the house. The mere presence in the car of such items, without more, was insufficient to establish a master-servant relationship and impose vicarious liability upon Ridarelli for the torts of his wife.

Finally, it may be observed that appellant, by the court’s order, cannot prove that items of clothing and items for the house in Wildwood were in the vehicle at the time of the accident. Mrs. Ridarelli has denied that she was bringing anything with her to Wildwood. Breslin, by his answers to interrogatories, has said that the only evidence of the presence of such items available to him is the statement made to him by Mrs. Ridarelli. However, he has properly been denied the right to use this evidence by court order entered pursuant to Pa.R.C.P. 4019 after he refused to comply with an earlier order directing him to appear for depositions. See: Verbalis v. Verbalis, 286 Pa.Super. 209, 428 A.2d 646 (1981).

We conclude, therefore, that there is no real issue of material fact in this case, and that the trial court correctly entered summary judgment in favor of the absent owner.

Order affirmed.

      . “[A] court has very wide discretion in disposing of [a motion for summary judgment]. In addition to definite rulings granting or refusing the motion, the court may give the parties an opportunity to supplement an inadequate record; it may deny the motion without prejudice to the making of another motion thereafter; it may grant a partial summary judgment ----” 2 Goodrich-Amram § 1035(b):9.

      . Pa.RX.P. 4019 provides, in part:
      (a)(1) The court may, on motion, make an appropriate order if
      (iv) a party or an officer, or managing agent of a party or person designated under Rule 4007.1(e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take his deposition;
      (c) The court, when acting under subdivision (a) of this rule, may make
      (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;