text:
    458 A.2d 555
    Steven GADBOIS and Judith A. Gadbois, Appellants, v. LEB-CO BUILDERS, INC. v. BETHEL TOWNSHIP, Appellant. Larry P. FOX and Glenda M. Kreiser, Appellants, v. LEB-CO BUILDERS, INC. v. BETHEL TOWNSHIP, Appellant.
    Superior Court of Pennsylvania.
    Argued May 4, 1982.
    Filed March 25, 1983.
    Petition for Allowance of Appeal Granted Sept. 2, 1983.

      George E. Christianson, Lebanon, for appellants (at Nos. 2454 and 2455) and for appellees (at Nos. 2507 and 2508).
    Frederick S. Wolf, Lebanon, for Leb-Co, appellee.
    Thomas S. Long, Lebanon, for appellants (at Nos. 2507 and 2508) and for appellees (at Nos. 2454 and 2455).
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   SPAETH, Judge:

This cáse arises on four appeals, which have been consolidated. Two of the appeals are by plaintiffs below. They argue that the lower court, sitting en banc, erred in granting exceptions to the trial court’s method of calculating damages for defective construction of their sewage disposal systems. The third and fourth appeals are cross-appeals by the additional defendant. They argue that the lower court erred in holding it liable for any damages. We hold that the lower court properly held the additional defendant liable, but that it wrongly decided the issue of the measure of damages. We therefore reverse and remand with instructions to reinstate the verdicts returned by the trial court.

In the summer of 1978 appellants, Larry Fox and Glenda Kreiser and Steven and Judith Gadbois, purchased new houses from appellee, Leb-Co Builders. Soon after they moved in it became apparent that the sewer disposal systems didn’t work, and raw sewage began to back up into their basements. When Leb-Co failed to fix the systems, appellants Fox and Kreiser and the Gadboises each brought an action against Leb-Co, alleging breach of an implied warranty of habitability and negligence. In each action Leb-Co joined Bethel Township as an additional defendant, alleging that the township had been negligent in issuing the sewer permits, inspecting the systems, and approving them.

The trial court, sitting without a jury, found in favor of appellants in both actions against both Leb-Co and Bethel Township, and awarded damages that included awards of $18,800 to Fox and Kreiser and $17,600 to the Gadboises. These amounts represented the “loss of value” to appellants’ properties, that is, the difference between the respective values of appellants’ properties with and without a properly functioning sewer system: The court en banc dismissed Leb-Co’s and the township’s exceptions as to liability but granted their exceptions as to damages. It held that the measure of damages should be the cost of repairing the sewer systems, and that this cost was, as to both properties, $2,750.

The opinion filed by the court en banc adequately disposes of the issue of liability. See also Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573, 576 (1961) (“a party to a contract [ ] may place himself in such a position that the law will impose upon him a duty to perform his contractual undertaking in such a manner that third persons—strangers to the contract—will not be injured thereby”). The only issue that needs to be discussed is the issue of the proper measure of damages.

1

The lower court, sitting en banc, held that the measure of damages is “ ‘the difference in market value of the house as warranted and as built, or, where the purchaser remains in possession, the reasonable cost to repair,’ ” Slip op. of lower ct. at 4 (court’s emphasis). In support of this proposition, the lower court cited only a law review case note, “Elderkin v. Gaster—The Pennsylvania Experience with Implied Warranties in Sales of New Homes,” 47 Temp.L.Q. 172, 179-80 (1973). The three cases cited in the case note in support of the proposition include one Pennsylvania case, Raab v. Beatty, 96 Pa.Super. 574 (1929). Raab, however, .does not support but rather contradicts the proposition. First, in Raab this court did not make the measure of damages depend upon whether the purchaser remained in possession. Nothing was made to turn upon the fact of possession or not; in fact it is unclear from our statement of the case whether the plaintiff had remained in possession, although in the cases cited this was apparently so. Second, in Raab we did not affirm an award of the reasonable cost of repairs. Quite the contrary, we affirmed an award of the difference in market value. The award was $2,168; the testimony was that the market value of the house without any defects was “somewhere around” $9,300, but as constructed, was $7,000. 96 Pa.Super at 580.

Here, the damages awarded by the trial court—as distinguished from the court en banc—were consistent with Raab. With respect to the Fox/Kreiser property, an expert witness testified that with an adequate septic system, the market value was $48,800, without such a system, $30,000; the award was $18,800. With respect to the Gadbois property, the comparable figures were $47,600 and $30,000; the award was $17,600. R.R. at 125a-127a.

2

In considering what is the proper measure of damages, we may start with the observation that it is hard to imagine why the measure of damages should depend on whether the owner remains in possession. When people move into a new house, to find the foundation cracking and subsiding, or, as here, the septic system so defective that raw sewage backs up into the basement, their remaining in possession may be attributable to their inability to buy or rent a second house until they first sell their defective house, which they can’t do because it is unsalable. That is what happened here. Mrs. Gadbois’s uncontradicted testimony was as follows:

Q. Mrs. Gadbois, have you and your family continued to reside in this home.
A. Yes. We have no other choice.
Q. When you say you have no other choice, what do you mean by that?
A. Well, there is no other place to live. We have to keep on paying our mortgage on this property, and we can’t sell it because the title is stamped unmarketable, and nobody would buy a piece of property like that, and we are stuck with it.
R. R. at 58a-59a.

Mr. Fox testified to the same effect:

Q. Mr. Fox, you have continued to live in this property, even though it does not have a functional septic system. Will you indicate why you have not moved to other quarters?
A. Well, we had no other choice, really. We couldn’t afford to pay for two properties. It was just financial, really—I mean, we just couldn’t move to somewhere else. We had to stick it out.
Q. Is it habitable?
A. Not in my opinion.
R. R. at 103a-104a.

Consistent with such practical considerations, a substantial body of case law ignores the distinction between possessing and non-possessing homeowners and allows damages for defective housing measured by the loss of value due to the defects. Kriegler v. Eichler Homes, Inc., 269 Cal.App.2d 224, 74 Cal.Rptr. 749 (1969) (Builder liable to home buyer for diminution in value of house as result of installation of defective heating system); McDonald v. Mianecki, 159 N.J.Super. 1, 386 A.2d 1325 (1978) (Standard measure of damages for breach of implied warranty of habitability by builder of new house, arising out of unfitness of drinking water, is diminution of value of real estate); Kenney v. Abraham, 119 Wash. 167, 90 P.2d 713 (1939) (Difference between value of house as constructed and value as it should have been constructed is proper measure of damages for contractor’s failure of substantial performance). In one of these cases, which is virtually identical on its facts to the present case, the Washington Supreme Court awarded damages measured by the difference in value. Hoye v. Century Builders, 52 Wash.2d 830, 329 P.2d 474 (1958). Said the court:

There remains for consideration the correct measure of damage. The difference in value rule is proper in a building contract if there has not been substantial performance. It hardly requires demonstration that there is no substantial performance if the house, when completed is unfit for human habitation by reason of the discharge of raw sewage, which condition stubbornly resists correction. White v. Mitchell, supra; Forrester v. Craddock, 51 Wash.2d 315, 317 P.2d 1077; Kenney v. Abraham, 199 Wash. 167, 90 P.2d 713; Eckhardt v. Harder, 160 Wash. 207, 294 P. 981.
329 P.2d at 477, 52 Wash.2d at 835.

Some courts have recognized alternative measures, without, however, specifying a criterion for decision. Parsons v. Beaulieu, Me., 429 A.2d 214 (1981) (“Damages for defective [septic system installation in new house] may be measured either by the difference in value between the value of the performance contracted for and the value of the performance actually rendered, or by the amount reasonably required to remedy the defect.”). Other courts, however, have gone further, specifying a criterion. Thus it has been held that where repairs are reasonably practical, the proper measure of damages is the cost of repairs, Moore v. Werner, 417 S.W.2d 918, 920 (Tex.Civ.App.1967) (“It is well-established that the measure of damages for construction defects which can be remedied without impairing the building as a whole is the reasonable cost of remedying the defects.”), but where repairs are not reasonably practical, the measure of damages is the difference in market value, Farney v. Bestfield Builders, Del.Super., 391 A.2d 212 (1978) (Where contractor fails to perform according to contract, by reason of removing trees from building lot, plaintiff is entitled to damages measured by amount required to remedy defective performance unless it is not reasonable or practical to do so; diminution in market value is then alternative measure of damages). A corollary of this principle is that where the cost of repairs exceeds the difference in market value, the proper measure of damages is the difference in market value. Levesque v. D. & M. Builders, Inc., 170 Conn. 177, 365 A.2d 1216, 1218 (1976) (Where defendant builder constructs house too close to edge of lot, plaintiff’s damages should be diminished value of building by reason of defects; market value measure used to avoid economic waste in relocating house); Brewer v. Custom Builders Corp., 42 Ill.App.3d 668, 1 Ill.Dec. 377, 356 N.E.2d 565 (1976) (Where correction of defects in construction of shell of house would require substantial tearing down and rebuilding, measure of damages is difference in value between work as performed and as it should have been performed); Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698 (1966) (“Major defects which render the house unfit for habitation, and which are not readily remediable, entitle buyer to rescission and restitution.”). The reasoning of these cases is in accord with the Restatement of Contracts, which long ago took the position that the purchaser is entitled to damages for either

(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or
(ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.
Restatement, Contracts § 346 (1932). Accord, Restatement, Second, Contracts § 347, comments a and b.

Pennsylvania has likewise adopted the view that damages for the breach of a construction contract may be measured by the diminution in value. Thus we said in Brourman v. Bova, 198 Pa.Super. 279, 182 A.2d 245 (1962), that “[t]he measure of damages in matters of this nature [a contract for the repair of, and the construction of an addition to, a house], as a general rule, is the difference in value between what is tendered as performance and what is due as performance under the contract, and this may consist of the amount required to remedy the defect.” Id., 198 Pa.Superior at 281, 182 A.2d at 246 (citations omitted).

We think we should somewhat modify our statement in Brourman—should slightly refocus or sharpen it—and hold that the measure of damages in cases where a homeowner sues for defective construction is the difference between the market value of the house as constructed and the market value that the house would have had if constructed as promised, with the qualification that if it is reasonably practical to cure the defects in construction by repairs, and if the cost of repairs does not exceed the difference in market value, then the measure of damages is the cost of repairs.

3

As already mentioned, here the damages awarded at trial were the difference between the market value of the property as constructed (Fox/Kreiser: $30,000; Gadbois: $30,000) and the market value of the property if it had been constructed with an adequate septic system (Fox/Kreiser: $48,000; Gadbois: $47,600). The verdicts were therefore $18,800 and $17,600. The lower court, sitting en banc, modified these verdicts, stating that “on the basis of evidence adduced each set of plaintiffs will be awarded, as loss of value, the amount of $2,750.00.” Slip op. at 4. This was error, and the original verdicts will be reinstated.

To begin, it should be noted that it cannot be determined with certainty what measure of damages the court en banc was applying when it modified the verdicts. As just noted, in the sentence announcing its conclusion to modify, the court stated that it was awarding as damages the “loss of value.” However, nothing supports a finding that $2,750 represented “loss of value.” The phrase “loss of value” would seem necessarily to refer to “loss of market value,” for no other sort of value would seem relevant, and as to loss of market value the evidence is clear: it was $18,800 for the Fox/Kreiser property and $17,600 for the Gadbois property. It seems likely, however, that despite its reference to “loss of value,” the court meant to refer to “cost of repairs.” In the two paragraphs immediately preceding its reference to “loss of value,” the court said:

Generally, the difference in the value of the home as built and its value as warranted is awarded if repair is not economically feasible. There is no question that repairs are feasible in this instance. The question is how much the repairs will cost____
There was testimony evidenced by defendant Leb-Co through an engineer, W.B. Kassees, that the construction of a conventional subsurface sewage disposal system with septic tank would remedy the current defects on both lots. The approximate cost would be $2,000. Other testimony established the cost of emptying a holding tank, showed that measures be found feasible as a correction would be $100.00 monthly.
Slip op. at 4.

And immediately after its statement that damages “will be awarded, as loss of value, [in] the amount of $2,750.00,” the court said:

It is our judgment the sum is consistent with the estimate of “$2,000.00, plus or minus” given by Mr. Kassees, and an allowance for inflationary factors.
Slip op. at 4-5.

If indeed the record did show that it is reasonably practical to cure the defects in construction at a cost of $2,750, we should affirm the court en banc’s order. For then, despite what we find to be ambiguities in its opinion, the court would nevertheless in fact have applied the proper measure of damages: the lesser of the figure representing the difference in market value and the figure representing the cost of repairs. The difficulty is that the record does not show that it is reasonably practical to cure the defects in construction, either at a cost of $2,750 or at any other cost.

The court en banc based its statement that “repairs are feasible” on “testimony ... by defendant Leb-Co through an engineer, W.B. Kassees____” Slip op. at 4. Mr. Kassees’s testimony may be summarized as follows. It was he who approved of the plans for the sewage system. N.T. 110. When asked whether the system was installed in accordance with the plans, he answered, “It was not.” Id. Subsequent to the installation, he was asked “to review this situation,” and he did, “at the job site.” N.T. 110-11. He didn’t recall when he went to the site, but it was “[p]ossibly February of ‘79.” N.T. 102. After examining the problem at the site, he did not design a system that would correct it. Instead, he “recommended a procedure for testing to determine whether the soil can take at other locations, can take the sewage.” N.T. 102. The tests he recommended were performed on one of the properties—he “could not recall whether it would be Gadbois or Fox.” N.T. 103. [Apparently it was for the Fox property.] He then recommended that if that would work, then a septic bed could be installed in that area where it did show evidence of working.” N.T. 104 (emphasis added). When asked, “Would the system you had recommended as a repair system for Fox’s property also be a potential repair system for the Gadbois’ property?” he answered: “I don’t recall the reports from the Matthew-Heckley personnel [who did the testing], but I believe they were positive in the same way. I don’t recall.” N.T. 106 (emphasis added). When asked whether he “thought [his recommendation] would be a solution to the problem,” he answered, “I felt it would be, yes.” N.T. 105. When asked “the approximate cost,” he answered, “I would say you are talking about a couple of thousand dollars, approximately,” going on to agree that he was “saying two thousand dollars plus or minus.” N.T. 107. He acknowledged, however, that one “Gordie Sheetz,” representing Bethel Township, had told him that the changes he had recommended could not be made because they would not be approved by the township without further testing being done. N.T. 104, 107. He further acknowledged that the further testing required by Mr. Sheetz had not been done, by him or by anyone retained by him. N.T. 107-08.

Mr. Sheetz also testified. He said that he was employed by the Lebanon County Planning Department as on-lot sewage administrator, and that he was certified by the Department of Environmental Resources as a sewage enforcement officer. N.T. 205-06. He also said that it was his agency’s duty to enforce the sewage regulations in Bethel Township. N.T. 206. In response to a question from the trial judge, Mr. Sheetz said that “[t]he original [sewage] system [on the Fox/Kreiser and Gadbois properties] did not work at all,” adding “... I know of no way of rehabilitating the original system that was installed .... ” N.T. 220. When asked, “[D]o you feel that a system could be designed to solve the problem?” he answered, “I can’t answer that at this point without—you know—further testing be[ing] done.” N.T. 222. When asked whether “the repair system designed by Matthew & Heckley [i.e., the recommendation made by Mr. Kassees] is a possible solution to the problem—the sewage problem?” he answered, “At this point, I couldn’t say either way,” and went on to refer to two letters he had written to the property owners stating “that further testing should be conducted .... ” N.T. 209. And finally, he confirmed that he did not, and would not, approve the recommendation of Mr. Kassees:

Q. Did you discuss with anyone the possibility of installing the corrective system to see if it would work?
A. I wasn’t in a position to issue a repair permit at that time. There were too many things that were unanswered. Acting as a sewage officer for the township, I would not issue ....
N.T. 216.
In short: What the record shows is this:

First, that the sewage system was improperly installed and doesn’t work;

Second, that on the basis of tests conducted on one of the two properties in question, repairs were recommended that Mr. Kassees “felt” would work and that would cost approximately $2,000;

Third, that whether those repairs would work has never been established, because Mr. Sheetz, representing the county, the township, and the Department of Environmental Resources, was not satisfied they would, and refused to issue a permit for them to be done on the ground that further testing was required; and

Finally, that further testing has not been done.

Given this record, it is abundantly clear why the trial court measured damages by the difference in market value. The statement by the court' en banc that “repairs are feasible” is unwarranted. What repairs? Not those recommended by Mr. Kassees. They’re not feasible because Mr. Sheetz won’t permit them. And Mr. Sheetz hasn’t recommended any repairs, nor will he approve any until further testing has satisfied him of their feasibility.

4

Both Bethel Township and Leb-Co argue that appellants are to blame because they have failed to correct, or, by further testing, to try to correct, the sewer systems. The lower court properly rejected this argument, finding that appellants, “non-experts in the field, did everything required of them to mitigate their damages,” Slip op. at 7, and that

[t]he testimony established that Leb-Co did nothing concrete to remedy the situation. An agent of Bethel issued the sewage permit. Moreover, Bethel reviewed the design of the lot and inspected the system. Both Leb-Co and Bethel had consultations regarding corrections (N.T. 130, 131). Furthermore a representative of Bethel told Leb-Co not to continue their work on the properties N.T. 40. The testimony is replete with instances of Bethel’s and Leb-Co’s failures to correct the malfunction to the misery of plaintiffs.
Id. at 8.

The record shows that after the defects in the septic systems first appeared, Leb-Co pumped out appellants’ basements, but then refused to continue to do so. R.R. at 47a-48a, 90a. Mrs. Gadbois testified that after sewage backed up into her basement a second time, a Leb-Co representative informed her “that he could not keep on paying to have the septic system pumped out at his expense, and what did I expect for the price of the house.” R.R. at 48a. After the initial pumping out, virtually the only measure Leb-Co took to remedy the continuing problem was to dig pits in appellants’ yards to act as reservoirs for sewage coming from the houses. Mrs. Gadbois described the pit dug in her yard as “one massive hole, and it’s big enough to park three cars in. It’s about twenty feet long and maybe ten feet deep, and about ten feet wide.” R.R. at 51a. These pits have remained open since February 1979. Id. They are full of raw sewage, maggots, and water; children have fallen into them while playing. R.R. at 55a-56a, 73a.

For appellees to argue that it was up to appellants to find a workable solution to the defective septic systems is like saying that a manufacturer may guarantee a product if the consumer will find a way to make it work.

The order of the court en banc is reversed and the case remanded with instructions to reinstate the verdicts returned by the trial court.

Jurisdiction is relinquished.

      . These appeals have been before this court before. See 290 Pa.Super. 523, 434 A.2d 1267 (1981).

      . Neither of the other two cases cited by the law review case note holds or says in dictum that the proper measure of damages, when the purchaser remains in possession, is necessarily the reasonable cost of repairs. In Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963), the Colorado Supreme Court said:

        Ordinarily, the measure of damages recoverable for a breach of warranty is the difference between the actual value of the property at the time of sale and what its value would have been if it had been as warranted. But where the buyer has retained the property and uses it, as here, he may make reasonable expenditures to bring the property into conformity with the warranty, and such expenditures may represent the measure of the buyer’s damages—another way of arriving at this difference in value.
      387 P.2d at 263, 153 Colo. at 281. (Citations omitted; emphasis added).
      In Smith v. Old Warson Development Company, 479 S.W.2d 795 (Mo. 1972) (en banc), the Missouri Supreme Court said:
      The test is, of course, 'reasonableness' and that is essentially a fact issue for the jury. Plaintiffs presented evidence that the decrease in value of the house because of the defect was $13,500. [ ] There was evidence that $6,000 would be required to remedy the defect, and there was considerable testimony and photograph evidence of the condition of the premises as a result of the defect. [ ] There was sufficient evidence to entitle a jury to find a lack of reasonable quality and fitness.
      479 S.W.2d at 800.


source: Caselaw Access Project

author:
BROSKY, Judge:
      JOHNSON, Judge,

license: Public Domain

text:
    458 A.2d 562
    Mary K. TUREK, Appellant, v. Albert HARDY.
    Superior Court of Pennsylvania.
    Submitted June 16, 1982.
    Filed March 25, 1983.

      Steve Peter Leskinen, Uniontown, for appellant.
    Thomas P. Ruane, Jr., Uniontown, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

The sole issue before us in this paternity action is whether the lower court erred in ruling that the results of a Human Leukocyte Antigen (HLA) test could not be used to prove paternity. Because we conclude that such test results are admissible as some proof of paternity, we reverse and remand.

The record in this case discloses that prior to trial, appellee Hardy petitioned the court to order appellant Turek and her child to submit to blood tests in order to determine whether he could be excluded as the father. Such an order was entered on June 30, 1980.

On July 1, 1980, appellant, appellee and their attorneys signed a written stipulation that the

results of certain biochemical tests and blood grouping test (viz. HLA Test and Red Cell Test) to be performed at the University of Pittsburgh Paternity Testing Laboratory, shall be admissible at any trial of this matter without the necessity of calling any expert or custodian of records

At trial, appellant attempted to introduce blood test results and certain expert testimony, but an objection to this evidence was sustained. The jury trial resulted in a verdict for appellee, Albert Hardy, and this appeal followed the denial of a motion for new trial.

It is clear that the admission or exclusion of evidence is within the sound discretion of the trial court and the exercise of such discretion will be reversed on appeal only for a clear abuse. Catina v. Maree, 272 Pa.Super. 247, 415 A.2d 413 (1980); Zadogna v. Hester, 255 Pa.Super. 517, 388 A.2d 1087 (1978).

The lower court explained in its opinion that its decision to exclude the proffered evidence was based on its belief that such evidence must be made admissible in the first instance by the Legislature.

The “Uniform Act on Blood Tests to Determine Paternity” does permit the introduction of blood test results that exclude a defendant as a possible father and in fact provides that blood tests can serve as conclusive evidence of non-paternity. See 42 Pa.C.S.A. § 6136. The statute as enacted in Pennsylvania does not address the question of whether blood test results that show that a defendant is likely to be the father are admissible as proof of paternity. Such a provision was a part of the Uniform Act but was not enacted by our Legislature. We believe, however, that such results are admissible under the current state of the law.

Although the trial record itself is not clear as to the type of blood test which was at issue, in this case, the previously discussed stipulation and the opinion of the lower court indicate that appellant sought the introduction of the results of HLA blood tests which indicated a probability that appellee is the father of the child.

Unlike traditionally accepted blood tests which involve testing of the red blood cells, HLA, “Human Leukocyte Antigen” involves tissue typing of white cell blood groups. Prior to the advent of HLA testing, the results of blood tests were used solely to exclude those defendants whose blood tests indicate they could not be the father of the child in question. However, HLA test results can be used to calculate the probability that a putative father is the actual father. Dr. Terasaki notes in his article, “Resolution by HLA Testing of 1,000 Paternity Cases Not Excluded By ABO Testing,” (1977-78), 16 J.Fam.L. 543, “With HLA testing, the probability of a non-excluded male being the actual father is usually over 90%.”

It seems clear that the testing procedure, which evolved from the tissue typing necessary for organ transplants, provides an enhanced ability to identify the father of a child. For discussion of the reliability of HLA testing, alone or in combination with other blood group tests, see the following articles. Williford, “The Use of Blood Tests in Actions to Determine Paternity,” (1980) 16 Wake Forest Law Review 591 (which explains the system’s advantages and “pitfalls”. For example, the author observes that the HLA test may not exclude a putative father who would be excluded by red cell tests, if the accused and real father are related; “Proving Paternity By Means of Serological Testing: Should It Be admitted As Evidence By The Courts?” (1981), Detroit College of Law Review 47; “Joint AMA-ABA Guidelines: Present States of Serologic Testing in Problems of Disputed Parentage” (1976) 10 Fam.L.Q. 247 (which advocates the combined use of HLA and red blood test for greatest reliability); Terasaki, supra.

Our examination of the current literature and case law of other jurisdictions cited herein leads us to conclude that HLA testing has been found to be a reliable technique. We turn next to the question of whether such test results are relevant to a determination of paternity.

We explained in Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40, 47 (1981):

Pennsylvania finds evidence relevant “when it tends to establish facts in issue” Leroi v. Civil Service Commission of City of Philadelphia, 34 Pa.Cmwlth. 190, 382 A.2d 1260 (1978), or when it “in come (sic) degree advances the inquiry and thus has probative value,” Bowers v. Garfield, 382 F.Supp. 503, aff. 503 F.2d 1398 (3rd Cir.1974).

Test results that indicate the likelihood that one is the father of a child certainly advance the inquiry as to that child’s paternity and are therefore of probative value. See also Hennepin City Welfare Bd. v. Ayers, Minn., 304 N.W.2d 879 (1981); Carlyon v. Weeks, 387 So.2d 465 (Fla. App.1980), in which cases the courts also concluded that HLA results are relevant to the issue of paternity.

In Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (1979), the California court concluded that the results of HLA testing are probative of the issue of paternity. The court applied a relevance test similar to that applicable in Pennsylvania.

In Cramer, the defendant had argued that even though such evidence might be found probative, it should be found inadmissible because California had adopted the “Uniform Act on Blood Tests to Determine Paternity” absent a provision that would have permitted the use of blood tests to prove paternity. Appellee in the present case similarly contends that the failure of our Legislature to include such a provision should render the evidence inadmissible.

The Cramer court noted that its blood test statute was enacted prior to the development of HLA and only shortly after the acceptance of the Landsteiner series (red blood cell tests). The court concluded that the Legislature’s reference to blood tests in enacting the statute referred to the Landsteiner series. Therefore, the court declined to consider the omission of the provision allowing affirmative use of blood tests, as rejection of affirmative use of HLA results.

The Uniform Act was enacted in Pennsylvania in 1961 and was reenacted as part of the Judiciary Act of 1976. We conclude as the California court did, that rejection of the affirmative use of blood test results by the Legislature was not a rejection of the HLA test, which was at that time a not yet accepted scientific method.

We agree with the reasoning of the California Court of Appeals in Cramer and have concluded that the absence in the Uniform Act of a provision allowing introduction of blood test results to prove paternity does not preclude their introduction on general grounds of relevance.

Furthermore, as the Cramer court noted, public policy considerations also support the admissibility of such evidence. These considerations include protecting children from the stigma of illegitimacy, preservation of the family, and insuring that individuals rather than the government bear responsibility for child support. Cramer, supra, at 885; 153 Cal.Rptr. at 872.

We emphasize, however, that our holding is limited to the conclusion that HLA blood test results may be introduced as some evidence of paternity. We do not hold that this evidence is conclusive. For a similar holding, see Chumley v. Hall, 601 S.W.2d 803 (Tex.App.1980). See also Williford, supra.

We have indicated earlier that our review of applicable case law and secondary literature leads us to the conclusion that HLA testing is generally accepted as reliable. Nevertheless, before the results of such a test are admissible, a proper foundation must be laid. Indeed, it is axiomatic that a foundation must be laid for the admission of any evidence.

In Phillips By and Through Utah, Etc. v. Jackson, Utah, 615 P.2d 1228 (1980), the Utah Supreme Court refused to find HLA test results admissible because a proper foundation had not been laid. The court refused to find the test reliable on the basis of journal articles and what it considered the paucity of legal opinions on point. While we believe that, two years later, the reliability of HLA testing has been established, we do agree with the Utah court’s view that a foundation must be laid in each case. We have derived the following guidelines from the Phillips opinion as a starting point in the establishment of a proper foundation.

The party seeking to affirmatively use the HLA results should show:

1. the effect of racial and ethnic variables
2. any factors which might invalidate the test or affect its accuracy (for example, the AMA-ABA Guidelines indicate that HLA results are most reliable when the test is conducted in conjunction with other blood group tests.)
3. The procedures of the actual test.
4. The qualifications of witnesses.

Of course, the foundation laid must suit each case and we do not consider these guidelines exhaustive. Furthermore, our holding that these test results are admissible is without prejudice to a defendant’s right to challenge the reliability of the results and test methods in an individual case. See Hennepin City Welfare Board, supra.

For the foregoing reasons, we conclude that when a proper foundation is laid, the results of HLA blood tests are admissible to prove the .likelihood of paternity.

Order reversed and case remanded for new trial consistent with this opinion.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

I agree wholeheartedly with those portions of the excellent opinion of Judge Brosky which conclude (a) that HLA testing has been found to be a reliable technique, (b) that such tests are relevant to a determination of paternity, and (c) that HLA blood test results may be introduced as some evidence of paternity. I also agree that when a proper foundation has been laid, the results of such tests are admissible to prove the likelihood of paternity without prejudice to the party’s right to challenge the reliability of either the test methods or the results in an individual case.

The careful analysis of the various standards which should determine the admissibility of scientific evidence in paternity cases, as set forth by Justice Stewart speaking for the majority of the Supreme Court of Utah in Phillips v. Jackson, Utah, 615 P.2d 1228, 1233-36, 1237-38 (1980), leads me to conclude that we should either refrain altogether from pronouncing guidelines which, in the majority opinion, seek merely to form a “starting point in the establishment of a proper foundation,” or we should attack the problem more broadly with a view to providing the trial court and the practicing bar with guidelines as nearly complete as may be possible.

While I do not necessarily disagree with the four factors set forth in the majority opinion, I have some concern that their inclusion, to the exclusion of other factors, might result in undue, or inappropriate, emphasis being afforded those listed.

In the final analysis, the trial court is vested with a large measure of discretion in determining whether the scientific evidence and conclusions of an expert are admissible. It is not clear to me that the formulation of special rules to govern admissibility of HLA blood test results—as distinguished from other scientific evidence—serves either our adversary system of justice or the parties involved. I would prefer to leave to our trial courts the admittedly difficult task of formulating any special rules which may be required, secure in the belief that our appellate system remains available to guard against manifest abuse which results in prejudice to either contending party.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 6131 et seq.

      . As to the reliability of HLA tests, see also Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982) (O’Connor, J. concurring with 3 Justices joining the Concurring Opinion and Justice Powell joining all but the final paragraph), n. 2; Hummel v. Smith, 301 Pa.Super. 276, 447 A.2d 965 (1982); Malvasi v. Malvasi, 167 N.J.Super. 513, 401 A.2d 279 (1979).

      . The present statute is a reenactment of the Act of July 13, 1961, P.L. 587, No. 286, § 9; 28 P.S. § 307-9.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2.

      . See In Re Mengel, 287 Pa.Super. 186, 429 A.2d 1162 (1981) (Concurring Opinion of Spaeth J.), in which Judge Spaeth advocates that HLA test results be used to establish paternity.

      . See also 42 Pa.C.S.A. § 6136 which provides that if all experts agree that blood tests exclude a defendant as a possible father, the question of paternity is to be resolved accordingly. Absent a legislatively enacted provision making positive blood tests also conclusive, we must view them as only part of the evidence.


author: WIEAND, Judge:

text:
    458 A.2d 566
    Anthony J. MIERNICKI, Esquire and Wilbur H. Rubright, Esquire v. Frank SELTZER and Atkin Seltzer t/d/b/a Seltzer Coal Company and American Bank & Trust Co. of Pa. and Benjamin Stone, Vice-President of American Bank & Trust Co. of Pa. Appeal of Anthony J. MIERNICKI, Esquire.
    Superior Court of Pennsylvania.
    Argued March 2, 1982.
    Filed March 25, 1983.
    Petition for Allowance of Appeal Granted Aug. 10, 1983.

      Jack E. Feinberg, Philadelphia, for appellant.
    Joseph P. Semasek, McAdoo, for Frank Seltzer, appellee.
    John T. Pfeiffer, III, Pottsville, for Atkin Seltzer et al., appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

In this appeal from a final decree in equity, we are required to review the trial court’s resolution of a complicated fee dispute arising subsequent to eminent domain proceedings resulting in the recovery of damages for land taken for highway purposes in Schuylkill County.

Frank Seltzer and Atkin Seltzer are brothers who owned coal land in Schuylkill County. The land was condemned by the Commonwealth of Pennsylvania on December 1, 1965 for construction of a limited access highway known as Interstate Route 81. After litigation spanning a period of approximately twelve years, the owners were able to effect a combined recovery of $1,208,372.15. Anthony J. Miernicki, Esquire, commenced an action in equity by which he sought to impose an attorney’s lien against these moneys in the hands of American Bank and Trust Company. Atkin Seltzer filed an answer to Miernicki’s complaint in equity by which he denied any liability to Miernicki for counsel fees. Frank Seltzer filed no answer to the complaint, and a default judgment was entered against him on May 18, 1978, with damages being assessed by the prothonotary at $131,-625.89. On January 22, 1979, Frank Seltzer filed a petition to strike and/or open the default judgment. This petition was ultimately denied, but the court did strike the prothonotary’s assessment of damages. Wilbur Rubright, Esquire, who had provided extensive legal services to Frank Seltzer throughout the eminent domain proceedings was added as a claimant. After a full hearing, the court held that Frank Seltzer was liable to Miernicki for $32,500.00 and to Ru-bright for $80,000.00, which sums were to be paid from moneys being held by the bank. Atkin Seltzer, the court held, had no liability to pay counsel fees to Miernicki or Rubright. Exceptions were dismissed, a final decree entered, and Miernicki appealed.

In general, the procedure in equity actions is in accordance with the rules pertaining to the action of assumpsit. See: Pa.R.C.P. 1501. However, a default judgment is controlled specifically by Pa.R.C.P. 1511. This rule, as it existed on May 18, 1978, when appellant took a default judgment, provided as follows:

“(a) The prothonotary, on praecipe of the plaintiff, shall enter a judgment by default against the defendant for failure to plead within the required time to a complaint (endorsed with notice to plead). In all other cases of default or of admission the judgment shall be entered by the court.[]
(b) In all cases, the court shall enter an appropriate final decree upon the judgment of default or admission and may take testimony to assist in its adjudication and in framing the decree.”

Pursuant to this rule, appellant could properly enter a default judgment against Frank Seltzer, who had failed to plead to the complaint. However, the prothonotary lacked authority to determine the amount of counsel fees which appellant was entitled to recover or to enter a money judgment therefor. Thus, the trial court properly struck the assessment of damages by the prothonotary and took testimony to assist it in framing a final decree. See: 5 Goodrich-Amram 2d § 1511:1.

For purposes of determining the amount of appellant’s counsel fees, the court was required to treat as admitted all averments of fact contained in the complaint. Pa.R.C.P. 1029(b). See: Scales v. Sheffield Fabricating and Machine Co., 258 Pa.Super. 568, 572, 393 A.2d 680, 681 (1978); Cercone v. Cercone, 254 Pa.Super. 381, 386, 386 A.2d 1, 4 (1978); Landis v. City of Philadelphia, 245 Pa.Super. 514, 518, 369 A.2d 746, 748 (1976). See also: Ingram v. Dovertown Estates, Inc., 307 Pa.Super. 22, 26, 452 A.2d 884, 885 (1982); 2 Goodrich-Amram § 1029(b):2. Thus, it was a fact, admitted by Frank Seltzer, that appellant had been “retained upon a contingency basis of ten percent (10%) of the total recovery.” The trial court declined to enforce the contigent fee agreement because it had not been reduced to writing in the manner required by Pa.R.C.P. 202 and because Frank Seltzer denied during the hearing that he had agreed to pay a fee of ten percent.

Pa.R.C.P. 202 requires that contingent fee agreements be in writing. Specifically, the rule provides:

Agreements between attorney and client relating to compensation wholly or partly on a contingent basis shall be in writing, executed in duplicate. One executed copy shall be delivered to the client at the time of the making of the agreement, and the other shall be preserved by the attorney for at least two years after final judgment or settlement of the case. Such agreements shall be subject to inspection by the Court, by the appropriate committee of the Bar Association of the County or of the Court, and by the Disciplinary Board of the Supreme Court of Pennsylvania.

The requirements of this rule “are procedural only, and are not intended to vitiate any contract between attorney and client.... However, where the existence of a contract for such a fee is established, and the testimony establishes that it is reasonable, it will be upheld, even though verbal.” Silverstein v. Hornick, 376 Pa. 536, 541, 103 A.2d 734, 737 (1954). Moreover, Pa.R.C.P. 202 is similar to a statute of frauds in that it can be waived. Thus, a defense that a contingent fee agreement is not in writing is waived if it is not pleaded. Frank v. Peckich, 257 Pa.Super. 561, 587, 391 A.2d 624, 637 (1978) (Opinion by Spaeth, J., in support of affirmance).

Nevertheless, contingent fee agreements are subject to careful scrutiny by the courts in order to insure that they are reasonable and that no unfair advantage has been taken of the client. County of Chester v. Barber, 97 Pa. 455, 463 (1881); Topton National Bank v. Holland, 190 Pa.Super. 501, 503-504, 154 A.2d 252, 253 (1959); Gleckel Estate, 155 Pa.Super. 383, 386-387, 38 A.2d 374, 375 (1944). To be held reasonable, the fee must be computed upon the amount of the actual recovery and not on the amount of the verdict rendered. Johnson v. Sears, Roebuck and Company, 291 Pa.Super. 625, 436 A.2d 675 (1981); Topton National Bank v. Holland, supra 190 Pa.Super. at 503-504, 154 A.2d at 253; Gleckel Estate, supra 155 Pa.Super. at 387, 38 A.2d at 376. See also: Diggs v. Taylor and Company, Inc., 329 Pa. 385, 198 A. 51 (1938). “[I]n exercising control over legal fees, courts normally compute the amount of contingent fees with reference to the amount the client has received and not by reference to the total award.” Almi, Inc. v. Dick Corporation, 31 Pa.Cmwlth. 26, 40, 375 A.2d 1343 (1977). See also: Cox v. Cooper, 510 S.W.2d 530, 538 (Ky.1974); Koehring Co. v. Hyde Construction Co., Inc., 236 So.2d 377 (Miss.1970); In Re Polo Grounds Area Project, 19 App.Div.2d 709, 241 N.Y.S.2d 822 (1963), affd, 14 N.Y.2d 779, 250 N.Y.S.2d 811, 199 N.E.2d 843 (1964); 7A C.J.S. Attorney and Client § 322.

For reasons which follow we hold that appellant is entitled to recover a fee in accordance with his contingent fee agreement with Frank Seltzer. However, that fee must be recovered solely from Frank Seltzer and must be determined by computing ten percent of the amount received by Frank Seltzer and not ten percent of the total verdict.

The trial court found that Atkin Seltzer had not entered any agreement with appellant, had not been a party to the agreement by which Frank Seltzer agreed to pay for appellant’s professional services, and did not incur liability to appellant on the basis of quantum meruit. These findings and conclusions were fully supported by the evidence and the applicable law. Not only did Atkin Seltzer not participate in Frank Seltzer’s hiring of appellant, but throughout the entire eminent domain proceedings he was represented by separate legal counsel.

Appellant argued in the trial court, as he does on appeal, that he had been hired to represent and did represent Frank Seltzer and Atkin Seltzer, partners, trading as Seltzer Coal Company. However, Atkin Seltzer had not been a partner in Seltzer Coal Company after 1961. The partnership was dissolved by agreement in December, 1960, and early in 1961 Frank Seltzer physically ejected Atkin Seltzer from the partnership property. Thereafter, Frank and his sons conducted the coal business, and Atkin Seltzer did not participate therein.

Portions of the land condemned by the Commonwealth on December 1, 1965 were held in the names of Frank and Atkin Seltzer, trading as the Seltzer Coal Company, while other condemned parcels were titled in the names of Frank and Atkin Seltzer, individually, as tenants in common. Frank Seltzer, having wrongfully ejected Atkin Seltzer from the partnership, had no authority to wind up partnership affairs following dissolution, 59 Pa.C.S. § 359; and Atkin Seltzer was not bound by the unilateral acts of Frank Seltzer after dissolution. 59 Pa.C.S. § 357(c)(3). See: 29 P.L.E. Partnerships §§ 293, 297. After dissolution of the partnership, all lands were owned by the brothers as tenants in common. Cf. Faust v. Heckler, 359 Pa. 19, 58 A.2d 147 (1948). Moreover, on December 1, 1965 title to the coal lands became vested in the Commonwealth. Van Cure v. Hartford Fire Insurance Co., 435 Pa. 163, 169, 253 A.2d 663, 666 (1969); Govatos v. the Redevelopment Authority of the County of Montgomery, 11 Pa.Cmwlth. 529, 533, 314 A.2d 536, 538 (1974); Section 402(a) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § l-402(a) (Supp. 1982-1983). Atkin and Frank Seltzer thereupon acquired a chose in action, which they held in common against the Commonwealth of Pennsylvania for the taking of their lands. See: Bidelman Estate, 360 Pa. 195, 201, 61 A.2d 355, 357-358 (1948); Smith v. Glen Alden Coal Co., 347 Pa. 290, 299, 32 A.2d 227, 232 (1943). See and compare: Boehm v. Barnes, 63 Pa.Cmwlth. 87, 89-90, 437 A.2d 784, 785 (1981).

During the litigation that followed the condemnation of the coal lands, Frank Seltzer was represented by Wilbur Rubright, Esquire, and Atkin Seltzer was represented by John Thomas, Esquire. The Seltzers’ claims against the Commonwealth were presented to a Board of View which assessed the damages to the fee interest in the real estate at $900,000.00. An appeal by the Commonwealth of Pennsylvania produced a total of three trials. The first trial resulted in a mistrial. The second trial occurred in Schuylkill County in October, 1970, when a jury returned an award of damages to the coal lands of $150,000.00. The trial court awarded a new trial which, upon appeal to the Commonwealth Court, was affirmed. It was only after this that Miernicki, the appellant herein, entered his appearance and became actively involved in the litigation at the request of Frank Seltzer. A change of venue was obtained to Chester County, where a third trial resulted in a verdict of $835,-064.96, plus damages for delay in payment. During that trial, Miernicki, Rubright and Thomas cooperated in presenting the joint eminent domain claims of Frank and Atkin Seltzer. Approximately one and one half months after the verdict had been returned, Miernicki commenced this action in equity. An agreement among the parties and their present and former attorneys made possible a partial distribution of the proceeds of the verdict, with the balance being placed in escrow to await the outcome of these proceedings.

The learned trial judge considered the history of the litigation and the relationship between the parties and their attorneys at great length and concluded that appellant had been employed solely by Frank Seltzer. He concluded that Frank Seltzer had neither actual nor apparent authority to bind Atkin Seltzer to pay a fee to appellant. The trial judge also found an absence of evidence that would have allowed appellant to recover counsel fees from Atkin Seltzer on grounds of ratification or estoppel. Atkin Seltzer, the record discloses, had employed John Thomas, Esquire, to represent him, was satisfied with his services, and agreed to compensate him for his services. At no time did he agree to pay a fee to appellant, Miernicki, who was his brother’s attorney. The trial court’s findings are fully supported by the evidence. Indeed, even appellant concedes that on the first day of trial in Chester County, Atkin Seltzer asked him what he was doing there, to which he responded that Frank Seltzer had retained him.

Moreover, the record is clear that Atkin Seltzer had not ever received a copy of any written fee agreement between appellant and Frank Seltzer, and was not himself a party to any contingent fee arrangement, either oral or written, by which appellant was to receive a percentage of the amount recovered on account of Atkin Seltzer’s interest in the real estate.

Appellant’s contingent fee agreement was with Frank Seltzer. The existence of the agreement was admitted conclusively by Frank Seltzer’s failure to file an answer to appellant’s complaint. That agreement was to pay counsel fees based on ten percent of the amount recovered. The amount recovered, however, can reasonably refer only to the amount recovered by Frank Seltzer. The percentage agreed to by the parties cannot be applied to the amount recovered by the other tenant in common or to the total verdict representing damages to the jointly owned fee. Because there was an admitted contingent fee agreement, appellant’s fees should have been determined in accordance therewith, and it was error to award fees on the basis of quantum meruit.

The decree in favor of Atkin Seltzer is affirmed. The decree awarding counsel fees against Frank Seltzer and in favor of Anthony Miernicki, Esquire, on the basis of quantum meruit is reversed, and the case is remanded for the entry of a decree awarding counsel fees to Miernicki in accordance with the foregoing opinion. Jurisdiction is not retained.

      . John H. Thomas, Esquire, who had represented Atkin Seltzer during the entire condemnation proceedings made satisfactory arrangements for payment of his fees and was not joined as a party in the equity action.

      . Frank Seltzer filed a separate appeal, but his appeal has been dismissed. In the instant appeal filed by Miernicki, the fees awarded to Rubright have not been challenged and are not before us for review.

      . By amendment of August 20, 1979, the words in parentheses were changed to "which contains a notice to defend.”


text:
    458 A.2d 571
    COMMONWEALTH of Pennsylvania v. John Henry BARTON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1982.
    Filed March 25, 1983.

      Robert Niels Tarman, Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

John H. Barton, Jr. was tried by jury and convicted of possession with intent to deliver a controlled substance. Post trial motions were filed and subsequently denied. He then entered negotiated pleas of guilty to two additional charges of possession with intent to deliver. On August 18, 1977, while represented by private counsel, he was sentenced on all convictions to three concurrent terms of imprisonment of not less than 772 nor more than 15 years. He filed neither motions to modify the sentences nor a direct appeal from any judgment of sentence.

A first P.C.H.A. petition was filed pro se on June 21, 1979. The only request for relief contained in that petition was that he be furnished with a copy of the record of prior proceedings. The Public Defender was appointed to represent appellant and was specifically granted leave to file an amended petition. When no amended petition was filed, the court granted appellant’s request for a copy of the record but otherwise dismissed the petition.

On February 4, 1980, a second P.C.H.A. petition was filed in which Barton alleged that he had been denied the right of allocution at the time of sentencing and requested the appointment of counsel. This petition was dismissed without hearing and without the appointment of counsel. Again, no appeal was filed.

A third P.C.H.A. petition was filed on May 1, 1981. In this petition, Barton again alleged that he had been denied the right of allocution at the time of sentencing. The court dismissed the petition without appointing counsel and without a hearing, holding that the issue had been waived. When an appeal was filed from this order, we directed that counsel be appointed, and the court below appointed the Public Defender to provide appellate representation.

Pa.R.Crim.P. 1504, in effect when appellant’s P.C.H.A. petitions were filed, provided as follows:

Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon.

Appellant’s second P.C.H.A. petition was clearly uncounseled. Our examination of the record discloses that appellant’s first P.C.H.A. petition was, for all practical purposes, uncopnseled as well. In Commonwealth v. Ollie, 304 Pa.Super. 505, 450 A.2d 1026 (1982), we said:

“The courts in this Commonwealth have repeatedly held that the mandatory appointment of counsel requirement of the Post Conviction Hearing Act ‘is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.’ Commonwealth v. Carrier, 494 Pa. 305, 309, 431 A.2d 271, 273 (1981), quoting Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975). See also: Commonwealth v. Scott, 469 Pa. 381, 383, 366 A.2d 225, 226 (1976); Commonwealth v. Hines, 287 Pa.Super. 291, 295, 430 A.2d 291, 292 (1981); Commonwealth v. Zaborowski, 283 Pa.Super. 132, 135, 423 A.2d 1023, 1025 (1980). When appointed counsel fails to amend an inarticulately drafted pro se P.C.H.A. petition, or fails otherwise to participate meaningfully, this court will ‘conclude that the proceedings were, for all practical purposes, uncounselled and in violation of the representation requirement of the PCHA. Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980).’ Commonwealth v. Carrier, supra [494 Pa.] at 310, 431 A.2d at 274.

Id., 304 Pa.Superior at 508, 450 A.2d at 1027-1028. See also: Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980). When the Public Defender was appointed to represent appellant in the first P.C.H.A. proceeding, he was specifically granted leave to file an amended P.C.H.A. petition. He did nothing. When the P.C.H.A. petition was not amended to request substantive relief, it was dismissed without hearing. Under these circumstances, we deem the first P.C.H.A. petition uncounseled.

Because the first two petitions were uncounseled, Pa.R. Crim.P. 1504 required that counsel be appointed by the trial court to represent appellant during the present P.C.H.A. proceedings. The trial court declined to appoint counsel, however, and it was not until after an appeal had been filed from the dismissal of the petition without hearing that this Court directed the appointment of counsel. In response to this Court’s directive, the trial court appointed the Public Defender to represent appellant. The Public Defender had also been the attorney appointed to represent appellant when he filed his first petition.

Appellate counsel argues, as was averred in the third P.C.H.A. petition, that appellant was denied the right of allocution at the time of sentencing. Unless this issue is so frivolous as to render harmless the trial court’s error in refusing to appoint counsel, we are required to remand for the appointment of new counsel. See: Commonwealth v. Carrier, supra 494 Pa. at 309, 431 A.2d at 273; Commonwealth v. Watlington, supra 491 Pa. at 245, 420 A.2d at 433; Commonwealth v. Sangricco, supra 490 Pa. at 133-134, 415 A.2d at 68-69; Commonwealth v. Fiero, supra 462 Pa. at 411-412, 341 A.2d at 449-450; Commonwealth v. Ollie, supra 304 Pa.Super. at 509, 450 A.2d at 1028; Commonwealth v. Hines, supra at 287 Pa.Super. 294-295, 430 A.2d at 292; Commonwealth v. Zaborowski, supra 283 Pa.Super. at 135-136, 423 A.2d at 1025.

We are unable to conclude, with the case in its present posture, that appellant’s request for collateral relief is frivolous. On the contrary, it is possible that substantive merit lurks in appellant’s inarticulately drawn petition. The burden which he must carry, however, is heavy. Before a court can consider the merits of his allocution claim, appellant will have to show that he has not waived the claim. To do this he will have to prove that counsel was ineffective by causing appellant’s “failure to exercise his right to take a direct appeal, a right of which appellant had been fully apprised by the trial court.” Commonwealth v. Gardner, 499 Pa. 263, 266 n. 2, 452 A.2d 1346, 1347 n. 2 (1982). “If the alleged ineffectiveness [of sentencing counsel] is not related to the decision to waive the appeal, such a claim will not be considered once it is established that there has been an effective waiver.” Commonwealth v. Jumper, 494 Pa. 451, 454, 431 A.2d 941, 942 (1981). See: Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). A waiver of appellate rights is effective where a defendant is aware of the right to an appeal and the right of assistance by free counsel if he cannot afford his own attorney. Commonwealth v. Thompson, 302 Pa.Super. 19, 26, 448 A.2d 74, 77 (1982). See: Commonwealth v. Jumper, supra 494 Pa. at 456, 431 A.2d at 943-944; Commonwealth v. Maloy, 438 Pa. 261, 263, 264 A.2d 697, 698 (1970). Unless there is no reasonable basis for failing to do so, trial counsel is under no duty to file an appeal unless requested to do so. Commonwealth v. Roach, 307 Pa.Super. 506, 510, 453 A.2d 1001, 1003 (1982). See: Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980); Commonwealth v. Smith, 478 Pa. 76, 80, 385 A.2d 1320, 1322-1323 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 277-278, 372 A.2d 687, 695-696 (1977); Commonwealth v. Vasquez, 268 Pa. Super. 295, 297, 408 A.2d 154, 155 (1979).

Additionally, appellant will not be entitled to relief unless he can show prejudice as a result of sentencing counsel’s alleged ineffectiveness in failing to preserve appellant’s right to allocution. See: Commonwealth v. Lowry, 260 Pa.Super. 454, 462-463, 394 A.2d 1015, 1019 (1978). See generally: Commonwealth v. Ford, 491 Pa. 586, 592, 421 A.2d 1040, 1043 (1980); Commonwealth v. Wade, 480 Pa. 160, 172, 389 A.2d 560, 566 (1978); Commonwealth v. Smallwood, 465 Pa. 392, 397-398, 350 A.2d 822, 825 (1976); Commonwealth v. Galloway, 302 Pa.Super. 145, 154, 448 A.2d 568, 573 (1982). A bare denial of the right to allocution, without evidence that appellant had something to say, will not require the vacation of an otherwise proper sentence. That which he wished to say, moreover, must be such as would likely have influenced the sentence imposed. To require a vacating of the sentence and a subsequent re-sentencing, appellant will have to show that the sentencing judge was either misinformed or uninformed regarding one or more relevant circumstances. The sentence need not be vacated in order to provide appellant an opportunity to speak if he has nothing significant to say. Commonwealth v. Rivera, 309 Pa.Super. 33, 39, 454 A.2d 1067, 1070 (1982).

The right to allocution is neither constitutional nor jurisdictional. The failure to ask a defendant if he has anything to say before sentence is imposed is not a fundamental defect inconsistent with rudimentary requirements of due process or an error inherently resulting in a miscarriage of justice. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962). Thus, as the Supreme Court held in Hill, collateral relief is not available when a petitioner shows merely a formal failure to comply with a rule requiring the court to invite a defendant to speak before sentence is imposed.

The right of allocution in Pennsylvania is also based upon procedural rule. See: Pa.R.Crim.P. 1405(a). A mere failure to comply formally with the mandate of Rule 1405(a), which requires the court to invite a defendant to speak, does not destroy the validity of an otherwise legal sentence and render it susceptible to collateral attack. Hill v. United States, supra.

Because we have before us only an uncounseled petition, we are unable to determine (1) whether appellant was prejudiced when the sentencing court, although asking him about the offense, failed to ask him if he had anything further to say before sentence was imposed, and (2) whether, in any event, the issue was waived by appellant’s failure to take a direct appeal. Therefore, we must remand for the appointment of counsel who should examine the circumstances surrounding the imposition of sentence and determine whether they will sustain an amended P.C.H.A. petition. Because of the Public Defender’s prior involvement, counsel should be appointed who is not affiliated with the Public Defender’s office.

Reversed and remanded for proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

POPOVICH, J., concurs in the result.

      . Post trial motions were filed on June 21, 1976. Appellant was released on bail and absconded. The trial court denied the post trial motions on September 8, 1976 without considering the merits. During the sentencing proceedings the court invited appellant to renew his post trial motions, but appellant declined to do so.

      . Pa.R.Crim.P. 1504 has been replaced by Pa.R.Crim.P. 1507, effective June 27, 1982. New Rule 1507 now provides in pertinent part:
      (a) A Motion for Post Conviction Relief may be dismissed without a hearing and without appointment of counsel when a previous motion involving the same issue or issues has been finally determined adversely to the defendant, and the defendant was provided the opportunity to have counsel in the prior proceedings.
      (b) A Motion for Post Conviction Relief may be dismissed without a hearing after the defendant has been provided an opportunity to have counsel when the motion is patently frivolous or when the facts alleged would not, even if proven, entitle the defendant to relief.


author: McEWEN, Judge:

text:
    458 A.2d 575
    COMMONWEALTH of Pennsylvania v. Anthony WILCOX, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1982.
    Filed March 25, 1983.

      Allan L. Tereshko, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   McEWEN, Judge:

We here consider an appeal from the judgment of sentence in which appellant challenges the denial of his motion to vacate his negotiated plea of guilty to second degree murder for which he was sentenced to a term of imprisonment for life. We affirm.

Appellant argues that his guilty plea was not entered knowingly and voluntarily since: (1) the prosecutor “bargained unfairly with an unrealistic threat of a potential death penalty”; and (2) he was not informed of his right to participate in the selection of prospective jurors. He also alleges that trial counsel was ineffective (1) for failing to withdraw as counsel so as to allow new counsel to be appointed to represent him in seeking the vacation of his guilty plea; and (2) “because he was allowed to believe that the death penalty was a realistic alternative to pleading guilty to second degree murder.” We find no merit to these contentions.

A summary of the evidence which the Commonwealth intended to introduce against appellant at trial was presented by the assistant district attorney during the guilty plea hearing and established that on the evening of October 29, 1980, appellant, together with his accomplice co-defendant, Quinn Williams, accosted and robbed James Healey on a street in North Philadelphia. The robbery victim was shot in the head with a pistol held by appellant and subsequently died of that wound. The assistant district attorney indicated at the guilty plea hearing that four eyewitnesses would have testified at trial on behalf of the Commonwealth that they witnessed appellant and Williams commit the robbery and saw appellant shoot the victim. The Commonwealth would also have presented testimony: (1) from the individual who lent appellant the weapon which inflicted the fatal wound; and (2) from a woman to whom appellant admitted the shooting when he fled to her home, while still armed with the pistol.

The Commonwealth at the guilty plea hearing read into the record the entire text of a signed confession made by appellant to the police shortly after the shooting in which appellant admitted that on the afternoon of the shooting appellant and his companion had decided to commit a robbery in order to acquire money for gambling and that they borrowed a pistol from a friend of appellant and began to search for a victim. When appellant and Williams saw James Healey walking down the street they agreed to rob him. Williams, the accomplice, approached Healey and pushed him into an alley where appellant brandished a gun in the face of the victim and demanded money. While the accomplice went through his pockets, the victim struggled and yelled for assistance. Appellant confessed that during the struggle he hit the victim on the head with the gun, that the gun fired and that he and Williams then fled the scene of the crime.

Appellant was subsequently arrested and charged with murder, involuntary manslaughter, robbery, conspiracy, possession of an instrument of crime and firearms offenses. Appellant filed in timely fashion a motion to suppress (1) his statement, (2) his arrest on grounds of lack of probable cause, and (3) the identifications of certain eyewitnesses who made photographic identifications of him. Following a hearing on April 8 and April 9, 1981, the distinguished Judge Albert F. Sabo denied the entire motion to suppress and, five days later, on April 13, 1981 appellant entered his negotiated plea of guilty to second degree murder and was sentenced to life imprisonment. This appeal follows the denial by the Common Pleas Court, after hearing, of the motion to vacate the guilty plea.

The Supreme Court observed, in Commonwealth v. Shaffer, 498 Pa. 342, 345-346, 446 A.2d 591, 592-593 (1982), that there is an important distinction between a pre-sentencing attempt to withdraw a guilty plea and a post-sentencing attempt to do so:

The standard for allowing withdrawal of a guilty plea prior to sentence was articulated in Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973) wherein we quoted with approval the following:
Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea. A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty____
(emphasis in original) ...
Because the plea involves the simultaneous waiver of so many constitutional rights, a request to withdraw prior to sentencing is “liberally allowed.” Id., 450 Pa. at 190, 299 A.2d at 271; see also, Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976).
When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, however, it is well-established that “a showing of prejudice on the order of manifest injustice,” Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973), is required before withdrawal is properly justified. See also, Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979); Commonwealth v. Rosmon, 477 Pa. 540, 384 A.2d 1221 (1978); Commonwealth v. Riggins, 474 Pa. 507, 378 A.2d 1229 (1977); American Bar Association Standards for Criminal Justice, Pleas of Guilty, Standard 14-2.1 (2d Ed.1980). Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden because of the recognition that a plea withdrawal can be used as a sentence-testing device. Commonwealth v. Starr, 450 Pa. at 489, 301 A.2d at 594 (1973). If a plea of guilty could be retracted with ease after sentencing, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. Id. 498 Pa. at 345-46, 446 A.2d at 593.

See also, Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600; Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982).

The Supreme Court observed that manifest injustice exists where the plea was involuntary, or was entered without knowledge of the charge and further stated that “some demonstration must be made that the plea was not voluntary or that the plea was entered without knowledge of the charge such that refusing to allow the petitioner to withdraw his plea would amount to a manifest injustice.” Commonwealth v. Shaffer, supra 498 Pa. at 347, 446 A.2d at 593, citing American Bar Association Standards for Criminal Justice, Pleas of Guilty, Standard 14—2—l(b)(ii). Appellant has failed to provide such a demonstration in this case.

The initial argument of appellant that his guilty plea was involuntary because the prosecutor unfairly bargained with an unrealistic threat of the death penalty conspicuously ignores the true reason for the entry of his plea of guilty to second degree murder, namely, escape from the death penalty. Under the terms of the negotiated plea, the Commonwealth agreed to forego its opportunity to convict appellant of first degree murder and seek imposition of the death penalty, and, in addition, agreed to nol pros the remaining charges in return for his plea of guilty to second degree murder. The responses which appellant made to certain questions during the careful and thorough guilty plea colloquy conducted before Judge Sabo made amply clear that his desire to avoid exposure to the death penalty was the reason for his plea since he was specifically apprised that the district attorney would seek a conviction on the charge of murder in the first degree and the imposition of the death penalty if he chose to proceed to trial instead of enter the plea.

We further observe that the claim of appellant that there was no realistic possibility that he could be convicted of first degree murder and sentenced to death is not consistent with the summary of the evidence provided by the district attorney or with the testimony provided by the medical examiner at the trial of co-defendant Williams to which the hearing judge made reference during the hearing on the motion to vacate the plea. The testimony of the medical examiner established two crucial facts: (1) that the bullet entered the head of the victim from the right rear and penetrated to the left frontal part of his head; and (2) that there were no powder burns on the head of the victim, a fact which indicated that the gun was approximately twelve inches from the head at the time it fired. As a result, the hearing judge observed, this testimony would: (1) allow a jury to find that the victim was shot from behind; and (2) allow a jury to infer a specific intent to kill and, thereby, support a conviction of first degree murder with a possible sentence of life imprisonment or imposition of the death penalty. See Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981). (specific intent to kill may be inferred from the use of a deadly weapon on a vital part of the body of another); Commonwealth v. Robinson, 468 Pa. 575, 583, 364 A.2d 665, 669 (1976) (period of premeditation necessary to form specific intent may be very brief); Commonwealth v. O’Searo, 466 Pa. 224, 238-39, 352 A.2d 30, 37 (1976) (design to kill can be formulated in a fraction of a second). See also Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007 (1980). Even if the death penalty had not been imposed following a conviction of appellant by a jury of first degree murder, he could have received, in addition to the mandatory life sentence, additional terms of imprisonment consecutive to the life sentence on the charges of conspiracy, robbery and violations of the Uniform Firearms Act. Appellant would have faced, under such circumstances, a potential penalty of ten to twenty years on each of the charges of conspiracy and robbery which could have been imposed consecutively, see e.g. Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981); Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981), and could have been convicted of violations of the Uniform Firearms Act, each of which carries a potential penalty of two and a half to five years. See Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979); Commonwealth v. Jeter, 275 Pa.Super. 89, 418 A.2d 625 (1980). Thus, appellant gained a substantial benefit by pleading guilty to second degree murder since, by so doing, he not only eliminated the potential for the imposition of the death sentence but he also avoided potential convictions and sentences on the other charges which the Commonwealth had agreed to nol pros in accordance with the terms of the negotiated plea.

Appellant would still have gained a benefit by entering the negotiated plea even if we assume that a jury would not have convicted him of first degree murder but instead had returned a verdict of guilty of second degree murder, since, under the terms of negotiated plea, the Commonwealth agreed to nol pros all remaining charges, including robbery, conspiracy and violations of the Uniform Firearms Act as discussed above. Counsel for appellant himself explained to appellant during the course of the guilty plea colloquy that, had he requested a jury trial, the jury would also consider whether he was guilty of the additional charges and that a conviction on those charges could have led to a substantial term of imprisonment consecutive to a life sentence for second degree murder. Appellant indicated during the guilty plea colloquy that he understood this possibility. We conclude that the contention of appellant that he did not enter his guilty plea knowingly and voluntarily is frivolous and without any basis in the record.

Appellant next contends that he was not informed of his right to participate in the selection of prospective jurors. The record of the guilty plea colloquy flatly contradicts this contention. We observe that, during the hearing on the motion to vacate the guilty plea, appellant himself agreed with the hearing judge, after a review of the notes of testimony of the guilty plea hearing, that he had been informed by the trial judge that he had the right to be tried before a jury of twelve persons and that he could participate in the selection of the twelve jurors. (N.T. 5/14/81, p. 17). We reject this claim without further discussion.

Appellant finally contends that he was denied the effective assistance of counsel: (1) because counsel, when defendant decided to withdraw his guilty plea, became inherently ineffective since he “could not be expected to vigorously undo all that he had just completed”; and (2) because he was allowed to believe that the death penalty was a realistic alternative to pleading guilty to second degree murder. We find no merit to either one of these contentions. It is quite clear that the reason why the court refused to allow appellant to withdraw his guilty plea was not due to any deficiency in the stewardship of his counsel but was rather the result of the conclusion by the hearing judge that the testimony of appellant at the hearing on his motion to vacate his plea was simply not credible. We need not comment further on the final allegation of appellant of ineffective assistance since our previous discussion makes clear that this argument is wholly without merit.

Judgment of sentence affirmed.

      . Appellant was charged with violations of 18 Pa.C.S.A. § 6106 and § 6108 under the Uniform Firearms Act, 18 Pa.C.S.A. § 6101 et seq. Convictions of and sentencing upon the other weapons offenses, 18 Pa.C.S.A. § 907 and 18 Pa.C.S.A. § 908 would have been barred by 18 Pa.C.S.A. § 906, assuming arguendo that appellant would have been convicted of criminal conspiracy, 18 Pa.C.S.A. § 903.

      . Judge Sabo further apprised appellant during the hearing on his motion to vacate his guilty plea that, as a result of the representation of trial counsel, he had fared better by entering the negotiated plea than had his co-defendant who had neither possessed nor fired the weapon. The co-defendant had gone to trial, prior to the entry of the guilty plea by appellant, and was convicted of second degree murder as well as of criminal conspiracy. As a result, the co-defendant received a further sentence of five to ten years on the conspiracy conviction, to run concurrent with the life sentence imposed on the murder conviction.