author: KELLY, Judge:

text:
    562 A.2d 833
    COMMONWEALTH of Pennsylvania v. Meredith PENN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 7, 1988.
    Filed July 7, 1989.
    Eeargument Denied Aug. 31, 1989.

      Athena M. Dooley, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before CIRILLO, President Judge, and BECK and KELLY, JJ.
   KELLY, Judge:

In this case we are called up to determine whether the trial court abused its discretion and committed reversible error in closing a trial to the public during the testimony of a Commonwealth witness who alleged that he had been threatened and harassed by unidentified persons who did not want him to testify against appellant at his murder trial. For the reasons which follow, we reverse and remand for a new trial.

The relevant facts may be accurately summarized as follows. Appellant was arrested and brought to trial on murder charges relating to the shooting death of his estranged common-law wife in Philadelphia on August 4, 1984. Mr. Theodore Reed, a security guard and friend of appellant, was subpoenaed to testify against appellant regarding a full and detailed confession of the crime made by appellant to Mr. Reed shortly after the murder. Mr. Reed failed to appear in compliance with the subpoena and so a bench warrant was issued for his arrest.

Prior to the start of the afternoon session on the second day of the trial, the prosecutor informed the court that Mr. Reed had voluntarily presented himself at the prosecutor’s office and was now prepared to comply with the subpoena. The prosecutor informed the court further that Mr. Reed had explained his failure to appear as the result of his fear following the breaking of several windows at his home and the receipt of several anonymous calls on the previous evening which threatened injury to him and his four children if he testified against appellant at trial, as well as being accosted outside the courtroom that morning by persons he could not or would not identify, who also requested that he change his testimony. The prosecutor indicated that Mr. Reed was “perfectly willing to testify, but that he was very intimidated about testifying in front of a full courtroom.” (N.T. 9/10/86 at 89). The prosecutor moved that the bench warrant against Mr. Reed be withdrawn, and that the court be closed to spectators during Mr. Reed’s testimony.

Counsel for appellant agreed that anyone who was attempting to intimidate a witness or suborn perjury should be identified and prosecuted. Counsel indicated that there were numerous defense witnesses and supporters present for the trial and requested that Mr. Reed be brought in to view those present and then have him identify anyone who intimidated him, or of whom he was afraid. Counsel noted that Mr. Reed was an adult male who was employed as a security guard, and not a child witness or a victim of a sex crime for whom special consideration might be appropriate. Finally, counsel objected to the motion to clear the courtroom of all spectators during Mr. Reed’s testimony on the basis of appellant’s Sixth Amendment right to a public trial.

The trial court granted the motion to close the courtroom during Mr. Reed’s testimony and denied appellant’s motion for a mistrial on the basis of the closure. After Mr. Reed’s testimony, the public was again admitted into the courtroom.

Appellant was convicted of murder in the first degree and possession of an instrument of crime. Post-verdict motions were filed, briefed, argued, and denied. On January 28, 1987, appellant was sentenced to life imprisonment on the murder conviction and a concurrent two and one-half to five year term of imprisonment on the possession of an instrument of crime conviction. This timely appeal followed.

On appeal, appellant challenges the partial closure of the trial and raises three other claims of trial court error and fourteen allegations of ineffective assistance of counsel. Because we find merit in appellant’s Sixth Amendment denial of a public trial claim, we decline to address his other assertions of error.

Appellant argues that reversal is mandated by our Supreme Court’s decision in Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578 (1982) (plurality). The Commonwealth notes that because Contakos was a plurality opinion it is not binding on this Court, and argues instead that a trial court has inherent discretionary authority to clear the court during the testimony of a witness who has been threatened. The Commonwealth cites Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976) and Commonwealth v. Wright, 255 Pa.Super. 512, 388 A.2d 1084 (1978) as controlling precedent. While each of the cases cited by the parties is relevant to our decision, our course lies between the two extremes urged and is guided by other authorities as well.

“Criminal trials in the United States have, by historical tradition, and under the First Amendment, been deemed presumptively open to public scrutiny and this ‘... presumption of openness inheres in the very nature of the criminal trial under our system of justice.’ ” Commonwealth v. Fenstermaker, 515 Pa. 501, 506, 530 A.2d 414, 417 (1987), quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973, 987 (1980). The purposes of openness have been summarized as follows:

... generally, to assure the public that justice is done even-handedly and fairly; to discourage perjury and the misconduct of participants; to prevent decisions based on secret bias or partiality; to prevent individuals from feeling that the law should be taken into the hands of private citizens; to satisfy the natural desire to see justice done; to provide for community catharsis; to promote public confidence in government and assurance that the system of judicial remedy does in fact work; to promote the stability of government by allowing access to its workings, thus assuring citizens that government and the courts are worthy of their continued loyalty and support; to promote an understanding of our system of government and courts.

Commonwealth v. Fenstermaker, supra, 530 A.2d at 417, citing Richmond Newspapers, Inc. v. Virginia, supra and Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The openness of criminal trials and the purposes which this openness is intended to serve, are protected not only by tradition, but by provisions in both the United States and the Pennsylvania Constitutions as well. See U.S. Const. Amend. 1; U.S. Const. Amend. 6; U.S. Const. Amend. 14; Pa. Const. Art. 1, sec. 7; Pa. Const. Art. 1, sec. 9; Pa. Const. Art. 1, sec. 11.

In the instant case, appellant only raised a federal Sixth Amendment claim at trial. He has waived any separate claims under other provisions of the United States or Pennsylvania Constitutions relating to the right to a public trial. In noting this fact we do not imply that other constitutional provisions would be construed to provide different protection or require different analysis. Rather, we merely note that the issue preserved and the analysis which follows are limited to the consideration of appellant’s Sixth Amendment rights.

In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the United States Supreme Court noted the particular interests of criminal defendants which the openness of criminal proceedings mandated by the Sixth Amendment was designed to protect:

The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions____
In addition to ensuring the judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.

Though the right to an open public trial is central to our system of criminal justice, the right is not absolute. In Waller v. Georgia, supra, the Supreme Court explained:

The right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.

467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed.2d at 38.

Courts have generally held that limitations on public access to criminal proceedings may also be justified by: courtroom capacity limitations; the need to preserve order and decorum; the need to protect victims, witnesses, or jurors from serious embarrassment, trauma or intimidation; and, the need to protect youthful spectators from exposure to testimony which might shock, distress, or tend to corrupt morals. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510-12 & n. 10, 104 S.Ct. 819, 824-25 & n. 10, 78 L.Ed.2d 629, 638-39 & n. 10 (1984) (serious embarrassment of jurors during voir dire); Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 600 & n. 5, 100 S.Ct. at 2840 & n. 5, 65 L.Ed.2d at 1005 & n. 5 (capacity limitations, serious embarrassment of youthful victim of a sex crime); Gannett Co. v. DePasquale, supra, 443 U.S. at 388 n. 19, 99 S.Ct. at 2910 n. 19, 61 L.Ed.2d at 626 n. 19 (serious trauma, embarrassment or intimidation of adult or juvenile witnesses or victims; juvenile spectators; order and decorum); Commonwealth v. Berrigan, 509 Pa. 118, 128-33, 501 A.2d 226, 232-34 (1985) (courtroom capacity; juror intimidation; order and decorum); Commonwealth v. Knight, supra, 364 A.2d at 906 & nn. 6-9 (trauma to child witness, order and decorum, juvenile spectators); Commonwealth v. Burton, 459 Pa. 550, 557-59, 330 A.2d 833, 837 (1975) (intimidation of an adult witness); Commonwealth v. Trinkle, 279 Pa. 564, 569-71, 124 A. 191, 193 (1924) (capacity of temporary courtroom at witness’ sick bed).

This case involves an order which directed the court to be cleared during the testimony of a witness who was reported to have claimed that he was intimidated by unnamed persons who sought to prevent or alter his testimony against appellant. In appropriate cases, full or partial closure of criminal proceedings may properly be granted in response to witness intimidation. See Gannett Co. v. DePasquale, supra, 443 U.S. at 388 n. 19, 99 S.Ct. at 2910 n. 19, 61 L.Ed.2d at 626 n. 19 (collecting cases); Commonwealth v. Berrigan, supra, 501 A.2d at 232 ( intimidation of jurors during voir dire); Commonwealth v. Burton, supra, 330 A.2d at 837 (defendant’s wife and other identified spectators were removed during the testimony of a particular witness to prevent intimidation); Commonwealth v. Principatti, 260 Pa. 587, 598, 104 A. 53, 57-58 (1918) (trial court was held to have erred in holding that it had no power to clear the court during testimony of witness who feared intimidation and retaliation); Commonwealth v. Wright, supra, 388 A.2d at 1086 (courtroom was properly cleared during cross-examination of a visibly traumatized rape victim who had been threatened by members of the defendant’s family).

Witness intimidation and retaliation against witnesses are serious crimes which the Commonwealth has clear interest in deterring, detecting, and sanctioning. First and foremost, the Commonwealth has an interest in protecting its citizens from intimidation and injury by criminal conduct. Second, the Commonwealth also has an interest in protecting victims and witnesses from intimidation or retaliation because of the indispensable role they play in the operation of the justice system. In NLRB v. Indiana & M.E. Co., 318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579 (1942), Justice Robert H. Jackson forcefully admonished:

The influence of lawless force directed toward parties or witnesses to proceedings during their pendency is so sinister and undermining of the process of adjudication itself that no court should regard it with indifference or shelter it from exposure and inquiry.

318 U.S. at 29, 63 S.Ct. at 405, 87 L.Ed. at 592. Succinctly, if the means of justice are to be preserved and the ends of justice protected, courts must exercise their discretion so as to dispel any belief that intimidation of victims or witnesses will serve the ends to which the intimidation is directed.

Studies in the early part of this decade revealed that witness intimidation was more prevalent and more disruptive of the administration of criminal justice than had generally been assumed. See Connick & Davis, Examining the Problem of Witness Intimidation, 66 Judicature 438, 438-46 (1983); see also Hudson, The Crime Victim and the Criminal Justice System: Time For A Change, 11 Pepperdine L.Rev. 23, 52-55 (1984). Results of studies in various jurisdictions indicated that from 8% to 48% of all complaining witnesses had been subjected to some form of intimidation by the defendant or someone acting on the defendant’s behalf. The studies also revealed that while most witnesses who reported intimidation attempts found the official response helpful, many felt that the response was nonetheless inadequate. Connick & Davis, supra, 66 Judicature at 45. One New York study disclosed that even after prior intimidation had been reported, 22% of the victims were again subjected to intimidation; the rate was even higher when, as here, the defendant and the witness knew each other prior to the offense pending before the court (30% versus 12% where the witness and the defendant were strangers to each other). Id.

In 1980 (shortly before the studies discussed above had been reported), Pennsylvania enacted new statutory provisions designed to empower the criminal justice system to respond more effectively to the problem of witness intimidation. See 18 Pa.C.S.A. §§ 4951-4956. The basic components of the new provisions were: the regrading of many forms of intimidation as a third degree felony (rather than a simple misdemeanor); providing for protective orders and contempt powers to enforce such orders; and, providing that, any pre-trial release must include conspicuous notice that the terms of the release include, as a matter of law, a condition that the defendant neither do, cause to be done, nor permit to be done any act of intimidation or retaliation against the victim or any witness to the crime charged against the defendant who had been granted the pre-trial release. This Commonwealth has thus expressly recognized its vital interest in deterring, detecting, and sanctioning attempts to intimidate victims and witnesses.

However, a bald assertion of alleged intimidation does not justify the kind of encroachment on a defendant’s Sixth Amendment right to a public trial which clearing the courtroom for a witness’ testimony entails. To the contrary, specific procedures designed to ensure a proper balancing of competing interests must be followed before even a partial closure for a single witness’ testimony may be ordered. In Waller v. Georgia, supra, the Supreme Court held unanimously that:

“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed.2d at 36, quoting Press Enterprise Co. v. Superior Court, supra, 464 U.S. at 510, 104 S.Ct. at 824, 78 L.Ed.2d at 638.

In the instant case, the trial court made no findings whatsoever regarding the nature, extent, or impact of the alleged intimidation on Mr. Reed. Rather than questioning Mr. Reed himself, the trial court relied entirely on the prosecutor’s second-hand, hearsay, rendition of the allegations made by Mr. Reed in explanation of his failure to comply with the court’s subpoena. Indeed, the trial court specifically stated:

Let me say this for the record. The Sixth Amendment in my legal opinion, and I so find, the Sixth Amendment, the right to an open trial, has to give way in a situation where a witness claims he was threatened.
I can’t determine whether or not he is actually threatened right now, and if he was by whom, but I have to give weight to that kind of statement because we cannot have any witness hurt or have his family threatened or hurt and then later we find that we should have done something.

I believe the Sixth Amendment right has a limitation as to the safety of the family and/or the witness involved. (N.T. 9/10/86 at 93). (Emphasis added).

We find that the trial court abused its discretion in failing to examine Mr. Reed for itself, in camera if necessary, in order to access his credibility and to determine the nature, extent, and impact of any attempts to intimidate Mr. Reed and prevent or alter his testimony, or to otherwise make specific factual determinations based upon sufficiently reliable information which would support a conclusion that important interests existed which would justify the partial closure ordered. While the right to a public trial may certainly bow to interests in protecting witnesses from injury or intimidation in some cases, such an encroachment on a defendant’s rights requires, at a minimum, that the trial court first determine whether or not the threat of injury or intimidation in fact exists. See Waller v. Georgia, supra.

Likewise, we find that the trial court abused its discretion in failing to consider alternatives to closure and explain on the record why alternatives would be impractical or inadequate to serve the interest(s) that closure of the trial during Mr. Reed’s testimony was intended to protect. See Commonwealth v. Buehl, 316 Pa.Super. 215, 226, 462 A.2d 1316, 1322 (1983). In the instant case, the trial court failed entirely to explain why ordinary or augmented courtroom security measures would not be sufficient to ensure Mr. Reed’s safety while he testified in open court, or how closure of the court during his testimony would protect Mr. Reed or his children from retaliation outside of the courtroom.

Closure of the courtroom to the public is not the only, nor necessarily the most effective, response to victim intimidation. In response to reports of intimidation a trial court may, among other options: act to have the parties involved identified and prosecuted; enter appropriate protective orders; issue appropriate admonitions to the defendant and any courtroom spectators regarding applicable criminal sanctions as well as the court’s contempt powers which would be invoked in response to any attempt to injure or intimidate a witness; and, direct that appropriate security measures be taken to ensure safety within the courthouse. While deference to law enforcement personnel with expertise and experience in witness protection would certainly be appropriate in making findings as to what measures are necessary in a particular case to ensure the safety of a witness and to protect a witness from intimidation, closure of the courtroom, nevertheless, should remain the last option considered or employed.

As indicated above, we are well aware of the Commonwealth’s vital interests in protecting the safety of witnesses and ensuring the integrity of the criminal justice system. Our conclusion that closure of the court in this case was improper is in no way intended to minimize those interests or suggest that full or partial closure as to some or all members of the public would not be appropriate in response to victim or witness intimidation in other cases. To the contrary, there are certainly circumstances where such drastic measures may be necessary, and therefore constitutionally permissible. We simply hold that in the instant case the findings required to justify such an order were not made.

The denial of a defendant’s Sixth Amendment right to an open public trial during the testimony of a Commonwealth witness at trial requires reversal and remand for a new trial. See Waller v. Georgia, supra, 467 U.S. at 49-50, 104 5. Ct. at 2217, 81 L.Ed.2d at 40-41; Commonwealth v. Contakos, supra, 453 A.2d at 582 (per Flaherty, J; Larsen, J, joined); id. (per Roberts, J; O’Brien, C.J, joined); Commonwealth v. Knight, supra, 364 A.2d at 906; Commonwealth v. Johnson, 309 Pa.Super. 367, 376, 455 A.2d 654, 658 (1982). But see Waller v. Georgia, supra, 467 U.S. at 49-50, 104 S.Ct. at 2217, 81 L.Ed.2d at 40-41 (a new trial is not automatically required for improper closure of a suppression hearing, rather a new open suppression hearing must be held, and a new trial will be granted only if the new open suppression hearing results in the suppression of evidence not suppressed in the closed hearing which might reasonably have altered the outcome at trial); Commonwealth v. Murray, supra, 502 A.2d at 629-31 (despite improper closure of the preliminary hearing neither a new trial nor a new preliminary hearing were required; rather, the defect was cure by a fair and open trial, and the availability of an interlocutory appeal would prevent repetition of the error in subsequent proceedings).

Conclusion

Based upon the foregoing, judgment of sentence is reversed and the case is remanded for a new trial. Jurisdiction relinquished.

      . See also Commonwealth v. Howard, 324 Pa.Super. 443, 449-56, 471 A.2d 1239, 1242-45 (1984) (order and decorum, intimidation of jurors and witnesses, general security); Commonwealth v. Smith, 280 Pa.Super. 222, 224-25, 421 A.2d 693, 694 (1980) (dicta, embarrassment, trauma of rape victim); Commonwealth v. Wright, supra, 388 A.2d at 1086 (embarrassment, trauma of adult rape victim, intimidation of witnesses); Commonwealth v. Hodge, 246 Pa.Super. 71, 78, 369 A.2d 815, 819 (1977) (dicta, voluntary removal of high school students to minimize trauma to adult rape victim and protect the sensibilities of juvenile spectators); Commonwealth v. Stevens, 237 Pa.Super. 457, —, 352 A.2d 509, 514 (1975) (embarrassment, trauma of adult rape victim), Commonwealth ex rel. Paylor v. Cavell, 185 Pa.Super. 176, 182, 138 A.2d 246, 249 (1958) cert. denied 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 88 (1958) (dicta, courtroom capacity, juvenile spectators); Annotation, Exclusion of Public from State Criminal Trial In Order to Avoid Intimidation of Witness, 55 A.L.R.4th 1196 (1987 & 1988 Supp.); Annotation, Exclusion of Public From State Criminal Trial In Order to Prevent Disturbance By Spectators or Defendant, 55 A.L.R.4th 1170 (1987 & 1988 Supp.); Annotation, Federal Constitutional Right To A Public Trial In Criminal Case — Federal Cases, 61 L.Ed.2d 1018 (1980 & 1988 Supp).

      . We note, however, the following sober assessment of such reforms by Paul Hudson of the New York State Crime Victim’s Board:
      A model statute prepared and issued by the American Bar Association in 1980 has provided the guidance for new legislation enacted in seven states and by the federal government. While the enactments are too recent for any studies to be completed on the effect of these reforms, at least one study done in the New York City court system in 1981 indicates that much more than a new statute will be required. This study indicates the need for higher penalties, admonishments, orders of protection, bail revocations, relocation services, security of waiting areas and, most importantly, prosecution and investigation of reported intimidation on a systematic basis. Present levels of prosecution are so low, and response of many police agencies to reported threats is so inadequate (i.e., nothing can be done unless a crime is committed or until the defendant takes overt action to carry out his threats), that major efforts by the criminal justice system would be required to restore a sense of deterrence in criminal defendants and a sense of confidence in victims.
      Hudson, supra, 11 Pepperdine L.Rev. at 54-55 (footnotes omitted). Victim intimidation arrest statistics are not reported separately in Pennsylvania’s annual Uniform Crime Report; moreover, we have been unable to discover any statistical account of the numbers of protective orders entered or pre-trial release revocations ordered relating to witness intimidation since the 1980 reforms were enacted. Only three appellate decisions have been reported relating to the provisions, an indication, perhaps, that they are underemployed.

      . See generally 18 Pa.C.S.A. §§ 4951-4956; Connick & Davis, supra, 66 Judicature at 438-46; Hudson, supra, 11 Pepperdine L.R. at 52-55. With respect to court security measures, we note that Philadelphia courts have recently began using metal detectors to keep weapons out of courtrooms; metal detectors used at the federal courthouse in Philadelphia led to the seizure of 5,600 weapons in the past four years. See Locy, "5600 Weapons Seized in Court Over 4 Years,” Philadelphia Daily News, at 8 (April 11, 1989); see generally Mallory, Order in the

        Court: Keeping our Courtrooms Safe, 11 Pa.Lawyer 10, 10-16 (March 1989) (discussing court security throughout the Commonwealth).

      . Such measures, of course, should be taken in the manner least likely to arouse prejudice against the defendant from the jury. Indeed, the concurring opinion of Justice Roberts in Commonwealth v. Contakos, supra (joined by Chief Justice O’Brien), appears to be focussed on the prejudicial effects of the "abrupt exclusion" of the public, rather than any question as to whether the interests in protecting the witness were “compelling” or whether the partial closure was "necessary”. 453 A.2d at 582. It may be that declaration of a mistrial is the steep but unavoidable price of witness protection when the only means adequate to ensure the safety of a witness would create a substantial likelihood of undue prejudice to the defendant. However, the risk of such prejudice may and should be avoided and/or minimized in many cases. For example, removals, protective orders, and admonitions often may be made out of the hearing of the jury, either before a session starts or during a brief recess called for that purpose.

      . Some federal courts have held that a "substantial” interest rather than a "compelling” interest is all that is constitutionally required to justify a "partial” closure of proceedings, Le. for the testimony of one of several witnesses, as opposed to the "complete" closure of a proceeding as in Waller v. Georgia, supra. See United States v. Sherlock, 865 F.2d 1069, 1976-77 (9th Cir.1989); Douglas v. Wainwright, 739 F.2d 531, 533 (11th Cir.1984), cert. denied 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985). Our Supreme Court has not framed its analysis in terms of "substantial” versus “compelling” interests; rather, our Supreme Court has focused more generally on whether the trial court “abused its discretion" in determining that “important” interests justified the restrictions imposed. See Commonwealth v. Berrigan, supra, 501 A.2d at 234 n. 10 (also narrowly construing Commonwealth v. Contakos, supra). We find that while protecting witnesses from intimidation is plainly a vital interest, the trial court’s failure to make necessary finding with respect to the fact, nature, and extent of the intimidation and the adequacy of alternatives, renders any distinction between "compelling,” “important,” or “substantial" interests moot in this case. Cf. Commonwealth v. Murray, 348 Pa.Super. 439, 449-50, 502 A.2d 624, 629 (1985) (dicta, a “compelling interest is required”).

      . We note that a fundamental difference exists between the posture of this case and that of Commonwealth v. Smith, 280 Pa.Super. 222, 421 A.2d 693 (1980), wherein this Court noted the existence of a plausible justification for the closure order challenged, and remanded for a hearing to enable the parties and the trial court to supplement the record. In Smith, this Court found remand necessary to cure ambiguities and to fill omissions in the official record as to what had occurred in the trial court, Le. what were the precise terms of the closure, what objections were made, and how did the closure order actually effect the openness of proceedings (who was removed or barred and for how long). Nothing in the remand directive issued in Smith implied an opportunity to cure a failure to make findings necessary to justify closure. To the contrary, this Court held explicitly in Commonwealth v. Buehl, supra, that post hoc justifications for closure orders are not sufficient to cure a trial court’s failure to make express findings sufficient to support the closure order at the time of its original entry. 462 A.2d at 1323; see also Commonwealth v. Murray, supra, 502 A.2d at 629 & n. 5. In Smith, the record was not clear as to what exactly transpired in the trial court; here, on the other hand, the record is complete and the relevant facts are clear. Hence, remand for clarification, as in Smith, is not required.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: BECK, Judge,

license: Public Domain

text:
    562 A.2d 841
    Margaret NUTTALL, Appellee, v. Robert NUTTALL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 15, 1988.
    Filed July 17, 1989.

      Francis X. Nolan, Philadelphia, for appellant.
    Neil Hurowitz, King of Prussia, for appellee.
    Before OLSZEWSKI, BECK and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a final decree denying appellant’s exceptions. Appellant raises five issues for our review: (1) whether the 1980 Divorce Code violates the due process clause of the United States Constitution; (2) whether the 1980 Divorce Code is unconstitutional under the contract clause of the Pennsylvania and United States constitutions when applied to properties which appellant intentionally took title as a tenant by the entirety or in his individual name; (3) whether the trial court erred in denying appellant credit for monies spent to preserve marital assets and reduce marital debt; (4) whether the trial court erred in awarding alimony to appellee; and (5) whether the trial court erred in awarding partial counsel fees to appellee. For the reasons below, we affirm.

On November 31, 1981, appellee-wife instituted an action under the 1980 Divorce Code, seeking a divorce, equitable distribution, alimony, alimony pendente lite, child support, counsel fees, costs and expenses. Subsequently, the parties entered into a stipulation providing for a bifurcated divorce and, on November 5, 1982, the bifurcated divorce decree was entered. Following a hearing on the remaining economic claims, a master filed a report and recommendation. Both parties timely filed exceptions to the master’s report. Thereafter, hearings de novo were conducted. On May 20, 1986, the trial court entered its decree nisi. Appellant filed exceptions to the decree nisi. On December 11, 1987, a final decree, amending the previous adjudication and order, was entered by the trial court. This appeal followed.

Appellant first maintains that retroactive application of the 1980 Divorce Code violates the due process clause of the United States Constitution. Appellant asserts:

In denying Mr. Nuttall’s point on this issue, the trial court relied upon Bacchetta v. Bacchetta, 498 Pa. 227[, 445 A.2d 1194] (1982), which admittedly is contra defendant’s position. However, we believe that Bacchetta was decided improperly and should be reversed.

Appellant’s brief at 16. As an intermediate appellate court, we cannot accept appellant’s invitation to reverse a majority decision of a higher appellate court. In Bacchetta, the majority of the Supreme Court held that property acquired during the marriage but before the effective date of the 1980 Divorce Code is “marital property,” subject to the equitable distribution provisions of the Code upon termination of the marriage. In Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983), the majority of the Supreme Court acknowledged the validity of Bacchetta by distinguishing Bacchetta from circumstances where the equitable distribution provisions of the 1980 Code are applied to defeat the vested property rights of a transferee who is not a party to the divorce action and who has acquired these rights prior to the enactment and effective date of the Code. Most recently, the Supreme Court in Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), reaffirmed the Bacchetta decision by denying husband’s claim that the equitable distributions of the Divorce Code cannot be constitutionally applied to property rights which vested prior to the Code’s effective date. It is apparent from the foregoing decisions that Bacchetta continues to be the law in Pennsylvania. Accordingly, as an intermediate appellate court, we are bound to follow it.

Second, appellant argues that the 1980 Divorce Code is unconstitutional under the contract clause of the United States and Pennsylvania constitutions. Specifically, appellant maintains that the retroactive application of the equitable distribution provisions of the 1980 Divorce Code to properties held by the parties as tenants by the entireties and to property held in appellant’s individual name impairs his contractual rights by: (1) altering his bargained-for consideration involved in the purchase of property; and (2) changing his intention in entering into agreements of sale of property. In the instant case, the trial court held that the marital assets included:

1. The marital home in Huntingdon Valley, Lower More-land Township, Montgomery County, Pennsylvania, which was purchased during the marriage and has a value of $117,500.00.
2. A one-fourth interest in a property in Brigantine, New Jersey, purchased during the marriage, the interest having a value of $77,000.00.
3. A bar and restaurant which is in husband’s name alone but which was purchased during the marriage, having a total value of $81,000.00. This business (including the liquor license) and real estate was purchased by husband with an inheritance from his parents of approximately $40,000.00. The market value therefore is $41,-000.00.

Amended adjudication and order at 3 (emphasis in original). Furthermore, the trial court distributed the aforementioned assets as follows:

1. The marital residence at 1488 Greenwalt Lane, Huntingdon Valley, Pennsylvania and the Brigantine property shall be put up for sale immediately and wife-plaintiff shall receive sixty (60%) percent of the net proceeds from the sale of these two properties and the husband-defendant shall receive forty (40%) percent of the net proceeds.
2. The premises and restaurant business (including the liquor license) at 3rd and Spencer Avenue shall be put up for sale immediately. Husband shall reserve the first Forty Thousand ($40,000.00) Dollars of the net proceeds. The remaining balance from the sale of this property shall be distributed sixty (60%) percent to wife-plaintiff and forty (40%) to husband-defendant. (The first $40,-000.00 represents the husband-defendant’s inheritance from his parents which was invested in this business and real estate.)

Amended adjudication and order at 8. According to the deed to the marital residence, the parties took the property as tenants by the entireties. In addition, the record indicates that a one-fourth interest of the Brigantine shore property is held by the parties as tenants by the entireties, and the bar and restaurant is held in appellant’s name alone.

Generally, the contract clauses of the United States and Pennsylvania constitutions prevent impairment of the parties’ contractual rights from subsequent legislation. See Flanagan, 515 Pa. at 268, 528 A.2d at 137. However, like property rights, contract rights are not absolute and, therefore, are subject to the reasonable exercise of the state’s police power. See PruneYard Shopping Center v. Robins, 447 U.S. 74, 84, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980). In Keystone Bituminous Coal Association v. Nicholas DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987), the United States Supreme Court explained:

[I]t is to be accepted as commonplace, that the Contract Clause does not operate to obliterate the police power of the states. "... [T]he interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.” Manigault v. Springs, 199 U.S. 473, 480 [26 S.Ct. 127, 130, 50 L.Ed. 274].

Id. at 503, 107 S.Ct. 1232, 1251, 94 L.Ed.2d 472, 500; accord, DePaul v. Kauffman, 441 Pa. 386, 399, 272 A.2d 500, 507 (1971).

As stated earlier, our Supreme Court, in Bacchetta, held that the equitable distribution provision applied to property acquired prior to the effective date of the Code, and that this application did not constitute an unconstitutional deprivation of property without due process of law. In reaching this decision, the Court construed the provisions as presenting a permissible regulation of the marital relationship pursuant to the state’s police power. The Bacchetta Court observed:

Prior to the enactment of the Divorce Code, in many marriages a nonworking spouse contributed years of service to the family, but did not realize any significant gain. Thus, upon divorce, nonworking spouses, who frequently had no marketable skills, were left with few, if any assets of their own and faced the risk of becoming public charges. By providing for the distribution of property acquired during the marriage, the Divorce Code permits the correction of the economic injustices which often arose under former law and allows nonworking spouses to become self-supporting with the least financial hardship possible.

Bacchetta, 498 Pa. 227, 232, 445 A.2d 1194, 1197. The Court further noted:

Where, as here and in most cases for years to come, the parties were married before the enactment of the Divorce Code, it would be unreasonable to interpret the Divorce Code as providing for equitable distribution of only that property acquired after the Code’s effective date. Such an interpretation would impose the unmanageable burden on courts and litigants of determining which properties were acquired before, and which after, the effective date of the Code. Such an interpretation would also substantially deny the benefits of the Divorce Code to spouses in marriages in existence at the time of the Code’s enactment, thereby prolonging for a least a generation the very inequity the Legislature sought to remedy.

Id., 498 Pa. at 231, 445 A.2d at 1196. In addition, the Supreme Court found the provisions to be “carefully tailored” to achieve the objectives of the Code. “[EJquitable distribution of property acquired during the marriage occurs only upon divorce, only in cases where it is justified, and only in amounts warranted by the facts.” Id., 498 Pa. at 235, 445 A.2d at 1198.

Instantly, we follow the rationale in Bacchetta in finding that the equitable distribution provisions of the Divorce Code are a legitimate exercise of the state’s police power and, therefore, conclude that application of these provisions to property acquired during the parties’ marriage does not constitute an unconstitutional impairment of appellant’s contractual rights.

Third, appellant asserts that the trial court erred in denying him credit for monies spent to preserve the marital assets and reduce the marital debt.

Initially, we note that “(a)n appellate court will reverse an order determining equitable distribution of marital property only for an abuse of discretion by the trial court.” Baraff v. Baraff, 338 Pa.Super. 203, 210, 487 A.2d 925, 929 (1985). “Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather, we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion.” Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985); Semasek v. Semasek, 331 Pa.Super. 1, 6, 479 A.2d 1047, 1050 (1984).

Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986).

Section 401(d) specifies the factors to be considered by the trial court in resolving the marital property rights of the parties. These factors include:

(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

23 P.S. §§ 401(d)(l)-(10). Consideration of these factors by the trial court “requires compilation, computation, weighing and balancing considerations, and then applying [its] sound discretion ... to achieve economic justice.” Fratangelo v. Fratangelo, 360 Pa.Super. 487, 502, 520 A.2d 1195, 1203 (1987). In its consideration of § 401(d)(7), the trial court stated:

Certainly, by virtue of his income, husband-defendant contributed more toward the acquisition of physical marital property but may well have also contributed to the dissipation of marital property in that the premises on Weymouth Street, Philadelphia and 7th Street, Philadelphia apparently went to sheriffs sale and the premises 432 West Roselyn Street were sold in October 1985 by the husband-defendant for an alleged loss of $1,359.04.

Amended adjudication at 7. It is evident that the trial court considered appellant’s contribution in maintaining certain marital assets and reducing marital debt. The trial court, however, offset appellant’s contribution by the dissipation of other marital property. We find no abuse of discretion in the trial court’s approach.

Fourth, appellant argues that the trial court erred in awarding alimony to appellee. Specifically, appellant contends that the following factors should have been considered by the trial court in denying an alimony award in the instant case:

(1) appellee was an alcoholic during most of her 20-year marriage;
(2) appellee was awarded substantial marital property;
(3) appellee was instructed by her attorney not to work;
(4) appellee maintained a $19,500.00 check representing her inheritance in a desk drawer for three — four months without negotiating or depositing the check to secure interest;
(5) appellee continued to live in the marital residence before, during and after divorce, without any expense to herself; and
(6) appellee engaged in marital misconduct.

Initially, we note that appellant’s contention with respect to factors (1) and (4) have not been properly preserved for appellate review. Consequently, those issues are waived. See Pa.R.C.P. 1920.55(a); Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987) (appellant’s argument is waived where appellant’s exceptions stated mere assertion). We find appellant’s remaining contentions to be without merit. “The role of an appellate court in reviewing alimony orders is limited; we review only to determine whether there has been an abuse of discretion by the trial court.” Lee v. Lee, 352 Pa.Super. 241, 507 A.2d 862 (1986); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983) (en banc). Section 501 of the Divorce Code, provides in part:

(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.
(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) The relative earnings and earning capacities of the parties.
* * * * * *
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties. ******
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
******
(12) The contribution of a spouse as a homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

23 P.S. § 501. To determine a party’s eligibility for alimony, Sections 501(a) and (b) must be read together. Hess v. Hess, 327 Pa.Super. 279, 287, 475 A.2d 796, 801 (1984) (Section 501(a) does not establish a threshold for entitlement to alimony.). In addition, we note that, “[i]n applying these Code sections both trial courts and this Court must keep in mind that the overriding goal of alimony in this Commonwealth is the effectuation of economic justice between the parties. We must, therefore, not require an overly mechanistic consideration of the relevant factors where to do so would result in an unjust or unreasonable decision.” Williams v. Williams, 373 Pa.Super. 143, 151, 540 A.2d 563, 567 (1988).

In the instant case, the trial court awarded alimony to appellee “in a sum equal to the monthly payments required to meet the mortgage obligations on the marital home in Huntingdon Valley and the monthly payments on the Brigantine, New Jersey property,” and further ordered that the “payments shall continue until these properties are sold ... and husband-defendant is entitled to retain all rents received from the Brigantine property but he shall further be responsible ... for the upkeep of the property other than the mortgage, interest and taxes and insurance which wife-plaintiff is responsible for through the Alimony payments received from husband-defendant.” Amended adjudication and order at 11. In applying the factors listed in Section 501, the trial court stressed that appellee is a secretary with limited skills, having no computer training; has an earning capacity of $11,000.00; devoted herself as a homemaker during most of the parties’ seventeen-year marriage; aided appellant in his law practice; and cleaned the bar property and Brigantine property for rental use. By contrast, the trial court found that appellant is an attorney employed by the School District of Philadelphia with a salary of approximately $45,000.00, having highly marketable skills and the ability “to acquire substantial capital assets.” Opinion at 10. In addition, the alimony award provides for the preservation of a marital asset that, in turn, generates rental income for appellant. In the light of foregoing, we find the trial court entered a just and reasonable order.

Appellant also challenges the alimony award on the basis of appellee’s marital misconduct. Initially, we note that marital misconduct is not a bar to an award of alimony. It is but one of the many factors to be considered by the trial court in making its determination. Moreover, its significance is lessened by the fact that it is one of fourteen factors. In the instant case, we find the trial court did not abuse its discretion in attaching no weight to appellee’s marital misconduct. The trial court found that appellant, himself, was guilty of marital misconduct. In addition, on more than one occasion, he forgave appellee’s conduct and also permitted appellee to engage in extramarital relationships. Given these circumstances, we find no error.

Finally, appellant asserts that the trial court erred in awarding counsel fees.

In determining the propriety of an award of counsel fees, we also utilize an abuse of discretion standard of review. However, counsel fees are not awarded automatically. “Actual need must be shown in order to justify an award.” Counsel fees are appropriate when necessary to put the parties “on a par” in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce.

Johnson, 365 Pa.Super. at 415, 529 A.2d at 1126 (citations omitted). Moreover, in applying the abuse of discretion standard, we do not usurp the trial court’s duty as fact finder. Ruth v. Ruth, 316 Pa.Super. 282, 285, 462 A.2d 1351, 1353 (1983).

Instantly, the trial court awarded appellee counsel fees and costs in the amount of $7,404.45. In determining whether to award counsel fees, the trial court acknowledged that during a protracted and lengthy litigation, appellee provided no reasonable explanation for not returning to work until May of 1984, one year and a half after the divorce was granted. The court, however, proceeded to consider the disparity of the parties’ earnings and their respective abilities to pay and found that “the husband’s available income after that spent which benefitted the wife-plaintiff ... is approximately twice the wife’s income.” Amended adjudication at 13. In light of these findings, we find the trial court properly awarded partial counsel fees to appellee.

Order affirmed.

BECK, J., concurs.

BECK, Judge,

concurring:

I join in all sections of the majority opinion except the last, dealing with the issue of attorney’s fees. As to the latter issue, I concur in the majority’s disposition but differ with its analysis of the relevant law.

My ground for disagreement with the majority’s analysis concerns the majority’s statement of the standard by which a trial court must consider a request for attorney’s fees. The majority states that the standard is “actual need”. I agree that in most cases purely financial considerations will ultimately dictate whether an award of fees is appropriate. See, e.g., Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987). However, where the facts of a particular case indicate the presence of considerations other than or in addition to financial ones, the trial court may consider those in awarding counsel fees. See Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987) (Beck, J., concurring); Williams v. Williams, 373 Pa.Super. 143, 540 A.2d 563 (1988). As I stated in my concurrence to Johnson, application of a standard that looks to actual need alone will improperly restrict the court in those cases where other factors, such as conduct by one party resulting in a materially increased fee expenditure by the other, are relevant. Johnson, 365 Pa.Super. at 421-24, 529 A.2d at 1129-30 (Beck, J., concurring).

In this case, I agree that wife merited the limited counsel fees award she received. Since there are no equitable considerations that would militate to the contrary, I concur in the majority’s affirmance of the counsel fees award.

      . On August 5, 1986, appellee filed a motion to dismiss appellant’s exceptions for violation of Montgomery County Local Rule 252 (“Failure to make payment of [estimated costs of trial transcript] may be a basis for refusal of the [post-trial] Motions or dismissal of the Exceptions for lack of a transcript.”) The trial court granted appellee’s motion, and dismissed appellant’s exceptions for failure to comply with the local rule. In its order, the trial court also adopted the decree nisi of May 20, 1986, as the court’s final decree. On appeal, in Nuttall v. Nuttall, 361 Pa.Super. 320, 522 A.2d 603 (1987), this Court concluded that the trial court abused its discretion in dismissing appellant’s exceptions and, accordingly, reversed the decree and remanded to the trial court. This Court reasoned that Montgomery County Local Rule 252 was inconsistent with Pennsylvania Rule of Judicial Administration 5000.6 and, consequently, found the local rule to be ineffective and unenforceable.

      . Like the trial court, we treat appellant’s contention as contesting the constitutionality of the application of the equitable distribution provisions of the 1980 Divorce Code to appellant’s property rights. See trial court opinion at 6.

      . Article I, Section 10 of the United States Constitution reads in pertinent part:

        No State shall ... pass any Bill of attainder, ex post facto Law, or law impairing the Obligation of Contracts____
      U.S. Const. Art. I, § 10, cl. 1. Article I, Section 17 of the Pennsylvania Constitution provides:
      No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.
      Pa. Const. Art. I, § 17. There is no distinction between the clauses. See First National Bank of Pennsylvania v. Flanagan, 515 Pa. 263 n. 1, 528 A.2d 134 n. 1 (1987).

      . Appellant states:
      Mr. Nuttall, being a lawyer, was taught and understood more significantly than a lay person, the nature of the titles of the real estate he held. He even opted to hold 2 as tenants by the entireties and the third in his own name.
      Appellant’s brief at 13.

      . The remaining three-quarter interest is held by three couples. The couples, including the parties, hold the shore property as tenants in common with each other and, at the same time, each couple holds their respective one-fourth interest as tenants by the entireties. Appellant questions the jurisdiction of the trial court to sell the entire property. Appellant asserts:
      The shore property is held in 8 entities, being 4 sets of husbands and wives. Each husband and wife team holds as tenants in common with the others. By virtue of this arrangement, any sale or refinancing would have to have signatures of all. Nevertheless it was ordered sold. The trial court had no jurisdiction over those other 6 and could not force them to agree to the sale.
      Appellant’s brief at 12-13. Although appellant has not properly preserved this point for appeal, see Pa.R.A.P. 2116 (“ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby”); Rago v. Nace, 313 Pa.Super. 575, 460 A.2d 337 (1983), we nonetheless feel compelled to address the issue of jurisdiction. See Vale Chemical Co. v. Hartford Accident and Indemnity Company, 512 Pa. 290, 294 n. 1, 516 A.2d 684, 686 n. 1 (1986) ("Pa.R.C.P. 1032(2) allows a court to raise sua sponte issues of subject matter jurisdiction and failure to join an indispensable party.”). Appellant’s jurisdictional argument is based upon two faulty premises. First, we note that appellant misreads the trial court order regarding equitable distribution. A fair reading of the order indicates that the trial court did not order a sale of the couples’ three-quarter interests, but only the one-fourth interest held by the parties. Second, appellant misconstrues the effect of title held by the couples as tenants in common. A tenant in common need not obtain permission of the co-tenant to sell his respective interest. Werner v. Quality Service Oil Co., Inc., 337 Pa.Super. 264, 486 A.2d 1009 (1984) (tenant in common may, without consent of his co-tenant, sell, convey or dispose of his undivided interest in the property). We note that paragraph eight of an agreement of sale of a one-fourth interest to one of the couples provides for a first option to purchase by the existing owners collectively and, if not accepted, to the remaining unit owners individually. See Exhibit 16-B at 2. We, however, do not read this provision as requiring the parties or the trial court to secure permission from the co-tenants to sell the parties’ one-fourth interest prior to a sale of that interest. Thus, the co-tenants’ interest in the parties’ unit is not implicated in this divorce proceeding. It would be implicated if the trial court ordered a sale of the one-fourth interest to a particular person or entity without regard to the first option to purchase. Consequently, joinder of the parties was not required pursuant to Pa.R.C.P. 1920.34 and Note ("The joinder of persons other than husband and wife may be essential ... where persons other than the parties have an interest in property which is the subject matter of a distribution.”). Accordingly, the trial court exercised proper jurisdiction.

      . In support of his contention, appellant refers to the trial court’s statement that it considered appellant’s contributions, but gave no monetary value to them. It is true that the court did not specify the monetary value of husband’s contribution; however, it explained its reasons for the instant distribution ordered in a comprehensive manner. In its opinion, the trial court writes:
      Contrary to Defendant’s assertion, we took into consideration the fact that he made payments on the mortgage for the Huntingdon Valley home and paid various household bills during the pendency of this action. However, in making a decision regarding equitable distribution we evaluated the facts of this case, weighing and balancing them in view of the list of factors in § 401(d). Following an analysis of all the circumstances, we found that Plaintiff-wife was at a definite economic disadvantage in relation to Defendant-husband and that she should receive a greater percentage of the proceeds from the sale of both the Huntingdon Valley and Brigantine properties.
      Opinion at 9. We, therefore, find no abuse of discretion. See Johnson v. Johnson, 365 Pa.Super. 409, 417, 529 A.2d 1123, 1127 (Beck, J., concurring opinion), alloc. dn., 517 Pa. 623, 538 A.2d 877 (1987) ("Section 401(d) provides the necessary flexibility for the court to consider the relevant 401(d) factors separately and in relation to each other so as to accomplish economic justice.”).

      . This amount represents one-half of counsel fees and costs found to be reasonable by the trial court.


author:
TAMILIA, Judge:
      BECK, Judge,

text:
    562 A.2d 849
    COMMONWEALTH of Pennsylvania, v. Charles BELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1989.
    Filed July 25, 1989.

      Brian R. Williams, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant was tried by a jury and found guilty on February 26, 1987 of robbery, burglary, aggravated assault, criminal conspiracy and possessing an instrument of crime. He was sentenced to three consecutive terms of imprisonment totalling 15 to 50 years (robbery, 5-20 years; burglary, 5-20 years; aggravated assault, 5-10 years) and two concurrent terms of imprisonment totalling 5V2 to 15 years (conspiracy, 3-10 years; possessing instrument of crime, 2V2 to 5 years). Seven issues are raised on appeal: 1) whether the court erred in failing to dismiss the case under Rule 1100; 2) whether the court erred in refusing to suppress identifications by Father Rock; 3) whether the court erred by refusing to suppress physical evidence; 4) whether the court erred in refusing to suppress the defendant’s pre-trial statements; 5) whether the court erred by refusing to declare a mistrial; 6) whether the court erred by refusing to dismiss all charges, after it became known that the Commonwealth destroyed key evidence; and 7) whether the court imposed an illegal and improper sentence.

On October 4, 1984, at approximately 4:00 a.m., Father Richard Rock of the St. Vincent DePaul Roman Catholic Church in Philadelphia arose from sleeping to go to the bathroom. His bedroom was on the second floor of the rectory and as he walked down the hallway he heard the television playing in the T.V. room. As he approached the room to investigate, he saw a person’s shadow on the door frame leading him to believe the person was a black male, 5' 6" — 5' 7", and 150-160 pounds. The man immediately jumped out and hit Father Rock over the head and again in the mouth with a metal pipe and then fled. During the attack Father Rock did not see the man’s full face but did see the man’s profile.

Father Gregory Cozzubbo awoke after hearing Father Rock’s cries for help and looked out the window to see two people running across the rectory’s front yard toward the parish cars. He noticed one person wore a short-waisted dark jacket and light trousers. Father Rock later stated his attacker was wearing a short, black jacket.

The police were called to the rectory and one patrol car, while entering the rectory driveway, was almost hit by a Ford Maverick occupied by two black males as they were backing out of the driveway. The Maverick was being driven at a very high rate of speed and crashed into a tree before speeding down the street. Three police cruisers chased the car and finally it smashed into a brick wall, bounced off the wall and hit two parked cars. The driver attempted to flee but was grabbed and frisked by an officer because the officer noticed his pockets were bulging. The driver was later identified as Charles Bell, appellant, and several items found in his pockets and inside the Maverick were identified by Father Rock as rectory property.

The two males were transported to the rectory and Father Rock, prior to going to the hospital, identified appellant as his attacker even though appellant was bleeding and had a lump on his head. Appellant was taken to the hospital for treatment of his injuries sustained in the crash and then to the police station. Appellant indicated he wanted to make a statement so he was read his Miranda rights and interviewed by Detective Frank Jastrzembski.

The detective noticed appellant’s breath smelled of alcohol and questioned him about it. Appellant admitted he had been drinking but Detective Jastrzembski continued the interview since appellant was able to understand the questions, answer them and sign his name at the end of the interview form. In his statement, appellant limited his role to merely waiting outside in the Maverick while his cohort broke into and ransacked the rectory.

A criminal complaint was filed against appellant on October 4, 1984 but he did not come to trial until February 18,1987; therefore, he claims his right to a speedy trial was violated and the charges should have been dismissed pursuant to Pa.R.Crim.P. 1100.

Appellant’s argument, however, is based upon the fact that he was incarcerated from the time of arrest until the time of trial so none of the delay is attributable to him. This argument ignores the fact that an attorney, acting for appellant, can cause delay attributable to appellant which is excludable under Rule 1100. See Commonwealth v. Wells, 513 Pa. 463, 521 A.2d 1388 (1987). Also, appellant does not allege the Commonwealth failed to exercise due diligence in bringing him to trial. Rather, appellant complains he was not given a speedy trial because the court was unavailable and alleges, according to Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the court must establish it devoted a reasonable amount of its resources to the criminal docket and every reasonable effort was made to bring appellant to trial within 180 days.

The trial court found the delays were due to defense counsel failing to appear, counsel withdrawing from the case, appellant’s indecision on whether he wanted a jury trial and unavoidable judicial delay. Under Rule 1100(c), the delays attributed to appellant are excludable from the 180 days calculation. Further, judicial delay caused by an overcrowded docket is a valid reason to extend Rule 1100’s timetable. Commonwealth v. Kuhn, 327 Pa.Super. 72, 475 A.2d 103 (1984). Accordingly, appellant’s argument must fail.

Appellant’s next three issues claim the court erred in denying the pre-trial suppression motions appellant made as to Father Rock’s initial identification of appellant, the physical evidence seized from appellant and appellant’s signed statement. In reviewing the court’s rulings, our initial task is to determine whether the factual findings are supported by the record. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). First, appellant claims Father Rock’s identification of appellant was impermissibly suggestive since Father Rock did not get a good look at him during the attack and when he identified appellant, it was when appellant was handcuffed in the back of a police van.

Admittedly, Father Rock did not get a full view of his attacker but he did get a side view of his face, knew his approximate height and weight and the clothing he was wearing. Within fifteen minutes of the attack, the police had apprehended appellant while driving the parish car and returned him, along with his cohort, to the rectory where Father Rock immediately identified him as the attacker. Father Rock did get a good enough look at appellant during the attack to notice he had a large bump on his head when he was brought back to the rectory by police which he did not have when Father Rock first saw him. Considering Father Rock gave an identification within fifteen minutes of the attack based upon the factors listed above and the police followed the Maverick from the rectory driveway to the place where it crashed and apprehended appellant, we believe the identification had a proper foundation and was not impermissibly suggestive. Only where the circumstances of the pre-trial identification are “so infected” by suggestiveness that there is an irreparable likelihood of misidentification should the evidence be precluded from the trial. Commonwealth v. Thomas, 372 Pa.Super. 349, 539 A.2d 829 (1988). As we stated in Thomas, prompt, on-the-scene identifications do not fit into this category of suggestiveness absent some special elements of unfairness. We find no reason to disagree with the trial court’s ruling on this suppression motion.

Appellant’s second suppression motion related to the physical evidence seized from appellant’s pockets when he was stopped by police after wrecking the Maverick. Appellant contends Officer Chilutti did not have probable cause to arrest him. The officer testified he grabbed appellant as he started to flee and noticed appellant’s pockets were stuffed so full appellant looked very bulky. (N.T. 2/18/87, p. 74). For his own safety, he frisked appellant and removed various items from his pockets, two of which were key rings marked “church” and “hall”. After these items were discovered, Officer Chilutti received information over the police radio that Father Rock of St. Vincent DePaul Catholic Church had just been robbed and beaten and the church car was taken. The officers radioed back with the car’s identification number and found out the Maverick belonged to the church. At this point, appellant was arrested and immediately transported to the rectory for possible identification by Father Rock.

The existence of probable cause is determined by an examination of whether: “the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.” ... An arresting officer, in executing a valid arrest, may rely upon radio broadcasts emanating from police facilities provided, however, that the arresting officer has been either (1) ordered or directed to perform the arrest by an officer in possession of facts justifying the arrest; (2) received information justifying arrest; or (3) heard information which, coupled with facts he personally observed, provided probable cause to arrest. (Citations omitted.)

Commonwealth v. Reddix, 355 Pa.Super. 514, 518-19, 513 A.2d 1041, 1043 (1986), quoting Commonwealth v. Evans, 343 Pa.Super. 118, 494 A.2d 383, 388 (1985).

Looking at the facts and circumstances known to Officer Chilutti, we find he had probable cause to arrest appellant and the court properly allowed the physical evidence to be introduced at trial as fruits of a justified and legal search.

Finally, appellant claims his statement to police should have been suppressed because it was involuntary and coerced and his Miranda rights were not given to him. Further, he states, “It is uncontradicted that the defendant was under the influence of alcohol when the statement was taken.” Appellant’s brief p. 13. By this, we assume appellant is saying he was too intoxicated to voluntarily make a statement.

We must reject appellant’s assertion he was not given his Miranda rights since he does not support this contention in any way and Detective Jastrzembski testified he did, in fact, precede his questioning with the Miranda rights and standard questions as to appellant’s understanding of the proceeding. (N.T. 2/25/87, p. 8). Although appellant claims his statement was involuntary since he was intoxicated, he did initial the responses to the standard questions and signed the statement. He admitted to having been drinking but the detective believed he was capable of understanding and answering the questions.

[T]he fact that an accused has been drinking does not automatically invalidate his subsequent incriminating statements. The test is whether he had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it. Recent imbibing or the existence of a hangover does not make his confession inadmissible, but goes only to the weight to be accorded to it.

Commonwealth v. Stark, 363 Pa.Super. 356, 368, 526 A.2d 383, 389 (1987), quoting Commonwealth v. Smith, 447 Pa. 457, 460, 291 A.2d 103, 104 (1972).

From the record, we can find no reason to overturn the trial judge’s ruling as he heard testimony from both sides and determined appellant was not so intoxicated that he did not know what he was doing.

Appellant’s next claim is totally without merit. He argues he should have been granted a mistrial because the jury failed to return a verdict on the charge of receiving stolen property while he was found guilty on all other charges. Appellant argues the jury failed to follow the court’s instructions to reach a full and final verdict. He has failed, however, to give us any explanation of how this failure prejudiced him so that a mistrial was appropriate. Actually, appellant benefited since the Commonwealth nol prossed the receiving stolen property charge. Unless the incident complained of will unavoidably result in prejudice to appellant thereby denying him a fair trial, a mistrial is inappropriate. Commonwealth v. Atkinson, 364 Pa.Super. 384, 528 A.2d 210 (1987).

Next, appellant argues he should have been granted a mistrial when the Commonwealth failed to produce the jacket worn by appellant at his arrest. Without this jacket, he claims, the jury could not accurately determine the reliability of Father Rock’s identification of his attacker. Appellant argued to the court the charges should be dismissed but he did not request a mistrial (N.T. 2/20/87, p. 3-6). In any event, the court found the jacket was not necessary to substantiate the identification in light of the other evidence against appellant. Furthermore, the Commonwealth had less of a case without the jacket so its loss was to appellant’s advantage.

We find, however, the Commonwealth is correct in claiming the issue is waived for failure to raise it prior to this appeal. Appellant did not request a mistrial but requested the charges be dropped; these are two separate types of relief. Where counsel fails to request a mistrial when the alleged prejudicial event occurs, the issue is not preserved for appellate review. Commonwealth v. Chimenti, 362 Pa.Super. 350, 524 A.2d 913 (1987), Pa.R.Crim.P. 1118(b).

Appellant’s final argument is the court erred in giving him a separate sentence for each of the crimes of robbery, burglary and aggravated assault since robbery and aggravated assault merged for sentencing purposes. He argues the charges merge because when Father Rock was struck with the pipe, which was an aggravated assault, it turned the intended theft into a robbery; if Father Rock had not been hit by his assailant, the only crime committed would have been burglary.

The Commonwealth contends the second blow which landed on Father Rock’s mouth amounted to the separate offense of aggravated assault since it was an unprovoked attack that had nothing to do with appellant’s ability to flee with the stolen items. We believe the Commonwealth’s position which attempts to establish a separate aggravated assault in the commission of the robbery, because two blows were struck is untenable. The blows were in rapid succession and part of the act constituting the robbery, and therefore, cannot constitute separate crimes. If there was a break in the action and a second assault occurred, after the acts that constituted some of the elements of the robbery, the Commonwealth would be correct. Such is not the case here.

Recently in Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989), our Supreme Court reconsidered “the question of when convictions of separate crimes merge, for sentencing purposes, because they arise from the same criminal act.” Id., 521 Pa. at 559, 559 A.2d at 26.

Reversing this Court’s decision in Commonwealth v. Leon Williams, 368 Pa.Super. 315, 534 A.2d 101 (1987), and their own 1987 decision in Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987), cert. denied, — U.S. —, 108 S.Ct. 2852, 101 L.Ed.2d 889 (1988), the Supreme Court held that the test for merger of sentences would no longer involve an inquiry into whether separately defined offenses harm substantially different interests of the Commonwealth. Leon Williams, therefore, establishes the test for merger in Pennsylvania as strictly whether the separate offenses are lesser included and greater included offenses.

Applying the Leon Williams approach to the facts before us leads us to conclude the crimes of aggravated assault and robbery do merge in this instance. As noted, supra, the two blows to Father Rock’s head were in rapid succession and part of the act constituting the robbery in that they were done to facilitate Williams’ escape from the rectory. In sharp contrast to this, we found, in Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987), that different interests were vindicated and did not allow merger of aggravated assault and robbery where the defendant choked his victim with an electrical cord until she passed out and fell to the floor. At this point, defendant did not just take the money and flee but instead he got on top of his victim, holding her head between his knees, and stabbed her repeatedly with a knife. During this attack the knife broke so defendant used a pair of scissors and an ice pick. After this vicious attack, defendant stole items from the victim’s apartment and fled. The facts in this case do not consist of such clearly differentiated activities as to permit the finding that two distinct crimes were committed.

In Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), another merger case filed by the Supreme Court the same day as Leon Williams, the Court further construed the merger doctrine in the context of criminal violence. The Court held:

[I]f a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.

Id., 521 Pa. at 364, 555 A.2d 1233. Accordingly, in this case the aggravated assault conviction properly merges into the robbery conviction. The two blows to the victim’s head were the cause of the serious bodily injury which turned the theft into a robbery pursuant to 18 Pa.C.S. § 3701(a)(1)(i).

Because our disposition of this appeal upsets the original sentencing scheme of the trial court, we vacate the judgment of sentence as to all convictions and remand the case for resentencing on all counts except aggravated assault which, we find, merges with robbery. See 42 Pa.C.S. § 706; Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987); and Commonwealth v. Ford, 315 Pa. Super. 281, 461 A.2d 1281 (1983).

Jurisdiction relinquished.

BECK, J., concurs.

BECK, Judge,

concurring:

I join the majority opinion. I specifically agree with the majority that appellant waived his claim that the trial court erred by not declaring a mistrial after the Commonwealth failed to produce a jacket that the defense had planned to introduce into evidence. I write separately in order to clarify the circumstances under which failure to request a mistrial will result in waiver of an allegation of error.

Pennsylvania Rule of Criminal Procedure 1118(b) provides in part: “When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed.” Thus, if the defendant fails to request a mistrial, the issue of whether the trial court erred by not ordering a mistrial is ordinarily waived on appeal. However, in Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979), the Pennsylvania Supreme Court recognized an exception to this doctrine. In that case, the appellant argued that the prosecutor had improperly commented on appellant’s exercise of his right to remain silent. The Court stated:

Although the defense attorney did not request a mistrial, we note the issue is properly preserved for appellate review. Instantly, defense counsel’s objection to the prosecutor’s comment was overruled, and the reason for the objection was obvious. Moreover, since the objection was overruled, the trial judge was in effect saying that the assistant district attorney’s comment was proper. As in Commonwealth v. Maloney, 469 Pa. 342, 352, 365 A.2d 1237, 1242 (1976) (plurality opinion), a motion for a mistrial under these circumstances would have been an exercise in futility.

483 Pa. at 342 n. 6, 396 A.2d at 1201 n. 6.

Under Easley, a defendant has no obligation to motion for a mistrial once a timely defense objection has been denied by the trial court. It could also be argued that a motion for mistrial should not be required where the trial court has denied a defense motion for a lesser form of relief, such as a request for cautionary instructions. Under such circumstances, a motion for mistrial might also be regarded as an exercise in futility. On the other hand, in the case sub judice, defense counsel demanded the total dismissal of charges against his client — a remedy even more drastic than the grant of a mistrial. The denial of a motion to dismiss charges does not clearly indicate that the court would be certain to deny a motion for mistrial. Therefore, appellant’s failure to comply with Rule 1118(b) need not be excused.

      . Upon his return to the rectory from the hospital, Father Rock found it had, in fact, been ransacked and garbage was strewn about.

      . 18 Pa.C.S. § 3701. Robbery
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (1) inflicts serious bodily injury upon another;
      (2) An act shall be deemed "in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

      . 18 Pa.C.S. § 2702. Aggravated assault
      (a) Offense defined. — A person is guilty of aggravated assault if he:
      (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]

      . Prior to the decision by the Supreme Court, merger had consisted of two elements: (1) the crimes must have necessarily involve[d] one another, and (2) the crimes, even if they necessarily involved one another, would not merge if there were substantially different interests of the Commonwealth at stake and the defendant’s act had injured each interest. Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987), rev’d by Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989).

      . We recognize Taylor was filed under the old two-part merger test but find it applicable here to distinguish between the facts here where there was one assault consisting of two blows to the head, and Taylor, where the victim was choked until she passed out (the bodily injury necessary to maintain a robbery conviction) then gratuitously stabbed repeatedly with a series of weapons, which constituted the separate aggravated assault.


author: DEL SOLE, Judge:

text:
    562 A.2d 856
    Josephine HALLO, Executrix of the Estate of Deno J. Bigi, Deceased, Appellee, v. Anthony D. FLORE, Kenneth W. Behrend, Elizabeth M. Behrend, his Wife, Mark B. Aronson, Frances E. Slater, and Allegro Chiesa Trading as Brookside Limited Partnership, Managed Investments, Inc., a Pennsylvania Corporation, and Henry G. Chiesa, a/k/a Henry L. Chiesa, Appellees. (Five Cases) Appeal of Mark B. ARONSON. Appeal of Kenneth W. BEHREND. (Two Cases) Appeal of BROOKSIDE LIMITED PARTNERSHIP, Anthony D. Flore, Elizabeth M. Behrend, and Frances E. Slater. (Two Cases)
    Superior Court of Pennsylvania.
    Submitted March 30, 1989.
    (No. 997 Pittsburgh 1988).
    Argued March 30, 1989.
    (Nos. 1152, 1167-1169 Pittsburgh 1988).
    Filed July 18, 1989.
    Reargument Denied Sept. 1, 1989.

      Mark B. Aronson, Pittsburgh, for appellant, (at 997).

      Kenneth W. Behrend, Pittsburgh, for appellant, (at 1152 & 1168) and for appellee (at 997, 1167 and 1169).
    Larry A. Householder, Beaver Falls, for appellant (at 1167 & 1169) and for appellee (at 997, 1152 and 1168).
    Robert J. Campbell, Beaver, for appellee (at 997, 1152, 1167, 1168 and 1169).
    Before WIEAND, DEL SOLE and MELINSON, JJ.
   DEL SOLE, Judge:

Presented before this court are five appeals each arising out of an action which sought to recover monies claimed due to an estate. The action was commenced in June of 1982 with the filing of a Complaint in Equity. An amended Complaint was filed in April of 1986 and extensive discovery commenced. On March 31, 1988 various motions for Summary Judgment were filed along with motions requesting the matter be transferred to arbitration. The court’s denial of these motions are the subject of the appeals at numbers 997, 1152 and 1167 Pittsburgh 1988. Subsequent to the court’s ruling a petition was filed seeking to have the court’s order amended to establish that a Substantial Issue of Jurisdiction existed. The appeals numbered 1168 and 1169 Pittsburgh 1988 are taken from the order denying this petition.

APPEAL NUMBERS 1168 AND 1169 PITTSBURGH 1988

In appeal number 1168, Kenneth W. Behrend seeks review from the trial court’s order which denied a Petition seeking to have the court amend its earlier order to add that the issues presented before the court raised a substantial question of jurisdiction. A separate appeal from this order was filed by Brookside Limited Partnership, Anthony D. Flore, Elizabeth M. Behrend and Francis E. Slater and given the number 1169. Since the trial court’s order denying the requested Petition is not a final order from which an appeal may be taken, the appeals at numbers 1168 and 1169 Pittsburgh 1988 are quashed.

APPEAL NUMBERS 997, 1152 AND 1167 PITTSBURGH 1988

Three separate appeals were also taken by different defendants seeking to challenge the trial court’s order denying their motions for summary judgment and requests for transfer of the matter to arbitration. Appellants claim that their interlocutory appeals from the denial of their motions for summary judgment are appealable under that section of 12 P.S. § 672 which was not repealed by Pa.R.C.P. 1451(b)(7) and which provides for the raising of jurisdictional questions. However the Judiciary Repealer Act, Act of April 28, 1978, P.L. 202, No. 53 § 2(a) [1069] declared that 12 P.S. § 672 was to be “repealed absolutely” effective June 27, 1980. 42 P.S. § 20045(b). The right to appeal is now granted from final orders of court and certain interlocutory orders as is specified by law. 42 Pa.C.S.A. § 5105(a) and (c). The denial of the Summary Judgment motions filed in the trial court is not an interlocutory order from which the right to appeal is granted. See Pa.R.A.P. 311, 42 Pa.C.S.A. And despite the contention made by the Appellants that the order resolved a jurisdictional question, it did not meet the requirements of Pa.R.A.P. 311(b). Accordingly the appeals from those portions of the June 10, 1988 order of the trial court denying the requested motions for summary judgment are quashed.

The trial court’s denial of the motion to transfer the case to arbitration is also the subject of the appeals at 997, 1152 and 1167 Pittsburgh 1988. Although these appeals are also filed from an order which is interlocutory, the appeals are permitted under the authority of 42 Pa.C.S.A. § 7342(a) and its reference to § 7320(a)(1) which permits an appeal to be filed from an order denying an application to compel arbitration.

Before the trial court the Appellants asserted that this action should be heard in arbitration according to the terms of a partnership agreement which, it claimed, is the subject of the underlying dispute. Appellee, as representative of an estate, responded by asserting that her decedent was not subject to the arbitration terms contained in the limited partnership agreement for a variety of reasons. In denying the requested transfer the court found that there existed a material question of fact as to the decedent’s status as a partner. The court further concluded that the outcome of the case will turn on a determination of the decedent’s status as a partner. By means of this appeal Appellants seek to have this determination reviewed. However, we decline to conduct such a review due to the Appellant’s failure to promptly make an application to transfer the case to arbitration.

In Miller v. E. W Smith Co., 581 F.Supp. 817 (D.C.Pa. 1983) the court found that a waiver had occurred when a demand for arbitration of a dispute was made long after the suit was commenced and after both parties had engaged in extensive discovery. It ruled that the defendant’s conduct, in waiting until discovery was closed and the case was ready for trial before asserting the application of an arbitration provision in a customer’s contract, amounted to prejudice. The defendants in the Miller case were said to have manifested a clear intent to utilize the judicial process by both failing to affirmatively assert the arbitration clause either in their answer to the amended complaint or in a timely motion to dismiss and by taking full advantage of the discovery process. In contrast, in Kirschner v. West Co., 185 F.Supp. 317 (D.C.Pa.1960) the court considered whether a defendant had waived an arbitration provision and found that such a waiver had not occurred where a motion for stay pending arbitration had been made within a reasonable time after the complaint had been filed.

In the instant case Appellee contends that the request to transfer the case to arbitration was not made within a reasonable time and that the delay in making this request and its resulting prejudice should work as a waiver of Appellants’ claim. We agree. The plaintiff filed the original complaint in this action in June of 1982. Discovery began and an amended complaint was filed in April of 1986. Preliminary objections were filed followed by answers, new matters, cross-claims and counterclaims. A certificate of Readiness was filed by Appellee to which Appellant Kenneth W. Behrend excepted. A scheduled pre-trial conference was then continued and additional discovery was conducted. Less than three weeks before the next scheduled pre-trial conference and nearly six years after the original complaint was filed, the court was presented for the first time with a motion requesting to have the case transferred to arbitration. As in Miller, this application for transfer to arbitration was not made promptly. Instead the defendants waited until six years had passed while in the meantime they took advantage of the judicial process including their rights to discovery. The Appellants conduct in waiting until the case was nearly ready for trial before moving to transfer the case to arbitration could only serve to further postpone resolution and settlement of the decedent’s estate. In conclusion we find that the claim that this case should properly be heard in arbitration has been waived and we will not further consider the trial court’s ruling on this matter.

Appeals at 1168 and 1169 Pittsburgh 1988 are quashed. Appeals numbered 997, 1152 and 1167 Pittsburgh 1988 from the order entered June 10, 1988 denying the requested motions for summary judgment are also quashed. The June 10, 1988 order which denied motions to transfer the case to arbitration and which is the subject of appeals at 997, 1152 and 1167 Pittsburgh 1988 is affirmed.