text:
    470 A.2d 990
    William O. HOYER and Virginia A. Hoyer, Appellants, v. Murray B. FRAZEE, Jr. and Swope & Frazee.
    Superior Court of Pennsylvania.
    Argued March 8, 1983.
    Filed Jan. 13, 1984.

      Thomas A. Beckley, Harrisburg, for appellants.
    Henry O. Heiser, III, Gettysburg, for appellees.
    Before CERCONE, President Judge, and WICKERSHAM and MONTEMURO, JJ.
   WICKERSHAM, Judge:

Appellants William and Virginia Hoyer have taken this appeal from a determination by the Adams County Court of Common Pleas, Judge Keith B. Quigley specially presiding, that appellees Murray B. Frazee and Swope & Frazee were not liable for damages resulting from an error in the sale of land. This litigation began when the Hoyers filed a complaint in trespass and assumpsit against their attorney Murray B. Frazee and his law firm, Swope & Frazee, alleging that Frazee’s negligence caused the Hoyers to purchase a thirty-three (33) acre parcel of land rather than the forty-five (45) acre parcel the Hoyers believed they were buying. The Hoyers also sued the seller of the property and the seller’s attorneys, but after procedural maneuvers irrelevant to us now, the seller and its lawyers were dropped from the suit.

The matter was tried before the Honorable Keith B. Quigley, sitting without a jury. Judge Quigley made the following factual findings:

On July 23, 1973, plaintiffs executed articles of agreement offering to buy the land from the estate of Gladys J. Berry, deceased, which land was described as containing 45 acres, more or less.
At the time of this transaction, plaintiffs were residents of New York State. On or about August 3, 1973, they retained defendant attorneys to perform an examination record title and to represent plaintiffs in the closing of the sale.
According to the terms of the articles of agreement, the seller was to do a survey of the 45 acres. However, the estate did not agree to this provision and amended the agreement to provide that the sale would be accomplished with the use of an existing survey and a new survey to define the boundary where the subject property had been subdivided. Plaintiffs responded that this would be acceptable only if the existing survey were “certified.”
In a letter dated August 21, 1973, Defendant Frazee indicated to the plaintiffs that he anticipated no difficulty with plaintiff’s requirements as to the survey.
A subsequent letter from Defendant Frazee, dated September 12, 1973, advised plaintiffs that defendant attorneys had compared the description of the land in the deed with existing surveys as well as with the description in the Mapping Department in the Adams County Courthouse. Defendants also noted that the description was satisfactory by local standards and that they, the defendants, had no hesitancy in certifying the title. While it was pointed out that a title insurance company would insist on an exception to the description because it was not taken from an entirely up-to-date survey, defendants recommended that the plaintiffs accept the deed as prepared.
Closing was held on September 21, 1973 at which time the land was conveyed by deed, the containing clause of which recited that the acreage was “45 acres, more or less.” A certificate of title issued to plaintiffs by defendants on October 1, 1973 likewise recited that the acreage was 45 acres, more or less.
Plaintiffs moved to Pennsylvania in 1976 and began constructing a home on the subject property. It was sometime during this construction in the fall of 1976 or early 1977 that plaintiffs learned that, in fact, the real estate conveyed to them was 33.861 acres and not the 45 acres they had expected. Accordingly, plaintiffs filed suit against the co-executors of the estate of Gladys J. Berry as well as their settlement attorneys. This Court sustained the demurrer of the sellers, but required the defendant attorneys to answer the complaint. At this time, the Court also ruled that the transaction was an en gros sale and not a per acre sale as plaintiffs have asserted.
This action proceeded to a non-jury trial on May 14-15, 1981 at which time the Trial Court entered an order in favor of defendants and against the plaintiffs. In so ordering, the Court concluded that defendants were not negligent or in breach of their contract of employment. From this order the plaintiffs have made certain post-trial exceptions.

Slip op. at 1-3. The exceptions were denied and this appeal timely followed.

Three of the Hoyers’ first four assignments of error relate to the trial court’s finding that the Hoyers’ attorney was not negligent in his use of a certified survey. The Hoyers state the third issue as follows: “Did the lower court err by importing a standard of care into an assumpsit cause of action?” Brief for Appellants at 3. The Hoyers assert that the court below should have found that Frazee breached his contract with the Hoyers and that Frazee’s certificate of title was a guarantee that the Hoyers would receive forty-five acres. Further, the Hoyers contend that the lower court should not have used a standard of care analysis in a contract case.

Initially, we note that the Hoyers’ complaint alleges breach of contract and negligence on the part of their attorney Frazee. Nevertheless, it was not error for the judge below to adopt a standard of care analysis. We recognize that there are cases in which a plaintiff could assert two distinct causes of action against an attorney, one in contract and one in tort. In Duke & Company v. Anderson, 275 Pa.Super. 65, 418 A.2d 613 (1980), a panel of this court noted that an aggrieved client has a choice:

either to sue the attorney in assumpsit, on the theory that the attorney by failing to follow specific instructions committed a breach of contract; or to sue the attorney in trespass, on the theory that the attorney failed to exercise the standard of care that he was obliged to exercise.

Id., 275 Pa.Superior Ct. at 70, 418 A.2d at 616.

In the instant case, the Hoyers’ complaint contains both a breach of contract count and a negligence count. Nevertheless, we believe that the assumpsit claim, like the negligence claim, is based on the appellants’ averment that their attorney failed to exercise the requisite duty of care toward them. The Hoyers did not allege that the appellees failed to follow specific instructions. See Duke & Company, supra. Appellants also did not aver a breach of a specific provision of their contract with appellees. Thus, we do not believe that the first count of the Hoyers’ complaint states a true contract cause of action. Rather, the entire complaint sounds in negligence; that is, the appellees failed to exercise the appropriate standard of care. The essence of the Hoyers’ complaint is that Frazee was negligent and that his negligence was a breach of his contract with them. It was, therefore, appropriate to consider whether Frazee’s conduct breached the standard of care owed the Hoyers.

The Hoyers maintain that Frazee did not exercise the requisite duty of care when he failed to guarantee them forty-five acres of land. The lower court judge rejected this argument and held that an attorney is not a guarantor. The standard of care in a legal malpractice case is whether the attorney has exercised ordinary skill and knowledge. Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493 (1979). The trial judge found that the Hoyers’ attorney relied on an old certified survey. The Hoyers themselves agreed to use the old survey if it was certified. The certified survey contained two errors; it did not close and it miscalculated the acreage in the parcel. The trial judge also found that the closure error was not significant, that the acreage error was not obvious, and that nothing on the face of the survey revealed the mistake in acreage. Expert testimony supported this finding, and we will not disturb it now.

The Hoyers also claim that an attorney certifying title to real estate is negligent per se if he or she fails to protract a deed description. Appellants ask us to set a statewide standard requiring protraction of deed descriptions by attorneys certifying title to real estate. As the Hoyers concede, attorneys in Adams County do not uniformly protract deed descriptions. Under the circumstances of this case, we decline to make a broad rule requiring protraction in each and every case.

Finally, the Hoyers contend that the lower court erred by refusing to accept evidence of the increase in value of similar acreage since the deed was transferred. Our disposition of the other issues involved in this case makes discussion of this issue unnecessary; the attorney was not negligent and calculation of damages is thus moot.

Judgment affirmed.

      . Appellants state these issues as follows:
      A. Did the lower court err by refusing to find that the Certificate of Title certified the existence of 45 acres?
      B. Did Frazee breach his duty to the Hoyers by failing to report noted discrepancies in the chain of title?
      ******
      C. Did the lower court err by failing to find breach of contract and negligence by Frazee for failure to compare the proposed deed language against the survey calls of the existing survey?
      Brief for Appellants at 3.

      . The pertinent paragraphs of the Hoyers’ complaint aver:
      17. Defendant-Frazee and Defendant-Swope & Frazee breached its contractual obligation to Plaintiffs in that Defendant-Frazee and Defendant-Swope & Frazee failed to discover that the area conveyed was less than represented and had advised Plaintiffs to accept the deed as written without a survey.
      18. Defendant-Frazee and Defendant-Swope & Frazee failed to perform properly in that they failed to discover that the description in the deed is “open-ended”, that is, the calls in the deed when surveyed and plotted do not return to the Beginning Point and does not convey any property to Plaintiffs.
      Complaint at 4.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    470 A.2d 993
    Sheila WALKER, Appellant, v. PORT AUTHORITY OF ALLEGHENY COUNTY.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1983.
    Filed Jan. 13, 1984.

      David M. Korman, Pittsburgh, for appellant.
    Irvin S. Bails, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Sheila Walker, a passenger on a bus owned and operated by the Port Authority of Allegheny County, was discharged at the corner of Sixth and Liberty Avenues in Pittsburgh. After she had exited the bus through the center doors and after the bus doors had again been closed, but before she could reach the curb, Ms. Walker was struck by a vehicle being operated along the right side of the bus. The trial court concluded that Ms. Walker was not an occupant of the bus at the time she was injured and that the bus had not been involved in the injury-producing accident. Therefore, the trial court held that the Port Authority was not liable to Ms. Walker for basic loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. Exceptions were dismissed, and this appeal followed. We reverse.

In reversing, we find it unnecessary to determine whether appellant continued to be an “occupant” of the bus after she had alighted from the bus and the bus doors had been closed. Assuming, without deciding, that she was no longer an occupant of the bus, Section 204(a)(4) of the Pennsylvania No-Fault Act, 40 P.S. § 1009.204(a)(4), nevertheless provides:

The security for the payment of basic loss benefits applicable to an injury to an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident.

Where a bus discharges a passenger on a public thoroughfare and the passenger is struck by a passing vehicle before the passenger can reach the curb or other place of safety, that bus, we have held, has been “involved in an accident.” Tyler v. Insurance Co. of North America, 311 Pa.Super. 25, 31, 457 A.2d 95, 98 (1983). See also: Homa v. Wilkes-Barre Transit Corp., 394 Pa. 309, 147 A.2d 377 (1959); Coyne v. Pittsburgh Railways Co., 393 Pa. 326, 141 A.2d 830 (1958). Appellee, therefore, was entitled to recover basic loss benefits, together with interest thereon, from the Port Authority which provided the applicable security therefor.

Appellant also contends that she is entitled to recover reasonable counsel fees because appellee’s refusal to pay basic loss benefits was unreasonable and in bad faith. See: Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). This issue was not considered by the trial court, and the record is insufficient to permit this court to determine whether appellee’s denial of benefits was unreasonable as a matter of law.

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

      . The passing vehicle was also "involved” in the accident. The parties have represented, however, that this vehicle, licensed in and by the State of Wisconsin, did not carry “no-fault” coverage.


author: HOFFMAN, Judge:

text:
    470 A.2d 995
    Allene D’ARCIPRETE v. Andrew G. D’ARCIPRETE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1983.
    Filed Jan. 13, 1984.

      Barry M. Miller, Norristown, for appellant.
    Frederick C. Horn, Lansdale, for appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal involves several challenges to the lower court’s support order. We find no merit in appellant’s numerous claims and, accordingly, affirm the order of the lower court.

. In June 1981, Mrs. D’Arciprete, appellee, filed an action against her husband, appellant, seeking support for herself and their two-year-old son, Matthew. An office conference was held on July 14, but the parties did not come to an agreement. On September 15, 1981, the master recommended support payments of $200 per week, allocating $130 per week to appellee and $70 per week to Matthew, to which appellant filed exceptions. On December 17, 1981, a hearing de novo was held before the Honorable Lawrence A. Brown of the Court of Common Pleas of Montgomery County and appellant was ordered to pay $235 per week in support, with $150 per week allocated for appellee and $85 per week for Matthew. This appeal followed.

Appellant contends first that the lower court erred in entertaining appellee’s testimony concerning her loss of income since the master’s hearing because (1) only appellant filed exceptions and (2) her loss of income had yet to occur. Appellant overlooks the fact that the hearing before the lower court was a hearing de novo. “De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case.” Commonwealth v. Gussey, 319 Pa.Superior Ct. 398, 404, 466 A.2d 219, 222 (1983), quoting Virnelson Motor Vehicle Operator License Case, 212 Pa.Superior Ct. 359, 367, 243 A.2d 464, 468 (1968). Our position is further supported by the fact that Montgomery County chose to follow the de novo hearing procedure for support actions, see Montgomery County Rules of Procedure 1910.11, rather than the alternative procedure which, in place of providing for a hearing de novo, provides for the filing of exceptions and states that “[mjatters not covered by exceptions are deemed waived,” see Pa.R.Civ.P. 1910.12. Accordingly, the lower court had discretion in the de novo hearing to consider all the facts in determining whether to accept, reject or modify the master’s recommendation.

Appellant’s additional contention that appellee’s income had not yet been reduced is also meritless. Appellee had been earning $50 per week as a Fuller Brush salesperson but lost her job the week before the hearing de novo. The lower court took this into consideration in awarding support above the amount recommended by the master. (N.T. December 17, 1981 at 10). Although appellee testified that she was still earning income because her job was a “residual thing” which would phase out completely by the end of the year, we do not agree that appellee’s current loss of income had not been evidenced. (N.T. December 17, 1981 at 12). At the time of the hearing de novo, appellee’s income had already dropped to $35 per week and was expected to continually decrease over subsequent weeks until its complete cessation. The lower court correctly reasoned:

The [appellant] would have us relegate the [appellee] to filing a petition to modify despite the fact that the hearing was de novo and the Master’s figure of $200 a week was a recommendation and not an order. No prejudice was shown by reason of our decision to hear testimony concerning the loss of the job. Certainly it avoided delay and the waste of time and money to both the court and the litigants which another trip through the system would require. Both parties were present and prepared so there was no injury to the [appellant] in denying him the delay he sought.

(Lower Court Opinion at 2-3).

Appellant also argues that the lower court erred in ordering him to bear 70% of appellee’s loss of income. He derives the 70% figure from the fact that appellee’s prior income was $50 per week and the court’s support order was a $35 increase from the amount recommended by the master. Appellant’s reasoning is erroneous. “The appellate review of support orders is very narrowly defined and upon appellate review, we will not, and indeed should not, interfere with the lower court’s determination absent a very clear abuse of discretion.” Urban v. Urban, 298 Pa.Superior Ct. 224, 226, 444 A.2d 742, 743 (1982), quoting Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Superior Ct. 390, 358 A.2d 102 (1976) (citation omitted). Here, appellant was earning $517 a week as a computer analyst and the lower court awarded $235 per week for the support of appellee and the parties’ son. We cannot say that this order is confiscatory or constitutes an abuse of discretion. See Jones v. Jones, 348 Pa. 411, 35 A.2d 270 (1943) (support order for wife and child of $200 per month where husband received $418 per month); and Commonwealth ex rel. Haimowitz v. Haimowitz, 221 Pa.Superior Ct. 364, 292 A.2d 502 (1972) (support order for wife and child of $125 per week where husband received $245 per week).

Appellant contends finally that the lower court failed to consider appellee’s earning capacity. The record belies this contention. Appellee testified that she needed to work at home because Matthew has cerebral palsy and that she had been unable to find in-home work. (N.T. December 17, 1981, at 14-15, 25-26). She also testified that when she previously worked outside the home, all of her income went towards paying the babysitter. (N.T. December 17, 1981, at 14-15, 25). We have stated that “[t]he hearing judge has the best opportunity to decide the facts since he observes the witnesses and can best pass on their credibility” and that his findings on credibility “should not be reversed by the appellate court unless there is a capricious disregard of competent evidence.” Commonwealth ex rel. Powelson v. Powelson, 277 Pa.Superior Ct. 220, 221, 419 A.2d 741, 742 (1980). Here, the lower court considered the testimony and reasonably concluded that “[although Mrs. D’Arciprete possesses secretarial skills, she testified credibly as to her unsuccessful efforts to find typing work which she could perform at home.” (Lower Court Opinion at 2).

Under these circumstances, we find appellant’s contentions meritless and, therefore, must affirm the order of the lower court.

Affirmed.

      . Montgomery County has chosen Pa.R.Civ.P. 1910.11 as the procedure for support actions. Apparently, both a master and a domestic relations officer were present at the office conference, a minor difference from the 1910.11 procedure. Unlike the procedure in Pa.R.Civ.P. 1910.12, however, the master did not hold a separate evidentiary hearing. His recommendation was treated as an order under 1910.-11(f), allowing any party ten days to file a written demand for a hearing de novo. Thus, appellant’s exceptions were properly treated as a demand for a hearing.
      Montgomery County’s variation from Pa.R.Civ.P. 1910.11 may possibly have confused the appellant. Nonetheless, he has not challenged the rule and we shall reserve decision on this variation until it is properly raised.

      . The December 17 order, effective December 21, also provided that arrearages were set at $465 by agreement of counsel, and that appellant was responsible for all of Matthew’s medical bills that were unreimbursed by insurance.

      . On September 25, 1981, appellant filed exceptions to (1) the amount of the award recommended by the master, and (2) the effective date of the order in that the master failed to give him credit for payments made to appellee after the effective date on the order. He withdrew the first exception prior to the December 17 hearing and the amount of arrearages was agreed upon by the parties during the course of the hearing.

      . Pa.R.Civ.P. 1910.10 provides that: "The [support] action shall proceed as prescribed by Rule 1910.11 unless the court by local rule adopts the alternative hearing procedure of Rule 1910.12.”
      In an analogous situation, this Court has held that, because appeals from arbitration awards are de novo, any selective appeal limited solely to the damage issue was precluded and the court could also redecide liability. See Feingold v. A & C Electric Company, Inc., 305 Pa.Superior Ct. 542, 451 A.2d 780 (1982); and Piernikowski v. Cardillo, 263 Pa.Superior Ct. 202, 397 A.2d 817 (1979).

      . The policy is that the amount awarded the wife should not exceed one-third (Vá) of the husband’s income. Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964); Commonwealth v. Gilleland, 93 Pa.Superior Ct. 307 (1928). Here, the amount allocated to appellee of $150 per week is less than one-third (Vá) of appellant’s $517 per week income.


author: HQFFMAN, Judge:

text:
    470 A.2d 998
    COMMONWEALTH of Pennsylvania v. Reginald SANFORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1983.
    Filed Jan. 13, 1984.

      Thomas F. Reilly, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   HQFFMAN, Judge:

Appellant alleges (1) that the introduction of co-defendants’ redacted confessions violated his sixth amendment right to confrontation and (2) several instances of prosecutorial misconduct. We find no merit in appellant’s contentions and, accordingly, affirm the lower court’s order.

Appellant was arrested on November 23, 1976 and, along with three co-defendants, was charged with rape, robbery, involuntary deviate sexual intercourse and criminal conspiracy. After a joint trial before a jury, appellant was found guilty on all counts and following the denial of his post-trial motions, was sentenced to a ten-to-twenty year term of imprisonment. Subsequent to appellant’s filing a Post Conviction Hearing Act petition on March 6, 1980, the Honorable Edward J. Blake granted appellant the right to appeal, nunc pro tunc, from the trial court’s denial of his post-verdict motions. This appeal followed.

Appellant contends first that his sixth amendment right to confrontation was violated by the admission of his co-defendants’ confessions. Specifically, he argues that the combination of the redacted confessions and the court’s limiting instructions failed to protect this right. We disagree. Redaction can be an appropriate method of protecting a criminal defendant’s rights, if “a confession can be edited so that it retains its narrative integrity and yet in no way refers to defendant.” Commonwealth v. Johnson, 474 Pa. 410, 412, 378 A.2d 859, 860 (1977). See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The introduction of a confession “is objectionable, however, ... when it refers to and implicates the defendant.” Commonwealth v. Guess, 266 Pa.Superior Ct. 359, 376, 404 A.2d 1330, 1338 (1979). See Commonwealth v. McQuaid, 273 Pa.Superior Ct. 600, 417 A.2d 1210 (1980); Commonwealth v. Norman, 272 Pa.Superior Ct. 300, 415 A.2d 898 (1979).

Here, the trial court admitted the redacted confessions of two of appellant’s co-defendants. The court replaced all mention of proper names with the pronouns “we” and “us” and instructed the jury that the statements were to be considered only against the speakers and not against the remaining defendants. We find the redaction, coupled with the court’s limiting instructions, sufficient protection against a denial of appellant’s sixth amendment rights. As in Commonwealth v. Johnson, supra 474 Pa. at 414, 378 A.2d at 861, redaction is permissible here because “the confession does not contain a trace or a hint of participation in the crime by appellant____” (emphasis added). Rather, the redacted confessions merely informed the jury that others, besides the speaker, were at the scene and possibly involved in the incident that followed.

Appellant’s reliance on Bruton v. United States, supra, is misplaced. In Bruton, the Supreme Court held that, when a co-defendant’s confession implicating the defendant is permitted and the co-defendant does not take the stand, the defendant’s right to confront and cross-examine witnesses is violated. Here, however, the redacted confessions did not implicate appellant any more than his being tried jointly with the other defendants. Appellant’s reliance on Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976), is equally misplaced. In Knight, the Court chose to “treat all of the statements introduced into evidence as having directly incriminated both the declarant and his co-participant.” Id., 469 Pa. at 62, 364 A.2d at 904. The names had been replaced with “the other individúa! named.” The redacted confessions in the instant case, however, do not incriminate anyone individually, save the defendant who offered the confession. .The use of “we” and “us” only alerted the jury that at least one other person had acted with the speaker.

Appellant next alleges several instances of prosecutorial misconduct in the district attorney’s closing statement. We find that the trial court did not err in refusing to grant a new trial on these contentions. A prosecutor’s trial conduct must be neither vindictive nor in any manner influence the jury by arousing their prejudices. Commonwealth v. Starks, 479 Pa. 51, 56, 387 A.2d 829, 831 (1978). “But even where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required.” Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975). “Comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Van Cliff, 483 Pa. 576, 582, 397 A.2d 1173, 1176 (1979), quoting Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). See generally Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973) (“Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial.”).

Appellant challenges first the prosecutor’s comment that “Darlene Solomon made up her mind she wasn’t going to tell anyone.” (N.T. at 7.184). Solomon, who was present at the scene of the rape/robbery, but was not a victim, did not testify at the trial. As our Court noted in one of the co-defendant’s appeals, Commonwealth v. Young, 263 Pa.Superior Ct. 333, 397 A.2d 1234 (1979), the victims themselves had testified to a secret agreement not to talk. Thus, the prosecutor was making an inference from what was already in evidence. Furthermore, even if the jury could infer from this comment that Solomon’s testimony would be corroborative of the victims’, the comment does not rise to the level of prejudice requiring a new trial.

Appellant also challenges the district attorney’s comment that “Detectives don’t make mistakes.” While the prosecutor may not express his personal belief or opinion as to the truth or falsity of any testimony, see Standard 3-5.8(b) of the American Bar Association Standards Relating to Administration of Criminal Justice, it cannot reasonably be said that this expression deprived appellant of a fair and impartial trial. The prosecutor in making this isolated remark, emphasized the consistency between the detectives’ testimony as to the content of the co-defendants’ confessions and the victims’ stories. Commonwealth v. Young, supra. This comment does not rise to the degree of expression disfavored in Commonwealth v. Starks, supra, where the prosecutor continually and strenuously emphasized his belief in the truthfulness of the detective’s testimony.

Appellant also objects to the portion of the district attorney’s closing statement wherein he noted, “There’s a time to speak. A time to keep silent.” (N.T. at 7.206). Specifically, appellant argues that from this comment the prosecutor hoped to indirectly emphasize that appellant did not take the stand. We disagree with this interpretation of the prosecutor’s comment and, instead, agree with our Court in Commonwealth v. Young, supra, that the district attprney was referring to the fact that he was concluding and that “to construe the statement as a reference to appellant’s First Amendment perogatives [sic] would be an unreasonable strain on the plain meaning of the words in context.” Id. 263 Pa.Superior Ct. at 339, 397 A.2d at 1238.

'Similarly, appellant avers prosecutorial misconduct in the district attorney’s informing the jury that he would “await their decision,” and that “it all comes out.” These comments are well within the permissible range of prosecutorial remarks in closing statements.

Accordingly, finding no merit in appellant’s several contentions, we affirm the lower court’s order.

Affirmed.

      . Our Court has previously affirmed the judgments of sentence in appellant's co-defendants’ appeals. See Commonwealth v. Key, 286 Pa.Superior Ct. 612, 427 A.2d 239 (1980) (Per Curiam); Commonwealth v. Boykin, 276 Pa.Superior Ct. 56, 419 A.2d 92 (1980) rev’d 501 Pa. 250, 460 A.2d 1101; (appeal pending in Supreme Court at No. 80-3-758); Commonwealth v. Young, 263 Pa.Superior Ct. 333, 397 A.2d 1234 (1979).

      . Even if the redacted confessions implied that appellant was at the scene before the incident, they did not incriminate him in the rape/robbery that followed.

      . Appellant argues that by saying "it all comes out,” the district attorney attempted to persuade the jury that he was completing an evidentiary "puzzle."


author: PER CURIAM:

text:
    470 A.2d 1001
    COMMONWEALTH of Pennsylvania v. Clarence WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 12, 1983.
    Filed Jan. 13, 1984.
    Petition for Allowance of Appeal Denied April 16, 1984.

      Douglas M. Johnson, Assistant Public Defender, Norris-town, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Com., appellee.
    Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.
   PER CURIAM:

This is an appeal from an order denying a petition for habeas corpus and directing appellant’s extradition to the State of Maryland.

Appellant argues that the trial court erred in allowing hearsay statements to be admitted into evidence at his extradition hearing and that the Commonwealth failed to meet its burden of establishing the elements required for extradition.

Appellant was serving a sentence of 10 to 20 years at the State Correctional Institution at Graterford on a charge of rape. Because appellant had been indicted for rape, burglary and other offenses in Maryland, the State’s Attorney for the City of Baltimore, Maryland, filed a request for temporary custody of appellant pursuant to the Interstate Agreement on Detainers (IAD), 42 Pa.C.S.A. Section 9101. Appellant then filed a petition for writ of habeas corpus, a hearing was held, and the trial court dismissed the petition.

Relying on Adams v. Cuyler, 592 F.2d 720 (3d Cir.1979), aff'd 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), the trial court held that the IAD reserved to the defendant the procedural protections of the Uniform Criminal Extradition Act, 42 Pa.C.S.A. Section 9121 et seq. In response to appellant’s argument that it was error to admit hearsay statements into evidence the court relied on two Extradition Act cases, Commonwealth v. Inadi, 303 Pa.Superior Ct. 409, 449 A.2d 753 (1982), and Commonwealth v. Rowe, 264 Pa.Superior Ct. 67, 398 A.2d 1060 (1979), which have held that hearsay is admissible. On appeal appellant acknowledges Inadi and Rowe but argues without citation to any authority that in IAD proceedings the protection should be greater than in Extradition Act proceedings. We see no basis for this distinction.

Appellant’s second argument is that the Commonwealth failed to establish all the elements required for extradition. Appellant argues that since the police officer’s testimony at the extradition hearing was hearsay, it follows that the Commonwealth did not prove by competent evidence that appellant was a fugitive from Maryland or that appellant was present in the demanding state at the time of the commission of the crime. This argument is rejected for the reasons stated above. Appellant also argues that since the two Maryland witnesses had never met appellant their identifications of him could not be accepted by the lower court. At the habeas corpus hearing, a Maryland police officer testified that he had heard and observed the victim identify appellant in Maryland from a photo array. During the same hearing the police officer identified appellant as the defendant against whom the Maryland warrant was directed and also picked out the picture of appellant previously identified by the Maryland victim. See N.T. 3/30/83 at 3-7. This evidence was sufficient to meet the preponderance of the evidence standard. See Commonwealth v. Rowe, supra.

The order of the trial court is affirmed.


text:
    470 A.2d 1002
    Larry M. COBLE v. Brenda K. COBLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Jan. 20, 1984.

      John W. Purcell, Jr., Harrisburg, for appellant.
    Donald Louis Jones, Middletown, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

In this appeal we are called upon to review an order awarding custody of a two year old male child to his father, Larry M. Coble, the appellee herein. Brenda K. Coble, the child’s mother and the appellant herein, complains that the trial court failed to prepare a sufficiently comprehensive opinion analyzing the ability of the parties to serve the best interests of the child and also that the court relied upon an investigative report without according appellant an opportunity to cross-examine the author and/or rebut the facts reported therein. Because appellant’s latter objection is well taken, we reverse and remand for further proceedings.

It is now well settled that in contested custody cases, reports of investigators and doctors as such may not be received into evidence and may not be considered by the court. The authors of the reports must themselves be produced, sworn and examined as witnesses, and must then be available for and subject to cross-examination. Hall v. Luick, 314 Pa.Super. 460, 466, 461 A.2d 248, 252 (1983); Dunsmore v. Dunsmore, 309 Pa.Super. 503, 505-06, 455 A.2d 723, 724 (1983); Kessler v. Gregory, 271 Pa.Super. 121, 125, 412 A.2d 605, 607 (1979); Wood v. Tucker, 231 Pa.Super. 461, 463, 332 A.2d 191, 192 (1974); Commonwealth ex rel. Oncay v. Oncay, 153 Pa.Super. 569, 570, 34 A.2d 839 (1943). See also and compare: Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980). The right of a litigant to in-court presentation of evidence and the right to confront and cross-examine adverse witnesses are essential requisites of due process. Shaffer v. Gaal, 312 Pa.Super. 399, 458 A.2d 1020 (1983); Wood v. Tucker, supra.

At the conclusion of the hearing in the instant case, the trial court directed “that a social agency conduct an investigation. As soon as we get that information I will again confer with counsel on both sides and we will decide at that point after we receive the report.” An investigation was made and a report prepared by the Dauphin County Social Service for Children and Youth. The court’s opinion leaves no doubt that the report was considered in arriving at its custody determination. Unfortunately, the record discloses no conference with counsel and no subsequent hearing. Appellant had no opportunity to cross-examine the investigator who prepared the report and no opportunity to rebut the facts recited therein. Upon receipt of the report, the trial court, without further ado, entered an order awarding custody of the child to appellee. This was error and requires that we reverse and remand for further proceedings.

Because the case must be remanded, it may not be amiss to suggest that additional proceedings should take place with the utmost dispatch. See: Shaffer v. Gaal, supra, 312 Pa.Superior Ct. at 401-02, 458 A.2d at 1021. We also repeat for the benefit of court and counsel the necessity for a comprehensive analysis and review as set forth in Parks v. Parks, 284 Pa.Super. 400, 406-407, 426 A.2d 108, 111 (1981). We there said:

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record____ In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. It is the responsibility of the [trial] court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Where the record is incomplete or the opinion of the [trial] court is inadequate, the case will be remanded.

Id., 284 Pa.Superior Ct. at 406-407, 426 A.2d at 111 (citations omitted). See also: Hall v. Luick, supra, 314 Pa.Superior Ct. at 461-62, 461 A.2d at 249. This requires more than a statement that “both parents are capable of caring for the child.” It requires, at the very least, a statement which enables a reviewing court to determine the reasons for the trial court’s opinion that the best interests of the child will be met by the award of custody which it has made.

Reversed and remanded for proceedings consistent with this opinion.

      . The report has not been made a part of the record and, therefore, is not before this Court for review.


author: JOHNSON, Judge: CIRILLO, Judge,

text:
    470 A.2d 1004
    COMMONWEALTH of Pennsylvania v. Wade Douglas HAIRSTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Jan. 20, 1984.
    Petition for Allowance of Appeal Denied April 30, 1984.

      Wade Douglas Hairston, Harrisburg, appellant, in propria persona.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant Wade Douglas Hairston appeals the trial court’s summary dismissal of his pro se and supplemental PCHA petitions. We reverse and remand for an evidentiary hearing.

The record indicates that appellant entered guilty pleas to charges of murder, robbery and burglary on April 19, 1977. Upon accepting the plea, the trial court conducted a degree of guilt hearing concerning the murder plea and found appellant guilty of murder in the second degree. Appellant was immediately sentenced to a term of life imprisonment on the murder charge and ten to twenty years on the robbery and burglary charges, both to run consecutively to the life sentence. No motion to withdraw the guilty plea nor direct appeal was filed. On December 15, 1981, appellant filed his pro se PCHA petition. Following the filing of a supplemental, counseled PCHA petition and answer by the Commonwealth, the trial court denied the petitions on June 16, 1982 without a hearing. That order stated:

OPINION AND ORDER
The Court adopts the Commonwealth’s Answer as completely, accurately and authoritatively disposing of all issues raised.
Accordingly, defendant’s Supplemental Petition under the Post Conviction Hearing Act is denied without a hearing.

Appellant filed his notice of appeal on June 22, 1982. Subsequently, on July 1, 1982, the trial court issued a second order reaffirming its June 16th order dismissing appellant’s petition without a hearing but also vacating appellant’s sentence for robbery.

However, because notice of appeal had already been filed at the time of this second order, it was a nullity. Pa.R.A.P. 1701; 42 Pa.C.S.A. § 5505; Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982). We do note' that the trial court’s conclusion is correct; the robbery sentence merged into the murder conviction. Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).

Appellant raises several issues on this appeal: (1) was his guilty plea entered knowingly, voluntarily and intelligently, (2) should he be permitted to file a motion to withdraw his guilty pleas nunc pro tunc and (3) should the robbery sentence be vacated.

Various substantive issues are raised pursuant to the first issue, which we need not now discuss, as appellant has alleged that he was not informed of the 30 day time period in which to file a direct appeal. Our review of the guilty plea colloquy confirms that the trial court did not inform appellant of this time period. The law is clear that unless a court is absolutely certain of patent frivolousness of the issues in a PCHA petition, it must grant a hearing; in borderline cases, the petitioner should be given every conceivable legitimate benefit in favor of granting the hearing. Commonwealth v. Gray, 317 Pa.Super. 248, 463 A.2d 1179 (1983).

The trial court admits, in its opinion, that appellant was not informed of the 30 day direct appeal period, but denies relief, inter alia, on the basis of appellant’s four and-one-half year delay in filing his PCHA petition. However, we note that appellant implicitly has explained the delay in filing his petition and his reasons for not filing a direct appeal; that he was not informed of the time period in which to do so. Therefore, appellant’s PCHA petition cannot be dismissed as untimely, as he has alleged the deprivation of his appellate rights. See Commonwealth v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983); Commonwealth v. Wallace, 229 Pa.Super. 172, 323 A.2d 182 (1974).

There is also no waiver under the provisions of the PCHA where the petitioner proves the existence of “extraordinary circumstances” justifying his failure to raise the issue on direct appeal 19 P.S. § 1180-4(b)(2). A denial of appellate rights is such an extraordinary circumstance. Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978).

We note that a determination of whether a defendant’s guilty plea was knowing and voluntary is a factual matter to be resolved by the trial court. Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970); Commonwealth v. Gray, supra. We must, therefore, remand this matter for an evidentiary hearing on all of appellant’s claims properly raised in his PCHA petitions. Commonwealth v. Lowery, supra.

The orders dated June 16, and July 1, 1982 are vacated and the case remanded for (1) an evidentiary hearing on appellant’s PCHA petition and (2) vacation of appellant’s sentence for robbery.

Jurisdiction is not retained.

WIEAND, J., concurs in the result.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. The majority holds that since the appellant was not informed that he had 30 days within which to perfect a direct appeal, his delay of 4 years, 8 months in filing a P.C.H.A. Petition was implicitly explained and, therefore, he is entitled to an evidentiary hearing. I cannot condone such an abuse of the Post Conviction Hearing Act.

During the proceedings held on April 19, 1977, the Honorable John C. Dowling took the time on 2 occasions to inform the appellant of his right to file a direct appeal.

THE COURT: The only rights you have, after you are found guilty, would be to file an appeal, a direct appeal to the Supreme Court or Superior Court in which the only thing you could question- then really would be the voluntariness of the pleas, the legality of any sentence imposed and the jurisdiction of the Court. Other than that, you are pretty well precluded when you plead guilty from raising any other matters. Is that understood?
THE DEFENDANT: Yes sir.

(N.T. at 17).

THE COURT: ... Now you have been sentenced, Mr. Hairston, and you have the right to file a direct appeal from your judgment of sentence to the Superior Court. If you wish to file such an appeal and are unable to afford counsel, counsel will be provided as it has been heretofore, counsel will be provided for you free of charge.

(N.T. at 140).

It is admitted that the appellant was never informed that he had only 30 days to appeal. See: Pa.R.A.P. 903(a); 42 Pa.C.S.A. However, he knew he had a right to appeal. Did he think that this right was perpetual? Moreover, if the appellant believed that his claims had any merit, why did he wait so long to file for post-conviction relief?

A lapse of time in filing a P.C.H.A. Petition is a factor to be considered in assessing its merit. Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983); Commonwealth v. Courts, 315 Pa.Super. 108, 461 A.2d 820 (1983); Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1983). Thus, a lengthy, unexplained delay in raising an issue will buttress the presumption of knowing and understanding waiver; conversely, the immediate attempt to gain review of alleged error at the earliest possible time would have the opposite effect. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981).

In the recent case of Commonwealth v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983), a panel of this Court (per Judge WIEAND) held that the appellant’s failure to completely explain delays, varying from 7 years, 6 months, to 2 years, 10 months, in filing requests to withdraw guilty pleas, barred consideration of the claims which the appellant sought to assert. So too, under the present circumstances, it is my opinion that the appellant has waived his claims under the P.C.H.A. See: Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), (Justice ROBERTS, concurring). He has not alleged any extraordinary facts that would explain the 4 year, 8 month delay between sentencing and the filing of the P.C.H.A. Petition. Certainly, the failure to inform the appellant that he had but 30 days to appeal does not excuse such a considerable lapse of time.

The Post Conviction Hearing Act was designed to give a convicted defendant a final chance to vindicate his constitutional right to due process of law to the extent that questions raised had not been previously adjudicated or waived. Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976); Commonwealth v. Murray, 315 Pa.Super. 417, 462 A.2d 264 (1983). The P.C.H.A. was never meant to afford defendants endless opportunities at bombarding the judiciary with frivolous appeals, nor to make a mockery of the concept of judgment finality. Accordingly, I would hold that the merits of the appellant’s case have been waived and affirm the lower court order denying post-conviction relief.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq., repealed and reenacted by Act of May 13, 1982, P.L. 417, No. 122, §§ 2, 3, immediately effective, 42 Pa.C.S.A. § 9541 et seq.

      . 18 Pa.C.S.A. § 2502.

      . Id. § 3701.

      . Id. § 3502.

      . The Commonwealth’s Answer to appellant’s Petition, filed April 29, 1982, stated that "the robbery sentence must merge with the murder sentence.” The July, 1 order was therefore apparently in clarification of the court’s prior order adopting the Commonwealth’s Answer.

      . Furthermore, W. Wayne Pushon, deputy .district attorney of Dauphin County, informed the appellant of his right to file post-trial motions alleging any errors which may have taken place in the degree of guilt hearing. (N.T. at 18).


author: HESTER, Judge:

text:
    470 A.2d 1008
    In the Interest of Anthony DUCK, A Minor. Appeal of Anthony DUCK.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1983.
    Filed Jan. 20, 1984.

      Joseph T. Kownacki, Assistant Public Defender, Erie, for appellant.
    Dana S. Jones, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   HESTER, Judge:

This appeal centers on the legal proceedings wherein appellant, a juvenile, was adjudged delinquent and placed in Harbor Creek School for Boys. Appellant contends that the trial court erred in its disregard of the unanimous recommendation by relevant authorities that appellant be assigned to a facility known as George Junior Republic. Additionally, appellant argues that the failure of the trial judge to place the dispositional hearing on the record constituted error. Having reviewed the record and applicable law, we affirm.

One of the stated purposes of the Juvenile Act is to provide treatment for the youthful offender through a program of supervision, care, and rehabilitation. 42 Pa.C.S. § 6301(b)(2). In order to accomplish this goal, the legislature vested the juvenile court judge with the authority to fashion a program which best serves the juvenile’s individual needs. After a juvenile has been declared delinquent , the trial judge may review all pertinent evidence to determine if there exists a need for treatment, supervision or rehabilitation.

In disposition hearings under subsections (b) and (c) all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports. Sources of information given in confidence need not be disclosed.

42 Pa.C.S. § 6341(d). Following such a hearing, the judge enters an appropriate order which will serve both the minor and society by effectuating the purposes of the Juvenile Act.

Appellant contends that because his probation officer, the probation officer’s supervisor, the institutional review panel, and his counsel submitted a unanimous recommendation as to his placement, the trial judge was estopped from reaching a different conclusion. Appellant concedes that the determination as to what best serves his interests lies within the domain of the judge. However, since all concerned parties supported the recommendation that appellant be placed in George Junior Republic, he concludes that the above-named institution would have afforded him the best opportunities for treatment, supervision, and rehabilitation. Hence, for the trial court to arrive at any other result was error.

Appellant’s argument simply lacks any merit. As the above-cited statutory language illustrates, it is the responsibility of the juvenile court judge to render a determination, based upon any evidence which he or she may receive, as to the type of program best suited for the juvenile’s needs. Appellant’s attempt to abrogate the judge’s authority whenever presented with a unanimous recommendation is without precedent or support in the letter of the law. Indeed, appellant can cite no cases in which this Court has accepted such arguments before.

Moreover, a review of the lower court’s opinion demonstrates that judicial discretion was soundly employed in the case at bar. Therein, the trial judge explained that his decision to place appellant at Harbor Creek was motivated by its proximity to appellant’s family. Thus, the family would be afforded the opportunity to visit appellant regularly and participate in his treatment and rehabilitation. Since familial cooperation is often a crucial element in the success of these programs, and placement at Harbor Creek was conducive to their involvement, the trial judge favored that institution over George Junior Republic, which was located some distance away.

Finally, appellant failed to produce one argument as to why Harbor Creek would be detrimental to appellant, nor did he clarify why George Junior Republic was preferential. However, even if he had, such assertions would not persuade us that the juvenile court judge abused his discretion in reaching his decision.

Appellant next avers error by the trial judge in failing to record the dispositional aspect of this case. After a juvenile is adjudged delinquent, the Juvenile Act requires that a dispositional hearing be held before a child can be ordered to placement. 42 Pa.C.S. § 6341(b). Nowhere does the Act state that such hearings must be placed on the record. In fact, the Act provides that hearings shall be conducted “in an informal but orderly manner.” 42 Pa.C.S. § 6336(a); In re Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981). Clearly, this language does not compel the juvenile court system to follow the rigid formalities embodied in the rules of criminal or civil procedure.

Appellant properly notes that when an appellate court reviews the sufficiency of the evidence to support an adjudication of delinquency, it needs some type of record in order to accomplish its function. Even so, the Act still does not require a formal record; full minutes of the proceedings as kept by the court would suffice. 42 Pa.C.S. § 6336(c).

In this case, the hearing to determine appellant’s delinquency was fully recorded. Only the dispositional aspect of the hearing was held in chambers. Nonetheless, appellant could have requested that those proceedings be recorded by appropriate means. The Juvenile Act specifically vests him with that right. 42 Pa.C.S. § 6336(c). However, since the record reflects that appellant, through his counsel, waived that right, he will not be heard to complain now.

In light of our aforesaid discussion, we hereby affirm the order of the court below.

Order affirmed.

      . 42 Pa.C.S. § 6341(b) provides:
      (b) Finding of delinquency. — If the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent it shall enter such finding on the record and it shall then proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child is in detention, to hear evidence as to whether the child is in need of treatment, supervision or rehabilitation and to make and file its finding thereon____

      . Appellant went one step further and characterized the juvenile court judge’s order as "purely punitive in nature." We find appellant’s attitude and his denouncement of the judge’s decision to "flagrantly disregard” the recommendation as offensive and intemperate. His intimation that the trial judge purposely exceeded his sole function, which is "to seek the reformation of the youthful offender, not to punish him for his offense ...,” In re Garman, 250 Pa.Super. 54, 378 A.2d 449 (1977), is presumptuous, unwarranted, and insulting to a member of the judiciary who must make those complex and agonizing decisions which confront every judge in Juvenile Court.

      . The trial judge’s rationale serves the well-established goal of "preserving family unity," an avowed purpose of the Juvenile Act. In the Interest of Ryan Michael C., 294 Pa.Super. 417, 421, 440 A.2d 535, 537 (1982). Although this result is sought more often in cases of dependency, it certainly is also a viable objective when the court is confronted with problems of delinquency.


text:
    470 A.2d 1010
    COMMONWEALTH of Pennsylvania v. Carlos O. RUIZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1983.
    Filed Jan. 20, 1984.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   PER CURIAM:

In this appeal, appellant, Carlos O. Ruiz, asserts that the court erred when it revoked his parole and probation as to informations 1194 and 1363, 1980 for failure to pay outstanding fines and costs. As we agree with appellant, we vacate judgment of sentence as to those informations and remand for a new hearing consistent with this opinion.

Prior to December 2, 1982, sentences had been imposed upon appellant for negotiated pleas of guilty to burglary (No. 1194, 1980), and theft (No. 1363, 1980). On the burglary conviction, appellant was sentenced to pay restitution, costs of prosecution, and a $200 fine and to serve a term of imprisonment of time served to twelve months. On the theft conviction, the court sentenced appellant to pay the costs of prosecution and restitution, and imposed a twelve month period of probation to run concurrently with the sentence for burglary. Appellant was paroled on the burglary conviction on the same date the sentence was imposed, August 8, 1980.

Although appellant was not incarcerated for the burglary or theft convictions, testimony indicates that he was extradited to Massachusetts and incarcerated on or about August 8, 1980 until August 26, 1981. From August 26, 1981 until January 26, 1982, appellant remained free of incarceration. Appellant’s testimony indicated that during this period he was employed. On January 26th, appellant was again incarcerated.

On December 2, 1982, a hearing was held as to whether appellant’s probation and parole should be revoked. The court revoked appellant’s probation and parole on the burglary conviction and his probation on the theft conviction because appellant “has shown no inclination to pay his fines and costs.” The court resentenced appellant on these two convictions. This appeal followed.

On appeal, appellant asserts that there was clearly insufficient evidence to show that appellant was capable of paying the outstanding fines and costs. We agree.

Pa.R.Crim.P. 1407(a) clearly states that “[a] court shall not commit the defendant to prison for failure to pay a fine or costs unless it appears after hearing that the defendant is financially able to pay the fines or costs.” In the hearing held below, there was no express finding as to appellant’s ability to pay the fines and costs. All that the record reveals as to appellant’s ability to pay is that he was working for a five month period following his release from incarceration in Massachusetts, on August 26th, 1982. Thus, in revoking appellant’s parole and probation, the only information before the court as to appellant’s ability to pay was the fact that he had been employed for a period of five months.

In a similar case, where the court imposed a fine based on the knowledge that the defendant was employed and earned approximately $150 per week, a panel of this court concluded that this information was insufficient “to make an intelligent finding as to [the defendant’s] ability to pay the fine.” Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980); see also Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982). Clearly, in the instant case the fact that appellant had been employed cannot alone provide a sufficient picture of appellant’s finances so that an intelligent finding as to his ability to pay the fines and costs imposed can be made. Judgment of sentence as to the burglary (No. 1194, 1980) and theft (No. 1363, 1980) convictions is vacated and remanded for a new hearing. Jurisdiction is not retained.

      . Appellant raised a second issue on appeal concerning whether the sentences imposed at the revocation hearing on information 1194 and 1363, 1980 were excessive. Because of our disposition herein, we need not address this issue.

      . 18 Pa.C.S.A. § 3502.

      . Id. § 3921.

      . A third parole violation was adjudicated in this hearing. It pertained to the judgment of sentence imposed on a conviction for attempted theft (No. 504, 1982), 18 Pa.C.S.A. § 901(a). Appellant has not raised any issue as to the appropriateness of the revocation of his parole on this charge. And, although appellant raises the issue of whether the sentence imposed for all parole violations was excessive, he has not presented argument in his brief as to the excessiveness of the sentence imposed at the revocation hearing concerning this conviction. Thus, we have not addressed this conviction.

      . Emphasis added.


text:
    470 A.2d 1012
    COMMONWEALTH of Pennsylvania v. Hap SEIDERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed Feb. 3, 1984.
    Shaubut C. Walz, III, Public Defender, Newport, for appellant.
    R. Scott Cramer, Assistant District Attorney, New Bloomfield, for Commonwealth, appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   PER CURIAM:

This appeal is taken from the order of the Court of Common Pleas of Perry County entered on September 1, 1981, denying appellant’s application for expungement. Appellant filed a notice of appeal to this court on April 27, 1982. Pa.R.A.P. 903(a) provides that an appeal must be filed within thirty (30) days after entry of the order from which the appeal is taken. Appellant has failed to comply with Pa.R.A.P. 903(a). Therefore, we quash the instant appeal as untimely.

Appeal quashed.


text:
    470 A.2d 1012
    COMMONWEALTH of Pennsylvania v. Hap SEIDERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed Feb. 3, 1984.
    Shaubut C. Walz, III, Public Defender, Newport, for appellant.
    R. Scott Cramer, Assistant District Attorney, New Bloomfield, for Commonwealth, appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   PER CURIAM:

This appeal is taken from the order of the Court of Common Pleas of Perry County entered on August 12, 1982, denying appellant’s application for expungement. Appellant filed a notice of appeal to this court on September 28, 1982. Pa.R.A.P. 903(a) provides that an appeal must be filed within thirty (30) days after entry of the order from which the appeal is taken. Appellant has failed to comply with Pa.R.A.P. 903(a). Therefore, we quash the instant appeal as untimely.

Appeal quashed.