author: CIRILLO, Judge:

text:
    445 A.2d 1240
    Janice F. STOUGHTON, Appellant, v. George D. KINZEY, an individual, and C. Raymaley Hauling Contractors, a/k/a C. Ramaley Hauling Contractors and C. Raymaley, a/k/a C. Raymaley, t/d/b/a C. Raymaley Contractors, a/k/a C. Ramaley Hauling Contractors.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1982.
    Filed May 21, 1982.
    Petition for Allowance of Appeal Denied Sept. 27, 1982.

      Dante G. Bertani, Public Defender, Greensburg, for appellant.
    Rabe F. Marsh, III, Greensburg, for appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Westmoreland County Court of Common Pleas ordering appellant, Janice F. Stoughton to grant appellee Ramaley Hauling Contractors a remittitur in the amount of $17,000.00 from a jury verdict of $25,000.00, or suffer a new trial. Because the trial court abused its discretion in ordering the remittitur, the order will be reversed and the jury verdict of damages in the amount of $25,000.00 will be reinstated.

On the morning of December 15, 1972, appellant’s car crashed into the back of appellee’s garbage truck. She sustained severe injuries to her head, chest and stomach, elbows and left knee. She was scalped and the skin on the top of her head was peeled back. This left a permanent and visible scar running from left to right across the front of her head near the hairline. She also sustained permanent and visible scars on her right eye and forehead from cuts sustained in the accident. These scars were shown to the jury. In addition, she suffered cut elbows and bruises on her stomach and chest. She had a lump in her stomach the size of her fist which took six months to recede. Her left knee was fractured, and she was on crutches for six weeks after the cast was removed. She walked with a limp for a year and her knee still causes her pain when she cleans refrigerators in the meat packing plant where she presently works. Due to her head injuries, she was not permitted to wash her hair for a month, even though it was caked with blood. Because she was unable to climb the stairs to her bedroom, she had to spend two months on the couch in the living room of her parent’s home. She testified that this caused her great embarrassment. Due to her injuries, she was not able to participate in her favorite sports for a period of one year. She still suffers from headaches.

Appellant brought an action in trespass against appellee alleging that appellee was negligent in parking its truck on the highway without adequate lights, and that this is what caused her injuries. On October 16, 1978, a jury found appellee negligent and awarded appellant $25,000.00 in damages for medical expenses, pain and suffering, disfigurement and embarrassment. Appellee then filed a motion for a new trial alleging that the damages awarded were excessive. The lower court agreed with this contention and on May 7, 1980, ordered appellant to file a remittitur in the amount of $17,000.00 within twenty days or to suffer a new trial. Appellant did not file the remittitur and this appeal followed.

The sole issue raised by the appellant is whether the lower court abused its discretion by ordering appellant to file the remittitur.

The issue of the amount of damages that a person is to be awarded for pain and suffering, both past and future, is primarily a jury question. James v. Ferguson, 401 Pa. 92, 96-7, 162 A.2d 690, 692, 693 (1960). It is the duty of the trial court to enforce the jury’s verdict unless the circumstances cry out for judicial interference. Prather v. H-K Corp., 282 Pa.Super. 556, 423 A.2d 385, 389 (1980). A verdict, if supported by the evidence, must be permitted to stand where there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption. In such a case, an order of remittitur, which brings the verdict below the amount awarded by the jury is error and must be reversed. Id. A jury is justified in awarding substantial damages for pain and suffering where the injuries are permanent and cause pain. Bell v. Yellow Cab Co., 399 Pa. 332, 337-39, 160 A.2d 437, 439-40 (1960).

In determining whether a jury’s award of damages is supported by the evidence, the following factors are taken into account:

1. ) the severity of the injury;
2. ) whether the injury is demonstrated by objective physical evidence or subjective evidence;
3. ) whether the injury is permanent;
4. ) the plaintiff’s ability to continue employment;
5. ) disparity between the amount of out of pocket expenses and the amount of the verdict; and
6. ) damages plaintiff requested in his complaint.

Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379, 385-86, 361 A.2d 362, 364-66 (1976).

Applying the above standards to the facts of the instant case, we find that the jury’s verdict was supported by the evidence. Appellant’s injuries were severe. The severity of her injuries was manifested by broken bones, disfigurement in the form of scars and her loss of consciousness soon after the accident. See, Kemp, 361 A.2d at 365. There is no doubt that appellant’s injuries are permanent, as she will be scarred for life. See, Fretts v. Pavetti, 282 Pa.Super. 166, 176, 422 A.2d 881, 885 (1980).

Appellant’s ability to continue her employment is not relevant in this case because the jury was instructed not to consider her lost wages in arriving at a damage figure.

In regard to the disparity between the amount of out of pocket expenses and the amount of the verdict, this is only one factor to be considered and does not, in and of itself, justify granting a new trial on the ground that the verdict was excessive. Kemp, 361 A.2d at 356. Also important to note in the instant case is the fact that appellant’s doctor testified that he charged her much less than his services were worth.

The appellant asked for damages in her complaint in excess of $10,000.00, and this is precisely what the jury awarded her. The lower court incorrectly stated this standard to be what appellant was willing to settle for before the trial. Because appellee refused to settle before the trial for a lesser amount, he cannot now be heard to complain that the jury award was excessive. Appellee had the chance to show that appellant was not entitled to the damages she sought, and failed to do so.

Appellee contends that appellant’s testimony regarding her pain was not a proper basis for the award of damages because there was no objective documentation of it. In a personal injury action, however, it is totally within the jury’s province to disbelieve or believe all or part of the testimony of any witness and to arrive at a verdict of damages which it determines will compensate a plaintiff for his loss. Rogers v. Hammett, 229 Pa. Super. 6, 9, 323 A.2d 394, 395 (1974). The lower court fully instructed the jury as the legal rules regarding credibility. The jury chose to believe the testimony of the appellant and her witnesses. .

Where a plaintiff’s verdict is supported by the evidence, an order of the court modifying it is an abuse of discretion. James, 162 A.2d at 694. Because the verdict of damages in the instant case was more than adequately supported by the evidence, the order granting appellee a remittitur was an abuse of discretion. Thus, the order of the lower court is reversed and the jury verdict in the amount of $25,000.00 is reinstated.

      . Appellant tried to negotiate an out of court settlement with appellee, but these efforts were unsuccessful.

      . The jury was instructed not to award appellant any damages for lost wages because the trial court determined that not enough proof had been offered on this element of damages. Appellant’s medical expenses amounted to $572.55.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    445 A.2d 1243
    In re WESLEY J. K., a Minor Child. Appeal of ROSEMARIE K., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed May 21, 1982.

      Robert C. Saidis, Carlisle, for appellant.
    Kevin Hess, Carlisle, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   BECK, Judge:

This appeal arises from a Petition for Custody by appellant-mother. A custody order was issued on April 22, 1981 granting custody to appellee-father. Extensive visitation was granted to appellant.

It is well-settled in custody matters that this court’s scope of review is of the broadest dimensions. This court in Dena Lynn V. v. Harvey H. F., 278 Pa.Super. 95, 100, 419 A.2d 1374, 1377 (1980) stated:

Although we are still tied to the facts as found in the court below, as we are to the lower court’s determinations about credibility of witnesses and weight given their testimony, Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 177, 97 A.2d 350, 353 (1953), “. . . (w)e are not bound, on appeal by deductions or inferences made by the lower court; Commonwealth ex rel. Gifford v. Miller, 213 Pa.Super. 269, 248 A.2d 63 (1968), ...” Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 88, 369 A.2d 821, 823 (1977). It is also well settled that our sole function in making our review is to assure the “best interest of the child” is served. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). And finally, of particular relevancy in a case which is so steeped in emotion as this, we must inquire only into relevant facts as they affect the relationship between parent and child—not parent and parent or parent and stranger to that intimate relationship. See In re Leskovich, 253 Pa.Super. 349, 385 A.2d 373 (1978).

In the instant case, we are at odds with the inferences made by the trial judge in interpreting the testimony before him.

Rosemarie K. and Michael K. were married in October, 1975; they separated in May, 1980. They agreed at the time of separation that Rosemarie would retain custody of their two year old son, Wesley.

In December, 1980, Rosemarie voluntarily relinquished custody to Michael because she was suffering from exhaustion and was frustrated with her time pressures and her financial situation. She had taken a second job and was working the equivalent of a seven day week. Rosemarie testified:

I told him that I was very exhausted working the two jobs. I felt very guilty for Wes having to go to a fulltime sitter in the evening [sic] and a parttime sitter at night. I was not able to spend the amount of time with him that I had wanted to because of the second job, and I thought it was best for Wesley at the time if Mike could take him temporarily until I could sell the house and find an apartment where I didn’t have to work two jobs.

(N.T. 11.) Michael similarly testified on cross-examination that Rosemarie relinquished the child because she was exhausted. (N.T. 37.) We draw no negative inference from Rosemarie’s action in temporarily turning over the child to Michael. Rather, we construe same as the action of a concerned and loving mother interested in promoting the best interest of her child at that juncture.

There was testimony that Michael and his girlfriend were hesitant to take Wesley when Rosemarie asked them to do so. We draw no negative inference from that testimony, either. There was rebuttal testimony that Michael’s girlfriend did not wish her daughter to become attached to Wesley and then to see him forever removed from their home. (N.T. 18.) We construe this as the act of a concerned parent, both for her own child and for that of her boyfriend. In any case, Michael and Nancy did take Wesley into their home in December.

It is also indicated in the record that Rosemarie earns approximately $13,000 per year, while Michael earns approximately $13,500. (N.T. 5, 22.) Since Nancy earns $17,000, their combined income is significantly greater than Rosemarie’s income. (N.T. 22.) There is no evidence here, however, that Rosemarie is unable to provide adequately for Wesley, and that is the sole permissible inquiry involving relative wealth in a custody determination. Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977).

The hearing judge stated that he was leaving Wesley with his father because the mother had minimal time to spend with the child. That finding is not supported in the record. At the time of the hearing the mother had resigned from her second job. Her current job in the Commonwealth's employ occupies her from 7:30 a. m. to 4:00 p. m.; it appears that the hearing judge predicated the above conclusion upon her situation prior to resigning from her part-time job. (N.T. 10.) In fact, he noted that there appeared to be no difference between her situation at the time of the April hearing and in December when she relinquished Wesley to his father. We find that to be an inaccurate inference. In December, Rosemarie was suffering from exhaustion and depression. She was having trouble paying her bills. The record indicates that she was functioning much better in April and that she was working a “normal” work week. At the time of the hearing, she had sold her house and was living in a two bedroom apartment; her financial picture was much brighter than in December. (N.T. 13-14.)

It must also be noted that Rosemarie apparently feels strongly that Wesley has the benefit of his father’s companionship. In discussing other temporary custody arrangements that she considered before contacting his father in December, she said she declined sending Wesley to her parents in Florida because he would be too far from her as well as too far from her former husband. (N.T. 66-67.)

The record in this case was singularly devoid of the rancor usually apparent in a custody hearing. The most serious allegation aimed at either party was that of the father that Rosemarie was incapable of disciplining Wesley, and that allegation was explicitly rejected by the hearing judge. (N.T. 70.)

The record was conspiciously devoid of any allegation that either party did not love or care for Wesley and so the trial court found that “[bjoth parents care for this child and both have cared for him and with that in mind, hopefully, he will be less damaged by the fracture of the situation than otherwise.” (N.T. 71.) Unfortunately, the order ignored the sentiment above expressed and awarded sole custody to the father. Perhaps there is a better solution, and this court remands for the lower court to consider a shared custody arrangement.

In the instant case the hearing judge was faced with that most difficult of custody determinations—the choice between two very competent and loving adults. Selection of either to the exclusion of the other presents serious problems. There is much available literature outlining problems associated with sole custody orders. One of the threads running through the literature is the harm resulting from severing meaningful contact with the non-custodial parent:

Generally, children develop an attachment to both parents, even though one parent may play an inactive role in the child’s development. These attachments are different from others because children depend on them for their security or well-being. If either of these attachments is severed, children suffer greatly. Not only do they hurt from the present loss, their future relationships may be jeopardized. For example, once these attachments are broken, children may become reluctant to place their trust in someone else as completely. They will form new attachments, but in all probability these ties will not be as strong as they would have been if the early attachment bond had not been severed.
... The children often feel abandoned and rejected. It shakes their basic sense of security to see someone they have loved and trusted gone from their lives.
When placed in sole custody, children often see the absent or “visiting” parent as a second-class person; if the children have identified with this parent, they may feel inferior also.

Bratt, Joint Custody, 67 Ky.L.J. 271, 296-297 (1978-79) (footnotes deleted) (emphasis in original).

An alternative to the traditional sole custody arrangement is “shared” or “joint” custody wherein legal custody is shared while physical custody is alternated by the agreement of the parties. The philosophic premise of shared custody is the awarding to both parents of responsibility for decisions and care of the child. In the past non-custodial, conscientious parents have been frustrated by the second-class status to which the law has assigned them. It was difficult to develop healthy relationships to a child where their role may have been limited to a weekend parent whose counsel was not sought in decisions affecting the child. Shared custody allows both parents input into major decisions in the child’s life.

Such an arrangement “foster[s] more ‘natural’ relations within the divorced family; in other words, it more nearly approximates the intact nuclear family. To be trite, parents do not divorce their children. Children have the same parents despite a divorce.” Miller, Joint Custody, 13 Fam. L.Q. at 362.

In addition, under a shared custody arrangement, the child is less likely to be used by the custodial parent as a weapon against the non-custodial parent:

In sole custody, the custodial parent can frustrate the visiting rights of the non-custodial parent, and short of going back into court, the visitor has no way of enforcing his or her rights. The sole custodial parent also has more opportunity to present a negative or distorted picture of the absent parent. In joint custody, neither parent has a superior legal advantage and is therefore less likely to take unfair advantage of the other. Because both parties have legally established rights to care for their child and to make decisions about their child’s welfare, neither parent can obtain concessions by threatening to prevent the other from seeing the child; nor can one make a major decision without consulting the other.

Bratt, Joint Custody, 67 Ky.LJ. at 306.

It should be noted that in a recent New Jersey case, Beck v. Beck, 86 N.J. 480, 432 A.2d 63 (1981), although neither party requested shared custody, the trial court decided that arrangement was in the best interest of the children. In deciding that courts have the authority to decree such an arrangement, the Beck court cited the New Jersey statute authorizing courts to make custody determinations: “[T]he court may make such order ... as to the care, custody, education and maintenance of the children, or any of them, as the circumstances shall render fit, reasonable and just. . .. ” Id. at 485, 432 A.2d at 65. The Beck court concluded that “[tjhis provision evinces a legislative intent to grant courts wide latitude to fashion creative remedies in matrimonial custody cases.” Id. In deciding that a trial court may make a sua sponte custody determination, the Beck court stated: “The paramount consideration in child custody cases is to foster the best interests of the child . . . It would be incongruous and counterproductive to restrict application of this standard to the relief requested by the parties to a custody dispute.” Id. at 497, 432 A.2d at 71.

In deciding whether courts of this Commonwealth have authority to decree shared custody arrangements, attention to a recent legislative enactment is helpful:

The General Assembly declares that it is the public policy of this Commonwealth, when in the best interest of the child or children, to assure a reasonable and continuing contact of such child or children with both parents after a separation or dissolution of marriage, and the sharing of the rights and responsibilities of child rearing by both parents.

Section 2 of the Custody and Grandparents Visitation Act (“Act”), Act of November 5, 1981, Act 1981-116, 23 P.S. § 1002.

Section 3 of the Act, 23 P.S. § 1003, defines “legal custody,” “physical custody” and “shared custody” as follows:

“Legal custody.” The legal right to make major decisions affecting the best interests of a minor child, including but not limited to, medical, religious and educational decisions.
“Physical custody.” The actual physical possession and control of a child.
“Shared custody.” An order awarding shared legal or shared physical custody or both of a child in such a way as to assure the child or children of frequent and continuing contact, including physical access, to both parents.

In Section 5 of the Act, 23 P.S. § 1005, our courts are granted broad discretion in determining when to order “shared custody,” and it is clear that the courts may award such custody sua sponte as long as that award comports with “the best interests of the child.”

Although shared custody in appropriate t^rcumstances is desired, under the new legislation there is no presumption favoring shared custody. Such a presumption would demand shared custody unless one party could rebut the presumption. The presumption-free law permits the lower court to engage in a full, fair and comprehensive examination of the best interests of the child. It does not place an unreasonable burden on a long-time custodial parent to defend the status quo.

We would not suggest that such an arrangement is in the “best interests of the child” in every case, and we therefore suggest the following guidelines as discussed in the Beck decision in determining when the imposition of shared custody is appropriate. Clearly, both parents must be “fit.” “Both parents must be sane and capable of making rational child-rearing decisions. Both must be willing and able to provide love and care for their children.” Miller, Joint Custody, 13 Fam.L.Q. at 369. The trial judge explicitly found that both parents provided love and care for Wesley, and there were no allegations that either party was incapable of making rational decisions about Wesley’s welfare. Similarly, there was no hint of abuse or neglect on the part of either party.

Another important consideration to the awarding of shared custody is a desire on the part of both parents for a continuing active involvement in their child’s life. This is not to suggest that both parents need to seek a “shared custody” arrangement; seeking to take care of the minor child on a “sole custody” basis is sufficient. We do prefer a “voluntary” shared custody agreement to an arrangement imposed by the court. Still, we conclude that where the record indicates an ability on the part of both parents to place the interests of the child before their own, a court may order shared custody.

It is also necessary that the child has formed a relationship with both parties. “[F]rom the child’s point of view it is necessary only that the child recognize both parents as sources of security and love and wish to continue both relationships.” Beck, 86 N.J. at 497-498, 432 A.2d at 71. It was uncontroverted that Wesley loves both of his parents and is happy and well-adjusted in both homes.

A minimal degree of cooperation between the natural parents is another important consideration to awarding shared custody:

This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor.

Id. at 498, 432 A.2d at 71-72.

The absence in the record of animosity of one parent toward the other strengthens the case for shared custody. Michael and Rosemarie have been able during their marriage and after its dissolution to communicate as to the well-being of their son. When they separated, Michael and Rosemarie communicated thoroughly in deciding that Wesley should remain with his mother and that his father should have liberal access to him. (N.T. 24-25.) Also, when Rosemarie was overwhelmed by the demands of her two jobs and concerned that she was not adequately taking care of Wesley, she was able to talk with Michael, who agreed to share in the responsibility for. his son. (N.T. 11.)

Similarly, their cooperation in protecting Wesley’s best interests was amply supported in the record. They cooperated in establishing and complying with a workable schedule of visitation when Wesley was staying with his mother and later with his father. (N.T. 15, 32.) When they were married, Michael and Rosemarie shared household responsibilities, including all care of Wesley. (N.T. 36, 40.)

The satisfaction of the above requirements that 1) both parents are “fit,” 2) both desire continuing involvement with their child, 3) both parents are seen by the child as sources of security and love, and 4) both parents are able to communicate and cooperate in promoting the child’s best interests makes Wesley’s situation a particularly strong one for the decreeing of a shared custody arrangement.

Trial courts may fear that shared custody will impose additional burdens on them because they will be drawn into conflicts between parents when they disagree on decisions affecting the child. While theoretically this may be, we trust this will happen only rarely. Giving both parents legal and physical responsibility for the child should attenuate the animosity and the “have not” feeling that so often existed in the non-custodial parent which caused the non-custodial parent to petition regularly for custody. If shared custody proves unworkable because parents cannot agree and seek frequent court intervention, then the trial court may have to consider withdrawing the shared custody status.

We remand to the hearing judge with instruction to ascertain through such additional testimony as he deems necessary, whether the above factors supporting a shared custody arrangement are indeed present here. Jurisdiction is transferred to the lower court.

WATKINS, J., dissents and would affirm on the opinion of the court below.

      . The visitation arrangement agreed upon by the parties prior to the hearing was that Rosemarie had Wesley each Sunday from 12:00 p. m. until 6:30 p. m., each Tuesday from 4:45 p. m. until 8:00 p. m., and every other Friday at 5:00 p. m. until Saturday at noon. The hearing judge did not change that voluntary arrangement when he imposed his visitation order.

      . Rosemarie testified that through the end of August she received approximately $55.00 weekly for expenses in addition to $25.00 weekly for the babysitter. At the end of August, Michael notified Rosemarie that he had arranged to move in with his paramour and that the amount of support he would contribute weekly was $35.00. (N.T. 6-8.) Michael testified that the amount was $70 or $75 biweekly. (N.T. 35.)

      . See In re Arnold, 286 Pa.Super. 171, 174, 428 A.2d 627, 628 (1981):
      It is axiomatic that the polestar of any custody proceeding is the best interests of the child, a term which encompasses her spiritual, physical, emotional and intellectual well being. In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978); Shoup v. Shoup, 257 Pa.Super. 263, 390 A.2d 814 (1978); Commonwealth ex rel. Scott v. Martin, 252 Pa.Super. 178, 381 A.2d 173 (1977); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977).

      . It should be noted that the hearing judge correctly ruled that the mere fact that Michael was involved in a non-marital relationship is insufficient to deny him custody of his son. It is the effect of that relationship on the child which is crucial to the custody decision. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981); In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976).

      . Section 5 of the Custody and Grandparents Visitation Act (“Act”), Act of November 5, 1981, Act 1981-115, 23 P.S. § 1001 et seq. endorses such a shared custody award “when in the best interest of the child....”

      . The primary problem with a sole custody order is that contact with the non-custodial parent is drastically limited. See Folberg and Graham, Joint Custody of Children Following Divorce, 12 U.Calif.D. L.Rev. 523, 535 (1979) (footnotes deleted) (emphasis in original):

        [Rjesearchers are finding that the key variable affecting satisfactory adjustment of children following divorce is the extent of continuing involvement by both parents in child rearing. Similarly, divorces having the least detrimental effect on the normal development of children are those in which the parents are able to cooperate in their continuing parental roles.

      . The terms “shared custody” and “joint custody” are synonymous. We will refer to “shared custody” throughout our discussion. Some of the authorities we cite, however, refer to the same concept as “joint custody.” In order to obviate any confusion, we explicitly state that the above terms are interchangeable.

      . Shared custody need not encompass shared “physical” custody; it may constitute merely shared “legal” custody. Shared “legal” custody entails joint input in all major decisions affecting the child, i.e., educational, medical, and religious matters. Shared “physical” custody entails the child splitting his or her time between the two homes. See Miller, Joint Custody, 13 Fam.L.Q. 343, 360 (1979):
      There are two basic versions of joint custody: joint “legal” custody and joint “physical” custody. The former consists exclusively of the shared decision making function. The latter has the additional component of shared residence. That is, under joint physical custody the children live with each parent on an equal or split-time basis. Thus, in a sense, minor as well as major decisions are made by both parents where there is joint physical custody. Examples of these minor matters are what and when to eat, when to do chores, and when to go to bed. In joint legal custody, only one parent has physical custody, and that parent makes these day-to-day decisions.

      . As in all custody decisions, the preference of the child should be considered. It is, however, only one factor in the “best interest of the child” calculus. Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977). Maturity and intelligence, of course, should be considered. Commonwealth ex rel. Husack v. Husack, 273 Pa.Super. 192, 417 A.2d 233 (1979). The fact that the child indicates a love for both parents should be considered when deciding the efficacy of a shared custody order.

      . We note here that geographical proximity certainly facilitates the success of a shared “physical” custody arrangement, but it is largely gratuitous to the success of shared “legal” custody. Major decisions can be resolved by telephone. See Miller, Joint Custody, 13 Fam. L.Q. at 373.


author: JOHNSON, Judge:

text:
    445 A.2d 1250
    COMMONWEALTH of Pennsylvania v. Charles TATE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1981.
    Filed May 21, 1982.

      Eric L. Lilian, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

After a nonjury trial, Appellant was convicted of Burglary and Criminal Trespass. Post-verdict motions were denied, and Appellant was sentenced to a five-year period of probation and was ordered to pay both costs and ten dollars ($10.00) to the Victims Fund. This is an appeal from the judgment of sentence.

For the following reasons, we vacate the judgment of sentence and remand.

Appellant was found inside an unoccupied row house that was owned by the Philadelphia Housing Development Corporation. The plywood over a basement window had been removed, and the window had been forced open. Plumbing fixtures and pieces of copper tubing were piled near the front door. The police found Appellant bending a piece of copper tubing in the kitchen, and they proceeded to arrest Appellant.

Appellant raises two issues. First, did the Commonwealth sustain its burden of proof (a) concerning ownership of the house, and (b) that Appellant lacked permission to enter the house? Second, was trial counsel ineffective for failing to file a timely post-verdict motion that would have preserved the issue of whether or not the Commonwealth proved due diligence at the Rule 1100(c) hearing held February 26, 1980?

In considering Appellant's first issue, we begin with the following principle:

To evaluate the sufficiency of evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Coccioletti, [393] Pa. [103], 425 A.2d 387 (1981).

Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981).

To establish that Appellant did not own the house in which he was found, the Chief Security Officer for the Philadelphia Housing Development Corporation (PHDC) testified that PHDC owned the house in question and that Appellant did not have permission to enter it. In Commonwealth v. Spann, 228 Pa.Super.Ct. 192, 194, 323 A.2d 140, 141 (1974), we held that the testimony of a security guard for the Philadelphia Redevelopment Authority constituted sufficient evidence that the defendant did not own the building in question. In the instant case, the Commonwealth, therefore, provided sufficient proof that Appellant lacked permission to enter the premises. Thus, Appellant’s first issue lacks merit.

We proceed to consider Appellant’s second issue, regarding ineffective assistance of counsel.

In considering a claim of ineffective assistance of counsel, we must first decide whether or not the issue that counsel failed to raise or to preserve had some arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 277, 372 A.2d 687, 695-696 (1977). If we decide that the issue had some arguable merit, we must proceed to consider whether or not the course adopted by counsel had some reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). If counsel’s decision had any reasonable basis, “the balance tips in favor of effective assistance. . .. ” Id., 427 Pa. at 604-605, 235 A.2d at 353.

The complaint in the instant case was filed on June 17, 1979; and the run date was December 14, 1979. When the case was called for trial on September 17, 1979, Appellant requested a continuance for further preparation. The court granted a continuance to Appellant until November 28,1979.

Although Appellant’s trial was scheduled to commence on November 28,1979, the Commonwealth requested a continuance because the arresting officer was ill and could not testify.

On November 30,1979, the Commonwealth filed a petition to extend under Rule 1100(c). The court did not schedule a hearing on the Commonwealth’s petition until February 8, 1980. The hearing on the aforesaid date was continued until February 15,1980, to enable the police officer to testify concerning his illness on the scheduled trial date of November 28, 1979. The police officer failed to appear on February 15,1980, so the hearing was continued until February 26, 1980.

At the Rule 1100(c) hearing on the aforesaid date, the police officer testified concerning his illness on November 28, 1979. Counsel for Appellant argued that the Commonwealth must also present testimony concerning its efforts to relist the case between November 30, 1979, the date on which the officer returned to work, and January 25, 1980, the new run date. Although the court noted Appellant’s objection for the record, the court found that the Commonwealth had proved that it exercised due diligence in bringing Appellant’s case to trial.

The record of February 26, 1980, reflects the objection of Appellant’s counsel to the finding of due diligence because the Commonwealth failed to present evidence that trial had been scheduled for the earliest possible date. Despite his objections at the Rule 1100(c) hearing, Appellant’s counsel failed to include this issue in his post-trial motions. Although Appellant’s counsel raised the 1100(c) issue in a supplemental post-trial motion, the judge refused to consider this issue because the motion had not been timely filed and Appellant’s counsel failed to obtain the notes of testimony to support the supplemental post-trial motion.

Since the failure to raise an issue in post-trial motions results in a failure to preserve the issue for appeal, Appellant claims that his counsel was ineffective for failing to present a timely motion on the Rule 1100(c) issue.

In light of Hubbard, we must first decide whether or not the Rule 1100(c) issue, that Appellant’s counsel failed to preserve, had some arguable merit. After consideration of both the record in the instant case and recent decisions by this court, we conclude that the issue had arguable merit.

In Commonwealth v. Levitt, 287 Pa.Super.Ct. 115, 429 A.2d 1126 (1981), President Judge CERCONE held:

Although judicial delay may justify an extension, the prosecution must yet provide a record showing of due diligence and certification that the trial is scheduled for the earliest date consistent with the court’s business. This was not accomplished in the case at bar. Moreover, where, as here, the delay is due to the court’s inability to try defendant within the prescribed period, the record must also show the causes of the court delay and the reason why the delay could not be avoided. Commonwealth v. Hoffman, 255 Pa.Super. 66, 386 A.2d 138 (1978). See also Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Mines, [282] Pa.Super. [157], 422 A.2d 876 (1980); Commonwealth v. Berry, 271 Pa.Super. 466, 414 A.2d 130 (1979); Commonwealth v. Weber, 256 Pa.Super. 483, 390 A.2d 206 (1978). [Emphasis added.]

Id., 287 Pa.Superior Ct. at 119-120, 429 A.2d at 1128-1129. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), held that the record must establish not only that the Commonwealth has exercised due diligence but that “trial is scheduled for the earliest date consistent with the court’s business.... ” Id., 469 Pa. at 222, 364 A.2d at 1349.

In the instant case, Appellant’s trial was not commenced until February 26, 19804 *—the day on which the Commonwealth’s Rule 1100(c) petition was granted. Since the police officer returned to work on November 30, 1979, the Commonwealth was required to present evidence that Appellant’s trial could not have been scheduled to commence before January 25, 1980, the new run date. The Commonwealth failed to present this evidence. Thus, in light of the foregoing cases, the issue that Appellant’s counsel failed to preserve had arguable merit.

Washington v. Maroney mandates that we must proceed to determine whether or not Appellant’s counsel had some reasonable basis for his failure to present the aforesaid issue in timely post-trial motions. In the instant case, we are unable to determine from the record whether or not Appellant’s counsel was ineffective. Thus, we remand for an evidentiary hearing to determine whether or not counsel was ineffective. If the lower court finds that counsel was ineffective, the appropriate remedy is to allow Appellant to file post-trial motions nunc pro tunc to determine whether or not the Commonwealth proved due diligence in scheduling Appellant’s trial for the earliest possible date.

For the foregoing reasons, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.

Jurisdiction is not to be retained by this court.

      . 18 Pa.C.S.A. § 3502.

      . Id, § 3503.

      . Pa.R.Crim.P., Rule 1100(c), 42 Pa.C.S.A. (Pamph.1981) states:
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . We note that our court has, on several occasions, expressed disapproval of the practice of delaying a hearing on an 1100(c) petition until the run date has expired. See Commonwealth v. Metzger, 249 Pa.Super.Ct. 107, 110 n.2, 375 A.2d 781, 783 n.2 (1977) and cases cited therein. We note our strong disapproval of the two-month delay in the instant case.

      . Although the original run date was December 14, 1979, the addition of 42 excludable days—due to Appellant’s request for a continuance—extended the original run date to January 25, 1980.

      . On February 8, 1980, the court granted a continuance until February 26, 1980, because the Rule 1100(c) petition was still outstanding.


author: MONTEMURO, Judge:

text:
    445 A.2d 1253
    Anthony J. PICONE and Jessie Picone, his wife, Appellees, v. Terrence L. MOWAT and Virginia L. Mowat, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1981.
    Filed May 21, 1982.
    Petition for Allowance of Appeal Denied Aug. 3, 1982.
    Walter Faderewski, McKeesport, for appellants.
    James Kletter, Pittsburgh, for appellees.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

This action concerns the conflicting claims to real property made by a lessee with an option to purchase and the holder of a judgment against the property entered prior to signing of the lease. We find, as the lower court did, that the Sheriff’s sale held on the judgment extinguished the lessee’s rights to possession and the option to purchase. The facts are as follows:

On October 11, 1976, lessors Arthur and Carmella Picone made an agreement as to the property located at 3005 Valley Ridge Road, Allegheny County, Pa. with lessees Terrance L. and Virginia L. Mowat, defendants and counter-plaintiffs below and appellants herein.

The terms of the agreement provided for rental of $350 per month, for five additional yearly leases at the same rent, and for a ninety-day notice of intent to exercise the lease each year. Additionally, at any time during the terms of the lease, the lessees could purchase the property for $55,-000, and were to receive a credit of $2,100 per year (or $175 per month) toward the purchase price of $55,000.

Prior to the time of the signing of the lease, a judgment had been entered against the property and had been recorded in the prothonotary’s office on August 28, 1975 in favor of the Northside Deposit Bank.

On November 12,1976, approximately one month after the Agreement for lease and purchase had been signed, the above lien was assigned to Anthony J. and Jessie Picone, the plaintiff-counterdefendants below and appellees herein. Appellees are brother and sister-in-law respectively of the lessors.

The appellees moved on the lien in July of 1980. The appellants were given notice of the Sheriff’s Sale, which was held on July 7, 1980. A Sheriff’s Deed was issued to the appellees on August 8, 1980. By letter of September 25, 1980, the appellees requested that the appellants vacate the property, but this the appellants refused to do.

Appellees then filed this action to quiet title, and the appellants filed answer, new matter and counterclaim, alleging that the lessors and the appellees conspired to deprive them of their bargain, and that the lessors were agents of the appellees. Appellants also requested specific performance of the purchase option of the lease. Appellees responded with preliminary objections, and the new matter and counterclaim were stricken. From that decision, appellant brought this appeal. We affirm the judgment of the court below.

The lower court correctly applied the provisions of 68 Pa.C.S.A. § 342, as transferred from 12 P.S. § 2585, suspended and repealed in part.

§ 342. When right paramount to right of purchaser The right of possession of a tenant for years shall not be deemed paramount to that of a purchaser at a tax sale. The right of possession of a tenant for years shall be deemed paramount to that of a purchaser at a judicial sale if, and only if, the letting to him shall precede in point of date the entry of the judgment, order or decree on which such sale was had, and also shall precede the recording or registering of the mortgage, deed or will, if any, through which by legal proceedings the purchaser derives title, unless the letting is made with actual notice to such tenant of the contemplated entry of such judgment, order or decree, or of the fact of the execution of such mortgage, deed or other instrument of writing, and with intent to avoid the effect thereof. 1905, April 20, P.L. 239, § 14; 1945, March 21, P.L. 47, No. 25, § 1.

Appellants allege that the lessors and the appellees conspired to deprive them of their bargain on the real property. We agree that they have lost a bargain, however the loss was occasioned through operation of law and in a situation which they could have foreseen and prevented.

Appellants’ own new matter asserts that liens far above the total value of the property were attached to it prior to the date of their lease. There was never any guarantee that such liens would be retained by the bank which then held them. It is entirely probable, as appellant also asserts, that the appellees had an intention to help financially-pressed relatives when they became assignees of these debts. The happenstance of the relationship is not relevant to their position as purchasers.

Appellant argues strongly from the case of Raker v. G. C. Murphy Co., 358 Pa. 339, 58 A.2d 18 (1948), in which the purchasers at the judicial sale were the lessors of the property. The court in Raker quite properly found that the identity of the lessor with the assignee of the mortgage foreclosed upon rendered that transaction suspect:

Having paid off the mortgage to the bank, there could have been no other reason for their failure to have it canceled and satisfied of record instead of taking it over by way of assignment and then foreclosing it against themselves ...

Appellees in this appeal are not, however, identical with their relatives, the lessors. They made purchase of an existing lien for reasons of their own a month after the lease had been signed. The bank, for value, assigned the judgment lien to them in the normal course of business. Several years passed before appellees foreclosed. The real property was always the security for the lien of judgment.

If appellees did receive rent, that circumstance also presents no problem for the court. The holding in Girard Trust Co. v. Dempsey, 129 Pa.Super. 471, 196 A. 593 (1938) must apply:

The rent was received by the mortgagee not as owner or landlord, but as assignee of the mortgagor, by way of security for the mortgage debt, and its payment had no effect whatever upon the paramount lien of the mortgage or the legal effect which a ... sheriff’s sale upon it would have in the way of terminating all leases made subsequent to its recording.

The lower court was correct. The right of possession of these tenants is not paramount to that of the purchaser of a lien entered prior to the lease. The Sheriff’s Sale terminated all leases made subsequent to the recording of the lien, and the appellants’ lease is therefore extinguished.

The order of the lower court is affirmed.

WIEAND, J., concurs in the result.

      . The suspension excepts “the effect, enforcement or stay of judgments or decrees.” This decision concerns the effect and enforcement of a judgment, and is thus not suspended. The disposition of the statute on repeal is at 42 Pa.C.S.A. § 1722(b), which states that a statute is repealed only if expressly repealed absolutely or if inconsistent with the general rules of Sub-chapter B. We conclude, therefore, that the substance of § 342, supra, remains a valid guide for decision.


author: POPOVICH, Judge:

text:
    445 A.2d 1255
    COMMONWEALTH of Pennsylvania, v. Joseph EVANS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1981.
    Filed May 21, 1982.

      Robert S. Robbins, Philadelphia, for appellant.
    Gary Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

Appellant, Joseph Evans, was initially convicted of the summary offense of harassment (18 Pa.C.S.A. § 2709) in the Municipal Court of Philadelphia County. The sentence entered consisted of a $50.00 fine. Thereafter, appellant sought relief via the Post-Conviction Hearing Act (19 P.S. § 1180-1 et seq.) and was granted a trial de novo in the Court of Common Pleas before the Hon. Charles L. Durham. In the bench trial, appellant was again found guilty of harassment and, after the denial of post-trial motions, sentenced to serve thirty to ninety days imprisonment starting December 19, 1980. This appeal followed. Appellant now complains that: 1) the evidence was insufficient to warrant his conviction; 2) the trial court erred in admitting evidence of prior acts attributed to the accused in regard to the complainant’s cause of action; and 3) the sentence imposed was not proper under the circumstances. We affirm in part, vacate in part and remand for proceedings consistent with this opinion.

According to the evidence presented at trial, the following facts were adduced: In April of 1974, the complainant, Barbara Cohan-Duffy, was employed at Horizan House in Philadelphia, Pa. As part of complainant’s duties, she ran a social services program that was open to all persons. Appellant attended some of the programs and, in the course thereof, met the complainant.

As to the incident in question, the complainant testified that it occurred very late in the evening of August 5, 1975. The scenario began with the doorbell to Ms. Duffy’s apartment being rung. The complainant answered by using the intercom and a person identifying himself as the appellant “began to say some pretty horrible things to [her].” (N.T. 7/11/80, at 15) Although the witness could not recall the exact words used, she did remember that the person stated “[she] had a sexual relationship with one of the client’s at Horizan House, and was very abusive over the intercom.” Id. at 16. The police were immediately called and arrested the appellant at the scene.

The victim also testified how, during April of 1974, she received numerous notes and letters affixed with the appellant’s signature. For example: a. note written on a telephone memorandum slip, dated 4/6/74 and signed “Joe Evans,” was left in her mailbox at Horizan House. The note read in part, “you are full of shit. Don’t think I’m not aware of your jive.... Don’t be surprised at what I say to you from now on.” Id. at 22 and 23. The same modus operandi was used with regard to a note dated 5/25/74; it contained the following relevant language, “You are a bitch. You are arrogant, rude and a one-sided busybody... . You ain’t shit, Barb. You want to be a man so bad. Take care you good for nothing whore.” Id. at 23 and 24. Furthermore, Ms. Duffy recalled how the appellant would watch her apartment at all hours of the day and night from the parking lot located across the street from her residence. Id. at 26-27. Specifically, on June 9,1975, around 5:30 PM, Ms. Duffy was walking home with a co-worker when appellant started following the two and began yelling, “Fuck you Cohan, I’m going to strangle you when I get ahold [sic] of you .. .. ” Id. at 35. Such surveillance occurred on another occasion when the complainant was in the company of her boyfriend, and only when appellant was threatened by the boyfriend did he cease.

Ms. Duffy went on to testify how the appellant repeatedly attempted to contact her (on June 23, 24 and 26 of 1975) by ringing her doorbell. In fact, during the daylight hours of June 27th, a rock was thrown through Ms. Duffy’s living room window, and, when she looked out to see who had thrown the object, she observed “Mr. Evans smiling up at [her].” Id. at 39. After this, Ms. Duffy intensified the security around her apartment, never left the house alone, and, in fact, ultimately moved out of the building. The other witness testifying on behalf of the Commonwealth corroborated Ms. Duffy’s version of this protracted course of activity by the appellant.

When appellant took the stand, he admitted knowing the victim and characterized her accounting as “just all empty allegations.” (N.T. 7/25/80, at 99) Although appellant did not deny calling Ms. Duffy on the intercom, he stated that it occurred but once, and then it was only “to let her know that [he] understood the reason why she levied these charges of harassment against [him], that they were not legitimate charges, they were just to cover up the fact that [she] was having [an] affair with [a] client at Horizan House.” Id. at 101.

Having set forth the facts, this Court is now required to view the evidence in the light most favorable to the Commonwealth. Moreover, we must accept as true all evidence, together with all reasonable inferences therefrom, upon which the lower court could properly have based its verdict. Also, a mere conflict of testimony does not render the verdict insufficient. See Commonwealth v. Dolan, 287 Pa.Super. 202, 429 A.2d 1171 (1981); Commonwealth v. Bender, 248 Pa.Super. 504, 375 A.2d 354 (1977).

The statute violated provides in relevant part:

“A person commits a summary offense when, with intent to harass, annoy or alarm another person:
* * • * * * *
(2) he follows a person in or about a public place or places; or
(3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” 18 Pa.C.S.A. § 2709.

Initially, we observe that Section 2709(3) specifically proscribes “a course of conduct or repeated [ ] ... acts” which are offensive to the complaining party, i.e., there must be evidence of a repetition of the offensive conduct. Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803 (1976) (appellant’s repeated entreaties of the complainant to allow him to perform cunnilingus established a “course of conduct,” and his pleas and actions seriously annoyed a person of average sensibilities). In interpreting the aforegoing, this Court, in Commonwealth v. Schnabel, 236 Pa.Super. 280, 344 A.2d 896 (1975), held that the Commonwealth failed to establish that appellant-lessor engaged in a “course of conduct” of harassment by the single act of cutting the complainant-lessee’s water hose. In so doing, it is important to note that the Schnabel Court embraced the definition that “ ‘ “course of conduct” is more than an isolated verbal or physical act. It is a pattern of conduct composed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose in the mind of the actor.’ ” (Citation omitted) Id., 236 Pa.Super. at 283, 344 A.2d at 898. Such definition undermines the appellant’s contention that the reviewing court is precluded from examining the testimony elicited regarding matters that occurred prior to August 5, 1975, the date of the complained of conduct.

It cannot be discounted that the appellant did not deny the late-night conversation with the complainant. Rather, he merely refutes that his actions were done with an intent to harass. Thus, the introduction of evidence of the prior acts was relevant and admissible, inasmuch as it “tended to prove that the alleged offense [ ] .... constituted part of an overall scheme of harassment of the prosecutrix.” Commonwealth v. Schowalter, 231 Pa.Super. 278, 283, 332 A.2d 456, 458 (1974); see also Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955); Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955). Moreover, the evidence of the prior acts was germane to establish an element of the offense, i.e., criminal intent. Cf. Commonwealth v. Bond, 261 Pa.Super. 311, 318, 396 A.2d 414, 417 (1978) (evidence of extortion attempt in a trial for robbery was inadmissible, since “intent was not at issue” and the two offenses were entirely “dissimilar actions”).

In the instant case, we believe that the Commonwealth established beyond a reasonable doubt the following three elements necessary to sustain a conviction under 18 Pa.C.S.A. § 2709(3): 1) intent to harass, annoy or alarm another person; 2) conduct which has “no legitimate purpose”; and 3) conduct which alarms or seriously annoys the average person. In other words, we hold that the trier of fact could reasonably infer from the appellant’s offensive activity, in light of all the attendant circumstances, that he intended to harass the victim and that his actions served no legitimate purposes. Commonwealth v. Duncan, supra.

Appellant next asserts that the admission of testimony relating to prior acts or conduct between the complainant and he was prejudicial error. Since this Court reviewed the admissibility of such evidence in disposing of appellant’s sufficiency argument, we need not reexamine it at this point. However, we note that such issue, although raised at trial, was not submitted in appellant’s post-trial motions, despite the trial court’s advising him of the consequences if he failed to do so. (N.T. 9/17/80, at 129) Therefore, the issue would be considered waived. See, e.g., Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838 (1982); Commonwealth v. Stump, 281 Pa.Super. 317, 422 A.2d 187 (1980); Commonwealth v. Smith, 258 Pa.Super. 148, 392 A.2d 727 (1978).

Appellant’s remaining contention concerns the legality of the Common Pleas Court judge issuing a greater sentence (30 to 90 days imprisonment) after his trial de novo than that entered by the Municipal Court judge ($50.00 fine). In particular, appellant complains that “whenever a court makes such a[n increased] sentence, adequate reasons must be stated of record which would justify the court in doing so in the eyes of a reviewing authority.” (Appellant’s Brief at 8) We agree.

Recently, this Court, in Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982), had occasion to discuss the issue posed by the appellant here. In DeCaro, the accused was convicted in Philadelphia’s Municipal Court of drug charges and was sentenced to two years probation and ordered to pay a fine. However, DeCaro, after obtaining a new trial in the Court of Common Pleas, was found guilty and sentenced to a term of imprisonment. In responding to DeCaro’s claim that the imposition of the increased sentence by the trial judge was error, we stated:

“[T]here is no defect in the Common Pleas judge having imposed a greater sentence than that which was imposed by the Municipal Court judge, if the statutory and case law sentencing procedures were complied with.
Appellant challenges the sentence imposed, claiming that it is excessive.... It is well-settled law that the sentence imposed upon a convicted defendant is within the broad discretion of the sentencing judge. See Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Campolei, 284 Pa.Super.Ct. 291, 425 A.2d 818 (1981). The sentencing judge must, however, comply with Pa.R. Crim.P. 1405, with the standards of the Sentencing Code, 42 Pa.C.S.A. § 9721(b), with the factors in 42 Pa.C.S.A. § 9725, and also with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), giving reasons on the record for his choice of sentence.
The transcript of the sentencing hearing shows that the judge took into consideration the Sentencing Code guidelines and gave reasons for his choice of sentence. He also notified appellant of her right to appeal to this court within thirty days. He neglected, however, to inform appellant of her right to file a motion to modify sentence within ten days, as he is required to do by Pa.R.Crim.P. 1405(c)[.]” (Emphasis added) (Footnotes omitted) Id., 298 Pa.Super. at 44, 444 A.2d at 166.

In DeCaro, we remanded to allow the appellant the opportunity to file a motion for modification of sentence nunc pro tunc, since the trial court failed to inform her of her right to do so. Instantly, the record reveals even more of a deviation from the sentencing guidelines than occurred in DeCaro.

On December 19, 1980, a sentencing hearing was conducted. At that time, counsel for appellant importuned the court not to send his client to jail, for he felt that “[a]ny short-term incarceration would serve no justifiable purpose.” (N.T. 12/19/80, at 151) Counsel suggested that a sentence of probation be imposed, with the proviso that appellant be placed under psychiatric supervision for a period of 90 days. The Assistant District Attorney disagreed, contending that appellant, because of his prior record, had been placed on probation three times already, and there were no signs of an appreciable change in appellant’s behaviour. Furthermore, when the court noted that the appellant was characterized in the pre-sentence report as being in a state of “good” remission, the Commonwealth’s attorney responded that such behaviour modification did not negate the fact that in February and March of 1980, some 5 years after the incident, appellant had commenced contacting the complainant. The Assistant District Attorney went on to state her opinion as to why a period of probation would be unwarranted in appellant’s case. However, before counsel had completed her argument, the court interjected, “I have heard enough[,]” “30 days to 90 days.” Id. at 159. The remaining record, except for the court informing the appellant of his right to appeal the judgment within 30 days, is devoid of any evidence of: 1) the lower court’s reasons for the sentence imposed; 2) the appellant being informed of his right to file motions challenging the propriety of the sentence; and 3) the ten-day limit within which such motions must be filed. See Pa.R.Crim.P. 1405 and 42 Pa.C.S.A. §§ 9721 and 9725.

As this Court has stated in the past, in discussing non-compliance with the dictates of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977):

“The fact that testimony was proffered at the hearing did not dispense with the requirement that the court state its reasons for the ... sentence []. ‘Testimony ... and the contents of a presentence report, cannot constitute a statement of reasons; they rather constitute only the beginning of the process by which the court formulates its statement of reasons.’ (Emphasis in original) Commonwealth v. Wicks, supra, 265 Pa.Super. [305] at 313, 401 A.2d [1223] at 1227 [ (1979) ].” Commonwealth v. Bryner, [285] Pa.Super. [305], [309] n. 2, 427 A.2d 236, 238 n. 2 (1981); accord Commonwealth v. Walters, [287] Pa.Super. [53], 429 A.2d 716 (1981) (a police officer’s testimony on the “circumstances of the offense” cannot substitute for the trial court’s failure to articulate its reasons for the sentence imposed).

Thus, based on the preceding, the Assistant District Attorney’s statement of reasons for the imposition of a term of imprisonment vis-a-vis a period of probation will not be accepted in lieu of the lower court’s statement of its reasons for incarcerating the accused. Commonwealth v. Pauze, 265 Pa.Super. 155, 158, 401 A.2d 848, 849 (1979) (MONTGOMERY, J.) (an appellate “court cannot substitute the prosecution’s rationale for that of the sentencing court for to do so would be pure speculation.”). Consequently, given the dearth of facts in the present case, we cannot effectively discuss appellant’s claim that the sentence was excessive. See Commonwealth v. Bryner, supra, 285 Pa.Super. at 309 n. 3, 427 A.2d at 238 n. 3. Therefore, we vacate the judgment of sentence and remand to allow the lower court an opportunity to articulate its reasons for the imposition of total confinement. Additionally, at such hearing, the appellant is to be advised of all of his rights attendant to said proceeding. See Pa.R.Crim.P. 1405.

We affirm in part, vacate the judgment of sentence and remand for proceedings consistent with this opinion. Jurisdiction is retained by this Court.

      . Appellant has yet to start serving the sentence imposed, for the trial court “let him remain on ... bail [—$1,500—] pending the filing of a notice of appeal.” (N.T. 12/19/80, at 165) It is to be noted that as a condition of bail, the trial court ordered the appellant “not to see [the complainant], [not to] go around where she was, or try to get in touch with her or contact her.” (N.T. 3/9/81, at 5) On March 9, 1981, the trial court, pursuant to the Commonwealth’s petition, conducted a hearing and found that appellant had violated a condition of his bail by going to the complainant’s place of employment and causing her to sob hysterically before the police could be summoned to arrest him. As a result of appellant’s conduct, the conditional bail was revoked and new bail was set at $15,000.00. (N.T. 3/9/81, at 20)

      . This lapse of memory can be attributed to the fact that the case did not come to trial until July of 1980. The delay between the original Municipal Court trial and the trial de novo was created by appellant’s failure to properly pursue his appeal. This, in turn, lead to the filing of a Post-Conviction Hearing Act petition by the appellant on June 6, 1977. The June 6th petition was amended on November 19, 1979; relief was granted on February 14, 1980, in the form of a new trial.


author: MONTGOMERY, Judge:

text:
    445 A.2d 1260
    In re NOVEMBER, 1975 SPECIAL INVESTIGATING GRAND JURY. Appeal of James J. FITZGERALD, III.
    Superior Court of Pennsylvania.
    Submitted Dec. 7, 1981.
    Filed May 21, 1982.

      Thomas E. Butler, Jr., Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, for Commonwealth, participating party.
    James D. Crawford, Philadelphia, for witness, participating party.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from the denial of a Petition filed in the lower court for the release of the transcript of certain testimony given before a 1975 Special Investigating Grand Jury. The Petition was filed on October 18, 1979 by James J. Fitzgerald, III,, a Republican candidate for the office of Philadelphia City Controller. The testimony sought was that given by Thomas A. Leonard, who was a Democratic candidate for the same office, at the time of the filing of the Petition.

The Petition was submitted to the Honorable Merna Marshal, who had been the Supervising Judge of the November, 1975 Special Investigating Grand Jury. The court issued a Rule, returnable on October 30, 1979, and the Petition and Rule were served upon Leonard, as well as upon the District Attorney of Philadelphia and the United States Attorney for the Eastern District of Pennsylvania. On October 30, 1979, an attorney for Thomas A. Leonard appeared before the lower court for the sole purpose of moving to quash a subpoena for his client, which had been issued by the Petitioner. Leonard’s attorney indicated that Leonard did not intend to participate in the proceeding before the lower court, other than to contest the issuance of the subpoena to him. The lower court took the matter of the quashing of the subpoena under advisement, and continued the hearing to November 2, 1979. The only person in attendance at the November 2, 1979 argument before the lower court was an attorney representing the Petitioner, who offered an extended argument in support of the Petition. Following argument, the lower court denied the Petition. The instant appeal was thereafter filed with this Court.

The Petitioner-Appellant has relied upon two principal grounds for his contention that his Petition for the release of Mr. Leonard’s grand jury testimony should have been granted. First, he contends that he had a right to seek disclosure under the provisions of the Act of November 22, 1978, P.L. 1148, No. 271, § 8, formerly 19 P.S. § 272, reenacted in the Act of October 5, 1980, P.L. 693, No. 142, § 216(a)(2), 42 Pa.C.S.A. § 4549. As a subsidiary matter with respect to his first argument, it is urged by the Petitioner that the lower court improperly quashed the subpoena which the Petitioner had served upon Leonard. The second principal argument of the Appellant on this appeal is that considerations of public policy required the disclosure sought by the Petition. While no other party, including Leonard, has filed any brief or appeared before this Court to contest the instant appeal, we have no difficulty in rejecting all of the Appellant’s contentions as they are obviously devoid of even arguable merit.

[I] We first address the argument that the Petitioner could seek disclosure under the provisions of the Act of November 22, 1978. In support of his Petition, the Appellant cites subsection (d) of that Act, which provided: “No witness shall be prohibited from disclosing his testimony before the investigating grand jury except for cause shown in a hearing before the supervising judge. In no event may a witness be prevented from disclosing his testimony to his attorney.” (emphasis added) While even the Petitioner recognized that the Statute made reference to the permissible disclosure by a witness of his own testimony it was the Petitioner’s position that he should be permitted to compel the witness Leonard to appear at the hearing on the Petition to respond to questions as to whether or not he would exercise his lawful right to make disclosures as permitted by the Act. It is clear to us that such a procedure was never intended by our legislators in the passage of this Act. Subsection (d) of the Law, as quoted above, unmistakably conveys the legislative contemplation that one who had been a witness before an investigating grand jury could voluntarily disclose his or her testimony to others, contrary to the normal secrecy rules applicable to such testimony, which rules will be more fully discussed later in this Opinion. The Law, in permitting such voluntary disclosure by a witness, simply cannot be construed to support the actions of another person who institutes an action to force disclosure by compelling the witness to take the stand to declare in a public forum whether or not he or she will disclose his or her testimony before the grand jury. Any person who has so testified cannot, under existing law, be placed into the potentially humiliating circumstance where he or she will be forced, in open court, to make such an election regarding disclosure. In such circumstances, a refusal to agree to make a disclosure would obviously create widespread public suspicions and distrust of the witness, even if the refusal of disclosure was based upon entirely innocent or even laudatory grounds, such as the protection of innocent persons whose identities or activities were the subject of some grand jury inquiry.

Several other matters should be noted before we leave the first issue to examine the Appellant’s public policy argument. The Petitioner filed its action seeking to have the lower court release the transcript of Thomas Leonard's testimony. We note that the Petitioner’s reliance upon Subsection (d) of the Act of November 22, 1978 is obviously misplaced, as that provision does not address itself to any release of transcribed notes of testimony before an investigative grand jury, but only a voluntary disclosure of such testimony by a participating witness. In other subsections, the Act directs attention to the stenographically recorded or transcribed record, and specifically addresses and mandates the secrecy thereof. It is particularly significant in the instant case that it be recognized that the Act does not provide for any witness to have access to or to disclose the actual record. Thus, even if Mr. Leonard voluntarily disclosed his testimony, even he would have no automatic statutory right to a release of the actual verbatim record. We also note that serious and obvious questions exist as to the retroactive application of the 1978 Act to grand jury testimony which was presumably given in 1975. It is inappropriate that we address the issue of retroactivity here, however, where the Petition is unquestionably lacking in merit even if we were to assume the retroactive application of the Act. Finally, in view of our previously expressed conclusions as to the obvious legislative intent of the Act of November 22, 1978, it was quite proper for the lower court to refuse to compel Mr. Leonard to testify in response to the Petitioner’s subpoena.

The Petitioner’s second principal claim was that public policy considerations required the release of the record of testimony by Mr. Leonard before the 1975 Special Investigating Grand Jury. He contended that Mr. Leonard had refused to confirm or deny reports that he had invoked a privilege against self-incrimination during testimony before the Grand Jury. It is urged that as a candidate for public office, Mr. Leonard must be required to disclose information concerning such testimony and that the record of it must likewise be made public.

We are compelled to differ with the Appellant concerning the prevailing public policy with regard to the disclosure of testimony before an investigating grand jury. The true public policy applicable to such testimony has been explicitly stated both by our courts in various decisions and by our elected representatives in an unambiguous statutory language. It is well established in numerous court decisions that proceedings before a grand jury are protected by a general rule of secrecy. See Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954); Commonwealth v. Kirk, 340 Pa. 346, 17 A.2d 195 (1941); Commonwealth v. Schwartz, 178 Pa.Superior Ct. 434, 115 A.2d 826 (1955); and Commonwealth v. Brownmiller, 141 Pa.Superior Ct. 107, 14 A.2d 907 (1940). The United States Supreme Court has recognized this policy, and described it as “. .. older than our Nation itself.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323, 1326 (1959). This traditional rule of. secrecy has been adopted by our Legislature in the passage of the Act of November 22, 1978, the legislation upon which the Appellant places his reliance. That Act specifically states the limited exceptions to the general rule of secrecy which our legislators saw fit to establish. It was provided in Subsection (b) that disclosures of matters coming before an investigating grand jury may be made to attorneys for the Commonwealth for use in the performance of their duties. Other than the permission granted to a witness in Subsection (d), which was noted earlier in this Opinion, no other disclosure is permitted, except with the prior approval of the supervising judge, and then only for limited purposes relating to law enforcement.

There is no known statement of public policy which supports the propositions advanced in this case by the Appellant. Also, the Appellant certainly has not presented us with any decisional law or statutory language to support the theory that a candidate for public office is entitled to less of the protection of applicable law than any other citizen. In particular, we find that the Appellant’s substantial reliance upon the holding in the case of In Re Biaggi, 478 F.2d 489 (2nd Cir. 1973) to be misplaced. In short, while limited disclosure of a candidate’s grand jury testimony was permitted in Biaggi, the applicant who initiated the request for such disclosure in that case was the candidate himself. Moreover, the United States Attorney also moved for disclosure in the case, albeit under procedures different from that sought by the candidate. Finally, the Second Circuit panel decided the case with consideration of a Rule of Federal Procedure regarding the disclosure of information concerning grand juries, which Rule is obviously inapplicable to the dispute presently before our Court. All of these differences compel the conclusion that the Biaggi decision provides no illustrative or binding precedent in the instant case. In summary, we find no merit in the Appellant’s public policy arguments.

The order of the lower court is hereby affirmed.

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

      . The exact date of Mr. Leonard’s testimony was never established in the lower court.

      . The procedure followed by the Petitioner in seeking to have the lower court compel Mr. Leonard’s compliance with the subpoena was also of questionable propriety. In view of our conclusions as to the correctness of the lower court’s denial of Petitioner’s efforts to compel such testimony, we perceive no useful purpose in addressing the issue of the procedure followed by the Petitioner.

      . All of these cases recognize the general rule of secrecy and discuss some of the limited .situations in which exceptions to the rule may exist. No such exceptional circumstance is apparent in the setting of the instant case.

      . See 42 Pa.C.S.A. § 4549(b).


text:
    445 A.2d 1263
    Robert D. MORGAN, Appellant, v. PHILADELPHIA ELECTRIC COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1981.
    Filed May 21, 1982.

      Robert B. B. Schatz, Philadelphia, for appellant.
    John J. Tinaglia, Philadelphia, for appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from a lower court order dismissing the Plaintiff-Appellant’s post-trial motions in a case involving claims for damages for injuries purportedly suffered in a motor vehicle collision. The Defendant-Appellee, the Philadelphia Electric Company, admitted liability in the collision, in which a vehicle operated by one of its employees struck the rear of a vehicle in which the Appellant was a passenger. At the conclusion of the trial, the jury awarded no damages to the Appellant. On the instant appeal, the Appellant contends that he is entitled to a new trial based upon the alleged racially discriminatory use of peremptory challenges by the defense, and also because the jury awarded him no damages. We find no merit in either of the contentions raised by the Appellant.

We first examine the claim that the Appellant is entitled to a new trial as the result of the alleged racially discriminatory use of peremptory challenges by the Appellee, which resulted in the exclusion of all prospective black jurors in the case. The Plaintiff and all but one of his witnesses were black. During voir dire examination of the prospective jurors by counsel for the respective parties, several of the prospective jurors were removed for cause. In each instance, such jurors were white. The entire panel from which the jury was to be chosen apparently included four black individuals. It was claimed that counsel for the defense exercised peremptory challenges to exclude all four black prospective jurors from the panel which considered the case.

The question of the exclusion of jurors of a particular race from a jury panel has most often been raised in criminal cases. The United States Supreme Court addressed this issue in the landmark case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Swain the Court held that it was not a denial of Equal Protection to exclude blacks from a jury by the use of peremptory challenges in a criminal case. It was held that in order to establish a denial of constitutional rights, it would have to be shown that jurors of a particular race were systematically excluded from the array of jurors available, and not simply that racial considerations had played a part in the exercise of peremptory challenges used in the selection of the panel which actually heard a particular case. Our Pennsylvania Supreme Court has recognized this concept. See Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976). If such use of peremptory challenges is not deemed to be a violation of rights in a criminal case, where one’s very liberty is placed in question, it does not appear to us that there is any basis to create a more stringent standard in civil proceedings by adopting the position urged in the instant case by the Appellant. It appears that such a distinction has been specifically rejected in the Federal courts. Sorenson v. Raymond, 532 F.2d 496 (5th Cir. 1976). Therefore, we reject the Appellant’s initial claim of error.

The Appellant also contends that the jury’s verdict was against the weight of the evidence and that a new trial is required on the issue of damages. The Appellant argues, in essence, that the jury was compelled to accept the testimony which he and his witnesses offered as to his injuries, pain and suffering, and thereby was required to award him damages. It is well-established that a court should grant a new trial only when the verdict is so contrary to the evidence as to shock the court’s sense of justice. Weaver v. Firestone Tire & Rubber Company, 267 Pa. Superior Ct. 548, 407 A.2d 45 (1980). Further, it is the general rule that the granting or denial of a new trial is a decision within the sound discretion of the trial judge. Palmer v. Brest, 254 Pa. Superior Ct. 532, 386 A.2d 77 (1978). While it is clear that where legal liability has been imposed, a jury may not capriciously withhold damages [Pascarella v. Pittsburgh Railway Co., 389 Pa. 8, 131 A.2d 445 (1957)], it is also well-established that a jury is not required to believe the plaintiff and his witnesses, even when their testimony is uncontradicted. See Bronchak v. Rebmann, 263 Pa. Superior Ct. 136, 397 A.2d 438 (1979). Moreover, where a plaintiff’s evidence as to damages is contested and placed in doubt, it is within the jury’s power to decide that the plaintiff did not meet his burden of proof and to award no damages. Lesoon v. Yellow Cab Co., 195 Pa. Superior Ct. 470, 171 A.2d 877 (1961). This Court has also held that a jury may properly ignore any plaintiff’s claim for damages when it disbelieves the witnesses of the plaintiff and therefore is unconvinced by plaintiff’s evidence. See Surgent v. Stein, 280 Pa. Superior Ct. 142, 421 A.2d 445 (1980); Rose v. Hoover, 231 Pa. Superior Ct. 251, 331 A.2d 878 (1974).

Our own review of the record convinces us that ample grounds existed upon which the jurors may have concluded that the Plaintiff-Appellant and his witnesses were unworthy of belief on the issue of whether or not he suffered any injuries in the accident in question. The record shows that the accident occurred on October 20, 1975, and that the Appellant was then a passenger in an automobile which was struck from the rear by another vehicle operated by an employee of the Defendant. The Appellant testified at trial that immediately after the accident he went directly home and to bed. He related that he was in tremendous pain, wore a full-body brace and orthopedic collar for months, and that for weeks after the accident he was only able to descend his steps at home with the aid of crutches, in order to make visits to a doctor. On cross-examination, the Plaintiff was confronted with pictures from a local newspaper, dated two weeks after the accident, showing him awarding a trophy to the winner of a beauty contest at a large hotel in Philadelphia. The Plaintiff’s credibility was also placed in doubt with regard to his explanation of the occurrences of the accident. Although he testified that he was a passenger and was wearing a seat belt when the accident occurred, he claimed that his injuries were the result of striking the steering wheel and the dashboard. The Plaintiff’s wife, who also testified on his behalf, claimed that she too was injured in the collision in ways which would have been difficult to imagine, in view of her testimony that she also wore a seat belt at the time of the collision. Both of these witnesses testified that there was a significant impact in the collision anid severe damage to the vehicle in which they were passengers. However, a photograph of the vehicle offered by the defense appeared to refute the testimony of significant damage to the vehicle. The statements of physicians who testified on behalf of the Plaintiff may also have been reasonably doubted by the jurors. The records of one physician contradicted the Plaintiff’s testimony as to the number of visits the Plaintiff had made to the physician in the three weeks immediately following the accident. Moreover, while that doctor’s records of the treatment subsequent to the accident only mentioned injuries allegedly suffered in the accident, they made no mention of numerous medical problems for which the physician had furnished treatment to the Plaintiff on approximately thirty to forty occasions in the five years preceeding the accident. A second physician who testified based his opinions in part upon the medical history which had been given to him by the Plaintiff. The veracity of that medical history was clearly drawn into question by Plaintiff’s own testimony at trial, which contradicted the history he had given to the doctor.

On the basis of the foregoing highlights of the testimony which are evident in the record and which surely affected the jury’s conclusions regarding credibility, we cannot hold that the jury’s denial of damages shocks our sense of justice in this case. Thus, we discern no error in the lower court’s denial of a new trial on the basis of the jury’s failure to award the Plaintiff any damages in the case. Therefore, we reject the Appellant’s second claim of error.

The order of the lower court is hereby affirmed.

      . In Swain, the Supreme Court considered whether peremptory challenges based upon race violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In that regard, we note that the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, which both deal with the right of citizens to jury trials, apply only to criminal proceedings.


text:
    445 A.2d 1266
    Pauline BROYAKA, v. Dominic A. CAPONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1981.
    Filed May 21, 1982.

      Kevin Canavan, Philadelphia, for appellant.
    Joseph D. Shein, Philadelphia, for appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   MONTGOMERY, Judge:

The instant appeal arises following a jury verdict for the Plaintiff-Appellee, and the denial of post-trial motions by the lower court. The case involved a motor vehicle collision and the jury which considered the evidence rendered an award in the amount of Sixty Thousand ($60,000.00) Dollars for the Appellee. The Appellant has not contested the jury’s findings of liability, but only its award of damages.

With respect to the award, he has raised two principal claims in contending that he is entitled to a new trial. He first argues that the lower court erred in submitting the issues of permanent and total disability and loss of future earnings to the jury. Second, he maintains that because there was purportedly an absence of any actuarial evidence or other mathematical guidance from which the jurors could have made a calculation of present worth in their assessment of damages, the trial judge committed error in submitting the issue of the loss for future earnings to the jury. We find no merit to either contention.

We first address the issue of whether the lower court erred in submitting the question of permanent and total disability to the jury. It is the Appellant’s position that the Appellee offered the opinions of three experts which were contradictory and irreconcilable on the issue of causation. Thus, he contends, the jury was compelled to engage in conjecture in order to find a causal connection between the Appellee’s traumatic injuries and her resulting disabilities, which the jury found were total and permanent.

We find that the Appellant’s initial claim is devoid of merit and is based upon a serious mischaracterization of the record of testimony presented on behalf of the Appellee at trial. The Appellant discusses the testimony of three physicians, Drs. Dykyj, Alter and Polakoff. He points out that Dr. Polakoff, a neurosurgeon who examined the Appellee upon a referral from Dr. Dykyj, the Appellee’s family physician, asserted that the Appellee’s neck and back problems could be traced to work and degenerative disc disease. It is clear that Dr. Polakoff’s conclusions differed from those of Dr. Alter, another neurosurgeon, who opined that the Appellee’s cervical and lumbrosacral strains, which he diagnosed, were directly attributable to the accident in issue. The Appellant notes that Dr. Dykyj agreed with Dr. Alter and not Dr. Polakoff, but leaves the impression that Dr. Polakoff’s testimony was offered by the Appellee at trial. In fact, the Appellee offered only the testimony of Drs. Dykyj and Alter. The conclusion reached by Dr. Polakoff became a part of the record only as a result of cross-examination of Dr. Dykyj by the Appellant’s counsel. The Appellee obviously cannot be found to have presented testimony or to have been bound by any opinion of Dr. Polakoff.

The Appellant further argues that Dr. Alter’s testimony regarding the permanency of the disability must be disregarded since he allegedly based his opinion upon grounds of vocational or occupational training and placement, while his sole area of expertise was in medical science. It is true that Dr. Alter did express the opinion that the Appellee might be disqualified from future employment because she did not possess certain supervisory skills. However, it is apparent that the Appellant has either ignored evidence of record or mischaracterized it. Dr. Alter clearly and emphatically stated that his opinion as to the Appellee’s disability was based upon a medical analysis, as is evident in the following exerpt from his testimony on cross-examination: “Counselor, I have answered that question I believe more than once. I don’t think that she can work. It’s my medical opinion she cannot work. I addressed the medical aspect of the case and disqualified her on medical grounds primarily.”

There was certainly sufficient evidence from the Appellee’s medical experts, and additional supportive testimony from the Appellee herself, which justified the lower court’s submission of the question to the jury of whether the Appellee was permanently and totally disabled as a result of the Appellant’s negligent operation of his vehicle. Therefore, we must reject the Appellant’s initial claim of error.

We next examine the Appellant’s assertion that there was insufficient evidence offered by the Appellee to justify the submission of the question of loss of future earnings to the jury. The Appellant’s position is that the jury was not furnished with any actuarial table or other mathematical guidance from which it could have made a calculation of present worth, for the purpose of assessing damages. .

The record shows that the Appellee introduced evidence of her last weekly wage, which was in the amount of One Hundred Sixty-Four ($164.00) Dollars, and also brought before the jury that her total future wages from June 1,1980, until the time of her sixty-fifth (65) birthday would have been in the amount of Fifty-Nine Thousand Five Hundred ($59,500.00) Dollars. A stipulation was entered into the record that the Appellee’s employer did not discriminate on the basis of age and that the Federal law now provides a mandatory retirement at the age of seventy (70). The trial judge and attorneys for both parties explained to the jury that any award for future wages had to be reduced to present worth. Further, in its charge to the jury, the lower court went to considerable lengths to explain the complicated concept of reduction to present worth.

We find several reasons to reject the Appellant’s claim. First, there is no contention that the Sixty Thousand ($60,-000.00) Dollar award of the jury was excessive, and we are also mindful that it presumably included the component of pain and suffering, as well as some measure of a loss of future earnings. Second, the Appellant makes no claim that the lower court committed error in any way in its charge to the jury concerning the reduction to present worth of any award for the loss of future wages. Next, we note that the Supreme Court of Pennsylvania decided in 1980 that the practice of discounting future lost earnings would be abandoned, so that the impact of inflation would be reflected without specifically submitting the question to a jury. This change in the law was made subsequent to the trial in the instant case, in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980). However, the Court in Kaczkowski specifically pointed out that it had never been required that proof in support of claims for damages or compensation had to conform to a particular standard of mathematical exactness. The Court, citing its earlier decision in Western Show Co., Inc. v. Mix, 308 Pa. 215, 162 A. 667 (1932), declared that if the facts presented to the jury afford a reasonably fair basis for calculating how much a plaintiff may be entitled to, such evidence will not be regarded as legally insufficient to support a claim for compensation. While the Court in Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657 (1964) approved the use of present worth tables, it did not hold in that case or in any other pre-Kaczkowski decision that the use of such tables was mandatory in our Commonwealth.

Based upon all of these factors, and in view of the patently fair amount awarded by the jury in the instant case, we reject the Appellant’s second contention of error.

Affirmed.

      . While we are aware of no Federal law which mandates retirement at any specific age, there is no issue before this Court on this appeal concerning the correctness of the stipulation entered into by the parties in the lower court.


text:
    April 12, 1982.
    445 A.2d 206
    Associated Financial Express Inc., Appellant v. Baez.
    Argued February 1, 1982.
    David Lionel Pollack, for appellant;
    Charles Schleifer, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Order affirmed.


text:
    445 A.2d 207
    Balmer et al., etc., Appellants v. American Finance Co., et al. Maus etc., Appellants v. Holiday Consumer District of Dunmore.
    Argued September 10, 1980.
    0. Randolph Bragg, for appellants;
    Michael Donahue, for appellees.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Orders affirmed.


text:
    445 A.2d 207
    Brennan, Appellant v. Barnes v. Lux et al.
    Petition for Allowance of Appeal Denied Aug. 20, 1982.
    Argued September 10, 1980.
    Michael J. Eagen, Jr., for appellant;
    Michael Donohue, for Barnes, appellee;
    William Murphy, for Lux, appellee;
    Paul Barrett, for School Dist. of the City of Scranton, appellee;
    Zygmunt Bialkowski, Jr., for the City of Scranton, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    445 A.2d 207
    Cedarbrook v. Carroll, Grisdale etc. et al. Appeal of Carroll, Grisdale and Van Alen.
    Argued September 9, 1980.
    Roger B. Wood, for appellants;
    John M. McAllister, for Cedarbrook, appellee;
    Ronald H. Sherr, for Hunt, Williard, Armstrong and Asbestos, appellees.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    445 A.2d 207
    Celina Mutual Insurance Co., Appellant v. Harleysville Insurance.
    Argued January 18, 1982.
    Robert David Thompson, for appellant;
    Donald Blaine Scace, submitted a brief on behalf of appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   The order of June 5, 1981 is affirmed.


text:
    445 A.2d 208
    Central Mortgage Co. v. Beasley, et al., Appellants.
    Submitted January 19, 1982.
    Lawrence Sager, for appellants;
    Joseph A. Goldbeck, for appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   The order dated May 7, 1981 is affirmed on the comprehensive opinion of Judge SAYLOR.


text:
    445 A.2d 208
    Commonwealth v. Gail Africa a/k/a Gail Sims, Appellant.
    Submitted September 11, 1980.
    Robert R. Redmond, for appellant;
    James B. Jordan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    445 A.2d 208
    Commonwealth v. Ashmore, Appellant.

      Submitted December 16, 1981.
    Regina B. Guerin, for appellant;
    Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.

POPOVICH, J., concurred in the result.


text:
    445 A.2d 209
    Commonwealth v. Balliet, Appellant.
    Submitted December 8, 1981.
    George A. Heitczman, Assistant Public Defender, for appellant;
    Richard H. Pepper, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment of sentence affirmed.


text:
    445 A.2d 209
    Commonwealth v. Berkery, Appellant.

      Submitted September 11, 1980.
    David J. Natale, for appellant;
    Ann C. Lebowitz, Assistant District Attorney, for Commonwealth appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    445 A.2d 209
    Commonwealth v. Birdsong, Appellant.
    Petition for Allowance of Appeal Denied Aug. 20, 1982.
    Submitted January 26, 1982.
    Kalvin Kahn, for appellant;
    Eric I. B. Beller, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., concurred in the result.


text:
    445 A.2d 209
    Commonwealth v. Brown, Appellant.
    Submitted October 19, 1981.
    George Gershenfeld, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    445 A.2d 210
    Commonwealth v. Davis, Appellant.
    Submitted September 11, 1980.
    James M. Lynn, for appellant;
    Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    445 A.2d 210
    Commonwealth v. Denny, Appellant.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.

      Submitted February 11, 1981.
    Frank R. Riddle, for appellant;
    F. Walter Bloom, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and BROSKY and CIRILLO, JJ.
   Judgment of sentence is affirmed.


text:
    445 A.2d 210
    Commonwealth v. Forlano, Appellant.
    Argued February 2, 1982.
    Allan Hyman Freedman, for appellant;
    Nancy D. Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   Appeal quashed.


text:
    445 A.2d 211
    Commonwealth v. Fowler, Appellant.
    Submitted September 11, 1980.

      Joseph S. U. Bodoff, for appellant;
    Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.