author: MONTEMURO, Judge:

text:
    574 A.2d 100
    Lorenzo GOLDMAS, Appellee, v. ACME MARKETS, INC. Appellant.
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed May 3, 1990.

      John O’Brien, Philadelphia, for appellant.
    David E. Sternberg, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

This appeal, filed by Acme Markets, Inc., stems from the trial court’s refusal to grant to Acme a judgment notwithstanding the verdict or a new trial following a December 1988 jury trial in the Court of Common Pleas of Philadelphia County. We affirm.

The appellee, Lorenzo Goldmas, instituted a negligence action against Acme following his fall at an Acme store on April 11, 1983. He claimed that his fall was caused by negligently maintained conditions at the store. Goldmas claimed that, in addition to mental anguish, he had been physically injured as follows:

As a result of the accident aforementioned, husband-plaintiff sustained multiple injuries including, but not limited to, a brain concussion resulting in post concussion syndrome; mid thoracic and cervical strain, right elbow strain, and right thumb metacarpal strain and other multiple injuries of his head, neck, shoulders, back, torso, arm and legs, their bones, cells, tissues, nerves, muscles, roots and functions; and shock and injury to his nerves and nervous system, some or all of which husband-plaintiff has been advised are or may be permanent in nature.

R.R. at 7a. Acme denied the allegations of negligence set forth against them, and, by way of new matter, set forth claims of comparative negligence and assumption of the risk. Following a two day jury trial, a verdict in the amount of $25,000.00 was returned in favor of Goldmas.

On appeal, Acme presents six issues for our review. First, Acme claims that the trial court abused its discretion in not charging the jury in conformance with the decision of this Court in Matteo v. Sharon Hill Lanes, Inc., 216 Pa.Super. 188, 263 A.2d 910 (1970). Matteo is distinguishable from the present case. It is well established that although the defendant has the burden to prove the contributory negligence of the plaintiff, “[i]f in presenting his case against the defendant the plaintiff reveals factors which convict him of contributory negligence he may not recover.” Id., 216 Pa.Superior Ct. at 191, 263 A.2d at 912 (citations omitted). In finding that the trial court had erred in charging the jury in Matteo so as to necessitate the grant of a new trial, we opined:

The charge of the court makes no mention of the possibility that the facts in the plaintiffs case might be used to show his contributory negligence. In fact, a reading of the charge leaves the impression that the defendant must produce evidence of the plaintiffs contributory negligence from some other source. The last paragraph of the above quoted charge confirms this impression when it says, “Now, if you believe that by a fair preponderance of the evidence, and [sic] that the plaintiff was guilty of conduct attributed to him by the defendant’s evidence, then such conduct would be negligence.

Id., 216 Pa.Superior Ct. at 192-193, 263 A.2d at 913 (emphasis in original).

In the instant case, we have reviewed the jury charge as a whole and have found no language which would have indicated to the jury that only the evidence presented by the defendant could be considered in deciding whether Goldmas had been negligent. In fact, we find that the court’s instructions complied with Acme’s request pursuant to Matteo. The trial court instructed the jury as follows:

In other words, negligence is the failure to do ... something which a reasonably careful person would do, or doing of something which a reasonably careful person would not do, and it is up to you, the jury to determine what a reasonably careful person would do under all the circumstances.
* $ # ‡ *
Now, just as Acme Market has a legal responsibility to exercise reasonable care for persons lawfully on their premises, persons legally on their premises have a responsibility to exercise reasonable care for their own protection. This is what is called contributory negligence, if you don’t.
That is to say Acme Market, you could find that they were negligent from the evidence. You could also find from the evidence that the Plaintiff was negligent. That’s up to you depending on what the evidence says____
sjs % sjc sj* ‡ *
... take all the evidence on one side that you think supports plaintiffs case and put it on one side of the scale, and all the rest of the evidence on the other side. If the scale tips in favor of the plaintiff in the slightest degree he has met his burden of proof and he may recover.
Obviously, if the scale remains even and certainly if it flips in favor of the defendant, he has not met his burden of proof and may not recover.
Same standard applies to the defendant on the issue of contributory negligence. If they tip that scale in the slightest degree in their favor, then they have established contributory negligence____

R.R. 170a, 174a-175a (emphasis added). The jury instruction given in the case at bar correctly informed the jury that it was their function to decide what evidence was supportive of Goldmas’s claim of negligence, and which was supportive of Acme’s claim of contributory negligence, without indicating any restriction on which party presented the evidence to the jury in the first place.

This case is analogous to Calhoun v. Jersey Shore Hospital, 250 Pa.Super. 567, 378 A.2d 1294 (1977), wherein the defendant hospital claimed on appeal that the trial court had erred in failing to follow the Matteo decision and to thus advise the jury that the plaintiffs case may establish contributory negligence without the production of any evidence by the defendant. This Court in Calhoun rejected this claim of trial court error and in so doing, we stated:

During the charge the judge said: “You must, therefore, determine whether the Plaintiff was negligent, in that as an ordinarily prudent person, under all of the circumstances present, she failed to exercise reasonable care for her own protection.” N.T. 134 (emphasis added). Later in the charge the judge said: “If, after considering all of the evidence, you are unable to decide whether or not a fact occurred or not, then you would have to resolve that issue against the person having the burden of proof on that issue.” N.T. 135 (emphasis added). It therefore appears that counsel’s request that the jury be instructed to consider all of the evidence was complied with.

Calhoun, supra at 573-574, 378 A.2d at 1297.

As a second issue, Acme contends that the trial court erred in not granting a new trial on the grounds that the jury verdict was irreconcilable, evidencing juror confusion. Acme bases this claim upon the jury’s answer to question five on the jury verdict slip, which was not read in court based upon the jury’s answer to the preceding questions:

Question 1:
Do you find that the defendant was negligent?
Yes _X No_
If you answer Question No. 1 “No”, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom.
Question 2:
Was the defendant’s negligence a substantial factor in bringing about the plaintiff’s harm?
Yes X No
If you answer Question No. 2 “No”, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom.
Question 3:
Was the plaintiff contributorily negligent?
Yes_ NoJ£
If you answer Question No. 3 “No” proceed to Question No. 5.
Question 4:
If you answered Question No. 3 “Yes” was the plaintiffs contributory negligence a substantial factor in bringing about his harm?
Yes_ No_
Question 5:
In taking the combined negligence that was a substantial factor in bringing about the plaintiff’s harm as 100%, what percentage of that causal negligence was attributable to the defendant and what percentage was attributable to the plaintiff?
Percentage of causal negligence attributable to defendant (Answer only if you have answered “Yes” to Questions 1 and 2). 75%
Percentage of causal negligence attributable to the plaintiff (Answer only if you have answered “Yes” to Questions 3 and 4) -%
State the amount of damages, if any, sustained by the plaintiff as a result of the accident, without regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the plaintiff.
$ 25,000.00

R.R. 2229a-230a.

“It is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury’s findings which can only be defeated when there is no reasonable theory to support the jury’s verdict.” Giovanetti v. JohnsManville Corp., 372 Pa.Super. 431, 440, 539 A.2d 871, 875 (1988) (citation omitted). The instant case is unlike the situation addressed by our Supreme Court in Ferrick Excavating v. Senger Trucking, 506 Pa. 181, 484 A.2d 744 (1984). In Ferrick, the jury had, in answer to special interrogatories, determined that while the plaintiff had been contributorily negligent, this negligence had not been a proximate cause of the plaintiffs damages. However, the jury, when asked to determine the question of causal negligence, attributed 80% to the defendant and 20% to the plaintiff. In affirming this Court’s grant of remittitur, the Supreme Court reasoned:

Ferrick [plaintiff] would have it that all questions of negligence and causation are settled as of the answer to question 3. There is, of course, no reason why this should be so. Questions 4 and 5 do exist, and unless they are to be regarded as mere surplusage, they set up an irreconcilable inconsistency between the finding in 4 that Ferrick’s negligence was not a proximate cause of the injury and the finding in 5 that Ferrick’s proximate negligence was 20%.

Id., 506 Pa. at 187, 484 A.2d at 747.

Instantly, the presumption of the consistency of the jury verdict may stand. There is no question as to the jury’s finding that Acme was negligent, and that the negligence of Acme was a proximate cause of Goldmas’s injuries. Thus, Acme is properly held liable for all of Goldmas’s damages. Further, there is no confusion apparent on the verdict slip with reference to Goldmas’s contributory negligence. This is the crux of Acme’s issue. Acme is claiming that because the jury placed the “75%” in question 5, they intended to make a finding that Goldmas was contributorily negligent. On the contrary, the defense of contributory negligence was consistently rejected by the jury in questions three, four, and five. Indeed, in question 5, the jury placed a line through the answer blank indicating that the question seeking a determination of the plaintiff’s causal negligence was inapplicable or irrelevant. Thus, the “75%” figure appearing in question 5 is mere surplusage and has no effect on the valid verdict rendered by the jury. We find no error in the trial court’s failure to grant Acme a new trial on this claim.

Next, Acme claims that the trial court erred in not instructing the jury to disregard certain statements made by Goldmas’s counsel during his closing argument. Specifically, Acme claims that it was prejudiced by counsel’s claims that Goldmas had unpaid medical bills. Apparently, Acme contends that this argument was not supported by the evidence and was made by Goldmas’s counsel for the sole purpose of eliciting juror sympathy. The trial court dismissed this claim on the grounds that there is evidence of medical bills in the record. A review of the exhibits admitted during trial does include some medical bills. In any event, we are convinced that even if some of these bills were actually paid at the time of trial, Acme was not unduly prejudiced by counsel’s closing remarks. There is no dispute that Goldmas received medical treatment for which he was charged, and for which he was entitled to seek contribution in his suit against Acme. Under the circumstances, Acme was not prejudiced by counsel’s comments even assuming, arguendo, that some of the medical bills had been paid.

We likewise find no merit in Acme’s claim that the trial court erred in instructing the jury concerning Acme’s duty under the law of negligence. “It is now well established in this Commonwealth that portions of a jury charge are not reviewed for error in isolation. Rather, an appellate court is bound to examine the charge in its entirety against its evidentiary background. From the examination we must determine, first, whether any error was committed and, if so, whether the error was prejudicial to the complaining party.” McKee By McKee v. Evans, 380 Pa.Super. 120, 143-144, 551 A.2d 260, 271 (1988) (citations omitted). Instantly, we find no error in the court’s accurate and precise explanation regarding Acme’s duty under the circumstances of the instant case. Contrary to Acme’s claim that the court indicated that Acme was an insurer of the safety of its customers, the court stated to the jury:

So, you have to determine what’s reasonable for them in the circumstances. Again, every accident doesn’t cause liability. Every time there is a spill they are not responsible. You have to determine that the spill was of such a nature that they either knew about it or they should have known about it____

R.R. at 169a.

During the trial, Acme attempted to introduce a letter from a physician, Dr. Zimmerman. Acme claimed that the introduction of this evidence was necessitated by surprise resulting from Goldmas’s trial testimony regarding his glaucoma. R.R. at 135a. The letter purportedly states that Dr. Zimmerman treated Goldmas for glaucoma while he was in Chestnut Hill Hospital during April 1983, and thereafter. The trial court rejected Acme’s contention that it was “surprised” by Goldmas’s testimony, and refused to admit the letter on the grounds that it was inadmissible hearsay. Acme is entitled to no relief on this claim. Gold-mas testified that he was seen by Dr. Zimmerman for glaucoma on the last day of his stay at Chestnut Hill Hospital, and that Dr. Zimmerman had advised him that he had glaucoma in one eye. Id. at 66a and 82a. Further, hospital records admitted into evidence indicate that Gold-mas was suffering from glaucoma at the time he fell in the Acme store. Id. at 258a. Dr. Zimmerman’s letter was thus cumulative evidence which did not come within an exception to the hearsay rule. The jury was provided with ample evidence concerning Goldmas’s glaucoma condition, which existed at the time of his fall, and the jury had in evidence hospital records indicating that Goldmas did not suffer eye injury as a result of his fall. Id. at 234a. With this evidence, the jury was thus able to evaluate Goldmas’s testimony in light of other evidence, specifically hospital records, which did indicate that part of his stay at Chestnut Hill Hospital was focused upon his pre-existing glaucoma condition which obviously was not related to his fall. See R.R. at 291a, 294a, 300a, 301a.

Finally, Acme claims that the verdict rendered by the jury was against the weight of the evidence. A new trial will not be granted unless the verdict is so contrary to the evidence as to shock the court’s sense of justice. We find no error in the trial court’s refusal to grant Acme relief. Acme’s claim is based upon its review of the testimony of Goldmas, which it argues contains “glaring ‘inconsistencies’ [which] elevate ... plaintiff’s testimony into the realm of perjury____” Brief for Acme at 33. Credibility is for the finder of fact to determine. Although the jury may not have believed all of the testimony of Goldmas, it was free to accept some of the testimony as credible while it, at the same time, rejected other portions of the testimony. We note that many of the inconsistencies in Goldmas’s testimony emphasized by Acme concern collateral issues: the number of Goldmas’s children, his birthplace, his marriage history, his knowledge of his own body weight. Other inconsistencies may well have been dismissed as inconsequential by the jury, such as Goldmas’s testimony regarding which hand he had used to reach up to the grocery shelf and what type of glass he noticed on the floor after his fall, in light of the rest of his testimony concerning his fall in the Acme store. See R.R. at 47a-48a. Further, Mr. Williams, store supervisor for Acme, testified that he had approached Goldmas immediately after his fall in the store and had observed oil on the floor. Id. at 125a-126a. Under these circumstances, the jury’s verdict was not against the weight of the evidence. A new trial should not be granted on a mere conflict in the testimony. See Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984).

Order affirmed.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    574 A.2d 105
    Jonathan C. MOORE, Appellant, v. Rachel M. MOORE.
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed April 30, 1990.

      John J. Money, III, Hanover, for appellant.
    Karen Semmelman, York, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

Appellant/father appeals the trial court’s Order of June 2, 1989, awarding primary physical custody to appellee/mother and granting him partial physical custody of their four and one-half year old son Nicholas.

Father had primary physical custody of Nicholas from September, 1988, when Mother moved to Florida to attend college, until the June 2nd Order. While mother was in Florida, she saw Nicholas one weekend a month when she would fly back to Pennsylvania. Prior to that, the parties shared custody with mother having Nicholas Thursdays through Sundays and father having Nicholas Sundays through Thursdays. On February 25, 1988, father filed a petition to affirm custody and on March 21, 1988 mother filed her own petition for custody. Mother subsequently filed an amended petition for custody in which she alleged she was moving to Florida and wanted primary physical custody so she could take Nicholas with her.

A hearing on the petitions was held on February 7, 1989, and on February 10, 1989, the court entered an Order awarding primary physical custody to father with rights of partial custody to mother. Following this Order, mother returned to Pennsylvania, retained new counsel and filed a petition for rehearing and reconsideration, claiming the court failed to make a complete record at the February 7th hearing. After a hearing on the petition, the court vacated the custody Order and reopened the case for further testimony.

A second custody hearing was held in May wherein the testimony of February 7th was incorporated and, for the first time, mother introduced the testimony of Dr. Stanley Schneider, a psychologist, who evaluated the parties, father’s girlfriend and mother’s fiance, as well as Nicholas. Also at the hearing, mother indicated she was negotiating the purchase of a home in Florida but would withdraw her offer if she was unsuccessful in obtaining primary custody of Nicholas. Based on Dr. Schneider’s testimony and his opinion that mother would be more willing to promote and encourage contact between Nicholas and the noncustodial parent and the maternal grandparents, the court entered a new Order on June 2, 1989, awarding primary physical custody to mother with father receiving partial physical custody. Mother plans to start Nicholas in school in Florida in September of 1990 when she returns to school to complete her graphic design degree.

Father now raises three issues on appeal, the first being whether the court erred in vacating the February 10, 1989 Order and allowing a rehearing. We agree this was error; therefore, for the reasons that follow we vacate the June 2, 1989 Order and reinstate the February 10th Order.

Mother filed her petition for rehearing and reconsideration on February 28, 1989, and on March 3, 1989, the court ordered argument on the matter, to be held March 10, 1989. Following submission of briefs by both parties, the court heard argument and on March 13, 1989 vacated its February 10, 1989 Order and granted mother’s petition for rehearing and reconsideration. The trial court was without authority to vacate the February 10th Order, however, as a custody Order is a final, appealable Order, reviewable by this Court without any intervening procedures. Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988). Under Pa.R.C.P.1915.10(b) motions for post-trial relief may not be filed to an Order of custody and a party cannot circumvent the appellate process by filing a petition for rehearing and reconsideration. Consequently, the Order entered June 2, 1989 must be vacated and the Order of February 10, 1989 reinstated.

Notwithstanding the result stated above, we will address the other issues presented in this appeal to offer a decision on the merits to the parties and to provide future guidance to trial courts faced with similar situations.

Appellant/father also argues the court did not give proper weight to mother’s decision to move out of state with their son, and the court erroneously relied on Dr. Schneider’s testimony which was a prediction of future conduct. Mother raises an additional issue, claiming the court did not abuse its discretion in relying on 23 Pa.C.S. § 5303, which states as follows:

§ 5303. Award of sole custody
In making an order for custody to either parent individually, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. The court shall award sole custody when it is in the best interest of the child.

There is no question that Dr. Schneider’s testimony influenced the court and was the determining factor in removing Nicholas from his father’s care and awarding primary custody to mother, despite mother’s decision to move Nicholas to Florida with her. The court based its February 10th Order on the evidence which showed both parents to be fit, loving parents and there was no reason to take primary custody away from father.

In our February 10th Order we found that the relationship between Nicholas and his father and the stability that his father has provided for Nicholas were controlling factors in our award of custody to the father.
At that time we saw absolutely no reason to disturb the status quo by awarding majority physical custody to the mother. We believe then as we do now that both parents have demonstrated a willingness to act as majority physical custodian, both parents can provide adequate living arrangements for their son, and both parents can provide financially for Nicholas, that both parents provide for Nicholas’ religious training, and are generally concerned for his intellectual, emotional, and physical development.

(Slip OP., Dorney, J., 6/2/89, pp. 4-5.)

The court went on to say, however:

Unfortunately, we did not have any expert testimony except out of Constance Marshall who conducted the Moore’s home study at the first hearing on February 7th.
We have that now and in the form of testimony from Dr. Stanley Schneider, a psychologist who evaluated the mother, the father, the mother’s fiance, and the father’s girlfriend, and observed the interaction of Nicholas with these adults.
Dr. Schneider found Nicholas to be the type of child as described by the other witnesses; strong willed, but well adjusted, adaptable, relating easily to other people, and a neat kid.
Dr. Schneider found the father to be inflexible and indicated that although he will apply [sic] with the Court Order, it is doubtful that he will be flexible in allowing additional contacts between Nicholas and his mother and the extended family.
On the other hand, Dr. Schneider found the mother to be more likely to encourage and permit a continuing and expanded relationship between Nicholas and his father and her extended family.
There is no question that Nicholas and his maternal grandparents share a close relationship. Dr. Schneider believes that this relationship is important to Nicholas and should continue, and we agree that a healthy relationship between a child and that child’s grandparents is important to the child.
Based on his evaluations and observations, Dr. Schneider had concluded that the mother is best able to assure and promote a continuing relationship between Nicholas and the other parent.

(Slip Op. at pp. 5-7.) Thus the court based its decision on Dr. Schneider’s opinion that mother would most likely encourage a relationship between Nicholas and his father and grandparents, without finding any evidence that father was not a fit parent or was neglecting his duty as primary caretaker.

Our scope of review in custody matters is broad; however, we may not reverse a trial court’s decision absent an abuse of discretion. Dolan v. Dolan, 378 Pa.Super. 321, 548 A.2d 632 (1988). We will interfere with a custody decision only where the trial court’s judgment is “manifestly unreasonable as shown by the evidence of record.” In re David L.C., 376 Pa.Super. 615, 618, 546 A.2d 694, 695 (1988). We find the trial court abused its discretion in awarding primary physical custody to mother when father has been the primary caretaker for quite some time and no evidence whatsoever was introduced proving father was unfit to continue as primary caretaker. The mother is pursuing new career goals and undoubtedly life style and social changes, all of which, for some time to come, will produce some instability in the child’s environment. Comparing this with his father’s situation, which is stable and predictive of a continuing proper development for the child, an expert’s opinion that the father would not be as flexible as the mother can carry little weight when measuring the child’s best interest. The expert made a value judgment that flexibility is better than firmness, which in today’s world of uncertainty and destabilization of child rearing is very questionable. It is an unacceptable basis, standing alone, for a change of custody. The court’s original finding that the child (adopting the expert’s analysis) is “strong willed but well adjusted, adaptable, relating easily to other people, and a neat kid,” is a description that indicates firmness is both needed and working. To change this situation, when no evidence is presented for a need to change in the best interest of the child, is to proceed by whim rather than fact and to favor the mother over the father without justification. See Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). Nor may appellee prevail in seeking a rehearing under these circumstances under the best interest standard, despite the repudiation of the doctrine that a rehearing may not take place without showing a substantial change of circumstance. Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); also see Jaindl v. Myers, 520 Pa. 147, 553 A.2d 407 (1989), Per Curiam; Dissenting Opinion by Nix, C.J.; Martin v. Martin, 386 Pa.Super. 328, 562 A.2d 1389 (1989). Here, the father was not shown to be unfit and it was not established even by the weakest standard, preponderance of the evidence, that it would be in the child’s best interest to change custody, uproot the child from a wholesome, established environment and to place him into a wholly new environment, unknown and uninvestigated.

Our paramount concern in custody cases must be the child’s best interest. Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988). Discerning the child’s best interest is sometimes difficult, particularly in cases such as this one where both parents love their son and are quite capable of appropriately caring for him. In the instant case, the only appreciable difference cited between mother and father was father tends to be inflexible regarding their custody arrangement, i.e. he wants to stick to the custody Order and is not responsive to suggested unscheduled visitations by mother. This is not sufficient reason, however, to remove Nicholas from his father’s home and place him with his mother who is moving to Florida to finish her degree. We fail to see how this is in Nicholas’s best interest.

Mother claims the court relied on 23 Pa.C.S. § 5303, supra, in awarding her primary custody which was proper. The language of the statute itself is limiting, however, in that it states it is only one factor, among others, to be considered. There are many factors to consider in custody matters and it is error for a court to make its decision on this one factor. While mother’s argument focuses on Dr. Schneider’s testimony that she is the parent most likely to foster and encourage Nicholas’s relationship with the noncustodial parent and maternal grandparents, it is ironic that she is the one who wants to move Nicholas to Florida away from his father and maternal grandparents in Pennsylvania.

In Davidyan v. Davidyan, 229 Pa.Super. 495, 327 A.2d 139 (1974), we quoted the Supreme Court, saying “If all other factors are approximately equal, the Court should prefer a resident to a non-resident guardian and custodian, since the former is more amenable to the Court’s continuous watchful eye, supervision and control.” Id., 229 Pa.Superior Ct. at 500, 327 A.2d at 141 (quoting Shoemaker Appeal, 396 Pa. 378, 382, 152 A.2d 666, 669 (1959)). In the instant case, the court did not have to balance its decision on the fact that mother is leaving the Commonwealth because “all other factors” were not equal — father has been the primary caretaker and there was no evidence introduced to show he should not continue in that role.

Order of June 2, 1989 is vacated; Order of February 10, 1989 is reinstated.

Jurisdiction relinquished.


author: KELLY, Judge:

text:
    574 A.2d 109
    Robert H. GOLDSTEIN, Appellee, v. Jack W. BLUMENFELD and Alan Feingold, Appellants.
    Superior Court of Pennsylvania.
    Submitted Feb. 5, 1990.
    Filed May 16, 1990.

      Leslie Weisse, Philadelphia, for appellants.
    Peter S. Friedman, Jenkintown, for appellee.
    Before KELLY, POPOVICH and CERCONE, JJ.
   KELLY, Judge:

This is an appeal from an order denying appellant’s petition to Open and/or Strike a Judgment entered by Confession, on the grounds of res judicata. We reverse and remand.

Appellant had previously filed a similar petition to Open and/or Strike the Judgment by Confession, which was “denied” by the trial court by order dated March 27, 1989. However, the trial court inscribed on the face of its typed order form an apparently contradictory handwritten direction that “Plaintiff shall file a new assessment of Damages.”

Because of confusion created by the ambiguity in the trial court’s initial ruling, appellants filed another Petition to Open and/or Strike the confessed judgment after appellee submitted an updated assessment of damages which included interest accrued to that point, rather than taking a direct appeal from that order. The second petition was denied on res judicata grounds.

We find that the handwritten emendation of the printed form must be construed as having opened the judgment for the limited purpose of re-assessing damages. When written and printed portions of the same document are repugnant, printed clauses yield to written clauses, as the written clause presumably evinces the deliberate expression of the parties true intent. Cf. Woylek v. Benjamin Coal Co., 300 Pa.Super. 397, 402-03, 446 A.2d 914, 916 (1982). Consequently, we find that the emendation effectively opened the prior judgment, and that the trial court erred in denying the second petition on res judicata grounds. We therefore vacate the order denying the second petition.

On remand, the trial court is in no way barred from denying the petition upon the same grounds it intended to deny the first petition. If it does so, appellant may then appeal such an order to this Court, and thereby place the parties in precisely the same position the parties would have been, but for the problematic handwritten emendation of the original order which purported to deny the petition to open, while permitting a reassessment of damages.

Order vacated. Case remanded. Jurisdiction relinquished.

CERCONE, J., concurs in the result.


author: MONTEMURO, Judge: DEL SOLE, Judge,

text:
    574 A.2d 604
    GAF CORPORATION, Appellant, v. David CATHCART and Thelma Cathcart and Keene Industrial Insulation Southern Asbestos, Johns-Manville, RaybestosManhattan, Celotex Corp., Owens Corning, Pittsburgh Corning, Pabco Industrial Products Division H K Porter, Eagle-Picher Industries, Inc., Armstrong World Industries, Owens-Illinois, and Fibreboard Corp., Henry Albert, et al., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1990.
    Filed March 27, 1990.
    Reargument Denied June 4, 1990.

      Stuart J. Agins, Philadelphia, for appellant.
    Robert E. Paul, Philadelphia, for Cathcart, appellees.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

On March 9, 1989, this Court, by a per curiam order, granted the GAF Corporation, appellant herein, permission to appeal from , the interlocutory order of the trial court, denying GAF’s petition for judgment of non pros. The Honorable Sandra Mazer Moss, J., of the Philadelphia Court of Common Pleas, by Order dated November 21, 1988, certified that the order denying GAF’s petition for judgment of non pros involves controlling questions of law as to which there are substantial grounds for difference of opinion. Although the trial court emphasized a single question of law in its November 21, 1988, Order, this Court granted GAF permission to appeal without limiting the appeal to one or more questions presented in GAF’s petition. See Pa.R.A.P. 1321. Accordingly, we will now review the trial court’s denial of the non pros petition filed by GAF on the merits.

The facts and procedural history of this matter are well known to this Court, and appear in detail in our Opinion in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). On February 6, 1976, David and Thelma Cathcart brought suit against thirty-one defendants, including GAF, by filing a Writ of Summons. By the end of February of 1976, the Cathcarts’ case was one of forty-five asbestos cases filed in the Philadelphia Court of Common Pleas by the firm of Shein and Brookman, P.A. All of these forty-five cases were subsequently assigned to the Honorable Harry Takiff for all purposes. During February of 1976, the Cathcarts petitioned to consolidate the forty-five cases for the purposes of service, discovery, and trial. This petition was denied. As the April 30, 1981, Opinion of Judge Takiff recounts, a preliminary conference regarding these cases was held on May 19, 1976. During this conference, in which no less than twenty-two defense attorneys participated, issues concerning procedure, service of process, jurisdiction, and discovery were discussed. It was clearly recognized by the attorneys present at the preliminary conference, as well as the trial court, that many of the defense attorneys were at the conference “informally” because of the fact that their clients had never been properly served.

More conferences were held by Judge Takiff during June and July of 1976, and it was agreed that plaintiffs’ counsel would file preliminary interrogatories to aid in the preparation of Complaints. These interrogatories were filed on July 29, 1976, and sought general information concerning each defendant’s involvement in the asbestos industry. Throughout this time, it is undisputed that the plaintiffs’ attorneys were struggling with the problem of effecting service upon the defendants for all of the forty-five cases being handled by Judge Takiff. To this end, a petition was filed on July 13, 1976, for leave to serve by registered mail, a method of service which would have minimized the Sheriff’s costs incident to the service of Writs. At this point in time, the Cathcarts’ 1976 action had not been formally served on any of the named defendants. While the petition for leave to serve by registered mail was pending, GAF voluntarily accepted service on August 11, 1976. The petition to serve by registered mail was subsequently denied. Three other defendants also accepted service: Owens-Corning, Janos Asbestos, and Pars Manufacturing. GAF was also one of fifteen defendants which answered the plaintiffs’ preliminary interrogatories.

During 1977, Judge Takiff entered various pre-trial orders in an attempt to streamline the discovery process for all of the asbestos cases instituted by Shein and Brookman, P.A. The first of these orders, dated July 21, 1977, “addressed a number of difficulties created by this massive, multi-party group of cases including, inter alia, the formation of committees of plaintiffs’ and defendants’ counsel, the problem of cross-claims between and among defendants, the need for filing a jury trial demand, and the methods by which repetitive medical examinations of the plaintiffs would be minimized and medical records exchanged.” Op. of Trial Court, April 30, 1981, at 14. This July 21, 1977, Order, was entered on the Cathcart docket. We note that in January of 1978, one of the defendants in the Cathcart case which had accepted service of process, Pars, ruled the Cathcarts to file a complaint in the 1976 summons action, and when the Cathcarts failed to do so, Pars obtained a judgment of non pros.

In September of 1978, Shein and Brookman, P.A., instituted a second lawsuit, on behalf of one hundred and nineteen plaintiffs, at a new court term and number, which was filed and served upon defendants as a multi-party complaint. The Cathcarts were a part of this second lawsuit, and there is no dispute that their cause of action in the 1978 action was identical to the cause of action underlying their 1976 action commenced by a Writ of Summons. The 1978 action included thirty-one defendants, sixteen of which had been named in the 1976 action. GAF was one of these defendants. The other fifteen defendants were named for the first time. A complaint was filed in the 1976 summons action in January of 1981.

Instantly, our focus is necessarily upon the 1976 action. However, we note that in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), we affirmed summary judgment which had been granted in the 1978 case in favor of all defendants as to Thelma Cathcart’s claim for emotional distress, due to the absence of physical manifestations of disease. We also affirmed summary judgment which had been entered in the 1978 case in favor of all defendants, except GAF, Certain-Teed, and UNARCO , as to David Cathcart’s claims and Thelma Cathcart’s consortium claims. The summary judgment granted in favor of the defendants in the 1978 action was based upon the bar of the statute of limitations.

Additionally, in our decision in Cathcart, supra, we affirmed the entry of judgments of non pros entered in favor of all named defendants in the 1976 action except those defendants which had been made parties to the 1976 action by accepting service or by otherwise submitting to the jurisdiction of the court: GAF, Owens-Corning, Amatex, UNARCO, and Certain-Teed. Most of this Court’s Opinion in Cathcart involves a discussion of the statute of limitations defense, as it applied to the 1978 action. As an initial issue, we agreed with the trial court’s determination that as to those defendants which had not accepted service in the 1976 action or otherwise submitted to the jurisdiction of the court, these defendants had not waived their right to challenge the court’s jurisdiction. The non pros judgments entered as to the 1976 summons action were affirmed with little discussion because, although the Cathcarts had appealed the non pros judgments, they failed to challenge the factual findings rendered by the trial court in support of these judgments:

(1) that appellants [Cathcarts] had delayed unreasonably in prosecuting their case by not taking any action from the time that they initiated suit in February, 1976, until they attempted to serve copies of a complaint in January, 1981, a period of almost five years; (2) that appellants’ [Cathcarts’] delay “was the result of an effort to save costs” and was “inexcusable”; and (3) that the twenty-five defendants had been prejudiced____

Cathcart, supra at 132-133, 471 A.2d at 498.

The order which we now review involves the trial court’s refusal to enter a non pros judgment in the 1976 summons action in favor' of GAF. “A court properly enters a judgment of non pros when a party to the proceedings has shown a want of due diligence by failing to proceed with reasonable promptitude, when there has been no compelling reason for the delay, and when the delay has caused some prejudice to the adverse party.” Id. (citation omitted). The trial court refused to enter the non pros judgment in favor of GAF based upon its finding that the Cathcarts had not delayed unreasonably in proceeding with the 1976 action with respect to GAF, as well as UNARCO, Certain-Teed, Amatex, and Owens-Corning. Although we do not approve of all of the actions undertaken by counsel for the Cathcarts in litigating the Cathcarts’ causes of action against GAF, under the unique circumstances of this case, and in view of the complexity of the administration of asbestos litigation in the trial court, we affirm the denial of GAF’s petition for judgment of non pros.

Certainly, one of the most important factors in the trial court’s determination in this matter concerned GAF’s acceptance of service in the 1976 action. Undoubtedly, with the acceptance of the service, GAF knew that the Cathcarts were pursuing a legal suit against GAF arising from asbestos exposure. GAF contends that the Cathcarts should be equitably estopped from asserting GAF’s acceptance of service, because GAF accepted service only after counsel for the Cathcarts represented that proper service would be effected upon all defendants whether they voluntarily agreed to accept service or not. The trial court, in an Opinion filed March 12, 1982, responded to GAF’s equitable estoppel argument as follows:

... statements by plaintiff’s counsel were but declarations indicating plaintiff’s intention to attempt to effect service in some manner upon all defendants named in the 1976 action, and cannot be construed as representations designed to induce reliance. To avoid the expense service would entail, plaintiff sought cooperation from the defense bar. Owens-Corning Fiberglass, Amatex, Certain-Teed [sic], Janos and Pars Manufacturing voluntarily accepted service or entered appearances at this time and GAF did likewise. GAF now regrets its cooperation but the occasion for this cooperation is not characterized by either intentional misrepresentation or fraud, according to our reading of the submitted materials, and we decline to invoke the doctrine of estoppel under these circumstances.

Op. of Trial Court, March 12, 1982, at 4.

We agree that estoppel is not properly applied under the circumstances of this case. The history of the correspondence and court discussions concerning service of process in the 1976 action reveals a continuing struggle on the part of plaintiffs’ counsel to get the job done. As we have earlier noted, plaintiffs’ counsel filed two motions in an effort to curb the cost of service of process and to avoid serving the defendants in the usual manner. GAF was certainly aware that plaintiffs’ counsel was dragging its feet in the area of proper service of the 1976 Writ of Summons action, and GAF also knew that few of the other defendants named in the Cathcarts’ 1976 suit had agreed to voluntarily accept service. During the time prior to GAF’s acceptance of the service, plaintiffs’ did no more than represent that cooperation from the defense bar would be appreciated in the area of service, and that the plaintiffs intended to accomplish service in some manner. GAF chose to believe that the plaintiffs would eventually effect service in a timely manner, using a valid method, in the face of obvious indecision and difficulty on the part of plaintiffs’ counsel in effecting service and only general promises that eventually service would be completed. Based upon the history of the case at the time GAF accepted service of process, we find no error in the trial court’s determination that the plaintiffs’ representations were not “designed to induce reliance.” More importantly, we note that there are two essential elements of equitable estoppel: inducement and justifiable reliance on that inducement. See Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (1983); Cosner v. United Penn Bank, 358 Pa.Super. 484, 517 A.2d 1337 (1986). We are convinced that, based upon plaintiffs’ failure to promptly effect service in the 1976 action and the plaintiffs’ motions requesting relief from the administrative and monetary burden of serving the defendants in the usual manner for the numerous cases instituted by Shein and Brookman, P.A., GAF could not have reasonably expected that no problems in the service of the remaining defendants would arise. Consequently, our starting point in evaluating the merits of GAF’s non pros motion is that GAF voluntarily and validly accepted service of process in the 1976 action.

. [3,4] We recognize that in the 1976 summons action, the Cathcarts failed to file a Complaint until January of 1981. If this span of time was devoid of significant activity on the part of the plaintiffs in prosecuting their causes of action against GAF, this would be a different case. However, as Judge Takiff emphasized in his Opinion of April 30, 1981, throughout 1976 and 1977, plaintiffs counsel participated in numerous conferences and meetings which necessarily involved all of the asbestos cases instituted by Shein and Brookman, P.A. In 1978, plaintiffs, represented by Shein and Brookman, P.A., instituted a second lawsuit. In this 1978 action, the Cathcarts asserted the same cause of action which served as the basis of their 1976 summons action against GAF. We find no error in the trial court’s conclusion that, in the context of considering a motion for judgment of non pros, the 1978 action instituted by the Cathcarts revealed that the Cathcarts were continuing to pursue their cause of action against GAF, and not abandoning it. Following the filing of the 1978 action, extensive pre-trial pleading and discovery occurred. In September of 1980, all plaintiffs, including the Cathcarts, submitted a Petition to Consolidate the 1976 action and the 1978 action under one term and number. This petition was later withdrawn and resubmitted. On June 4, 1981, the trial court granted consolidation of the two cases as to all defendants who remained in the case including GAF.

In view of all of the foregoing, we find no error in the trial court’s finding that the Cathcarts’ did not show a want of due diligence or an unwillingness to proceed with their cause of action against GAF. During the years between the filing of the summons in 1976 and the filing of the complaint in 1981, the Cathcarts, along with the other plaintiffs represented by Shein and Brookman, P.A., pursued their causes of action by participating in meetings, discovery, motions, and so on. A non pros judgment is premised upon the equitable principle of laches. Accordingly, we find no error in the court’s determination that despite the complex and at times “inexplicable” procedural steps undertaken by counsel for the Cathcarts, the equities fell on the side of the Cathcarts in view of the fact that GAF had been validly served in the 1976 action and, thereafter, was fully aware of the efforts of Cathcarts’ counsel, Shein and Brookman, P.C., to successfully pursue this matter, including the refiling of the same causes of action against GAF in the 1978 lawsuit.

We affirm the order denying GAF’s petition for judgment of non pros.

Order affirmed.

DEL SOLE, J., files a dissenting statement.

DEL SOLE, Judge,

dissenting.

While I believe that my colleagues in the Majority have carefully and correctly analyzed the factual situation surrounding this case, I must dissent from the decision to affirm the trial court’s order. Rather, I would dismiss this appeal as having been improvidently granted. I am disturbed by the fact that this court is now being asked to review opinions and orders that were entered in 1981. The entire thrust of the Appellant’s claim deals with the determination of Judge Takiff entered on April 30, 1981 which denied GAF’s motion for entry of judgment of non pros. Through the legerdemain of having a different common pleas court judge, seven years later, certify the issues for possible appellate review on the theory that there are “controlling questions of law as to which there are substantial grounds for difference of opinion and that an immediate appeal from this order may materially advance the ultimate determination of this matter and forty-six other cases” (Judge Moss’ Order of November 21, 1988) strains credibility.

The issues being raised by GAF in this case, at this time, were decided by the trial court adversely to GAF in 1981. The case should have proceeded to trial. There is no excuse for this matter being delayed this long and, further, I believe that it was inappropriate for the trial court in 1988 to certify as a controlling question an issue that was decided in 1981. How one can argue that an immediate appeal seven years later of such a matter can advance the ultimate disposition of the case is beyond me. Along the same lines I believe that our court erred in granting permission to appeal this case and as such, I believe we should dismiss the appeal as having been improvidently granted.

At oral argument counsel argued that dismissing the appeal would only delay the possible recovery of the injured parties who have waited so long. The wait in this case is not because the courts did not decide the issue. It is because the parties did not accept the decision that was made in 1981, proceed to trial, and then, if an adverse judgment had been entered, file an appeal and raise the issue. I would dismiss the appeal as having been improvidently granted.

      . The first asbestos case filed by the firm of Shein and Brookman, P.A., was Virginia Dellamo, Admx., et al. v. Keene Corp. et al. As Judge Takiff explains in his Opinion of April 30, 1981: "Numerous defendants were served and/or caused appearances to be entered on their behalf. Since it was the “lead” case, the Court and the parties accepted the use of the Dellamo caption in the drafting of Interrogatories, Motions, Orders, etc. which are general in nature and/or are common to a large number of cases.” Op. of Trial Court, April 30, 1981, at 9.

      . Janos Asbestos was not named in the 1978 lawsuit.

      . In the 1978 action, the trial court had denied GAF’s motion for summary judgment. GAF did not challenge this ruling in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), which, in any event, was a nonappealable interlocutory order.

      . We recognize that in Cathcart v. Keen Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), GAF attempted to argue that the trial court erred in refusing its motion for non pros judgment. This Court declined to review the issue at that time, as it was not a final order.

      . We note that this conclusion alone renders much of the case law cited by GAF inapplicable. The brief filed for Amici Curiae states the obvious when it reminds this Court that our decision “is limited to the facts and circumstances of the Cathcart case only." Brief for Amici Curiae at 20. When GAF accepted service in the 1976 action, GAF was aware of the pending lawsuit, and plaintiffs could then formulate and file a complaint at some time in the future. “If any harm is incurred by the defendant as a result of such delay [in the filing of the complaint], it results from his own failure to employ the weapon given him ... to force the plaintiff to file the Complaint." Galbraith v. Gahagen, 415 Pa. 500, 204 A.2d 251 (1964). Thus, the Supreme Court’s decision in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and its progeny, have little application to this matter between GAF and the Cathcarts, as that line of cases comes into play when a writ of summons has been filed by the plaintiff who then neglects to take all of the necessary procedural steps to effectuate service of the writ upon the defendant. See Watts v. Owens-Corning Fiberglas Corp., 353 Pa.Super. 267, 509 A.2d 1268 (1986); Hoeke v. Mercy Hospital of Pittsburgh, 254 Pa.Super. 520, 386 A.2d 71 (1978).

      . We expressly disapprove of the practice followed by counsel for the Cathcarts in instituting the 1978 action, wherein the Cathcarts raised causes of action against GAF identical to the causes of action pending in the 1976 summon action, but used a new court term and number. Although we know of no rule which required the Cathcarts to file to the original writ and number, we find the failure to do so confusing and misleading to the trial court and to opposing counsel. See Beck v. Minestrella, 264 Pa.Super. 609, 401 A.2d 762 (1979). Our statements in this regard, however, do not affect our conclusion that the Cathcarts, from 1976 to the filing of the complaint in the 1976 summons action, were prosecuting their cause of action against GAF with reasonable promptitude so as to avoid the entry of a non pros judgment. Further, as we have noted, as to the equities of this particular case, once GAF was effectively served with the 1976 summons, GAF had the option to invoke the remedies available to a defendant who believes that too much time has gone by without the filing of a complaint. See Pa.R.C.P. 1037(a).


text:
    574 A.2d 610
    COMMONWEALTH of Pennsylvania v. Robert Edward McLAUGHLIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1990.
    Filed March 29, 1990.
    Reargument Denied June 7, 1990.

      James J. McHugh and Christopher McCabe, Philadelphia, for appellant.
    Robert F. Hawk, Asst. Dist. Atty., Butler, for Com.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellant Robert Edward McLaughlin appeals from judgment of sentence entered March 6, 1989. The facts which gave rise to this case may be summarized as follows.

On June 19, 1988, at approximately 12:00 noon, appellant arrived at the Millvale Sportsman’s Club intending to do some skeet shooting. While waiting to shoot, appellant went to the bar where he proceeded to drink numerous glasses of beer and shots of whiskey. At about 3:00, appellant left the club without shooting skeet. Owing to his drunken condition, appellant remembers only bits and pieces of what transpired next.

A short time later, appellant entered another tavern, the Plane View Inn, where he drank two more shots of whiskey and two more beers. He then went out to his truck and returned to the bar with his shotgun, which he fired repeatedly, killing one person and injuring three others. The next morning, after somehow leaving the bar and driving home unharmed, appellant awoke to read of the shootings at the Plane View Inn, triggering in him a recollection that he was somehow involved. Appellant first visited his parish priest and then turned himself in to the police. He subsequently entered into a negotiated plea bargain without a recommended sentence, pleading guilty to third degree murder, three counts of aggravated assault, recklessly endange ring another person and criminal mischief. He was sentenced to a term of ten to twenty years on the murder charge, three terms of five to ten years for aggravated assault, one to two years for reckless endangerment and six months to one year for criminal ■ mischief, with the first three counts running consecutive to each other and the other three counts running concurrently with the first three. Additionally, restitution was ordered in the following amounts: $339.88 to Kenneth Snyder, $400 to Kim Coates, $1,000 to Chester and Emma Michalski and indeterminate amounts to Michael Connolly and Jo Dene Wyatt.

On appeal, appellant advances ten arguments concerning his sentencing, which may be grouped into three major claims: 1) the impropriety of an off-the-record, in-chambers conference conducted by the court just prior to the sentencing hearing but outside the presence of appellant; 2) the ineffectiveness of appellant’s counsel in failing to object to statements in the presentence investigation made by persons other than the victims of the crimes and considered by the court; and 3) the illegality and manifest excessiveness of the sentence imposed.

Immediately prior to appellant’s sentencing hearing, the court held an in-chambers conference with appellant’s trial counsel, H. David Rothman, and the assistant district attorney, but without appellant. Appellant claims this conference violated his confrontation and due process rights, as well as his right to be present pursuant to Pa.R.Crim.P. 1117, Presence of the Defendant. As no transcript was made of this meeting, appellant submitted a statement in lieu thereof, pursuant to Pa.R.A.P. 1923, Statement in Absence of Transcript. In response, the trial court submitted an Order setting forth its recollection of the conference. The Order provides, in pertinent part:

[A] brief meeting in the Court’s Chambers prior to sentencing, the Court, Defense Counsel and Assistant District Attorney briefly discussed certain mandatory provisions that would be necessary to take a count [sic] of in regard to the sentencing of [appellant].
Further, the Court indicated that the Court was thinking in terms of a minimum of twenty (20) years and a maximum of forty (40) years, but had not made any statement to the effect that he had to give [appellant] that sentence. On the contrary, the Court did not make its mind up in regard to the minimum and maximum finally until after the open Court sentencing procedure.

(Order by Brydon, J., 9/5/89.)

Initially, we must note the inapplicability of Pa.R. A.P. 1923 to the instant case. The Rule provides that “[i]f no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection.” (Emphasis added.) We do not believe the informal conference had the import of a trial proceeding which appellant would give it and which would make Pa.R.A.P. 1923 applicable. Nevertheless, appellant’s statement of his trial counsel’s recollection of the matters discussed, as well as the trial court’s account, are now part of the record and will be considered on appeal.

This Court recognizes the well-established principle “that the time of sentencing is a ‘critical stage’ in criminal proceedings, and it is constitutionally required that both the defendant and his counsel be present. See Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 236 A.2d 781 (1968).” Commonwealth v. Morales, 444 Pa. 388, 393, 282 A.2d 391, 392 (1971). While such a conference conceivably could be a part of the formal sentencing proceeding, and thus a “critical stage” requiring appellant’s presence, we are not persuaded by our examination of the record that the in-chambers conference was part of the sentencing proceedings in the case sub judice, and we decline now to make the determination that every conference and every conversation occurring between the sentencing court and opposing counsel prior to a formal sentencing hearing is part and parcel of “time of sentencing.”

It is true the appearance of fairness and reliability in a proceeding is closely related to assuring the actual fairness and reliability of the proceeding as a means of maintaining confidence in the courts as instruments of justice. Of paramount importance, however, is the actual fairness and reliability of the proceeding, free from all unnecessary stultification. In the instant case, the trial court merely indicated to counsel its initial thoughts regarding sentence and certain mandatory sentencing provisions, reserving its actual determination for the sentencing hearing. Brief, informal discussions of this nature are a mere courtesy to counsel, allowing them to craft the evidence presented at the sentencing hearing more carefully and narrowly and to establish the parameters within which they may focus their arguments in the interests of their clients and justice. There is simply no requirement that all discussions between the court and counsel, having any remote connection to prior and/or subsequent court proceedings, be held in open court in the presence of the defendant. Had the court, in conference, gone beyond establishing the charges and mandatory sentences as a matter of clarification for all concerned and applied the considerations which enter into a determination of sentence, all of which must be done in the presence of the defendant to assure that improper matters were not considered and defendant could have a voice in those considerations, then there would have been error. We find that not to be the case here.

For the reasons enunciated above, our holding on this issue does not contradict the statement that “everything which occurs in respect to the sentencing proceeding must be of record; this means in open court.” Commonwealth v. Ragoli, 362 Pa.Super. 390, 398, 524 A.2d 933, 937 (1987) (emphasis in original). The discussion complained of by appellant was not part of the sentencing proceeding, and we find this claim without merit.

Appellant argues meaningful appellate review of the above claim is impossible in the absence of a transcript or its equivalent for the in-chambers conference. Again, this issue turns on a determination of the nature of the conference. A defendant’s right to appeal requires “a full transcript or other equivalent picture of the trial proceedings.” Commonwealth v. Shields, 477 Pa. 105, 108, 383 A.2d 844, 846 (1978) (emphasis added). See also Commonwealth v. Burrows, 379 Pa.Super. 548, 550 A.2d 787 (1988) (application of Pa.R.A.P. 1923, where trial transcript unavailable). In view of our determination, supra, the conference did not constitute a sentencing proceeding, trial proceeding, or any part thereof, an analysis of the statements filed in absence of transcript pursuant to Pa.R.A.P. 1923 is not necessary. See Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963) (allowing alternative methods of reporting trial proceedings).

Appellant next raises two ineffective assistance of counsel arguments.

A successful claim of counsel’s ineffectiveness must address three inquiries: (1) whether the underlying claim is of arguable merit; (2) whether counsel had any reasonable basis for his chosen course of conduct; and (3) whether the course of conduct worked to the client’s prejudice, i.e., had an adverse effect on the outcome of the proceedings. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). The law presumes that counsel is effective and the burden of establishing ineffective assistance is on the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

Commonwealth v. Bruner, 388 Pa.Super. 82, 104, 564 A.2d 1277, 1287 (1989).

Appellant first argues his trial counsel was ineffective for failing to object to inflammatory, prejudicial and legally improper material contained in the presentence report. Specifically, appellant finds objectionable 13 victim impact statements or personal letters submitted by persons who were nonvictims to appellant’s crimes.

The relevant portion of the Sentencing Code states:

Contents of pre-sentence report
The pre-sentence report shall include a summary of the circumstances attending the commission of the crime, the history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation and personal habits of the defendant, and any other matters that the person preparing the report deems relevant or that the court directs be included.

42 Pa.C.S. § 9732 (emphasis added).

Following enactment of the Basic Bill of Rights for Victims, victims of crime were given the following rights:

(1) To have included in any pre-sentence report information concerning the effect that the crime committed by the defendant has had upon the victim; including any physical or psychological harm or financial loss suffered by the victim, to the extent such information is available from the victim or other sources.

71 P.S. § 180-9.3(1).

In view of these statutes, this Court will not conclude the inclusion in the presentence report of statements and personal letters from family members of one of the victims was improper. See footnote 6, supra. We are left only to consider the alleged inflammatory and prejudicial nature of the materials.

Appellant makes much of the vitriolic and even hateful comments directed at him by the authors of the statements. There is no doubt these statements were available to, and read by, the sentencing court. The court stated:

I had pre-sentence reports to go over and I had many letters and feelings which the victims tried to describe to the Court how this affected their lives and what their feelings are and what they feel the Court should do. The Court does not in any way fault whatever feelings they have. These are the type of things that create very severe emotional turmoil in any one and for the families of all those people, especially the young boy that passed away. There’s no way you can ever say we know how you feel. Only God and you know how you feel and for those of you that survived and have the handicaps you have, you’ll carry that with you everyday.

(N.T., 3/3/89, pp. 22-23.)

What appellant does not allege, and our examination of the record does not evidence, is how the court considered an impermissible factor or gave undue weight to this aspect of the report.

Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself.
Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.

Commonwealth v. Devers, 519 Pa. 88, 98, 546 A.2d 12, 18 (1988).

Following Devers, we must accept the court’s statement that it gave the materials contained in the presentence report only the weight to which they were entitled. Inflammatory statements, while having a prejudicial effect on lay people as jurors, are unlikely to have a significant effect on an experienced trial judge as here. Since no evidence has been submitted as to the unwarranted influence of those statements on the trial judge, and as discussed below, the sentence appears to be reasonable in relation to the seriousness of the charges, we will not infer a prejudicial effect.

Appellant’s second ineffectiveness claim concerns the failure of trial counsel to inform appellant of the objectionable materials contained in the presentence report and the statements made by the sentencing court during the in-chambers conference. We also find this claim without merit.

While the presentence report was made available to appellant’s counsel as required by Pa.R.Crim.P. 1404(a)(2), “[Rule] 1404 does not require that a defendant be permitted to examine personally the report for inaccuracies.” Commonwealth v. Smillie, 316 Pa.Super. 83, 91, 462 A.2d 804, 808 (1983). We do not find this omission prejudiced appellant, thereby preventing him from fully exercising his right of allocution provided by Pa.R.Crim.P. 1405(a). Both appellant and his defense counsel delivered statements to the sentencing court, with appellant reiterating his extreme sorrow for all he had done and his lack of malicious intent or even actual knowledge of the events which transpired. Defense counsel then highlighted appellant’s age (52), large family, lack of criminal record, alcohol problem and the “sense of balance and compassion” on the part of the district attorney in dismissing a count of attempted murder and not going forward with a first degree murder charge (N.T., 3/3/89, pp. 16-17; 19-21). The “objectionable” material was the “inflammatory statements” by victims and their families having to do with the consequences of appellant’s acts, and as such presented no matters capable of refutation or error correction by appellant. Not showing these statements to appellant was a decision which trial counsel could reasonably make without prejudice to appellant. Appellant and trial counsel properly focused, in the allocution phase, on their only possible response to this material, that is, his age, lack of prior criminal record and responsibility to his family. As to the in-chambers discussion, the extent to which counsel felt it necessary to discuss with appellant the parameters related by the trial court in approaching the sentence was within his discretion since these would be made evident in open court during sentencing, permitting response by trial counsel and appellant. Therefore, this claim of ineffectiveness is also without merit.

Appellant’s remaining six claims deal with the legality of the sentence imposed. It is well established sentencing is a matter within the sound discretion of the trial court and will not be disturbed unless it is outside the statutory limits or manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Semuta, 386 Pa.Super. 254, 562 A.2d 894 (1989). Neither situation exists here to warrant disturbance of a proper sentence.

Prior to sentencing, the Commonwealth filed notice of its intention to proceed under the provisions of 42 Pa.C.S. § 9712(b), Proof at sentencing, requiring mandatory minimum sentences of at least five years for the commission of third degree murder and aggravated assault while visibly possessing a firearm. Under 42 Pa.C.S. § 9712(c), Authority of court in sentencing, the court had no authority to impose any lesser sentence.

In determining the applicability of the mandatory minimum sentencing provisions, the court “shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.” 42 Pa.C.S. § 9712(b). Since appellant pleaded guilty to the charges, no trial took place. The Supreme Court recently found the fact of a guilty plea to be of “vital significance.”

A guilty plea is an acknowledgement by a defendant that he participated in the commission of certain acts with a criminal intent; he acknowledges the existence of facts and intent; facts he acknowledges may or may not be within the powers of the Commonwealth to prove.

Commonwealth v. Ryan, 523. Pa. 547, 551, 568 A.2d 179, 181 (1990), quoting Commonwealth v. Anthony, 504 Pa. 551, 558, 475 A.2d 1303, 1307 (1984).

The plea of guilty admits the facts and intent. It is a confession not only of what the Commonwealth might prove, but also of what the defendant knows to have happened. Id. It is well established the defendant who pleads guilty is there to voluntarily acknowledge the facts presented by the Commonwealth and his responsibility for them, and will accept the legal meaning and legal consequence of what he has done. Id. The sentencing court had ample facts before it, therefore, to find the mandatory minimum sentencing provisions applicable, and appellant cannot seriously suggest otherwise. Indeed, the imposition of the mandatory mínimums could be considered lenient in light of the seriousness of the charges and the much higher minimum sentences which could have legally been imposed.

Appellant next argues the court rendered an illegal sentence in imposing four mandatory minimum sentences for crimes arising out of a single criminal episode involving visible possession of a firearm. He claims the sentence violates the legislative intent behind the mandatory minimum sentencing provisions and the double jeopardy clause of the fifth amendment of the United States Constitution.

Appellant concedes multiple sentences for separate injuries to different individuals arising from a single criminal act are permissible. Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984); Commonwealth v. Yates, 386 Pa.Super. 282, 562 A.2d 908 (1989); also see Commonwealth v. DeSumma, 522 Pa. 36, 43, 559 A.2d 521, 523 (1989) (“[T]he number of offenses depends on the number of victims rather than on the number of acts committed by a defendant.”). We find no distinction to be made in the instant case for multiple mandatory minimum sentences, irrespective of 42 Pa.C.S. § 9716, Two or more mandatory minimum sentences applicable. “Where two or more sections requiring mandatory minimum sentences are applicable, the court shall be bound by that section requiring the greater penalty.” 42 Pa.C.S. § 9716. This is not a case in which two mandatory sentences apply to a single crime, but one in which there are several crimes (or victims), each of which calls for a separate mandatory sentence. Each of the sentences imposed upon appellant was within the standard range of the sentencing guidelines and could have been applied even absent the mandatory sentence provision. Additionally, we note that, as the three aggravated assaults to which appellant pled guilty are first degree felonies, the statutory maximum sentence is 20 years for each conviction. Therefore, he was sentenced to just half of the possible 10 years minimum sentence for each of the three counts.

Appellant also claims the court illegally attempted to run the sentences on counts 1, 2 and 3 both consecutively and concurrently, and that the computation of appellant’s aggregate sentence contradicts the judgment of sentence. These claims are without merit.

The court stated the sentence “... is to run consecutive on counts 1, 2 and 3 and the remaining counts shall run concurrent with counts 1, 2 and 3. All of the mandatory aspects of each count shall run concurrently so that the total sentence shall not exceed minimum 20 yrs maximum 40 yrs [sic].” (Judgment of Sentence, Brydon, J., 3/6/89.)

We take this statement to mean the remaining three counts were to run concurrently with the sentence imposed on counts 1, 2 and 3. As counts 1, 2 and 3 had minimum terms of ten, five and five years, respectively, and maximum terms of twenty, ten and ten years, respectively, for a total term of twenty to forty years imprisonment, we find no error in the computation or imposition of appellant’s sentence.

Appellant next argues the court imposed an illegal sentence of restitution. The applicable statutory provision for restitution directs the court: “(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.” 18 Pa.C.S. § 1106(c)(1), Authority of sentencing court.

As part of sentence, restitution is within the discretion of the sentencing court but must be supported by the record, and the court must determine the loss or damages resulting from the defendant’s conduct, the amount of compensation the defendant can afford to pay and how such amount shall be paid. Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982). An award for restitution should not be speculative or excessive. Id. There is no requirement the reasons for ordering restitution be set forth at sentencing.

Having examined the presentence report, we find the restitution awards were appropriate, and although two awards were “to be determined,” they were not speculative. The undetermined awards merely await a subsequent determination of specific damages. See 18 Pa.C.S. § 1106(c)(3). For this reason, appellant’s claim is without merit.

Appellant’s final claim is that the court imposed a manifestly excessive sentence. An analysis of sentencing discretion, however, requires us to determine if there appears to be a substantial question as to the appropriateness of the sentence, which would permit us to accept the appeal as to this issue.

“[T]he appearance of a substantial question determines whether this court may grant allowance of appeal of the discretionary aspects of sentence, while the sound discretion of the court determines whether the court will grant review.” Commonwealth v. Hall, 382 Pa.Super. 6, 14-15, 554 A.2d 919, 923-24 (1989); 42 Pa.C.S. § 9781(b) Appellate review of sentence. Although appellant has provided a statement of reasons relied upon for appeal, we must also consider the Supreme Court’s observation, in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that it is necessary to “make a careful distinction between ‘questions relating to the discretionary aspects of the sentence’ and ‘the issue whether the appellate court should exercise its discretion to reach such question.’ Pa.R.A.P. 902.” Id., 513 Pa. at 513, 522 A.2d 19. The Court in Tuladziecki went on to note:

It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent that the legislature has provided a thorough, though not exhaustive, outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercises its discretion.

Id., 513 Pa. at 515, 522 A.2d at 20.

From our review of the record in this case, we find the court had before it at sentencing all testimony in the case, arguments of counsel, appellant's record and a presentence investigation report. Such information constitutes the relevant and material information required to impose a reasonable sentence. Devers, supra.

We find appellant has not shown actions by the sentencing court inconsistent with the sentencing code or contrary to the fundamental norms underlying the sentencing process, and therefore, he has not presented a substantial question for review. Accordingly, this Court will not review further appellant’s sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2502(c).

      . 18 Pa.C.S. § 2702(a)(1).

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 3304.

      . The Commonwealth filed a statement in absence of transcript, in which it declined to describe the events which took place at the in-chambers conference due to its belief Rule 1923 is inapplicable to this case.

      . Appellant alleges these thirteen items comprised thirty pages, of a total of 38 pages, in that section of the presentence report dealing with the impact of appellant’s crimes. However, our examination of the report indicates all of the victim’s impact statements, not just the 13 to which appellant objects, comprise 18 pages of a report 52 total pages in length. The provision that "to the extent such information is available from the victim or other sources” (emphasis added) would permit family members to provide information. Absent a showing of abuse, we must find the sentencing court gave proper consideration to the presentence report as a whole.