author: JOHNSON, Judge:

text:
    462 A.2d 1380
    Donald E. PULLIUM, Appellant, v. LAUREL SCHOOL DISTRICT and Thomas Russell Brown. LAUREL SCHOOL DISTRICT, v. Donald E. PULLIUM, Appellant. LAUREL SCHOOL DISTRICT, Appellant, v. Donald E. PULLIUM.
    Superior Court of Pennsylvania.
    Submitted April 12, 1982.
    Filed July 15, 1983.

      Gordon C. Post, Jr., New Castle, for appellant (Nos. 1106 and 634) and for appellee (No. 679).
    Charles W. Garbett, Ellwood City, for appellant (No. 679) and for appellee (Nos. 1106 and 634).
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

These consolidated appeals arise from an automobile/school bus collision which occurred February 16, 1977. We shall discuss the appeals at Nos. 634 and 679 Pittsburgh 1981 separately from No. 1106 Pittsburgh, 1980, as the latter appeal arose from a different commencement of suit.

NOS. 634 & 679 PITTSBURGH 1981

On July 22, 1977, Laurel School District (Laurel) initiated a trespass action at No. 571 of 1977 for property damages caused to one of its school buses as a result of a collision with the vehicle operated by Donald E. Pullium (Pullium). The case was referred to compulsory arbitration and, after a hearing, an award for Laurel was rendered for the full amount of damages proved, $2,795.00.

Pullium timely appealed the award to the common pleas court by filing a notice of appeal and (1) paying $150 to the prothonotary for the arbitrators’ fee, (2) paying $46.25 costs accrued and (3) filing an appeal bond in the amount of $46.25. Laurel then filed a Motion to Quash the appeal, which Motion was denied by the trial” court. Laurel’s subsequent appeal to this court from the trial court’s denial of the Motion to Quash was quashed as arising from a nonappealable interlocutory order.

On appeal de novo in the common pleas court, a jury trial was held, resulting in a verdict for Laurel. The verdict was then molded to include delay damages, pursuant to Pa.R.C.P. 238. Pullium’s post-verdict motions for a new trial and judgment n.o.v. were dismissed on June 4, 1981 for his failure to file a brief pursuant to Local Rule 101(8). Laurel’s motion for judgment n.o.v., alleging that Pullium’s appeal from the award of arbitrators was defective, was refused on June 4, 1981. Both parties appealed to this court.

(a) Appeal of Laurel School District (No. 679)

The appeal of Laurel concerns (1) whether the filing of an appeal bond in only the amount of record costs already accrued satisfies statutory requirements for perfecting an appeal from an arbitrators’ award and (2) whether the alleged failure to comply with the statutory requirements concerning appeal bonds requires such an appeal to be quashed.

The applicable statute, 5 P.S. § 71 states:

§ 71. Parties may appeal
Either party may appeal from an award of arbitrators, to the court in which the cause was pending at the time the rule or agreement of reference was entered, under the following rules, regulations and restrictions, viz.:
I. The party appellant, his agent, or attorney, shall make oath or affirmation, that “it is not for the purpose of delay such appeal is entered, but because he firmly believes injustice has been done.”
II. Such party, his agent or attorney, shall pay all the costs that may have accrued in such suit or action.
III. The party, his agent, or attorney, shall enter into the recognizance hereinafter mentioned.
IV. Such appeal shall be entered, and the costs paid, and recognizance filed, within twenty days after the day of the entry of the award of the arbitrators on the docket.
V. In all cases under section 8.1 hereof, any party appealing shall first repay to the county the fees of the members of the board of arbitrators herein provided for, but not exceeding fifty per cent of the amount in controversy. The balance of the arbitrator's fees shall be absorbed and paid by the county. Such fees shall not be taxed as costs or be recoverable in any proceeding. All appeals shall be de novo, (footnote omitted)

Also, 42 P.S. 921 states:

§ 921. Bail absolute in double amount of costs In lieu of bail heretofore required by law, in the case mentioned, the bail in cases of appeal from the judgments of aldermen and justices of the peace, and from the awards of arbitrators, shall be bail absolute, in double the probable amount of costs accrued and likely to accrue in such cases, with one or more sufficient sureties, conditioned for the payment of all costs accrued or that may be legally recovered in such cases against the appellants.

It is well-settled that the statutory requirements for the perfecting of an appeal from an award of arbitrators are jurisdictional. James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 346 A.2d 765 (1975).

Pullium has complied with all requirements for perfecting his appeal except that his recognizance was not filed in double the amount of costs, as required by 42 P.S. § 921.

However, this court will not quash an appeal from an award of arbitrators where there has been substantial compliance with such requirement. Polascik v. Baldwin, 245 Pa.Super. 1, 369 A.2d 263 (1976). In the instant case, Pullium has proceeded in substantial compliance with the requirements for such an appeal.

The usual remedy in a situation such as the instant case would be to remand for the filing of a proper recognizance. See e.g. Hamilton v. Harida, 280 Pa.Super. 45, 421 A.2d 396 (1980); Beth-Allen Sales Co. v. Hartford Ins. Group, 217 Pa.Super. 42, 268 A.2d 203 (1970). However, because Pullium has filed a recognizance, albeit defective for its failure to be in an amount double the probable costs, a remand of the instant case would only serve to further delay the resolution of the instant case. The trial court was correct in its determination not to quash Pullium’s appeal from the award of arbitrators. Although the trial court should have required Pullium to correct the amount of his recognizance, we shall permit Pullium to file an amended recognizance upon remand of the record to the trial court after disposition of the instant appeals.

We hold that the trial court did not err in denying Laurel’s Motion to Quash Pullium’s appeal.

(b) Appeal of Donald E. Pullium (No. 634)

Pullium argues on this appeal that (1) the trial court erred in refusing his Motion to Consolidate the action at No. 571 of 1977 (Laurel v. Pullium) with the action at No. 119 of 1979 (Pullium v. Laurel et al.) and (2) the trial court erred in dismissing his motions for a new trial and judgment n.o.v.

Pullium’s Motion for Consolidation was filed and denied on January 15, 1980. Pullium had initiated his action at No. 119 of 1979 by writ of summons on February 1, 1979. However, no complaint was filed until January 24, 1980. Therefore, the trial court did not err in refusing Pullium’s Motion for Consolidation when it had before it only Pullium’s bare allegations that the two actions were based on the same subject matter. Also, the action at No. 119 of 1979 involved a defendant not a party to the other action. The decision to consolidate actions rests within the discretion of the trial court and is not a matter of right. Trinity Area School District v. Dickson, 223 Pa.Super. 546, 302 A.2d 481 (1973). See also Pa.R.C.P. 213(a). The trial court correctly refused to consolidate the actions.

Pullium also argues that the trial court erred in dismissing his post-verdict motions. The trial court based its dismissal on Pullium’s failure to file a brief, as required by Lawrence County Local Rule 101(8).

Pullium’s allegations in those post-verdict motions are strictly boilerplate. Boilerplate allegations in post-verdict motions will not be considered in passing on whether or not relief should be granted. See Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981). Therefore, the trial court properly dismissed Pullium’s post verdict motions.

NO. 1106 PITTSBURGH 1980

The facts relating to Pullium’s appeal at No. 1106 related to the same automobile/school bus collision as the previous appeals.

Pullium filed a praecipe for writ of summons in trespass on February 1, 1979 and a complaint on January 24, 1980. The complaint alleged, inter alia, that defendants’ negligence caused property damage to Pullium’s vehicle and Pullium suffered “severe and personal injuries, some of which are permanent in nature”, including permanent disfiguration of his face as a result of scarring. Defendants served Pullium with interrogatories on February 12, 1980. On August 25, 1980, defendants filed a Motion for Sanctions pursuant to Pa.R.C.P. 4019 for Pullium’s failure to answer those interrogatories. Although answers to the interrogatories were filed by Pullium on September 2 and October 6, 1980, defendants alleged that those answers were inadequate. On September 17, 1980 the trial court issued the following order:

NOW, September 17, 1980 following hearing on Defendant’s Motion for Sanctions, Court action thereupon is deferred until October 6, 1980, it being further Ordered that Plaintiff on or before said date shall supply Defendant’s Counsel by submission of medical bills, medical reports or other appropriate action, evidence that Plaintiff’s Personal Injury claim is entitled to proceed as not being barred pursuant to the provisions of The Pennsylvania No-Fault Motor Vehicle Insurance Act and in the event Plaintiff fails to comply with this Order, Defendant, upon application to Court, shall be entitled to dismissal of that part of Plaintiff’s Complaint which relates to his Personal Injury Claim.

BY THE COURT

/a/ W.R. Balph, J.

A deposition of Pullium was held on September 19, 1980. Defendants filed a Motion to Dismiss the personal injury claim on October 10, 1980 for Pullium’s failure to submit bills, medical reports or other evidence that would indicate that the personal injury claim met any of the threshold requirements as required under the No-fault Motor Vehicle Insurance Act. Pullium filed an answer to the motion, stating that defendants had been informed of medical bills totalling $738.70. The court dismissed Pullium’s complaint “insofar as it states a claim for personal injury” on October 10, 1980. Pullium’s Motion for Reconsideration was denied and this appeal followed.

Pullium argues that (1) the Order of September 17, 1980 was so vague and imprecise that he was not reasonably informed as to what actions were required of him and (2) the trial court erred in dismissing his personal injury claim.

Although neither party on appeal has challenged the jurisdiction of this court to resolve this matter, it is fundamental that neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980). We shall therefore consider the issue of the appealability of the trial court’s order of October 10, 1980 sua sponte.

This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742. In determining what constitutes a final order we look to a practical rather than technical construction of the order. Bracken v. Bracken, 294 Pa.Super. 371, 439 A.2d 1247 (1982). A final order is an order which either ends the litigation or disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974).

An order dismissing some but not all counts of a multi-count complaint is interlocutory, as appellant has not been put “out of court”. Bracken v. Bracken, supra. Such is the case before us. Pullium requests both personal injury and property damages in his complaint. The order of October 10 dismisses only the personal injury claim. Therefore, Pullium’s claim for injury to his property remains viable; he has not been placed “out of court.”

Therefore the appeal at No. 1106 Pittsburgh 1980 is quashed.

No. 679 Pittsburgh 1981

The order of June 4, 1981 refusing Laurel School District’s motion for judgment n.o.v. is affirmed.

No. 634 Pittsburgh 1981

The order of June 4, 1981 dismissing Donald E. Pullium’s motions for a new trial and judgment n.o.v. is affirmed.

No. 1106 Pittsburgh 1980

The appeal from the order of October 10, 1980 dismissing Donald E. Pullium’s complaint insofar as it states a claim for personal injury is quashed.

      . Neither Pullium nor his counsel appeared before the arbitrators.

      . Laurel School District v. Pullium, 270 Pa.Super. 622, 417 A.2d 783 (1979).

      . The jury verdict determined Pullium to be 65% negligent and Laurel 35% negligent.

      . Repealed April 28, 1978, P.L. 202, No. 53, § 2(a)[149], eff. June 27, 1980. See 42 Pa.C.S.A. § 7361(d).

      . Repealed April 28, 1978, P.L. 202, No. 53, § 2(a)[210], eff. June 27, 1980.

      . We note that current procedure on appeal from compulsory arbitration awards has eliminated the requirement of filing a recognizance, bond or other security. Pa.R.C.P. 1308(c).

      . We note that this court is empowered to affirm on reasoning different than that of the trial court. Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981).

      . 40 P.S. § 1009.101 etseq.

      . We are cognizant of the recent en banc opinions in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) and Branoff v. Fitzpatrick, 313 Pa.Super. 562, 460 A.2d 330 (1983), but find them distinguishable.
      In Praisner, summary judgment was entered on two counts of a three count complaint where each count constituted a separate and independent cause of action, but were joined in a single complaint pursuant to Pa.R.C.P. 1044(a). Our court en banc held that an appeal from the order entering summary judgment on the two counts was appealable, even though a third count remained before the trial court.
      In Branoff, plaintiffs filed a trespass action to recover property damages to their vehicle which had been involved in an accident. Following termination of that suit in favor of plaintiffs, a second action was commenced by plaintiffs for personal injury and loss of consortium, which was dismissed by the trial court for plaintiffs' failure to assert all claims arising out of the accident in a single action. This court reversed, holding that pursuant to the determination in Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) (cause of action for personal injuries arising from motor vehicle accident does not accrue until threshold is met), the cause of action for personal injury did not accrue at the time of the accident, as did the property damage action. Therefore, it was proper for plaintiff to bring the personal injury action at a later time. The court further held that there was no requirement that actions for property damages and personal injury arising out of the same incident be joined where accrual of the causes of action occur at different times.
      However, in the instant case, both causes of action were joined in a single complaint which did not involve separate "counts". The complaint, filed prior to our decision in Bond v. Gallen, supra, merely sets forth, in reference to property damage:
      7. At the aforesaid time and place, the Defendant Brown so carelessly operated his motor vehicle as to violently crash into the stopped vehicle of the Plaintiff, causing damages to Plaintiff’s vehicle and causing injuries to the Plaintiff’s body, some of which are permanent in nature.
      Concerning the holding in Praisner v. Stocker, we do not deem it appropriate to create yet another exception to the general rule that dismissal of some but not all counts of a multi-count complaint is interlocutory, based on the facts of the instant case. As to the holding in Branoff v. Fitzpatrick, we deem the fact that the instant action involved a single complaint for both property damage and personal injury distinguishable.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    462 A.2d 1385
    In re ADOPTION OF R.A.R. Appeal of M.J.R.
    Superior Court of Pennsylvania.
    Submitted May 11, 1983.
    Filed July 15, 1983.

      Lawrence D. MacDonald, Wilkes-Barre, for appellant.
    Linden Appel, Wilkes-Barre, for appellee.
    Frank Aritz, Swoyersville, for participating party.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from an order involuntarily terminating the parental rights of M.J.R., natural father of R.A.R. We reverse and remand.

In Santosky v. Kramer, Commissioner, Ulster County Department of Social Services, et al., 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court held that an order involuntarily terminating parental rights must be supported by clear and convincing evidence. Although the hearing and order in the instant case occurred after the Santosky decision, the trial court did not apply the clear and convincing standard but terminated MJ.R.’s parental rights using the preponderance of the evidence standard. We cannot correct this error by employing a broad scope of review because the standard of proof affects the way in which evidence is weighed by the factfinder, In re Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983), and this court does not sit as a factfinder. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). Therefore, we must remand this case to the trial court. The en banc opinion in In re: Adoption of M.E.T., supra, sets forth what is required of the trial court upon remand.

Order vacated. Case remanded for further proceedings not inconsistent with the opinion in In re: Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983). We do not retain jurisdiction.


author: PER CURIAM: BROSKY, Judge,

text:
    462 A.2d 1386
    NANCY E.M., Appellant, v. KENNETH D.M.
    Superior Court of Pennsylvania.
    Argued March 29, 1983.
    Filed July 15, 1983.

      Dennis V. Williams, Erie, for appellant.
    Donald W. Grieshober, Erie, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from an order awarding custody of the parties’ minor sons, David and Kevin, to their father, Kenneth. The same order provides for continuing custody of the minor daughter Lisa with the mother, Nancy. Lisa’s custody is not the subject of this appeal. Visitation by Nancy with David is to be at David’s desire and visitation with Kevin is set at two six-hour visits per week “or more often if desired by the child.” David will be eighteen years old on August 19, 1983 and Kevin will be ten on September 19, 1983.

On appeal, Nancy asserts: (1) that the evidence is insufficient to justify an award of custody to Kenneth; (2) that it was error to limit her visitation with David to only those times when David desires; and (3) that the visitation with Kevin as set forth in the order is so restrictive as to be a virtual denial of visitation for which there is no justification. We affirm in part and reverse and remand in part.

The parties were married in 1972 and divorced in January 1980. Their separation and subsequent divorce was marked by allegations of physical and verbal abuse from both parties and stormy arguments sometimes witnessed by the children. Their relationship continues to be extremely strained and it is apparent even from the cold record that they are unable to behave civilly to one another, regardless of the effect this may have on their children. Unfortunately, the children have been affected. At approximately the same time as the divorce was granted, and at a time when both parties and all three children were still residing in the marital home, David left home and stayed at his grandparents’, where he remained for about a month. After the parties had established separate residences, David went to live with his father where he remains. He has had little contact with his mother and does not wish to have any visitation with her. Kevin and Lisa have resided with Nancy, spending weekends with Kenneth.

This action was initiated on August 30, 1979, and the first hearing was held in June of 1980. The Honorable Lindley R. McClelland entered an order of custody which was appealed to this court. The matter was remanded for further evidentiary hearings which were held in June of 1982 before the Honorable Richard L. Nygaard. It is Judge Nygaard’s order which is the subject of the instant appeal. In all, four experts testified at the different hearings, although only two experts testified at the most recent hearing. In addition, the court heard from both parties, their family and friends, and interviewed each of the children twice. Most of the evidence presented by Nancy consisted of a recital of the reasons that led to the divorce and accusations that Kenneth was turning the children against her. There was also testimony that Nancy has moved several times in the two years since the divorce and that on occasion the children have been left alone due to either her work or her social activities. In addition, the youngest child had witnessed Nancy and a male friend in a romantic encounter which disturbed and confused him. All of the children are bright and articulate children, who do reasonably well in school, although David has had some serious behavioral problems. At the most recent hearing, the record shows that these problems have been somewhat alleviated and he is getting along better in school. David was adamant in his desire to remain with his father. His lack of contact with his mother stems from disparaging remarks she continues to make about his father and about his desire to live with his father. He testified that he loves his mother but does not want to visit with her until she stops harassing him. Kevin also expressed a strong desire to live with his father, although he would like to continue to see his mother. The expert testimony presented at the June hearing strongly supports the boys’ desire, for a variety of reasons, including the fact that the boys view their father as a more stable person and the household as a more secure one. Kevin also was viewed by the experts as unable to express his feelings about his father to his mother for fear that it would upset her, although Nancy did testify that, when he returned from one psychological evaluation, he tearfully told her that he had told the psychiatrist he wanted to live with his father. There was more than sufficient evidence presented to warrant the trial judge in finding that Kenneth is fulfilling his parental role insofar as the children’s schooling, religious training and everyday care is concerned.

It is well-settled that the sole issue to be decided in a custody proceeding is the best interest and welfare of the child. Wenger v. Wenger, 267 Pa.Super. 134, 406 A.2d 555 (1979). Hostilities between the parents are relevant only insofar as they constitute a threat to the child or affect the child’s welfare. Dena Lynn F. v. Harvey H.F., 278 Pa.Super. 95, 419 A.2d 1374 (1980); Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977). The decision must be made on the basis of current facts and not the past conduct of the parties. In re Leskovich, 253 Pa.Super. 349, 385 A.2d 373 (1978). In addition, while we exercise a broad scope of review in custody matters, we are not free to nullify the fact-finding function of the trial judge and must defer to his findings where they involve the credibility of witnesses. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

In the instant case, our review of the record reveals more than sufficient evidence to support Judge Nygaard’s order as to primary custody. For the most part, the arguments contained in appellant’s brief are to the effect that the trial court should have accepted her testimony. Where there is conflicting testimony, however, the decision of what testimony to believe must be left to the trial judge who had the opportunity to observe the demean- or of the witnesses and actually hear the testimony. Commonwealth ex rel. Barbara M. v. Joseph M., 286 Pa.Super. 51, 428 A.2d 567 (1981). In addition, Nancy argues that the trial judge erred in not accepting the recommendation of Dr. Sternlieb who testified at the June 1980 hearing. The trial judge is, of course, free to accept or reject an expert’s testimony. Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982). In addition, we note that both of the experts presented at the more recent hearing recommended that Kenneth be awarded custody of both David and Kevin. Since their evaluations were made at a more recent time, their recommendation was naturally given more weight. We therefore affirm that part of the order granting custody of David and Kevin to their father Kenneth.

Appellant also complains of the restrictiveness of her visitation with both Kevin and David. Visitation with Kevin was set at two six-hour visits per week or more often if desired by the child and such can be arranged by the parents. Visitation with David was to be only as often as is desired by the child.

Visitation should be limited or denied only if the parent has been found to possess such severe mental or moral deficiencies as to constitute a grave threat to the welfare of the child. Commonwealth ex rel. Peterson v. Hayes, supra. The fact that the child does not want to see the parent is not sufficient reason to deny the parent visitation. Fernald v. Fernald, 224 Pa.Super. 93, 302 A.2d 470 (1973). However, the particulars of a visitation schedule is a matter best left to the discretion of the trial court. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978).

As to Kevin, therefore, we see no error in the court’s order of two six-hour periods per week, particularly since the court included a provision for further visitation if so desired. The order, therefore, is affirmed as to appellant’s visitation with Kevin.

As to David, however, we must agree with appellant that ordering visitation at the child’s desire is tantamount to denying appellant her visitation rights. Neither party has alleged, nor are we able to find, any evidence that visitation with David would constitute a grave threat to his welfare. In fact, one expert who testified at the 1982 hearing felt that some visitation was appropriate. Therefore, we must reverse that portion of the order pertaining to appellant’s visitation with David and remand for further proceedings consistent with this opinion. Although appellant asks that we direct the trial court to order counseling as well, we believe that is a matter more properly left to the discretion of the trial court.

Order affirmed as to custody of David M. and Kevin M., affirmed as to Nancy M.’s visitation with Kevin, reversed and remanded for further proceedings consistent with this opinion as to Nancy M.’s visitation with David M.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. I believe that the opinion of the lower court is far too inadequate to allow a proper review of the case and, accordingly, would remand the case for entry of a comprehensive opinion.

So as to facilitate our broad scope of review, we consistently emphasize that the lower court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision. Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981); Garrity v. Garrity, supra [268 Pa.Super. 217, 407 A.2d 1323 (1979)]. The lower court’s opinion must address the testimony and the law; it must indicate the grounds for selecting the particular findings, and the reasoning process by which the judge reached his ultimate conclusion. Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980); In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). The lower court’s opinion must also clearly demonstrate the necessity for placing custody with either the petitioner or respondent. Robert H.H. v. May L.H., supra [293 Pa.Super. 431, 439 A.2d 187 (1981)].

Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 245, 447 A.2d 630, 633 (1982).

If the above requirements are not met, the order of the lower court must be reversed and remanded. Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980). In the instant case, the opinion of the lower court falls far short of these requirements. The opinion is a scant three pages of which only half contains findings by the court. The court’s statements for the most part are mere conclusions; no analysis of the testimony of the witnesses is provided. The only reference to the testimony is the court’s statement that it based its determination of Kevin’s custody upon the testimony and demeanor of both parents and the recommendation of the two psychologists who testified in that proceeding.

The majority states that “[tjhere was more than sufficient evidence presented to warrant the trial judge in finding that Kenneth is fulfilling his parental role insofar as the children’s schooling, religious training, and everyday care is concerned.” While I do not disagree that there indeed may have been sufficient evidence for the trial judge to so conclude, I find the problem to be that the trial judge made no such express finding, nor even discussed the subject.

Likewise, the majority states that while appellant argues that the trial court should have accepted her testimony, the decision of what testimony to believe must be left to the trial judge. However, I find that we have been offered little, if any, guidance as to what testimony the trial judge did believe. For example, as the majority points out, the testimony below conflicted as to whether Kenneth would encourage or discourage the children from maintaining a relationship with their mother. There is absolutely no discussion nor findings of credibility as to this issue in the trial court’s opinion.

Therefore, I conclude that I must agree with the court in In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979), which stated the following:

While we might review the record and reach a conclusion without the benefit of a proper analysis by the lower court, such a course would serve neither the best interests of the children nor the Commonwealth. We are loath to pass judgment on something as precious and intrinsically valuable as a child’s welfare without every possible piece of information bearing on the subject. It is for this reason that we demand a full record and a probing analysis thereof. Instantly, the opinion we are presented with renders it impossible to effect a just result.

Id., 270 Pa.Superior Ct. at 170, 411 A.2d at 234.

Thus, I would remand for entry of a comprehensive opinion.

      . Kenneth is the biological father only of Kevin. However, early in the marriage he adopted David and Lisa and so we treat him the same as if he were their biological father.

      . The problems became so severe as to lead one expert to seriously consider foster home placement for the children.

      . The dissent would have us remand this case yet another time for the filing of a comprehensive opinion by the trial judge. While we agree that the trial court’s opinion is not the comprehensive opinion envisioned by this court in In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979), we have the authority to consider the merits of a case if the record is sufficiently complete, even in the absence of a comprehensive opinion. Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981).

      . For example, appellant argues that the evidence shows that Kenneth will discourage the children from maintaining a relationship with their mother. Kenneth, on the other hand, testified that he in fact encouraged such a relationship.

      . We recognize that any visitation order will be unenforceable once David turns 18 this August. However, because of the strong public policy against limiting the relationship between parent and child, In re

        Stuck, 291 Pa.Super. 61, 435 A.2d 219 (1981), we are reluctant to deny Nancy visitation even for such a short period of time.

      . In some cases where the lower court has failed to file a proper opinion in support of its custody decision, we have not remanded the case, but instead decided the question of custody based upon our own examination of the record. See Haraschak v. Haraschak, 268 Pa.Super. 173, 407 A.2d 886 (1979); Tomlinson v. Tomlinson, 248 Pa.Super.Ct. 196, 204, 374 A.2d 1386, 1390 (1977); Sweeney v. Sweeney, 241 Pa.Super. 235, 361 A.2d 302 (1976). Such cases are rare, however, and the usual course is to remand the case to permit the lower court to receive further evidence, if that is indicated, and to file a more comprehensive opinion setting forth its reasons, including its findings as to the credibility of the witnesses and the weight to be attached to the testimony. See Kimmey v. Kimmey, 269 Pa.Super. 346, 409 A.2d 1178 (1979); Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979); Lewis v. Lewis, 271 Pa.Super. 519, 414 A.2d 375 (1979).

        Commonwealth ex rel. Crowther v. Waida, 272 Pa.Super. 73, 75, 414 A.2d 675, 676 (1979); see McAnallen v. McAnallen, 300 Pa.Super. 406, 446 A.2d 918 (1982) (merits considered despite inadequate lower court opinion where record was comprehensive and essential facts not in dispute).


author: BROSKY, Judge:

text:
    463 A.2d 1
    Carol R. CONWAY, Appellant, v. William T. CONWAY.
    Superior Court of Pennsylvania.
    Argued March 29, 1983.
    Filed July 15, 1983.

      Eileen D. Yacknin, Pittsburgh, for appellant.
    William T. Conway, in propria persona.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal follows an order awarding custody of three children, Dirtina, Sean and Brian Conway to William T. Conway, the appellee. Appellant is the mother of the children.

The orders from which this appeal was taken were issued by the Court of Common Pleas of Allegheny County in 1981. Custody proceedings had been initiated in Somerset County in 1978 and the Common Pleas Court of that County awarded custody of the children to Mr. Conway. The case was transferred to Allegheny County in 1979 and Mrs. Conway filed complaints seeking custody of the children in that court in March, 1980. The Allegheny County Court treated the complaints as petitions to modify the Somerset County custody award, and denied them. The lower court rejected the claim, repeated in appellant’s brief before us, that circumstances had changed substantially since the Somerset County award of custody to Mr. Conway. Mrs. Conway argued that because she had obtained employment and a suitable residence in the period following entry of that order, that custody should be transferred to her.

As to Dirtina, Mrs. Conway argued unsuccessfully that Mr. Conway is not her natural parent, -but only a stepparent who should not be treated as a natural parent in a custody dispute.

In the original brief she filed with this court, Mrs. Conway advances both the changed circumstances and paternity arguments. We will not, however, reach the merits of these issues because we believe that this case should be remanded for further evidentiary hearings.

After submitting her brief, Mrs. Conway submitted to this court in March, 1983 an additional brief in which she requests that we consider evidence of changed circumstances since entry of the 1981 orders. Specifically, Mrs. Conway points to what appears to be evidence that Mr. Conway, contrary to a lower court order of December 6, 1982, has absconded from the jurisdiction, with the children. Apparently, Dirtina is now residing with Mrs. Conway, but appellant claims that she has neither seen nor heard from her sons since December, 1982.

We are not, of course, in a position to determine the accuracy of appellant’s claims. However, after considering her supplementary brief and oral argument (appellee did not appear at argument or file a response to the supplementary brief, which was labeled “Application for the Submission and Consideration of Newly-Existing Evidence”), we believe that it would be unwise for us to proceed further on the merits of her appeal.

Appellant asks us to remand this case to the lower court for evidentiary hearings on the allegations she makes. She proposes that we retain jurisdiction and that the transcript of the evidentiary hearings be made part of the record before us. While we agree that the case should be remanded, we decline to retain jurisdiction.

The facts alleged by appellant, if proven, amount to changes in circumstances that ought to be considered in the first instance by the trial court.

Our review, while broad, is limited to determining whether the lower court erred in making the decision it did. If in fact the circumstances have changed, as appellant claims, we do not know what the lower court will now believe to be the correct custody arrangement. We will not review a decision made by that court, prior to and obviously without benefit of, the evidence that appellant seeks to introduce into the record.

Therefore, we remand this case to the Court of Common Pleas of Allegheny County to which court appellant can present her evidence of changed circumstances. If the court finds the circumstances warrant a change in the custody order, that court will enter such an order.

Jurisdiction is not retained by this court.

      . Two complaints were filed. One sought custody of Dirtina, the other of the boys.


author: WIEAND, Judge:

text:
    463 A.2d 2
    COMMONWEALTH of Pennsylvania v. Anthony BOLDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1983.
    Filed July 15, 1983.
    Robert C. Fogelnest, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

On February 25, 1977, Anthony Bolden entered negotiated pleas of guilty to robbery and possession of an instrument of crime. He was sentenced on May 26, 1977 to serve a term of imprisonment of not less than five nor more than twenty years. He did not thereafter file a petition to modify his sentence, did not file a petition to withdraw his pleas of guilty, and did not take a direct appeal.

On April 3,1978, he filed a P.C.H.A. petition; counsel was appointed; and an amended petition was filed. In the amended petition, Bolden averred that because of mental infirmity he had failed to comprehend the effect of his guilty plea. His plea, he contended, had been induced by counsel who was both unprepared and ineffective. A hearing was held on this petition, after which the court dismissed Bolden’s petition, finding that guilty plea counsel had been effective and that Bolden’s plea had been entered knowingly, intelligently and voluntarily. No appeal was filed from this order within the time allowed.

After the time for appeal had expired, present counsel entered an appearance for Bolden and obtained from the P.C.H.A. hearing court an order allowing the filing of an appeal nunc pro tunc. An appeal was thereafter filed in which appellant abandoned arguments based on averments contained in his amended P.C.H.A. petition. Instead, he argues before this Court, apparently for the first time, that guilty plea counsel was ineffective for failing to discover and that P.C.H.A. counsel was ineffective for failing to raise by a second, amended P.C.H.A. petition that the trial court had altered a pre-trial suppression order. This alteration had occurred on the same day, either shortly before or shortly after, the entry of appellant’s pleas of guilty.

A pre-trial motion to suppress oral and written statements made by appellant to the police had been heard by the trial court on February 24, 1977. At the conclusion of the hearing, the court announced that the motion to suppress was denied. The clerk recorded the court’s order as follows: “Motion to suppress statements denied. Findings of fact and conclusions of law to be filed.” On the following day, February 25, 1977, the court filed findings and conclusions, together with an order which denied the motion to suppress Bolden’s oral statements but granted the suppression of his written statements. On that same day, February 25, 1977, Bolden entered his pleas of guilty.

At the hearing on Bolden’s P.C.H.A. petition, the testimony disclosed that neither the prosecuting attorney nor appellant’s guilty plea counsel had been aware of the change in the court’s suppression order at the time the guilty plea was entered. Indeed, guilty plea counsel was not aware of the altered suppression order until confronted with it during the P.C.H.A. hearing. Although the record of the P.C.H.A. hearing discloses the foregoing facts, it does not reflect that the P.C.H.A. petition was amended to assert counsel’s lack of knowledge of the amended order as a basis for relief. Similarly, the record does not disclose that this issue was argued to the P.C.H.A. court. In any event, it is clear from the court’s opinion that the issue was not considered by the court.

We have reviewed the guilty plea colloquy to determine whether appellant’s pleas were entered because of his written, inculpatory statements and whether he intended, by entering pleas of guilty, to waive the right to challenge further the voluntary nature of such statements. See and compare: Commonwealth v. Unger, 494 Pa. 592, 595-596, 432 A.2d 146, 147 (1980) (“A guilty plea waives all nonjurisdictional defects and defenses.”); Commonwealth v. Chumley, 482 Pa. 626, 640-641, 394 A.2d 497, 504-505 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979) (“Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntary nature of the plea and the jurisdiction of the sentencing court.”); Commonwealth v. McCloud, 312 Pa.Super. 29, 458 A.2d 219 (1983); Commonwealth v. Cofield, 310 Pa.Super. 356, 456 A.2d 650 (1983). However, the guilty plea colloquy does not contain sufficient detail to permit us to declare frivolous the contention now being made that appellant’s guilty pleas were unlawfully induced by a belief that the Commonwealth would be permitted to use his written statement as evidence against him at trial. See: Common wealth v. Williams, 485 Pa. 137, 140, 401 A.2d 331, 333 (1979); Commonwealth v. Keller, 292 Pa.Super. 165, 170, 436 A.2d 1203, 1206 (1981) (an allegation that a guilty plea was induced by constitutionally infirm evidence may be cognizable in a P.C.H.A. proceeding). Neither can we determine from this record whether guilty plea counsel should have discovered the changed suppression order and whether P.C.H.A. counsel should have pursued guilty plea counsel’s failure. See: Commonwealth v. Marsh, 460 Pa. 253, 255, 333 A.2d 181, 182 (1975); Commonwealth v. Swift, 299 Pa.Super. 77, 80, 445 A.2d 156, 157 (1982).

For this reason and because the ineffectiveness of prior counsel is being raised by new counsel for the first time on appeal, we are required to remand for an evidentiary hearing. See: Commonwealth v. Hubbard, 472 Pa. 259, 276-277 n. 6, 372 A.2d 687, 695 n. 6 (1977); Commonwealth v. Stoner, 284 Pa.Super. 364, 371, 425 A.2d 1145, 1148-1149 (1981); Commonwealth v. Wetzel, 276 Pa.Super. 445, 446-447 & n. 1, 419 A.2d 541, 542 & n. 1 (1980). Jurisdiction not retained.

It is so ordered.

      . The clerk's record does not disclose that a copy of the suppression court’s written findings and final order were ever mailed to counsel.


text:
    463 A.2d 4
    BANK OF PENNSYLVANIA v. G/N ENTERPRISES, INC. and Joseph Cagigas and Dennis J. Sweeney, Co-Partners as Tenants in Partnership. Appeal of Joseph CAGIGAS and Dennis J. Sweeney, Co-Partners as Tenants in Partnership.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1983.
    Filed July 15, 1983.

      Charles W. Elliott and John P. Thomas, Allentown, submitted a brief on behalf of appellants.
    William G. Malkames, Allentown, for appellee.
    Before BROSKY, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

On November 1, 1979, Bank of Pennsylvania caused a judgment to be entered against G/N Enterprises, Inc. for $193,779.83 pursuant to warrant of attorney contained in a bond accompanying a mortgage on real estate in the City of Allentown. G/N Enterprises, Inc., the original mortgagor, did not contest the judgment. However, Joseph Cagigas and Dennis J. Sweeney, who had been named in the complaint to confess judgment as terre-tenants of the mortgaged real estate, filed a motion to open the judgment. Depositions were taken, the merits of the petition were argued, and the court denied relief. This appeal followed.

We conclude that appellants’ request was properly denied and that the order of the trial court must be affirmed. In the first place, appellants were strangers to the judgment entered in personam against the obligor of the bond. Secondly, appellants failed to plead a meritorious defense to the judgment.

The holder of a bond and mortgage can proceed in rem or in personam to enforce his claim. 13 Std.Pa. Practice Revised 586. He may proceed by an action of mortgage foreclosure or by an action on the bond which the mortgage secures. Cooper v. Lucas, 152 Pa.Super. 655, 658, 33 A.2d 466, 467 (1943); Long v. Bowman, 118 Pa.Super. 367, 370, 179 A. 857, 858 (1935). In actions of mortgage foreclosure the procedure is governed primarily by the Rules of Civil Procedure. See: Pa.R.C.P. 1141-1150. An action of mortgage foreclosure is commenced by the filing of a complaint, Pa.R.C.P. 1143, which must name as defendants the mortgagor and also the real owner, or terre-tenant, of the property. Pa.R.C.P. 1144(a). A “real owner” or “terre-tenant” is one who claims an interest in the land subject to the lien of the mortgage. Commonwealth Trust Co. of Pittsburgh v. Harkins, 312 Pa. 402, 408-409, 167 A. 278, 280-281 (1933); U.S. Steel Homes Credit Corporation v. South Shore Development Corporation, 277 Pa.Super. 308, 312, 419 A.2d 785, 787-788 (1980). Thus, one who takes title from the mortgagor is a “real owner.” Integrity Trust Co. v. St. Rita Building & Loan Assn., 112 Pa.Super. 343, 171 A. 283 (1934), aff'd, 317 Pa. 518, 177 A. 5 (1935); Provident Trust Co. v. Judicial Building & Loan Assn., 112 Pa.Super. 352, 171 A. 287 (1934). A subsequent owner must be named as a real owner in a mortgage foreclosure action, for the action is in rem and binds only the mortgaged property. Meco Realty Co. v. Burns, 414 Pa. 495, 200 A.2d 869 (1964); Signal Consumer Discount Co. v. Babuscio, 257 Pa.Super. 101, 106-107 & n. 6, 390 A.2d 266, 269 & n. 6 (1978); 13 Std.Pa. Practice Revised 627.

In a proceeding by confession of judgment on the bond, the object is to obtain judgment against the obligor of the bond. This is a proceeding in personam. The judgment, unlike a judgment in mortgage foreclosure, is general and is not restricted to the mortgaged premises. It constitutes a lien generally on real estate owned by the obligor at the time of the judgment. With respect to the mortgaged premises, the lien of the judgment relates back to the date of the lien of the mortgage by which the bond is secured. First Federal Savings & Loan Association of Greene County v. Porter, 408 Pa. 236, 243, 183 A.2d 318, 323 (1962); West Arch Building & Loan Assn. v. Nichols, 303 Pa. 434, 439, 154 A. 703, 704 (1931); Cooper v. Lucas, supra; Moore v. Schell, 99 Pa.Super. 81, 85 (1930). “When the property which is subject to the mortgage [has been] transferred without payment of the mortgage, the property in the hands of the transferee continues to be security for the performance of the obligation, and for any default the mortgagee may seize and sell the property in the hands of the transferee.” Mancine v. Concord-Liberty Savings and Loan Association, 299 Pa.Super. 260, 269, 445 A.2d 744, 748 (1982). Thus, a judgment entered on the bond creates a lien on the mortgaged premises even though such premises may have been conveyed before the judgment was entered and no matter who may be the owner at the time the judgment is entered. Keene Home v. Startzell, 235 Pa. 110, 83 A. 584 (1912).

The judgment confessed on the bond, being in personam against the obligor, does not bind strangers to the bond. It does not bind the person of one who has purchased the real estate subject to the mortgage. It follows that such a person has no right to attack the validity of the judgment entered in personam against the obligor. See: First Federal Savings & Loan Association of Greene County v. Porter, supra 408 Pa. at 241, 183 A.2d at 322.

If the terre-tenant or real owner of the mortgaged real estate has no interest in the judgment entered in personam against the obligor of the bond, how does he protect himself against the mortgagee’s attempt to enforce the judgment against the mortgaged real estate which he owns? The answer, of course, lies in the Rules of Civil Procedure which govern the enforcement of judgments. Pa.R.C.P. 3129 provides that no writ of execution to sell real estate shall issue upon a judgment without written notice to the owner or reputed owner of the real estate. See also: Luskey v. Steffron, Inc., 461 Pa. 305, 336 A.2d 298 (1975), on rehear ing, 469 Pa. 377, 366 A.2d 223 (1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1651, 52 L.Ed.2d 360 (1977). Pa.R.C.P. 3121, moreover, contains the procedure by which a writ and/or levy can be set aside whether “(1) for a defect therein; (2) upon a showing of exemption or immunity of property from execution; or (3) upon any other legal or equitable ground therefor.” This remedy is peculiarly appropriate where, as in the instant case, the owner of the mortgaged real estate has no defense to the principal obligation secured by the mortgage and challenges only appellee’s present right to enforce the mortgage against the real estate.

The defenses which appellants averred in their petition to open were inadequate to constitute a defense to the judgment entered against the obligor on the bond. If their alleged defenses have validity, they will serve only to prevent enforcement of the judgment against the mortgaged real estate.

Appellants’ principal defense is their contention that the “due-on-sale” clause contained in the mortgage is unenforceable against the real estate. This clause provides:

“If the Mortgagor shall ... transfer either legal or equitable title to the mortgaged premises without the prior written approval of the Mortgagee, then ... at the option of the Mortgagee: ... (b) the whole unpaid balance of the principal indebtedness, together with all interest thereon and all other sums hereby secured, shall become due and payable immediately ... and shall be recoverable by the Mortgagee forthwith____”

It was pursuant to the provisions of this clause that the appellee bank alleged a default and caused judgment to be entered against G/N Enterprises, Inc. for the entire mortgage balance when the mortgaged real estate was conveyed to appellants.

“Generally, a provision in a mortgage agreement according the mortgagee the option to accelerate the maturity of the mortgage debt, under certain conditions or upon the happening of specified events, is regarded as a legitimate contractual stipulation.” Ministers and Missionaries Benefit Board of the American Baptist Churches v. Goldsworthy, 253 Pa.Super. 321, 328-329, 385 A.2d 358, 362 (1978) citing 55 Am.Jur.2d, Mortgages §§ 371-393. Such clauses are construed in accordance with the intention of the parties to the same extent as other contracts.

“Due-on-sale” acceleration clauses are not unusual and are not per se invalid except as their use may be restricted by statute. Anno., Validity, Construction, and Application of Clause Entitling Mortgagee to Acceleration of Balance Due in Case of Conveyance or Transfer of Mortgaged Property, 69 A.L.R.3d 713, 727 (1976). See: Siegel v. Empire Savings Bank, 304 N.W.2d 335 (Minn.1981); Tierce v. APS Co., 382 So.2d 485 (Ala.1979); Crockett v. First Federal Savings & Loan Assn. of Charlotte, 289 N.C. 620, 224 S.E.2d 580 (1976); Baker v. Loves Park Savings & Loan Assn., 61 Ill.2d 119, 333 N.E.2d 1 (1975); Malouff v. Midland Federal Savings & Loan Assn., 181 Colo. 294, 509 P.2d 1240 (1973); Walker Bank & Trust Co. v. Neilson, 26 Utah 2d 383, 385, 490 P.2d 328, 329 (1971); Parker v. Covington, 614 S.W.2d 810 (Tenn.App.1981); Mutual Real Estate Investment Trust v. Buffalo Savings Bank, 90 Misc.2d 675, 395 N.Y.S.2d 583 (1977); Stith v. Hudson City Savings Institution, 63 Misc.2d 863, 313 N.Y.S.2d 804 (1970); People’s Savings Assn. v. Standard Industries, Inc., 22 Ohio App.2d 35, 257 N.E.2d 406 (1970). Although such a clause constitutes a restraint on the mortgagor’s ability to sell his real estate, so long as the acceleration clause does not attempt to restrict absolutely the mortgagor’s ability to dispose of his property, the clause does not impose the type of restraint on alienation that will render it void. See: 69 A.L.R.3d at 732. “Due-on-sale” clauses have been subjected to close scrutiny in recent years, however, and some courts have refused to enforce them by foreclosure in the absence of an allegation and/or showing that the mortgage security has been impaired. See: Wellenkamp v. Bank of America, 21 Cal.3d 943, 148 Cal.Rptr. 379, 582 P.2d 970 (1978); Patton v. First Federal Savings & Loan Assn. of Phoenix, 118 Ariz. 473, 578 P.2d 152 (1978); Bellingham First Federal Savings & Loan Assn. v. Garrison, 87 Wash.2d 437, 553 P.2d 1090 (1976); Nichols v. Evans, 92 Misc.2d 938, 401 N.Y.S.2d 426 (1978); Nichols v. Ann Arbor Federal Savings & Loan Assn., 73 Mich.App. 163, 250 N.W.2d 804 (1977); Fidelity Land Development Corp. v. Rieder & Sons Bldg. & Development Co., 151 N.J.Super. 502, 377 A.2d 691 (1977); 69 A.L.R.3d at 748 et seq. (collecting cases). Other courts have subscribed to the view that “due-on-sale” acceleration clauses serve a valid business purpose and are per se enforceable except where such enforcement would lead to an unconscionable result. Williams v. First Federal Savings & Loan Assn. of Arlington, 651 F.2d 910 (4th Cir.1981); Sonny Arnold, Inc. v. Sentry Savings Assn., 633 S.W.2d 811 (Tex.1982); Occidental Savings & Loan Assn. v. Venco Partnership, 206 Neb. 469, 293 N.W.2d 843 (1980); Tierce v. APS Co., supra; Crockett v. First Federal Savings & Loan Assn. of Charlotte, supra.

In the instant case, the appellee-bank has not yet attempted to enforce the “due-on-sale” acceleration clause by executing against the mortgaged real estate. It has done no more than enter judgment in personam against the mortgagor for the accelerated balance. As a result, the trial court did not determine, and we find it unnecessary to review, whether appellee’s security has been impaired by the sale of the mortgaged premises or, in any event, whether such a limitation will be imposed upon appellee’s right to foreclose.

Similarly, appellants’ contention that appellee waived the right to foreclose by accepting monthly mortgage payments from the real owners is of no avail to appellants to prevent the entry of judgment for the full amount of the loan balance against the original mortgagor. The effect of accepting these payments, if any, would be to prevent appellee’s use of the “due-on-sale” clause to foreclose on the real estate now owned by appellants. This, too, can better be determined in foreclosure proceedings if and when they are commenced.

Order affirmed.

      . The naming of the terre-tenants in the complaint to confess judgment against G/N Enterprises, Inc. was unnecessary.

      . In Pennsylvania, the right to accelerate the maturity of a residential mortgage is limited by Section 403 of the Act of January 30, 1974, P.L. 13, No. 6, 41 P.S. 403. The mortgage in the instant case is not a residential mortgage, and the mortgagor has not objected to or contested the entry of judgment for the accelerated balance.

      . The testimony taken in depositions was that the value of the mortgaged real estate had appreciated in value. Appellee’s vice president conceded that its reason for objecting to the sale of the real estate subject to the mortgage was the lower than current interest rate established by the mortgage.


author: CIRILLO, Judge: CAVANAUGH, Judge,

text:
    463 A.2d 9
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank PIZZELLA, Jr.
    Superior Court of Pennsylvania.
    Submitted April 7, 1982.
    Filed July 15, 1983.
    Petition for Allowance of Appeal Denied Nov. 16, 1983.

      Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellant.
    Ronald D. Oley, Assistant Public Defender, Wilkes-Barre, for appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal by the Commonwealth from a lower court order dismissing charges against the appellee, which was predicated upon a finding that the appellee’s right to a speedy trial under Pa.R.Crim.P. 1100 had been violated. We reverse.

On January 19, 1981, appellee was arrested and a criminal complaint was filed charging him with criminal solicitation. On March 5, 1981, appellee filed a petition for writ of habeas corpus. On May 12, 1981, the Commonwealth filed a timely petition for an extension of time pursuant to Pa.R.Crim.P. 1100(c)(1). A 48-day extension was granted on May 20, 1981, because of the delay resulting from the pending habeas corpus petition. The case was called to trial on September 8, 1981. On the morning of trial, the appellee filed a motion to dismiss the charges pursuant to Pa.R.Crim.P. 1100(f). After hearing arguments, the Honorable Bernard Podcasy granted the appellee’s motion, dismissing charges with prejudice. This appeal followed.

We find, as did the lower court, that the 180-day period under Rule 1100 began to run on January 19, 1981, when the complaint against the appellee was filed; and, further, that the 180th day was July 18, 1981. The lower court then added the 48-day extension to July 18, 1981, and concluded that the trial should have begun on or before September 4, 1981. This was incorrect.

The governing principle which must guide our examination of Rule 1100 was recently stated by Justice Kauffman in Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), wherein it was said:

Rule 1100 serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society____ In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it____ So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of the accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime.

Id., 493 Pa. at 68, 425 A.2d at 369.

This court in Commonwealth v. Jones, 258 Pa.Super. 50, 391 A.2d 667 (1978), held that time calculations under Rule 1100 are made in compliance with 1 Pa.C.S.A. § 1908. The error in the instant case was in the lower court’s failure to apply § 1908, which states in pertinent part:

Whenever the last day of any such period shall fall on Saturday or Sunday, or any other day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

Had the lower court applied § 1908, the 48-day extension would have been added to July 20, 1981, which was the Monday following July 18, 1981, a Saturday. This additional two-day period would have made the final date for trial to commence, under Rule 1100, September 6, 1981, a Sunday. Again applying § 1908, September 6, 1981 and September 7, 1981, Labor Day, would have been omitted, making the final date for trial September 8, 1981. Thus, the appellee’s rights under Rule 1100 would not have been violated by the commencement of trial on September 8, 1981.

It is well established that the Commonwealth can wait until the 180th day to apply for an extension under Pa.R. Crim.P. 1100(c)(1). Commonwealth v. Harrison, 293 Pa.Super. 211, 438 A.2d 612 (1981); Commonwealth v. Schmoyer, 280 Pa.Super. 406, 421 A.2d 786 (1980). Had the Commonwealth chosen to apply for an extension on the final day, a right to which they were fully entitled, they would have received the benefit of § 1908. The final day for an extension would have been July 20, 1981, since July 18, 1981 was a Saturday. See also, Commonwealth v. Murray, 263 Pa.Super. 496, 398 A.2d 686 (1979). In the interest of fundamental fairness, it seems appropriate that the Commonwealth should not be penalized for petitioning early for an extension; to the contrary, it should be encouraged.

We also note that the lower court properly granted the 48 day extension to the Commonwealth. In the case of Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-50 (1976), the Supreme Court established the requirements with which the prosecution must comply before a Rule 1100(c) extension may be granted:

Henceforth, the trial court may grant an extension under Rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the Court’s inability to try the Defendant within a prescribed period, the record must also show the causes of the court delay ahd the reasons why the delay cannot be avoided.

See also: Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982).

An examination of the record of the extension hearing shows that the Commonwealth did establish due diligence and that the trial had been scheduled for the earliest possible date. The appellee had requested a Writ of Habeas Corpus which the trial court took under advisement. Both parties were supposed to present briefs to the trial judge within a matter of days concerning how the habeas corpus matter was to proceed, however, neither party carried out their assignment expediently, for briefs had still not been filed at the time of the extension hearing. The trial judge felt compelled to grant an extension of trial while the habeas corpus proceeding was still pending since the delay was the fault of both parties. We find no error or abuse of discretion committed by the trial court.

Accordingly, the information is reinstated and the case is remanded for trial to commence within 120 days, Pa.R. Crim.P. 1100(e). Jurisdiction is relinquished.

REVERSED AND REMANDED.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I dissent.

The majority holds that § 1908 should be applied twice to one 48 day extension. I find this position untenable.

It is true that the Commonwealth could have waited until Monday, July 20th, to bring appellee to trial. But to say that because the trial could have commenced on Monday, the extension should be computed from Monday is a complete nonsequitur. There is no more reason to begin the running of the 48 day extension in this case on Monday than there would be to begin the running of the 180 day period on Monday in any case where the complaint was filed on a Saturday or a Sunday.

The majority correctly states that the Commonwealth could, in this case, have waited until Monday to apply for an extension. They assume that if the Commonwealth had waited until Monday to apply for the extension, then the period of the extension would have begun to run on Monday. They then conclude that the Commonwealth should not be penalized for petitioning early for an extension. I feel, however, that even if the extension had been applied for and granted on Monday, July 20th, the period of the extension would have been properly computed from the expiration of the original 180 day period, or Saturday, July 18th.

Regardless of when an extension is granted, it should run from the date on which the 180 day period expires. In this case, therefore, the extension expired on Friday, September 4th. Since appellee was not brought to trial by that date, the lower court properly ordered him discharged under Rule 1100. I would therefore affirm.

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, 18 Pa.C.S.A. § 902.

      . Act of Dec. 6, 1972, P.L. 1339, No. 290, § 3.


author: CIRILLO, Judge:

text:
    463 A.2d 11
    COMMONWEALTH of Pennsylvania v. Manuel CARDONA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1982.
    Filed July 15, 1983.
    Petition for Allowance of Appeal Denied Nov. 9, 1983.

      Anthony S. Federico, Jr., Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

Appellant was charged with possession with intent to deliver a controlled substance, heroin. After a jury trial and conviction, the appellant, on July 8, 1980, moved for a new trial on the following grounds:

1. The verdict is contrary to the evidence.
2. The verdict is contrary to the weight of the evidence.
3. The verdict is contrary to the law.

The appellant later filed a brief raising specific issues of law, including the admissibility of confessional statements and the propriety of the prosecutor’s remarks to the jury in closing argument.

The trial court denied the post-verdict motions and imposed a sentence of three to six years’ imprisonment. This appeal is from that judgment.

Among the grounds for reversal urged on this appeal are that the trial court erred in admitting into evidence inculpatory statements made to police by the defendant, and in allowing the prosecutor to make certain comments to the jury relating to the defendant’s bail. A threshold procedural question which must be addressed is whether these issues are preserved for review in this Court.

After Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), it should be abundantly clear that only issues specifically raised in post-verdict motions will be considered preserved for appellate review. In Gravely, the Supreme Court considered the appellant’s case on the merits despite the fact that the issues had been preserved, not in post-verdict motions, but in a post-trial brief considered by the trial court. However, Chief Justice Eagen wrote that this practice of preserving issues in post-trial briefs was unsatisfactory, and would not be allowed after sixty days from the filing of the opinion.

Although the Chief Justice’s opinion was joined by only one other member of the Court, three Justices in two concurring opinions expressed their view that no sixty-day waiting period was necessary, since Commonwealth v. Blair had already held that Rule 1123(a) requires specific post-verdict motions. Thus, a majority of the Supreme Court has mandated that, to be preserved for appeal, issues must be set out specifically in post-verdict motions, at least after the running of the sixty-day period.

It is not clear whether the appellant in Gravely had filed boiler plate post-verdict motions like the ones in the instant case, or no motions at all. However, this uncertainty does not change our analysis of the procedural issue in this case.

Blair had originally held that Rule 1123 requires post-verdict motions to be written, and that boiler plate challenges to the sufficiency of the evidence do not meet the requirement, even when later supplemented with specific oral objections.

In later cases an exception to Blair was recognized. Boiler plate post-verdict motions fleshed out in a post-trial brief considered by the trial court were held sufficient to preserve issues for appellate review. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977).

The appellant in the instant case first filed typical boiler plate post-verdict motions, then a brief raising specific questions of law. In denying the motions, the trial court noted that Gravely no longer permits a brief to substitute for post-verdict motions, but went on to consider the specific issues raised in the brief. However, since Gravely has overruled Slaughter and similar cases, it no longer matters whether the court below considers the specific issues raised in the brief.

This court has already interpreted Gravely to hold that boiler plate post-verdict motions supplemented by a brief, even if considered by the trial court, are insufficient to preserve issues for appeal. Commonwealth v. Turner, 270 Pa.Super. 58, 410 A.2d 895 (1979). We regret that some trial counsel, in attempting to get by with boiler plate post-verdict motions, still fail to heed the numerous warnings handed down since Commonwealth v. Blair. However, it is no longer merely a warning, but the law, that all issues not specifically raised in post-verdict motions are waived on appeal.

Appellant relies on Commonwealth v. Swint to remove him from the ambit of the Gravely rule. In Swint the Supreme Court considered the merits of the appellant’s case even though he had relied on boiler plate motions and a brief- below. Although Swint was filed after Gravely, it expressly followed the Slaughter procedure as traditionally acceptable. The only explanation for Swint’s deviation from Gravely is that post-verdict motions in Swint apparently were filed before the effective date of Gravely, September 4, 1979. Appellant can take no refuge in Swint, having filed his post-verdict motions on July 8, 1980.

Therefore, we hold that the appellant has failed to preserve for our review the issues concerning the admissibility of inculpatory statements and the prosecutor’s comments to the jury, since these issues did not appear in the post-verdict motions.

Appellant’s boiler plate post-verdict motions, reproduced in the first paragraph of this opinion, alleged only that the verdict was contrary to the evidence, the weight of the evidence, and the law. The only one of these allegations that, standing alone, creates any sensible issue for a court to review, is that the verdict was against the weight of the evidence. The proper remedy when the verdict is against the weight of the evidence is for the defendant to be given a new trial. Commonwealth v. Davis, 477 Pa. 197, 383 A.2d 891 (1978). However, in his brief to this Court appellant’s argument is that the evidence was insufficient to support the verdict; when the evidence is insufficient to support the verdict, a defendant is entitled to have the charges against him dismissed outright. U.S. Const, amend. 5; Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). Not only are there distinct remedies for the respective situations in which the verdict is against the weight of the evidence, and in which the evidence is legally insufficient; the two situations also require different standards of review on our part. See Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Kaufman, 307 Pa.Super. 63, 452 A.2d 1039 (1982); Commonwealth v. Thompson, 286 Pa.Super. 31, 428 A.2d 223 (1981). We will treat the allegation in appellant’s post-verdict motions that the verdict was “contrary to the evidence” as a challenge to the sufficiency of the evidence, and hold that that challenge has not been waived. However, we point out that just such complications as these have contributed to the frustration of the appellate courts of this State in dealing with boiler plate post-verdict motions, and to the waiver decisions detailed earlier in this opinion.

On the merits, we reject appellant’s challenge to the sufficiency of the evidence. In order to convict a defendant of possession with intent to deliver a controlled substance, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance, and that he did so with the intent to transfer or deliver the controlled substance. Commonwealth v. Herman, 288 Pa.Super. 219, 431 A.2d 1016 (1981).

The evidence in the instant case established that, after determining by means of a controlled buy that heroin was being sold from 1727 Green Street in Harrisburg, police executed a search warrant on the premises, and discovered a brown bag containing twenty “decks” of heroin stashed in a closet. Although only a visitor to the premises was present when police began their search, appellant Manuel Cardona entered after police had found the heroin. Cardona subsequently was arrested.

Appellant argues that the Commonwealth failed to prove that he possessed the drugs found in the closet. If contraband is not found on the person of the defendant, the Commonwealth must prove constructive possession. This requires a showing that the defendant had the ability and intent to control the contraband. Commonwealth v. Hoetzel, 284 Pa.Super. 623, 426 A.2d 669 (1981). Whether the defendant had the ability and intent to control the contraband may be inferred from the totality of the circumstances of the case. Commonwealth v. Banahasky, 250 Pa.Super. 495, 378 A.2d 1257 (1977). Knowledge of the existence and location of the contraband may indicate an intent to control. Commonwealth v. Thompson, supra. In the instant case, Cardona’s ability and intent to control the heroin was established through a congeries of circumstantial evidence. Although Cardona testified at trial that he did not live at 1727 Green Street at the time he was arrested, the Commonwealth introduced evidence that he entered the apartment at 1727 Green Street without knocking; that in the apartment police found several pieces of mail, including bank records, addressed to Manuel and Susan Cardona at the Green Street address, plus several wrapped packages which Cardona identified as Christmas gifts for his children; and that at the preliminary arraignment and again when bail was posted Cardona listed 1727 Green Street as his address. The Commonwealth also introduced evidence that Cardona admitted to police that the heroin was his, and correctly told the police the number of “decks” of heroin in the brown bag, twenty, before they had counted the decks. Taken together, this evidence was sufficient to permit the jury to infer that Cardona possessed the heroin.

As for the element of “intent to deliver,” our Supreme Court has held that, in certain circumstances, the possession of a large quantity of a controlled substance may justify an inference of intent to deliver. Commonwealth v. Gill, 490 Pa. 1, 415 A.2d 2 (1980). At trial, two policemen, characterized in the trial court opinion as having “many years of specialized experience in drug investigations,” (slip op. at 6), testified that twenty bags of heroin possessed by one person at one time would more likely be possessed for the purpose of sale than for personal use. The jury also had before them the evidence of the controlled purchase of heroin made by police from the Green Street apartment. This evidence, together with uncontradicted defense testimony that Cardona was not a heroin user, was sufficient to permit the jury to infer that, if Cardona possessed the heroin, he did so with intent to deliver. Therefore, we conclude that the evidence was legally sufficient to support the verdict; we also conclude that, under the standards set out in Commonwealth v. Pronkoskie, supra, and Commonwealth v. Kaufman, supra, the verdict was not contrary to the weight of the evidence.

The judgment of sentence is affirmed.

WIEAND, J., concurs in the result.

      . 35 P.S. § 780-113(a)(30).

      . 460 Pa. 31, 331 A.2d 213 (1975).

      . Pa.R.Crim.P. 1123, 42 Pa.C.S.A.

      . See Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980).

      . 488 Pa. 279, 412 A.2d 507 (1980).

      . Almost as an afterthought, appellant has appended to his argument a conclusory statement that the verdict was against the weight of the evidence, and that he is therefore entitled to a new trial.

      . As of August 9, 1983, a boiler plate post-verdict motion challenging the sufficiency of the evidence will no longer be adequate to preserve even a general insufficiency claim for our review. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc). A similar holding had earlier been made in Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). However, Holmes specifically overruled Neely because our en banc Court believed that the rule announced in Neely, and reannounced in Holmes, should have prospective application only. In the current state of the law, we believe Holmes has decreed a "grace period” in which a boiler plate post-verdict motion will still preserve the general sufficiency question. It is for this reason that we consider appellant's claim that the evidence was insufficient.

      . The judgment in No. 18 CD 1980 is affirmed. No issues concerning the judgment in No. 1584 CD 1980 were briefed in this court. Accordingly, the right of appeal from that judgment has been waived.


text:
    463 A.2d 16
    Janet BEM v. August BEM, Appellant. August BEM v. Janet BEM, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1983.
    Filed July 15, 1983.
    Petition for Allowance of Appeal Granted Nov. 14, 1983.

      Thomas R. Wilson, West Chester, for appellant (Nos. 936 and 1185) and for appellee (No. 1768).
    Myron H. Deutsch, Philadelphia, for appellant (No. 1768) and for appellee (Nos. 936 and 1185).
    Before CERCONE, President Judge, and ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

In this appeal we are asked to determine the appropriate court in which matters of custody and visitation should be resolved.

The parties were married in Cambria County on February 23, 1974. The only child born of this marriage was a son, James Christian, on June 15, 1975 in Chester County. The parties lived in Chester County but maintained close ties and often visited their families who lived in Cambria County-

On June 9, 1981, Mrs. Bern and her son went to Cambria County to visit her family. Subsequently, an altercation between the parties took place at the home of Mrs. Bern’s parents. On June 22, 1981, Mrs. Bern filed a Complaint in Divorce in Cambria County seeking support, custody, alimony pendente lite, counsel fees and expenses, alimony and equitable distribution of property. The father filed an Answer and New Matter on August 18, 1981. Then, on September 1, 1981, he filed a Complaint to confirm custody in Chester County. The Court of Common Pleas of Chester County issued a Rule on September 15, 1981, directing a conciliation conference and awarding temporary custody to the father. Thereafter, on September 29, 1981, Mrs. Bern filed a petition for custody in Cambria County and was awarded temporary custody. Both parties filed preliminary objections to the adverse custody awards and raised questions of jurisdiction.

The Cambria County Court ordered a conference to be scheduled in Cambria County for October 23, 1981. The father and his counsel appeared and objected to the jurisdiction of the Cambria County Court. The Custody and Visitation Officer recommended a hearing because of the jurisdictional dispute.

On November 5, 1981, the father initiated an action for divorce, support, custody, attorney’s fees and expenses and equitable distribution of property in Chester County. Mrs. Bern filed preliminary objections, raising the issue of jurisdiction.

On March 17, 1982, a hearing was held in Cambria County before a Hearing Officer to determine child support. The father objected to jurisdiction, did not appear, and the Officer awarded Mrs. Bern support for her son. Objections and exceptions were filed by the father, raising the issue of jurisdiction. After argument, an Order was issued on July 6, 1982 by the Honorable Eugene A. Creany of the Court of Common Pleas of Cambria County, dismissing the father’s objections to venue and ordering him to abide by the determination of the Hearing Officer. Judge Creany further ordered that a hearing be held as soon as possible to determine whether Cambria County or Chester County has jurisdiction over the custody action.

Meanwhile, in the interim, the Honorable Lawrence F. Wood, of the Court of Common Pleas of Chester County issued an Order on May 14, 1982, dismissing Mrs. Bern’s preliminary objections concerning jurisdiction and affirming its Order of September 15, 1981 which awarded temporary custody to the father.

On August 5, 1982, a conference, attended by counsel, was held in Judge Creany’s chambers wherein a temporary visitation agreement was formulated. An evidentiary hearing was held on August 20, 1982 in Cambria County concerning proper jurisdiction to determine custody. The hearing was attended by attorneys for both parties and resulted in the Order of September 14, 1982 which found that Cambria County had proper jurisdiction and awarded temporary custody to Mrs. Bern by affirming the September 29, 1981 Order. All matters were consolidated by an Order dated December 6, 1982.

In resolving the dispute in the case at bar, we look to the Uniform Child Custody Jurisdiction Act which has been applied to intercounty disputes within Pennsylvania by the Commonwealth Child Custody Jurisdiction Act. The jurisdictional provisions of this Act were recently summarized by this Court in the case of Hattoum v. Hattoum, 295 Pa.Super. 169, 174-175, 441 A.2d 403, 405 (1982):

The Act has three major bases for jurisdiction: § 5344(a)(1) provides for “home” jurisdiction; § 5344(a)(2) provides for jurisdiction based on “significant contacts” among the various parties to the custody action and the locale in which the action has been brought; § 5344(a)(3) provides for “parens patriae” jurisdiction for emergency situations in which a child is abandoned, abused or dependent.

The Act treats as preferable the “home” jurisdiction under § 5344(a)(1). Id. In this instance, it is generally acknowledged that the “home” jurisdiction of the child is Chester County, where the father continues to reside. However, there are circumstances in which a court may determine that “home” jurisdiction does not prevail. Id. An alternative to “home” jurisdiction is provided for in section 5344(a)(2) of the Act as follows:

(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;

Under the facts of this case, both Chester and Cambria Counties have colorable reasons to exercise jurisdiction. Nevertheless, we find that Mrs. Bern and her son, James, have a significant connection with Cambria County so as to allow that county to exercise jurisdiction in the custody matter. The parties were born, raised and married in Cambria County and frequently visited there during their marriage. Presently, James is living with his mother and maternal grandparents in Cambria County, receives care from a pediatrician located in that county, and is enrolled in an elementary school in that locale. Mrs. Bern and her son are also receiving financial support from the maternal grandparents.

As a result of the strong ties between the Bems and Cambria County, there is available in that county substantial evidence concerning the present and future care, protection, training and personal relationships of James. The showing of significant contacts by the parents and child make Cambria County a more appropriate forum to protect the best interests of the child.

When Mrs. Bern decided to file for divorce, she did so in the county in which she felt most at home. There was no longer a place for her in Chester County. Her residence, strongest ties, and emotional and financial support were and presently are in Cambria County. The facts of this case do not represent a unilateral removal or forum shopping situation that would require the Cambria County Court to decline to exercise jurisdiction as in Warman v. Warman, 294 Pa.Super. 285, 439 A.2d 1203 (1982). We also note that following Mrs. Bern’s Complaint in Divorce seeking custody, which was filed in Cambria County, the father filed an Answer and New Matter. He did not file preliminary objections and only afterward did he file a Complaint for custody in Chester County. By filing an Answer and New Matter in Cambria County, the father submitted to the jurisdiction of that court; and, thus, it can be argued that if anyone was forum shopping, it was he.

We also find that the Court of Common Pleas of Cambria County properly exercised venue in the support matter subject to the Order of July 6, 1982. Mrs. Bern filed for divorce in Cambria County pursuant to the New Divorce Code. Under section 301(a)(3) of the Code, Cambria County has jurisdiction with reference to any support or assistance which shall be paid for the benefit of any children of the marriage. So, too, Pa.R.C.P. 1910.2, which concerns venue in actions for support states:

An action may be brought in any county in which
(1) the defendant resides, or
(2) the defendant is regularly employed, or
(3) the plaintiff resides.

Mrs. Bern’s residence is in Cambria County and, therefore, under Rule 1910.2 an action for support may be brought in that county. Cambria County properly assumed jurisdiction of Mrs. Bern’s Complaint in Divorce and of the custody of the parties’ child and hence also had jurisdiction with regard to the support of the child. Proceeding in this fashion will avoid a duplication of efforts and promote judicial economy.

Accordingly, we affirm the Orders of Judge Creany of Cambria County, dated July 6, 1982 and September 14, 1982. We reverse the Order of Judge Wood of Chester County, dated May 14, 1982. We remand this case to Cambria County for a full hearing concerning the custody of the parties’ minor child, James Christian. Jurisdiction is relinquished.

      . The Act of October 5, 1980, P.L. 693, No. 142, § 201(a), 42 Pa.C.S.A. § 5341 et seq.

        . The Act of October 5, 1980, P.L. 693, No. 142, § 208(a), 42 Pa.C.S.A. § 5364.

      . (a) General rule.—A Court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (1) this Commonwealth:
      (i) is the home state of the child at the time of commencement of the proceeding; or
      (ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth....

      . The Act of April 2, 1980, P.L. 63, No. 26, § 101, 23 P.S. § 101 et seq.


text:
    463 A.2d 19
    COMMONWEALTH of Pennsylvania v. Louis STANTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1983.
    Filed July 15, 1983.
    Petition for Allowance of Appeal Denied Nov. 16, 1983.

      William P. James, Philadelphia, for appellant.

      Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   BROSKY, Judge:

This is an appeal from the order dismissing appellant’s Post Conviction Hearing Act (PCHA) petition after a hearing. Appellant contends trial counsel was ineffective: (1) for failing to object to the trial court’s instruction to the jury concerning malice and second degree murder; (2) for failing to object to numerous improper comments by the prosecutor or for failing to raise such issues in post-verdict motions or on direct appeal; and (3) for failing to file a timely written motion to dismiss the action due to a violation of Pa.R.Crim.P. 1100. We disagree with appellant and affirm the order of the court below.

Appellant was arrested on April 27, 1970 and charged with the homicide of David Fineman, a Temple University student, which had occurred that same day. He was initially brought to trial on May 10, 1971 and was convicted of murder in the first degree. The judgment of sentence of life imprisonment was reversed by the Pennsylvania Supreme Court on McCutchen grounds.

Appellant was retried and again convicted of first degree murder and sentenced to life imprisonment. On direct appeal, the Superior Court affirmed the conviction in Commonwealth v. Stanton, 269 Pa.Super. 305, 409 A.2d 901 (1979).

Appellant then filed a PCHA petition alleging various instances of ineffective assistance of counsel. This was the first time appellant was represented by counsel other than trial (who was also appellate) counsel. After a hearing, the court below denied relief and this timely appeal followed.

Appellant first contends that trial counsel should have objected to the following portions of the trial court’s instructions to the jury:

Now, if you find that this killing by the defendant resulted from a voluntary act without justification or excuse, the presumption is that the killing is malicious. Therefore, being presumed to be malicious, the killing would be presumed to be murder. All unlawful malicious killings are murder, but it is only where the elements of first degree murder have been proved to your satisfaction that a conviction for that degree could be had.

The court further instructed the jury:

In all unlawful killings without justification or excuse, where the act of slaying was voluntary, the presumption is that it is murder of the second degree only and the burden is upon the Commonwealth to prove that it is first degree murder.

He argues that these portions of the charge created either a conclusive or a mandatory presumption that a killing which results from a voluntary act is malicious and is murder in the second degree. Such presumptions would constitute reversible error under County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

In our evaluation of appellant’s contention, we note that “[tjhis Court has consistently held that, in reviewing jury instructions for prejudicial and reviewable error, the charge must be read and considered as a whole... Error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls.” Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978) (citations omitted).

In reviewing the whole charge, we first conclude that the court’s instruction in the second paragraph quoted above simply served to distinguish for the jury the difference between first and second degree murder. The only presumption a reasonable juror could have interpreted the instruction as creating was that once murder was found, it was presumptively only second degree murder absent additional proof by the Commonwealth. Such a presumption certainly was not harmful to appellant, but was, if anything beneficial to him under the 1939 Penal Code.

As to the first paragraph quoted above, we find that the effect of the whole charge was to create merely a permissive presumption of malice. For example, the trial court specifically stated the following in its charge:

Now, the use of a weapon such as a firearm, against a vital part of a person’s body, such as the head or chest, is a fact from which you may infer the existence of malice.[ ]

A permissive presumption is constitutionally valid if it can “be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57, 82 (1969). We have no difficulty in concluding with substantial assurance that malice is more likely than not to flow from the proof of an “unlawful killing without justification or excuse, where the act of slaying was voluntary.

Appellant also argues that the questioned instruction shifted the burden of production or persuasion to appellant to show justification or excuse. Again, considering the entire charge, we believe the trial court clearly explained to the jury that the Commonwealth must prove all of the factors upon which guilt may depend.

Therefore, we find that objections on the above grounds to the questioned portions of the charge would have been meritless. Since counsel cannot be found ineffective for failing to advance a meritless claim, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), we find no merit to appellant’s first issue.

Appellant next contends that his trial counsel was ineffective for failing to object to numerous improper and prejudicial arguments of the prosecutor and failing to raise such issues on post-verdict motions or on direct appeal where a timely objection had been made. After carefully reviewing appellant’s myriad claims, we conclude that the opinion of the PCHA court below adequately disposes of this issue.

Appellant’s final contention is that trial counsel was ineffective for failing to file a timely written motion to dismiss the prosecution due to a violation of Pa.R.Crim.P. 1100. Under Pa.R.Crim.P. 1100(e)(2), the Commonwealth was obligated to commence appellant’s trial by May 27, 1976, the 120th day after the Supreme Court reversed his 1971 conviction. On May 26, appellant filed a motion to dismiss indictments because of pre-trial publicity. Although the motion could have been dismissed as untimely under Pa.R.Crim.P. 306 and 307, the court below allowed its filing on May 27, subject to a continuance until June 1, 1976 for the Commonwealth to prepare a response. Defense counsel agreed to this continuance. On June 1, the court denied the motion to dismiss and jury selection began that day.

Appellant argues that since trial did not begin on May 27, his rights under Rule 1100 were violated and, thus, that it was per se ineffectiveness for his trial counsel not to have raised the issue in a timely, written motion, see Commonwealth v. Foley, 269 Pa.Super. 71, 409 A.2d 68 (1979).

In support of his argument that Rule 1100 was violated, appellant notes that there is no indication that appellant himself sought to waive his Rule 1100 rights. However, this court has held that where counsel for a defendant agrees to a trial date beyond the end of the Rule 1100 period, the defendant may not later complain that Rule 1100 was violated. Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975); Commonwealth v. Daniels, 288 Pa.Super. 69, 431 A.2d 291 (1981); see Commonwealth v. Walley, 262 Pa.Super. 496, 396 A.2d 1280 (1978); but see Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979) (plurality).

Since defense counsel in the instant case agreed to a trial date beyond the end of the Rule 1100 period, we conclude the period between May 27 and June 1 was waived for purposes of Rule 1100. Also, we find that trial did, in fact, commence on June 1, 1976 with the beginning of voir dire. See Commonwealth v. Bellamy, 254 Pa.Super. 168, 385 A.2d 579 (1978).

Since there is no merit to a claim of a Rule 1100 violation, trial counsel cannot be held to be ineffective for failing to advance such a claim. Hubbard, supra.

Accordingly, we affirm the Order.

      . Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975).

      . The 1939 Penal Code, in effect at the time of the Fineman killing, provided for only two degrees of murder:
      All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree.
      18 P.S. § 4701.

      . A permissive presumption "allows—but does not require—the trier of fact to infer the elemental fact from proof ... of the basic one and ... places no burden of any kind on the defendant.” Ulster County, 442 U.S. at 157, 99 S.Ct. at 2224, 60 L.Ed.2d at 792.

      . The testimony in this case revealed that appellant shot the victim in the head.

      . We would only correct and supplement the lower court’s opinion by noting the following:
      (1) We do not find those issues of ineffectiveness as to which the underlying claims were decided on direct appeal by the Superior Court to have been finally litigated since it is the issues of ineffectiveness not the underlying claims which are raised here. See Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980) (dissent). However, since trial counsel clearly pursued these claims, we, of course, cannot find him ineffective for not doing so.
      (2) While we agree with the lower court that none of the prosecutor’s remarks rose to the level of reversible error, we also agree with the Commonwealth that “the evidence of guilt against appellant was so overwhelming, that any remark, though improvident, on the part of the district attorney was harmless error beyond a reasonable doubt." Commonwealth v. Baynes, 269 Pa.Super. 563, 568, 410 A.2d 845, 847 (1979).