text:
    496 A.2d 782
    Doris LICHTENFELS, Grace Doppelheurer, Samuel F. Morrison, Maxine Beye, Lois Miller, Martha Greene, David L. Morrison and Raymond Morrison v. BRIDGEVIEW COAL COMPANY and Delta Mining, Inc. Appeal of DELTA MINING, INC.
    Superior Court of Pennsylvania.
    Argued April 9, 1985.
    Filed July 26, 1985.

      Charles C. Keller, Washington, for appellant.
    Ira B. Coldren, Jr., Uniontown, for Bridgeview Coal Co., appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

The issue on this appeal is whether a surface lease with mining rights, executed by less than all the owners of the property, survives a partition sale of the property to a third party.

The aggrieved party on appeal is Delta Mining, Inc., which on January 10, 1979 leased a 150-acre tract of land from nine of its ten owners by tenancy in common. The lease conveyed the land together with all rights necessary for the proper mining of coal thereunder, including rights-of-way for transportation and haulage, for a period of three years. The lease further gave Delta the right to extend the agreement on the same terms, “for such time as may be required to mine, remove and market all of the coal seams under said leased land.” Thé agreement provided for the payment of royalties to the lessors based on tonnage of coal removed from the ground.

The lease did not, however, convey any interest in the coal itself. The coal was owned by another person, who independently contracted to lease a 75% interest in the coal to Delta, with the remaining 25% interest going to Bridge-view Coal Company.

At the end of the option period prescribed in the surface lease, Delta exercised its option and extended the lease for an additional three years. Delta, however, was unable to get the approval of the Pennsylvania Department of Environmental Resources to begin mining, as it had failed to obtain the consent of 100% of the surface owners.

In early 1982, the surface owner who had not joined in the lease, and one of the owners who had, by separate deeds conveyed their one-tenth interests in the tract to Bridgeview Coal Company. Consequently, Bridgeview acquired an undivided two-tenths interest in the land as tenant in common with the remaining eight owners who were parties to the lease with Delta.

In 1983, the eight lessors commenced an action against Bridgeview in the Court of Common Pleas of Fayette County, seeking partition. Delta Mining was also named as a defendant. After a conference, the court determined that an amicable division of the real estate was not feasible, and ordered a sale confined to the tenants in common. At the partition sale Bridgeview purchased the interests of the other eight owners, and the court confirmed the sale.

The parties then sought the court’s ruling on the effect of the sale on Delta’s lease. The court determined that the lease was null and void as against Bridgeview. After denying Delta’s exceptions, the court entered final judgment on November 7, 1984. Delta appeals.

The basic rule of law which the court found controlling is stated in McCullough’s Petition, 275 Pa. 456, 458-59, 119 A. 585, 586 (1923):

In Caveny v. Curtis, 257 Pa. 575 [101 A. 853] speaking through Mr. Justice FRAZER, we laid down the broad principle that “One tenant in common is without authority to bind his cotenants by an agreement concerning the use or control, or affecting the title, of the joint property.”
The principle which would prevent one tenant in common from binding the land to the disadvantage of his cotenants by lien or by the creation of a right or easement in the common property would likewise prevent him from granting a leasehold interest in it which would prevent partition with all its resulting incidents, including possession.

Thus, under the holding of McCullough, Bridgeview, the purchaser at partition, could not be deprived of possession of the premises by virtue of Delta’s leasehold interest obtained from less than all the cotenants.

Delta contends, however, that the property interest it acquired through the mining lease was not a mere leasehold interest, but was similar to a mineral estate in the land, conferring on it greater rights than would flow from an ordinary lease. Delta further claims that the nature of the lease as a mining agreement rendered unnecessary the joinder of all cotenants in the lease.

To fully understand Delta’s argument, we must review some of the special principles that have developed in Pennsylvania concerning mineral rights in real estate.

Pennsylvania recognizes three separate estates in real property: the surface estate, the mineral estate, and the right to surface support (also known as the “third estate”). Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227 (1943). These estates are severable, and in relation to the same land may be held by three different owners. Id.

A sale of coal in place in the ground, or what amounts to the same thing, an agreement leasing the minerals underneath the land until their exhaustion, conveys fee simple in the minerals to the lessee, Essex Coal Co. Appeal, 411 Pa. 618, 192 A.2d 675 (1963); Hummel v. McFadden, 395 Pa. 543, 150 A.2d 856 (1959); Smith, supra; such a lease is thus considered an outright grant of an estate in the minerals to the lessee. See Pennsylvania Bank & Trust v. Dickey, 232 Pa.Super. 224, 335 A.2d 483 (1975).

Another special rule relating to the mineral estate is that a tenant cannot restrain a cotenant with an undivided interest in the land from realizing the value of the estate by producing or consuming the underlying minerals. See Coleman’s Appeal, 62 Pa. 252 (1869); Prairie Oil & Gas Co. v. Allen, 2 F.2d 566 (8th Cir.1924).

“The tenant in common of a mine may occupy it for the purpose contemplated by all, even though a portion of the soil or ore be removed. Each tenant has the right to use the mine, and ... so long as an estate is used according to its nature ‘it is no valid objection that the use is consumption, and it is no fault of the tenant that it is not more endurable.’ ”

McCord v. Oakland Quicksilver Mining Co., 64 Cal. 134, 141, 27 P. 863, 865 (1883) (quoting Irwin v. Covode, 24 Pa. 162, 167 (1854)), quoted in Prairie Oil, supra, at 571. See generally Annots., 91 A.L.R. 205 (1934), 40 A.L.R. 1400 (1926). The right of a cotenant to develop the minerals on the common land is subject only to the duty to account to the tenants out of possession for their proportional share of the returns. See Appeal of Fulmer, 128 Pa. 24, 18 A. 493 (1889); Coleman’s Appeal; Reynolds v. Smith, 70 Pa.Super. 194 (1918); see generally Annot., 5 A.L.R.2d 1368 (1949) (basis of computation).

Combining the foregoing rules, Delta postulates the following: the lease it obtained from the nine part-owners was A) a mining lease, thus B) it belonged to that special class of leases that convey an actual fee estate to the lessee, and therefore C) by entering into the lease Delta acceded to an undivided nine-tenths ownership interest in the surface and support estates. In conclusion, Delta maintains that its interest in the land was not a mere lease from some of the surface owners that could be defeated by a partition sale between Bridgeview and the lessors.

Delta’s argument is fundamentally flawed in several respects. First, although Delta’s lease was indeed a mining lease, it was not a sale of the actual minerals, and thus was not the type of mining lease under which our courts have found a conveyance of a fee estate to the lessee. Second, Delta’s attempt to claim fee title to the surface and support estates by analogy to a sale of coal in place is without support in precedent or authority. It would work a drastic change in the law of Pennsylvania to hold that a surface lease is transformed into an outright sale of the surface whenever the lease includes surface mining rights.

On the first point, Delta’s leasehold interest met none of the traditional requisites under which the courts have found a conveyance of the mineral estate to the lessee in fee. In Hummel v. McFadden, supra, the Supreme Court of Pennsylvania summarized the conditions that must be met before a mining lease will qualify as a grant in fee of the mineral estate:

subsequent decisions eventually solidified the test to be applied to determine whether or not an agreement constituted a sale of coal in place into three general principles: (1) the right had to be exclusive in the vendee; (2) to mine all the coal; (3) and he must have paid either a stipulated consideration, or have been compelled to mine, or what is the same thing, pay for the coal if not mined.

395 Pa. at 551-52, 150 A.2d at 860 (omitting footnote collecting cases). Obviously the right granted Delta under its lease was not “exclusive in the vendee,” because the landowner who did not join in the lease could not have been prevented from entering the land and exercising whatever mining rights the landowners had. See McKinley v. Peters, 111 Pa. 283, 3 A. 27 (1885); Prairie Oil, supra. Nor could the lessors convey any right “to mine all the coal,” as they had no rights to the coal. Nor, for the same reason, could the lease compel Delta to mine the coal or pay for it if not mined.

Delta concedes that the lease did not operate as an actual grant of the mineral estate. However, Delta points out that the agreement gave it complete rights to strip-mine the premises in pursuit of coal. Because these rights if exercised necessarily would entail consumption or destruction of the surface and underlying support, Delta argues that by analogy to a coal lease it obtained fee title to the surface and support estates.

In support of its contention that a conveyance of surface mining rights can act as a grant in fee of the surface estate, Delta cites Everly v. Shannopin Coal Co., 139 Pa.Super. 165, 11 A.2d 700 (1940) (allocatur denied). In that case Shannopin had acquired fee simple to an undivided one-quarter interest in a coal seam, as tenant in common with the three-quarter owner. In conjunction with its fee title to the coal, Shannopin had also obtained mining rights to the surface of the land, including the right to transport coal from its own mines through the common property. After exhausting the common coal, Shannopin continued to transport its own coal through the haulageways cut during the mining of the common coal. The Court held that Shannopin was entitled to continue using the haulageways, subject to an accounting to the three-quarter owner for three quarters of the fair rental value of the common property Shannopin used for its own purposes. The Court interpreted the estate granted to Shannopin by the former one-quarter owner as outliving exhaustion of the coal itself and extending to the space vacated by the coal removed. Consequently, the appurtenant surface mining rights also extended beyond depletion of the coal, and survived as long as Shannopin continued to use the land for the purposes contemplated by the grant.

Delta’s reliance on Shannopin in effect begs the question whether Delta obtained a valid estate in land by virtue of its lease. No doubt if the agreement Delta entered into were competent to convey to it a fee simple estate as tenant in common with the other owners, then Delta would be entitled to whatever surface mining rights were conveyed along with the land. However, Delta must first demonstrate that it owned an estate in the land; and since Delta did not own the mineral estate as did the coal company in Shannopin, we find Delta’s utilization of the Shannopin rationale to bootstrap the argument that Delta owned an estate in the surface unconvincing.

As the Supreme Court said in Hummel, supra, “each mining agreement must be judged sui generis in order to determine the extent to which the parties have bargained.” 395 Pa. at 555, 150 A.2d at 861. Where the evidence is insufficient for the court to find an actual sale of the coal in place so as to trigger the “Pennsylvania Doctrine” recognizing a conveyance of the mineral estate in fee, then interpretation of a mining lease must be guided by the same general contract principles that govern any other type of agreement. Olbum v. Old Home Manor, Inc., 313 Pa.Super. 99, 459 A.2d 757 (1983); see also Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). Delta directs us to no principle of contract law that would allow a surface lease with mining rights to be interpreted as a grant of the surface estate in fee simple. On the contrary, such a lease generally is considered to be what it purports to be, a right to mine the premises conveying no estate in the surface itself. See Commonwealth v. Solley, 384 Pa. 404, 121 A.2d 169 (1956).

We find the contractual effect of Delta’s surface lease to be most closely controlled by this Court’s decision in Bridgeview Coal Co. v. Burchinal, 201 Pa.Super. 602, 193 A.2d 755 (1963). Burchinal dealt with the mining rights to a tract of land that contained a nine-foot vein and a five-foot vein of coal, as well as other minerals. A, owner in fee of the land, conveyed to B all the unmined coal in the nine-foot vein together with the mining rights thereto and a waiver of support rights in the overlying strata and surface. Later A sold B the entire surface estate in the land, reserving to itself all underlying minerals and mining rights aside from those granted to B in the earlier transaction.

B then executed and delivered a deed to P purporting to sell the five-foot vein of coal together with the right to mine and remove the coal by the strip mining method. Subsequently, B sold the nine-foot vein and appurtenant mining rights to D, and A sold D the remaining coal, including the five-foot vein, together with mining rights.

P brought an action for declaratory judgment against D, maintaining that it had the exclusive right to strip-mine the five-foot vein on the theory that the deed from B had conveyed to P the right to surface support (the third estate). P admitted that its deed from B was invalid as a conveyance of the coal itself.

The court entered judgment for the defendant, and our Court affirmed. Speaking through Judge Watkins, we said:

[i]f, together with title to the coal, mining rights are granted, and the coal in question is close to the surface so that the only practical and economically feasible method of removing the coal is by the strip mining method, the grant of mining rights imply [sic] stripping as well as deep mining. Com. v. Fitzmartin, [376 Pa. 390, 102 A.2d 893 (1954) ]. The difficulty in our case is that the grantor never had title to the coal.

201 Pa.Super. at 606, 193 A.2d at 757. We therefore held:

“all that the plaintiff, Bridgeview Coal Company, ever acquired from B. was a mere contractual license to strip mine the coal. This license to strip was not an estate in the land, and could only be operative as between the parties to the contract; and then only if B. should ever acquire title to the [5-foot vein] in the future. Since there is little likelihood of B. [sic] ever acquiring title to the [5-foot vein] in the existing circumstances, thus giving rise to the doctrine of estoppel, we may only conclude that the plaintiff has no right to strip the [5-foot vein] as against the defendant. The plaintiff’s remedy, if it seeks one, must of necessity be against B.”

Id., 201 Pa.Superior Ct. at 608, 193 A.2d at 758 (quoting opinion of the trial court) (emphasis added).

Here, just as in Burchinal, Delta failed to acquire any estate in the coal from the lessors; all it obtained, in effect, was a license to strip the coal, contingent, of course, on its acquiring rights to the coal itself.

We turn now to consider the effects of Delta’s license on Bridgeview’s right to purchase the land in partition proceedings.

A lessee, either by the length of his term or by the nature of the lease, may acquire a sufficient interest in the land to be entitled to notice and party status in a partition proceeding, where his interest in the land might be prejudiced by partition. See Etnier v. Pascoe, 275 Pa. 308, 119 A. 406 (1923); Duke v. Hague, 107 Pa. 57 (1884). In the Duke case, the Supreme Court went so far as to say that a lessee with a long term of years from one tenant in common would be entitled to partition against the other tenants in common. Duke’s actual holding, however, was that a lessee of land for the extraction of minerals had an interest in the land that could not be avoided by an amicable partition proceeding wherein a third party with actual knowledge of the lease bought from the lessors. Delta relies on this case to support its claim that Bridgeview Coal Company, having known of Delta’s lease, could not defeat the lease by purchasing the land at partition.

Two salient factors distinguish Duke from the present case. First, in Duke the lessee had obtained an exclusive right from the tenants in common to mine the premises for “petroleum, rock, or carbon oil.” The lease entitled him to take as much of these minerals as he could extract during the twenty-year term of the lease. Under the law of this Commonwealth, the lessee had acquired an actual mineral estate in the land, notwithstanding that the grant was for a term of years. See Essex Coal Co., supra; Commonwealth v. Solley, supra; Boron v. Smith, 380 Pa. 98, 110 A.2d 169 (1955). But cf. Olbum, supra. Secondly, in Duke all cotenants with an ownership interest in the land at the time of the lease had joined in the lease; the partitioning of the land came only after one of the lessors had lost his undivided one-quarter interest in the land through mortgage foreclosure. Thus, Duke did not even decide whether a lease executed by less than all tenants in common can be superior to the rights of a third party taking at partition. See also Sheets v. Allen, 89 Pa. 47 (1879) (clay mining lease granted by sole owner of property).

The case of McKinley v. Peters, supra, actually bears a much closer resemblance to the situation at hand. In McKinley the lessee had obtained a ten-year coal lease from one of two tenants in common. The lessee entered the land and mined and improved it. Thereafter, the lessee was evicted before expiration of the lease, apparently at the behest of the tenant who had not signed the lease. The Supreme Court held that eviction of the lessee was proper, as one cotenant had no authority to bind the other.

In short, the mere fact that the lease Delta signed was a coal-mining lease provides no ground upon which Delta can avoid application of the rule laid down in McCullough’s Petition. The partition sale of the property to Bridgeview Coal Company passed title free and clear of any encumbrances placed on the land by less than all the tenants in common, and Delta has no right to enforce the lease against Bridgeview. Any rights Delta may have against the lessors are not subject to review on this appeal. Accordingly, the decision of the court of common pleas must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    496 A.2d 789
    COMMONWEALTH of Pennsylvania v. David Michael STERLING, Appellant.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed July 26, 1985.

      Terrence P. Cavanaugh, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before MONTEMURO, ROBERTS and BLOOM, JJ.

       Judge Louis A. Bloom, Senior Judge, of the Court of Common Pleas, of Delaware County, Pennsylvania, is sitting by designation.

   MONTEMURO, Judge:

Appellant, David Michael Sterling, appeals from the judgment of sentence of the Court of Common Pleas of Erie County. On January 4, 1984, appellant was arrested and charged with three (3) counts of robbery, two (2) counts of receiving stolen property, three (3) counts of reckless endangerment, two (2) counts of corruption of minors, three (3) counts of criminal conspiracy, three (3) counts of possessing instruments of crime, one (1) count of simple assault and two (2) counts of terroristic threats. The charges related to appellant’s involvement with three (3) other males in a series of robberies. A carbon dioxide powered pellet gun owned by appellant was used during the course of the robberies. On May 17, 1984, appellant pled guilty to three (3) counts of robbery, one (1) count of corruption of minors and one (1) count of criminal conspiracy.

Upon petition of the Commonwealth, an evidentiary hearing was held on June 12, 1984, to determine the applicability of 42 Pa.C.S. § 9712 to appellant’s sentence. The court determined that a carbon dioxide pellet gun was a “firearm” within 42 Pa.C.S. § 9712 and that the mandatory minimum sentence of imprisonment for the use of a firearm during the commission of a robbery was applicable. The court then sentenced appellant to concurrent terms of imprisonment of five (5) to ten (10) years on the robbery convictions and to concurrent probationary sentences on the conspiracy and corruption charges.

On appeal, the sole issue presented by appellant is whether a carbon dioxide pellet gun is a firearm within the meaning of 42 Pa.C.S. § 9712(e). He contends that the trial court erroneously determined that a carbon dioxide pellet gun was a firearm as defined in section 9712(e). Thus, he argues that the court erred in imposing the minimum five (5) year sentence of imprisonment mandated by section 9712 and, furthermore, that section 9712 is so vague as to render it unconstitutional.

We begin our analysis by examining section 9712 which provides as follows:

§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa. C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
(b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
(d) Appeal by Commonwealth. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
(e) Definition of firearm. — As used in this section ‘firearm’ means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

Appellant makes several arguments with respect to the interpretation of the definition of “firearm” in section 9712(e). First, he argues that since the case of Commonwealth v. Schilling, 288 Pa.Super. 359, 431 A.2d 1088 (1981), determined that a CO2 operated pellet gun was not a “firearm” as defined under the Uniform Firearms Act, it should not be included as such under the Sentencing Code. Appellant also contends that the definition of “weapon” in the Crimes Code (18 Pa.C.S. § 907) should be used to define the term weapon as it is used in section 9712(e) of the Sentencing Code. Under section 907 of the Crimes Code, a weapon is defined as “anything capable of lethal use”. Appellant states that it is highly unlikely that a carbon dioxide powered gun would be used lethally and, thus, it should not be classified as a weapon.

We reject appellant’s contentions. His interpretations disregard the clear and unambiguous statutory language contained in section 9712(e). “[W]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded.” 1 Pa.C.S. § 1921(b) (1964-1983 Supp.); Commonwealth v. Patchett, 284 Pa.Super. 252, 255, 425 A.2d 798, 800 (1981). We must give effect to the obvious meaning of clear statutory language. Commonwealth v. Patchett, supra.

A carbon dioxide powered BB gun clearly fits within the ambit of section 9712(e). The section explicitly provides, “Definition of firearm. —As used in this section ‘firearm’ means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.” A carbon dioxide powered gun expels a projectile by the action of an explosive or the expansion of gas. Thus, there is no doubt that it is a firearm for purposes of section 9712 of the Sentencing Code. Further, we do not find appellant’s citation to the cases interpreting the definition of firearm under the Crimes Code persuasive. In section 9712(e) the introductory phrase, “as used in this section ‘firearm’ means”, evinces an awareness by the legislature that other definitions of firearm may exist, but that this particular definition is specifically applicable to section 9712 of the Sentencing Code.

Following the explicit statutory language of section 9712(e), we conclude that the trial court correctly determined that a carbon dioxide pellet gun is a firearm for purposes of section 9712.

Appellant also claims that the definition of firearm in section 9712(e) is contradictory because it first includes a starter gun, which appellant argues does not expel a projectile, and then proceeds to define a firearm in terms of weapons which expel projectiles. We find that this argument lacks merit. Section 9712(e) not only includes weapons which expel a projectile, but also encompasses “any weapon ... which ... may readily be converted to expel a projectile.” (emphasis added).

Appellant’s final contention is that the statute is unconstitutionally vague and violative of his due process rights in that it is impossible to determine what constitutes a firearm. A law is void on its face if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Fabio v. Civil Service Commission, 489 Pa. 309, 414 A.2d 82 (1980). In reviewing a void for vagueness challenge, we must consider both the essential fairness of the law and the impracticability of drafting the legislation with greater specificity. Id. Further, we note the strong presumption of constitutionality and the heavy burden of persuasion upon one who challenges the constitutionality of an Act of the General Assembly. American Booksellers Association, Inc. v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984). Legislation will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution and a mere showing of difficulty in determining whether conduct is within the definition will not suffice to meet this heavy burden. Id.

Reviewing the statute in light of the above principles, we find that the term “firearm” is clearly and specifically defined in section 9712 and requires no guess-work to determine its meaning. Accordingly, we find that section 9712 withstands appellant’s vagueness attack.

Judgment of sentence affirmed.

      . The testimony from this evidentiary hearing is not included in the record on appeal.

      . The Commonwealth contends that appellant waived this argument since he failed to file a motion to modify sentence. Although appellant alleges he filed a motion for reconsideration of sentence on June 22, 1984, there is no indication in the record that such motion was filed. Nevertheless, appellant's argument has not been waived. An issue raising the legality of a sentence cannot be waived by a failure to properly raise the issue in the trial court. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985); Commonwealth v. Bossche, 324 Pa.Super. 1, 471 A.2d 93 (1984).

      . 18 Pa.C.S. § 6101 et seq.


author: BECK, Judge:

text:
    496 A.2d 793
    Florence M. FEE, Appellee, v. J. Kevin FEE, Appellant. Florence M. FEE, Appellant, v. J. Kevin FEE, Appellee.
    Superior Court of Pennsylvania.
    Argued April 24, 1984.
    Filed July 26, 1985.

      William R. Hagner, Paoli, for appellant (at No. 3135), for appellee (at No. 3313).
    Arthur L. Jenkins, Jr., Norristown, for appellant (at No. 3313), for appellee (at No. 3135).
    Before McEWEN, BECK and CERCONE, JJ.
   BECK, Judge:

In this appeal from a Chester County child support order, the father asserts that the trial court erred in calculating his support obligation under a shared custody arrangement (1) by premising its order on the Chester County support guidelines; (2) by ignoring monies expended directly on the children and (3) by considering the economic contribution of his live-in companion. The mother cross-appeals by contending that the trial court erred in not affirming the hearing officer’s recommendation of $920 per month and instead awarding $875 per month in support for her and the parties’ two children. These cross-appeals which are limited to the issue of child support, have been consolidated.

On appeal, a trial court’s child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award. Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983); Downie v. Downie, 314 Pa.Super. 548, 461 A.2d 293 (1983). An abuse of discretion is not “ ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982) (citation omitted); Commonwealth ex rel. Darling v. Darling, 300 Pa.Super. 62, 445 A.2d 1299 (1982). For the reasons hereinafter stated, we conclude that the trial court lacked adequate evidence upon which to predicate its award, and therefore, we vacate the trial court’s support order and remand for further proceedings consistent with this opinion.

In many counties, the courts rely on county support guidelines in fashioning support awards. See, e.g., Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982). These guidelines are an efficient tool and impose some uniformity on support orders. The Chester County guidelines which are in the form of grids, consider two variables: the number of persons for which support is sought and the individual incomes of the mother and the father. After the court determines the appropriate support amount from the grid, it then adjusts that amount by considering the parents’ other direct and indirect financial benefits and the actual, reasonable expenses of the parents and children together with any circumstances that may increase or defray those expenses.

In the case sub judice, the trial court determined the parties’ respective net monthly incomes and then consulted Chester County’s support guidelines. Although the guideline grids are gauged solely to income and the number of people being supported, the preamble to the guidelines provides flexibility in applying the grids. The preamble declares that the guideline grids are “not intended to deprive the hearing officer of discretion to consider, among other things ...: a) other support obligations of the parties; b) other income in the household; c) age and sex of children; and d) assets of the parties.” The preamble also requires that “[i]f a [hearing officer’s] recommendation departs from the guideline grids by more than [a] specified deviation, the hearing officer is required to give an explanation.” In other words, the primary focus of the guidelines is the parents’ individual incomes rather than the parents’ overall financial resources available for child support, and there is a strong, albeit rebuttable, presumption, in Chester County that the “guidelines show the typical amount of support which a spouse or parent should pay____” Preamble to the Chester County Guidelines.

The present support order reflects the fact that the Chester County trial court conscientiously considered factors outside the guideline grid and adjusted the recommended grid support amount accordingly. However, we are unable to review the trial court’s support order without an explanation of the factors considered by the court and the reasons for the adjustments made to the grid support amount. We do not have the benefit of adequate explanations in the record or in the trial court’s opinion.

For example, the trial court predicated its support order upon a Chester County guideline grid captioned support for “Wife and Two Children.” Since the grid does not allocate support between the spouse and the children, we cannot determine whether the children’s needs, apart from the spouse’s, are adequately met by the grid’s support allotment. See Downie. Although the trial court allocated its support award between the children and the mother, the basis for the court’s allocation does not appear of record.

Moreover, the evidence adduced by the parties was not geared to provide information to use as a basis for allocation. Although both parents supplied the court with expense statements, they did not separate their own expenses from those of the children. See Downie. Additionally, the mother’s expense statement included several desired or conjectural, rather than actual, expenses., See Robinson. Therefore, the trial court was not provided evidence of the actual, reasonable expenses entailed in raising the parties’ children.

Furthermore, the guideline grid utilized by the trial court is, as revealed by the grid’s caption (“Wife and Two Children”) and the preamble to the guidelines, geared to child custody cases where one parent has sole custody. Because child-rearing expenses in a shared custody setting may vary from those in a sole custody setting, Beck v. Beck, 86 N.J. 480, 432 A.2d 63 (1981), it cannot be assumed without explanation that the Chester County guideline grid reflects the children’s reasonable peeds in a shared custody context.

In addition to evidence of the children’s expenses, a court must have competent evidence of the parents’ financial resources and actual, reasonable living expenses so that the court can formulate an equitable child support award. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). “Support orders must be fair, not confiscatory, and must be consistent with the parents’ and childrens’ station in life and customary standard of living.” Robinson, 318 Pa.Super. at 425-26, 465 A.2d at 28; Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985). Both parents bear equal responsibility for supporting their children and “ ‘must be required to discharge the obligation [of child support] in accordance with their capacity and ability.’ ” Downie, 314 Pa.Super. at 550, 461 A.2d at 294 (quoting Conway v. Dana, 456 Pa. 536, 540, 318 A.2d 324, 326 (1974)); Sutliff.

Among the considerations outside the guideline grid in the case sub judice is the father’s living expenses. In this regard, the trial court correctly recognized that some of the father’s living expenses were being defrayed by the father’s live-in companion. Melzer; Roberts v. Bockin, 315 Pa.Super. 52, 461 A.2d 630 (1983); Commonwealth ex rel. Travitzky v. Travitzky, 230 Pa.Super. 435, 326 A.2d 883 (1974). The father argues that the trial court impermissibly attributed to him a portion of his live-in companion’s income and indirectly made his live-in companion partially responsible for the support of the parties’ children.

While “ ‘there is nothing in our law which requires [a] new spouse to support minor children of [a prior] marriage,’ ” Melzer, 505 Pa. at 476, 480 A.2d at 998 (citation omitted), and while, therefore impliedly, there is nothing in our law which requires a live-in companion to support minor children of a prior marriage, Pennsylvania courts have repeatedly acknowledged that to the extent that a parent’s expenses are lessened by the contribution of a third party, the parent may have increased financial resources available for child support. Id.; Roberts; Shank; McBride v. Davis, 266 Pa.Super. 125, 403 A.2d 125 (1979); Travitzky.

In this instance, there was substantial evidence of record to show that the father and his live-in companion share many living expenses. For example, the father resides in a home purchased in the name of his live-in companion and is the guarantor of his companion’s home mortgage. Accordingly, we find that in ascertaining the father’s child support capacity, the trial court properly examined the contributions to the father’s living expenses which were made by the father’s live-in companion.

Having carefully reviewed the evidentiary foundation for the trial court’s support order, we conclude that it is necessary to vacate said order and remand this case to the trial court for additional evidentiary proceedings so that a record of the children’s actual, reasonable expenses in the shared custody setting and of the parents’ complete financial resources and actual, reasonable expenses may be obtained as the basis for a support order. Jurisdiction is relinquished.

      . Neither parent has disputed the amount of the other’s reported monthly income; hence, there has been no disagreement as to which Chester County guidelines grid was utilized by the trial court.

      . We note that the mother’s expense statement was also inaccurate to the extent that it listed home mortgage payments which were routinely made by the father.

      . The parties’ evidence regarding the reasonable expenses involved in raising their children necessarily included monies spent by each parent directly on the children’s behalf while the children were in that parent’s custody. Thus, contrary to the father’s assertion, the parents’ direct contributions to the children’s welfare constituted one element of the children’s reasonable expenses evaluated by the trial court.

      . The preamble to the guidelines contains a section captioned "Divided Custody.” However, this section relates strictly to situations where the parties’ children are raised separately so that sole custody of some of the children resides in the mother while sole custody of the remaining children resides in the father. There is no reference in the guidelines to shared custody where the parties’ children reside alternately with the father and then the mother.

      . Even though duplication of some items may be required in a shared custody context {e.g., children will need a place to sleep at each parent's home so that each parent may have to purchase beds for the children), it will not be necessary to duplicate all items utilized by the children {e.g., the children may wear the same pair of shoes at both parents’ homes). Hence, proof of child-raising expenses in shared custody cases is crucial to the court's calculation of fair support obligations. Parents’ support obligations in shared custody cases may differ from parents’ support obligations in sole custody cases.

      . For child support purposes, a parent's financial resources include far more than earned wages or salary. Financial resources encompass the full nature and extent of each parent’s property, earning capacity, and direct and indirect income from whatever source. See, e.g., Curtis v. Curtis, 326 Pa.Super. 40, 473 A.2d 597 (1984); Cross v. Cross, 310 Pa.Super. 124, 456 A.2d 214 (1983); Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977).


text:
    496 A.2d 797
    Joann SOLIS, Appellee, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1984.
    Filed July 26, 1985.

      Walter S. Jenkins, Philadelphia, for appellant.
    Marvin I. Lessin, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   BECK, Judge:

The issue presented is whether an insurance carrier may apply its insured’s coordination of benefits election under Section 203(b) of the Pennsylvania No-fault Motor Vehicle Insurance Act (“No-Fault Act”) to a non-relative who is injured while a passenger in the insured’s motor vehicle and who is covered under a private health and accident insurance plan. The appellant asserts that to allow recovery results in a windfall to a passenger in an insured motor vehicle.

At the time of the accident in question, appellee was a passenger in a motor vehicle owned by Joan Sommers and insured by Prudential Property and Casualty Insurance Company (Prudential). Since appellee neither owned an automobile nor resided with anyone who owned an automobile, appellee was not personally covered by any automobile liability insurance. Appellee was, however, covered under a private health and accident insurance plan. After the accident, appellee sought to recover no fault benefits from appellant Prudential, the insurer of the automobile in which appellee had been injured. Prudential contested its liability for appellee’s claim because prior to the accident, Prudential’s insured (Ms. Sommers) had elected to coordinate benefits pursuant to Section 203(b) of the No-Fault Act. Thereafter, appellee filed a motion for summary judgment which the court granted on the issue of liability. Appellant appeals bringing into question this issue of first impression. We conclude that the trial court’s grant of summary judgment was proper.

The parties agree that there is no dispute as to any material fact and that the matter was ripe for summary judgment. Pa.R.C.P. No. 1035; Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982). The disposition of the controversy turns upon the interpretation of Section 203(b) of the No-Fault Act. As the insurer of the Sommers vehicle, appellant Prudential is designated by Section 204(a)(3) of the No-Fault Act, 40 P.S. § 1009.204(a)(3) as the source of payment of basic loss benefits to appellee. The owner of the Sommers vehicle, however, under Section 203(b) elected to make her automobile liability insurance coverage secondary to other medical coverage for payment of basic loss benefits. Appellant contends that appellee is bound by the election made by the owner of the car and that it is not obligated to pay appellee’s basic loss benefits because appellee carried private health insurance. Appellee contends that Sommers’ election under Section 203(b) does not bind her because appellee is not a named insured under Sommers’ policy of automobile liability insurance.

The issue necessitates interpretation of Section 203(b): The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of a deceased victim, allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary. (Emphasis added.)

Pivotal to our interpretation of this section is the intendment of the phrase “victim or members of his family.” The plain meaning of the language in the statute forces the conclusion that “victim” signifies the named insured. This conclusion is supported by the regulations applicable to Section 203(b) at 31 Pa.Code 66.1-203 which refers to the victim as the named insured.

The trial court correctly interpreted Section 203(b) and concluded that the automobile owner in making the Section 203(b) election for herself had no authority to bind an unrelated third party, in this instance appellee. Appellant insurance company complains that the trial court relied on an opinion of an investigator of the Pennsylvania Insurance Department and a legal treatise in interpreting the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act. The appellant misperceives the action of the trial court. The trial court notes that its statutory interpretation is “supported” by the view of a treatise on the Pennsylvania No-Fault Act and an opinion issued by the Pennsylvania Insurance Department. It is certainly not error for the court to look for guidance from recognized, reliable and published sources that relate to the issue before the court.

Finally, appellant claims that the award of attorney’s fees to appellee is improper. Both parties state in their briefs that the trial court awarded attorney’s fees to appellee. We have examined the trial court’s opinion and have found that it does not address the issue of attorney’s fees. In appellee’s motion for summary judgment, she alleges that she is entitled to attorney’s fees. Although the court granted summary judgment, it granted summary judgment only on the issue of liability. It did not rule on the question of attorney’s fees. Therefore, we will not address the question here. The court in determining the damage portion of the case is directed to clarify the question of attorney’s fees.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.203(b).


text:
    496 A.2d 799
    COMMONWEALTH of Pennsylvania v. Joseph BURKE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1985.
    Filed July 26, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   BECK, Judge:

Appellant contends that the lower court erred in granting the Commonwealth’s petition for extension of time pursuant to Pennsylvania Rule of Criminal Procedure 1100.

Rule 1100(a)(2) provides:
Trial in a court case in which a written complaint is filed against the defendant after June 30,1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

On March 25, 1983, a criminal complaint was filed against appellant, resulting in a Rule 1100 run date to September 21, 1983. The case was scheduled for trial on June 1, 1983 but because the Commonwealth was not ready to proceed and there was an outstanding motion to quash the information before the Motions Court, the case was continued until September 9, 1983. At the September 9 trial date, the case was continued until November 25, 1983, the earliest possible date, because one Commonwealth witness was on vacation and a second Commonwealth witness had a medical problem.

Rule 1100(c) provides in part:
At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.

Appellant argues that because the trial was initially listed on June 1, 1983 and then listed again on September 9, 1983, the Commonwealth must establish that it had exercised due diligence in attempting to secure the presence of the witnesses for both listing dates.

The law is well settled that the Commonwealth need not prove that it acted with due diligence on prior trial or hearing dates for which a Rule 1100 extension was not sought. Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254, 257 (1984); Commonwealth v. Tann, 298 Pa.Super. 505, 444 A.2d 1297 (1982). The relevant inquiry at the extension hearing is whether the Commonwealth demonstrated due diligence at the last listing before the run date at which it was unable to bring appellant to trial. Bulling, 480 A.2d at 257.

The Commonwealth sought one Rule 1100 extension. September 9, 1983 was the last listing date before the September 21, 1983 run date. On September 14, 1983, the Commonwealth timely filed a Petition For Extension Under Rule 1100(c). The Commonwealth’s Petition was granted until November 25, 1983 and the trial was commenced on the same date. Accordingly, only at this time, September 14, 1983, must the Commonwealth have demonstrated due diligence.

The Commonwealth must prove by a preponderance of the evidence that it acted with due diligence to bring the case to trial. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979).

The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411, 417 (1983), quoting Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678, 681 (1982).

Two Commonwealth witnesses were properly subpoenaed to appear on the September 9, 1983 trial date. The police witness failed to appear because he was on vacation. The civilian witness testified that he had sustained a foot injury several days prior to September 9, 1983. He further testified that the foot had swelled up on the morning of the trial which required medical attention at Abington Hospital.

Whether unavailability of a person for trial will nevertheless preserve the Commonwealth’s evidence of due diligence rests on whether the person was within the Commonwealth’s control. Commonwealth v. Singleton, 313 Pa.Super. 224, 459 A.2d 821, 823 (1983).

When witnesses become unavailable toward the end of the Rule 1100 time period — whether through vacation, illness, or other reasons not within the Commonwealth’s control, the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted. Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302, 304 (1981).

With respect to the police witness, the appellant contends that the Commonwealth lacked due diligence because the Commonwealth should have been on notice that several police officers schedule their vacation during the summer months. There was no evidence that such a vacation schedule was available on June 1, 1983, the time at which the September 9, 1983 trial listing was set. Moreover, the police witness testified that he had not received the notice to appear prior to going on vacation.

In Sharp, 287 Pa.Superior Ct. at 317, 430 A.2d at 304, the Court held that the Commonwealth was entitled to a Rule 1100 extension where its reasonable efforts to secure a witness’s presence at trial were thwarted by the witness’s decision not to appear for wholly personal reasons. In this case, the civilian witness was properly subpoenaed. His decision not to appear was totally beyond the control of the Commonwealth.

We conclude that the Commonwealth made diligent efforts to secure the witnesses’ presence at trial. Therefore, we affirm the order of the lower court granting appellee’s Petition For Extension.

Judgment of Sentence affirmed.


author: SPAETH, President Judge:

text:
    496 A.2d 802
    COMMONWEALTH of Pennsylvania, Appellant, v. Walter DIXON.
    Superior Court of Pennsylvania.
    Argued March 27, 1985.
    Filed Aug. 2, 1985.
    Petition for Allowance of Appeal Granted Jan. 14, 1986.

      Susan V. Kahn, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Thomas I. Puleo, Philadelphia, for appellee.
    Before SPAETH, President Judge, and JOHNSON AND SHOYER , JJ.

       The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   SPAETH, President Judge:

This is a Commonwealth appeal from judgment of sentence for third degree murder of IIV2 to 23 months in prison (with credit for just under 9 months time served) followed by 10 years probation. The Commonwealth argues that the sentence is unreasonably lenient and unreasonably deviates from the recommended minimum ranges provided in the Sentencing Guidelines, 204 Pa.Code § 303.1 et seq. On the record as it now stands, we agree. We therefore vacate judgment of sentence and remand for resentencing consistent with this opinion.

-1-

Initially we must determine whether the Commonwealth’s appeal is properly before us. See Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985). Under 42 Pa.C.S. § 9781(b), the Commonwealth may appeal the discretionary aspects of a sentence by filing a petition for an allowance of appeal; a notice of appeal will serve the same purpose as a petition. See Pa.R.A.P. 902, Note. Here, the Commonwealth initiated the appeal by filing a timely notice of appeal. Even so, we may entertain the appeal only if “it appears that there is a substantial question that the sentence imposed is not appropriate____” 42 Pa.C.S. § 9781(b); Pa.R.A.P. 341, Note. As will appear from the ensuing discussion, the record does raise such a question. The Commonwealth’s petition for appeal is therefore granted.

-2-

On August 22, 1983, appellee entered a guilty plea to an information charging him with murder and voluntary manslaughter. The Commonwealth stipulated that the facts would support an adjudication no higher than third degree murder. R.R. 2a. During the plea colloquy, the prosecutor summarized the factual basis of the plea, as follows. R.R. 23a et seq.

The victim was James Smith, a 57 year old taxi driver. On March 24, 1983, appellee and his girlfriend engaged Smith to drive them to various places; several others were with them. In the course of the afternoon they bought a bottle of vodka. The bottle was passed around in the car and Smith was among those who drank from it; the autopsy report disclosed that his blood alcohol content was .20. After some time, on a Kentucky Fried Chicken parking lot, Smith’s passengers asked him to take them farther, but he objected, stating that he wanted more money. An argument between Smith and appellee ensued. Appellee pulled Smith out of the car. Smith had a knife, and he cut appellee with it, gashing him about an inch and a half in the forehead. The two men struggled. Smith went down, and appellee and his girlfriend walked away. When appellee realized that his forehead was bleeding, he went back, stabbed Smith in the chest, and kicked him several times. R.R. 23a-26a.

In support of this description of the incident the prosecutor identified the witnesses she expected to call and summarized the testimony she expected them to give.

One of the passengers in the car was Jessie Breedlove. He was a friend of Smith’s. The prosecutor stated that he would testify: that Smith was so drunk he could barely stand and some one else had taken over the driving; that he was in the back seat with Smith before appellee pulled him out; that Smith and appellee each had a knife; that he saw appellee go back to Smith while Smith was on the ground “and saw him kick him. He did not see him stab him at that point.” R.R. 27a.

Stuart Hill was working at a tire business across the street from the Kentucky Fried Chicken. The prosecutor stated that he would testify that

he knows none of the people in the case. He was working there; he changes tires. And he saw a fight going on. He heard an argument. He saw the younger man, the defendant, hit the older man, Mr. Smith; saw the defendant walk away, come back, and stomp the victim while he was on the ground____ He did not [see him stab]. He called the police.
R.R. 27a-28a.

John Knittel was on the Kentucky Fried Chicken parking lot. The prosecutor stated that he would testify that

[he] does not know any of the parties involved; that he saw the older man with a knife, he saw the younger man with a knife. He saw the older man trying to get up after he had already been knocked to the ground. Saw the defendant come back and hit him at least five or six times with a knife in his hand, hitting him and kicking him in the head.
R.R. 28a.

The prosecutor then added, evidently still referring to Knit-tel’s expected testimony:

When the defendant came back, he said to the older man, the decedent, “Look what you’ve done to me,” indicating the blood on his head, started to swing at the old man. That’s when he had the knife in his hand, while he was swinging.
R.R. 28a-29a.

The prosecutor then further added:

Your Honor, in addition to what I have mentioned, John Knittel would testify — and I quote from his statement: “I was going to help the guy till I saw a knife in his hand. Then the young guy” — meaning the defendant — “I saw next to the car came from behind me. He was pointing to his head and said to the old guy, ‘Look what you did to my eye.’ I could see blood around the guy’s eye. By this time, the old man had gotten up. Then the young guy started to swing a knife at the old guy. The old guy kept backing up. The old guy went down. Then the young guy started to kick the old guy in the head.”
R.R. 30a.

Geraldine Nash was among the passengers in the car.

The prosecutor stated that she would testify that

the defendant came back after the initial fight. “Walter came back while J.C.” — meaning the decedent — “was on the ground. He stabbed J.C. in the face, and he kicked J.C. in the head a couple of times.” This was after the initial confrontation.
R.R. 31a-32a.

Defense counsel then made several comments on the evidence.

Counsel first commented on Knittel’s statement:
[I]t seems there’s some question about when in fact Mr. Smith was actually stabbed in the chest in this case. Mr. Knittel is asked, “When the younger guy started to swing a knife at the old guy, did you see him stab the old guy?” And Mr. Knittel answered: “I could see him making contact with the old man’s body. He hit the old man five or six times.”
He never said that Mr. Dixon ever in fact stabbed Mr. Smith at that point.
R.R. 32a.

Defense counsel next stated that there was another witness, not identified by the prosecutor, one Doris Barco:

Miss Barco was also present inside the cab. She stated that while the tussle was going on, and James Smith and Walter Dixon were going at each other, she said Walter had swung his fist first at J.C., but missed. Then when J.C. swung the knife and cut Walter on the head, Walter grabbed his head and you could see blood on his hand. Then Walter charged J.C. and punched him and knocked him on the ground and grabbed J.C.’s arm and twisted the knife and stabbed J.C. on the ground.
R.R. 32a-33a.

To this, the prosecutor added:

In addition, Your Honor, she would also testify that she asked the defendant not to go back once he had walked several steps away.
They had walked at least I believe she would say about 20 feet. She said. “Walter, come on, let’s go,” but the defendant, realizing he was cut, went back and fought some more.
R.R. 33a.

Defense counsel then referred to appellee’s statement to the police, and in response to the court’s request, summarized the statement. The prosecutor had earlier summarized the statement as “indicating that he [appellee] swung at the decedent, hit him in the chest, but doesn’t know exactly where he hit him.” R.R. 29a. Defense counsel’s summary was similar, adding some detail, in particular that “when J.C. started fighting me and cut me, I got to bleeding, that’s when I started fighting him.” R.R. 34a. When the court pointed out that, as summarized, the statement included no admission to the stabbing, defense counsel stated, “He admits stabbing the decedent.” R.R. 35a. The court then asked appellee, “But you do admit that you stabbed this gentleman?” to which appellee responded, “Yes.” Id.

Finally, defense counsel stated that appellee did not agree with the prosecutor’s statement that he had pulled Smith from the car. When the court asked, “What happened instead?” counsel responded, “J.C. had gotten out of the car voluntarily, and the two had met on the outside.” R.R. 36a.

After accepting appellee’s plea, the court stated that it wished to reserve its adjudication on whether the offense was third degree murder, as the Commonwealth contended, or voluntary manslaughter, as the defense contended. On August 29, 1983, the court concluded that the facts supported an adjudication of third degree murder. On December 14, 1983, the court imposed a sentence of IDA to 23 months in the Philadelphia County Prison, with credit for time served, followed by 10 years probation under the supervision of the State Board of Probation and Parole. The time served was just under 9 months, appellee having been in custody since his arrest on March 24, 1983. The Commonwealth filed a timely petition for reconsideration of sentence, which was denied. This appeal followed.

-3-

The Sentencing Guidelines, 204 Pa.Code § 303.1 et seq., apply to offenses committed on or after July 22, 1982, id. § 303.1(d). Since the offense to which appellee pleaded guilty was committed on March 24, 1983, the trial court was bound to consider the guidelines. 42 Pa.C.S. § 9721(b); 204 Pa.Code § 303.1(a).

As required by 204 Pa.Code § 303.1(b), the record includes the Pennsylvania Commission’s Guideline Sentence Form. The form records the “offense gravity score” for third degree murder as “10”, and appellee’s prior record score as “3”, this latter score being recorded as deriving from a prior adult conviction for a felony drug offense. The form also records that because the offense was committed with a knife, a “deadly weapon enhancement” was applicable. See 204 Pa.Code § 303.4 (requiring at least 12 months and up to 24 months confinement to be added to the guidelines sentence). The form then records the three guidelines sentences (with the deadly weapon enhancement being taken into account): a “minimum range” of 84 to 144 months; an “aggravated range” of the statutory limit (that is, the longest minimum provided by law, which for third degree murder is 10 years in prison, 18 Pa.C.S. §§ 1103, 2502(c)); and a “mitigated range” of 66 to 96 months.

Further sections of the Sentence Form provide for notation of the sentence imposed, and, when that sentence departs from the guidelines sentence, for a statement by the trial court of the reasons for the departure. Here, the trial court provided the following statement of reasons for departing from the guidelines:

[defendant] pleaded guilty — case had some overtones of self-defense—
has, since being incarcerated, begun G.E.D. study; he has participated in drug program and has prison job. The ’s problems arise from drug dependency and he states he has given drugs up and will change.
The has employable skills and has a common-law wife and a small child who need his financial support. N.B. * I have imposed a lengthy state probation.

In its opinion, filed in response to the Commonwealth’s appeal, the court similarly explained:

In keeping the defendant in the county system the Court’s goal was to avoid disruption of the defendant’s good progress since his incarceration. He had begun a G.E.D. program, started drug rehabilitation and secured a job in prison. In following the County imprisonment with a lengthy State probation the Court sought to ensure the defendant's potential for progress.
Slip op. of tr. ct. at 5.

The court did not refer in its opinion to the “some overtones of self-defense” reason.

In reviewing a sentence outside the guidelines, we are to decide whether the sentence is “unreasonable.” 42 Pa.C.S. § 9781(c)(3). See Commonwealth v. Drumgoole, supra. In making this decision, we must have regard for

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).

Having considered these factors, in particular the nature and circumstances of the offense, the history and characteristics of appellee, and the trial court’s findings as they relate to the guidelines, we are compelled to the conclusion that the sentence was unreasonable.

First, regarding the nature and circumstances of the offense:

As we have already noted, at the guilty plea proceeding, defense counsel argued that there was “some question about when in fact Mr. Smith was actually stabbed in the chest.” R.R. 32a. At the sentencing proceeding, counsel repeated this argument, stating that “it’s unclear when in fact he [appellee] did stab the decedent.” N.T. 12/14/83, 11. This argument is specious, and was properly rejected by the trial court. The evidence at the guilty plea proceeding, which we have summarized in some detail, disclosed that after walking away from Smith, appellee, discovering that he had been gashed in the forehead, and despite the entreaty of his girlfriend, returned to where Smith was lying on the parking lot and stabbed and kicked him. Appellee’s own statement to the police, as summarized by defense counsel, was consistent with this description of the incident (“when J.C. starting fighting me and cut me, I got to bleeding, that’s when I started fighting him”).

When the trial court adjudicated the offense as third degree murder, on August 29, 1983, it filed no findings of fact. In its later opinion, however, in response to this appeal, the court included a “Statement of the Facts”, part of which reads:

Dixon left the fray, but when he discovered that he was bleeding from the forehead gash he went back to Smith, stabbed him in the chest and stomped him three or four times.
Slip op. of tr. ct. at 4.

These findings are supported by the record, and there can be no question that in adjudicating the offense as third degree murder, and not voluntary manslaughter, the trial court was correct.

In imposing sentence, however, the trial court inadequately considered and inaccurately characterized the nature and circumstances of the offense. In particular, in explaining its departure from the Sentencing Guidelines, the court stated that the offense “had some overtones of self-defense”. While the record discloses that appellee was enraged because of the gash to his forehead it not only does not support but contradicts any claim of self-defense.

Also in this regard, at the sentencing proceeding the court stated, “He [appellee] would not have killed this man if he had not been high on whatever he was high on that day.” N.T. 12/14/83, 10. Neither does the record support this statement. There was evidence at the guilty plea that a bottle of vodka “had been passed around” among Smith and the passengers in his cab, R.R. 25a, and that Smith himself was “too drunk to drive”, R.R. 26a, but there was no reference, either by the prosecutor in her statement of the evidence or by defense counsel in his, to appellee being “high”, or drunk. We note that after an unrecorded sidebar discussion, R.R. 42a, defense counsel requested an alcohol evaluation and the prosecutor a drug and alcohol evaluation, id., and recognize that conceivably something was said off the record regarding appellee’s condition. As the record stands, however, nothing supports any finding other than that appellee was enraged by being gashed on the forehead. In this regard, we note that in its opinion the trial court, while finding that appellee and the others “had indulged” in the vodka, slip op. of tr. ct. at 3, made no finding that appellee was under the influence either of drugs or alcohol.

Second, regarding appellee’s history and characteristics: At the sentencing proceeding the trial court stated: [H]e [appellee] has had a history of drug involvement which is ridiculous because he’s really a good person, he can work, he has held good jobs and all of this, but he had been in and out of the courts, and in and out of jails because of his dependence on drugs. And he has taken barbituates by the fistfuls, and heroin and marijuana and cocaine.
N.T. 12/14/83, 7.

A copy of the presentence report is included in the record as an exhibit to the Commonwealth’s petition to reconsider sentence. It discloses a somewhat different evaluation of appellee’s history and characteristics, in particular regarding appellee’s dependence on drugs.

As requested at the guilty plea proceedings, the presentence report includes a section on appellee’s use of drugs and alcohol:

DRUG AND ALCOHOL HISTORY:
DRUG:
The Defendant stated that over the past seventeen years he has been using heroin, cocaine, barbituates and marijuana on a regular basis and in varying amounts. He reported that he used heroin to the extent of two bundles a day but terminated this use in August of 1982. At that time he entered the A.C.T. drug program and was placed on methadone maintenance. He claims to have been attending this program up until his incarceration but could not recall his counselor’s name.
The Defendant indicated that he would use cocaine on a social basis and not often. His use of barbituates was by the “handful” and often with the heroin. He used marijuana on somewhat of a regular basis but not a daily one. Neither the Defendant’s mother or his most recent paramour had any personal knowledge of drug use by the Defendant. Ms. Barco did not know that he had been attending the drug program, however.
The Defendant had applied for admittance into the drug counseling program at the prison and was recently admitted. He receives group counseling once a week according to his caseworker, Idelle Williams.
ALCOHOL:
The Defendant reported that he has been using alcohol since he was twenty-two years of age. He stated that he usually drank in combination with his drug use but did not drink very much. These statements do not appear to be consistent with those made to the Court psychologist in which he reported consuming a quart of wine and or rum a day.

Earlier sections of the presentence report discussed, among other matters, appellee’s health and marital and employment history. Generally stated, this was that appellee had stated that he was in good health; that he had fathered five children, by his wife, who divorced him in 1976, and by two other women with whom he later lived, the second of these being Doris Barco, who was in the car and was referred to at the guilty plea proceeding as a witness; and that he was supporting these children from earnings of $500 a week in the home remodeling business, in which he had worked since 1976, and $100 a week selling household items.

The Evaluation Summary of the presentence report concluded with these paragraphs:

The Defendant is in apparent good health and is suffering from no chronic illnesses. He has alleged a history of drug and alcohol abuse spanning a period of seventeen years, although at least two people close to him had no personal knowledge of this abuse. This period of abuse which reportedly involved two bundles of heroin a day as well as handfuls of barbituates occurred when he was working at least two full time jobs and later while profit-ting from the home remodeling business. It would seem that his use of drugs combined with his daily use of alcohol would have prevented him from maintaining any steady employment and is more than likely exaggerated. He does appear to have been receiving some drug therapy and is in counseling while incarcerated. None of these factors would appear to mitigate his behavior in the present case. He has been found competent to receive a sentence and to be “without psychotic disorder.”
As an adult, the Defendant has been arrested at least fourteen (14) times with seven (7) convictions and three (3) commitments. He has two matters still open in Bucks County where he has been considered a fugitive since 1976. He has at least one known juvenile arrest and his prior record score has been determined to be 3.
The Defendant does not appear to be a good risk for a probationary sentence. The very viciousness of his behavior in the present case would indicate that such a sentence would be inappropriate. In addition, he has a history of arrest and incarceration, including a prior manslaughter offense, spanning fifteen years which has not deterred him from continued criminal behavior. He has a history of violence which has escalated into the events of the present case and which may never be controlled. Consequently no matter what sentence the Court chooses to impose there appears to be little chance that the Defendant will successfully complete it.

At the beginning of the sentencing proceeding the court referred briefly to the presentence report. The court stated that it did not understand the last sentence of the Evaluation Summary, and asked that the author of the report be called. N.T. 12/14/83, 3-4. (Apparently he could not be reached, for he did not appear at the proceeding.) Appellee was then brought into the courtroom, and the following colloquy ensued:

THE COURT: All right, Mr. Dixon, you pleaded guilty to murder in the third degree. It was a very unfortunate and tragic episode, and I have every reason to believe that it’s directly related to your drug problem.
THE DEFENDANT: Yes.
THE COURT: I have every reason to believe you were very high that day.
THE DEFENDANT: Yes, I was.
THE COURT: And it is sad. You have been on drugs nearly all your adult life.
THE DEFENDANT: Yes, but I’m going to change. THE COURT: How are you going to change?
THE DEFENDANT: I’ll quit. I won’t do no more drugs, none.
N.T. 12/14/83, 4-5.

Later in colloquy the court asked appellee about “18 months [served] in Virginia”, to which appellee .responded that this had been for using heroin. Id., 7-8. When the court observed, “That didn’t do you very much good, did it?” appellee responded: “I learned my lesson. But since I’ve been in the program up Holmesburg [the Philadelphia County prison] — I’m getting older, I just turned 37 a couple weeks ago.” Id. 8.

During its colloquy with appellee, the court heard brief testimony from Doris Barco, who had her son by appellee with her, and appellee’s mother. In the course of colloquy with Ms. Barco, the court said, “And he [appellee] tells me that he was high”, to which Ms. Barco responded, “Yes.” Id., 6-7. Appellee’s mother stated that she wished to help appellee, “that he have a place to stay, he can stay with me, you know, I’ll help support him till he gets a job.” Id., 8. Ms. Barco then asked whether she could say something, and when the court said she could, stated:

First of all, his drug problem, one thing I can say, he never brought it — I have two other children, not by him. He never brought any drugs in the household. If he did, he never brought them in front of the children. He did use much discretion. And he was — I miss that financial help terribly because, like I say, I have two other children, and it’s very, very hard, and any consideration you can give us would really be well appreciated.
Id., 8-9.

Defense counsel then presented argument. In the course of his argument he directed the court’s attention to appellee’s employment record, and stated that while in prison, appellee had been working towards a general education diploma, adding:

in fact, he’s employed in prison in the annex and he’s been doing well there, and he’s taking part in the drug program there.
I’m not saying that has now cured him and he’s ready to be released into society, but he’s making some progress in prison, so I don’t know exactly what the evaluator [the author of the presentence report] means by this [the evaluation in the report].
Id. 12-13.

The argument on behalf of the Commonwealth was limited. At the opening of the sentencing proceeding the prosecutor indicated that the Commonwealth had agreed to make no recommendation regarding sentence. Id., 2. The prosecutor confined himself to directing the court’s attention to the evaluative summary, id., 12, and to suggesting to the court that it was “bound by the mitigated minimum range,” id., 15. With respect to the first argument, the court stated that it “ha[d] no faith” in the presentence investigator’s, or anyone’s, predictions of behavior, adding, “You just have to go by what you think is right,” id., 12; and with respect to the latter, that the court could depart from the Sentencing Guidelines so long as it stated its reasons for the departure, id., 15.

The court then imposed sentence. We have already, on pages 10-11, above, quoted the court’s statement of its reasons for the sentence, as stated both on the Sentence Form and in the court’s later opinion, and will not repeat the reasons here. Central to the court’s reasons was the court’s appraisal of appellee as a person who was drug dependent and had committed the offense while high on drugs but who was making “good progress” in the County prison toward overcoming his dependency. “In keeping [appellee] in the county system,” the court stated, its “goal was to avoid disruption” of this good progress, and “[i]n following the County imprisonment with a lengthy State probation the Court sought to insure [appellee’s] potential for progress.” Slip op. of tr. ct. at 5.

This appraisal of appellee’s history and characteristics is not supported by the record.

Beyond appellee’s own statements at the sentencing proceeding, there is no evidence to support the court’s suggestion to appellee that he was “very high” on drugs when he committed the offense, and that the offense was “directly related to [his] drug problem.” The presentence report, moreover, raised factual issues that should have been explored: If appellee was indeed dependent on drugs, how was it that he was in apparent good health and able to earn $600 a week, working two jobs? Was the report correct in stating that “[n]either [appellee’s] mother [n]or his most recent paramour had any personal knowledge of drug use by [appellee]”? (The testimony of the mother and Ms. Barco at the sentencing proceeding did not contradict this statement; Ms. Barco’s statement was consistent with it.)

Certainly a court is free to reject a presentence report’s evaluation of the defendant. The rejection, however, must not be arbitrary or unexplained, or else the presentence report cannot serve its purpose. As the record stands now, it not only does not contradict but supports the statement in the presentence report that appellee’s claimed history of drug and alcohol abuse was “more than likely exaggerated.”

If we assume, however, that appellee was drug dependent and that his offense was directly related to his drug problem, still, there is no evidence to support the court’s appraisal of him as making “good progress” in overcoming his dependency.

The record discloses virtually nothing regarding appellee’s participation in the drug counseling program in the County prison; defense counsel himself only claimed that appellee was “making some progress”, and made it plain that he was “not saying that has now cured him and he is ready to be released into society.” Surely no reliance could be placed on appellee’s assurances that he had “learned [his] lesson,” and “I’ll quit, I won’t do no more drugs, none.” Nothing is more typical of drug dependency than the inability to honor such assurances.

Moreover, again the presentence report raised factual issues that should have been explored, before any appraisal was made of appellee’s “potential for progress.” According to the report, appellee has a history of fourteen arrests, seven convictions, and three commitments; one of these incidents is characterized as a “manslaughter offense.” The report’s appraisal of appellee’s potential for progress was that “[h]e has a history of violence which has escalated into the events of the present case and may never be controlled.” This appraisal may have been exaggerated; the record as transmitted to us does not include a copy of appellee’s prior criminal record, and at the guilty plea proceeding the prosecutor stated that “[i]n all honesty, Your Honor, it’s not a significant record.” R.R. 41a. Nevertheless, without inquiry into what in fact was appellee’s prior criminal record, a reasoned appraisal of appellee’s ability to overcome his asserted drug dependency was impossible.

One further comment regarding the court’s appraisal of appellee’s “potential for progress” is required. As mentioned, appellee had been in custody in the County Prison since his arrest, or just under 9 months. Since the court gave him credit for this period, the minimum sentence of IIV2 months made appellee eligible for release from prison in about 2lk months. Assuming that indeed appellee was as drug dependent as the court indicated, we can find no basis in the record to suggest that in so short a period he would be able to overcome his dependency sufficiently to bring it under a reasonable degree of control.

Finally, with respect to the sentencing guidelines:

The court was entirely correct in stating to the prosecutor that the three guideline sentences — the minimum range of 84 to 144 months; the aggravated range of the statutory limit, or a sentence of 10 to 20 years; and the mitigated range of 66 to 96 months — were

not mandatory sentences. If I deviate from the guideline, I just have to write out why I have deviated and the reason I have deviated. There’s a section 8 called a Departure Report.
N.T. 12/14/83, 15.

However, having considered the reasons the court did write out in section 8 of the Sentence Form, we are unable to accept them as sufficient to show that the sentence was a reasonable one.

For purposes of discussion we may assume that a sentence in the mitigated range would have been reasonable. Still, the sentence as imposed plunged more than 54 months below the floor of the guidelines’ mitigated range, as enhanced as a result of appellant’s possession of a deadly weapon. Nothing in the evidence presented at the guilty plea and sentencing proceedings, and nothing in the court’s explanation of its sentence, supports such a departure. The Sentencing Code provides that “the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). With deference to the unquestionably broad discretion vested in a sentencing court, Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984), we are compelled to the conclusion that the court here did not abide by this general principle. It, properly, adjudicated the gravity of appellee’s offense as third degree murder. The confinement imposed, however, was not consistent but inconsistent with so grave an offense.

We must therefore vacate the sentence and remand for resentencing. 42 Pa.C.S. § 9721(b). On remand the court must ensure that it has before it “sufficient information to enable [it] to make a determination of the circumstances of the offense and the character of the defendant.” Commonwealth v. Doyle, 275 Pa.Super. 373, 381, 418 A.2d 1336, 1340 (1979) (citing Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979)). The court must then apply to this information the guidelines specified in the Sentencing Code, see pages 9-10, and explain on the record how that application has resulted in the sentence imposed. Commonwealth v. Sypin, 341 Pa.Super. 506, 510-511, 491 A.2d 1371, 1373-74 (1985); Commonwealth v. Doyle, supra; Commonwealth v. Farrar, 271 Pa.Super. 434, 447-53, 413 A.2d 1094, 1101-04 (1979).

Judgment of sentence vacated and case remanded for resentencing consistent with this opinion. Jurisdiction is relinquished.

      . Without the deadly weapon enhancement, the "minimum range" was 72 to 120 months, and the "mitigated range” was 54 to 72 months.