author:
      CERCONE, President Judge:
      BROSKY, Judge,

text:
    437 A.2d 965
    C. M. EICHENLAUB COMPANY, INC., Appellant, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, and Cocivera Construction Company, Inc., v. Salvatore and Mary COCIVERA, his wife.
    Superior Court of Pennsylvania.
    Argued April 30, 1981.
    Filed Nov. 30, 1981.

      Theodore E. Breault, Pittsburgh, for appellant.
    Michael J. Kearney, Jr., Pittsburgh, for appellees.
    Before CERCONE, President Judge and BROSKY and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, C. M. Eichenlaub Company, Inc., a subcontractor, brought an action in assumpsit on July 10, 1979, against the general contractor, Cocivera Construction Company, and against Fidelity & Deposit Company of Maryland, the surety, seeking payment for labor and materials supplied pursuant to its subcontract agreement with the general contractor. Under the subcontract agreement, appellant was to provide factory built cabinets and other items for the War-minster Township Free Library. Cocivera Construction Company failed to defend and judgment by default in favor of appellant was entered. Fidelity, however, defended on the ground that appellant’s suit was barred by the one year time limitation contained in the surety bond. The surety bond specifically provided that any action had to be brought within one year after the time the cause of action accrued. Following an award of judgment to appellant by a board of arbitrators, Fidelity appealed to the Court of Common Pleas. After cross motions for summary judgment were filed, the court awarded summary judgment in favor of Fidelity, finding that the action had been untimely filed. It is from this order that appellant takes the present appeal. The sole issue raised by appellant is whether the lower court erred in granting Fidelity’s motion for summary judgment based upon the expiration of the statute of limitations contained in Fidelity’s surety bond. It is appellant’s contention that the grant of summary judgment was improper since issues of fact existed as to whether or not the limitation of action provision had begun to run. The kernel issue which must be decided, then, is whether or not the cause of action had accrued for the running of the one year statute of limitation.

Generally, it is the breach of a duty which gives rise to a cause of action. See Chittenholm v. Griffin, 357 Pa. 616, 55 A.2d 324 (1947); Bell v. Brady, 346 Pa. 666, 31 A.2d 547 (1943). See also Irrera v. Southeastern Pennsylvania Transportation Authority, 231 Pa.Super 508, 517, 331 A.2d 705, 709 (1974). Where, as here, the liability of a surety is concerned, the provisions of the underlying contract must be examined, since the liability of a surety, such as Fidelity, commences only upon breach of the underlying contract. See Plummer v. Wilson, 322 Pa. 118, 185 A. 311 (1936); In re Brock, 312 Pa. 7,166 A. 788 (1933); Pgh. Construction Co. v. West Side Belt R. Co., 227 Pa. 90, 75 A. 1029 (1910). The provisions of the underlying May 24, 1976, contract between Cocivera and appellant in pertinent part provides:

B. The contract price shall be paid from time to time as the materials are delivered and the work progresses as follows:
(4) Builder (Cocivera) shall be under no obligation to make any payments to contractor (appellant) for materials delivered or for work performed by contractor unless and until Builder is first paid for such materials and work by the owner (Warminster Township Free Library)

According to this contract term, Cocivera was not required to make any payment to appellant unless and until it had first been paid by the owner. Therefore, the cause of action could not accrue until Cocivera was paid by the owner, Warminster Township Free Library, and subsequently defaulted on his payment to appellant.

The record, however, is uncertain as to when, if at all, Warminster Library paid Cocivera Construction for work and materials supplied by appellant. Included among the papers submitted by Fidelity, there is a letter, dated March 7, 1978 from Doris Anderson, Vice-President of appellant company, to Fidelity requesting their assistance in collecting the remaining balance of $4,954 due appellant. In the letter Ms. Anderson wrote: “We have contacted the contractor several times asking for payment and in addition have been told by the architect that our portion of the contract has been approved and the money has been sent to the contractor.” Appellant admitted the existence of such a letter. And, although it is not clear from the order, the lower court apparently relied upon this March 7, 1978, letter for its holding that the action had accrued on or before March 7, 1978, and therefore, that appellant’s complaint filed on July 10, 1979, was untimely. Such reliance was misplaced. This letter does not establish that the architect actually knew that payment had been made to Cocivera, that he had seen the check, that he knew whether the funds had passed, or whether he had merely been told by someone else that payment had been made. Thus, the letter is not probative of the fact of payment by the owner to Cocivera. Moreover, Fidelity admitted that final payment on the total job at Warminster Free Library had not been made by Warminster to Cocivera. Fidelity also admitted the existence and content of a letter, dated July 31, 1979, from counsel for Fidelity to counsel for appellant stating, “I am attempting to obtain, with the cooperation of Cocivera Construction Company, Inc., the release of the final payment on the Warminster Free Library Project so that your client, among others, can be paid.” With such conflicting evidence, it is uncertain whether or not Cocivera had been previously paid by Warminster for that portion of the work performed by appellant. Because a genuine issue as to a material fact exists, the grant of summary judgment was improper. See Pa.R.C.P. 1035. See generally, Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970); Hankin v. Mintz, 276 Pa.Super. 538, 419 A.2d 588 (1980); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971). As a movant for summary judgment, Fidelity failed to meet its burden of establishing payment by Warminster to Cocivera for work performed by appellant, which would have started the running of the one year statute of limitation.

Reversed and remanded to lower court for proceedings consistent with this opinion.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. The majority holds that the liability of the surety, Fidelity, commenced only upon breach of the subcontract between appellant and Cocivera. Since the subcontract agreement provided that Cocivera was not required to make any payment to appellant unless and until it had first been paid by the owner, Warminster Township Free Library, the majority concludes that the cause of action here could not accrue until Cocivera Construction was paid by the Warminster Library and subsequently defaulted on its payment to appellant.

This conclusion rests upon the premise that the terms of the subcontract between appellant and Cocivera, and not of the payment and material bond issued by Fidelity pursuant to the contract for construction between Cocivera and the Library, control.

However, in this instance, appellant’s right to sue Fidelity arose from the payment and material bond, which provides in part:

The Principal and Surety further jointly and severally agree with the Owner herein that every person . . . who, whether as subcontractor or otherwise, has furnished material or supplied or performed labor in the prosecution of the work as above provided and who has not been paid, therefore, [sic] may maintain an action to recover for the same against the Surety as named in the above mentioned contract, prosecute the same to final judgment for such sum or sums as may be justly due him, he or it and have execution thereon . . . provided further that the action is brought within one year after the time the case [sic] of action accrued.

Accordingly, it is the terms of the bond which control here, since this is not a suit by appellant as subcontractor against the general contractor (Cocivera), but a suit by appellant as third party beneficiary against the surety (Fidelity). The bond does not condition the right to payment upon any conditions precedent, but merely provides that suit for payment must be brought within one .year after the cause of action accrued. In my view, a subcontractor suing under such a bond containing such language is entitled, in the absence of language to the contrary, to bring suit for payment upon completion of the work, assuming that the work was satisfactorily completed. In Commonwealth of Pennsylvania, The General State Authority v. Loffredo, 16 Pa.Cmwlth. 237, 247, 328 A.2d 886, 893 (1974), the court stated:

It is axiomatic that when a contract is fully performed, the obligation to pay for that performance would arise on the date of completion absent contractual terms to the contrary.

Applying this principle to the facts of the case at hand, we hold that the cause of action accrued March 24,1977, the day the last of the labor and materials was supplied.

The well-established rules of contract interpretation require that a written instrument must be construed most strongly against the maker. Galligan v. Arovitch, 421 Pa. 301, 219 A.2d 463 (1966); Heidt v. Aughenbaugh Coal Co., 406 Pa. 188, 176 A.2d 400 (1962). Therefore, the bond must be strictly construed against Fidelity. Since the bond requires no conditions precedent to payment, suit for payment may be brought upon final completion of the work. Although the bond here does not require that the work be completed in a satisfactory manner, we believe that such requirement is consistent with the customary and usual practices of the construction industry. Here, Fidelity admitted that all of the work performed by appellant was completed in a satisfactory manner.

However, appellant’s suit was not timely filed since it was filed after March 24, 1978. Fidelity, as the moving party here, was entitled to summary judgment as a matter of law. There is no genuine issue here as to any material fact, it being clear from the record that the last of the labor and material was supplied March 24, 1977. Prince v. Pavoni, 225 Pa.Super. 286, 302 A.2d 452 (1973). I, therefore, would hold that summary judgment was properly entered in favor of Fidelity. For these reasons, I must dissent.

      . It is well established that the parties may, by agreement, modify a statutory period of limitation. See Insurance Co. of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728 (1971).

      . This letter was included among the papers submitted by appellant.


source: Caselaw Access Project

author: SPAETH, Judge: CERCONE, President Judge,

license: Public Domain

text:
    437 A.2d 969
    COMMONWEALTH ex rel. MICHAEL R., a minor and Kristin L. R., a minor by their natural mother Sharon L. H. R. v. ROBERT R. R. Appeal of SHARON L. H. R.
    Superior Court of Pennsylvania.
    Argued May 4, 1981.
    Filed Nov. 30, 1981.

      Robert J. Kerns, Lansdale, for appellant.
    William R. Cooper, Lansdale, for appellee.
    Before CERCONE, President Judge, and SPAETH and CAVANAUGH, JJ.
   SPAETH, Judge:

This is a child custody case. The lower court awarded custody of two children to the father, and the mother has appealed. For the reasons discussed below, we reverse and remand for further proceedings.

The parties were married on June 28, 1975. During their marriage one child was born, Kristin Leigh, on February 24, 1976. In October 1977 the father adopted the mother’s son by a previous marriage, Michael, born October 11, 1972. In August or September 1978 the parties separated. The father stayed in their house with the two children. In September 1979 the mother filed for divorce, and in February 1980 she instituted this action seeking custody of both children. On October 10, 1980, after a hearing, the lower court issued an order awarding custody of both children to the father. It is from this order that the mother now appeals.

“It is fundamental that in all custody disputes, the best interests of the child must prevail: all other considerations are deemed subordinate to the child’s physical, intellectual, moral and spiritual well being. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Common wealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972).” Garrity v. Garrity, 268 Pa.Superior Ct. 217, 221, 407 A.2d 1323, 1325 (1979). “Among the factors to be considered in determining the best interests of the child are the character and fitness of the parties seeking custody, their respective homes, their ability to adequately care for the child, and their ability to financially provide for the child. Shoemaker Appeal, 396 Pa. 378, 381, 152 A.2d 666, 668 (1959).” Kessler v. Gregory, 271 Pa.Superior Ct. 121, 125, 412 A.2d 605, 607 (1979).

The obligations of the courts in a child custody case are clear. In Lewis v. Lewis, 267 Pa.Superior Ct. 235, 406 A.2d 781 (1979), we said:

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra [263 Pa.Superior Ct. 27, 396 A.2d 1359 (1979)]; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.
Id., 267 Pa.Super. at 240-241, 406 A.2d at 783-784.

See also Commonwealth ex rel. Berman v. Berman, 289 Pa.Superior Ct. 91, 432 A.2d 1066 (1981).

Application of these principles to the present case discloses several reasons requiring that we reverse and remand.

First, it is apparent from its opinion that the lower court relied to some extent on the fact that the mother has been living with another man, Joseph L., since August 1979. In stating its reasons for awarding custody to the father, the court said:

The record before us portrays a mother who lost interest in life with father; it portrays a mother who evidently obtained a pleasing alternative in the form of cohabitation with Mr. [L.] for a period which has now exceeded fifteen months and which she would like to extend indefinitely. The hearing judge has no doubt that the mother’s action to obtain custody of her two children is in good faith. The resolution of this case has not been easy. However, as the hearing judge stated at the conclusion of the taking of testimony, “on balance these children seem to be well-attended, well cared for, they’re comfortably accommodated, . . . happy in . . . school surroundings . . . and I think that Michael is doing well in school ...” The father, moreover, appears to be the more dependable to provide for the children’s physical, intellectual and moral well-being. As to spiritual well-being, there is no evidence that either the petitioner or the defendant has any concern.
Slip op. at 5.

Yet, although referring twice in its opinion to the fact that the mother has been living with another man, id., at 2, 5, the court does not analyze the effect of this relationship upon the children. Mr. L. testified at the hearing, and both he and the mother stated their intention to marry as soon as her divorce became final. However, the court does not discuss or evaluate the evidence concerning Mr. L.’s care for and influence on the children. Our cases have made clear that a parent should not be denied custody of his or her child because of the parent’s nonmarital relationship:

[I]t is the effect of the nonmarital relationship on the child and not the fact of the relationship itself which is crucial to a custody decision. If the evidence shows that a parent’s conduct has had harmful effects on the child the court may be justified in denying custody to that parent. On the other hand, if the evidence shows that the parent’s conduct has not adversely affected the child and that the parent has taken good care of the child, then the best interests of the child may dictate that the parent retain custody. In each case, all relevant circumstances must be examined to determine what action would be in the best interests of the child.
Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 140, 360 A.2d 587, 590 (1976).

See also Gunter v. Gunter, 240 Pa.Superior Ct. 382, 361 A.2d 307 (1976).

Second, the lower court interviewed both children in chambers out of the presence of counsel and without a stenographer present. In Jones v. Floyd, 276 Pa.Superior Ct. 76, 419 A.2d 102 (1980), we said:

Additionally, the trial court interviewed the child in question in chambers. There is no indication that counsel was present and the interview was not transcribed for our review. Recent cases have held that such failure to transcribe this in camera hearing requires us to reverse and remand for a new hearing. See Sipe v. Shaffer, 263 Pa.Super. 27, 36 n.7, 396 A.2d 1359, 1363, n.7 (1979); Commonwealth ex rel. Steiner v. Steiner, 257 Pa.Super. at 461 n.1, 390 A.2d at 1328, n.1 (1978); Commonwealth ex rel. Scott v. Rider, 248 Pa.Super. 383, 375 A.2d 149 (1977); Commonwealth ex rel. Lee v. Lee, supra.
Id., 276 Pa.Super. at 80, 419 A.2d at 104.

See also Commonwealth ex rel. Lee v. Lee, 248 Pa.Superior Ct. 155, 374 A.2d 1365 (1977); Gunter v. Gunter, supra.

On remand the lower court should conduct an additional hearing to examine the current living situations of both parents and their ability to care for the children, since the circumstances of the parents may have changed during the appellate process. See Commonwealth ex rel. Holschuh v. Holland-Moritz 448 Pa. 437, 447, 292 A.2d 380, 385 (1972). In addition, should the court interview the children, their testimony should be transcribed.

Finally, the lower court’s opinion does not fulfill the court’s responsibility to provide a comprehensive analysis of the record and a complete explanation of its decision. Four pages of the five page opinion are devoted to a recitation of the history of the parents’ marriage and a description of the care and home the father has provided for the children. There is virtually no discussion of the care the mother has provided or of the home she offers the children, nor any comparison of the parents’ relative fitness to have custody of the children. The reasoning behind the award of custody to the father is stated in only the most conclusory way, in the statement that “[t]he father . . . appears to be the more dependable.” Id. at 5. We are thus “without the comprehensive opinion necessary for proper appellate review.” Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Superior Ct. 249, 254, 421 A.2d 706, 709 (1980).

Since the case must be remanded for further proceedings, we shall comment on an argument the mother makes in her brief, which but for our comment she might renew on remand. Citing In re Custody of Hernandez, 249 Pa. Superior Ct. 274, 376 A.2d 648 (1977), the mother contends that as Michael’s natural mother she has a prima facie right to his custody, and that the father is as to Michael merely a third party who has the burden of showing by convincing reasons that Michael’s best interests dictate that custody be given to him. Brief for mother at 18-19. This argument is without merit. As noted above, in October 1977 the father adopted Michael. A decree of adoption directs “that the person proposed to be adopted shall have all the rights of a child and heir of the adopting parent . . . and shall be subject to the duties of a child to him ...” 1 P.S. § 502. For the purposes of determining custody, therefore, Michael is as much the father’s son as he is the mother’s. This does not mean that the mother may not—as she claims to have done—present evidence that the father has favored Kristin, his natural daughter, over Michael, his adopted son; that this favoritism has harmed Michael; and that therefore the father is not the better custodial parent. The point is simply that two parents bear an equal burden. Lewis v. Lewis, supra; In re Custody of Hernandez, supra.

The ORDER is REVERSED and the case remanded for further proceedings consistent with this opinion. Any further appeal must be from such new order as the lower court may enter.

CERCONE, President Judge, files a concurring opinion.

CERCONE, President Judge,

concurring:

Although I join wholeheartedly in the majority’s disposition of this case, I feel constrained to comment upon the paragraph concerning the allocation of the burden of proof between a natural parent and an adoptive parent. This appears to be a case of first impression in this Commonwealth and as such should not be treated lightly.

The majority cites the Adoption Act for the proposition that an adoptive child has the same rights and duties with respect to his parents as does a natural child. In my opinion, it does not necessarily follow from this fact that the adoptive parent and the natural parent of the same child under the circumstances of this case have an equal burden of proof in a custody battle over that child.

Initially, it should be noted that this situation substantially differs from the normal adoption situation. That is, normally the natural parents of a child have signed away or had their parental rights terminated, voluntarily or involuntarily, in favor of the adoptive parents. If the termination or adoption is invalid for some reason, then the natural parents retain their advantage with respect to burden of proof in a custody suit and the purported adoptive parents have become relegated to mere third parties. See generally The New Adoption Act of October 15, 1980, P.L. 934, No. 163, § 1, 23 Pa.C.S. §§ 2101- 2908 (Supp.1980); In re Adoption of R. W. B., 485 Pa. 168, 401 A.2d 347 (1979); In re Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977); Adoption of Baby Girl Fleming, 471 Pa. 73, 369 A.2d 1200 (1977). Thus, in this type of a situation the status of an adoptive parent and that of a natural parent are mutually exclusive.

The instant case, however, is not so easily categorized. Here the natural parent of the child in question has retained her status as such, and her new spouse, by agreement, has become the adoptive parent of the child. The crucial fact here is that there has been no voluntary termination of the natural parent’s rights. After the natural mother and the adoptive father separated, the question concerning the burden of proof between them in a custody dispute soon manifested itself. The unique character of this situation, therefore, is that of a dispute between a natural mother who has not terminated any of her rights or duties with respect to her child, and an adoptive father who has voluntarily taken on the rights and concomitant obligations of parenthood.

Although there are no Pennsylvania cases directly on point, we can obtain guidance from our case law which holds that a “natural” or “biological” parent has an advantage with respect to the burden of proof in custody suits against third parties. Albright v. Com. ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); In re Hernandez, 249 Pa.Superior Ct. 274, 376 A.2d 648 (1977). In Hernandez, Judge Spaeth, writing for a majority of this Court, articulated two reasons why the burden of proof is equal when dealing with natural parents inter se and, presumably, not equal when dealing with natural parents as against third parties: (1) the parent’s legal obligation to support his or her child; and (2) the biological relationship which exists between parent and child. Id., 249 Pa.Super. at 281 n.2, 376 A.2d at 651 n.2. Consequently, appellant herein cites the Hernandez case in support of her contention that the father must come forward with “compelling reasons” in order to obtain custody of his adoptive child. When applying the Hernandez rationale to the instant facts it becomes apparent that while the legal obligation of support is present in the relationship between the father and his adoptive son, there is lacking the important biological relationship which was stressed in Hernandez. See also Ellerbe v. Hooks, 490 Pa. at 372, 416 A.2d at 516. For this reason, I must take exception to the majority’s allocation of an equal burden of proof between the natural mother and the adoptive father in the instant case.

If we are to accept Hernandez and its rationale, then in the interest of consistency and stability, I feel we should follow through with this type of analysis when faced with situations like the present one. In my opinion, therefore, I would treat this case as different from a natural parent versus natural parent suit in which the burden of proof is equal, as well as different from a natural parent versus third party suit in which case the scales are tipped heavily in favor of the parent. Thus, we would be obliged to establish a burden of proof which is not equal, thereby giving weight to the important biological relationship between natural parent and child. But, on the other hand, the burden of proof should not be so great as to require an adoptive parent to show “compelling reasons” in order to obtain custody, thereby reflecting a refusal by the courts to unjustifiably relegate an adoptive parent to the position of a mere third party. Thus, with the efficacy of Hernandez still intact, I would be in favor of an intermediate type of burden of proof requiring an adoptive parent to come forward with substantial, as opposed to compelling, reasons why it is in the child’s best interest that custody be established in his or her favor rather than in favor of the child’s natural parent.

This then brings me to my final point: with the courts becoming more attuned to the paramount concern for arriving at custody decisions which are in the best interests of the child, it appears incongruous to be concerned with “prima facie rights”, presumptions, and favorable allocations of the burden of proof to which a natural parent is entitled! Our body of recent custody decisions has disfavored the approach which stresses rights and entitlements of the litigants and has instead emphasized what custodial arrangement would be in the child’s best interest. See generally Bertin, Emanuel A. and Klein, Vanessa Anthony, Pennsylvania’s Developing Child Custody Law, 25 Vill.L.Rev. 752 (1980) [hereinafter “Bertin & Klein”]. If this is truly the key to our custody decisions, then perhaps it is time to totally disclaim a rights or entitlements type of analysis with respect to the burden of proof. See Ellerbe v. Hooks, 490 Pa. at 371, 416 A.2d at 515 (1980) (Flaherty, J., concurring) and Bertin & Klein, supra at 758. The litigants should simply be put on an equal footing at the outset, and then the entire realm of facts and circumstances which are relevant to determining who is the best custodial parent should be considered. Whether one of the litigants is a natural parent, an adoptive parent, a relative, or a mere third party, would then simply become one of the factors to be considered in the analysis of what custodial arrangement is in the best interest of the child.

By clearly eliminating the presumption per se, and mandating that custody be determined by a preponderance of evidence, weighing parenthood as a strong factor for consideration, custody proceedings would be disentangled from the burden of applying a presumption that merely beclouds the ultimate concern in these cases: the determination of what affiliation will best serve the child’s interest, including physical, emotional, intellectual, moral, and spiritual well-being. (Emphasis in original).

Ellerbe v. Hooks, 490 Pa. at 373-74, 416 A.2d at 516-17 (Flaherty, J., concurring) (suggestion that the Hernandez standard be replaced with a clear and simplified version of the best interest test).

Nevertheless, because Hernandez has been adopted by the Supreme Court in Albright and Ellerbe, I feel consistency requires that an adoptive parent show substantial reasons why he or she should obtain custody of the child in question as opposed to the natural biological parent of such child.

      . References to the lower court’s opinion are to the opinion prepared January 7, 1981, pursuant to Pa.R.App.P. 1925.

      . This act has been repealed and a new Adoption Act enacted effective January 1, 1981. See 23 Pa.C.S.A. § 2902(a) for this provision in the new Act.

      . Although adoption usually terminates all of the natural parent’s rights with respect to his or her child, 2 Am.Jur.2d Adoption, §§ 84-85 (1962), the natural mother in the present case retained all of the previous parental rights she previously had with respect to her child because the adoption to which she consented in no way affected her parental rights, but gave adoptive parent’s rights to her new husband. 23 Pa.C.S. § 2903.

      . In Albright, Justice Nix took the Hernandez Court to task with respect to its distinctions between the “three variations” of the test:
      The Hernandez Court also took issue with those decisions that formulated the standard in terms of a presumption in favor of a parent. Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961); Auman v. Eash, 228 Pa.Super. 242, 323 A.2d 94 (1974); Commonwealth ex rel. Gifford v. Miller, 213 Pa.Super. 269, 248 A.2d 63 (1968); Commonwealth ex rel. Galloway v. Galloway, 188 Pa.Super. 313, 146 A.2d 383 (1958). This objection is probably nothing more than a semantic quibble. “Prima facie” is in reality nothing more than a procedural device which assigns the burden of proceeding with the evidence. A fact presumed to be true unless disproved by some evidence to the contrary. Mineo v. Eureka Sec. F. & M. Ins. Co., 182 Pa.Super. 75, 125 A.2d 612 (1956); Beckman v. Brownback, 341 Pa. 565, 20 A.2d 200 (1941); Johnson v. State, 258 Ind. 648, 283 N.E.2d 532 (1972); Dal. Int’l Trading Co. v. The Milton J. Foreman, 171 F.Supp. 794 (E.D.N.Y.1959); Detig v. Kelley, 17 Ill.App.2d 496, 150 N.E.2d 845 (1958); Herbert v. Whims, 68 Ohio App. 39, 38 N.E.2d 596 (1941); Black’s Law Dictionary 1353 (Rev. 4th ed. 1968). The real questions are the quality and quantity of evidence required to overturn the presumption. It is doubtful whether either term, i.e., “presumption ” or “prima facie” is particularly helpful in this regard.

        Albright v. Com. ex rel. Fetters, 491 Pa. at 325 26 n. 1, 421 A.2d at 159 n.1.

      . See also Wrecsics v. Broughton, 285 Pa.Superior Ct. 90, 426 A.2d 1155 (1981); In re Donna W., 284 Pa.Superior Ct. 338, 425 A.2d 1132 (1980); Palmer v. Tokarek, 279 Pa.Superior Ct. 458, 421 A.2d 289 (1980).
      Justice Flaherty’s concurring opinion in Albright proclaims that the views he espoused in Ellerbe have been vindicated. 491 Pa. at 329, 421 A.2d at 161 (Flaherty, J., concurring). In my opinion, however, this is less than clear because the Albright majority does purport to follow Hernandez and Ellerbe and does provide the natural parent with a favorable, albeit tempered, burden of proof. I subscribe to the view that the Hernandez line of cases must be repudiated before Justice Flaherty’s proclamation is fulfilled. See Bertin & Klein, supra at 756 n. 33 (“In view of the majority’s holding in Ellerbe, it is submitted that the Hernandez decision would have to be modified or overruled in order for the presumption to be abolished”).


author: SPAETH, Judge:

text:
    437 A.2d 974
    Nina PAWOL, v. Joseph J. PAWOL, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1981.
    Filed Nov. 30, 1981.

      Timothy W. Pawol, Pittsburgh, for appellant.
    Philip P. Lope, Zelienople, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from an order increasing the amount that appellant must pay in support of his minor child. Appellant argues that there should be a new hearing because no stenographic notes of testimony were taken. We agree and therefore reverse and remand for further proceedings.

On February 11, 1967, an order was issued directing appellant to pay $85 per month for support of his child. On January 1, 1980, appellee filed a petition for an increase in the order because of the cost of living. Pursuant to Beaver County Local Rule No. 1006, a conference was held before a hearing officer. When no agreement was reached, the hearing officer recommended that appellant pay $185 per month for support of his child, and also, all medical, dental, and hospital expenses incurred on behalf of the child. Appellant filed exceptions, and after a proceeding that we shall discuss in a moment, the lower court ordered appellant to pay $175 per month for support of his child and one half of the medical, dental, and hospital expenses incurred on behalf of the child. This appeal is from that order.

The record does not disclose just what occurred before the lower court on appellant’s exceptions. In its opinion the lower court does not say what occurred but describes its general practice as follows:

Whenever the parties are dissatisfied with the [hearing] officer’s recommendation, . . . they can take exceptions, pursuant to Local Rule 1006(5) and the matter will be heard before the Court. These open court hearings are attended by the parties, their legal counsel and usually by the hearing officer who heard the matter originally. Taken into consideration in arriving at a final order are the facts as developed by counsel at the hearing, the arguments of both sides and the recommendation of the hearing officer. Although weight is given to it, we do not consider ourselves bound by the recommendation.
Again [i.e., as is also true of the conference before the hearing officer] there is no requirement that stenographic notes be taken at the hearing before the Court for many of the same reasons that they are not taken at the conference level.
Slip op. at 3-4.

In discussing why stenographic notes are not taken at the conference level, the lower court says:

There is no requirement that the hearing officer have a stenographer present at these conference proceedings namely because it would work as a disservice to the efficient administration of support matters. Such a requirement would also be too costly and burdensome for all those involved. Moreover, a great majority of the support conferences end up with some sort of agreement which is satisfactory to the parties, thus obviating the need to take testimony.
Id. at 3.

We have recently had occasion to consider the practice of not stenographically recording support hearings. In Mansfield v. Lopez, 288 Pa.Superior Ct. 567, 432 A.2d 1016 (1981), the appeal was from an order based upon a finding that the appellant was the father of the appellee’s child, and directing the appellant to pay $10 per week in support of the child. As here, no stenographic notes had been taken, the lower court explaining that

[t]he practice of this County regarding non-support hearings is that they are not stenographically recorded unless either party requests that they be.
Id., 288 Pa.Superior Ct. at 569, 432 A.2d at 1017.

We held this practice a violation of the Act of May 1, 1907, P.L. 135, § 3, 17 P.S. § 1804, which provides that

[t]he official stenographers of the several courts of common pleas . . . shall take full stenographic notes of testimony in all judicial proceedings in any trial of fact, at law or in equity ....

We therefore remanded for a new trial, at which full stenographic notes were to be taken. We shall do the same here. It may well be that considerations of efficiency and economy justify the absence of a stenographer at the conference level. Such considerations cannot, however, justify a failure to comply with the Act of May 1, 1907, supra, 17 P.S. § 1804, when an action not resolved at the conference level becomes a judicial proceeding.

Apparently anticipating this conclusion, the lower court says:

It is conceivable that the Appellate Court would remand this case to us so that a record could be taken thereby providing a basis upon which it could determine whether the increase in support was excessive. Our position that the increase in support was justified, however, remains steadfast.
Slip op. at 4-5.

We do not question the lower court’s steadfastness. Our responsibility, however, is to determine whether the court’s decision is supported by law. It is settled that in evaluating a parent’s obligation of support, a lower court should consider the parent’s income and the “full nature and extent of the parent’s property interests and financial resources.” Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Superior Ct. 562, 429 A.2d 665 (1981). While our scope of review is narrow, being limited to determining whether the evidence supports the order and whether there has been an abuse of discretion, Berry v. Berry, 278 Pa.Superior Ct. 30, 419 A.2d 1340 (1980); Dugery v. Dugery, 276 Pa.Superior Ct. 51, 419 A.2d 90 (1980), we will nevertheless remand where the record demonstrates that the lower court did not consider all of the relevant factors. Commonwealth ex rel. Vona v. Stickley, 287 Pa.Superior Ct. 296, 430 A.2d 293 (1981); Dena Lynn v. Harvey H. F., 278 Pa.Superior Ct. 95, 419 A.2d 1374 (1980). Here, without full stenographic notes, we cannot determine whether the lower court did consider all of the relevant factors.

The lower court suggests, however, that “[t]he lack of a record should be deemed waived by defense counsel by reason of his failure to request the same.” Slip op. at 5. The court also says:

[I]f either party requests the presence of a stenographer their request will be granted as a matter of course.
We note our Appellate Courts’ aversion to entertain a matter on appeal without the benefit of a recorded transcript of testimony. In the instant case, counsel for the defendant did not request the presence of a stenographer but now complains of the failure to have one there. We deem this failure to request such a record as a waiver of the same. If fault is to be laid anywhere it must be with defense counsel.
Id. at 4.

We are unable to accept this reasoning. So far as we can tell, it was not necessary for counsel to “request the presence of a stenographer.” In his brief, counsel for appellant says that “even opposing counsel believed a stenographer was present.” Brief for Appellant at 9. And indeed, in his brief, counsel for appellee refers to “the stenographer who was present . . . . ” Brief for Appellee at 8.

In seeking to uphold the lower court’s order, appellee argues, not that counsel for appellant did not request the presence of a stenographer, but, rather, as follows:

At the hearing before the Court in the instant action counsel [for appellant] was free to procede [sic] de novo by calling witnesses or could, as the Court advised, rely on matters already of record and the oral arguments of counsel. No objection was taken to the statement of the Court nor was the stenographer who was present requested by either party to transcribe the proceedings.
Brief for Appellee at 8.

We are also unable to accept this reasoning. The difficulty is that in the absence of stenographic notes, the record does not show what “the Court advised,” or what was “the statement of the Court” to which “[n]o objection was taken.” We therefore-do not know whether in fact counsel for appellant was “free to pro[ceed] de novo by calling witnesses

Counsel for appellant says that he was not thus free; according to him, “the Court below does not consider testimony to be necessary at a de novo hearing.” Brief for Appellant at 7. The lower court’s opinion does not help us in this regard; it only says that in cases of this sort its practice is to arrive at a final order by “[t]ak[ing] into consideration . . . the facts as developed by counsel at the hearing, the arguments of both sides and the recommendations of the hearing officers.” Slip op. at 4. This is ambiguous, and does hot exclude the possibility that the court’s practice is to require counsel to “develop[]” the facts by arguing only either for or against the recommendation of the hearing officer, as distinguished from permitting them to develop their case de novo’ by calling witnesses.

The ambiguity is heightened by the court’s statements in its opinion regarding the basis of its order. At one point the court says that its order

was based on a finding that defendant’s average net income was eight hundred ninety-eight and 22/100 dollars ($898.22) per month and plaintiff’s average net income was five hundred dollars ($500) per month.
Slip op. at 2.

At another point the court says that

[plaintiff’s request for an increase met with our approval after considering the child’s current needs and the ability of the plaintiff and the defendant to contribute to the same. Moreover, the change in circumstances over the eleven (11) year span required an increase in payments.
Id. at 2-3.

It is not apparent from the record, however, and the court does not say, where these figures, and where the estimate of the child’s current needs, came from. The inference is strong that they were derived from the forms filed with the hearing officer—which are not included in “the whole and entire record” as certified and transmitted to us—and from statements made by counsel in the course of their arguments.

We do not hold that a party to a support action may not waive the right to call witnesses. We only hold that a court may not require the party to proceed without calling witnesses, and that if a party does waive the right to call witnesses, the waiver, and the information on the basis of which the court arrives at its order, must appear of record, if not by stipulation, then by transcribed stenographic notes.

The ORDER of the lower court is reversed and the case remanded for further proceedings consistent with this opinion.

      . Appellant also argues that appellee did not carry her burden of proof, and that the support order was capricious and improper. We do not reach these issues.

      . The local rule provides:

        RULE 1006—DOMESTIC RELATIONS OFFICE CONFERENCE

      1. At the conference ordered between the parties, counsel and the assigned officer, the parties shall furnish to the officer a true copy of their most recent Federal Income Tax Return, the pay stubs for the preceding two months and a completed written budget on the form provided by the Domestic Relations Division.
      2. If an agreement for support is reached at the conference, the officer shall prepare a written order in conformity with the agreement and submit it to the Court for approval. The order shall bear the written consent of the parties. The Court may enter the order without further hearing thereon.
      3. If an agreement for support is not reached at the conference, the officer shall prepare a recommended order within five (5) days of said conference setting forth the basis for the recommendation to the Court. Said recommendation may further provide for a temporary order to be entered by the Court should exceptions be filed to the recommended order. The hearing officer shall mail copies of the recommendation to the parties and their legal counsel of record.
      4. Temporary Orders shall be provided only in cases where:
      (a) the right to support is not denied, or
      (b) the order is for the support of children only, or
      (c) the order is for support of party and defendant’s children who are presently receiving monies from the Department of Public Assistance.
      5. Either party may file exceptions to the recommendations within ten (10) days of the date of said recommendations, said exceptions shall set forth with particularity the basis for said exceptions which shall be the only matters heard by the Court at its hearing unless it was a matter not known at the time of filing exceptions.


author: HESTER, Judge:

text:
    437 A.2d 978
    Raymond R. BELL and Regis R. Bell and June Bell, Parents of Raymond R. Bell v. The WESTERN PENNSYLVANIA HOSPITAL, Peter J. Kyne, M.D. and Jeannette Kyllonen and Pittsburgh National Bank, Executors. Appeal of: Peter J. KYNE, M.D. at No. 330. Appeal of: The WESTERN PENNSYLVANIA HOSPITAL at No. 372. Appeal of: Jeannette KYLLONEN and Pittsburgh National Bank, Executors at No. 395.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Nov. 30, 1981.
    Petition for Allowance of Appeal Denied March 1, 1982.

      John W. Jordan, IV, Pittsburgh, for Kyne, appellant at No. 330 and for appellee at Nos. 373 & 395.
    John A. Tumolo, Pittsburgh, for Bell, appellees.
    George M. Weis, Pittsburgh, for The Western, appellant at No. 372 and for appellee at Nos. 330 & 395.
    James A. Wood, Pittsburgh, for Kyllonen, etc., appellants at No. 395 and for appellees at Nos. 330 & 372.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   HESTER, Judge:

Presently before the court are appellants’ consolidated appeals from that part of the court’s order dated April 1, 1980, wherein the Court en banc granted appellee Bell’s motion for new trial.

We affirm.

The relevant facts may be summarized as follows. On November 30, 1975, appellee Raymond R. Bell fractured the distal third of the femoral shaft of his left leg in a motorcycle accident; he received emergency treatment at a different hospital, following which he was admitted to The Western Pennsylvania Hospital (approximately 15 hours after the accident) and placed under the care of appellant Kyne. The next day, Dr. Kyne performed surgery to repair the fracture (he performed an open reduction) and following surgery, issued post-operative orders which included hourly neurovascular monitoring of the left leg extremity. After observing circulatory problems, Dr. Kyne brought in Dr. Kyllonen, a cardiovascular surgeon for a consultation. Later that evening at approximately 8:00 p. m., Dr. Kyne performed vascular exploration surgery. During this procedure, a clot was found in the left femoral artery (at the fracture site).

Circulation was restored to Bell’s leg, but the following day (December 2, 1975), the leg became very swollen. To reduce the swelling and facilitate draining, an incision (fasciotomy) was made. Within two days, infection developed in the incision area and the exposed muscle tissue became necrotic. To counteract the infection, cultures were taken to isolate the infection and antibiotics were administered. For the next week, appellee’s condition appeared to stabilize. However, on December 9, bacterial cultures identified the organism; it was therefore thought that same might respond to hyperbaric oxygen chamber treatments.

Although not noted in the hospital records, Dr. Kyne testified that he clinically diagnosed gas gangrene on December 4, 1975 and confirmed the condition on December 6, 1975. (R.65a).

On December 10, 1975, appellee was transferred to the Millard Fillmore Hospital in Buffalo, New York, for hyperbaric chamber treatments in an effort to arrest the clostridial infection (gas gangrene). The treatments were not successful and appellee's left leg was amputated on December 17, 1975.

Appellees Bell filed a medical malpractice action on August 15, 1977 on the theory that while a patient at the Western Pennsylvania Hospital, Bell developed the clostridial infection (gas gangrene) which was neither diagnosed nor properly treated by appellants Kyne and Kyllonen, and that Drs. Kyne and Kyllonen failed to debride the wound which permitted the infection to spread. Additionally, appellees contend that the hospital employees (particularly the nursing staff) were negligent in failing to monitor the circulation in Bell’s leg on December 1, 1975, following the open reduction surgery, which failure to monitor, contributed to the necrosis of the leg tissues, and the site of dead tissue is the only place where clostridial organisms (organisms causing gas gangrene) will grow. Citing Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), appellees contend that the inaction on the part of the hospital staff increased the risk to which appellee Bell was exposed.

As mandated, all parties were governed by the Allegheny County Local Pre-trial Procedure Rules. Rule 212 provides in relevant part:

* I-XIII. LOCAL PRE-TRIAL PROCEDURE
* I. This Rule shall govern pre-trial, conciliation and trial of cases in this Court.
* VI. In all trespass actions, and in other forms of action to the extent this rule may be applicable;
C. Defendant, within fifteen (15) days after the time set for performance by the plaintiff under VI. A. and VI. B. hereof:
1. Shall serve upon all other parties a written statement containing:
d. The reports of any expert whose opinion will be offered in evidence at the time of trial. Such reports shall include the findings and conclusions of the expert. (Emphasis added)

On December 20, 1978, appellant Kyne filed his Pre-trial Statement, appended to which were the reports of two medical experts, Donald P. Zangwill, M.D. and H. Andrew Wissinger, M.D. Dr. Zangwill’s report consisted of a two-page letter dated December 18, 1978. The report of Dr. Wissinger consisted of a one-paragraph letter dated August 18, 1978, which stated:

“I had the opportunity to go over the records regarding Bell vs. Kyne. I can see no evidence of negligence and I think that the actions of both Dr. Kyne and Dr. Kyllonen are defensible. I would be pleased to appear on their behalf.”

On September 19, 1979, trial commenced before The Honorable Joseph A. Del Sole and a jury. Over appellee’s objection, Dr. Wissinger was called as an expert witness and was permitted to testify; appellee objecting that Dr. Wis-singer’s August 18, 1978 report did not satisfy the requirements of Rule 212 set forth above. The trial court overruled appellee’s objection and permitted Dr. Wissinger to testify as an expert witness.

Dr. Wissinger testified that in his professional opinion, based upon his personal handling of six cases of gas gangrene infections, Raymond R. Bell did not suffer from gas gangrene. Dr. Wissinger concluded “No gas, no gas gangrene.” (R.392-393a). (It must be noted that this opinion differs from that given by appellant Kyne previously referred to).

Following Dr. Wissinger’s testimony, appellee moved that same be stricken or a juror withdrawn. Appellees’ motion was denied.

On September 28, 1979, the jury returned a verdict in favor of all appellants (Western Pennsylvania Hospital and Doctors Kyne and Kyllonen).

Appellees subsequently filed separate motions for judgment n. o. v. against the Western Pennsylvania Hospital, and for a new trial with respect to all appellants. These motions were argued before the Court en banc on December 17, 1979.

On April 1, 1980, the court filed an Opinion and Order granting appellees’ motion for a new trial (and denying their motion for judgment n. o. v. against the hospital). It is from this order that the instant appeal has been taken.

Our scope of review from an order either granting or denying a motion for a new trial has been oft-times defined: The law is crystal clear that an order either granting or refusing to grant a new trial will not be disturbed absent a manifest abuse of discretion or an error of law. Rusidoff v. DeBolt Transfer, Inc., 251 Pa.Super. 208, 380 A.2d 451 (1977); Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977) ; Sindler v. Goldman, 256 Pa.Super. 417, 389 A.2d 1192 (1978) .

We feel that the Court en banc neither committed a manifest abuse of discretion nor an error of law when it granted appellees’ motion for a new trial as to all appellants.

The Court en banc concluded, and we agree, that Dr. Wissinger’s report failed to satisfy the mandates of Rule 212. We concur with the Court en banc that Wissinger’s report does not in any way include his findings or conclusions as the rule requires. Simply put, “No expert report ... no testimony.”

Central to appellees’ case first, was the proof of the existence of gas gangrene; appellants’ treatment for which it was alleged was below the standards of acceptable medical care. The expert testimony of Dr. Wissinger, permitted in over appellees’ timely objection, injected into the case the foundation issue of whether appellee Bell was in fact suffering from a clostridial infection. (In addition, appellants argued in the alternative that the treatment they administered was within the standards of acceptable medical care).

We have reviewed the record and conclude that the Court en banc acted properly when it granted appellees’ motion for a new trial as to all appellants (and denied its motion for judgment n. o. v. as to appellant Western Pennsylvania Hospital). At trial, the court should have enforced Local Rule 212 and barred Dr. Wissinger’s testimony. By failing to do so, Bells’ case was prejudiced, which prejudice may have misled the jury and affected the verdict. See Warren v. Mosites Construction Co., 253 Pa.Super. 395, 385 A.2d 397 (1978); Nebel v. Mauk, 434 Pa. 315, 253 A.2d 249 (1979).

Finally, appellant, The Western Pennsylvania Hospital, argues that even if a new trial was warranted as to appellants Kyne and Kyllonen, it should not have been granted as to it. The hospital contends that since the testimony of Dr. Wissinger in no way related to appellees’ claim against the hospital, a fortiori, the admitted testimony of Dr. Wissinger in no way prejudiced appellees’ claim against the hospital. The hospital notes that there were two distinct theories of negligence advanced at trial—one against the individual appellants for their failure to diagnose or properly treat appellee Bell; the other against the hospital for its staff’s alleged failure to monitor the neurovascular status of Bell’s leg for a period of time on December 1, 1975.

However, we believe that because the central issue injected into the trial of this case by Dr. Wissinger was whether or not appellee Bell was suffering from the clostridial infection (gas gangrene), we are of the opinion that same goes centrally to the potential liability of all appellants. Accordingly, in the interest of justice, we believe that a new trial as to all appellants is appropriate.

Order affirmed.

      . A Suggestion of Death was filed with this court evidencing the fact that appellant, Armas S. Kyllonen, M.D., died on July 14, 1980. Accordingly, Jeannette Kyllonen and Pittsburgh National Bank, Executors of his estate, have been substituted as parties to this action.


author: CAVANAUGH, Judge:

text:
    437 A.2d 982
    COMMONWEALTH of Pennsylvania, v. Donald Lakey REESE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1981.
    Filed Nov. 30, 1981.

      Harry L. Green, Jr., Lansdale, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

In this case, the appellant was tried in 1975 for offenses allegedly occurring on December 2, 1973, and was convicted of simple and aggravated assault, assault by prisoner and attempted murder. Following denial of post-verdict motions he was sentenced to an aggregate of eight to twenty years imprisonment. Appellant appealed to this court and the judgment of sentence was affirmed, opinion by Cercone, J. See Commonwealth v. Reese, 237 Pa.Super. 326, 352 A.2d 143 (1976).

In January, 1980, the appellant filed a petition under the Post-Conviction Hearing Act, and present counsel on appeal was appointed to represent him in the proceedings. Following a hearing before Lowe, P. J., appellant’s petition was dismissed and he has appealed to this court from the order of dismissal.

The matter was submitted to this court on May 4, 1981 on the basis of appellant’s brief. In appellate counsel’s summary of argument he states that he has “reviewed the record and concluded that defendant’s complaints are legally unfounded and that the instant appeal is frivolous and without merit, save only the aspect of mental competence, which Mr. Reese has directed counsel not to pursue.” The district attorney has not filed a brief but wrote to our prothonotary stating that: “The Commonwealth agrees that the claims raised by appellant are without merit. . .”

The cases of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 493 (1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968) are the starting points of any consideration of counsel’s belief that his client’s claims are frivolous. Our Supreme Court pointed out in Commonwealth v. Baker, at 429 Pa. 211, 212, 239 A.2d 202 (1968):

The Supreme Court of the United States has recognized in Anders that even the most diligent court appointed counsel may sometimes justifiably believe that he is being asked to pursue an appeal totally devoid of merit. However, because it is also fundamental to the notion of equal justice for all that the indigent defendant receive just as spirited a defense as the man who can retain private counsel, the Supreme Court has set forth very strict standards, now applicable to the states, which counsel and the appellate court must follow before an attorney may be permitted to withdraw his services. Anders gives to counsel two choices when representing an indigent client on appeal. He may, of course, file briefs and argue the case. But Anders emphasizes, throughout the Court’s opinion, that the brief must be that of an advocate, not an amicus curiae. 386 U.S. at 742, 87 S.Ct. at 1399. Or counsel may choose to withdraw his services, in which case this procedure must be followed: “[I]f counsel finds his [the client’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses * * *.” 386 U.S. at 744, 87 S.Ct. at 1400.

See also Commonwealth v. Lowenberg, 493 Pa. 232, 243, 425 A.2d 1100, 1105-1106 (1981).

In the instant case counsel did not file an advocate’s brief but a brief which in effect was in support of the order of the court below dismissing his client’s petition. In fact “it could have been submitted as an argument in support of affirmance.” Commonwealth v. Tracy, 266 Pa.Super. 357, 358, 404 A.2d 1328, 1329 (1979). If counsel chooses not to file an advocate’s brief because he finds his client’s case to be wholly frivolous he must then file a petition to withdraw and follow the procedure set forth in Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974) as follows:

Anders and Baker require that before appointed counsel may withdraw, he must thoroughly examine the record and determine whether his client’s case is wholly frivolous. If he so determines, counsel must then (1) request the court’s permission to withdraw, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his client in time to allow an appeal in propria persona or a request for appointment of new counsel. See Anders v. California, supra, 386 U.S. at 744, 87 S.Ct. at 1400; Commonwealth v. Jones, supra, 451 Pa. [69] at 73, 301 A.2d [811] at 813-814: Commonwealth v. Baker, supra, 429 Pa. at 214, 239 A.2d at 203. It should be emphasized that lack of merit in an appeal is not the legal equivalent of frivolity. Anders “appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.” ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 8.3, Commentary at 297 (Approved Draft, 1971).

The court pointed out in Greer that the third requirement, notification to the client is the most important requirement.

In the instant case appellate counsel did not file a petition to withdraw as counsel and yet filed a brief characterized as an “Anders-Baker” brief which would ordinarily accompany such a petition. In fact, his client is in a far worse position than he would have been in if counsel petitioned to withdraw, because counsel has elected to remain as appellate counsel and has filed a brief that presents no arguments on behalf of his client. In his appellate brief, counsel has listed five issues under statement of questions involved. The first issue is whether the sentence of the lower court on the charge of criminal attempt to commit murder was proper. Counsel sets forth the facts and concludes that the sentence was proper. The second issue is whether the charges of assault by a prisoner and an attempt to commit murder merged with the result that the defendant may only be sentenced on one of the charges. Counsel for appellant argues vigorously that this issue is without merit. The third issue is whether appellant was improperly convicted of attempted murder and assault by prisoner because he was suffering from a mental disability at the time of the offense. Counsel for the appellant states that he has been instructed by the appellant not to pursue this inquiry and therefore has not done so. The next issue is whether the defendant was denied the right to representation by competent counsel. Counsel argues that he can find no basis for this claim. He further states in this regard: “In conversations with Mr. Reese, he did not indicate that this was a matter of great concern to him and gave no basis for arguing incompetence or ineffectiveness to the court.” Finally, counsel raises the issue as to whether the defendant’s conviction was improper under Pa.R.Crim.P. 1100 and concludes that the question was answered in the negative on the direct appeal taken by the appellant.

If defense counsel chooses to represent a client on appeal the brief filed “must be that of an advocate.” Commonwealth v. Baker, 429 Pa. 209, 211, 239 A.2d 201, 202 (1968). “Counsel must afford his client a spirited defense ... He may not assume the role of amicus curiae.” Commonwealth v. Perry, 464 Pa. 272, 275, 346 A.2d 554, 555 (1975). See also Commonwealth v. Shank, 258 Pa.Super. 243, 392 A.2d 775 (1978). Our court has stated that “it is incumbent on counsel to submit ‘virtually identical, advocate-type briefs whether counsel is attempting to withdraw or to prosecute the appeal on the merits.’ Commonwealth v. Bellamy, 251 Pa.Super. 165, 169, 380 A.2d 429, 431 (1977).” Commonwealth v. Brockington, 268 Pa.Super. 54, 58, 407 A.2d 433, 435 (1979). This rule as to “virtually identical, advocate-type briefs” has been recently modified by our Supreme Court in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981); opinion by Nix, J.; dissenting opinions by O’Brien, J. and Roberts, J., which dealt inter alia, with the sufficiency of a brief accompanying a petition to withdraw. The court held at slip opinion page 7:

Once we are satisfied with the accuracy of counsel’s assessment of the appeal as being wholly frivolous, counsel has fully discharged his responsibility. The role of an advocate, insisted upon in Anders, refers to the manner in which the record was examined in an effort to uncover grounds to support the appeal. Where counsel has in good faith satisfied that obligation and found the appeal to be wholly frivolous, he can do no more. We reject the view that his explanation of why there is no basis for an appeal should be interpreted as reflecting counsel’s lack of concern in the client’s cause. Nor can that fact be assigned as a reason for concluding that the client did not receive this constitutionally protected right of representation.

No longer are virtually identical advocate-briefs required when there is a petition to withdraw as are required where their argument is on the merits.

Counsel for the appellant is directed to either proceed with the appeal by filing an advocate’s brief on the merits, or if he concludes an appeal would be wholly frivolous he should file a petition to withdraw and a withdrawal brief in accordance with the requirements of Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974) and Commonwealth v. McClendon, supra. In either event counsel’s brief must be filed within thirty days of this order.


text:
    437 A.2d 985
    Robert J. AUGOSTINE, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, a Corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Nov. 30, 1981.

      Ernest B. Orsatti, Pittsburgh, for appellant.
    John C. Carlin, Jr., Pittsburgh, for appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is an appeal from the lower court’s order granting judgment on the pleadings in favor of the defendant, Pennsylvania National Mutual Casualty Insurance Company (hereinafter Penn National) and against the plaintiff, who is the defendant’s insured.

The following facts are not disputed. The plaintiff who was employed by Penn Road Materials Company was injured while alighting from one of his employer’s trucks in the course of his employment. He applied for and is currently receiving total disability benefits under the Pennsylvania Workmen’s Compensation Act. At the time of the accident the plaintiff owned his own car and was insured under a no-fault policy issued by Penn National. He initially gave notice to his employer and his employer’s no-fault insurance carrier and requested basic loss benefits. This request was denied. He then initiated an action in assumpsit against his insurer. Penn National filed an answer and new matter to which the plaintiff filed preliminary objections. With the consent of both parties the court issued an order overruling the plaintiff’s preliminary objections without prejudice to either party to file a motion for judgment on the pleadings. Both parties filed such motions. After argument the lower court issued an order granting the defendant’s motion and denying the plaintiff’s motion. Relying on Gradler v. Prudential Insurance Company v. Traveler’s Insurance Company, 464 F.Supp. 575 (W.D.Pa. 1979) and § 204(a) of the No-Fault Act the lower court held that the plaintiff could not recover from his own no-fault carrier because the employer’s no-fault insurance carrier was the proper company against whom he should proceed.

The Supreme Court’s recent decision in Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980) clearly indicates that although the plaintiff cannot recover from his employer’s no-fault insurance carrier he is entitled to receive basic work-loss benefits to make up the difference between his actual wage loss and benefits conferred on him under the Workmen’s Compensation Act from his own no-fault insurance carrier.

In Wagner, supra, the estate of a decedent, who was killed during the course of his employment while operating a company tractor-trailer, filed a claim against the employer’s no-fault carrier. The employer’s carrier filed preliminary objections and the trial court dismissed the claim based on Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa.Super. 43, 389 A.2d 591 (1978). This court affirmed and the Supreme Court granted allocatur.

The appellant in Wagner, supra, argued that Sections 204 and 206 of the No-Fault Act created an exception to § 303 of the Workmen’s Compensation Act.

Section 204 provides:

“(a) Applicable security.—The security for the payment of basic loss benefits applicable to an injury to:
“(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
“(2) an insured is the security under which the victim or deceased victim is insured;
“(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
“(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purpose of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident unless it was parked so as to cause unreasonable risk of injury; and

Further, Section 206 provides:

“.. . Except as provided in section 108(a)(3) of this act, all benefits or advantages (less reasonably incurred collection costs) that an individual receives or is entitled to receive from social security (except those benefits provided under Title XIX of the Social Security Act and except those medicare benefits to which a person’s entitlement depends upon use of his so-called ‘life-time reserve’ of benefit days) workmen’s compensation, any State-required temporary, nonoccupational disability insurance, and all other benefits (except the proceeds of life insurance) received by or available to an individual because of the injury from any government, unless the law authorizing or providing for such benefits or advantages makes them excess or secondary to the benefits in accordance with this act, shall be subtracted from loss in calculating net loss.” 40 P.S. § 1009.206(a) (Supp.1979-80).

The court found that neither of these sections created an exception to the exclusivity of remedy section of the Workmen’s Compensation Act and held that the appellant could not recover from the employer’s no-fault insurance carrier. The court specified, however, that an employee would be limited to workmen’s compensation benefits only in a situation identical to the one before it; i.e., where the driver carries no insurance of his own on his own vehicle and no other vehicle is involved in the injury-producing accident. Wagner, supra 492 Pa. at 167, 422 A.2d at 1068 (Emphasis added).

The court stated:

In sum, an employee injured in the scope of his employment while driving his employer’s vehicle may recover only workmen’s compensation benefits from his employer or the employer’s workmen’s compensation carrier; such a result is compelled by Section 303 of the Workmen’s Compensation Act. The injured employee may, if applicable, proceed against any of the applicable security mentioned in Section 204(a)(2)-{5). Should the employee recover no-fault benefits, workmen’s compensation benefits must first be deducted from any no-fault benefits to be paid. Should an employee be using his employer’s vehicle for private non-work related reasons, the employee could recover from his employer’s no-fault carrier.

Wagner, supra, 492 Pa. at 167, 422 A.2d at 1068.

Applying the principles of Wagner to the facts of the instant case it is clear that although the plaintiff may not recover from his employer’s no-fault insurance carrier, he may proceed against his own insurer under § 204(a)(2). It is also clear that § 206 of the No-Fault Act mandates that workmen’s compensation benefits must be deducted from this recovery.

For the above reasons we find that the lower court erroneously granted judgment on the pleadings in favor of the defendant. We therefore reverse the lower court’s order and remand for proceedings consistent with this opinion.

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

      . Act of June 2, 1915, P.L. 736, Art. I, § 101, et seq., as amended 77 P.S. § 1, et seq.

      . In Gradler v. Prudential Insurance Company v. Travelers Insurance Company, supra, an employee was involved in an accident while driving a truck furnished by his employer. At the time of the accident he was not using the truck for work-related purposes and thus he was not eligible to receive any workmen’s compensation benefits. Under those circumstances the court properly ruled that the employer’s no-fault carrier was liable to the employee under Section 204(a)(1) of the No-Fault Act. In the instant case, however, the employee was injured during the course of his employment and therefore the lower court erroneously relied on Gradler to support its holding

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009. 101 et seq.

      . We note that three judges dissented in Wagner, supra, however, the dissenters did so on the grounds that the injured employee should be able to recover from his employer’s no-fault carrier. They did not in any way refer to an insured employee’s right to recover from his own no-fault carrier.

      . The court pointedly noted that at the time of the accident the decedent did not own a car and thus had no insurance of his own.

      . In Turner, supra, this court held that Section 303 of the Workmen’s Compensation Act barred an employee injured during the course of his employment while driving his employer’s vehicle from seeking recovery against his employer under the No-Fault Act. Section 303 provides:
      “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death ... or occupational disease...”. As amended, Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(a) (Supp. 1979-80). (Emphasis added).

      . Our holding is supported by the court’s recent decision in Adams v. Nationwide Insurance Company, 285 Pa.Super. 79, 426 A.2d 1150 (1981). In Adams the court held that an employee injured while driving his own automobile within the scope of his employment is entitled to receive work-loss benefits from his no-fault insurance carrier to make up the difference between his actual wage loss and benefits conferred on him under the Workmen’s Compensation Act.


author: MONTEMURO, Judge:

text:
    437 A.2d 988
    COMMONWEALTH of Pennsylvania, v. Matthew SELTZER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1981.
    Filed Nov. 30, 1981.
    Mary McNeill Greenwell, Philadelphia, for appellant.
    Diane M. Devlin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from a Judgment of Sentence by the court below, sitting without a jury, for the crimes of possession, possession with intent to deliver, and delivery of various controlled substances in violation of the Controlled Substance, Drug, Device and Cosmetic Act. Appellant raises myraid contentions of error on appeal; however, for the reasons outlined below, we agree with appellant’s contention that his trial counsel was ineffective. Therefore, we reverse and remand for a new trial on that basis without reaching appellant’s other issues on the merits.

The facts of the case are as follows:

On April 10, 1979, one Detective Joseph Fehn of the Bristol Township Police Department was engaged in conducting a drug investigation together with officers of his and other police departments. He was the only witness for the Commonwealth at both the suppression hearing and the trial. He testified that on the aforesaid date Officer Linda Cielinski was operating in an undercover capacity and had apparently made contact with one David DeWitt and arranged the purchase of one ounce of methamphetamine hydrochloride for approximately $1,300.00. He also testified that Cielinski had secured $1,300.00 from a special Bristol Township police fund and that the serial numbers on the various bills were duly recorded and retained by the police department. At or about 7:00 o’clock P.M. that evening Cielinski met DeWitt at a lounge; at all relevant times Cielinski and DeWitt were under surveillance by Detective Fehn and other officers. After meeting DeWitt at the lounge, Cielinski and DeWitt proceeded in Cielinski’s automobile to Ravine Lane in Bristol Township and parked on the street immediately opposite 44 Ravine Lane—home of the appellant. Detective Fehn followed them to that location and continued past the spot where they had parked their motor vehicle; he parked in a driveway several houses down the street so that he could observe Cielinski’s car, its occupants, and 44 Ravine Lane.

After Cielinski and DeWitt arrived at the aforedescribed location DeWitt exited the vehicle, leaving Cielinski in it, and entered the premises at 44 Ravine Lane. He remained inside approximately 10 or 15 minutes, then exited that residence and re-entered Cielinski’s automobile. At that time he apparently delivered to Cielinski a clear plastic bag containing a white powder. Cielinski then allegedly gave him the sum of $1,150.00 of the recorded currency; DeWitt then left the motor vehicle and re-entered 44 Ravine Lane. Fehn then approached the Cielinski vehicle, spoke to Cielinski and was allegedly advised by her that she had received the clear plastic bag with the white powder and had given DeWitt the money. Fehn then took the clear plastic bag ■with the white powder, returned to his own motor vehicle and conducted a field test there and determined that the white powder was methaphetamine hydrochloride. DeWitt then exited 44 Ravine Lane and was arrested at that time. A search of his person revealed that he had none of the money; he purportedly stated at that time to the officers that he had made the purchase in 44 Ravine Lane from the appellant.

Detective Fehn and various other officers then proceeded to the side door of the house leading from the driveway and the carport and knocked thereon. This was the door they had observed DeWitt enter and leave both times he had entered the house. Fehn testified that he knocked upon the door and immediately the door was opened by a young woman. Fehn identified himself and his companions as police officers and advised the young woman that he was there to conduct a drug investigation. The young lady identified herself as Terry Seltzer and stated that she was the owner of the premises. The officers then entered the premises and found a number of people in the room they entered (the kitchen) and others in the living room immediately adjacent thereto. They were all instructed to remain where they were while Fehn and several other officers proceeded to the second floor. On the second floor they proceeded to a door off of a hallway and found that it was locked. Fehn kicked the door down and entered that room, finding therein the appellant, together with two other parties. In the room Fehn observed a gram scale and a white powder upon a mirror. Each person in the room was asked to identify himself, which each did, and the appellant stated that he was the owner of the premises. The appellant was placed under arrest and each of the three occupants was taken to the first floor where the other persons were. The court below found that the house was not searched nor was anything seized at that time.

Fehn then departed the house, leaving other officers there, and proceeded to the office of the District Justice of the Peace where he duly executed and swore to a certain affidavit for the purpose of securing a search warrant. A search warrant was issued and Fehn returned immediately to the house where a search was conducted. A number of items were found and seized as a result of that search including the drugs in question consisting of a quantity of methamphetamine hydrochloride, a quantity of LSD, some marijuana and hashish. In addition, a sum of money of approximately $5,100.00 was found. The marked money was likewise allegedly found.

Later, based almost entirely on the testimony of Detective Fehn (and Fehn alone), and following various procedural events about which appellant also complains, appellant was found guilty of the aforementioned crimes on October 4, 1979, by the Honorable Isaac S. Garb of the Court of Common Pleas of Bucks County. Following appropriate post-verdict motions, appellant was sentenced to serve six (6) to twelve (12) months in Bucks County prison. On July 11, 1980, this appeal followed.

On appeal, appellant makes extensive allegations of ineffectiveness of counsel both before and during the trial below. Due to the nature and extent of the instances of ineffectiveness during the trial itself, however, we need not discuss the other allegations of ineffectiveness, since we find that there was sufficient ineffectiveness on that occasion to justify the granting of a new trial.

In appellant’s brief, we are asked to review all the notes of testimony; having done so, we are forced to agree that trial counsel did, in fact, repeatedly allow the Commonwealth to present inadmissible and prejudicial hearsay testimony without objection. Indeed, the fact that Detective Fehn was virtually the only witness for the Commonwealth in this case makes obvious the fact that hearsay by Fehn was necessary in order to prove much of the case against appellant. Specifically, appellant complains (directly or by fair implication) of the following: that Fehn was permitted to testify as to the initial contact between Cielinski and DeWitt when he was not present; that Fehn was also permitted to testify as to Cielinski’s acquisition and use of marked money for the drug transaction, when he also was not directly privy to this part of the “set-up” (and further that trial counsel failed to force the Commonwealth to substantiate anything concerning this marked money, despite the fact that its alleged presence in appellant’s house was a crucial part of the Commonwealth’s case); that Fehn was allowed to testify as to the alleged exchange of drugs and money between Cielinski and DeWitt; and most importantly, in light of the conviction for delivery, that Fehn was permitted to testify that DeWitt had told Cielinski that appellant had sold him the drugs.

In addition to the above testimony by Fehn as to matters involving the observations of others and not himself, appellant complains of several other instances of ineffectiveness. For instance, appellant complains that counsel failed to object when Fehn, rather than the lab technician, was allowed to testify as to the final and detailed chemical analyses of the drugs allegedly found at appellant’s home. This may seem a minor point, but it is well taken. Also, appellant contends, and we think rightfully so, that counsel should have objected when the Commonwealth introduced into evidence a book, seized at appellant’s home, called The Whole Drug Manufacturer’s Catalogue; appellant complains further at the failure to object when Fehn was permitted to actually read passages from and summarize the book. The essence of this complaint is that appellant was made to look like a “major drug dealer and/or manufacturer” and that, of course, the prejudice therefrom far outweighed any probative value. Our examination of the record shows that, in this instance at least, counsel did try to discredit this part of the testimony on cross-examination; nevertheless it would appear that an objection at the start would have been far preferable.

Leaving aside any argument concerning the aforementioned book, not to mention appellant’s allegations concerning damaging admissions (and even questions) by his counsel below, a review of the record reveals that all of the aforementioned testimony did, in fact, occur without proper objections by counsel. Particularly when viewed as a whole, we can find “no reasonable basis” for counsel’s action—or lack of it—regarding the various instances of prejudicial and damaging hearsay testimony. See Com. ex rel Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Not only can we find no reasonable basis; indeed none is offered by the Commonwealth on these many points of alleged error. The primary response of the Commonwealth here is that the evidence was properly admitted; no “mockery of justice” (an incorrect standard) occurred even if admission should have been challenged; and trial counsel “had previously served as an Assistant District Attorney who had wide experience at the Bar prior to his taking the representation of appellant.” While this latter allegation may, in fact, be the case, it is not a reason for us to find that appellant was given effective assistance of counsel in light of the glaring errors in failing to object to so much hearsay.

Of course, the Commonwealth does make, at least implicitly, some specific points regarding these ineffectiveness claims of appellant. For one, it is contended that the hearsay employed at the suppression hearing was, in fact, admissible in order to show probable cause (i.e. not offered for the truth of the matter asserted); hence, counsel was not ineffective since any objection at that point would have been overruled. The Commonwealth is, of course, correct on this point, thus rendering irrelevant any argument as to whether or not appellant has waived his right to complain of ineffective assistance at the suppression hearing. Another point we address is that admission of the hearsay complained of by appellant was “harmless error” even if it should have been objected to. This we must flatly reject; as we have previously noted, the Commonwealth’s case against appellant rested in large part on the very hearsay testimony not objected to. See, e.g., Com. v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978) (reasonable possibility that an error contributed to conviction—error not harmless).

Although it is true that appellant cannot successfully complain about the failure of counsel to object to the various hearsay at the suppression hearing, it is also true that virtually all of the objectionable testimony was repeated at trial—again without proper objection. Herein lies the ineffectiveness upon which we must reverse. It may be argued that by permitting the incorporation of suppression evidence into trial (and concomitant use of the same judge for trial), counsel’s failure to object at trial was also irrelevant. The fact of the matter is that it would be completely unreasonable to assume that counsel, by failing to object, was stipulating to the inclusion of inadmissible hearsay when the incorporation was made. And even assuming arguendo that counsel intended to make such an inappropriate stipulation, it would be grossly unfair to appellant to excuse, on appeal, counsel’s ineffectiveness at trial based on his ineffectiveness just prior to trial. This would be overly technical and could even lead to a charge of appellate ineffectiveness, since appellate counsel treated this ineffectiveness thoroughly, but in general terms, and did not specifically challenge counsel’s failure to object to the incorporation.

Since we find no reasonable basis for failing to object to the hearsay, we conclude that counsel was ineffective and appellant was denied his right to effective representation; and we see no reason to remand simply for an evidentiary hearing on the ineffectiveness. Instead, the Judgment of Sentence by the court below is hereby reversed and the case is remanded for a new trial.

      . 35 Pa.S.A., § 780-113(a)(30).

      . 35 Pa.S.A., § 780-113(a)(30).

      . 35 Pa.S.A., § 780-113(a)(30).

      . 35 Pa.S.A., § 780-101, et seq.

      . This is not to say that we have not thoroughly reviewed appellant’s many other contentions of reversible error. Indeed, we have reviewed at length the briefs for both sides and the record in this case; and, while we need not reach a decision on appellant’s other arguments, we do note that counsel for appellant at the new trial would be well-advised to carefully consider these other arguments.

      . Many of these facts were adduced at an extensive pre-trial hearing and were incorporated by reference at trial.

      . The fact that no one else testified in and of itself speaks to a hearsay problem in the case below—and one not handled properly by trial counsel. See discussion infra.

      . Here is a valid ground for objection not taken advantage of below—with no apparent reason. See discussion infra.

      . Again, objectionable hearsay not challenged by counsel.

      . Again, objectionable hearsay not challenged by counsel.

      . See Footnote 5, supra.

      . Although the point is not raised by appellant, we do note that the court below did not put the reason for this sentence on the record— something which is required and which we would very much like to have in this case.

      . Again, however, we would suggest that counsel review these other contentions carefully prior to the new trial. See Footnote 5, supra.

      . See Footnote 8 and accompanying text, supra.

      . See Footnote 9 and accompanying text, supra.

      . See Footnote 10 and accompanying text, supra.

      . This has not been the standard in our Commonwealth since at least 1967. See Com. ex rel Washington v. Maroney, supra.

      . See Footnote 7 and accompanying text, supra.

      . We would also note that counsel failed to object to the incorporation of suppression hearing evidence into trial and to the use of the same judge for both proceedings; however, appellate counsel has ignored this area of ineffectiveness and therefore we may not raise it sua sponte. See discussion and Footnote 21, infra.

      . See Footnote 19, supra.

      . See Footnote 19, supra. We would further note that we have found but one case which even comes close to any guidance in this area. Com. v. Corbin, 447 Pa. 463, 291 A.2d 307 (1972). In that case, the specific point challenged (one left untouched in the instant appeal) was the use of the same judge for suppression hearing and trial. While the factual predicates and issues in Corbin are not even close to those in this case, we do note that the reasoning for finding harmless error in Corbin was that “the potential error of the same judge sitting at trial is harmless, because the same evidence he may have been exposed to for suppression purposes is admissible to show guilt or innocence.” Id., 447 Pa. at 468, 291 A.2d 307 (emphasis supplied). Clearly, we may infer from the wisdom of Corbin that it does matter in the instant case that the inadmissible hearsay went directly to the issue of guilt or innocence and should, therefore, have been objected to most strenuously.