text:
    490 A.2d 853
    COMMONWEALTH of Pennsylvania v. Sharon F. WEISS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1984.
    Filed March 22, 1985.
    Petition for Allowance of Appeal Denied Sept. 16, 1985.

      Allen H. Krause, Lebanon, for appellant.
    John Feather, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

      Before WICKERSHAM, DEL SOLE and POPOVICH, JJ.
   WICKERSHAM, Judge:

At approximately 11:00 p.m. on November 26, 1982, Anthony Finkle, a police officer with the Annville Township Police Department, responded to a report of a hit and run accident at the Stone Hill Trailer Park in Annville. The report had been called in by Chris Gettle, appellant’s next-door neighbor, and involved appellant’s husband, Bruce Weiss. Officer Finkle subsequently tried to place Mr. Weiss under arrest, but Mr. Weiss broke the officer’s grasp three times and eventually went into the trailer where he and appellant lived. The officer attempted to follow Mr. Weiss into the trailer, but he discovered the door was locked. He then broke open the locked door and proceeded inside, where he first encountered appellant, Sharon Weiss.

Thereupon, appellant started to yell and use various obscenities, telling the officer to get out of her house and off her property. Officer Finkle requested that she stop swearing and lower her voice, but she did neither. After Officer Finkle finally placed Mr. Weiss in custody and took him outside to the police car, he requested identification from appellant. She refused to give him any and, using similar language, asked who was going to pay for the broken door. When Officer Finkle returned to the door of the trailer, however, she handed him her driver’s license. This entire incident took place in approximately one minute. She was subsequently charged with disorderly conduct and was found guilty by a district justice on January 5, 1983. She appealed to the Lebanon County Court of Common Pleas and following a trial de novo on March 25, 1983, was again found guilty. Following unsuccessful post-trial motions, she filed this timely appeal.

Appellant raises the following issues before us:

1. Did the Commonwealth prove beyond a reasonable doubt that the obscene language used by Appellant was done with an intent to cause public annoyance or alarm, or recklessly creating a risk thereof?
2. Did the Court err with prejudice to Appellant, in its five rulings on objections during the Hearing, all of said rulings being against the Appellant and in favor of the Commonwealth, said rulings being as follows:
(a) On cross-examination of Prosecutor Finkle, Counsel for Appellant-Defendant asked him whether he was complaining about Appellant-Defendant objecting to his breaking into her home and entering same, to which the Commonwealth objected and the Court sustained the objection as argumentative.
(b) On Cross-examination of Prosecutor Finkle, upon Appellant-Defendant’s Counsel questioning him as to whether or not he had a warrant when he broke into Appellant-Defendant’s home, the Commonwealth objected and the Court sustained the objection.
(c) Upon Appellant-Defendant’s Counsel, on cross-examination of Prosecutor Finkle, asking him under what authority he asked Appellant-Defendant to furnish identification, the Commonwealth objected and the objection was sustained.
(d) Appellant-Defendant objected to Commonwealth questioning its witness, Gettle on redirect examination as to matters not raised on cross-examination, which objection was overruled and the Commonwealth was permitted to elicit testimony of material not proven on direct examination.
(e) Appellant-Defendant’s objection to Commonwealth’s questioning of Appellant-Defendant on cross-examination regarding language used by Appellant-Defendant’s husband was overruled and the Commonwealth was permitted to proceed to elicit material which was not only not relevant to Appellant-Defendant’s guilt, but was prejudicial to her case.
3. Did the Court err in increasing the penalty assessed against Appellant by the District Justice of Fifty Dollars ($50.00) to Two Hundred Fifty Dollars ($250.00) upon a finding of guilty on appeal from summary conviction.

Brief for Appellant at 6-7. Due to our disposition of appellant’s first issue, we find it unnecessary to answer her remaining issues.

Appellant contends that the evidence was not sufficient to convict her of disorderly conduct. Specifically, she alleges that the Commonwealth did not prove beyond a reasonable doubt that her language was intended to cause public annoyance or alarm or recklessly created a risk thereof.

In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt____ The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229-30 (1984) (citations omitted).

Appellant was charged with and convicted of violation of section 5503(a)(3) of the Pennsylvania Crimes Code, 18 Pa.C.S. 5503(a)(3). This statute provides in pertinent part:

§ 5503. Disorderly conduct
(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(3) uses obscene language, or makes an obscene gesture;
* * * * * *
(b) Grading. — An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense.
(c) Definition. — As used in this section the word “public” means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.

We have carefully read the record, the briefs of the parties, and the well-written opinion of the lower court en banc. We have also examined the case law cited by the parties and the lower court, plus some cases not cited and a number of similar cases from foreign jurisdictions. We have also reviewed the line of United States Supreme Court cases in this area of the law beginning with the landmark case of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). We have not been successful, however, in finding a case on point with the instant case. A quick review of the recent Pennsylvania cases is demonstrative. In Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, appeal dismissed, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980), the supreme court affirmed defendant’s conviction for disorderly conduct resulting from two incidents in which the defendant storeowner came out of his store into the street and in a loud and boisterous fashion, hurled epithets at a meter maid. In Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982), our court affirmed defendant’s conviction for disorderly conduct resulting from an incident in which defendant shouted profane names and insults at police officers on a public street where a crowd had gathered to watch the arrest of a third party. In Commonwealth v. Kidd, 296 Pa.Super. 393, 442 A.2d 826 (1982), our court affirmed defendant’s conviction for disorderly conduct resulting from defendant’s screaming and shouting obscenities at police officers in a hospital emergency room, following his arrest by the officers for public drunkenness. Finally, defendant’s conviction for disorderly conduct was also affirmed by our court in Commonwealth v. Hughes, 270 Pa.Super. 108, 410 A.2d 1272 (1979). In that case, defendant was enraged at being refused admittance to a party at 4:35 a.m. and, after crossing the street, began shouting obscenities at the persons at the party and the officers who had responded to the call. Defendant also spat in the face of one of the officers.

Instantly, the testimony of Officer Finkle and a second police officer who arrived at the scene towards the end of the incident showed that appellant directed her speech solely at Officer Finkle. As stated in Commonwealth v. Hughes, id, however, a person may be found guilty of disorderly conduct within the definition of section 5503 if in the presence of members of the general public, he or she shouts obscenities although the principal intent of the defendant may have been to insult the police officer(s) rather than to cause public inconvenience, annoyance, or alarm. Id., 270 Pa.Superior Ct. at 111, 410 A.2d at 1274. In each of the four cases cited above, however, the defendants were either on a public street, sidewalk, or in a public building when they uttered their various offensive statements to the police. We have found no case in which the conviction resulted from a police officer breaking down the locked door of a person’s home at 11:00 at night and arresting that person when he or she protested, obscenely or otherwise. We find that the distinction between the facts of this case and the cited case law is controlling.

The lower court found that appellant’s sole intent was to insult Officer Finkle, but still found appellant guilty for using obscene language in such a manner as to recklessly create a risk of public alarm or annoyance. The court pointed to the testimony of appellant’s next door neighbor, Chris Gettle, who stated that he could hear appellant’s shouting from his trailer located 15 or 20 feet away. While we do not doubt that Mr. Gettle could hear appellant, in reviewing his testimony we must remember two things. First, appellant’s door would not have been open and her voice presumably would not have carried beyond the walls of her home, had not Officer Finkle broken the door when he entered. Second, Mr. Gettle was the complainant in the original report of a hit and run against appellant’s husband, so it is likely that he was very interested in the subsequent events in the trailer next door. Vulgar language, however distasteful or offensive to one’s sensibilities, does not become a crime because people standing nearby stop, look, and listen. People v. Douglas, 29 Ill.App.3d 738, 331 N.E.2d 359 (1975).

Nor do we feel that appellant’s verbal assault was something that Officer Finkle was unable to handle. “Indeed, police officers must expect, as part of their jobs exposing them to daily contact with distraught individuals in emotionally charged situations, to confront and answer accusations of rudeness and improper conduct.” Commonwealth v. Bender, 248 Pa.Super. 504, 515, 375 A.2d 354, 359-60 (1977). Appellant’s conduct may have been intemperate, unreasonable, or even unjustified, but we see no evidence of a reckless disregard for public inconvenience, annoyance, or alarm.

While we find appellant’s reaction to the events which occurred to be distasteful, it was understandable. The police initially intruded into the life of appellant. It began with the breaking open of the locked door of her home and the entering by the officer. Officer Finkle himself testified as to how upset appellant got when he entered the room. We suspect that it is quite natural for a citizen to become aroused and excited upon such an encounter with a policeman. All of appellant’s complaints in this short period of time involved the breaking and entering of her home. Her conduct could be accurately described as an excited reaction to the traumatic events concerning the sudden invasion of her home. At all relevant times, appellant was inside her home in the vicinity of the doorway through which Officer Finkle had entered. We find no conscious disregard of a substantial and unjustifiable risk that public annoyance or alarm would result from her conduct, or a gross deviation from the standard of conduct that a reasonable person would observe in her situation. On the meager evidence which comprises this case, there is nothing from which the required mens rea can be inferred.

Accordingly, we hold that the evidence was insufficient to establish beyond a reasonable doubt that appellant was guilty of disorderly conduct. The judgment of sentence is reversed and appellant is discharged.

      . A case with facts similar to the instant case is People v. Jerome, 8 Misc.2d 883, 168 N.Y.S.2d 452 (1957). In that case, the court held that obscene language directed towards police officers by the defendant while he stood inside the private home of his hosts, where the officers had come to investigate a complaint, did not constitute disorderly conduct. There are a number of cases, with varying results, in which the defendant directs obscene language towards the police while sitting or driving inside a private car (where presumably, the "public" is not present), or in other "one-on-one” confrontations. See, e.g., 14 A.L.R. 4th 1252 §§ 9, 10, 15-18, and the cases cited therein.

      . Defendant was convicted under a different sub-section of the disorderly conduct statute prohibiting the making of unreasonable noise. 18 Pa.C.S. § 5503(a)(2).

      . Whether Officer Finkle had the authority to break down appellant’s door because he was in pursuit of appellant’s husband, who had gone inside the trailer, is really irrelevant to appellant’s conviction for disorderly conduct. Assuming that he did have that authority, it pertains more to appellant’s husband’s arrest than to appellant’s reaction to that entry. We do note, however, that appellant’s belief (mistaken or otherwise) in her justification in taunting the police would not vitiate her recklessness with regard to annoyance or alarm of members of the public in the vicinity. See Commonwealth v. Hughes, 270 Pa.Super. 108, 410 A.2d 1272 (1979).


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    490 A.2d 857
    Edward D. LOOKENBILL, Appellant, v. Mary Lee GARRETT.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1984.
    Filed March 22, 1985.

      Samuel K. Gates, York, for appellant.
    John M. Crabbs, Hanover, for appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order of the Court of Common Pleas of York County granting summary judgment in favor of appellee.

Appellant, Edward D. Lookenbill, and appellee, Mary Lee Garrett, a/k/a Mary Lee Kuhn, are the sole litigants in a real estate partnership dispute. At all times relevant to this appeal, appellant was a licensed real estate agent or salesman and appellee was a licensed real estate broker. Appellant obtained his license in February or March of 1980 and began working as an agent for appellee. On June 29, 1981, appellant and appellee entered into a written partnership agreement, for the express purpose of “operating a real estate practice.” Appellant paid $12,500.00 to appellee for a one-half interest in this partnership, $2,500.00 of which was to provide the initial capitalization of the partnership. A fictitious name registration listing the partnership as M & E Hanover Realty was filed. At some point thereafter, appellant was advised that a partnership consisting of a broker and an agent is illegal and unenforceable under the Real Estate Licensing and Registration Act and the rules and regulations of the Real Estate Commission. On April 30, 1982, appellant filed suit against appellee, alleging that appellee knew or should have known that their partnership was illegal and unenforceable and that the parties could lose their licenses, that appellee acted fraudulently and intentionally to obtain money for the illegal partnership from appellant, and that as a result appellant lost the $12,500.00 investment plus interest. Following various pre-trial filings and depositions of both parties, appellee moved for summary judgment on the issue of the legality of the contract. On September 26, 1983, the trial court sustained appellee’s motion. Appellant filed this timely appeal. The State Real Estate Commission has filed an amicus brief in support of appellant’s position.

The question presented to us is whether an agreement to form a partnership for the purpose of operating a real estate practice is an illegal agreement when one partner is a licensed real estate broker and the other partner is a licensed real estate agent. In other words, we must decide whether the Real Estate Commission’s regulation that all members of a partnership seeking a broker’s license must be duly licensed brokers themselves is inconsistent with the Real Estate Licensing and Registration Act. The trial court found the regulation to be inconsistent with the Act, which resulted in its decision that the parties’ agreement was legal.

Under Pennsylvania Rule of Civil Procedure No. 1035(b), a party shall be entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Skowronski v. Bailey, 330 Pa.Super. 83, 478 A.2d 1362 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Rich land Mall Corp. v. Kasco Construction Co., Inc., 337 Pa.Super. 204, 486 A.2d 978 (1984); Skowronski v. Bailey, supra.

‘In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.’

Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984), quoting Rybas v. Wapner, 311 Pa.Super. 50, [54], 457 A.2d 108, [109] (1983).

The Real Estate Licensing and Registration Act, 63 P.S. § 455.101-.902. (hereinafter “the 1980 Act”) provides, in pertinent part:

[I]t shall be unlawful for any person, directly or indirectly, to engage in or conduct, or to advertise or hold himself out as engaging in or conducting the business, or acting in the capacity of a broker or sales person ... within this Commonwealth without first being licensed or registered as such as provided in this act.

63 P.S. § 455.301.

In section 201 of the 1980 Act, a person is defined as any individual, corporation, partnership, association, or other entity.

Definitions of a broker and a salesperson are also provided in section 201 of the 1980 Act. A broker may be either an individual or an entity such as a partnership. The licensure of partnerships as real estate brokers was and is permitted under both the 1929 and 1980 Acts. Section 6(c) of the 1929 Act, now repealed, provided:

(c) No copartnership, association or corporation shall be licensed by the department or commission as a real estate broker, unless all of the members of any such copartnership or association and all of the officers of any such corporation, intending to actually engage in or actually engaging in the real estate business, are duly licensed real estate brokers.

63 P.S. § 436(c) (repealed).

The Real Estate Commission’s regulation at 49 Pa.Admin.Code § 35.21(a) (hereinafter “the Code”), adopted in 1966, was promulgated pursuant to section 6(c) of the 1929 Act. The regulation provides the following general requirement for corporate and partnership licensure as a real estate broker:

(a) A partnership, association or corporation may be licensed as a real estate broker, if all members of any such partnership or association or all officers of any such corporation who intend to engage in or actually engage in the real estate business themselves are duly licensed as real estate brokers.

49 Pa.Admin.Code § 35.21(a).

In the 1980 Act, which repealed the 1929 Act, provisions for the licensure of both individual and entity brokers are contained in sections 511, 512, and 513. Section 511 establishes requirements that an applicant must meet in order to qualify for a broker’s license. 63 P.S. § 455.511. Section 512 sets forth certain requirements for applying for a broker’s license. 63 P.S. § 455.512. Section 513 provides:

If the applicant for a broker’s license is a corporation, partnership or association, then the provisions of sections 511 and 512 shall apply to the individual designated as broker of record. The employees of said corporation, partnership or association actually engaging in or intending to engage in the real estate business shall meet the provisions of sections 521 and 522.

63 P.S. § 455.513 (footnotes omitted).

Sections 521 and 522 pertain to the licensure of salespersons. Broker of record was defined in the original 1980 Act as:

A sole proprietor or principal individual broker of a licensed corporation, partnership or association or other entity, foreign or domestic.

63 P.S. § 455.201.

Finally, section 404 of the 1980 Act gives the Real Estate Commission the power to promulgate rules or regulations in order to administer and effectuate the purposes of the Act and provides that all existing rules or regulations adopted pursuant to the 1929 Act “shall remain in full force and effect until modified by the commission.” 63 P.S. § 455.-404(a).

We agree with the Commission that a reading of section 404 of the 1980 Act shows that the legislature intended that, where possible, the provisions of the 1980 Act are to be construed so as to be reconcilable with the regulations promulgated under the 1929 Act. We also agree that given the differences between the two acts, it is possible that some of the regulations promulgated under the 1929 Act cannot be reconciled with the 1980 Act. In those cases, the legislature intended that any such inconsistent regulation would not remain in full force and effect under passage of the 1980 Act.

Upon careful consideration of the provisions concerning licensure of real estate partnerships in the 1980 Act and in the Code, we are constrained to agree with the lower court that the Commissions’s regulation at 49 Pa.Admin.Code § 35.21(a) is inconsistent with the 1980 Act. Section 35.-21(a) of the Code requires that all members of a partnership applying for a license as a broker be brokers themselves. This requirement, while consistent with provisions in the repealed 1929 Act, goes beyond the provision of the 1980 Act which requires only the individual designated as broker of record in a partnership to qualify and apply for a broker’s license. Section 455.513 of the 1980 Act clearly contemplates the possibility of a partnership in which not all partners are licensed brokers.

An examination of the language regarding a limited broker’s license supports the lower court’s conclusion. Section 533 of the 1980 Act provides for the licensure of partnerships as limited brokers (brokers who deal exclusively with cemetary lots and the like). Section 533 requires that the broker of record for the partnership as well as those members of the partnership who intend to engage in the real estate business must be licensed limited brokers. This section clearly spells out that all members of the partnership must be licensed limited brokers. If the legislature had wanted to require all members of a partnership seeking licensure as a regular broker to be licensed brokers, it could have spelled out such a requirement in section 513 in the same manner that it did for limited brokers in section 533. The legislature deleted the language, present in the 1929 Act and the regulation, that all members of a partnership applicant for a broker’s license be themselves licensed brokers, and replaced it with the language in the 1980 Act that if the applicant for a broker’s license is a partnership, the broker’s license requirements apply to the individual selected as broker of record. The deletion of statutory language by the legislature renders that language inoperative and indicates that the legislature has admitted a different intent. Deremer v. Com., Workmen’s Compensation Appeal Board, 61 Pa.Commw. 415, 433 A.2d 926 (1981); See Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979); Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977).

As the lower court correctly noted:

An administrative agency, such as the State Real Estate Commission which promulgates the Rules, can exercise only those powers conferred upon it by the legislature in clear and unmistakable language. See Com., Pennsylvania Human Relations Commission v. Transit Casualty Insurance Co., 478 Pa. [430], 387 A.2d 58 (1978); Com., Pennsylvania National Guard v. Com., Workmen’s Compensation Appeal Board, [63 Pa. Commw. 1], 437 A.2d 494 (1981). Legislative power of the Commonwealth is vested in the General Assembly. Article II, § 1 of the Constitution of Pennsylvania. The legislature cannot delegate power to make a law to any other branch of government or to any other body or authority. Chartiers Valley Joint Schools v. Allegheny County Board of School Directors, 418 Pa. 520, 211 A.2d 487 (1965). It follows that a rule promulgated by an administrative agency that makes law by rule or regulation rather than merely administer law acts illegally.

Lower ct. op. at 6. See also Volunteer Fireman’s Relief Association of Reading v. Minehart, 425 Pa. 82, 227 A.2d 632 (1967); Commonwealth v. American Ice Co., 406 Pa. 322, 178 A.2d 768 (1962). We are not bound by rules and regulations that are contrary to the governing statutes under which they are promulgated. Commonwealth v. Harmar Coal Co., 452 Pa. 77, 306 A.2d 308 (1973), appeal dismissed, 415 U.S. 903, 94 S.Ct. 1395, 39 L.Ed.2d 460 (1974); Montgomery County Geriatric and Rehabilitation Center v. Com., Department of Public Welfare, 75 Pa.Commw. 248, 462 A.2d 325 (1983); E. Smalis Painting Co., Inc. v. Com., Department of Transportation, 70 Pa.Commw. 90, 452 A.2d 601 (1982).

While the instant regulation was not contrary to the 1929 Act under which it was promulgated, it is contrary to the 1980 Act now in effect. To the extent that the regulation goes beyond the 1980 Act by setting requirements in addition to those provided for in the 1980 Act, the Commission has acted beyond the power conferred upon it. Therefore, only the provisions of the 1980 Act control the licensure of a partnership as a real estate broker.

Instantly, the parties’ agreement formed a partnership between a licensed real estate salesperson and a licensed real estate broker for the purpose of operating a real estate practice. Under section 301 of the 1980 Act, this purpose is lawful when the partnership is licensed as a real estate broker. The partnership can apply for a license as a broker when it complies with sections 511, 512, and 513 of the Act. Appellee is a licensed broker in compliance with the Act and she is the one responsible to the Commission as the broker of record, as required by section 513. Thus the partnership was able to meet the requirements of the Act. It follows that the agreement itself was legal to the extent that it forms an entity which can comply with the law to act as a broker. Therefore, we affirm the lower court’s grant of summary judgment in favor of appellee on the issue of the legality of the partnership agreement.

Order affirmed.

      . Act of February 19, 1980, P.L. 15, No. 9; as amended Act of March 7, 1982, P.L. 158, No. 50; as amended Act of March 29, 1984, P.L. 162, No. 32.

      . A broker is defined as:
      Any person who, for another and for a fee, commission or other valuable consideration:
      (1) negotiates with or aids any person in locating or obtaining for purchase or lease any real estate;
      (2) negotiates the listing, sale, purchase, exchange, lease, financing or option for any real estate;
      (3) manages or appraises any real estate;

        (4) represents himself as a real estate consultant, counsellor, house finder;
      (5) undertakes to promote the sale, exchange, purchase or rental of real estate: Provided, however, That this provision shall not include any person whose main business is that of advertising, promotion or public relations; or
      (6) attempts to perform any of the above acts.
      63 P.S. § 455.201. We note that the 1984 amendments to this section have changed the wording of this definition, but the changes are immaterial to the decision of this case.
      A salesperson is defined as:
      Any person employed by a licensed real estate broker to list for sale, sell or offer for sale, to buy or offer to buy or to negotiate the purchase or sale or exchange of real estate or to negotiate a loan on real estate or to lease or rent or offer to lease, rent or place for rent any real estate or collect or offer or attempt to collect rent for the use of real estate for or in behalf of such real estate broker. No person employed by a broker to perform duties other than those activities as defined herein under ‘broker’ shall be required to be licensed as a salesperson.

        Id.

      . 63 P.S. § 455.901.

      . This definition, however, has been entirely omitted by the 1984 amendments to the 1980 Act, and “broker of record” is no longer defined.

      . We note the Commission’s argument that the 1929 Act expressly provided that only one member of a partnership seeking licensure as a limited broker needed to be licensed as a broker. 63 P.S. § 436a(a). The Commission’s regulations were consistent with this provision. See 49 Pa.Admin.Code § 35.33. Thus, the legislature, when drafting the 1980 Act, found it necessary to make a specific provision in the law requiring all members of a limited broker’s partnership to be licensed limited brokers, because this was a change from the previous law. We find this argument interesting, but irrelevant.

      . The lower court noted that the questions of whether the partnership itself acted in accordance with the 1980 Act, actually applied for its license as a broker, or conducted real estate operations, were not before it for summary review.


text:
    490 A.2d 862
    COMMONWEALTH of Pennsylvania v. Phyllis E. FRY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1984.
    Filed March 22, 1985.

      Samuel K. Gates, York, for appellant.
    Lillian M. Morgan, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and DEL SOLE, JJ.
   WICKERSHAM, Judge:

Phyllis Elaine Fry, appellant herein, was tried before the Honorable James E. Buckingham and a jury on November 25, 1983 and was convicted of driving while the amount of alcohol in the blood was 0.10 or greater. The same jury found her not guilty of driving under the influence of alcohol.

Appellant Fry’s arrest had occurred on July 2, 1983 and the applicable statutory authority provided:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
(2) under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as “The Controlled Substance, Drug, Device and Cosmetic Act,” to a degree which renders the person incapable of safe driving;
(3) under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; or
(4) the amount of alcohol by weight in the blood of the person of 0.10% or greater.
* * * * * *
(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours____

75 Pa.C.S.A. § 3731 (footnote omitted).

Following the denial of post verdict motions, and sentencing, this appeal followed. The issue before us is:

Is 75 Pa.C.S.A. 3731(a)(4) a separate crime?

Brief for Appellant at 5.

In Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983) our supreme court clearly upheld the distinct nature of the offenses defined in § 3731(a)(1) and § 3731(a)(4). A verdict of guilty under either or both subsections is legally permissible. In Mikulan the court pointed out:

One of the solutions chosen by our legislature to combat this epidemic was to make it unlawful to drive, operate or physically control the movement of any vehicle while the amount of alcohol by weight in the blood is 0.10% or greater. It “is now virtually universally accepted that a person with a [blood alcohol percent] of 0.10 should not be driving.”
Instead, the General Assembly chose not to prohibit a moderate amount of drinking before driving but placed drivers on notice that if their alcohol consumption rendered the driver “incapable of safe driving”, § 3731(a)(1), or produced a blood alcohol content by weight of 0.10% or greater, § 3731(a)(4), that driver would then be considered a risk to society and in violation of the Motor Vehicle Code.

Id., 504 Pa. at 249-54, 470 A.2d at 1340-41 (emphasis added).

Judgment of sentence affirmed.


author: WIEAND, Judge:

text:
    490 A.2d 863
    COMMONWEALTH of Pennsylvania v. Donnell JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 18, 1984.
    Filed March 22, 1985.

      Ronald J. Karasek, Bangor, for appellant.
    John L. Obrecht, Assistant District Attorney, Northampton, for Commonwealth, appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

The principal issue in this appeal is whether jurors in a criminal case may be permitted to disperse overnight after a case has been submitted to them for deliberation. Other issues raised by appellant are lacking in merit and will be displosed of summarily.

Donnell Jones was tried by jury jointly with a co-defendant, Ruben Odom. Jones was found guilty of two counts each of robbery, felonious restraint, recklessly endangering another person, terroristic threats, three counts of theft and one count of conspiracy. After post-trial motions had been denied, he was sentenced to serve not less than seven and one-half nor more than fifteen years in prison. This is a direct appeal from the judgment of sentence.

The Commonwealth’s evidence showed that on July 21, 1982, at or about 3:15 p.m., Dennis Kelley responded to a knock at the front door of the home of Dr. John Nelson, where Kelley was residing, in Upper Mt. Bethel Township, Northampton County. Kelley identified the man at the door as Ruben Odom. On the pretense of asking for water for an overheated auto, Odom and at least one other person forced Kelley inside and bound and terrorized him. The men then began to ransack the house. At or about 3:30 p.m., Henry Newman, an employee of Commonwealth Telephone Company, observed picture frames being carried from the Nelson home. When Newman approached the man carrying the frames and asked about Dr. Nelson’s whereabouts, he found himself looking into a drawn gun. He, too, was bound, terrorized, and robbed. He identified Donnell Jones as the person whom he had seen carrying picture frames from the home and who had threatened him with a gun.

Russell Strouse was called as a defense witness by Ruben Odom, the co-defendant. During the course of Strouse’s testimony, he said that he had observed Jones in an automobile with other persons on the evening of the robbery and that items removed from the Nelson home had been present in the vehicle. He also testified, without objection, that prior to the day of the robbery he had had a conversation with a person named Posten, who was also alleged to be a co-conspirator. During that conversation, Posten had told him of the plan to commit a crime at the Nelson home and named the persons who were going to participate. Odom, according to Strouse, had not been one of the persons identified by Posten. On cross-examination, the District Attorney was permitted to ask the witness, over objection, to name those persons who had been identified by Posten. Included among those named was the defendant, Donnell Jones.

The trial court overruled a hearsay objection to this testimony by Jones. However, the trial court carefully instructed the jury that Odom’s cross-examination of Strouse was being permitted only to challenge the credibility of Strouse, who had been called as a defense witness, and that the witness’s testimony could not be considered as substantive evidence against Jones. Specifically, the trial court said, the evidence was not to be considered as evidence to show that Jones had been a participant in the commission of the crime. In view of these instructions, it cannot be said that the trial court’s ruling which allowed Strouse to be cross-examined fully about the statement made by Posten is a sufficient basis for awarding Jones a new trial.

Henry Newman made an in-court identification of appellant. He was not asked and did not testify concerning a series of photographs displayed to him on July 30, 1982. Officer Joseph N. Victory, Jr., however, testified that Newman had identified Jones during a photographic display on July 30, 1982. This testimony was permitted over objection by appellant’s counsel. The objection was based on an alleged pre-trial agreement between the District Attorney and Jones’ counsel that the District Attorney would not refer to the photographic identification. The District Attorney denied having agreed to refrain from any reference to this identification. The trial court, having no record of the agreement and deeming the evidence relevant, overruled the objection. We find no error in the trial court’s handling of this objection. Our review of the record also fails to disclose the terms of the District Attorney’s pre-trial agreement, if any.

The jury began its deliberations at 3:30 p.m. At 11:15 p.m. a verdict had not been reached. When the trial judge summoned the jurors into the courtroom, he was told that the jury was not deadlocked but desired additional time. Appellant moved for a mistrial. This was denied. Because of the lateness of the hour, the court excused the jurors and allowed them to return to their homes until the following morning at 9:30. Before the jurors separated, however, the court carefully admonished them not to discuss the case with anyone and not to listen to or read media coverage of the trial. The jury reconvened at 9:30 on the following morning to continue deliberations and arrived at a verdict at 1:45 p.m. Appellant contends that it was error (1) to deny his motion for mistrial and (2) to excuse the jury until the following morning.

We find no abuse of the trial court’s exercise of its discretion to deny the motion for mistrial. There Was no reason to believe that the jury had become deadlocked and no reason to believe that a verdict would not be reached after further deliberations. The court was not required to declare a mistrial merely because of the duration of the jury’s deliberations.

Early decisions in American jurisprudence have held that jurors literally became prisoners of the court after a case was submitted to them for decision. A rule of segregation was strictly enforced after deliberations had been commenced in order to prevent any possibility of factual or other contamination, whether inadvertent or by design, as a result of having received extra-judicial information. Thus, jury attendants were sworn to take the jury to some safe and convenient place and suffer no one to speak to the jurors without permission of the court. Modern cases suggest a tendency to shift from the strictness of the earlier rule. Thus, “[a] considerable number of jurisdictions have taken the position that in [misdemeanor and] noncapital felony cases the trial court has authority, in the exercise of sound discretion (subject to review by an appellate court) to permit the jurors to disperse after a proper admonition, so that error may not be predicated upon such dispersal without proof by the complaining party that such separation resulted in prejudice or harm to the defendant.” Annot., Separation of Jury in Criminal Case After Submission of Cause, 72 A.L.R.3d 248, 253-254 (1976). See: People v. Maestas, 187 Colo. 107, 528 P.2d 916 (1974); People v. Gonzales, 44 Colo.App. 411, 631 P.2d 1170 (1981); Bryant v. State, 246 Ind. 17, 202 N.E.2d 161 (1964); State v. Atwood, 83 N.M. 416, 492 P.2d 1279 (1971), cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972). See also: State v. Bynum, 282 N.C. 552, 193 S.E.2d 725, cert. denied, 414 U.S. 836, 94 S.Ct. 182, 38 L.Ed.2d 72 and cert. denied, 414 U.S. 869, 94 S.Ct. 182, 38 L.Ed.2d 116 (1973). Other states have achieved a similar result by statute. See: People v. Murphy, 35 Cal.App.3d 905, 111 Cal.Rptr. 295 (1973); People v. Chain, 22 Cal.App.3d 493, 99 Cal.Rptr. 472 (1971). Contra: Follrad v. State, 428 N.E.2d 1201 (Ind.1981); Collins v. State, 589 P.2d 1283 (Wyo.1979). All jurisdictions, however, require cautionary instructions regarding jurors’ conduct during such periods of dispersal. Accord: Annot., 72 A.L.R.3d 248, 268-270 (1976); 75 Am.Jur.2d Trial § 974 (1974).

We conclude that this is the better rule. It is also the rule suggested by Pa.R.Crim.P. 1111, which authorizes a trial court, in its discretion, to order sequestration of trial jurors or to vacate a prior order of sequestration as the interests of justice may require.

In the instant case, appellant has not been able to point to any specific prejudice as a result of the overnight dispersal of the jury. Moreover, the trial court’s pre-dispersal instructions carefully admonished the jurors regarding their duties and the limitations applicable to their conduct while they were at their homes overnight. In the absence of prejudice to the defendant or an abuse of discretion by the trial court, therefore, we hold that a new trial will not be required merely because jurors were permitted, after deliberations had commenced, to disperse and return to their homes overnight.

Appellant also complains that the trial court did not poll the jury upon request. This is incorrect. The trial court did poll the jury following the return of a verdict. The court did not abuse its discretion by refusing to poll the jurors separately on each count on which they had found appellant guilty.

Appellant next contends that the trial court erred when it denied his motion for new trial based on the alleged recantation by Russell Strouse. Russell Strouse was not a Commonwealth witness; he was a defense witness. His alleged recantation has been adequately reviewed and considered in a separate opinion filed by the trial court. We find no error in the court’s rejection of Strouse’s recanting testimony or in its denial of a new trial based thereon.

Finally, appellant contends that the trial court abused its discretion by imposing too severe a sentence. More specifically, he argues that the court refused to give adequate consideration to a sentence of probation or immediate parole. Our review of the record discloses no abuse of discretion on the part of the sentencing court. The reasons for the sentence cover four full pages of the record and suggest quite clearly that the court considered the nature of the offense, appellant’s record, which included a prior conviction for robbery, appellant’s drinking problem and the likelihood that he would become involved in future criminal activity.

The judgment of sentence is affirmed.

      . The trial court admonished the jury as follows:
      ... I am not going to ask you to continue on this evening. We already are at twenty minutes of twelve, and I think you need a break for a rest. Therefore, I am going to permit you to return to your homes, get away from this case and thoughts about it for a while and return tomorrow morning and resume your deliberations.
      Now, it is absolutely essential that you take advantage of this adjournment only for that purpose; that is, just get away from the case for a while and exchanging ideas on it and get a good night’s sleep. Do not talk about the case at all, not with your spouses, anyone, at all, when you go home.
      I must bar your newspapers completely. I have been letting you read them and saying if you come across a news article do not read the news article about the case. But for tonight only, no newspapers at all. You cannot read them at all. Save them and read them after you have been discharged from this case because you are only catching up with one day’s edition.
      No radios because what you are doing and where we are in this trial could be the subject of news broadcasts. I do not think it is on the television, but I do not want you to watch television because you might see something connected to the law, a drama or whatever it is, and, who knows, that might suggest something to you just because you are watching a play or movie where the subject is something about law and court. So no television at all for tonight.
      So, really, I am just letting you go home to go to bed and get some rest and report back tomorrow morning. Follow that literally. If you do, when you return tomorrow you will be picking up your discussions and deliberations just the same as if we had not had a recess, nothing new would have happened except that you would have had the opportunity to get some sleep.


author: DEL SOLE, Judge:

text:
    490 A.2d 868
    In re ESTATE OF Corvan S. BRYAN. Appeal of Marian Flynn GULDEN.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1984.
    Filed March 22, 1985.
    Reargument Denied June 4, 1985.

      Larry W. Wolf, Hanover, for appellant.
    Robert G. Teeter, Assistant District Attorney, Gettysburg, for appellee.
    Before WICKERSHAM, DEL SOLE and POPOVICH, JJ.
   DEL SOLE, Judge:

The instant appeal is from a final decree of distribution of an estate. At issue is an auditor’s characterization, confirmed by the orphans’ court below, of certain transactions as distributions of the estate to an heir which had the effect of denying that heir any share of final distribution. Also at issue is the claim that the settlement of the estate was unreasonably delayed. For the following reasons, the decree of the orphans’ court is affirmed in part and reversed in part.

The procedural history of the instant case is as follows: On September 22, 1972, Corvan S. Bryan died intestate leaving a widow and one child, a daughter. On September 29, 1972, letters of administration were granted to the decedent’s widow, Appellee Marian Bryan. The Appellant, Marian Flynn Gulden, is the daughter of the decedent and Appellee. Following the grant of letters, there was little activity on the estate docket until the spring of 1979.

On April 12, 1979, Appellant petitioned the orphans’ court to force Appellee to file an accounting. On July 9,1979, the court ordered Appellee to file a first and final accounting within ten days. However, it was not until January 20, 1982, that Appellee filed the first and final accounting together with a proposed schedule of final distribution. Timely exceptions to the accounting were filed by Appellant and an auditor was appointed. After an evidentiary hearing, the auditor issued a report on April 13, 1983, to which Appellant renewed her exceptions. On December 1, 1983, the orphans’ court dismissed Appellant’s exceptions and entered a final decree confirming the auditor’s proposed schedule of final distribution. This timely appeal followed.

There are three transactions in dispute. First, on April 1, 1975, Appellant, Appellant’s former husband, James Flynn, and Appellee executed a demand note to the First National Bank & Trust Company of Waynesboro for $11,000. Appellee, as administratrix, agreed to secure the note with estate assets, specifically certain shares of stock in a water company. The second transaction occurred the next day, on April 2, 1975, when the same three persons executed a demand note for $15,000 to the Adams County National Bank which note was secured by Appellee’s personal savings account. The purpose for the above described loans was to provide Appellant and her former husband with cash for a down payment on the purchase of a bar. The remainder of the financing for the purchase of the bar was obtained through a mortgage loan agreement with the First National Bank & Trust Company on which Appellee was not an obligor.

Shortly after the consummation of the above demand note transactions, the Adams County National Bank made a demand or payment which was made on June 19, 1975 from Appellee’s personal savings account in the amount of $15,-028.12. Nearly two years later, the First National Bank & Trust Company demanded payment on its note which was made on March 4, 1977 in the amount of $11,208.12. The payment of this note was made from a savings account in Appellee’s name which consisted entirely of a portion of the proceeds from the sale of the estate’s water company stock. The savings account had been substituted as security for the note when the water company stock was sold in July, 1976. Shortly after the payment on the $15,000 note, Appellant and her former husband found themselves in arrears on the bar mortgage which was foreclosed upon just before Thanksgiving, 1977.

The third transaction in dispute concerns a payment by Appellee of $2,500 from her personal funds to Appellant so that Appellant could purchase new clothes because Appellant’s daughter had allegedly taken all of Appellant’s clothes without her consent. This situation was related to marital and family difficulties between Appellant and her former husband which resulted in separation in June, 1978, and eventual divorce in 1979. Appellant was residing with her mother, the Appellee, at the time of the $2,500 payment.

When Appellee filed the first and final accounting and proposed schedule of distribution she listed the payment of the demand notes and the payment of $2,500 as distributions of the estate to Appellant. Those amounts were set off from the share of final distribution Appellant would have otherwise received. Appellee’s basic contention is that Appellant had agreed that any monies paid on the demand notes and the $2,500 payment would be “taken out” of Appellant’s share of final distribution of the estate. Conversely, Appellant contends that she at no time agreed that the amounts paid on the notes or the $2,500 would be deducted from her share of final distribution. In addition, Appellant argues that any monies paid by Appellee were from her personal funds and as such any obligation of Appellant or her former husband for repayment would be to Appellee personally and not to the Appellee in her capacity as administratrix. Accordingly, Appellant contends that Appellee must institute separate legal proceedings to recover any monies owed and may not set off the personal obligations from Appellant’s estate share.

Before addressing the merits of the instant appeal, we note the following. First, the parties to the instant appeal have referred to the transactions in question alternatively as distributions or advancements. However, the two terms are not synonomous. An advancement is an irrevocable gift made by a parent, during his or her lifetime, to a child in anticipation of that child’s future share in the estate. In re: Morris’ Estate, 356 Pa. 497, 52 A.2d 172 (1947); In re: McLaughlin’s Estate, 345 Pa. 43, 46 A.2d 477 (1946). Since the transactions occurred long after the intestate’s death, any monies that were paid from the estate were not advancements, but rather distributions or disbursements. Second, it is well-settled that the findings of fact of an auditor, confirmed or approved by the orphans’ court will not be disturbed on appeal except in cases of clear error or if the findings are unsupported by the evidence. In re: Watt’s Estate, 409 Pa. 44, 185 A.2d 781 (1962). Finally, in order to claim credit for any disbursement of estate funds the fiduciary has the burden to prove such disbursements through evidence other than the fiduciary’s unsupported testimony which alone is generally insufficient. In re: Strickler’s Estate, 354 Pa. 276, 47 A.2d 134 (1946). However, a fiduciary may not set off individual claims against a distributee and the orphans’ court may not as a matter of law decree such a set off. In re: Wentz’s Estate, 225 Pa. 566, 74 A. 424 (1909).

The critical fact in the instant appeal is the source of both the funds paid on the demand notes and the $2,500 payment. A close review of the record reveals that the only transaction directly linked to the payment of estate funds was the payment of $11,208.12 on the note to the First National Bank & Trust Company. In that transaction, the estate water company stock had originally been pledged as security and was later replaced by a savings account consisting solely of a portion of the proceeds from the sale of the stock. This was the account from which payment on the note was made. In addition, the payment of the note from this savings account of estate funds conferred a benefit upon Appellant in relieving her of a legal obligation. Thus, there is then sufficient evidence in the record to support the auditor’s finding that the payment of the note constituted a distribution of the estate to Appellant which the fiduciary could properly set off from her share of final distribution.

The same cannot be said, however, for the payment of the $15,000 note. The record is clear that the $15,000 note to the Adams County National Bank was secured by a savings account consisting of Appellee’s personal funds and that the payment of $15,028.12 was made directly from that account. At no time were funds of the estate directly involved. As to the payment of the $15,000 note, Appellee contends that Appellant executed a writing in which she agreed that the payment of both the $11,000 and $15,000 notes could be credited against Appellant’s estate share. This writing was entered into evidence at the auditor’s hearing and was relied upon by the auditor in reaching his conclusion that the payment of the demand notes were distributions of the estate to Appellant. In addition to this writing, the auditor also found Appellee to be the more credible witness. However, a review of the record reveals that the writing is not signed by anyone and that Appellant testified at the auditor’s hearing she had neither drafted nor ever seen the writing. Given these facts, it was error for the auditor to admit the writing and base his findings on it. Absent the writing, the only remaining evidence on the issue of the distributions is the conflicting testimony of Appellant and Appellee. As we have already noted the unsupported testimony of the fiduciary is insufficient to sustain a claim of credit for distributions made by the fiduciary. This together with the fact that the funds used to pay the $15,000 demand note were from Appellee’s personal savings account compels us to find that the auditor erred in finding that Appellee could set off the amount from Appellant’s share of final distribution. This is in contrast to the payment of the $11,000 note which was directly traceable to estate funds thus establishing sufficient evidence to support a finding of distribution to Appellant.

For the same reasons, we also find that the auditor erred in permitting the $2,500 set off from Appellant’s estate share. The only difference between this and the payment of the $15,000 note is that there was never even any purported writing to support Appellee’s claim. Appellee merely testified that Appellant had agreed to let Appellee take it out of Appellant’s share of the estate. Appellee acknowledged receiving the money but denied that she agreed to let Appellee deduct the money owed from her estate share. Since the $2,500 came from the Appellee’s personal funds and there is no evidence other than Appellee’s testimony to support her claim, we must reverse the finding that such payment was a distribution of the estate of the Appellant.

Finally, Appellant raises the issue that the settlement of her father’s estate was unreasonably delayed after July, 1976. However, we need not explore the merits of this issue in detail. In her brief, Appellant raises the issue of unreasonable delay in the settlement of the estate but fails to include a discussion of the issue in her summary of argument or argument. The auditor concluded that the settlement of the estate had been unduly delayed after July, 1976, but that Appellant had not been prejudiced by the delay. Our review of the record fails to show any prejudice to Appellant attributable to the delay, nor has she given us any reason to reverse the auditor’s finding. For this reason, and the other foregoing reasons, the final decree of distribution of the orphans’ court is affirmed in part and reversed in part and the case is remanded to the orphans’ court for entry of a final decree of distribution consistent with this opinion.

Decree affirmed in part and reversed in part. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.


author: BECK, Judge:

text:
    490 A.2d 871
    COMMONWEALTH of Pennsylvania v. Robert MARCONI, Appellant.
    Superior Court of Pennsylvania.
    Argued July 19, 1984.
    Filed March 22, 1985.

      Frank J. Marcone, Media, for appellant.
    Helen T. Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   BECK, Judge:

While fighting a fire at the house in which appellant Robert Marconi resided, firemen discovered various drugs and weapons. As a result of this information and further investigation, appellant was arrested and charged with possessing prohibited offensive weapons, theft by receiving stolen property, causing or risking a catastrophe, recklessly endangering another person, and four violations of the Controlled Substance, Drug, Device and Cosmetic Act.

Trial before a jury commenced on October 19, 1983. During the trial two jurors were excused and replaced by the two alternates who had been chosen at jury selection. At the close of the Commonwealth’s case, appellant demurred to the evidence. The court sustained appellant’s demurrer to the charge of receiving stolen property and denied it with respect to all other charges. The defense indicated it would not present any evidence and rested.

Before the case could proceed to closing arguments, a juror informed the court that she had become aware of certain information about appellant as a result of a conversation with an acquaintance the previous evening, and that she felt she could no longer serve as a,n impartial juror. The court and both counsel agreed that it was necessary to dismiss the juror. This left the jury with only eleven members, because, there were no more alternates. Appellant did not elect to proceed with the diminished jury (see Pa.R.Crim.P. 1103). Consequently, the trial court declared a mistrial. The instant appeal is from the denial of appellant’s motion to dismiss on the grounds that principles of double jeopardy preclude further prosecution. For the reasons stated below we affirm.

The basis of appellant’s double jeopardy claim is somewhat novel. Although inartfully asserted, in essence he contends that at this juncture the appellate court should review the trial court’s ruling on his challenge to the sufficiency of the evidence. Appellant contends that if the appellate court finds the Commonwealth’s evidence at the first trial insufficient, a second trial would violate appellant’s right not to be placed twice in jeopardy, because the Commonwealth would receive a second chance at proving sufficient evidence when the first trial ended inconclusively for a reason not appellant’s fault. Essentially, appellant’s argument reduces to a contention that the government shall not retry a defendant following the grant of a mistrial, whatever the precise circumstances surrounding the mistrial, if the mistrial is declared after the close of the prosecution’s case and the prosecution, having had a full opportunity to present sufficient evidence at the first trial, failed to do so.

Appellant’s argument seeks to carve out an exception to the familiar rule that the Double Jeopardy Clause does not bar a retrial where the defendant consents to the declaration of the mistrial or where the mistrial was compelled by manifest necessity. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). Appellant does not seriously attempt to argue that manifest necessity did not exist, i.e. that the circumstances surrounding the declaration of the mistrial by themselves bar a second trial. Indeed, both at the time the twelfth juror was excused and at the hearing on his motion to dismiss on double jeopardy grounds, appellant conceded the manifest necessity of granting a mistrial. N.T. 10/21/83 at 6-7; N.T. 12/9/83 at 11. Rather, appellant argues that the trial court should never have reached the stage of the proceedings where the issue of manifest necessity arose, because it should have granted his demurrers, resolving the case in its entirety at that point.

The Commonwealth contends that appellate review of the trial court’s denial of appellant’s demurrers is impermissible at this stage of the proceedings. Although the denial of a pre-trial motion to dismiss on double jeopardy grounds is undeniably appealable even though the ruling is technically interlocutory, Commonwealth v. Bolden, we have held that this extension of our appellate jurisdiction does not authorize the appellate court to consider other interlocutory matters. In Commonwealth v. Perrin, 272 Pa.Super. 24, 414 A.2d 650 (1979), we declined to consider in conjunction with an interlocutory double jeopardy appeal a claim that one of the appellant’s preceding trials had been commenced outside of the time limit mandated by Pa.R.Crim.P. 1100. The policies underlying the distinction drawn in Perrin were discussed by Justice (now Chief Justice) Nix in Commonwealth v. Klobuchir, 486 Pa. 241, 248 n. 5, 405 A.2d 881, 884 n. 5 (1979) (affirming by an equally divided court) (Opinion in Support of Affirmance). Justice Nix explained that the rationale of Bolden for creating an exception to our principles of appellate jurisdiction was that a defendant would be forced to give up the very right not to be tried again which he sought to protect if he were required to wait until the entry of the final judgment on retrial to appeal the denial of his double jeopardy claim. This reasoning is clearly inapplicable to other issues which but for the accompanying double jeopardy claim would not be appealable before final judgment. Therefore, these issues may not be joined with an interlocutory double jeopardy appeal, but must await final judgment for their resolution. “In Bolden we did not assume jurisdiction to resolve any and all constitutional questions raised pre-trial by the appellant.” Commonwealth v. Klobuchir, 486 Pa. at 248 n. 5, 405 A.2d at 884 n. 5.

The Commonwealth argues on the basis of Perrin and Klobuchir that appellant’s claim that the insufficiency of the evidence at the first trial bars further prosecution is not properly before the court, because in making this claim appellant is essentially asking this court to review the trial court’s denial of appellant’s demurrers before the completion of the trial. Generally, the denial of a demurrer to the evidence, like the denial of a motion for a nonsuit at the close of the plaintiff’s case in a civil trial, is not considered a final order and does not fall within any recognized exception to the rule in criminal cases that an appeal lies only from a judgment of sentence. See Commonwealth v. Ott, 154 Pa.Super. 647, 36 A.2d 838 (1944).

While we have no quarrel with these principles of law, we believe they are not applicable to the precise circumstances of this case. Here, appellant is not asking us to review the trial court’s denial of his demurrers as an issue separate and distinct from his double jeopardy claim. Rather, appellant’s claim that the court erred in denying the demurrers is simply another way of stating that the Commonwealth presented insufficient evidence at appellant’s trial, and the alleged insufficiency of the evidence is the basis of appellant’s double jeopardy argument itself.

In Richardson v. United States, 468 U.S. —, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), the United States Supreme Court was presented with a similar claim. Defendant’s first trial had ended in a directed acquittal as to one count but a mistrial as to the others because the jury could not agree on a verdict. In the first trial defendant had moved for a judgment of acquittal both at the close of the Government’s case and just before submission of the case to the jury. After the mistrial was declared, and before the beginning of the second trial, defendant renewed his motion for judgment of acquittal and argued that the Double Jeopardy Clause precluded a retrial because the Government had failed to introduce sufficient evidence at the first trial to support a guilty verdict. Like appellant in the case sub judice, the defendant in Richardson contends that the Government’s failure to present sufficient evidence at his aborted first trial bars further prosecution regardless of the precise circumstances surrounding the declaration of mistrial.

In Richardson, the Government raised the threshold issue of appealability, challenging the jurisdiction of the appellate courts to hear this double jeopardy claim. The court of appeals held, and the Government argued before the Supreme Court, that the appealability of defendant Richardson’s double jeopardy claim depended on the appeal-ability prior to final judgment of the district court’s ruling denying defendant’s motion for judgment of acquittal. In federal court, the denial of a motion for judgment of acquittal is by itself interlocutory and unappealable before final judgment. Richardson, 468 U.S. at —, 104 S.Ct. at 3083-84, 82 L.Ed.2d at 247-48, citing Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

The Supreme Court, however, disagreed with the court of appeals and held under the circumstances of the case that the denial of the motion for judgment of acquittal was appealable within the context of the defendant’s double jeopardy claim. The Court stated that “[petitioner seeks review of the sufficiency of the evidence at his first trial, not to reverse a judgment entered on that evidence, but as a necessary component of his separate claim of double jeopardy.” Richardson, 468 U.S. at —, 104 S.Ct. at 3084, 82 L.Ed.2d at 248. The Court found the issue appealable because it constituted a colorable double jeopardy claim and because the district court had made a final decision on the defendant’s motion to dismiss on double jeopardy grounds. Id. at —, 104 S.Ct. at 3084, 82 L.Ed.2d at 249.

The instant case is in the same posture as Richardson. Defendant Marconi’s appeal would be interlocutory if it consisted solely of the claim that the court erred in denying his demurrer, which was grounded on the alleged insufficiency of the evidence. However, appellant raises the issue of the trial court’s ruling on the sufficiency of the evidence “not to reverse a judgment based on that evidence,” but rather as the basis of his claim of double jeopardy. Therefore, we hold that this appeal is properly before this court.

On the merits, though, we are also bound by the Supreme Court’s holding in Richardson. We therefore hold that the Double Jeopardy Clause affords appellant no protection against retrial. Having held that the denial of the defendant’s motion to dismiss on double jeopardy grounds was appealable, the Supreme Court ultimately rejected the defendant’s invitation to review the sufficiency of the evidence at the first trial. Instead, the Court maintained its traditional analytical focus on the event which caused the first trial to end in a mistrial, and found that no valid claim of double jeopardy was presented. The Court held that “the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.” Richardson, 468 U.S. at —, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. Because the declaration of a mistrial following a hung jury is a matter of manifest necessity and “not an event that terminates the original jeopardy to which petitioner was subjected,” a defendant in that situation does not have a valid double jeopardy claim regardless of the sufficiency of the evidence presented at his first trial. Id.

We find that the declaration of a mistrial because an insufficient number of jurors remained after a juror was dismissed for cause is equivalent, for purposes of assessing appellant’s double jeopardy claim, to a mistrial declared because of a deadlocked jury. Like the mistrial in Richardson, the mistrial in the case sub judice was compelled by manifest necessity. Therefore, the United States Supreme Court’s holding in Richardson is controlling, and the special circumstances of appellant’s double jeopardy claim do not constitute an exception to the manifest necessity principle. We accordingly affirm the trial court’s denial of appellant’s claim of double jeopardy.

For the sake of clarity, we emphasize that our decision does not authorize the Commonwealth to retry appellant on the charge of receiving stolen property to which the trial court sustained appellant’s demurrer to the evidence. This ruling was based on insufficiency of the evidence and thus constitutes an acquittal for double jeopardy purposes. Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984).

Order affirmed.

      . 18 Pa.C.S. § 908.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 3302.

      . 18 Pa.C.S. § 2705.

      . Possession of methamphetamine (35 P.S. § 780-113(a)(16)), possession with intent to deliver (35 P.S. § 780-113(a)(30)), counterfeit drugs (35 P.S. § 780-113(a)(35)(i)) and drug paraphernalia (35 P.S. § 780-113(a)(32)).

      . At the December 9, 1983 proceedings, counsel used the words "gross necessity.”

      . In federal court "the appealability of a double jeopardy claim depends on its being at least ‘colorable.’ ” Richardson, 468 U.S. at —, 104 S.Ct. at 3084, 82 L.Ed.2d at 249, citing United States v. MacDonald, 435 U.S. 850, 862, 98 S.Ct. 1547, 1553, 56 L.Ed.2d 18 (1978). In a footnote in Richardson, the Supreme Court suggested that an effect of its holding was that double jeopardy claims of the type raised by the defendant were no longer "colorable,” and hence no longer appealable before final judgment. 468 U.S. at —, 104 S.Ct. at 3086 n. 6, 82 L.Ed.2d at 251 n. 6. In Commonwealth v. Bolden, the Pennsylvania Supreme Court did not speak of a “colorability” requirement for interlocutory double jeopardy appeals in Pennsylvania. Therefore, we reach no decision today as to whether footnote 6 in Richardson affects the future appealability of these issues in Pennsylvania.

      . Pennsylvania's courts have not given its citizens broader double jeopardy protection than that provided by the United States Supreme Court interpreting the federal constitution. Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983). But see supra note 7.

      . Paradoxically, the Court states earlier in its opinion that “consideration of petitioner’s double jeopardy claim would require the appellate court to canvass the sufficiency of the evidence at the first trial.” Richardson, 468 U.S. at —, 104 S.Ct. at 3084, 82 L.Ed.2d at 248. Reading this statement in the context of the Court’s holding, we understand it to mean that ”canvass[ing] the sufficiency of the evidence" would be necessary only if the Court were to hold that the sufficiency of the evidence, rather than the circumstances surrounding the mistrial, was the proper focus for the appellate court’s double jeopardy inquiry.


author: TAMILIA, Judge:

text:
    490 A.2d 877
    Esther I. ABARBANEL, Appellant, v. Mark B. WEBER.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1984.
    Filed March 22, 1985.

      Thomas J. Profy, III, Bristol, for appellant.
    Lisa J.G. Weikel, Perkasie, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order sustaining appellee’s preliminary objections in the nature of a demurrer to appellant’s petition for citation to file an accounting. After a careful review of the record and the arguments presented by both parties on appeal, we affirm in part, and reverse and remand in part for proceedings consistent with this Opinion.

The facts are as follows. Ian A. Abarbanel and Esther I. Abarbanel executed a guardianship agreement on May 22, 1977 with Mark B. Weber, Esq., as guardian-trustee. The agreement conveyed an interest in a real estate partnership to Michelle Beth Abarbanel and Amy Lynn Abarbanel, the minor children of Ian and Esther Abarbanel. The agreement provided that:

(b) the Guardian shall have all of the powers vested in him by law as set forth in the Probate Estates and Fiduciaries Code of the Commonwealth of Pennsylvania. Guardian in his sole discretion, after taking into consideration the natural guardian’s [sic] abilities to furnish reasonable support in accordance with their station in life, shall have the right to pay principal and income to or on behalf of the said minors at such times and in such amounts as may be necessary for their maintenance, education and support. Guardian shall also have the right to pay principal and income for such other necessary incidental expenses of such minors until they shall arrive at the age of twenty-one years. Education shall be defined as public or private schooling, camping experiences, special lessons and training, whether the same shall be at the elementary, secondary, college or post college level.

Guardianship agreement, pp. 2-3. The above agreement, being very general, did not earmark a specific sum to be paid to the minors on a regular basis nor did it contain any language stating whether said agreement could be amended.

On November 27, 1979, the Abarbanels executed a post-nuptial agreement which provided for, inter alia, support and alimony payments. The post-nuptial agreement stated the primary purpose of the previously created guardianship fund to be for the benefit of the children’s future education and expenses as well as for present special educational expenses and experiences related thereto. Additionally, the post-nuptial agreement provided that Esther I. Abarbanel be paid the sum of $125 per month from the income of the guardianship fund for special schooling and lessons for the two children. Mark B. Weber, Esquire, guardian-trustee, executed a joinder and consent to the terms of the post-nuptial agreement.

On November 27, 1979, an Order for support was entered requiring Mr. Abarbanel to pay $775 per month for the support of his two minor children, and incorporating the terms of the post-nuptial agreement providing for distribution of $125.00 monthly income from the guardianship fund.

On or about March 3, 1981, Ian and Esther Abarbanel entered into a stipulation in a custody proceeding wherein the following amendment was made to the guardianship-trust fund distributions:

Father shall have the right to utilize one-half of the trust fund distributions (up to $750.00) for day camp or other summer recreational activities, provided that father shall have at least five weeks temporary summer custody. Any amounts needed by father in excess of said amount shall be paid by father out of his own separate funds. The $750.00 shall therefore not be paid to mother but retained from January-June and distributed as above.

Stipulation, p. 2.

The record indicates that distributions from the guardianship account terminated in September 1981 when the Abarbanels could no longer agree on how to spend the money for their children’s benefit. Appellee, the guardian-trustee, then determined, notwithstanding the post-nuptial agreement, support Order and stipulation, that rather than distribute the funds to either party, he would accumulate the funds for the children’s college education.

On December 30, 1982, appellant filed a petition for citation to file an accounting alleging that appellee has failed and refused to pay her the $125 a month for October through December, 1981 and for July through December, 1982. In response to said petition, the appellee filed preliminary objections in the nature of a demurrer on February 10, 1983 and submitted a supporting memorandum of law. Appellee contends that the appellant’s petition for citation to file an accounting fails to aver that the children’s present education is being hampered due to insufficient funds nor does it allege any specific instances of bad faith or abuse of discretion on the part of the appellee. Appellant, in response, submitted her Memorandum of Law in opposition to appellee’s preliminary objections. In said memorandum, appellant specifically requested the court to schedule a hearing so that an appropriate record could be developed. However, the trial court, without holding a hearing, entered an Order on September 9, 1983, sustaining appellee’s preliminary objections and dismissing appellant’s petition for citation to file an accounting. This appeal followed.

Appellant contends that (1) the trial court’s failure to receive evidence on the disputed factual issues raised by appellee’s preliminary objections violated Pa.R.C.P. 1028(c); and (2) the May 22, 1977 guardianship agreement did not empower the appellee with the right to accumulate income.

Before addressing whether the appellee possessed the requisite authority to accumulate the income from the guardianship-trust fund, we must determine whether the lower court acted properly in sustaining the preliminary objections without receiving additional evidence. We begin our analysis by turning to Pa.R.C.P. 1028(c) which provides:

Rule 1028. Preliminary objections
(c) A party may file an amended pleading within ten (10) days after service of a copy of preliminary objections. The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.

Pa.R.C.P. 1028(c), 42 Pa.C.S. However, as this Court has previously stated, “when no issues of fact are raised, the court shall dispose of the preliminary objections as a matter of law on the basis of the pleadings alone.” In re D.L.S., 278 Pa.Super. 446, 420 A.2d 625 (1980). See also Northvue Water Co. v. Municipal Water & Sewer Authority, 7 Pa.Commw. 141, 298 A.2d 677 (1972). Here, appellee’s preliminary objections raise an issue of law (i.e., whether the appellee has the power to accumulate the income from the guardianship-trust fund) without raising any factual issues that would necessitate the taking of further evidence through interrogatories, depositions or otherwise. In re D.L.S., supra. Upon reviewing the record, we are not convinced that the trial judge needed more evidence to make a learned decision. In fact, the record discloses that Judge Mims had presided over the Abarbanels’ domestic disputes for several years and was thoroughly familiar with their financial status. Thus, we conclude that the lower court acted properly in ruling on the preliminary objections without receiving additional evidence.

Our inquiry now turns to the propriety of the lower court’s Order which sustained the preliminary objections filed by the appellee. In considering preliminary objections in the nature of a demurrer, the following standard is applied:

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Rose v. Wissinger, 294 Pa.Super. 265, 270, 439 A.2d 1193, 1196 (1982) (quoting Sinn v. Burd, 486 Pa. 146, 149-50, 404 A.2d 672, 673-74 (1979)).

In the instant case, there is no specific provision for the accumulation of income in the guardianship agreement; therefore, we must determine whether the power to accumulate can be inferred by being either “necessary or appropriate to carry out the terms of the trust.” Restatement (Second) of Trusts, § 186.

Section 6106 of the Decedents, Estates and Fiduciaries Code, effective July 1, 1972, provides:

§ 6106. Income accumulations; when valid
(a) General. — No direction or authorization to accumulated income shall be void, except as herein provided.
(b) Void accumulations; exceptions. — Upon the expiration of the period allowed by the common law rule against perpetuities as measured by actual rather than possible events, any direction or authorization to accumulate income shall be void.

20 Pa.C.S. § 6106. In interpreting the above section, our appellate courts have consistently held that temporary accumulations of income, in the form of judicious management of a trust and providing for future contingencies within reasonable limits, are valid. See, e.g., In re Estate of Girt, 452 Pa. 156, 305 A.2d 372 (1973); In re Dwight’s Estate, 389 Pa. 520, 134 A.2d 45 (1957); In re Smith’s Estate, 385 Pa. 416, 123 A.2d 623 (1956); Eberly’s Appeal, 110 Pa. 95, 1 A. 330 (1885). Here, there is no perpetuities problem as the guardianship terminates upon each minor’s attaining age twenty-one (21), with full distribution to be made at such times to the donees. Thus, we find the reasoning of the above cases particularly applicable to the case before us.

Appellant relies on Stephens v. Lewistown Trust Co., 481 Pa. 194, 392 A.2d 313 (1978) for the proposition that unless the settlor clearly demonstrates his intent to accumulate income, the trust income in excess of specified payments is to be distributed to the income beneficiaries. See also In re Estate of Krebs, 334 Pa.Super. 635, 483 A.2d 919 (1984). The problem in Stephens, however, arose from the creation of a trust which produced more income than expected. In the instant case, the dispute regarding the accumulation stems from the Abarbanels’ inability to agree on how the money should be spent. The guardianship agreement in the present case gives the appellee unfettered discretion, after taking into consideration the Abarbanels’ financial capabilities, “to pay principal and income to or on behalf of the said minors at such times and in such amounts as may be necessary for their maintenance, education and support.” (emphasis added) The inclusion of the above language clearly indicates that the money should be distributed only when it is necessary and thus, it implies that the trustee should accumulate the income during the period it is not needed. We emphasize that the language of the agreement confers broad discretion upon the appellee in managing the guardianship-trust account. As such, courts should not interfere with the guardian-trustee’s management of the fund unless there is an abuse of discretion. Restatement (Second) of Trusts, § 187. In the present case, we agree with the lower court’s conclusion that there is no evidence that the appellee has abused his discretion. Moreover, in exercising his discretion, the appellee determined that the accumulation of income would not impair the present educational, religious and cultural needs of the children. Finally, we emphasize that the appellee must continue to provide annual reports to both parents, thus ensuring that he will continue to manage the fund in a reasonable and prudent fashion.

Although the lower court held that the appellee has the discretion to accumulate income, its decision is unclear as to whether the appellee must continue paying the appellant $125 per month pursuant to the November 27, 1979 support Order which incorporated the terms of the November 27, 1979 post-nuptial agreement. Such a result would limit the accumulation of income to an amount over and above the $125 per month set forth for the minors’ special schooling and lessons. Because the lower court summarily concluded that the appellee has the right to accumulate income without discussing the appellee’s legal obligation to pay $125 monthly to the appellant, we must remand this case for an evidentiary hearing to ascertain the intent of the parties. To the extent that the trial court finds that the parties intended to continue the $125 monthly payments, then the accumulation will be limited to the income above and over said monthly payment. On the other hand, if the trial court finds that the parties sought to use the proceeds of the guardianship fund to lessen their own support obligations, thereby benefiting themselves at the expense of their children, who are entitled to reasonable support commensurate with their parents’ station in life, see Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 310 A.2d 672 (1973), then the income should be accumulated in toto. In any event, due to the ambiguity in the record regarding this matter, we must remand for an evidentiary hearing.

Accordingly, the decision of the trial court is affirmed insofar as it has held that the appellee has the discretion to accumulate income from the guardianship fund, and it is otherwise reversed and remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.

      . Weber, the appellee, is a law partner of Ian A. Abarbanel.

      . The record discloses that appellant’s entire "station in life” was explored and reviewed at length in support proceedings before Judge Mims in 1982, who reduced her support by $75.00 per month.

      . It has been a longstanding rule in this Commonwealth that a parent cannot bargain away a child’s right to adequate support. See, e.g., Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983); Commonwealth ex rel. Snively v. Snively, 206 Pa.Super. 278, 212 A.2d 905 (1965); Commonwealth ex rel. Yeats v. Yeats, 168 Pa.Super. 550, 79 A.2d 793 (1951); Commonwealth ex rel. Rossi v. Rossi, 161 Pa.Super. 86, 53 A.2d 887 (1947).
      Moreover, in the recent case of Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (Opinion by Beck J., filed, 1985), this Court held that a wealthy parent could not utilize funds gifted to his children pursuant to the Pennsylvania Uniform Gifts to Minors Act, 20 Pa.C.S.A. § 5301 et seq. (hereinafter UMGA), in lieu of his legal obligation to provide his children with adequate support. While the instant case involves funds generated under a guardianship/trust fund and not funds gifted pursuant to the UMGA, we find the rationale of Sutliff to be applicable here.