author: CAVANAUGH, Judge:

text:
    475 A.2d 123
    In the Matter of James WELSH, a minor. Appeal of James WELSH.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1983.
    Filed March 30, 1984.
    Reargument Denied June 5, 1984.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Dana S. Jones, Assistant District Attorney, Erie, for participating party.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

In this case, the appellant, James Welsh, had a history of juvenile delinquency and had been placed in several programs. His history included elopement from several of these programs.

On April 27, 1981, the court below entered a further finding of delinquency and placed James under the care and supervision of St. Michael’s School for Boys, an institution which accepts juvenile males who are delinquent or dependent and has various vocational and technical programs for its residents. The residents are not physically confined at the school which operates under the supervision of the Archdiocese of Scranton and is licensed by the Department of Public Welfare. It is not a “secure” facility.

The appellant was granted a temporary leave for the Easter holidays in April, 1982, and did not return to the school on the designated date. He. was subsequently charged with commission of escape in violation of the Crimes Code, 18 Pa.C.S. § 5121(a) and the court found him to have committed a delinquent act. He was adjudicated delinquent by order of May 25, 1982. An appeal has been taken from this order.

Appellant contends that he cannot be charged with “escape” from St. Michael’s School as he was not in “official detention” since St. Michael’s is not a physically restricted facility. 18 Pa.C.S. § 5121 in pertinent part provides:

§ 5121. Escape
(a) Escape. — A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
(e) Definition. — As used in this section the phrase “official detention” means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.

Counsel for the appellant agrees that St. Michael’s was a proper facility for detaining James under the Juvenile Act and states at page 9 of his brief that “St. Michael’s School is a physically unrestricted placement which attempts to provide the supervision, care and rehabilitation that the Juvenile Act requires.”

James was on leave from St. Michael’s with approval but failed to return from the temporary leave. Under modern law, escape is not limited to the stereotyped concept of a prison break or going over the wall. Commonwealth v. Brown, 261 Pa.Super. 240, 396 A.2d 377 (1978), decided that one who was on a work release program and failed to return from a temporary leave, was in “official detention” and could properly be charged with escape when he failed to timely return. Accordingly, the fact that James was on temporary Easter leave did not prevent him from being in “official detention.”

Appellant relies on the case of In the Interest of Tasseing H., 281 Pa.Super. 400, 422 A.2d 530 (1980), in support of his contention that leaving an unrestricted facility could not constitute escape. In Tasseing H., supra, the court held that a juvenile who had not been adjudicated delinquent but who ran away from an unrestricted facility while awaiting the outcome of a dependency proceeding, could not be adjudicated delinquent on the basis of running away. The court stated at 281 Pa.Super. 407, 422 A.2d 535:

Because appellants were merely classified as dependent children at the time they ran away from the shelter, a charge of escape would not lie against them.

Appellant also relies on Commonwealth v. Feick, 294 Pa.Super. 110, 439 A.2d 774 (1982) in which a child found to be dependent and who suffered from physical and psychological parental abuse removed himself from the McIntyre Shelter. The court held that the child’s running away from an unrestricted shelter facility did not constitute a sufficient basis for adjudicating her delinquent.

Appellant further relies on State in Interest of M.S., 73 N.J. 238, 374 A.2d 445 (1977). In that case, juveniles who were not delinquent eloped from a shelter care facility which was not a secure facility. The Juvenile and Domestic Relations Court found that this constituted escape and adjudicated the juveniles delinquent. The Supreme Court of New Jersey reversed on the grounds that a juvenile who was in need of supervision could not be adjudicated delinquent merely because he ran away from a shelter care facility. The court made a clear distinction between a juvenile in need of supervision, referred to in the opinion as JINS, and delinquents, and stated at 73 N.J. 243, 374 A.2d 447:

Under the statute a delinquent is one who is guilty of serious antisocial conduct which, depending on circumstances, may require detention. On the other hand a JINS is one who has not really committed an offense against society but only against his or her own best interests.

These cases involved juveniles who were dependent or for whom dependency proceedings were pending. They are not controlling in the case before us.

In Pennsylvania a dependent child is one who, among other things, is without proper parental care or control, or has been abandoned by his parents or is without parents. On the other hand, a delinquent child is one who is ten years of age or over who has committed an act designated a crime, other than murder and certain summary offenses. In the instant case, the appellant was adjudicated a delinquent rather than convicted of a felony because he was a juvenile. It would be unrealistic in the extreme to equate a dependent child with one adjudicated delinquent. A delinquent child has committed “a delinquent act” which is defined in the Juvenile Act as an “act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under a Federal law, or under local ordinances.” 42 Pa.C.S. § 6302. This must be compared with a dependent child who most often has committed no offense and is frequently a victim of the wrongdoing of someone else, or is suffering because of events which are completely beyond his control.

The appellant was in “official detention” within the meaning of the Crimes Code when he failed to return from the temporary Easter leave which he was granted. It is immaterial whether the court orders a juvenile adjudicated delinquent to an unrestricted facility as in this case or to a secure facility. The crucial point is not the nature of the facility from which a delinquent escapes, as far as its being secure or unrestricted, but rather whether he is in “official detention.” Under the Crimes Code, a juvenile who has been adjudicated delinquent and has been placed in an unrestricted shelter facility under order of the court is in “official detention” as he is being detained in a facility “for custody of persons.. .found to be delinquent.” 18 Pa.C.S. § 5121(e). The Crimes Code makes no distinction with respect to “official detention” between the placement of a delinquent in a secure or unrestricted facility.

In Commonwealth v. Martell, 307 Pa.Super. 1, 452 A.2d 873 (1982), a juvenile who had been adjudicated delinquent was found guilty of escaping from the Mercer Juvenile Court Center which was a secure facility, from which the juvenile had engaged in a forceable escape. We held that the evidence supported the finding of guilty of escape. This case does not in any way run counter to the conclusion that we reach in this opinion, that a juvenile delinquent may escape while on leave from an unrestricted facility. The instant case is one of first impression in this Commonwealth and we hold that a juvenile who has been adjudicated delinquent may be guilty of escape from an unrestricted facility.

Order affirmed.

      . That is, it is not a detention (secure) facility, but rather a “shelter care” facility. The Act defines “shelter care” as the "[t]emporary care of a child in physically unrestricted facilities.” 42 Pa.C.S. § 6302.

      . The Juvenile Act, 42 Pa.C.S. § 6301(b)(2) states:
      (b) Purposes. — This chapter shall be interpreted and construed as to effectuate the following purposes:
      (2) Consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation.

        An unrestricted facility as St. Michael’s, is an appropriate facility for placement of a delinquent. The Juvenile Act provides that a dependent child may be placed with any public agency authorized "by law to receive and provide cate for the child.” 42 Pa.C.S. § 6351. The Act further provides that a delinquent child may be placed with any agency with which a dependent child could have been placed. It also provides in 42 Pa.C.S. § 6352(a)(3) that a delinquent child may be placed in "an institution, youth development center, camp, or other facility for delinquent children operated under the direction or supervision of the court or other public authority and approved by the Department of Public Welfare.” 42 Pa.C.S. § 6327 provides that a delinquent may be detained in only one of four types of facilities, one of which is “a licensed foster home or a home approved by the court.” This clearly does not contemplate a restricted facility.

      . The court in The Interest of Tasseing H., 281 Pa.Super. 407, 422 A.2d 533 succinctly placed the situation in focus and stated:
      Thus, the general situation with which we are faced is as follows: appellant is brought before the court on a dependency petition; the court commits appellant to the McIntyre Shelter, a physically unrestricted facility, pending placement; and appellant subsequently runs away from the shelter; appellant is then apprehended and detained in Shuman Center, a detention home, while awaiting the filing of a delinquency petition charging contempt of court for violation of the court’s commitment orders; finally, the court adjudicates appellant delinquent. We are confronted in this manner with a question of first impression in this Commonwealth whether a child who absconds from shelter care ordered pursuant to a dependency petition may subsequently be found delinquent on the basis of contempt of court in violating a court order and, thereby, be detained or committed to facilities for delinquent children.
      To be found delinquent, a child must have committed a delinquent act,...

      . The Juvenile Act defines a dependent child as follows, 42 Pa.C.S. § 6302:
      “Dependent child.” A child who:
      (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals;
      (2) has been placed for care or adoption in violation of law;
      (3) has been abandoned by his parents, guardian, or other custodian;
      (4) is without a parent, guardian, or legal custodian;
      (5) while subject to compulsory school attendance is habitually and without justification truant from school;
      (6) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian or other custodian and who is ungovernable and found to be in need of care, treatment or supervision;
      (7) is under the age of ten years and has committed a delinquent act;
      (8) has been formerly adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (6); or
      (9) has been referred pursuant to section 6323 (relating to informal adjustment), and who commits an act which is defined as ungovernable in paragraph (6).

      . The definition of a delinquent child is found in the Juvenile Act, 42 Pa.C.S. § 6302:
      “Delinquent child.” A child ten years of age or older whom the court has found to have committed a delinquent act and is in need of treatment, supervision or rehabilitation.
      A “delinquent act” is defined as follows:
      “Delinquent act.”
      (1) The term means an act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law, or under local ordinances.
      (2) The term shall not include:
      (i) the crime of murder; or

        (ii) summary offenses, unless the child fails to pay a fine levied thereunder, in which event notice of such fact shall be certified to the court.

      . In Commonwealth v. Martell, 307 Pa.Super. 5, 452 A.2d 875 (1982), the court stated:
      Accordingly if appellant had not been adjudicated a delinquent or was not awaiting a delinquency hearing then he could not have attempted an escape within the meaning of the Crimes Code.
      The court also discussed the distinction between facilities for dependent and delinquent children at 307 Pa.Super. 6, 452 A.2d 875:
      A child alleged to be delinquent may be housed in one of four alternate placement environments, including a detention center. 42 Pa.C.S. § 6327(a). A dependent child may be housed in one of three of the same placements as a delinquent child, but may not be sent to a detention center. Id. (e). The legislature has further defined a “shelter care”, as one of the three available options for a dependent child, as a physically unrestricted facility. Id. § 6302. A similar statutory definition has not been provided for a “detention center.” Nonetheless the courts and others involved in the placement of dependent and delinquent children have used the unrestricted/secure dichotomy to distinguish a shelter facility from a detention facility.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    475 A.2d 127
    Beverly P. LOWENSCHUSS v. Fred LOWENSCHUSS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1983.
    Filed March 30, 1984.
    Reargument Denied June 5, 1984.
    Petition for Allowance of Appeal Denied Sept. 20, 1984.

      Jack M. Bernard, Philadelphia, for appellant.
    Albert Momjian, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and HESTER, JJ.
   McEWEN, Judge:

We here study an appeal from an order in a divorce proceeding which awarded to appellee the sums of $10,000 for interim counsel fees and $2,500 for the payment of “costs”. Appellant argues that: (1) the Montgomery County Court of Common Pleas was without jurisdiction to award interim counsel fees and expenses to appellee as no valid marriage existed between the parties; (2) the court erred in awarding counsel fees to appellee as counsel for appellee did not attempt to amicably resolve the matter, reconcile the parties or “preserve the family unit”; (3) the amount awarded for interim counsel fees was excessive; (4) the court erred in awarding a sum for interim expenses not yet incurred; and (5) counsel for appellee failed to adequately document the charges in their bill. We find that the learned Judge Anita B. Brody properly awarded appellee the sums of $10,000 as interim counsel fees and $2,500.00 as interim expenses.

Appellee filed a complaint in divorce on September 28, 1981, pursuant to the Divorce Code of 1980 alleging that her husband, the appellant herein, offered such indignities to her as to render her condition intolerable and her life burdensome. Appellee also sought a no-fault divorce pursuant to Sections 201(c) and 201(d) of the Divorce Code, reasonable child support, alimony, alimony pendente lite, counsel fees, equitable distribution of the marital property and payment of costs and expenses.

Thereafter, on February 16, 1982, appellee filed a petition for interim counsel fees, expenses and appraiser’s fees. After a hearing on the petition, Judge Brody issued an order awarding $10,000.00 for interim counsel fees and $2,500.00 for interim expenses. Appellant undertook the present appeal after his exceptions were dismissed by the court.

Initially, we observe that the appeal from the order awarding interim counsel fees and expenses is properly before us for review. This Court, sitting en banc, has recently held that an order granting or denying interim counsel fees and expenses is a final, appealable order. See Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984). We are, therefore, possessed of jurisdiction to entertain the instant appeal.

Appellant initially argues that the hearing court had no authority to award interim counsel fees and expenses since, allegedly, no valid marriage ever existed between the parties. This Court, however, has recently held that jurisdiction over this divorce action properly lies in the Montgomery County Court of Common Pleas. See Lowenschuss v. Selnick, 324 Pa.Super. 193, 471 A.2d 529 (1984). As such, the trial court was within its authority when it awarded interim counsel fees and expenses. See Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(b).

Appellant next argues that counsel for appellee should not have been awarded counsel fees since counsel instituted an action in divorce when, allegedly, no valid marriage existed. Appellant also argues that the court erred in making an interim award of counsel fees because counsel made no effort to “preserve the family unit”. These arguments, however, are not relevant to the issue of the ability of appellant to pay counsel fees nor of appellee’s need therefor. Moreover, counsel was under no obligation to attempt a reconciliation of the parties. We, therefore, reject these assertions as meritless.

In reviewing the allegation that the trial court abused its discretion in awarding as interim counsel fees the sum of $10,000, we are guided by the rule enunciated in Jack v. Jack, 253 Pa.Super. 538, 385 A.2d 469 (1978):

No standard is fixed for determination of the amount of counsel fee other than the requirement that it must be reasonable. Consideration must be given to the husband’s ability to pay, the wife’s necessity, and to the extent of her separate estate, [citation omitted].
‘How much shall be allowed as alimony and for counsel fees and expenses is a matter of judicial discretion and the validity of the order depends upon the proper exercise of that discretion. . . . This court will not reverse an order of the court below “except for plain abuse of discretion”.......There are no fixed rules as to the amount to be allowed. It is not to be measured solely by the value of counsel’s services or by the wife’s necessities. “The husband’s ability to pay, the separate estate of the wife, the character, situation and surroundings of the parties are all to be considered in determining a fair and just amount which the husband should pay.” ’

Id. 253 Pa.Super. at 545, 385 A.2d at 473 quoting Shuman v. Shuman, 195 Pa.Super. 155, 157, 170 A.2d 602, 603 (1961). See also Fried v. Fried, 326 Pa.Super. 271, 473 A.2d 1087 (1984); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

Appellee offered as evidence in support of her request for an interim award of counsel fees a bill from the law firm of Abraham & Loewenstein in the amount of $21,975.75 for professional services rendered in the divorce action and related proceedings during the period from September 15, 1981, to February 29, 1982. Appellee also introduced evidence documenting approximately 200 hours of work performed by members of the law firm as well as evidence relating to the firm’s fees schedules and billing system. Appellee presented the testimony of an expert witness, who the trial court found to be credible, regarding the reasonableness of the fees charged. Appellee also introduced evidence establishing that she earns a gross salary of $18,000 a year and possesses assets in the amount of approximately $5,000, and is unable to pay for the legal services rendered on her behalf by the firm of Abrahams & Loewenstein. Appellant on the other hand, refused to submit any evidence of his earnings or assets but rather stipulated that he had the means to pay any order for counsel fees up to $30,000. Moreover, appellant produced no evidence suggesting that the evidence produced by appellee was inaccurate. After a careful review of the record in this case and the opinion of Judge Brody, we are satisfied that counsel for appellee adequately documented the charges contained in appellee’s bill for services and that Judge Brody, who considered all of the factors relevant to such a decision, properly exercised her discretion in awarding appellee the sum of $10,000 for interim counsel fees.

Appellant’s final assertion of error concerns the interim award of $2,500 to appellee for expenses. Section 401(b) of the Divorce Code provides in relevant part:

§ 401. Decree of Court.
(b) .... The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(b) (emphasis added). Thus, the trial court properly exercised its discretion in awarding the sum of $2,500 to appellee for interim expenses.

Order affirmed. Jurisdiction is relinquished.

      . We note that the amounts sought as “costs” — appraiser’s fees, accountant’s fees and pension expert’s fees — are actually expenses and will be so described throughout this opinion.

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

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 201(a)(6).

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 201(c).

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 201(d).

        . To quote our distinguished colleague Judge John P. Hester:
      “At this moment, the Montgomery County Court of Common Pleas is indeed exercising jurisdiction over the divorce action. Its exercise of jurisdiction over the divorce action and all ancillary claims is, at the moment, with statutory authority. 23 P.S. § 301(a); Pa.R.C.P. 1920.43(a); 23 P.S. § 403(a). Until further order of court jurisdiction is proper. Whether it remains so may yet be determined following a motion for summary judgment on the deposition, or further appeal to this court.”

        Lowenschuss v. Selnick, 324 Pa.Super. 193, 200, 471 A.2d 529, 532 (1984).

      . This bill included monies for expenses in the amount of $107.75 but did not reflect a payment by appellee of $1,500. as a retainer.

      . In her opinion, Judge Brody stated:
      "It is evident from both the record made before this court and the lengthy docket preceding this hearing, that the case before us involved numerous complex legal issues necessitating substantial expenditures of time and effort by counsel.”
      The partial recitation of docket entries in this action, as summarized by Judge Brody in her opinion, illustrates the nature of the proceedings in this action:
      On September 28, 1981, [appellee] filed a Complaint in Divorce including counts for equitable distribution of marital property, child support, confirmation of custody, alimony pendente lite, alimony, counsel fees, costs and expenses, etc. In brief, the procedural history is as follows:
      [Appellant] filed preliminary objections demurring to the complaint, and challenging the Court’s jurisdiction on the grounds that (a) no valid marriage existed, (b) the Divorce Code is unconstitutional and (c) the Court has no power over property acquired prior to the effective date of The Divorce Code. [Appellee] answered these objections on November 18 and filed a brief on December 3, 1981.
      On October 9, 1981 [appellee] filed interrogatories addressed to [appellant].
      [Appellant] filed interrogatories and requests for admissions to which [appellee] filed objections on November 18, 1981. On December 9, 1981 [appellant] filed petitions to compel discovery, which were answered on January 8, 1982. On January 11, 1982, both petitions were placed on the argument list.
      On January 8, 1982, the support master recommended alimony pendente lite of $1651 per month and $4367 child support effective October 9, 1981. On January 11, 1982 [appellant] filed exceptions, requesting that the matter be heard de novo.
      On January 11, 1982 [appellant] filed a petition for custody of the parties’ four minor children, which was set for hearing on February 16, 1982.
      On February 9, 1982, [appellee] filed a motion and rule for dismissal of [appellant’s] objections to interrogatories and to compel answers thereto, which rule was returnable on March 26, 1982. On the same day, [appellee] filed a motion and rule for sanctions against the [appellant] for failure to file an inventory and appraisement of property pursuant to Montgomery County Rule of Civil Procedure 1920.33. On the same day, [appellee] filed a petition and rule for interim counsel fees and costs, expenses and appraiser’s fees. [Appellee] also filed a petition for an injunction pursuant to Sections 301(a)(2), 401(c) and 403(a) of the Divorce Code, seeking to enjoin the [appellant] from alienating, assigning, conveying or otherwise disposing of marital property.
      On February 4, 1982, this Court entered a temporary order of support for three children in the amount of $3050 per month and alimony pendente lite of $800 per month for [appellee], from which order [appellant] appealed.

        On February 17, 1982, [appellant] filed a petition and rule for an injunction against and/or stay of all proceedings until a final determination of preliminary objections.
      On February 16, 1982, after taking testimony, Judge Tredinnick entered a temporary order for custody.
      On February 18, 1982, Judge Brown entered an order dismissing [appellant’s] preliminary objections to the Complaint. [Appellant] thereafter filed a notice of appeal. [Appellant] also filed a petition for supersedeas requesting that the appeal taken from the February 4, 1982, order of child support and alimony pendente lite operate as a supersedeas without filing security.
      On March 9, 1982, [appellee] filed an answer to [appellant’s] petition for injunction and/or stay of proceedings.
      On March 22, 1982, [appellee’s] counsel filed a motion for a protective order with respect to a subpoena duces tecum served upon Albert Momjian, Esquire.
      On March 23, 1982, [appellant] filed a motion for a protective order and/or to quash the subpoena duces tecum served upon him on March 17, 1982.
      On March 24, 1982, [appellee] filed with the Superior Court a motion to quash the appeal from Judge Brown’s order dismissing the Preliminary Objections. [Appellee] also filed a motion to quash the appeal from the temporary order of support and alimony pendente lite.

      On March 26, 1982, [appellee’s] reply to [appellant's] new matter in [appellee’s] petition for injunction and petition for interim counsel fees, etc. was filed.
      On April 20, 1982, [appellee’s] reply to [appellant’s] New Matter and [appellee’s] motion for dismissal of objections to interrogatories and to compel answers to the interrogatories was filed. On the same day, [appellee] filed a reply to [appellant’s] new matter in [appellee’s] petition for leave to take discovery. [Appellee’s] reply to [appellant’s] new matter and [appellee’s] motion for sanctions for failure to file an inventory and appraisement of property was also filed on that date.
      On October 27, 1981, [appellant] filed a complaint in equity against Mrs. Lowenschuss in Philadelphia County, seeking to restrain her from entering the residence at 1425 Colton Road, in Gladwyne, and seeking return of personalty allegedly owned by [appellant] and taken by [appellee]. On February 23, 1982, pursuant to Mrs. Lowenschuss’ motion, Judge Bonavitacola of the Court of Common Pleas of Philadelphia entered an order dismissing the [appellant’s] equity action. Mr. Lowenschuss’ appeal is now pending before the Superior Court.
      On July 28, 1982 the Court issued [the order here reviewed].


author: MONTEMURO, Judge:

text:
    475 A.2d 132
    William G. ZINN v. Gladys J. ZINN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed April 13, 1984.

      Richard K. Renn, York, for appellant.
    Steven K. Portko, York, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from a decree granting plaintiff husband a divorce on the ground of indignities. Appellant wife’s initial contention is that this Commonwealth has no subject matter jurisdiction over this action. Having conducted a de novo review of the record, Moslen v. Moslen, 260 Pa.Super. 508, 894 A.2d 1042 (1978); we find it inadequate to resolve this question. We must reverse and remand for further hearing.

Appellee was born and raised in Pennsylvania. He then joined the United States Air Force and has never returned to Pennsylvania to reside, but has been stationed all over the world. Appellee has always designated Pennsylvania as his legal residence. Appellant was born in England and has never lived in Pennsylvania. After the parties were married on October 1, 1960, they resided together in Texas, Japan, Germany, Nebraska, the Phillipines, Greece, and back to Germany again. Upon nearing retirement from the Air Force, appellee selected transfer to Florida. The parties separated on January 13,1979, and this action was filed on July 12, 1979. At the time the complaint was filed, appellee was living off-base in Florida and appellant was living in Delaware.

Pennsylvania has jurisdiction over this divorce if, at the time the action was filed, appellee had been a “bona fide resident” of this Commonwealth for a period of at least one year. 23 P.S. § 16 (repealed). “Bona fide residence” means domicile; i.e., actual residence coupled with the intention to remain there permanently or indefinitely. McKenna v. McKenna, 282 Pa.Super. 45, 422 A.2d 668 (1980). Mere absence from a domicile, however long continued, cannot effect a change of domicile; there must be an animus to change the prior domicile for another. In re McKinley’s Estate, 461 Pa. 731, 337 A.2d 851 (1975). Furthermore, there is a presumption that the original domicile continues and a person asserting a change of domicile must demonstrate such change by clear and convincing proof. Id.; McKenna v. McKenna, supra.

Since the concept of change of domicile requires some free exercise of will on the part of the person involved, McKenna v. McKenna, supra; the domicile of servicemen generally remains unchanged when temporarily stationed at a particular place while in the line of duty. Wallace v. Wallace, 371 Pa. 404, 89 A.2d 769 (1952); Turek v. Lane, 317 F.Supp. 349 (E.D.Pa.1970). Thus, a serviceman’s domicile is presumed not to change from his domicile at the time of enlistment. Turek v. Lane, supra. There is no doubt, however, that a serviceman may acquire a new domicile at any point during his military service if the circumstances show an intent to abandon his original domicile and adopt the new one. Wallace v. Wallace, supra, Ellis v. Southeast Construction Company, 260 F.2d 280 (8th Cir.1958); Turek v. Lane, supra.

Appellee argues that Pennsylvania remained his domicile at the time of the filing of the complaint. At a hearing conducted before a master on February 19, 1980, he presented the following documentary evidence: federal income tax forms depicting a Pennsylvania address, military records depicting a Pennsylvania address, a valid international driver’s license depicting a Pennsylvania address, a Pennsylvania resident’s fishing license, and a valid Pennsylvania driver’s license. Appellee also testified that he was registered to vote in Pennsylvania, and stated that he had always considered Pennsylvania to be his “legal residence.” N.T. February 19, 1980, at p. 5.

Appellant contends that at the time of the filing of this action, appellee had abandoned Pennsylvania as his domicile and had adopted a new domicile in Florida. At the hearing, appellee testified that he had chosen to live off-base in Florida. Appellant then attempted to establish that appellee had moved to Florida with the intent of residing there permanently:

Q. Mr. Zinn, you like scubba [sic] diving don’t you?
A. I like the water, yes.
Q. And you like sunbathing?
A. Yes.
Q. Did you have an discussions with your wife about where you would spend your retirement?
A. Yes, I said I felt that I didn’t particularly want to retire where it was cold and I thought a warm climate would be preferable.
Q. You didn’t particularly want to retire to Pennsylvania did you Mr. Zinn?
A. I didn’t particularly want to retire to Pennsylvania because of the weather but I never agreed to retire anywhere else either.
Q. You never talked to your wife about retiring to Florida?
Objection. This does not go to the point of jurisdiction. Mr. Heim [Master]: I agree.

N.T. of February 19,1980, at pp. 19-20. Unfortunately, the master refused to allow any further inquiry regarding whether appellant had selected transfer to Florida so that he could reside there permanently. See also N.T. of February 19, 1980, at pp. 22-23 (cross-examination of appellee curtailed), 72-73 (direct examination of appellant curtailed). The master’s reasoning was that where appellee planned to retire was irrelevant to the question of jurisdiction because appellee had not yet retired.

Since it is clear, however, that appellee could have formed the intent to permanently reside in Florida prior to his actual retirement, Wallace v. Wallace, supra; Ellis v. Southeast Construction Company, supra; Turek v. Lane, supra, the line of questioning disallowed by the master was highly relevant to the issue of whether appellee had adopted a new domicile, and therefore, whether this court could properly exercise jurisdiction. It is essential that all facts relevant to a divorce be fully explored. Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974). Accordingly, we must refer this case back to the court below for further inquiry as to appellee’s domiciliary intent.

Reversed and remanded. Jurisdiction is not retained.

        . This action was filed under the Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1 et seq. (repealed), but was transferred to the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.

      . "Bona fide residence" remains the crucial requirement of subject matter jurisdiction under the Divorce Code, 23 Pa.S.A., § 302.

      . The Pennsylvania address listed on these various documents was R. D. # 2, Mt. Wolf, Pennsylvania. This is the address of the appellee's parents.

      . We note that in a petition to open filed by appellant subsequent to the entry of the final decree, the appellant alleged that: "Subsequent to the Master’s Hearing and prior to this Court entering a Decree in Divorce,” appellee had been discharged from the military, purchased a home in Florida, and remained there. In light of these alleged facts, the appellant requested that the matter be opened and remanded to the master for further testimony concerning the appellee’s domiciliary intent as it bore on jurisdiction. Prior to this appeal, the lower court denied the petition to open, stating that "What his [appellee’s] future intent was would not be of relevance." N.T. of conference and order of September 11, 1981. Having held that appellee’s future intent was crucial to the issue of jurisdiction, appellant may, on remand, enter the evidence alleged in the petition to open. That evidence, however, may only be considered as circumstantial proof of appellee’s domiciliary intent at the time he filed the complaint.


author: WIEAND, Judge:

text:
    475 A.2d 134
    HAMILTON BANK, formerly National Central Bank v. Edward L. RULNICK and Betty F. Rulnick, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1983.
    Filed April 19, 1984.

      Ronald Perry, York, for appellants.
    Eugene R. Campbell, York, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   OPINION

WIEAND, Judge:

This appeal was taken from an order refusing to open a judgment which had been confessed against Edward and Betty Rulnick, appellants, by Hamilton Bank, appellee. The judgment had been confessed pursuant to warrant of attorney contained in a written agreement by appellants to guarantee a loan made by the Bank to Edward Rulnick’s wholly owned corporation. The court denied the petition to open the judgment because appellant's only defense was an alleged, oral agreement, evidence of which, in the court’s opinion, was barred by the parol evidence rule. We affirm, but for a different reason. The terms of the subsequent, oral agreement, if believed, did not constitute a defense to the judgment confessed against appellant.

The facts have been recited in an opinion of the trial court as follows: “Defendant Edward L. Rulnick is engaged in the profession of a real estate broker. In 1972, Mr. Rulnick formed a corporation, Edward Rulnick Associates, Inc., of which he was the sole shareholder. Thereafter the corporation entered into an arrangement with Hamilton Bank (then National Central Bank) whereby the corporation established a line of credit with the bank for the operation of the brokerage business. On November 20, 1973, both Defendants signed a personal guaranty for the obligations of the corporation. That guaranty contained a clause permitting the confession of judgment which was subsequently exercised by Plaintiff bank. In 1976, the parties agreed to collateralize the loan by the execution of a document called ‘Collateral Assignment Of Partnership Interest’. That instrument, dated October 29, 1976, purported to assign to the bank, as collateral security for the payment of the ‘present indebtedness owing by corporation to bank’, Edward L. Rulnick’s one-third interest in a partnership known as KenCo. The assignment stated the present indebtedness to be the sum of Forty-Nine Thousand Eight Hundred Thirty-Eight and 24/100 ($49,838.24) Dollars.

“No part of the principal indebtedness of Edward Rulnick Associates, Inc. was made after the date of the assignment by Defendant Edward L. Rulnick. On August 29, 1980, Plaintiff filed its Complaint in confession of judgment against Defendants under the terms of the guaranty referred to above. Defendants, on September 18, 1980, filed the petition to open.”

Depositions of Edward Rulnick, taken in support of the petition to open the judgment, suggested that the consideration for the collateral assignment of his partnership interest in KenCo had been an oral agreement “that they (the Bank) would not proceed for collection until I either liquidated the debt as a cash flow or sold the property (owned by the partnership) in Manchester.” The trial, court held that the alleged oral agreement was an inadequate defense because it was barred by the parol evidence rule.

The purpose of the parol evidence rule is “to preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous [or prior] oral declarations.” LeDonne v. Kessler, 256 Pa.Super. 280, 286, 389 A.2d 1123, 1126 (1978), quoting Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120-121, 262 A.2d 851, 853 (1970). The parol evidence rule in Pennsylvania holds that “[w]here parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence.” Bokser v. Lewis, 383 Pa. 507, 511, 119 A.2d 67, 69, cert. denied, 351 U.S. 965, 76 S.Ct. 1031, 100 L.Ed. 1485 (1956) (citations omitted) (emphasis deleted). See also: Bardwell v. The Willis Co., 375 Pa. 503, 506, 100 A.2d 102, 104 (1953); Gianni v. R. Russell & Co., 281 Pa. 320, 323, 126 A. 791, 792 (1924); LeDonne v. Kessler, supra, 256 Pa.Super. at 286-287, 389 A.2d at 1126-1127; First Pennsylvania Bank N.A. v. Weber, 240 Pa.Super. 593, 600-601, 360 A.2d 715, 719-720 (1976). However, it is equally clear that the rule does not apply to or prohibit a subsequent, oral modification of a written contract. Nicolella v. Palmer, 432 Pa. 502, 508, 248 A.2d 20, 23 (1968); Consolidated Tile and Slate Co. v. Fox, 410 Pa. 336, 340-341, 189 A.2d 228, 230 (1963); House of Pasta, Inc. v. Mayo, 303 Pa.Super. 298, 312, 449 A.2d 697, 704 (1982).

Contrary to the reasoning employed by the trial court, the appellants were not attempting to use parol evidence to modify the terms of the written assignment of additional collateral. Appellants contended, rather, that in exchange for the assignment the Bank had agreed not to proceed against them immediately to collect on the earlier contract by which appellants had guaranteed repayment of the Bank’s loan to Rulnick’s corporation. This evidence of an oral agreement did not modify the contemporaneous written assignment but a prior, three year old agreement of guaranty. A subsequent, oral modification of the agreement of guaranty was not barred by the parol evidence rule.

Appellants’ evidence of an oral agreement, although not barred by the parol evidence rule, was an inadequate basis for opening the judgment. Evidence of a meritorious defense necessary to open a judgment by confession must be such as would create an issue requiring submission to a jury. Pa.R.C.P. 2959(e). See: Young v. Pileggi, 309 Pa.Super. 565, 568, 455 A.2d 1228, 1230 (1983); Stern v. Feathers, 307 Pa.Super. 433, 435, 453 A.2d 661, 662 (1982); First National Bank, N.A. v. Lehr, 293 Pa.Super. 189, 192, 438 A.2d 600, 602 (1981); Lincoln Bank v. Kelly, 282 Pa.Super. 261, 268, 422 A.2d 1106, 1110 (1980). In determining the existence or non-existence of a meritorious defense, a court must view the evidence presented in the light most favorable to the moving party, accepting as true all evidence and reasonable and proper inferences flowing therefrom. First National Bank, N.A. v. Lehr, supra 293 Pa.Super. at 192-193, 438 A.2d at 602; Lincoln Bank v. Kelly, supra 282 Pa.Super. at 268, 422 A.2d at 1110.

The contract of guaranty between appellants and the Bank “irrevocably authorize[d] and empowered] any attorney of any court of record to appear for and confess judgment therein against [the guarantors] ... for the amount for which [they] may be or become liable to [the] Bank under this Guaranty____” Confession of judgment pursuant thereto established that appellants were indebted to the Bank and that the Bank had a right to recover that indebtedness. The alleged oral agreement not to “proceed to collection” had effect only on the Bank’s collection or enforcement of the judgment. It did not alter or purport to alter the warrant of attorney to confess judgment contained in the written contract. It did not prevent or affect adversely the right of the Bank to obtain additional security for the loan by entering judgment against appellants. The alleged oral agreement, therefore, did not prevent the entry of judgment against appellants and did not give rise to a meritorious defense to the judgment confessed against them. See: Fidelity Bank v. Gorson, 296 Pa.Super. 1, 442 A.2d 265 (1982). See also and compare: Integrity Title Insurance, Trust & Safe Deposit Co. v. Rau, 153 Pa. 488, 26 A. 220 (1893).

“An oral contract changing the terms of a written contract must be of such specificity and directness as to leave no doubt of the intention of the parties to change what they had previously solemnized by a formal document. The oral evidence must be of such a persuasive character that it moves like an ink eradicator across the written paper, leaving it blank so that the parties in effect start afresh in their ... mutual commitments.” Gloeckner v. Baldwin Township School District, 405 Pa. 197, 200, 175 A.2d 73, 75 (1961). The testimony of Rulnick regarding an oral agreement was inadequate as a matter of law to modify the warrant of attorney to confess judgment which the parties had previously solemnized and incorporated into their written contract of guaranty.

Because appellants failed to present evidence of a meritorious defense to the judgment, the trial court’s order refusing to open the judgment must be affirmed.

Order affirmed.


author: POPOVICH, Judge:

text:
    475 A.2d 137
    COMMONWEALTH of Pennsylvania v. Raymond D. PAYNE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 26, 1983.
    Filed April 19, 1984.

      Elliot Jay Segel, Assistant Public Defender, Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from January 5, 1982 Order of the Court of Common Pleas of Erie County denying appellant’s, Raymond D. Payne’s, Post-Conviction Hearing Act (PCHA) petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We affirm.

On April 11, 1977, appellant pleaded guilty to a general charge of murder regarding the strangulation death of a 16-year-old student of his in Erie, Pennsylvania. At the guilty plea hearing, the court advised the appellant that he was being charged with the murder of “Debra Lynn Gama by means of ligature strangulation.” Further, he was informed of his rights attendant to a trial by jury, except for the unanimity requirement of a guilty verdict. Also, the court defined the different classifications that make up the offense of murder in Pennsylvania’s statutory scheme and the possible penalties that accompany their violation. Finally, the court posed the question to Mr. Payne, “... knowing all of this and having conferred with counsel over a period of six or seven months, is it your desire here this morning to enter a plea generally to the charge of murder?” To which Mr. Payne responded, “Yes, Sir.” (N.T. 4/11/77 at 27)

Immediately after the rendition of the guilty plea colloquy and the court’s acceptance of appellant’s plea, a degree-of-guilt hearing was commenced with the testimony of a Pennsylvania State Trooper assigned to investigate the case. However, when the presiding judge heard a factual accounting from this witness, as to the manner in which the body was found (wire located around the neck, ankles and wrists of the victim as she floated in the Cussewago Creek, Crawford County), he discontinued the proceedings and directed that they begin anew before a three-judge panel because, “based upon these matters[,] ... the crime charged m[ight] rise to murder in the first degree.” Id. at 39.

Following the continuation of the degree-of-guilt hearing before the en banc court, the appellant was found guilty of first degree murder and, thereafter, was sentenced to a state institution “for the rest and remainder of [his] natural life.” (N.T. 8/5/77 at 3) An appeal was perfected to the Pennsylvania Supreme Court, which resulted in an affirmance of the judgment of sentence on the ground that the conviction was amply supported by the evidence. Commonwealth v. Payne, 483 Pa. 256, 396 A.2d 630 (1979). No other issue, aside from the sufficiency of the evidence, was raised. Also, it is to be noted that throughout the adjudicatory process appellant was represented by private counsel (Leonard G. Ambrose, III and Jess S. Jiuliante, Jr.).

On October 7, 1980, the appellant filed a pro se PCHA petition alleging that he was denied the effective assistance of counsel, which had a direct impact on the invalidity of his plea. In particular, he alleged that the plea was deficient in that he was not informed that “a jury ... would have to return a unanimous verdict” and “[a]t no point in the ... colloquy [was] a factual basis established prior to the acceptance of that plea.” (Appellant’s PCHA petition at 3) In addition, the appellant complained that his attorneys “never explored an intoxication defense or requested psychological testing for an intoxication defense.” Ibid.

In that portion of the petition requesting a statement as to why the issues raised should not be considered finally litigated or waived, the appellant correctly noted that “[w]hen trial counsel is also the Direct Appeal Counsel, innefectiveness [sic] of counsel cannot be” waived. Id. at 5; see Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979). Counsel from the public defender’s office of Erie County was appointed to assist the appellant. Although there is a motion of record by said counsel requesting leave to amend the pro se PCHA petition of the accused, there is no record evidence that such occurred.

Nonetheless, following the Commonwealth’s submission of a 10-page answer to the appellant’s petition, the PCHA court ultimately, “after argument,” denied the relief sought (e.g., release from custody, discharge or a new trial). This appeal followed.

The issues raised by the appellant below have been raised again on this appeal. However, after examining the record, we find it necessary to address only the allegation that prior counsel was ineffective for failing to challenge the guilty plea colloquy on the ground that the unanimity aspect of the jury’s verdict was not explained to the accused.

Before reaching the issue proffered, we wish to respond to the Commonwealth’s argument that any and all claims presented by the appellant have been “waived.” We disagree. Inasmuch as this is the first occasion that counsel other than counsel whose stewardship is questioned is representing the accused, the claims of ineffectiveness are preserved for review. See Commonwealth v. Frankhouser, 491 Pa. 171, 420 A.2d 396 (1980).

We also disagree with appellant’s conclusion instantly that guilty plea counsel was ineffective for not challenging a plea that failed to inform appellant that any verdict which a jury might render would have to be unanimous. This belief is premised upon the enunciation in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), and endorsed by our Supreme Court in Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978), that certain information would have to be communicated to a defendant before his waiver of a jury trial would be labelled knowing and intelligent.

In reversing a conviction and ordering a new trial on the ground that the waiver of a jury trial was not knowing and intelligent, the Williams Court remarked:

Nowhere on the record is there any indication that [the defendant] knew the essential ingredients of a jury trial which are necessary to understand the significance of the right he was waiving. These essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel. . . . In view of the failure of the record to establish that appellant had sufficient knowledge of the right which it is now contended he waived, we are unable to find that the waiver was either knowing and intelligent.

Commonwealth v. Williams, supra, 454 Pa. at 373, 312 A.2d at 600.

Most recently, in Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983), our high Court had occasion to elaborate upon the meaning of Williams and the result is enlightening.

For instance, the Court found that counsel was not ineffective for his failure to advise the appellant, during a jury waiver colloquy, that “the jury would be chosen from ‘members of the community’ or from his ‘peers’[.]” Id., 503 Pa. at 371, 469 A.2d at 600. In all other respects, the colloquy complied with the dictates of Williams.

The Court, in holding the colloquy valid and counsel effective, stated:

It must be recognized that Williams did not establish a prophylactic rule requiring a new trial for failure of the record to indicate the defendant’s knowledge of each and every element of the jury trial right which he was waiving. The focus in Williams was, and it remains, whether the waiver was knowing and intelligent, not whether certain talismanic questions were asked and answered. In determining whether this Appellant knowingly and intelligently waived his right to trial by jury, the PCHA court and the Superior Court had before them both the record of the colloquy and the testimony taken at the PCHA hearing from the Appellant and his trial counsel. We find no error in their determination based on this evidence that the Appellant fully understood the ingredients of a jury trial and his rights thereto, and made a knowing and intelligent waiver of those rights. (Footnote omitted)

Id., 503 Pa. at 372, 469 A.2d at 600.

What we have in Carson is the Court’s refusal to embrace a per se rule that would ipso facto invalidate all colloquies that did not comport in every respect with the requirements of Williams. In other words, the Court exhibited its endorsement of a “totality of circumstances” approach to assess the validity of a colloquy in the context of a jury trial waiver. Notwithstanding this fact, we read Carson to sanction the use of a similar test in reviewing the validity of a guilty plea; especially since both types of colloquies have elements indigenous to Williams, i.e., informing the party waiving his right to a jury that the veniremen would be chosen from members of the community, that the verdict be unanimous and that the accused be allowed to participate in the selection of the panel of his peers.

Instantly, as in Carson, the party waiving his rights was not advised of an element itemized in Williams, yet the colloquy was proper otherwise. Thus, to hold now that the colloquy impaired the appellant’s ability to enter a knowing and intelligent plea, in the absence of this one point, would do violence to the teaching of Williams, as crystalized by Carson. This we cannot do.

Accordingly, upon our review of the record through the spectrum afforded by Carson, we find that the appellant entered a knowing and intelligent plea, which conclusion renders impotent his ineffectiveness of counsel argument.

Order affirmed.

HOFFMAN, J., concurs in the result.

      . A sample of the copper wire was taken to a spectrochemical laboratory in Pittsburgh and analyzed and determined to be automatic welding wire manufactured by the Linde Corporation in Ashtabula, Ohio. Thereafter, through police investigation, the wire was traced to Erie and eventually to the appellant.

      . The other two grounds upon which the appellant assails his colloquy, cited supra, are refuted by the record. (See PCHA court Opinion at 3-4) Thus, we need not engage in a detailed discussion of their merits. Suffice it to say that the claims are unsubstantiated and, thus, do not entitle the accused to any type of relief.


author: PER CURIAM:

text:
    475 A.2d 141
    In re Daniel Stephen BARWICK, III. Appeal of Daniel Stephen BARWICK, II and Melody Hildenbrandt.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1984.
    Filed April 19, 1984.
    Reargument Denied June 5, 1984.
    Petition for Allowance of Appeal Denied Oct. 2, 1984.
    David A. Scholl, Bethlehem, for appellants.
    Louis S. Minotti, Jr., Easton, for Lamar Hildenbrandt, etc., participating parties.
    Anthony P. Daniel, Easton, for Deremer, participating parties.
    Jack A. Panella, Easton, for Children, participating party.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   OPINION

PER CURIAM:

On August 12, 1983, the lower court entered a temporary order directing the Children and Youth Division of Northampton County to maintain the placement of the child, Daniel Stephen Barwick, III, with his maternal grandfather. The court further ordered that a review hearing be held in six months. We affirm the order of the lower court and direct the court to immediately schedule a review hearing to decide the future custody of the dependent child.

Order affirmed.

      . The lower court’s order refers to Lamarr Hildenbrandt as the child’s paternal grandfather; however, it is clear that he is the child’s maternal grandfather.


text:
    475 A.2d 141
    COMMONWEALTH of Pennsylvania v. Charles DICKENS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1983.
    Filed April 27, 1984.
    Petition for Allowance of Appeal Denied Aug. 16, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

On April 18, 1979, Charles Dickens was sentenced to serve IIV2 to 23 months in prison for voluntary manslaughter and was placed on probation for a consecutive period of five years for possession of an instrument of crime. He was granted early parole on November 14, 1979. On March 19, 19,80, while still on parole, Dickens was arrested and charged with assault, recklessly endangering another person and endangering the welfare of a child arising out of an incident of child abuse. He was convicted following trial on October 27, 1981. Post-trial motions were denied, and sentence was imposed on May 3, 1982. A detainer for violating parole and probation was heard on June 22, 1982. As a result, Dickens’ parole on the voluntary manslaughter conviction was revoked; his probation on the conviction for possessing an instrument of crime was also revoked, and Dickens was sentenced to prison for not less than two and one-half years nor more than five years, to be served after the sentence imposed for the new offenses and consecutive to his backtime for violation of parole.

On direct appeal from the order revoking parole and probation, Dickens contends (1) that his revocation hearing was not held as speedily as possible, and (2) that the new offenses had occurred before he began serving his probation and, therefore, did not constitute a violation of probation. We find no merit in these contentions and, therefore, affirm the order of the trial court.

Pa.R.Crim.P. 1409 requires that a hearing to revoke probation or parole shall be held “as speedily as possible.” This rule “does not establish a presumptive period within which the Commonwealth must revoke probation or parole and the Superior Court has refused to establish such a prophylactic rule. Rather, this Court has held that the time period referred to in Rule 1409 is a ‘reasonable time.’ ” Commonwealth v. Kane, 315 Pa.Super. 212, 217-18, 461 A.2d 1246, 1249 (1983) (citations omitted). See also: Commonwealth v. Sanders, 303 Pa.Super. 139, 141, 449 A.2d 617, 618 (1982); Commonwealth v. Nance, 290 Pa.Super. 312, 319, 434 A.2d 769, 772 (1981); Commonwealth v. Johnson, 277 Pa.Super. 88, 91, 419 A.2d 674, 675-676 (1980); Commonwealth v. Ruff, 272 Pa.Super. 50, 55, 414 A.2d 663, 665 (1979). “Where, as here, a probation [or parole] revocation hearing is deferred pending a determination of the underlying criminal charge, ... the revocation hearing must be held with reasonable promptness following [such] determination.” Commonwealth v. Burrell, 497 Pa. 367, 371, 441 A.2d 744, 746 (1982). See also: Commonwealth v. Sanders, supra, 303 Pa.Super. at 141, 449 A.2d at 618; Commonwealth v. Reed, 277 Pa.Super. 94, 100-101, 419 A.2d 677, 680 (1980); Commonwealth v. Young, 262 Pa.Super. 253, 256, 396 A.2d 741, 742 (1978); Commonwealth v. Waters, 252 Pa.Super. 357, 360, 381 A.2d 957, 959 (1977). “To determine the reasonableness of the delay, the court examines three factors: the length of the delay, the reasons for the delay, and the prejudice to the defendant as a result of the delay.” Commonwealth v. Kane, supra, 315 Pa.Super. at 217-18, 461 A.2d at 1249, quoting Commonwealth v. Nance, supra 290 Pa.Super. at 319, 434 A.2d at 772. See also: Commonwealth v. Dubuisson, 303 Pa.Super. 145, 147, 449 A.2d 620, 621 (1982); Commonwealth v. Gaus, 300 Pa.Super. 372, 375-376, 446 A.2d 661, 663 (1982); Commonwealth v. Ballard, 292 Pa.Super. 129, 134, 436 A.2d 1039, 1041 (1981); Commonwealth v. Honeyblue, 276 Pa.Super. 107, 110-111, 419 A.2d 118, 119-120 (1980); Commonwealth v. Smith, 266 Pa.Super. 234, 237, 403 A.2d 1326, 1328 (1979).

The revocation hearing in the instant case was held almost eight months after appellant had been convicted of new offenses and seven weeks after post-trial motions had been denied and sentence imposed. The delay did not represent a deliberate attempt by the Commonwealth to hamper the defense or prejudice appellant. It resulted from the time required to dispose of post-trial motions filed by appellant following the convictions on new charges. In addition, a revocation hearing set for May 11, 1982 was continued when it was learned that appellant had been transferred to the State Correctional Institution at Grater-ford and arrangements had not been made to have him brought to court for hearing.

This Court has previously said that “the period of delay is to be measured from the date of conviction, not from the resolution of post-trial motions.” Commonwealth v. Ruff, supra 272 Pa.Super. at 55 n. 5, 414 A.2d at 666 n. 5. See also: Commonwealth v. Williams, 254 Pa.Super. 202, 207 & n. 4, 385 A.2d 979, 982 & n. 4 (1978); Commonwealth v. Jones, 250 Pa.Super. 116, 119 n. 1, 378 A.2d 481, 482 n. 1 (1977). Where the delay has been caused to permit sentencing on the later conviction, however, that fact may be considered in determining whether the delay was unreasonable. Commonwealth v. Long, 264 Pa.Super. 465, 400 A.2d 179 (1979).

The primary purpose for requiring a prompt revocation hearing, it has been said, is to “prevent the loss of essential witnesses or documentary evidence and to prevent unnecessary incarceration or other limitations on personal liberty.” Commonwealth v. Ballard, supra 292 Pa.Super. at 136-137, 436 A.2d at 1043. See also: Commonwealth v. Williams, supra 254 Pa.Super. at 209, 385 A.2d at 983; Commonwealth v. Jones, supra 250 Pa.Super. at 121, 378 A.2d at 483. In the instant case, appellant has shown no prejudice as a result of delay in holding the revocation hearing. He does not contend that he has been deprived of a witness or evidence that would have enabled him to offer a defense. Moreover, the delay has caused no unnecessary or additional incarceration. Appellant has suggested that delay foreclosed “the possibility of having the sentence on the new charge run concurrently with the sentence imposed as a result of the revocation hearing.” This contention is entirely speculative; it is not probative of prejudice. See and compare: Commonwealth v. Jones, 260 Pa.Super. 43, 393 A.2d 1003 (1978).

In the absence of prejudice, recent decisions of this Court have held comparable periods of delay reasonable and not violative of Pa.R.Crim.P. 1409. See: Commonwealth v. Pelzer, 319 Pa.Super. 282, 466 A.2d 159 (1983) (10 months); Commonwealth v. Kane, supra (8 months); Commonwealth v. Johnson, supra (7 months, 24 days). But compare: Commonwealth v. Boykin, 270 Pa.Super. 592, 411 A.2d 1244 (1979); Commonwealth v. Darby, 244 Pa.Super. 331, 368 A.2d 746 (1976); Commonwealth v. Jones, 242 Pa.Super. 558, 364 A.2d 414 (1976). We conclude, therefore, that the delay in the instant case was not unreasonable and does not compel reversal.

The fact that appellant had not commenced serving probation when the new offense occurred did not prevent the court from revoking its prior order placing appellant on probation. A similar issue was before this Court in Commonwealth v. Wendowski, 278 Pa.Super. 453, 420 A.2d 628 (1980) (allocatur denied December 19, 1980). The Court there held that for revocation purposes the term of probation included the time beginning when probation was granted. The Court said:

If, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation, he should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation and that the granting of the same would not be in subservience to the ends of justice and the best interests of the public, or the defendant, the court could revoke or change the order of probation. A defendant on probation has no contract with the court. He is still a person convicted of crime, and the expressed intent of the Court to have him under probation beginning at a future time does not “change his position from the possession of a privilege to the enjoyment of a right.” Burns v. United States, 287 U.S. 216, 222, 53 S.Ct. 154, 156, 77 L.Ed. 266, 269 (1932).

Id., 278 Pa.Superior Ct. at 456, 420 A.2d at 630 (emphasis in original), quoting James v. United States, 140 F.2d 392, 394 (5th Cir.1944) (Waller, J. concurring). See also: Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); United States ex rel. Sole v. Rundle, 435 F.2d 721 (3rd Cir.1971); Annot., 22 A.L.R. 4th 755 (1983).

Appellant argues strenuously that Wendowski was incorrectly decided. We are not so persuaded. The principles relied upon by the Court are valid; they have not been repudiated by the procedural due process protections more recently accorded probation and parole revocation proceedings. See: Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Although the “right”-“privilege” distinction is ho longer accepted under a due process analysis, the essential purposes of probation remain unchanged.

Similarly, the decision in Wendowski is not contrary to statutory law in Pennsylvania. The provisions of 42 Pa.C.S. § 9771(b), which authorize a court to “revoke an order of probation upon proof of the violation of specified conditions of the probation,” do not prevent revocation for violation of a condition which occurs prior to the specific probation being revoked. The commission of a new crime violates an implied condition of the order imposing probation. See: Commonwealth v. Mallon, 267 Pa.Super. 163, 167, 406 A.2d 569, 571 (1979); Commonwealth v. Martin, 262 Pa.Super. 113, 119 n. 7, 396 A.2d 671, 674 n. 7 (1978). It suggests that probation is not an effective tool by which to deter anti-social conduct and achieve rehabilitation. If the new offense is committed at any time before the maximum period of probation has been completed, probation may be revoked.

The revocation order and judgment of sentence are affirmed.

SPAETH, President Judge, concurs in the result.


text:
    475 A.2d 145
    COMMONWEALTH of Pennsylvania v. Ronald Gene MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed April 27, 1984.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Ronald Gene Miller was tried before a jury which found him guilty of disorderly conduct and resisting arrest. Post-verdict motions were denied, and Miller was sentenced to pay a fine of $100.00 and was placed on probation for concurrent terms of one year. On direct appeal, he does not contest the conviction for disorderly conduct. However, he does contend that the evidence was insufficient to support a conviction for resisting arrest. He also contends that the trial court erred in denying three points for charge which related to that part of the definition of resisting arrest which requires that police be engaged in making a lawful arrest. We find no merit in these contentions and will affirm the judgment of sentence.

Resisting arrest has been made a misdemeanor of the second degree by Section 5104 of the Crimes Code. The offense is committed when

“... with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, [a] person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.”

The intent of this section is “to confine the offense to forcible resistance that involves some substantial danger to the person.” S. Toll, Pennsylvania Crimes Code Annotated § 5104 (1974), quoting Model Penal Code Comment, Tent. Draft No. 8, pp. 129-130. As a general rule, therefore, it is not criminal merely to “flee arrest.” However, “where the circumstances of the flight expose the pursuing officers to substantial danger” a conviction for resisting arrest is proper. Id. The statute, it is clear, does not require the aggressive use of force such as a striking or kicking of the officer. A person resists arrest by conduct which “creates a substantial risk of bodily injury” to the arresting officer or by conduct which justifies or requires “substantial force to overcome the resistance.”

In determining whether the evidence was sufficient to sustain appellant’s conviction, we must view the evidence in the light most favorable to the Commonwealth and, drawing therefrom all proper inferences which the jury could reasonably have drawn, determine whether the evidence was sufficient to prove all elements of the crime beyond a reasonable doubt. Commonwealth v. Contakos, 492 Pa. 465, 468, 424 A.2d 1284, 1286 (1981); Commonwealth v. Leatherbury, 822 Pa.Super. 222, 226, 469 A.2d 263, 265 (1983); Commonwealth v. Frank, 322 Pa.Super. 6, 10, 468 A.2d 1131, 1133 (1983).

In the instant case, the evidence showed that the Manheim Township Police had been summoned to the Broad Axe Inn by its owner, John McPeake, because of a disturbance caused by appellant, his brother and several companions. When police arrived, they found appellant and his brother shouting obscenities. When appellant and his brother began to berate and curse at the police officers, they were ordered to leave the bar. They complied, but a discussion continued between appellant, his brother and the police outside in the parking lot. There, appellant was told that he would be cited for disorderly conduct. A scuffle ensued. When McPeake emerged from the inn, he found that “everything had broken loose. . . . They were attacking the police officers. Police officers were trying to get them in the cars. It was just one big fight outside. . . . At that time I didn’t think the police officers could handle it. I came back inside and called in again. I just said on the phone that the police needed assistance. When I went back outside there must have been ... ten police cars out there. . . . There was police all over, and they still — even with all the police there it was so bad they still couldn’t get them in the cars.... ”

John McEwen, a township police officer, told appellant in the parking lot that he would be cited for disorderly conduct, that he would be frisked, and that he would be released as soon as a citation had been prepared. Appellant yelled that he was being arrested to his brother, who was with Officer McCurdy, another policeman, in another portion of the parking lot. Appellant then began to struggle with McEwen. When McEwen, assisted by Lt. Rager, attempted to grab and pinion his arms, appellant struggled by flailing his arms and by moving the upper part of his body horizontally back and forth in a rapid manner which the policeman demonstrated to the jury. Appellant also attempted to “push through” McEwen to go to the aid of his brother who had begun to struggle with McCurdy. McEwen and Lt. Rager then attempted to place handcuffs on appellant, but he resisted their efforts by “straining” against them with his arms and the upper part of his body. He continued to struggle as the police officers attempted to place him in the rear of a police car. To get him in the car, police found it necessary to lift appellant from the ground and physically push him into the rear of the police vehicle. As a result of the struggle, McEwen received a bruise of his lower right leg.

This testimony, which a jury found credible and elected to believe, demonstrated that appellant had committed the physical act proscribed by Section 5104 of the Crimes Code. He had resisted the police by means which required substantial force to overcome and had created a substantial risk of bodily injury to the police. He did so, moreover, with the intent of preventing the police from effecting a lawful arrest and from discharging their duty of restoring order and maintaining the peace.

The three points for charge submitted by appellant’s counsel and refused by the trial court have not been preserved; they are not a part of the record on appeal. According to the brief filed by appellant in this Court, those points would have permitted the jury to find that the police were not making a lawful arrest if the jury believed the police intended only to cite appellant for the summary offense of disorderly conduct. This argument is patently without merit. In the first place, this Court has held that “[t]he trial judge [is] not required to place the question of the lawfulness of the appellant’s arrest before the jury, that being a matter [of law for the court] which is subject to our review.” Commonwealth v. Franklin, 248 Pa.Super. 145, 154, 374 A.2d 1360, 1365 (1977); Commonwealth v. Stortecky, 238 Pa.Super. 117, 120, 352 A.2d 491, 492 (1975). See also: Commonwealth v. Miller, 303 Pa.Super. 504, 508, 450 A.2d 40, 41 (1982). Secondly, an arrest was proper under the circumstances of this case, even if appellant’s only offense had been summary in degree. See: Commonwealth v. Alford, 321 Pa.Super. 257, 467 A.2d 1351 (1983); Pa.R.Crim.P. 51 A(3)(c). Finally, in the instant case, the loud, obscene and belligerent conduct of appellant and his companions imposed upon the police an additional obligation to act so to restore order and preserve the peace. Appellant’s conduct, it could be found, was intended to prevent the police from discharging that duty.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 5503(a).

      . 18 Pa.C.S. § 5104.

      . The fine was imposed for resisting arrest only.

      . There is dictum in several prior decisions of this Court from which it can be inferred that we deem it an essential element of the crime of resisting arrest that the actor strike or kick the arresting officer. See: Commonwealth v. Eberhardt, 304 Pa.Super. 222, 450 A.2d 651 (1982) (Wieand, J., dissenting); Commonwealth v. Rainey, 285 Pa.Super. 75, 426 A.2d 1148 (1981) (Watkins, J., dissenting). Such an interpretation of the statute is contrary to the express language thereof. We decline to follow that dictum in the instant case.


author: CIRILLO, Judge:

text:
    475 A.2d 147
    FRANKFORD TRUST COMPANY, Appellant, v. STAINLESS STEEL SERVICES, INC. and Philadelphia Iron Works Corporation and Albert D. Stewart, Jr., Albert D. Stewart, III, and Martha E. Stewart.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed April 27, 1984.
    Petition for Allowance of Appeal Denied Aug. 7, 1984.

      John S. Bevan, Paoli, for appellant.
    Steven H. Berkowitz, Philadelphia, for appellees.
    Before CAVANAUGH, McEWEN and CIRILLO, JJ.
   CIRILLO, Judge:

On September 1, 1981, appellant, Frankford Trust Company (hereinafter referred to as “Frankford”) entered a confession of judgment against appellees, Stainless Steel Services, Inc., Philadelphia Iron Works Corp., Albert D. Stewart, Jr., Albert D. Stewart, III, and Martha E. Stewart (hereinafter collectively referred to as “Stainless”) in the amount of $70,706.25. Shortly after receiving notification of the entry of judgment, Stainless filed a petition to open or strike judgment with the Court of Common Pleas, Philadelphia County. After subsequent responsive pleadings were filed, Stainless, by praecipe, set the matter down for argument. On May 6,1982, the Honorable Herbert R. Cain, Jr., granted Stainless’s petition and opened the confessed judgment. This appeal followed.

On appeal, Frankford contends that the trial court abused its discretion in opening the judgment. After a review of the record, we conclude that the trial court acted properly.

On or about August 27, 1980, Stainless entered into a lease agreement with Commercial Leasing Company (hereinafter referred to as “Commercial”) for the leasing of certain heavy duty polishing equipment. Under the terms of the agreement, Stainless agreed to make monthly rental payments to Commercial, and further authorized Commercial to obtain a confession of judgment in the event of default. Although the lease was plain and unconditional on its face, Stainless alleges that Commercial had orally agreed to condition the agreement upon the equipment’s satisfactory operation in Stainless’s factory. According to Stainless, the equipment did not perform satisfactorily and, as a result, Commercial agreed to the return of the equipment and Stainless’s release from further obligation. The agreement to allow for the return of the equipment allegedly occurred in October. The record indicates that the equipment was in fact crated and shipped back to the manufacturer on or about December 22, 1980. Stainless did not make any rental payments thereafter.

While these developments transpired, Commercial had already assigned the lease to Frankford back on August 28, 1980. The record shows that Commercial notified Stainless by letter dated November 26, 1980 that the lease had been “assigned for processing” and that all future rental payments were to be made to Frankford. When Stainless returned the equipment to the manufacturer and thereafter failed to pay rent, Frankford, as assignee of the lease, entered a confessed judgment against Stainless. Frankford appeals from the opening of that judgment.

In order to open a confessed judgment, the judgment debtor must act promptly, allege a meritorious defense, and present sufficient evidence of the defense to require submission of the issues to a jury. First National Bank of Fryburg v. Kriebel, 311 Pa.Super. 428, 457 A.2d 961 (1983); Society Hill Towers Owners Ass’n. v. Matthew, 306 Pa.Super. 13, 451 A.2d 1366 (1982); Price v. Geller, 292 Pa.Super. 455, 437 A.2d 763 (1981). Instantly, there is no question raised as to whether Stainless acted promptly in pursuing this matter. Our review focuses on whether a meritorious defense exists and whether Stainless has presented sufficient evidence in support of such defense.

Among the defenses to the entry of judgment asserted by Stainless is the argument that the original parties had agreed to abrogate the lease agreement and to release Stainless from its duties thereunder. Such discharge of contractual obligation, if agreed to by both Stainless and Commercial before notice of assignment, would establish a binding and meritorious defense against Frank-ford’s claim as assignee. Under the Pennsylvania Uniform Commercial Code and as a settled principle of contract law an “assignor [Commercial] retains his power to discharge or modify the duty of the obligor [Stainless] ... [until] the obligor receives notification that the right has been assigned and that performance is to be rendered to the assignee [Frankford].” Restatement of Contracts, (Second) § 838. 13 Pa.C.S. § 9318; See also, Provident Trust Co. v. Metropolitan Casualty Ins. Co., 152 F.2d 875 (3rd Cir. 1945); First National Bank of Bangor v. Bangor Trust Co., 297 Pa. 115, 146 A. 595 (1929); Burger v. Freedom Twp., 126 Pa.Super. 128, 190 A. 387 (1937); 4 Corbin on Contracts, § 890; 3 Williston on Contracts, § 433 (3rd Ed. 1970).

The important question, therefore, is whether Stainless produced sufficient evidence of its asserted defense to warrant the opening of judgment. Is there sufficient evidence that the lease agreement was abrogated and Stainless excused from its duty to pay rent? Is there sufficient evidence that such discharge of contractual obligation, if any, occurred before Stainless was notified that Commercial had assigned the lease to Frankford?

With regard to proof of the asserted defense, our rules provide that the “court shall dispose of [the motion to open judgment] on petition and answer, and on any testimony, depositions, admissions and other evidence.” Pa.R.C.P. 2959(e). “The judgment should be opened where the evidence produced would be sufficient to prevent a directed verdict against” the moving party at trial. Corson v. Corson’s, Inc., 290 Pa.Super. 528, 533, 434 A.2d 1269, 1272 (1981) (quoting Greenwood v. Kadoich, 239 Pa.Super. 372, 375, 357 A.2d 604, 606 (1976). Thus, “in weighing the sufficiency of [the] evidence, the facts must be viewed in the light most favorable to the petitioner and the Court must accept as true all evidence and proper inferences therefrom supporting petitioner’s defense, and must reject the adverse allegations of the opposition.” Greenwood v. Kadoich, supra, 239 Pa.Superior Ct. at 376, 357 A.2d at 606.

Although no depositions were taken, Stainless did present the trial court with certain documentary evidence. This evidence viewed in a light most favorable to Stainless as the moving party supports the inference that the lease agreement was rescinded or revoked by the original parties prior to the time Stainless received notification that the lease had been assigned. The record suggests that Stainless did not receive notice of the assignment to Frankford until, at the earliest, November 26, 1980. According to Stainless, however, Commercial agreed in October to release Stainless from its contractual obligations if Stainless returned the equipment to the manufacturer. As indicated by several correspondences and bills of lading proffered by Stainless, we know that the equipment was returned on December 22, 1980. (Record at 42a, 45a). From these circumstances, we conclude that the finder of fact could reasonably infer that the equipment was returned only after Commercial had agreed to discharge Stainless from further obligation under the lease.

In so holding, we reject Frankford’s argument that a “waiver of defenses” clause in the lease agreement precludes Stainless from defending against Frankford’s claim. The relevant clause in the lease agreement provides, in pertinent part, that the “Lessee is precluded from asserting against any Assignee of Lessor any defense ... which Lessee may have or acquire against Lessor." (Emphasis added) (Record at 8a). This clause bars Stainless from asserting against Frankford any defense which it may have against Commercial. It does not preempt Stainless from raising any arguments it might have with respect to the assignment itself nor does it prevent Stainless from asserting defenses it may have against Frankford directly.

The contention that Stainless was discharged from its obligations under the lease (prior to receiving notice that the lease had been assigned) is a direct defense against Frankford’s claim. Generally, an assignee remains at the peril of the subsequent dealings between the original parties until adequate notice of the assignment is given to the obligor. 13 Pa.C.S. § 9318(b); First National Bank of Bangor v. Bangor Trust Co., supra; Burger v. Freedom Twp., supra; See, Gilmore, Assignee of Contract Rights, 74 Yale L.J. 217 (1974). If Commercial and Stainless in fact agreed to the rescission or revocation of the lease, Prank-ford would have to look to Commercial for its sole remedy. Corbin on Contracts, § 890. Frankford cannot obtain a judgment for unpaid rent from Stainless if the duty to pay rent had been discharged.

Finally, we reject Frankford’s contention that all of Stainless’s possible defenses are eviscerated by the parol evidence rule. The questions of rescission or revocation, at issue here, are not problems of contract interpretation to which the parol evidence rule applies. The parol evidence rule does not apply to matters subsequent to the contract. Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968); House of Pasta, Inc. v. Mayo, 303 Pa.Super. 298, 449 A.2d 697 (1982).

In sum, we conclude that there is sufficient admissible evidence of a meritorious defense to avert a directed verdict against Stainless. Accordingly, we hold that the trial court acted properly in opening the confessed judgment.

Order affirmed.

      . Act of November 1, 1979, P.L. 255, No. 86, § 1, effective January 1, 1980; as amended, November 26, 1982, P.L. 696, No. 201, § 1, effective in 180 days.

      . Because of the possibility that Stainless’ contractual obligations were discharged prior to any communication concerning assignment, we need not consider the adequacy of the November 26 notice.


author: BROSKY, Judge:

text:
    475 A.2d 151
    Eugenia LYONS, Appellant v. PORT AUTHORITY OF ALLEGHENY COUNTY.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1984.
    Filed May 4, 1984.

      E.J. Strassburger, Pittsburgh, for appellant.
    Allan J. Opsitnick, Pittsburgh, for appellee.

      Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from the judgment entered in the Court of Common Pleas of Allegheny County on an award of a Board of Arbitrators. Appellant contends that the Court of Common Pleas, in an order made prior to compulsory arbitration of the case, erred in denying her motion for summary judgment. We conclude that we do not have jurisdiction over this appeal and, accordingly, quash it.

On April 9, 1980, appellant filed a complaint against appellee in the Court of Common Pleas of Allegheny County. The complaint was answered and, after some discovery was conducted, appellant filed a motion for partial summary judgment. This motion was denied on January 20, 1982 by a court en banc.

After further discovery, the case was listed for a jury trial in May, 1982. A pretrial conciliation was then held, at which time the case was ordered to be transferred to a Board of Arbitration. On June 8, 1982, the Arbitration Board found in favor of appellee after a hearing on the merits of the case.

No appeal to the Court of Common Pleas was taken from the arbitrators’ award. Instead appellant caused judgment on the award to be entered on August 2, 1982 and filed this appeal from that judgment on August 6, 1982.

Appellee contends that this Court lacks jurisdiction to consider the instant appeal. For the reasons that follow herein, we agree.

We note initially that 42 Pa.C.S.A. § 742 provides that:

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court (emphasis added).

We do not believe the instant appeal is from a final order of a court of common pleas. This case was submitted to compulsory arbitration pursuant to Section 7361 of the Judicial Code, 42 Pa.C.S.A. § 7361 provides in relevant part as follows:

§ 7361. Compulsory arbitration.
(a) General rule. — Except as provided in subsection (b), when prescribed by general rule or rule of court such civil matters or issues therein as shall be specified by rule shall first be submitted to and heard by a board of three members of the bar of the court.
(c) Procedure. — The arbitrators appointed pursuant to this section shall have such powers and shall proceed in such manner as shall be prescribed by general rules.
(d) Appeal for trial de novo. — Any party to a matter shall have the right to appeal for trial de novo in the court. The party who takes the appeal shall pay such amount or proportion of fees and costs and shall comply with such other procedures as shall be prescribed by general rules. In the absence of appeal the judgment entered on the award of the arbitrators shall be enforced as any other judgment of the court. For the purposes of this section and section 5571 (relating to appeals generally) an award of arbitrators constitutes an order of a tribunal, (emphasis added).

Thus, it is clear that an award of arbitrators under this section constitutes not an order of the common pleas court, but an order of a tribunal. As provided by Section 7361, the sole avenue of appeal from this order is to the court of common pleas for a trial de novo. Since the order appealed from is an order of a tribunal of arbitrators and not of a court of common pleas, we lack jurisdiction and, accordingly, the appeal must be quashed.

Appeal quashed.

      . See 42 Pa.C.S.A. § 7361; Pa.R.C.P. 1301 et seq.

      . See Pa.R.C.P. 1307.

      . We do not read the next to the last sentence of § 7361(d) to indicate otherwise. While judgment on the award of the arbitrators may be enforced as a judgment of the court, the fact remains that the order on which the judgment is entered is not an order of the court of common pleas.

      . We recognize that Pa.R.A.P. 751 governs the transfer of erroneously filed cases and provides that if an appeal is brought in a court which does not have jurisdiction of the appeal that court is not to quash the ' appeal, but to transfer the record thereof to the proper court of this Commonwealth. However, "[i]n appropriate circumstances, a court may refuse, in the interest of judicial economy to transfer a matter where that court determines that under no circumstances could the transferee tribunal grant the requested relief.” Smock v. Commonwealth, 496 Pa. 204, 208-9, 436 A.2d 615, 617-18 (1981).
      Rule 751 provides that where an appeal is transferred it "shall be treated as if originally filed in the transferee court on the date first filed ...” in the court lacking jurisdiction. Instantly, that would mean that if we transferred an appeal to the Allegheny County Court of Common Pleas, it would be treated as if it had been filed there on August 6, 1982. However, appellant had only thirty days from the date the award of the arbitrators was entered on the docket (June 8, 1982) to appeal to the court of common pleas. See Lewis v. Erie Ins. Exchange, 281 Pa.Super. 193, 421 A.2d 1214 (1980); 42 Pa.C.S.A. § 5571; Pa.R.C.P. 1307.
      Thus, an appeal filed on August 6, 1982 to the court of common pleas would be untimely and that court would lack jurisdiction to grant relief. Under these circumstances we believe the proper course of action is to quash this appeal.


author: ROBERTS, Judge:

text:
    475 A.2d 153
    Timothy McKEE & Christine McKee, H/W v. McHUGH BROTHERS and McHugh Brothers Crane Rentals and J.J. White, Inc. Appeal of McHUGH BROTHERS and McHugh Brothers Crane Rentals.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1984.
    Filed May 4, 1984.

      Hugh A. Donaghue, Media, for appellants.
    Manfred Farber, Philadelphia, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROBERTS, Judge:

Appellant is an alleged third-party tortfeasor in an action in trespass brought by an employee of appellee, pursuant to section 303 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 481 (Supp.1983). This appeal is taken from an order of the Court of Common Pleas of Delaware County sustaining appellee’s preliminary objections to appellant’s “Complaint Against Additional Defendant in Indemnity” and dismissing the complaint. We affirm.

The action in trespass avers that on December 11, 1981, plaintiff, appellee’s employee, was struck in the head by a piece of pipe being lifted in a negligent manner by a crane owned and operated by appellant. In an answer to the action and new matter, appellant alleged that the crane had been leased to and under the sole control of appellee, the plaintiff’s employer, and that plaintiff’s exclusive remedy was thus under the Workmen’s Compensation Act.

In the complaint forming the basis for this appeal, appellant averred that it is entitled to indemnity from appellee “for any award or settlement to which plaintiff may be entitled,” as well as for “counsel fees and costs.” Appellant’s claim is based on the terms of a written agreement between appellant and appellee covering the rental of the crane involved in the accident.

The written agreement, which was first executed two days prior to the accident and then renewed one day prior to the accident and again on the day of the accident itself, contains a clause which provides: “Lessee [ (appellee) ] assumes all responsibility for loss, damage and expense resulting from the operation of [the crane] either personal injury or property damage including damage or loss to the equipment leased hereby, unless such damage or loss was caused by the sole negligence of the Lessor [ (appellant) ].” Immediately preceding this clause was an additional clause in which the parties specified that “Lessor agrees to supply [the crane] and necessary personnel to operate same under direct and sole supervision of the Lessee. . . .”

Section 303(b) of the Workmen’s Compensation Act provides:

“In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions, or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action."

77 P.S. § 481(b) (emphasis supplied). In sustaining appellee’s preliminary objections, the court of common pleas held that indemnification by appellee was not “expressly provided for” in the parties’ written contract. Appellant maintains that its written agreement with appellee did “expressly provide for” indemnification by appellee, and that the court erroneously assumed that only the word “indemnification” or the like could be used to shift the responsibility for liability from appellant to appellee.

We agree with appellant that the language of the agreement which provides that appellee “assumes all responsibility for loss, damage and expense,” is sufficiently express to subject appellee to liability for indemnification, but do not agree that the agreement makes appellee liable where appellant retains control of the crane and its operator. By express language in the clause preceding the disputed indemnity clause, the parties specifically agreed that appellant’s personnel operating the crane were to be under the “direct and sole supervision” of appellee. Thus, when the parties in their written contract further agreed that appellee “assumes all responsibility for loss, damage and expense ... unless such damage or loss was caused by the sole negligence” of appellant, they intended to make appellee liable to appellant for indemnity only where appellee has control of the crane and its operator. Where, as the plaintiff has alleged here, injury is sustained while the crane and its operator are subject to the control of appellant contrary to the parties’ written agreement, it must be concluded that indemnification was not intended. See Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907) (“every presumption is against an intention to contract for immunity for not exercising ordinary diligence in the transaction of any business”).

Because the parties did not intend to make appellee liable for indemnity where injury is sustained while the crane is within appellant’s control, it must be concluded, under the plain language of section 303(b) of the Workmen’s Compensation Act, that in such an instance appellee is not liable to appellant. See Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983); Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980). And although the parties did intend to make appellee liable for indemnity where injury is sustained while the crane was within appellee’s control, it must be concluded on this record that there can be no obligation to indemnify. The express terms of section 303(b) require that.the injury to an employee bringing suit be “caused by” the alleged third-party tortfeasor. Thus it is clear that appellant is not liable to the employee for injuries sustained while the crane was within the employer’s control unless the conduct of the employer was accompanied by conduct on the part of appellant. Here, the facts and the averments of negligence against appellant center only on appellant’s alleged operation of the crane; it has nowhere been suggested that appellant was involved in any other respect. Accordingly, if the crane was, in accordance with the parties’ agreement, exclusively in the control of the plaintiff’s employer, then plaintiff’s cause of action against the alleged third-party tortfeasor fails because the injury was not caused by the third party, but rather by plaintiff’s own employer. Where the alleged third-party tortfeasor is, in fact, not liable, there can be no obligation to indemnify for liability.

Because the parties’ written contract did not make appellee liable for indemnity where the crane is controlled by appellant, and because on this record there can be no liability for indemnity where such control is exercised by appellee, the order of the court of common pleas dismissing appellant’s Complaint Against Additional Defendant in Indemnity must be affirmed.

Order affirmed.

       The record does not reveal whether plaintiff has pursued his remedies under the Act.