author: KELLY, Judge: POPOVICH, Judge

text:
    639 A.2d 1235
    COMMONWEALTH of Pennsylvania, v. Richard W. QUINLAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1993.
    Filed April 8, 1994.

      Richard Quinlan, pro se.
    James K. Vogel, Asst. Dist. Atty., Erie, for Com., appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   KELLY, Judge:

In his appeal from the March 30,1993 order denying PCRA relief, appellant asks us to determine whether the trial court erred when it entered an order on November 29, 1990, sentencing appellant to probation but making that order retroactive to May 20,1988, the date on which appellant was originally sentenced, ostensibly to correct a clerical error. The PCRA court held that the belated imposition of a probation period and its subsequent revocation were proper. Because the facts of this case and the relevant law compel a different conclusion, we reverse.

We set forth the relevant facts and procedural history of this case as follows. On May 20,1988, the original sentencing court sentenced appellant to eleven and one-half to twenty-three months in the Erie County jail on eighteen counts of forgery and related charges. The transcript of the May 20, 1988 sentencing proceedings before the Honorable William E. Pfadt states that, as part of the same sentence, appellant’s term of incarceration was to be followed by a five-year probation period. However, the signed written order embodying appellant’s sentence makes no mention of the five-year probation period. In August, 1988, the same sentencing court placed appellant on parole for the unexpired portion of the maximum term of his imprisonment. Again, no mention of the five-year probation period appears in the written order of parole. Without incident, appellant served out his term of parole which expired in April, 1990.

On September 28, 1990, five months after appellant’s parole had expired, he was arrested on new charges of forgery, theft by deception and receiving stolen property, charges substantially similar to those prosecuted against him in 1988. These offenses were construed as “probation” violations; consequently, appellant was detained. His detainer was extended by the Honorable Shad Connolly, pending appellant’s preliminary hearing on the new charges and probation revocation proceedings. The court denied appellant’s petition for dispensation of the detainer which he sought on the grounds that (1) no order of probation existed in his case; (2) he was not, in fact, serving a probationary term; and (3) therefore, the detainer was unlawful. In response, on November 29, 1990, Judge Connolly entered a written order of probation, dating that order retroactive to May 20, 1988. Thereafter, appellant sustained revocation of probation and a sentence of one to three years incarceration. Appellant’s motion to modify his sentence was denied. A timely appeal was also filed but later withdrawn. Nevertheless, at each stage of his proceedings, appellant challenged, as unlawful, the detainer and belated order of probation.

Appellant filed a pro se petition for post conviction relief under 42 Pa.C.S.A. § 9543 on January 16, 1992. The petition was amended, with the assistance of court-appointed counsel, on March 27, 1992. The PCRA court denied relief on March 30, 1992. This timely appeal followed.

Appellant raises the following issues for our review:

1. WHETHER THE LOWER COURT ERRORED [sic] IN DETERMINING PROBATIONARY ORDER ENTERED ON NOVEMBER 29,1990 BUT DATED MAY 20,1988 WAS VALID AND SUBSEQUENT REVOCATION OF SAME AND IMPOSITION OF JAIL TIME ALSO VALID?
2. WHETHER THE LOWER COURT COMMITTED A VIOLATION OF DOUBLE JEOPARDY IN ENTERING A PROBATIONARY ORDER AT A DOCKET NUMBER WHERE THE ORIGINAL SENTENCE HAD ALREADY EXPIRED?

Appellant’s Brief at 3.

Essentially, appellant’s position is that the trial court erred when it authorized detainer, pursuant to alleged violations of a probation order which did not exist, and then entered a belated probation order made retroactive to May 20, 1988, to justify the detainer. Therefore, appellant concludes, all consequences flowing from the belated probation order are a nullity. We agree because the trial court had no authority to detain appellant pursuant to a non-existent probation order or to enter a belated probation order to justify the detainer, after appellant had served his sentence, as that sentence had been embodied in two written court orders. Furthermore, appellant’s pursuit of relief is cognizable under the Post Conviction Relief Act because appellant’s primary grievance is with the trial court’s imposition of probation. The trial court had neither the jurisdiction nor the authority to impose probation in the fashion employed in this case. Consequently, appellant’s petition merits relief.

An inquiry into the validity of a sentence is a question as to the legality of the sentence, a non-waivable matter. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Ford, 315 Pa.Super. 281, 296, 461 A.2d 1281, 1289 (1983). An issue of double jeopardy which involves the illegality of a sentence is also a non-waivable issue; even if raised for the first time in a petition for post-conviction relief. Commonwealth v. Staples, 324 Pa.Super. 296, 471 A.2d 847 (1984). As well, 42 Pa.C.S.A. § 9543, which defines the eligibility requirements for PCRA relief, provides that a person may be eligible for PCRA relief if a sentence results from a proceeding in a tribunal without jurisdiction. 42 Pa.C.S.A. § 9543(a)(2)(viii); Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989).

Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if no appeal is taken. 42 Pa.C.S.A. § 5505; Commonwealth v. Kotz, 411 Pa.Super. 319, 601 A.2d 811 (1992). Generally, once the thirty-day period is over, the trial court loses the power to alter its orders. Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985). Also, when an appeal is taken, the trial court has no jurisdiction to modify its sentence. Pa. R.A.P. 1701(a); Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984).

Exceptions to these general rules exist such that, once an appeal is taken, the trial court may still have authority to proceed further in the matter. Pa.R.A.P. 1701(b). For example, the trial court may reconsider its sentence, so long as a motion for reconsideration was timely filed with, Pa.R.A.P. 1701(b)(3)(i), and expressly granted by the trial court within the thirty-day time limit prescribed for filing a notice of appeal, Pa.R.A.P. 1701(b)(3)(ii). Commonwealth v. Gordon, supra.

The power to modify a sentence in order to amend records, to correct mistakes of court officers or counsel’s inadvertencies, or to supply defects or omissions in the record is inherent in our court system. Commonwealth v. Fiore, 341 Pa.Super. 305, 491 A.2d 276 (1985). A sentencing court can, sua sponte, correct an illegal sentence originally imposed, even after the defendant has begun serving the original sentence. Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989). Where an initial punishment was procured by fraud, the trial court may decrease or increase the initial sentence. Id.; Commonwealth v. Meyer, 169 Pa.Super. 40, 82 A.2d 298 (1951). This inherent power of the court to correct obvious and patent mistakes is not eliminated by the expiration of the thirty-day appeal period. Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970). In Cole, the Pennsylvania Supreme Court explained that an order granting both a new trial and an arrest of judgment was clearly contradictory; thus, the original order was patently erroneous and could be corrected even after the thirty days had passed. Id.

An omission from an original sentence, however, is not a patent error per se. Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). In Cooper, the omission of drug therapy as a condition of parole was not considered a patent or obvious mistake even though noted at the sentencing hearing; thus, the sentence which was amended to include the parole condition and imposed more than thirty days after sentencing was unlawful and a nullity. Id. See also, Commonwealth v. Martin, supra (trial court lacked jurisdiction to modify a sentence, once the thirty-day period for filing an appeal has passed; i.e., the court lacked jurisdiction to make a concurrent sentence into a consecutive sentence five months after the original concurrent sentence had been entered); Bailey v. Commonwealth of Pennsylvania Board of Probation and Parole, 140 Pa.Cmwlth. 108, 591 A.2d 778 (1991) (common pleas court order, entered eleven to twelve months after entry of original order, retroactively modifying date on which parolee was released from county sentence, and consequently became available to begin serving back time, was a “nullity” under 42 Pa.C.S.A. § 5505).

Well-settled Pennsylvania law permits the Commonwealth to pursue a correction, modification or increase in the originally imposed sentence because no sentence is final until the right of appellate review has been exhausted or waived. Commonwealth v. Fitzhugh, 360 Pa.Super. 217, 520 A.2d 424 (1987), appeal denied, 515 Pa. 598, 528 A.2d 955 (1987); Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982). However, the rule which provides that a motion to modify a sentence must be filed with the sentencing court prior to obtaining appellate review of the sentence applies to the Commonwealth and a failure to comply with the rule constitutes a waiver of the right to appellate review. Pa.R.Crim.P. 1410; Commonwealth v. Rainey, 338 Pa.Super. 560, 488 A.2d 34 (1985); Commonwealth v. Bossche, 324 Pa.Super. 1, 471 A.2d 93 (1984); Commonwealth v. Anderson, supra. Thus, the power of the sentencing court to correct “clerical errors” regarding a sentence is bounded by considerations of timeliness on the part of the trial court, see 42 Pa.C.S.A. § 5505, and on the part of the aggrieved party, see Pa.R.Crim.P. 1410. Commonwealth v. Kubiac, 379 Pa.Super. 402, 421-22, 550 A.2d 219, 229 (1988), appeal denied, 522 Pa. 611, 563 A.2d 496 (1989).

Under Commonwealth v. Foster, 229 Pa.Super. 269, 324 A.2d 538 (1974) and its progeny, the general rule is: “Oral statements made by the judge in passing sentence, but not incorporated in the written sentence signed by [the sentencing judge], are not part of the judgment of sentence.” See also Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820 (1990) (quoting Commonwealth v. Green, 232 Pa.Super. 555, 557-58, 335 A.2d 392, 393 (1975), quoting United States ex rel. Speaks v. Brierley, 417 F.2d 597, 600 (3d Cir.1969), certiorari denied, 397 U.S. 1051, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970)) (“a sentence, like any other judgment, is to be construed so as to give effect to the intention of the sentencing judge and that to determine this intention, the court will limit itself to the language of the [written, signed and recorded judgment of sentence] despite oral statements of the sentencing judge which are not incorporated in it”); Commonwealth v. Hodge, 246 Pa.Super. 71, 81, 369 A.2d 815, 820 (1977) (an oral pronouncement of sentence is not a “sentence imposed” until incorporated in a signed written judgment). In Commonwealth v. Vanderlin, supra, the trial court recognized a sentencing error before the sentencing orders were reduced to a writing, signed and filed with the Prothonotary; the court contacted the parties and timely reconvened to rectify the sentencing error. Id, 398 Pa.Super. at 40, 580 A.2d at 830. In Commonwealth v. Hodge, supra, the sentencing court imposed sentences on some charges and suspended sentences on the remaining charges. Immediately, the prosecution urged the court to sentence the defendant on all charges. The sentencing court complied with this request. On appeal, this Court held that the revised sentencing on all charges did not constitute a violation of the Double Jeopardy Clause of the Fifth Amendment because the first oral pronouncement of sentence was not a “sentence imposed.” See also Commonwealth v. Sutton, 400 Pa.Super. 291, 583 A.2d 500 (1990), appeal denied, 528 Pa. 610, 596 A.2d 156 (1991) (remand for resentencing on all counts, where sentence on only one count had been appealed, did not violate double jeopardy clause, where aggregate sentence on resentencing did not exceed aggregate original sentence); Commonwealth v. Grispino, 361 Pa.Super. 107, 521 A.2d 950 (1987), appeal denied, 516 Pa. 617, 581 A.2d 1119 (1987) (sentence challenged on appeal by the Commonwealth may be increased without offending principles of double jeopardy).

Instantly, appellant’s sentence of eleven and one-half months to twenty-three months, as originally written, signed and recorded on May 20, 1988, is not challenged as illegal, patently contradictory, or fraudulently procured. Thus, the rules requiring timely modification of the sentence control. See 42 Pa.C.S.A. § 5505, Pa.R.Crim.P. 1410; Pa.R.A.P. 1701. No attempt was made by the Commonwealth, in this case the aggrieved party, to correct any inconsistency between the oral and written sentencing orders for over two years and five months, long after appellant’s parole was completed. The Commonwealth was obligated to petition for modification of the written sentence or suffer waiver of the issue. See Commonwealth v. Isabell, supra. Accordingly, as no order of probation existed when appellant was detained in September, 1990, the court was without jurisdiction to detain appellant for alleged violations of the non-existent probation order.

Likewise, the court was without authority to enter an order of probation on November 29,1990, making the order retroactive to May 20, 1988, assertedly to correct a “clerical error” in appellant’s original sentencing and parole orders, both of which were written, signed, recorded, and unchallenged. The time for modification of the sentence had long passed. Neither the order entering judgment of sentence nor the order of parole mentions a term of probation. The presumption that the written sentencing order is what the sentencing judge intended increases with the length of time that the written sentencing order goes unchallenged. See Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971). Therefore, a successor court which reaches back two and one-half years and allows the transcript of the sentencing proceeding to trump two written, signed, recorded, and unappealed orders acts without authority of either rule or case law. Accordingly, we conclude that the order of probation and all consequences flowing therefrom are a nullity. Appellant’s petition for post conviction relief should be granted. The retroactive probation order was erroneously entered and cannot justify an otherwise unlawful detainer. Hence, we reverse the trial court’s order denying appellant PCRA relief.

Order reversed.

POPOVICH, J., filed a dissenting opinion.

POPOVICH, Judge

dissenting.

Unlike the Majority, I do not find that the revocation of the appellant’s probation and imposition of sentence are violative of the Double Jeopardy clause, and, as a consequence, the denial of the appellant’s Post Conviction Relief Act (PCRA) petition should be affirmed.

The facts are not in dispute and reveal that the appellant pleaded guilty to eighteen counts of forgery and was sentenced as follows:

At Docket No. 457 of 1988, Count II, a term of incarceration of eleven and one-half to twenty-three months, to run concurrent with the sentence imposed at Docket No. 263 of 1988, Count I, and a consecutive term of probation for a period of five years. Counts 23 through 29, a concurrent term of incarceration of eleven and one-half to twenty-three months.

N.T. 5/20/88 at 9 (Emphasis added). The sentence of probation is consistent with the official transcript, the Clerk of Courts’ records, the notation in the Probation Office reports and the District Attorney’s documents on the case.

However, despite the oral sentence of the court, no mention was made of the period of probation when the sentence was reduced to a written order of even date. See Exhibit “T” attached to Appellant’s Brief. The reason for such an oversight appears in the subsequently filed PCRA Court Opinion at 3; to-wit:

In Erie County at the time the petitioner was originally sentenced, it was the responsibility of the Clerk of Courts to notify the Probation/Parole Department of the imposition of probation, which was then responsible for drafting an order of probation for the [sentencing] judge’s signature. In this case an order of probation was not prepared and signed until [the] Judge[, assigned to act in place of the then retired sentencing judge,] signed one on November 29,1990, to reflect the actual sentence imposed on May 20, 1988.

More specifically, it was not until the appellant had been paroled on the forgery counts, and the time under the original sentence (without compliance with the probationary term) was served, that he was detained by his probation officer for violations of probation. In fact, the appellant was incarcerated until a probation revocation hearing could be conducted.

When the appellant filed a motion to remove the detainer, on the ground that “no probation was issued in addition to the terms of incarceration on May 20, 1988,” the requested relief was denied. Further, on November 29, 1990, the court issued an order of probation retroactive to May 20, 1988 (the date of the original sentence), to reflect the actual sentence of the court.

With the issuance of the November 29, 1990, order, the appellant’s May 20, 1988, probation was revoked and he was sentenced to a term of incarceration of one to three years to be served from September 28, 1990. A motion to modify sentence was denied, an appeal therefrom was filed and withdrawn by the appellant, but a pro se PCRA petition followed. Counsel was appointed and an amended petition was filed challenging the legality of the probation revocation and subsequent sentence imposed by the court. No relief was granted and this appeal ensued claiming that the imposition of the probationary sentence, with its subsequent revocation and serving of jail time as a result thereof, was invalid and violative of the Double Jeopardy clause of the United States Constitution, Amendment V.

In resolving the issue posed, I note that, more than nine decades ago, the United States Supreme Court in Gagnon v. United States, 193 U.S. 451, 456, 24 S.Ct. 510, 511, 48 L.Ed. 745 (1904), wrote:

The power to amend its record to correct mistakes of the clerk or other officer of the court, inadvertencies of counsel, or supply defects or omissions in the record, even after the lapse of the term, is inherent in courts of justice____

Accord Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339, 341 (1970). In this jurisdiction, the power to rescind or modify a judgment of sentence is codified in 42 Pa.C.S.A. § 5505, which reads:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order -within 30 days after its entry, notwithstanding the prior termination of any term of court if no appeal from such order has been taken or allowed.

The Act of July 9, 1976, P.L. 586, No. 142, § 2.

In interpreting the predecessor to Section 5505, i.e., the Act of June 1, 1959, P.L. 342, No. 70, § 1, our Supreme Court has held that the “patently erroneous” nature of an order rendered it subject to rectification, notwithstanding that the thirty-day limitation of the Act of 1959 had expired because, “[b]oth before and since the passage of th[e] statute, a court retains its inherent power to correct any patent mistakes in its orders.” Cole, supra, 437 Pa. at 293, 263 A.2d at 341; Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820, 832 (1990) (Comment to Pa.R.Crim.P. 1410 references “the court’s inherent power to correct obvious and patent mistakes in its orders, at any time). Furthermore, a court may correct a clerk’s erroneous docket entry. Commonwealth v. Meyer, 169 Pa.Super. 40, 82 A.2d 298 (1951).

Sub judice, granted an examination of the written 1988 order does not disclose any patent mistakes (i.e., by looking on the face of the order itself) as in Cole, supra. Nonetheless, this does not foreclose the exercise of a court’s inherent power to modify or rescind an order where equity demands, even if the modification or rescission is effectuated beyond the statutory time limit. See Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209, 1210 (1989), citing Estate of Gasbarini v. Medical Center of Beaver, 487 Pa. 266, 409 A.2d 343 (1979).

In determining whether a correction is called for, we may look to the sentencing hearing where the record does indicate that the court expressly intended to impose a period of probation as an element of the appellant’s sentence. Contrast Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). Thus, the recorded sentence and that orally imposed are not consistent with each other, which would discount the possibility that the sentence originally imposed was a “slip of the tongue”. Contrast Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803, 806 (1971).

Rather, the more rational explanation for the discrepancy between the oral and written sentence is the Clerk of Courts’ failure (via the Probation Office) to draft a probation order for the court’s signature. See PCRA Court Opinion at 3, wherein it is written that:

In Erie County at the time the petitioner was originally sentenced, it was the responsibility of the Clerk of Courts to notify the Probation/Parole Department of the imposition of probation, which was then responsible for drafting an order of probation for the judge’s signature. In this case an order of probation was not prepared and signed until Judge Connelly signed one on November 29, 1990, to reflect the actual sentence imposed on May 20, 1988.

In light of the preceding, it would appear that the correct sentence was not issued as a result of a breakdown in the court’s operation. Under such circumstances, the appellant’s position is without merit since “it is fundamental that a court has the inherent power to correct such mistakes. Moreover, this power includes the power to correct mistakes affecting jurisdiction where the mistake is a result of a breakdown in the court’s operations.” Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234, 237 n. 2 (1976). Accord Commonwealth v. Rusic, 229 Pa. 587, 79 A. 140, 141 (1911); Commonwealth v. Silcox, 161 Pa. 484, 29 A. 105, 106 (1894); Sharff v. The Commonwealth, 2 Bin. 514, 515 (1810); Commonwealth v. Smith 209 Pa.Super. 487, 229 A.2d 18, 20 (1967); Commonwealth v. Burdell, 176 Pa.Super. 219, 107 A.2d 739, 743-744 (1954), rev’d on other grounds, 380 Pa. 43, 110 A.2d 193 (1955).

Whether there has been a mistake is a question for the court; and, after the passage of many years, extreme caution should be used to correct such records. Commonwealth ex rel. Paylor v. Claudy, 173 Pa.Super. 336, 98 A.2d 468, 470 (1953). Nonetheless, a court retains the inherent power to correct clerical errors, omissions or inaccuracies in a criminal record so that it may conform to the actual facts. Id.; Burdell, supra. Such correction may be made before or after the expiration of the term. Commonwealth v. Liscinsky, 195 Pa.Super. 183, 171 A.2d 560, 561 (1961) (Citation omitted); see also Vanderlin, supra; Comment to Pa.R.Crim.P. 1410 (court has inherent power to correct obvious and patent mistakes in its orders at any time).

It is not as if the appellant is being surprised by the fact that the court had imposed a 5-year term of probation in the sentence: He was present during the sentencing hearing and executed a probation agreement on August 8, 1988, with the Erie County Adult Probation/Parole Department listing the terms of his probation. See Exhibit “P” in the Appellant’s Brief; PCRA Court Opinion at 4.

Lastly, in support of the position that the appellant’s claim seeking to invalidate his violation of probation should be denied even though the written sentencing order did not indicate the imposition of a period of probation as had been stated orally by the court during the sentencing hearing, we look to Commonwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219 (1988), allocatur denied, 522 Pa. 611, 563 A.2d 496 (1989).

In Kubiac, the trial judge sentenced the appellant on October 17, 1987, but entered an order on March 17, 1988, indicating that there had been a clerical error in the order and corrected the sentence to impose a maximum of twenty years imprisonment. On appeal, the appellant claimed that the trial court violated his right to be free from double jeopardy by correcting the order of sentence, increasing the term to be served. We disagreed, and, in the course of doing so, wrote:

In this case, at the sentencing hearing, on the record, the trial court sentenced Mr. Kubiac to a twenty-year maximum term of imprisonment for each of the ... offenses. However, it is well-settled that the signed sentencing order takes precedence over oral statements of the sentencing court not incorporated into that order. It is equally clear that the sentencing court may correct clerical errors regarding a sentence. This power, is, however, bounded by considerations of timeliness on the part of the trial court, see 42 Pa.C.S.A. § 5505 (court may modify or rescind order within thirty days if no appeal is taken), and on the part of the aggrieved party, see Pa.R.Crim.P. 1410 (appellant must file motion to modify sentence within ten days). The supreme court of this Commonwealth has also indicated that that power is bounded by constitutional considerations, chiefly, double jeopardy concerns.
It would seem that our course, then, [in light of Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974); Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971); Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971) ], is to vacate the sentence calling for a mandatory twenty years imprisonment, and reinstate the sentence originally written on the indictment, which set the maximum term at ten years imprisonment. There are two factors which we must consider before deciding to reach that disposition. Firstly, Ex Parte Lange [85 U.S. 163, 21 L.Ed. 872 (1873) ], the Supreme Court case upon which Allen, and therefore Brown and Thomas, rely, has since been limited to its facts by that Court. In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Supreme Court held that Lange did not state a blanket rule that the trial judge could never increase a sentence if the defendant had begun to serve that sentence. Id. at 138-39, 101 S.Ct. at 438-39. A panel of this court in Commonwealth v. Adams [350 Pa.Super. 506, 504 A.2d 1264 (1986) ], supra, has pointed out that the Supreme Court’s decision in DiFrancesco throws into some doubt the rationale and holding in both Allen and Thomas, and has accepted the less expansive reading of the double jeopardy rule espoused by the DiFrancesco Court. The Adams court held that the error in recording sentences on the wrong bills of indictment was clerical, and therefore could be corrected. Adams, 350 Pa.Super. at 513, 504 A.2d at 1268, relying on Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983) (trial court incorrectly sentenced appellant to three inchoate offenses which merged with ultimate crime, correction of sentence did not result in double jeopardy because merely substituting new sentences for vacated sentence) and Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977) (trial court found offenses to merge which did not, permitting trial court to correct error of law did not increase punishment, but merely modified sentence to base it on valid conviction). Further, although the Adams court stated, in dicta, that an increase in sentence would violate the double jeopardy clause, id., it is not clear that that is the case here. We do not agree that the correction here increases the sentence. The sentence given and recorded at the sentencing hearing was five to twenty years on the involuntary deviate sexual intercourse counts, and Mr. Kubiac was aware of that fact, as is evident from his untimely motion to reconsider sentence.
Secondly, while the supreme court in Broum did note that the thrust of the Allen opinion was toward a prophylactic rule, id., to apply that rule here would be illogical. In Allen, the trial court attempted to change a sentence orally given, and written on the indictment. Id. [443 Pa.] at 104, 277 A.2d at 806. Brown involved a similar scenario. Brown, 455 Pa. at 275, 314 A.2d at 507-508. Here, the sentence was stated initially at twenty years maximum on both counts of involuntary deviate sexual intercourse. This is reflected by the record of the sentencing hearing, the judge’s notes, the court reporter’s notes, and the notes of the institution. Further, in his untimely motion for reconsideration of sentence, Mr. Kubiac stated that his sentence was ten to forty years imprisonment. With such documentation, no abuse is possible. We are not dealing with a “slip of the tongue” on the part of the sentencing judge, as were the Allen and Brown courts. We believe that the remarks of the Allen court stating that to allow corrections would be against public policy and that “ ‘[t]he possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners,’” Allen, 443 Pa. at 105, 277 A.2d at 807 (quoting United States v. Sacco, 367 F.2d 368, 370 (2nd Cir.1966), have no relevance here.
While we are aware that the trial judge had signed the order, and therefore ideally should have known of the error, we believe that to make such a decision contravenes common sense, and creates an injustice. “The same may be said here as was said of the appellant in [Commonwealth v.] Bailey [, 250 Pa.Super. 402, 378 A.2d 998 (1977) ]: He would receive an undeserved windfall if the trial court could not correct its sentence. It would be undeserved because it would be based on a clerical error — the trial court’s mistake in correcting its order____” Adamss 350 Pa.Super. at 513, 504 A.2d at 1268. We cannot accept the reasoning in Thomas that an oral sentence which is on the record, written incorrectly by the clerk of courts, and then corrected by the trial judge, is not a clerical error. The error here was clearly a clerical one, and subject to correction under Commonwealth v. Meyer, supra.

379 Pa.Super. at 421-26, 550 A.2d at 229-231 (Citations omitted in part; emphasis added).

As in Kubiac, the sentence here was altered beyond the thirty-day period provided for by 42 Pa.C.S.A. § 5505. Likewise, in both cases the record of the sentencing hearing, the court reporter’s notes and the notes of the institution (here we additionally have the records of the Clerk of Courts and the Adult Probation/Parole Department and the appellant’s signature on a probation agreement with the Department), all pointing to the correct sentence.

It was a clerical error that needed to be remedied in Kubiac, while instantly we have a breakdown in the court’s operation (with the Clerk of Courts and Probation Department not carrying out their roles in providing the sentencing court with a probation order) which requires rectification. Not to allow the court’s correction of the record would be at odds with Kubiac’s logic, not to mention the precept allowing a court to correct a record through its traditional inherent power. Neither point is violative of the Double Jeopardy clause.

“The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”

Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011, 1014 (1982). This would be the effect, a wind-fall for the appellant, with the Majority’s result.

Therefore, in light of the preceding, I would affirm the order of the PCRA court. To the extent that the Majority concludes otherwise, I respectfully dissent.

      . 18 Pa.C.S.A. § 4101.

      . The Honorable William E. Pfadt had retired from the bench prior to this time. Appellee’s Brief at 3.

      . Appellant’s court-appointed counsel withdrew the appeal. The reason for the withdrawal is unclear. The record states that counsel withdrew the appeal because the verified statement was not correct and counsel was uncertain whether to pursue the appeal. Appellant claims he expected the appeal to go forward. Counsel asserts that he withdrew the appeal on appellant’s directive. In any event, there does not appear to be any outstanding appeal in this matter, as the Commonwealth has suggested.

      . The protections afforded by the Double Jeopardy Clause of the United States Constitution and the Pennsylvania Constitution are coextensive, involving the same meaning, purpose and end. Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988); Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986). This clause protects against multiple prosecutions for the same offense after acquittal and against multiple punishments for the same crime. Commonwealth v. Arriaga, 422 Pa.Super. 52, 618 A.2d 1011 (1993); Commonwealth v. Rightley, 421 Pa.Super. 270, 617 A.2d 1289 (1992). An order placing a defendant on probation is a punishment for double jeopardy purposes. Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702 (1992). The "expectation of finality” inherent in double jeopardy considerations is present once an appeal is concluded or the time for appeal has expired. Commonwealth v. Jones, supra (citing United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)); see also Commonwealth v. Sojourner, supra.

      . In the present case, appellant challenges the retroactive imposition of probation, principally, and all proceedings incident thereto. As such, Commonwealth v. Grier, 410 Pa.Super. 284, 599 A.2d 993 (1991), appeal denied, 530 Pa. 639, 607 A.2d 250 (1992) (holding that a challenge to probation revocation is not cognizable under 42 Pa.C.S.A. § 9543, the Post Conviction Relief Act) is inapposite.

      . The Double Jeopardy clause of the Fifth Amendment is applicable to the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).


source: Caselaw Access Project

author:
HOFFMAN, Judge.
      JOHNSON, Judge,

license: Public Domain

text:
    639 A.2d 1245
    Thomas and Etta Mae BROWN, H/W, v. PHILADELPHIA ASBESTOS CORPORATION, GAF Corporation, Raymark Industries, Inc., Southern Textile, Garlock, Inc., Fibreboard Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Celotex Corporation, J.P. Stevens and Company, Inc. and Owens-Illinois Glass Co. Appeal of FIBREBOARD CORPORATION. Thomas BROWN and Etta Mae Brown, H/W v. PACOR, INC., Eagle Picher Industries, Keene Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Celotex, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Forty-Eight Insulation, Inc. and Raymark, Inc. Appeal of KEENE CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 9, 1993.
    Filed April 11, 1994.

      David A. Cohen, Philadelphia, for appellant Fibreboard and appellant Keene Corp.
    Steven J. Cooperstein, Philadelphia, for appellees Brown.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from the July 22, 1992 order denying appellants’, Fibreboard Corporation and Keene Corporation, motions for judgment n.o.v., new trial and/or remittitur. Appellant Keene Corporation (hereinafter “Keene”) presents one issue for our consideration:

Whether the Trial Court erred in failing to grant defendant Keene Corporation’s motion for non-suit and directed verdict ... on the ground that plaintiffs sole alleged asbestos-related condition, non-impairing pleural thickening, was not compensable as a matter of law.

Keene’s Brief at i. Appellant Fibreboard Corporation (hereinafter “Fibreboard”) presents the following issues:

1. Does the law of Pennsylvania permit a plaintiff to recover damages on the basis of plaintiffs counsel’s fear, as expressed in his summation, that the defendant may be bankrupt in the future and therefore not answerable for damages should the jury fail to award damages presently?
2. Does the law of Pennsylvania permit a plaintiff to recover damages for physical pain and suffering where the plaintiff has failed to allege any such damages?
3. Whether the court below erred in denying Fibreboard’s Motion for New Trial on the grounds that the amount of the jury’s award was not supported by the evidence and was arbitrary and capricious?
4. Whether the court below committed an error of law in denying Fibreboard’s Motion for Remittitur?

Fibreboard’s Brief at i. For the reasons that follow, we stay in part, reverse in part and vacate in part.

Appellees, Thomas and Etta Mae Brown, filed a complaint on July 22,1982, against appellants, Keene and Fibreboard, et al, to recover for injuries arising out of Mr. Brown’s occupational exposure to asbestos. The case was consolidated with two other similar actions filed by James Didio and John Andrews. A joint trial commenced before the Honorable Charles Wright and a jury, with the damage stage preceding the liability determination. The jury determined that Mr. Brown suffers from asbestos-caused pleural thickening and awarded appellees damages in the amount of four hundred thousand dollars. Keene and Fibreboard stipulated that their shares of liability for appellees’ damages would be one-seventh and one-sixth respectively. Post-trial motions were filed and denied. This timely appeal followed.

On December 3,1993, Keene Corporation filed a bankruptcy petition under 11 U.S.C. § 301 in the United States Bankruptcy Court for the Southern District of New York. In light of the automatic stay provisions of the United States Bankruptcy Code, we must preliminarily determine whether this court may address the merits of Keene’s appeal.

11 U.S.C. § 362(a)(1) provides as follows:

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]

Id.

We point out that this stay includes “appeals in actions that were originally brought against the debtor, regardless of whether the debtor is the appellant or the appellee.” Borman v. Raymark Industries, Inc., 946 F.2d 1031, 1033 (1991). Moreover, the stay may not be waived by either creditor or debtor. Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1206 (3rd Cir.1991). Finally, “[t]he automatic stay’s effect on judicial proceedings against the debtor does not depend upon whether the court finds for or against the debtor.” Id.

As Keene’s appeal arises from an action brought against Keene before the filing of his bankruptcy petition, we must stay Keene’s appeal pending the conclusion of the bankruptcy proceedings. Moreover, as the automatic stay applies only to the bankrupt debtor, we must sever Keene from the instant appeal. See 11 U.S.C. § 362(a). See also Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d at 1205. Accordingly, we will proceed with the merits of Fibreboard’s claims.

Fibreboard contends that the trial court erred in failing to grant its motions for directed verdict as appellees failed to allege any damages for pain and suffering. Specifically, Fibreboard argues that as Mr. Brown’s pleural thickening is asymptomatic, producing no physical or functional impairment, it is not an injury entitling appellees to compensation. We agree and accordingly reverse and vacate the judgment entered against Fibreboard.

It is well-settled that “[w]hen deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the non-moving party and must accept as true all evidence which supports that party’s contention and reject all adverse testimony.” Boyce v. Smith-Edwards-Dunlap Co., 398 Pa.Super. 345, 354, 580 A.2d 1382, 1387 (1990), appeal denied, 527 Pa. 650, 593 A.2d 422 (1991). On review we will reverse the trial court’s decision only if there is an abuse of discretion or error of law. Id.

This court has recently held en banc that asymptomatic pleural thickening is not compensable as a matter of law. Giffear v. Johns-Manville, Corp., et al., 429 Pa.Super. 327, 632 A.2d 880 (1993). It is undisputed in the instant case that Thomas Brown suffered only from asymptomatic pleural thickening. As appellees have no legally cognizable claim, directed verdict should have been granted to Fibreboard.

Accordingly, Keene’s appeal is stayed pending the conclusion of the bankruptcy proceedings. However, regarding Fibreboard, we vacate that part of the July 22,1992 judgment order as entered against Fibreboard.

Stayed in part; reversed in part; vacated in part.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

The above-captioned case is another case in which an asbestos plaintiff “with asymptomatic pleural thickening” has received a jury award. In each of these cases, Murray v. Philadelphia Asbestos Corporation et al., 433 Pa.Super. 206, 640 A.2d 446 (1993); Didio v. Philadelphia Asbestos Corporation et al., (Nos. 2867-2869 Philadelphia 1992) 1994 WL 119817 (1993); a proposed Opinion has been circulated which would apply retroactively this Court’s decision in Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), to these cases. Giffear has been applied retroactively on the basis that:

Where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Blackwell v. Commonwealth, State Ethics Comm’n, 527 Pa. 172, 188, 589 A.2d 1094, 1102 (1991), quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

However, Blackwell, states that “although retroactivity is the general rule, a sweeping rule of retroactive application is not justified. Retrospective application is a matter of judicial discretion which must be exercised on a case by case basis.” 527 Pa. at 182, 589 A.2d at 1099. As Blackwell states:

The U.S. Supreme Court has viewed the decision of whether to apply a new rule retroactively or prospectively as a function of three considerations: (1) the purpose to be served by the new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the administration of justice by the retroactive application of the new rule. We have adopted this three-factor standard and apply it when a question of the retroactivity or nonretroactivity of a new decision is before us.

Id. at 183, 589 A.2d at 1099 (citation omitted).

Blackwell recounts three separate factors that are to be considered in arriving at this determination:

First, the decision to be applied nonretroaetively must establish a new principle of law, either by overruling clear prior precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed---- Second, it has been stressed that “we must * * *weigh the merits and demerits in each case by looking to the past history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ____ Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.[”]

Id. at 184, 579 A.2d at 1100, citing Chevron Oil Company v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971).

We have not actually considered whether Giffear should apply retroactively or prospectively. See Dissents by Johnson, J., in Murray v. Fibreboard Corporation et al., 433 Pa.Super. 206, 640 A.2d 446 (1993); Didio v. Fibreboard Corporation et al., 1994 WL 119817 (1993) (Docket Nos. 2867-2869 Philadelphia 1992). Rather, there has been an unconsidered assumption that Giffear is to be applied retroactively. This assumption has prevailed notwithstanding that the issue has not been directly raised before our Court; and, notwithstanding that we have not had the benefit of reasoned argument by the parties on whom the burden of these decisions would fall.

I am unable to join decisions which quote Giffear to deem requests for remittitur sufficient to preserve risk of cancer/fear of cancer issues. I fail to see that a request for remittitur has the particularity or precision to adequately preserve this issue. See Murray, supra; Didio, supra; Dissents by Johnson, J. I reject this rationale as misplaced, lacking interpretation and critical analysis.

I am concerned that our Court would allow Giffear to be applied retroactively, absent considered and reasoned reflection. I find this reflexive adoption of retroactivity, absent argument by the parties immediately concerned with this application of Giffear to be unfortunate. I am forced to express my views given the number of these cases at issue in the courts of our Commonwealth.

Accordingly, I dissent.

      . Although Keene’s appeal is stayed under 11 U.S.C. § 362(a)(1), we do not imply that it would be improper for the bankruptcy court to lift or modify the stay to permit disposition.

      . Because of our disposition of Fibreboard’s claims for a directed verdict, we need not address their other contentions of trial court error.

      . Dr. William Fineman, M.D., testified as an expert witness on behalf of Mr. Brown. Dr. Fineman testified that Mr. Brown’s thickening condition had no impact on his ability to perform any of life’s functions. Deposition testimony of Dr. Fineman 9/19/91 at 43. Dr. Fineman further testified that the symptoms Mr. Brown currently exhibits, occasional wheezing and shortness of breath, are attributable to his asthmatic bronchitis rather than his pleural thickening condition. Id. at 45.

      . Although Giffear was filed after the complaint in the underlying action, ‘‘[w]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including direct appeal." Blackwell v. Commonwealth, State Ethics Comm'n, 527 Pa. 172, 188, 589 A.2d 1094, 1102 (1991) (quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983)). As Giffear does not specify whether its holding is prospective or retroactive and as Fibreboard has properly preserved the issues dealt with in Giffear, we will apply the holding in Giffear to the instant action.


author: HOFFMAN, Judge.

text:
    639 A.2d 1249
    Joan MALENFANT v. Pierre MALENFANT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 13, 1994.
    Filed April 11, 1994.

      Thomas Coval, Willow Grove, for appellant.
    Marijo Murray Murphy, Warminster, for appellee.
    Before CIRILLO, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is from the June 22, 1993 order granting appellee, Joan Malenfant’s, petition to increase support for her and her two children. Appellant, Pierre Malenfant, raises three issues for our review:

1. Is it an abuse of discretion to increase support based on a stated inability of the wife to work, when there is no competent medical evidence to support the wife’s assertions of her disability?
2. Is it an abuse of discretion to order a parent to support an adult through high school, where the “child” is eighteen years old, and is only entering the 10th grade as a result of his expulsion from school due to drug abuse?
3. Is it an abuse of discretion to fail to take into account the ability of other adults living in the household to contribute to the household expenses, when the effect of this requires the father to support adult children not entitled to support?

Appellant’s Brief at 5. For the reasons that follow, we affirm.

On August 23, 1961, the parties were married. Five children were born of the marriage. On May 11, 1990, appellee filed a complaint in divorce and on June 28, 1990, she filed a petition for support. On December 14, 1990, appellant was ordered to pay $235.00 per week as support for appellee and their two minor children. That order was based on appellee having an earning capacity of $100 per week.

On March 12, 1992, the parties entered into an agreement which adopted the recommendations of the master in divorce. The findings of the master stated that appellee suffers from a variety of health problems such as colitis, urinary tract infections and asthma. At the hearing, the master concluded that appellee had an earning capacity of $100.00 per week.

On February 8, 1993, appellee filed a petition to modify support, which alleged that she had recently undergone surgery to remove a kidney and that her health had deteriorated to the point where she was unable to work. On February 24, 1993, appellant responded with his own petition to modify support, claiming that Jeremy, one of the couple’s two minor children, had reached the age of majority and should be removed from the outstanding order.

At the support hearing both sides presented testimony. Following the hearing, the Court granted appellee’s petition, denied appellant’s petition and increased appellant’s support obligation to $307.00 per week. This timely appeal followed.

Appellant first argues that appellee has failed to demonstrate a change in circumstances sufficient to justify an increase in support. We disagree.

Preliminarily, we note that an award of child support is largely within the discretion of the trial court. Brower v. Brower, 413 Pa.Super. 48, 53, 604 A.2d 726, 729 (1992). A trial court’s decision concerning support will not be reversed absent an abuse of discretion. O’Connell v. O’Connell, 409 Pa.Super. 25, 29, 597 A.2d 643, 645 (1991).

It is well-settled that a court may modify a support order if the financial positions of the parties change or where other proper reasons are established. Commonwealth ex rel Caswell v. Caswell, 280 Pa.Super. 359, 365, 421 A.2d 762, 766 (1980). A change in earning capacity is a basis for a change in an order for child support. Hesidenz v. Carbin, 354 Pa.Super. 610, 619-620, 512 A.2d 707, 712 (1986). The earning capacity of a party, is not the amount the party could potentially earn, but rather “the amount [the party] could realistically earn under the circumstances considering health, age, mental and physical condition, training and the amount of time the party has been unemployed.” Adams v. Adams, 387 Pa.Super. 1, 8, 563 A.2d 913, 916 (1989).

In the present case it is clear from the evidence that appellee experienced a change in circumstance warranting an increase in support. Initially, the court found that appellee had an earning capacity of $100.00 per week and made its support calculation accordingly. However, in December of 1992, appellee had surgery to remove her kidney. The record indicates that following her operation, appellee suffered from severe health problems rendering her virtually unable to work. Thus, we find that the court properly reevaluated her earning capacity to be zero and increased appellant’s support payment accordingly. See, e.g., Commonwealth v. Vogelsong, 311 Pa.Super. 507, 512-13, 457 A.2d 1297, 1299-1300 (1983) (court’s refusal to modify support order where father had become disabled with arteriosclerosis coronary disease and diabetes mellitus was inappropriate).

While appellant argues that appellee failed to put forth medical testimony to support her claims, such medical testimony is not required. See Hesidenz at 618, 512 A.2d at 711 (wife’s testimony concerning her physical condition was sufficient to support trial court’s finding that she was physically incapable of working full time). Accordingly, we find appellant’s first contention to be without merit.

Next, appellant argues that he no longer has an obligation to support his son, Jeremy, as Jeremy has reached eighteen years of age. Again, we disagree.

Our Supreme Court has recently held that a parent owes a duty of support to a child until the child reaches the age of 18 or graduates from high school, whichever event occurs later. Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992).

In the instant case, while Jeremy has reached the age of eighteen, he still remains in high school. Although Jeremy was expelled from the ninth grade in November, 1992, the record shows that he is currently involved in an “homebound” academic program where he takes courses in history, science, english and mathematics. Moreover, he is now officially in the tenth grade and testified that he plans on taking full time courses with the goal of achieving a high school diploma. N.T., 6/22/93 at 53-54.

Thus, as Jeremy is currently in high school and clearly intends to graduate from high school, we find that it is appellant’s duty to continue to support his child. Therefore, we find appellant’s second contention to be without merit.

Finally, appellant argues that the court erred in failing to take into account the ability of his other children, ages 22, 25, and 30, living in the household to contribute to household expenses. Again, we disagree.

In the absence of contract or statute, an adult child has no duty or obligation to contribute to the support of his/her parents. Albert Einstein Medical Center v. Forman, 212 Pa.Super. 450, 454, 243 A.2d 181, 183 (1968). In the present case the children do make contributions to the household. However, these contributions are not obligatory nor do they relieve appellant of his duty to provide support. Thus, we find appellant’s final contention to be without merit.

Accordingly, the order of the trial court is affirmed.

Affirmed.

      . At the time of the divorce only two of the parties' five children were minors.

      . Appellee testified that she experiences burning and cold sensations; that she has difficulty dressing, turning, reaching and lifting; that she cannot walk significant distances without feeling as if she is going to fall; that her diet is restricted; and that she has difficulty speaking because her mouth goes dry. N.T., 6/22/93 at 14-18.

      . As the trial court correctly noted in its opinion, despite 23 Pa.C.S. § 4327, the portion of the Blue holding concerning support for students enrolled in high school remains controlling as § 4327 is limited to support for students enrolled in post-secondary education.


author: BECK, Judge:

text:
    640 A.2d 416
    Ann MUSUMECI and Salvatore Musumeci, H/W v. PENN’S LANDING CORPORATION, Port of History Museum, Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation. Ann MUSUMECI and Salvatore Musumeci, Appellants, v. PENN’S LANDING CORP., Port of History Museum, Chandris Fantasy Cruises, Philadelphia Port Corp. International Terminal Operations, Chandris, S.A., and Ajax Navigation. Loretta Anne MANNINO and Vincent Mannino v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation. Loretta Anne MANNINO and Vincent Mannino v. PENN’S LANDING CORPORATION, Chandris Cruise Line Corporation. Appeal of PENN’S LANDING CORPORATION. Loretta Anne Mannino and Vincent Mannino, Appellants, v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation. Loretta Anne Mannino and Vincent Mannino, Appellants, v. PENN’S LANDING CORPORATION, Chandris Cruise Line Corporation. Loretta Anne MANNINO and Vincent Mannino, H/W v. PENN’S LANDING CORPORATION, Port of History Museum Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1993.
    Filed March 2, 1994.
    Reargument Denied May 11, 1994.

      Matthew P. Harrington, Philadelphia, for Chandris, S.A. and Ajax.
    James R. Kahn, Philadelphia, for Mannino.
    Stewart Bernstein, Philadelphia, for Musumeei.
    Angelo L. Scaricamazza, Jr., Philadelphia, for Penn’s Landing.
    Gino Zonghetti, pro se.
    Before BECK, TAMILIA and HESTER, JJ.
   BECK, Judge:

The issue we decide, inter alia, is whether delay damages pursuant to Pennsylvania Rule of Civil Procedure 238 are recoverable in a case under the federal maritime law. We hold that Rule 238 damages are not recoverable.

This appeal involves the claim of Ann Musumeei for injuries sustained when the ramp used to exit a cruise ship collapsed, and the claim of her husband, Salvatore, for loss of consortium. The defendants, Penn’s Landing Corporation, Chandris S.A., and Ajax Navigation Corporation, conceded liability, and the Musumecis’ lawsuit was consolidated for trial on the issue of damages only with that of Loretta Anne and Vincent Mannino. After hearing the evidence, a jury returned a verdict in favor of Ann Musumeei, in the amount of $167,000, and made no award to Salvatore on his consortium claim. The jury also awarded Mrs. Mannino $35,000, but denied any recovery to her husband on his consortium claim. The trial court denied post-trial motions filed by all parties, and granted the plaintiffs’ petition for delay damages in accordance with Pa.R.Civ.P. 238.

The Musumecis raise several issues on appeal: (1) did the trial court err in consolidating the Musumeei and Mannino cases where a prior order of a judge of coordinate jurisdiction denied such consolidation; (2) did the consolidation of the two cases prejudice the Musumecis’ case; (3) was a new trial or additur required because Salvatore Musumeci was awarded no damages on his loss of consortium claim; (4) was a new trial or additur required because the award to Ann Musumeci was inadequate; (5) did the trial court err in giving an “adverse inference” charge with respect to the plaintiffs’ decision not to call one of their treating physicians to testify; (6) did the trial court err in failing to give an adverse inference charge where the defendants failed to call their orthopedic surgeon who examined Mrs. Musumeci.

The Manninos also challenge the consolidation order, and argue that the verdict amounts were inadequate. Defendants filed cross-appeals, arguing that the trial court erred in applying Rule 238 to award delay damages to the plaintiffs in this maritime law case.

This action originally involved the separate lawsuits of four different couples, who allegedly sustained injuries on the cruise ship exit ramp. The four cases were consolidated for discovery and trial on liability by the Honorable Nicholas D’Alessandro on March 28, 1990. At the same time, however, Judge D’Alessandro ordered separate trials on the issue of damages.

By the time the cases came to trial, two of the four cases had been settled, and the defendants had conceded liability. Only the Mannino and Musumeci cases remained, and the Honorable Alfred J. DiBona ordered that the damage trials be consolidated. In challenging the consolidation order, the appellants argue that Judge DiBona violated the general rule that judges of concurrent jurisdiction should not overrule the decisions of one another. Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989). However, there is an exception to the rule which provides that the second judge is authorized to overrule the first if new evidence or newly decided legal authorities compel him or her to do so. Golden v. Dion & Rosenau, 410 Pa.Super. 506, 600 A.2d 568 (1991). In this case, we agree with the trial court’s decision to grant the consolidation in view of certain changed circumstances, or “new evidence”: the settlement of two of the four cases and the defendants’ concession of liability.

Nor are we persuaded by the appellants’ argument that they were prejudiced by the consolidation, because the jury was confused about the various injuries of the two wife-plaintiffs. As previously noted, Mrs. Musumeci was awarded $167,000 and Mrs. Mannino was awarded $85,000. It is clear from the sizable difference in verdicts that the jury readily distinguished between the two women and their respective damages.

Next, the Musumecis claim that the trial court erred in charging the jury that they could draw an adverse inference from the Musumecis’ failure to call a treating physician, Dr. Mogil. They also contend that the court erroneously refused to give the adverse inference charge on the defendants’ failure to call one of their own doctors, Dr. Lee. The rule for the appropriate use of the adverse inference charge is stated as follows:

In Pennsylvania, a party who fails to call a witness whose testimony, presumable [sic], would be favorable to his cause is subject to an “adverse inference” instruction, permitting the jury to infer that the witness’ testimony would be unfavorable. However, the rule does not apply where the witness is equally available to both sides.

Hinton v. Waste Techniques Corp., 243 Pa.Super. 189, 364 A.2d 724 (1976) (citing Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972)). Applying this rule to this case, we note that the Musumecis’ witness Dr. Mogil was not available to the defendants’ subpoena, and the plaintiffs’ failure to call him to testify properly justified an adverse inference charge. Bentivoglio, supra.

On the other hand, because the Musumecis could have subpoenaed defense witness Dr. Lee, the defendants’ failure to call him should not be held against them through an adverse inference charge. Id. We therefore affirm the trial court’s decision on this issue.

The appellants next argue that the jury’s verdict against the husband-plaintiffs on their consortium claims was against the weight of the evidence, as their claims were unrefuted. However, we note that the husbands still had the burden of proving the nature and extent of their damages, and that the veracity and credibility of the witnesses is for the jury to determine. Cree v. Horn, 372 Pa.Super. 296, 539 A.2d 446 (1988), alloc. den., 519 Pa. 660, 546 A.2d 621 (1988). It is obvious that the jury simply did not believe the husband-plaintiffs’ evidence as to loss of consortium. Our review of the record does not persuade us that their finding should be vacated. Therefore we affirm the trial court’s decision on this issue.

The wife-plaintiffs, too, argue that additur should have been granted because their awards were inadequate based on the evidence. A verdict should be set aside as inadequate only when it is so unjust as to “stand forth like a beacon.” Elza v. Chavan, 396 Pa. 112, 118, 152 A.2d 238, 241 (1959).

A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff ... If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded.

Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213, 1215 (1983) (citations omitted). After our review of the record and the briefs, we see no reason to set aside the jury’s verdict, or to grant additur. The trial court correctly concluded that there was no evidence that the verdicts resulted from passion, prejudice, partiality or corruption, nor does the verdict “stand forth like a beacon.” We therefore affirm the trial court’s denial of additur.

Finally, we turn to the claim on the cross-appeals that the trial court’s award of delay damages pursuant to Pa.R.Civ.P. 238 was improper. Rule 238 provides for an award of prejudgment interest, except for any period during which the plaintiff has caused delay or after which the defendant has made an adequate written settlement offer. The trial court correctly found that there was no written offer of settlement by the defendants and, if Rule 238 were to apply, delay damages would have been proper.

However, the trial court did not address the second argument raised on the cross-appeal: this case was brought under the federal maritime law, and therefore, Rule 238 delay damages are not recoverable. We note that the availability of pre-judgment interest in an action arising under a federal statute is governed by federal law, not the law of the forum state. Thus, in cases arising under the Federal Employers’ Liability Act, for example, Rule 238 for the calculation of delay damages does not apply. Poleto v. Consolidated Rail Carp., 826 F.2d 1270, 1274 (3d Cir.1987); Dale v. Baltimore & Ohio R.R. Co., 520 Pa. 96, 552 A.2d 1037 (1989).

Likewise, when a common law action is brought, whether in state or federal court, to enforce a cause of action cognizable in admiralty, the substantive law to be applied, determining both liability and the amount of damages, is the general maritime law. See Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir.1973). The parties apparently recognized this fact when they discussed the presentation of certain economic evidence:

MR. STEARNS (defense counsel): Your Honor, the Supreme Court decided in 1972 ... that maritime law extended as far as the gangway. These injuries occurred on the gangway. It would appear to be a maritime law case ... maritime law controls and that the presentation of economic loss testimony has to consider the what [sic] tax liability the plaintiffs had or would have on whatever income is said to be lost ...
MR. BERNSTEIN (plaintiffs counsel): Your Honor, I agree that it’s maritime law ...

R. 24b-25b.

As to the calculation and award of prejudgment interest in admiralty cases, the decision to make such an award is left to the discretion of the trial court. M & O Marine, Inc. v. Marquette Co., 730 F.2d 133, 136 (3d Cir.1984). It is within the court’s discretion to use Rule 238 to calculate the award of prejudgment interest, when it has decided to make such an award. Id. However, unlike Rule 238, which mandates delay damages where there has been no written settlement offer, prejudgment interest in admiralty cases may be denied where “peculiar circumstances” exist that “would make it inequitable for the losing party to be forced to pay prejudgment interest.” Inland Oil & Transport Co. v. Ark-White Towing Co., 696 F.2d 321, 327 (5th Cir.1983). See also Mecom v. Levingston Shipbuilding Co., 622 F.2d 1209 (5th Cir.1980).

Generally, “exceptional circumstances” exist where the party requesting interest has (1) unreasonably delayed in prosecuting its claim; (2) made a bad faith estimate of its damages that precluded settlement; or (3) not sustained any actual damages. In re Bankers Trust Co., 658 F.2d 103, 107 (3d Cir.1981). See also Cooper v. Loper, 923 F.2d 1045 (3d Cir.1991); East Coast Tender Service, Inc. v. Robert T. Winzinger, Inc., 759 F.2d 280 (3d Cir.1985). If the court concludes that such circumstances are present, it has the discretion to deny prejudgment interest. Bankers Trust, supra.

Moreover, in jury actions where the award of interest rests in discretion, it is the jury who must exercise it. See, e.g., Robinson, supra; Carey v. Bahama Cruise Lines, 864 F.2d 201 (1st Cir.1988). However, the jury in this case was not given the opportunity to decide whether prejudgment interest should have been awarded to the plaintiffs, or if “exceptional circumstances” existed to preclude such an award. The plaintiffs had the burden of going forward and bringing before the jury the issue of prejudgment interest. Our review of the record reveals that there was no request by the plaintiffs that the issue of prejudgment interest be given to the jury. Although the plaintiffs recognized that maritime law governed, they neglected to carry their burden of requesting that the question of prejudgment interest be presented to the jury.

Maritime law provides a species of “delay damages” and directs that the jury impose prejudgment interest if, after having considered the evidence, they deem it appropriate. We do not find any authority for permitting plaintiffs to elect between maritime law prejudgment interest and Rule 238 delay damages. Cf. Robinson, supra; Carey, supra. Moreover, because the plaintiffs did not preserve this issue by requesting that the jury be permitted to decide the interest question, we hold that it would be inappropriate to remand this issue to the trial court for further consideration. Robinson, 477 F.2d at 1053. We conclude that it was improper for the trial court to award Rule 238 delay damages in this maritime case, and therefore vacate that portion of the award below.

Affirmed in part and reversed in part; judgment entered on jury’s initial award of damages to plaintiffs is affirmed, but award of delay damages is vacated. Jurisdiction relinquished.

      . The two cases involve the same defendants, raise overlapping issues on appeal, and were presented together at oral argument to this court. We therefore resolve both matters in this opinion.

        . Judge DiBona actually requested the Supervising Administrative Judge for Philadelphia County to consolidate the two cases in order to save time and court resources.

      . Rule 238 provides, in pertinent part:
      (a) (1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff ... and shall become part of the verdict, decision or award.
      (b) The period of time for which damages for delay shall be calculated ... shall exclude the period of time, if any,
      (1) after which the defendant has made a written offer of
      (i) settlement in a specified sum with prompt cash payment to the plaintiff, or
      (ii) a structured settlement underwritten by a financially responsible entity,
      and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff; or
      (2) during which the plaintiff caused delay of the trial.
      Pa.R.Civ.P. 238.

      . We note that defendants Chandris and Ajax did raise the question of maritime prejudgment interest at the post trial level in their responses to the plaintiffs’ Petition for Delay Damages. However, the trial judge did not include a discussion of this argument in his opinion.

      . Nor did the plaintiffs make a request for prejudgment interest under the maritime law in their Petitions for Delay Damages. The Petitions for Delay Damages were based only upon Rule 238.


text:
    640 A.2d 422
    COMMONWEALTH of Pennsylvania v. Charles F. GORDON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1993.
    Filed March 15, 1994.
    Reargument Denied May 17, 1994.

      Stuart Lev, Asst. Public Defender, Philadelphia, for appellant.
    Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from a judgment of sentence for receiving stolen property. Appellant, Charles Gordon presents the following issues for our consideration:

1. Did not the trial court err in determining that appellant, a homeless person living in an abandoned house, did not have a reasonable expectation of privacy in the premises he used as home, given that: 1) under Article 1 § 8 of the Pennsylvania Constitution appellant has automatic standing to challenge the lawfulness of the warrantless entry and search, 2) society’s failure to recognize the legitimacy of his expectation of privacy would deny constitutional protections to thousands of people who are compelled to use abandoned structures as their homes, 3) at the time of his entry the officer had insufficient information from which to conclude that the house was abandoned by its owner?
2. Was not the officer’s entry and search of appellant’s sleeping quarters made without probable cause as it was based solely on information that a person matching a general description of a robbery suspect was living in the house, which failed to provide a sufficient nexus between that person in the house and the crime?

Appellant’s Brief at 2. For the reasons set forth below, we reverse.

The trial court aptly summarized the facts surrounding the warrantless search of the house as follows:

On December 8, 1991, Police Officer Frank Pavgouzas of Philadelphia’s 15th Police District was in uniform and on patrol. At approximately 10:40 p.m. he received police radio information of a purse snatch perpetrated by a white male approximately twenty years of age, with blonde hair, and a gray or brown jacket, and jeans. The incident had occurred within five minutes of the radio call in the area of Frankford and Cheltenham Avenues. Officer Pavgouzas investigated a graveyard in the 5700 block of Leonard Street into which the suspect allegedly ran.
While there, the police officer heard a dog barking and went into a rear alleyway where he came upon a gentleman who asked the officer about his presence in the alley. The police officer identified himself and gave him a description of the suspect for whom he was searching. The gentleman directed the officer to an “abandoned house” claiming that a man fitting the description “lived” in the house.
When Officer Pavgouzas arrived at the “abandoned house”, he observed an unkempt yard with knee-high weeds. The exterior of the house appeared run down and there were no drapes or shades on the windows. In addition the rear door was almost completely open and the top portion was broken away from the door frame while the bottom portion was still attached to the hinge. Thus, the door was hanging practically on its side.
The officer entered the house through the broken door into a kitchen area which appeared to have not been occupied for some time. The sink contained dirt, and trash was piled throughout the room. The kitchen was dark and lacked kitchen appliances.
Upon hearing a television in the next room, the officer left the kitchen through a doorway which had a sheet hanging down from the top of the doorway. He entered the next room and observed that it was barren except for a television resting on a milk crate, a lamp, a beer “ball”, and a mattress on the floor.
The defendant was sitting on the mattress. The officer noticed that the defendant had blonde hair and was wearing a brown jacket and blue pants. There was trash strewn throughout the room, and a black pocketbook lay on the floor approximately two feet from where the defendant was sitting. There was jewelry and other pocketbooks lying •round the room. The defendant followed the officer’s orders to stand, and once standing, the officer noticed that a blue purse had been underneath him on the mattress. The officer determined that the defendant was unarmed and asked him whose purse it was, but defendant denied knowing its origins. The officer seized both the blue purse and the black pocketbook and examined their contents. The purse contained the identification of one Cathy Babe, the complainant.
The officer ordered the defendant to exit the house and walk to the corner of Cheltenham Ave. and Leonard St. where they awaited the arrival of the patrol car which was transporting the complainant. When the car arrived, Ms. Babe exited the car and identified the defendant as the man who grabbed her pocketbook. Officer Pavgouzas showed her the pocketbook and purse he recovered from the house and she identified them as her personal property.

Trial Court Opinion.

Appellant was subsequently charged with robbery, theft, simple assault, and receiving stolen property. Appellant filed a motion to suppress all physical evidence, statements, and identifications obtained as a result of the officer’s search. The trial court denied appellant’s motion. Following a non-jury trial appellant was convicted of receiving stolen property and acquitted of the other charges. Post-verdict motions were filed and denied. This timely appeal followed.

Appellant first argues that the trial court erred in finding that he had no reasonable expectation of privacy in the abandoned house in which he was living. Since we believe that appellant did have a reasonable expectation of privacy in the room where the contraband was found in the instant case, we find that the trial court erred in denying appellant’s motion to suppress.

When reviewing the ruling of the suppression court, we are bound by the court’s factual findings unless they are unsupported by the record. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (quoting Commonwealth v. Goodwin, 460 Pa. 516, 522-23, 333 A.2d 892, 895 (1975)). If the evidence supports the factual conclusions of the suppression court, we may reverse only if there is an error of law. Commonwealth v. Cameron, 385 Pa.Super. 492, 495, 561 A.2d 783, 784 (1989); Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986).

Article I, section 8 of the Pennsylvania Constitution states that an individual shall be secure in his or her “persons, houses, papers & possessions from unreasonable searches and seizures.” Art. I, Section 8. The courts of Pennsylvania have interpreted this provision of the state constitution to provide a greater degree of protection from governmental intrusion than the fourth amendment of the United States Constitution. See Cameron, at 497-98, 561 A.2d at 786-787 and cases cited therein. The touchstone of analysis, however, is the same under both documents, i.e., whether an individual has a legitimate expectation of privacy in the place searched. In determining whether an individual has a legitimate expectation of privacy, there must exist both a subjective expectation of privacy by the individual and that expectation must be one that society recognizes as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan J., Concurring).

The question of whether a person living in an abandoned building can have a reasonable expectation of privacy in that building or the rooms therein, has not been addressed directly by the courts of this Commonwealth. However, this Court’s decisions in Commonwealth v. Cameron, 385 Pa.Super. 492, 561 A.2d 783 (1989) and Commonwealth v. Peterson, 408 Pa.Super. 22, 596 A.2d 172 (1991), aff'd, 636 A.2d 615 (Pa. 1993), are instructive on this matter.

In Cameron, the appellant was charged with possession of a controlled substance and possession with intent to deliver. His arrest had grown out of police officers’ warrantless search of an abandoned house. Appellant moved to suppress the evidence claiming that the Commonwealth had violated both his fourth amendment and state constitutional rights against unreasonable searches and seizures. The trial court granted the motion to suppress, finding that because the abandoned house contained some of the characteristics of a home such as a television, couch and a platter of food, appellant had a reasonable expectation of privacy in the house. The Commonwealth appealed and the Superior Court reversed.

The Court agreed that appellant had a subjective expectation of privacy but found that this expectation was not reasonable. The court noted that the privacy concerns which underlie Article 1 § 8 of the Pennsylvania Constitution are not implicated when considering “not a home, but a mere structure.” Cameron, 385 Pa.Super. at 499, 561 A.2d at 787. The court stated:

In this case, the Commonwealth offered evidence that officers had been to the same place the day before Cameron was arrested, and that they had been through the entire house. Sergeant Perrone stated that the second floor was littered with trash and excrement, that the windows were broken out and boarded over, and that the utilities were turned off. He further stated that he had arrested other individuals at the house the day before. Cameron was not there at that time, and when questioned after his arrest, gave another address as his home. Under the facts presented, Cameron had no right to enter the house, and had no right to exclude others.

Id. at 501, 561 A.2d at 787. Thus, the court concluded that the mere fact that the place searched was a house and contained a couch, some food, and a television did not convert the structure into a home which was entitled to protection under the United States or Pennsylvania Constitutions when appellant did not actually reside in the place searched. The court also noted that appellant had no legal or de facto control of the premises. The Court however cautioned against a broad interpretation of its decision: “we do not decide whether in other circumstances a vacant structure might be considered to be a ‘dwelling place’ within the purview of article 1, section 8.” IcL

In Peterson, appellant had been selling drugs at a so called “gate house.” The gate house was an abandoned storefront, the front windows of which were covered with heavy metal grating. Drugs were then sold through a hole in the door to prevent observation of the seller. Police officers purchased drugs from appellant using dye stained currency and then entered the gate house without a warrant, arrested appellant and seized drugs and the stained money. Appellant moved to suppress the evidence claiming that his rights under the fourth amendment of the United States Constitution were violated. The trial court denied this request and the Superior Court, with one concurrence and one dissent, affirmed. The Superior Court again agreed that the appellant had a subjective expectation of privacy but found that this expectation was not reasonable. The court stated that when determining whether a legitimate expectation of privacy exists “we seek to uncover ‘our societal understanding’ of which areas and what conduct should be accorded this ‘scrupulous protection’.” Peterson, at 30, 596 A.2d at 176 (quoting Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984)). The court noted that “foremost” among the areas sought to be protected is the home. Id. at 28, 596 A.2d at 175.

In explanation of why such protection is afforded the home, the court stated that:

“this protection does not stem from notions of common law property interests in the premises. Nor does the protection surrounding the home depend upon whether the dwelling comports with conventional notions of the definition of a home or how a home is constructed.”

Id. at 30, 596 A.2d at 176. Rather, the court found that the basis underlying the protection afforded the home “is a common, deep and basic understanding that our society accords to its citizens the right to be secure in areas and activities ordinarily associated with autonomy, privacy and lifestyle.” Id. at 31-32, 596 A.2d at 177. From the above considerations the court concluded that:

“it is not the superficial characteristics of a structure, its walls, windows, doors or even furnishings, which give it the constitutional cloak accorded a home. Rather, it is the habitation of the structure and its use as a residence which form the purpose of the constitutional protection.”

Id.

In applying these considerations to the facts of the case before it the court found there was no constitutional protection in the storefront searched; as it was not used as a residence by appellant and “appellant’s only relationship to the structure in question was as a temporary drug dispersal depot.” Id. at 33-34, 596 A.2d at 177-78. Importantly, both the concurring and dissenting judges indicated that if the storefront had been being used as a shelter by homeless persons, a reasonable expectation of privacy would exist. See Concurring Opinion by Hoffman, J. at 53 n. 2, 596 A.2d at 188 n. 2, and Dissenting Opinion by Popovich, J. at 48, 596 A.2d at 185.

From the above decisions therefore, we can extract two important considerations to aid in our determination of whether appellant had a reasonable expectation of privacy in the instant case. The first such consideration is the importance of whether the structure was actually used by an individual as his or her dwelling place. In the absence of such use, the constitutional protection for the home will not attach to the structure, regardless of its contents or physical condition. Conversely, if such use is established, the most “scrupulous” protection will be afforded. The next is that property rights are not determinative of whether a reasonable expectation of privacy exists in a particular place. Thus, a reasonable expectation of privacy therefore can exist in the absence of a property right.

We begin our analysis by determining whether appellant had a subjective expectation of privacy in the building in question. In the instant case, the appellant testified and the trial court found, that appellant had been living in the house in question for two to three months. The Commonwealth contends, however, that the disrepair of the building belies even a subjective expectation of privacy. We disagree. The room was closed off from the rest of the house by a sheet. The officer testified that he had to push aside the sheet to see into the room in which he located appellant. Thus, regardless of whether the backdoor was partially off its hinges or the windows, appellant’s room was not wide open to public view. This we believe is sufficient to establish that appellant had a subjective expectation of privacy in the room searched.

The next stage of our analysis requires that we examine whether this subjective expectation of privacy is one which should be deemed reasonable or legitimate by society. The trial court found and the Commonwealth, in its brief, points out the state of disrepair of the building and its lack of amenities normally associated with a “dwelling place.” The lack of such facilities did preclude appellant from engaging in such domestic activities such as showering, cooking, etc. However, despite the lack of these amenities, appellant testified, and it was accepted by the trial court, that he was “living” in the house for two to three months. This length of residence in the house in question indicates that the house was indeed appellant’s home or dwelling place.

As stated earlier, the home is accorded the most “scrupulous” protection from unreasonable searches and seizures. However, the nature of appellant’s “home” in the instant case makes some further discussion necessary. Here, appellant had no property rights in the budding in question. Additionally, appellant’s testimony indicated that others were also living in the building.

Although appellant had no property rights in the building in question, a lack of a property interest in the premises does not alone serve to deny a resident thereof protection from unreasonable searches and seizures in those premises. See Peterson at 30, 596 A.2d at 176. However, the fact that others were present in the budding presents a more difficult question. If the budding was such as to present unfettered access to any and ad, we might find appedant’s expectation of privacy therein to be unreasonable. See Cameron, 385 Pa.Super. at 501, 561 A.2d at 787. However, we believe that in the instant case, we need not determine whether appellant had a reasonable expectation of privacy as to the entire budding. The room where Officer Pavgouzas found appellant and the contraband was separated from the rest of the building. Therefore, regardless of whether others had free access to the budding or the other rooms, the room where the search took place was not open to all. Thus, the warrantless search of the room where the contraband was found violated appellant’s rights under the Pennsylvania Constitution to be free from unreasonable searches and seizures. Therefore, the evidence seized from the warrantless search must be suppressed. Accordingly, the judgment of sentence is vacated and the matter remanded for a new trial.

Judgment of sentence vacated, remanded for new trial.

Jurisdiction is Relinquished.