author: ROBERTS, Judge:

text:
    482 A.2d 653
    STATE EQUIPMENT DIVISION OF SECORP NATIONAL, INC., Appellant, v. BRYAR CONSTRUCTION CORP., a/k/a Bryar Construction Company and Squaw Valley Coal Company v. The FIRST NATIONAL BANK.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Sept. 28, 1984.
    Petition for Allowance of Appeal Denied Feb. 19, 1985.

      Richard J. Fidei, Beaver, for appellant.
    David L. Robinson, Greensburg, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROBERTS, Judge:

Appellant Secorp appeals from an order of the Court of Common Pleas of Westmoreland County granting the petition of appellee First National Bank of Avonmore to open a default judgment, and further directing that the same judgment be stricken. We modify the order to provide only that the judgment be opened.

I

Appellant obtained the default judgment against appellee Bank on November 20, 1979, three months after appellant had served appellee with “Interrogatories to Garnishee.” The interrogatories, which went unanswered during that three-month period, were filed in connection with execution proceedings on a default judgment which appellant had obtained on July 26, 1979, against Bryar Construction Corp. and Squaw Valley Coal Co., depositors of appellee. Appellant’s default judgment against appellee was for $54,211.25 plus costs, a sum which included the full amount of appellant’s default judgment of $53,231.21 against Bryar and Squaw. Appellant’s judgment against appellee in the amount of $54,211.25 plus costs was entered on praecipe pursuant to the former version of Pa.R.Civ.P. 3146(a), whose current version (effective February 8, 1982) requires notice to the garnishee and a hearing on the amount of judgment. Although appellant’s interrogatories to appellee contained a provision stating that appellee was required to answer within 20 days and that failure to answer “may result in judgment against you,” see Pa.R.Civ.P. 3253, appellant did not give appellee notice of an intention to file the praecipe for entry of the judgment. Such notice is now specifically required by Pa.R.Civ.P. 237.1, which was promulgated by our Supreme Court on December 14, 1979, less than one month after entry of the present judgment. Rule 237.1 became effective on February 1, 1980, and was made applicable to “pending actions.” 496 Pa. XLVI (1979).

On November 29, 1979, nine days after the entry of the default judgment against appellee, Bryar and Squaw initiated Proceedings for Reorganization under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 1101 et seq. On December 21, 1979, just over one month after the entry of the default judgment against appellee, appellee filed a petition to Open Judgment along with an answered copy of appellant’s interrogatories. In the petition to open and the answers, appellee stated that Squaw had a checking account balance of $16.33 which “remains intact,” and that Bryar had a checking account balance of $3.47 which was subject to a writ of execution served June 21, 1979, in connection with another action against Bryar. Appellee attributed its delay in this action to the other action against Bryar. According to appellee, its officials answered the interrogatories filed in the other action, and then assumed that the interrogatories in this action related to those which had been answered.

The matter proceeded to an evidentiary hearing, after which the court, relying on our Supreme Court’s decision in Hanchey v. Elliott Truck Brokerage Co., 421 Pa. 131, 218 A.2d 743 (1966), held that the judgment was improperly obtained by praecipe rather than by a motion for sanctions.

II

Appellant correctly points out that in Hanchey, unlike here, the garnishee did not answer a set of “supplemental interrogatories” prepared by the judgment creditor after the garnishee had answered the judgment creditor’s initial interrogatories. Our Supreme Court characterized the unanswered interrogatories as “ ‘discovery’ interrogatories” governed by Pa.R.Civ.P. 4019(a), which requires judicial approval of sanctions. A default judgment for the garnishee’s failure to respond to such interrogatories could thus be entered “only by the court but never by the prothonotary.” 421 Pa. at 135, 218 A.2d at 745-46.

Here, the default in the proceedings arose not at a stage of discovery, but rather at the initial stage of pleading, when the garnishee did not file answers to the judgment creditor’s initial interrogatories. At this stage of the proceedings, according to Hanchey itself, it is “as though the interrogatories were a complaint and the garnishee’s answer were an answer in assumpsit,” 421 Pa. at 134, 218 A.2d at 745; the express provisions of Pa.R.Civ.P. 3146 apply, and confer upon the judgment creditor the right to obtain judgment “on praecipe” if the garnishee “fails to file an answer____” Hanchey, therefore, did not affect the right of a judgment creditor expressly conferred by Pa.R. Civ.P. 3146 to obtain a judgment by praecipe against a defaulting garnishee, and the court’s order in this case, insofar as it directed the striking off of the default judgment in appellant’s favor, cannot be permitted to stand.

Ill

Appellee contends that the present record nevertheless establishes its entitlement to relief from the judgment on equitable grounds, and we agree. As our Supreme Court has observed, “snap judgments taken without notice are strongly disfavored by the courts.” Queen City Electrical Supply Co. v. Soltis Electric Co., 491 Pa. 354, 361, 421 A.2d 174, 177-78 (1980). So, too, “the courts of this Commonwealth, in recognition of the potential for injustice from requiring a stranger to the underlying controversy to pay a claim for which he had no original responsibility, have expressed a greater willingness to relieve a defaulting garnishee than a defaulting defendant.” 491 Pa. at 361, 421 A.2d at 178. Because of the abhorrence for snap judgments, and because of the “potential for injustice to a defaulting garnishee,” the Rules of Civil Procedure relating to garnishment proceedings have been amended, as noted above, to forbid the very result which was reached in this case: a judgment against appellee obtained without express notice of appellant’s intention to secure it, unilaterally set in the amount of more than $54,000 notwithstanding the fact that appellee’s true liability, as a garnishee, could have amounted, at most, to less than $20.00.

The court of common pleas specifically determined that appellee had, in fact, answered the interrogatories addressed to it in connection with the other garnishment action against Bryar Construction Corp., the action which appellee’s officials allegedly mistook to be directly related to the present action. The court also found that “[n]o counsel of record was involved on behalf of [appellee] prior to November 26, 1979,” six days after the default judgment against appellee had been entered. Although surely the wise course for appellee would have been to contact counsel upon receipt of a second set of interrogatories concerning one of its depositors, surely, too, it must be concluded that the proper course for appellant was at least to make an inquiry concerning the reason for appellee’s failure to respond to the interrogatories in any respect, not to take full advantage of appellee’s silence and secure a second default judgment placing the entire burden of the prior judgment on appellee.

Appellant maintains that appellee was dilatory in filing its petition to open the default judgment on December 21,1979, 31 days after notice of entry. Yet the record is clear, and appellant acknowledges, that much of this period of allegedly unreasonable delay was consumed by the good-faith efforts of counsel for appellee to secure an agreement with appellant to open the judgment, without resort to judicial process. We are unwilling to fault appellee and its counsel for their laudable efforts to keep this matter out of the courts, just as we are unwilling to lend our endorsement to appellant’s insistence on keeping this matter in the courts by claiming entitlement to a windfall judgment which should not have been obtained in the first place.

A petition to open a default judgment may be granted where: “(1) the petition has been promptly filed; (2) a meritorious defense can be shown; [and] (3) the failure to appear can be excused.” Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130-31 (1971). Because the present record establishes that appellee promptly sought relief from a default judgment obtained without fair notice which would have imposed liability enormously in excess of appellee’s true liability as a garnishee, the order of the court of common pleas must be affirmed insofar as it granted appellee’s petition to open.

Order modified to provide only for the granting of the Petition to Open Judgment. As modified, the order is affirmed, and the record is remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

       The status of the Proceedings for Reorganization initiated by Bryar and Squaw is not addressed by the parties in their briefs, and is not reported. We leave it to the court of common pleas to determine the current effect, if any, of those proceedings.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    482 A.2d 656
    COMMONWEALTH of Pennsylvania v. Scott R. ANWYLL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1984.
    Filed Sept. 28, 1984.

      Thomas W. Houser, Bethlehem, for appellant.
    Daniel G. Spengler, Assistant District Attorney, Bethlehem, for Commonwealth, appellee.

      Before SPAETH, President Judge, and WIEAND and CHULLO, JJ.
   PER CURIAM:

This is an appeal from judgment of sentence following appellant’s plea of guilty to three counts of forgery. We affirm.

Before we consider the merits, we must consider whether we have jurisdiction to hear this appeal. Appellant was sentenced on April 5, 1983, and did not file his notice of appeal until May 9, 1983. The appeal therefore appears untimely, Pa.R.A.P. 903(a), and although no party has raised the issue of timeliness, we may do so sua sponte. Commonwealth v. Fisher, 321 Pa.Super. 534, 468 A.2d 1117 (1983).

At the time of sentencing the trial court stated:

You have a right to file a petition within ten days from today to review this sentencing proceeding to determine whether the sentence is beyond the maximum penalty authorized by law and whether the sentence is proper under the Sentencing Guidelines the court is required to follow. If your petition to review this sentence is denied, you then have thirty days to file an appeal with the Superior Court of Pennsylvania. That appeal must be filed within thirty days from today or within thirty days after your petition to review the sentence has been disposed of.

N.T. Sentencing at 11.

This statement was erroneous since a petition for reconsideration does not extend the time for taking an appeal. See, Commonwealth v. Jones, 307 Pa.Super. 558, 453 A.2d 1028 (1982).

Appellant did timely file a petition for reconsideration of sentence, and on April 26, 1983, the court entered an order denying it. On May 9, 1983, i.e., within thirty days of the denial of the petition for reconsideration but not within thirty days of the sentence, appellant filed a notice of appeal to this Court. The notice stated that it was from the trial court’s order of April 26th denying the petition for reconsideration.

This appeal was out of time. When an Act of Assembly fixes the time within which an appeal may be taken, a court may not extend time for appeal. Commonwealth v. Englert, 311 Pa.Super. 78, 457 A.2d 121 (1983). The mere fact that the trial court purported to extend the time for appeal to thirty days after the disposition of the motion for reconsideration under Pa.R.Crim.P. 1410 did not affect the running of the time for appeal. Commonwealth v. Leonard, 308 Pa.Super. 292, 454 A.2d 136 (1982). The best practice, when granting a petition for reconsideration, is to vacate the sentence in question, Pa.R.Crim.P. 1410, Comments, but the court did not do that.

Nevertheless, we will not quash the appeal, as untimely. Given the trial court’s misstatement of the appeal period, appellant’s failure to appeal on time would appear to be the result of a breakdown in the court’s operation. See, Commonwealth v. Englert, supra. In these circumstances we might remand with instructions to permit appellant to file his appeal nunc pro tunc, but to save judicial time, we will not remand but will regard the appeal as though filed nunc pro tunc and will consider it on the merits.

Appellant contends on appeal that his concurrent sentences of not less than 2 nor more than 5 years imprisonment are excessive. He argues that the court should have imposed a sentence of partial confinement because much of his prior criminal activity, including the present offenses, was related to his drug usage, for which he has sought rehabilitation; because no one was physically hurt by his crimes; and because a period of total confinement will not serve his rehabilitative needs. Appellant suggests in fact that this case would be appropriate for dismissal under Pa.R.Crim.P. 314.

In Pennsylvania, trial judges are vested with broad discretion in sentencing, and a sentence will not be reversed absent an abuse of that discretion. In order to constitute an abuse of discretion, a sentence must either exceed statutory limits or be manifestly excessive. Commonwealth v. Black, 321 Pa.Super. 44, 45, 467 A.2d 884, 885 (1983).

The sentences imposed in this instance were within the statutory limits, for felonies of the second degree. 18 Pa.C.S.A. § 1103(2).

With respect to whether the sentences were excessive: Appellant admitted to having a long history of alcohol and drug abuse, N.T. Sentencing at 2, and to leaving a drug rehabilitation program prior to completion. Id. at 3. He had previously been convicted of forgery and various narcotics offenses and had violated his parole on four occasions. Id. at 7-8. Appellant was 32 years old at sentencing, single with no children, had been unemployed for two years, and had briefly attended college. Id. at 8. The sentencing court noted appellant’s remorsefulness, but also that the present offenses were unprovoked, harmed others, and were felonies. Id. at 9-10. The court stated that total confinement was necessary, stressing the undue risk that appellant would commit another crime during a period of probation or partial confinement, appellant’s need for institutionalized treatment, the necessity of deterring him from further crime, and the fact that a lesser sentence would depreciate the serious nature of the crimes. Id.

It is evident that the trial court gave adequate consideration to the statutory guidelines for sentencing and imposed sentence consistent with the gravity of the offenses, the protection of the public, and the rehabilitative needs of appellant. Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). We therefore find that the trial court did not abuse its discretion.

AFFIRMED.

      . Rule 314, relating to alleged offenses other than those committed by force or violence, gives the court power, when it appears that the public interest will not be adversely affected, to discharge a defendant upon showing that satisfaction has been made to the aggrieved party and the district attorney consents to the dismissal. In re Ranck, 311 Pa.Super. 184, 457 A.2d 556 (1983).


text:
    482 A.2d 658
    COMMONWEALTH of Pennsylvania v. Dennis Lee BAUGHMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1984.
    Filed Sept. 28, 1984.

      Blake E. Martin, Public Defender, Chambersburg, for appellant.
    John F. Nelson, Assistant District Attorney, Chambers-burg, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO, and CERCONE, JJ.
   PER CURIAM:

This is an appeal from an order dismissing, after a hearing, appellant’s petition filed under the Post Conviction Hearing Act. 42 Pa.C.S.A. § 9541 et seq. On appeal appellant raises several issues, only one of which is properly before us.

Appellant first argues that the sentence imposed was illegal. On March 17, 1971, the defendant was sentenced to a period of incarceration of ten (10) years flat; no minimum being stated. Appellant contends that he is entitled to resentencing at which time both a minimum and maximum sentence must be stated on the record.

At the time of sentencing 19 P.S. § 1057 controlled the sentencing and provided, in part:

Whenever any person, convicted in any court of this Commonwealth of any crime punishable by imprisonment in a state correctional penitentiary, shall be sentenced to imprisonment therefor in any penitentiary or other institution of this state ..., the court, instead of pronouncing upon such convict a definite or fixed term of imprisonment, shall pronounce upon such convict sentence of imprisonment for an indefinite term: stating in such sentence the minimum and maximum limits thereof; and the maximum limit shall never exceed the maximum time now for such offense; and the minimum limit shall never exceed one-half of the maximum sentence prescribed by any court.

The sentencing court found that Commonwealth v. Ulbrick, 462 Pa. 257, 341 A.2d 68 (1975) was “factually on all fours” with the current controversy. In both Ulbrick and the current case the defendant was sentenced to serve a “flat” sentence. The Supreme Court, in Ulbrick, by Per Curiam Opinion, held that a minimum of one day could be presumed from the imposition of the flat sentence and accordingly, resentencing was not necessary.

Appellant however argues that this case should be controlled by Commonwealth v. Craig, 311 Pa.Superior Ct. 533, 457 A.2d 1310 (1983); Commonwealth v. Shoemaker, 303 Pa.Superior Ct. 242, 449 A.2d 669 (1982); and Commonwealth v. Aeschbacher, 276 Pa.Superior Ct. 554, 419 A.2d 596 (1980). In all three cases a flat sentence was imposed in spite of the sentencing code, 42 Pa.C.S.A. § 9756(b) (formerly 18 Pa.C.S.A. § 1356(b)) which reads:

“MINIMUM SENTENCE. — The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.”

In those cases we held that the failure to state, on the record, a definite minimum required resentencing.

These two separate lines of cases demonstrate that while resentencing is required under the current sentencing code where a court fails to state a minimum, such is not required under the old sentencing statute pursuant to which this appellant was sentenced. In spite of the criticism of Ulbrick, supra, offered by both Justice Pomeroy’s concurring opinion in Ulbrick and that offered by our court in Aeschbacher, supra, Ulbrick remains controlling precedent. Therefore, we are bound by such and we hold that resentencing is not required as the minimum sentence is presumed to be one day.

Appellant’s remaining contentions were not raised in his petition or before the lower court. Instead, appellant raised them, of record, for the first time in his pro se notice of appeal. Counsel incorporated the additional contentions into his Rule 1925(b), Pa.R.A.P., statement.

It is axiomatic that neither a trial court nor an appellate court may consider issues which are not properly presented in a PCHA petition. Commonwealth v. Carrier, 494 Pa. 305, 308 n. 3, 431 A.2d 271, 273 n. 3 (1981); Commonwealth v. Zillgitt, 489 Pa. 189, 192 n. 3, 413 A.2d 1078, 1079 n. 3 (1980); Commonwealth v. Stokes, 294 Pa.Superior Ct. 529, 440 A.2d 591 (1982); Commonwealth v. Stanton, 294 Pa.Superior Ct. 516, 440 A.2d 582 (1982). As appellant attempts to raise here, on appeal, issues not previously directed to the hearing court, we may not review the remaining contentions.

Order affirmed.

      . This reasoning was also followed in Commonwealth v. Zona, 260 Pa.Superior Ct. 505, 394 A.2d 1040 (1978) where apparently the trial court had attempted to sentence the defendant as a youthful offender. See also footnote 2 infra.

      . The order of the Superior Court was vacated as the sentence there was imposed pursuant to the “Youth Offenders Act,” 61 P.S. § 485 which prohibited the imposition of a minimum sentence. Commonwealth v. Shoemaker, 502 Pa. 573, 467 A.2d 819 (1983).

      . See also Commonwealth v. Keller, 262 Pa.Superior Ct. 362, 396 A.2d 796 (1979); Commonwealth v. Phillips, 258 Pa.Superior Ct. 109, 392 A.2d 708 (1978); Commonwealth v. Marshall, 254 Pa.Superior Ct. 275, 385 A.2d 1017 (1978).

      . Contained in appellant's brief is a claim that these issues were discussed by appellant and counsel prior to being raised in the notice of appeal. Such a claim dehors the record.

      . Counsel also filed a notice of appeal.

      . Such statement of reasons reads in pertinent part:
      Defendant, pro se, intends to raise the following issues on his appeal to the Superior Court of Pennsylvania, as shown in defendant’s pro se notice of appeal, verified statement, and proof of service attached to Counsel’s aforesaid Notice of Appeal:
      a. The guilty plea was unknowingly and unintelligently made.
      b. No transcript exists from the guilty plea.
      c. Counsel was ineffective in his representation.
      e. The issues contained in this paragraph nine, sub paragraphs a, b, and c, raise the ineffectiveness of defendant's trial counsel and post conviction hearing act counsel, the specific contents of which defendant’s said counsel is unaware, and which would under the law of Pennsylvania require the appointment of new counsel for assertion.

      . We offer no opinion as to the merits of these remaining claims or to appellant’s right to raise them in a subsequent petition.


author: HOFFMAN, Judge:

text:
    482 A.2d 660
    In re Involuntary Termination of Parental Rights Concerning the Minor Child BABY BOY P. Appeal of BRO. JAMAL HASHIM B.
    Superior Court of Pennsylvania.
    Submitted May 31, 1984.
    Filed Sept. 28, 1984.

      Bro Jamal Hashim, B., in propria persona.

      Emil F. Toften, Chalfont, for Bucks County, participating party.
    Richard I. Moore, Southampton, for Child Advocate, participating party.
    Before MONTEMURO, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

In this pro se appeal, appellant challenges the lower court’s July 12, 1983 order involuntarily terminating his parental rights. Upon thorough review of the record, and imposition of the appropriate standard of review, we find that the lower court’s determination is well-supported by the evidence. Accordingly, we affirm.

An appellate court, in reviewing a termination order, must employ a broad, comprehensive review of the record, but is limited in its standard of review to a determination of whether “the trial court’s termination of [the petitioner’s] parental rights is supported by competent evidence.” In re Adoption of James J., 332 Pa.Superior Ct. 486, —, 481 A.2d 892, 894 (1984). Stated differently, unless the lower court has abused its discretion or committed an error of law, the order must stand. Furthermore, the burden of proof on the party seeking to terminate another’s parental rights is one of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). “In order to meet the clear and convincing burden of proof appellee must instill in the mind of the court a firm belief or conviction.” In re Adoption of James J., supra 332 Pa.Superior Ct. at —, 481 A.2d at 896. Our Supreme Court has described this highest civil evidentiary standard as follows:

The witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitance, of the truth of the precise facts in issue ... It is not necessary that the evidence be uncontradicted ..., provided it carries a clear conviction to the mind ... or carries a clear conviction of its truth ...

La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).

So viewed, the facts are as follows: The child at issue, Baby Boy P., was born out of wedlock on May 2, 1982. The natural mother, Charlotte P., placed the child with appellee, the Bucks County Children and Youth Social Services Agency, upon her release from the hospital. The child was subsequently placed in foster care by agreement of both parents because the mother wanted the child placed for adoption and the father, appellant, lacked the financial resources to assume custody at the time. Approximately two weeks after the child’s birth, appellant expressed his desire to obtain ultimate custody of the child and, consequently, met with Jean Berger, a social worker for appellee. A service plan was drawn up, comprising, inter alia, a visiting schedule for appellant and the requirement that appellant attend parenting classes.

Appellant’s visits with the child, from June 16, 1982 until the last visit on February 16, 1983, six months before the lower court’s termination hearing, were sporadic. Berger testified that the visits were often cancelled because of appellant’s inability to afford or arrange adequate transportation from Philadelphia to Bucks County. Several times appellant either failed to attend the visit or was so late that the foster mother and child had to depart. See N.T. June 8, 1983 at 64 et seq. Moreover, from the last visit on February 16, 1983 to the June hearing, appellant never inquired as to his son’s welfare or the foster care situation. Additionally, Berger testified that, to her knowledge, and despite her continued efforts to encourage his attendance, appellant did not attend the required parenting classes.

Other testimony focused on appellant’s housing, income, homelife and care of his remaining children. The record reveals that, at the time of the termination hearing, appellant had been residing for a two-month period in one room of a multi-room house with Christine C-B. and an infant daughter. (N.T. June 8, 1983 at 11, 24). Prior to this juncture, appellant and C-B. had been involved in a long-term relationship characterized by several separations. (Id.) Appellant and C-B. had two other children, both of whom currently live in medical foster care. These two older children were removed from appellant’s and C-B.’s care following a medical diagnosis of “failure to thrive” in both children and the added diagnosis of a severe case of rickets, a vitamin deficiency, in one child. (N.T. June 8, 1983 at 31). Appellant and C-B. both testified that the children’s nutritional problems were caused by the dietary dictates of their religion, coupled with their difficult financial circumstances. (N.T. June 8, 1983 at 22). They apparently had planned to share child care for their children and Baby Boy P.

The record further indicates that, although appellant continually asserted that he was on a waiting list to receive a house through the Philadelphia Housing program by late summer, 1982, by the June, 1983 hearing, he had not yet received the home, nor offered any indication as to when, if ever, one would become available. (N.T. June 8, 1983 at 73). Appellant also testified that he had no current income and was not on public assistance, but was trying to establish a recycling business and hoped to open a restaurant. (N.T. June 8, 1983 at 13). C-B. stated that she was on welfare, made clothes for the family and others, and hoped to join appellant’s restaurant venture. (N.T. June 8, 1983 at 26). It is apparent from the record, however, that, more than a year after the child’s birth, appellant had accomplished little in terms of improving the family’s housing or financial status and that his two older children continued to live in foster care placements.

Parental rights may be involuntarily terminated on the following grounds:

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child be to without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

Adoption Act, October 15, 1980, P.L. 934, No. 163, § 1, effective January 1, 1981, 23 Pa.C.S.A. § 2511(a). Further,

[t]he court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a párent shall not be terminated solely on the basis of erivironmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

23 Pa.C.S.A. § 2511(b).

In applying the above statutory guidelines and finding that the Agency had supported its petition for termination with clear and convincing evidence, the lower court made the following findings of fact:

[Appellant] had never performed any parental duties and had made no real attempt to develop a relationship with his son as a person and in fact seemed totally uninterested in his son as a person and in his growth and development. He made no honest effort to provide a suitable place for his Child to live or to attempt to provide a secure, safe place for his Child. He made no effort to visit regularly with his son. In our opinion, [appellant] was satisfied to permit his Child to live in a foster home for an indeterminate time. He never attempted to accomplish any of the goals set up by the Agency for the return of his Child. His other children are still in the protective care of the Philadelphia Agency and he did not present any evidence as to his attempts to provide a safe and secure home for them. His care of them had resulted in the serious medical condition which resulted in their being hospitalized and placed in medical foster care ... [Appellant] presented no evidence as to his attempts to find employment or attempts to improve his living conditions for a period of more than a year and has failed to remedy the conditions which led to the Child’s initial placement with the Agency. The conditions which led to the Child’s placement have continued to exist for a period in excess of six months, more particularly for fifteen months, and [appellant] cannot or will not remedy those conditions which led to the Child’s placement within a reasonable time.

(Lower Court Opinion at 8-10).

Following a comprehensive review of the evidence supporting the lower court’s findings we conclude that the lower court acted in its discretion in terminating appellant’s parental rights. “Experience has taught the unhappy lesson that the parental relationship is not an infallible guarantee that the parent will provide the care and concern essential to a child’s proper development.” Ellerbee v. Hooks, 490 Pa. 363, 368, 416 A.2d 512, 514 (1980). Further, the parent-child relationship may be disrupted only upon a clear showing of necessity and should removal be necessary to protect the child, every effort should be made to reunite the family. A parent, however, has an affirmative duty to work toward reunification. In re Interest of C.M.E., 301 Pa.Superior Ct. 579, 586, 448 A.2d 59, 63 (1982). He must “[use] all available resources to preserve his parental relations and ‘ “[exercise] reasonable firmness” in declining to yield to obstacles. . . .’” Adoption of M.T.T., 467 Pa. 88, 96, 354 A.2d 564, 568 (1976), quoting Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975), and Adoption of J.R.F., 27 Somerset L.J. 298, 304 (Pa.C.P.Orph.Div.1972). See also Adoption of S.H., 476 Pa. 608, 610-11, 383 A.2d 529, 530 (1978); In re Adoption of B.D.S., 494 Pa. 171, 179, 431 A.2d 203, 207 (1981). Finally, “[a]ll circumstances must be considered when analyzing a parent’s performance of parental obligations in a proceeding for termination of parental rights; the parent’s performance must be measured in light of what would be expected of an individual in circumstances which the parent under examination finds [him]self.” In re Interest of C.M.E., supra 301 Pa.Superior Ct. at 587, 448 A.2d at 63.

In the instant case, it is evident that appellant failed to exert the effort required to either establish or permit him to continue the parent-child relationship. Appellant’s visits for the first six months were infrequent, and ceased altogether after February 16, 1983. We have no indication that appellant attempted to overcome the financial and transportational obstacles hindering these visits either by seeking employment pending the fruition of his plans for a recycling or restaurant business or by asking appellee or Berger to devise more practical visitation terms. It is apparent that, as time went on, appellant’s interest in developing a relationship with his son waned. Further, appellee clearly made its services available to appellant and tried to enhance appellant’s parenting skills. See In the Matter of M.L.W., 307 Pa.Super. 29, 36, 452 A.2d 1021, 1025 (“A parent must be able to seek the assistance of a Child Welfare Service with the expectation that the agency will exert its best efforts in working with the parent and the child to improve the parent’s skills and understanding.”).

The circumstances leading to a termination of parental rights in In the Matter of the Adoption of J.S.H., 299 Pa.Superior Ct. 90, 445 A.2d 162 (1982), are similar to those in the instant case. In Adoption of J.S.H., the child was placed with a welfare agency at seven weeks of age because of a lack of medical care and the diagnosis of “failure to thrive.” The child’s mother, whose rights were ultimately terminated, attended counseling sessions for only a brief period, refused to participate in a child care program, and made periodic visits for several months but failed to visit for the six months prior to the agency’s petition to terminate her parental rights. This Court, in affirming the lower court’s termination order, determined that the mother “did not take advantage of the agency’s facilities, yielded to every problem, and failed to exert herself in maintaining a place of importance in her child’s life.” Id., 299 Pa.Superior Ct. at 99, 445 A.2d at 167. See also In re Burns, 474 Pa. 615, 626, 379 A.2d 535, 541 (1977) (“A parent may not yield to every problem but must act affirmatively, with good-faith intent and effort, to maintain the parent-child relationship to the best of his or her ability. . . .”). Similarly, in the instant case appellant’s affirmative efforts to maintain the parent-child relationship have been negligible, at best, and his efforts to improve the circumstances necessitating the child’s initial placement in foster care have not changed, nor is appellant “likely to remedy the conditions which led to ... the placement of the child within a reasonable period of time....” 23 Pa.C.S.A. § 2511(a)(5).

In sum, we are compelled to agree with the lower court that appellant “has no feeling for his son and no desire to love him, feed him, shelter him and give him parental care, control, love, protection and support.” (Lower Court Opinion at 9). Accordingly, we affirm the order terminating appellant’s parental rights.

Affirmed.

      . In appellant’s "Statement of the Questions Involved” he makes eight statements, all of which concern the lower court’s order and the sufficiency of the evidence. We note that all of his specific concerns are addressed herein.

      . The lower court granted Charlotte P.’s petition to voluntarily relinquish her parental rights and duties to the child at issue and on July 12, 1983, finally terminated her rights and awarded custody of the child to the Bucks County Children and Youth Services Agency. This part of the order has not been appealed.

      . Berger, aware of appellant’s financial and transportation problems, had located a parenting class at the Booth Maternity Center in Philadelphia, and had discussed with him workshops that would be beneficial. (N.T. June 8, 1983 at 78).
      Christine C-B., appellant’s companion, testified that appellant attended one or two child psychology classes at the Philadelphia Community College. Although this testimony was not specifically addressed by the lower court, we infer that the court, in evaluating the testimony and appellant’s actions, felt that this fact was insufficient to find that appellant had fulfilled his obligation under the service plan.

      . The record reveals that the child in question, Baby Boy P., was conceived during one of these separations.

      . We agree with the lower court's ruling that testimony relating to the care and condition of appellant’s two older children is exceedingly relevant to the determination of appellant’s parental rights.

      . We decline to comment on appellant’s religious beliefs. We note, however, that the testimony presented on behalf of appellant tended more to explain those beliefs than to evidence appellant’s love and ability to care for, or relationship with, his son.


author: WIEAND, Judge:

text:
    482 A.2d 968
    COMMONWEALTH of Pennsylvania v. Samuel A. LITZENBERGER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1984.
    Filed Sept. 7, 1984.
    Reargument Denied Nov. 9, 1984.
    Petition for Allowance of Appeal Denied April 10, 1985.

      Ralph W. Litzenberger, Easton, for appellant.
    William Merz, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Samuel A. Litzenberger, a practicing attorney, was tried non-jury and was found guilty on a charge of driving while under the influence of alcohol which had been brought after his involvement in a vehicular accident in Bucks County. On direct appeal from the judgment of sentence, Litzenberger contends: (1) the evidence was insufficient to sustain the conviction; (2) the trial court erred when it refused to suppress the results of a breathalyzer test showing that Litzenberger's blood alcohol had been .22 percent; and (3) trial counsel employed by Litzenberger was constitutionally ineffective. We find no merit in these contentions and, accordingly, affirm the judgment of sentence.

When considering the sufficiency of the evidence, we are required to view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, which has won the verdict. The test is whether the evidence, when so viewed, is sufficient to permit a finding of guilt beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984); Commonwealth v. Hamm, 325 Pa.Super. 401, 407-408, 473 A.2d 128, 131 (1984). In making this determination, we consider all the evidence adduced at trial, whether the court’s evidentiary rulings thereon were correct or not. Commonwealth v. Gray, 322 Pa.Super. 37, 40, 469 A.2d 169, 170 (1983); Commonwealth v. Fields, 317 Pa.Super. 387, 395, 464 A.2d 375, 379 (1983). Conflicts in the evidence must be resolved by the trier of the facts, in this case the trial judge, who alone must decide the credibility and weight of the evidence. See: Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983); Commonwealth v. Hamm, supra, 325 Pa.Superior Ct. at 407-408, 473 A.2d at 131; Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1229-1230 (1984).

On the evening of January 3, 1977, at or about 9:30 p.m., appellant was operating a vehicle at a high rate of speed on Route 212 in Pleasant Valley when it collided with a vehicle emerging from a private driveway and being operated by Sharon LaBarr. Chief Alex Chasar and Officer Robert Kramer of the Springfield Township Police arrived shortly thereafter. Chasar placed flares on the roadway, and Kramer interviewed the two drivers. Kramer observed an odor of alcohol emanating from appellant, as well as his disorientation and slurred speech. When asked for an operator’s license and owner’s card, appellant experienced difficulty in producing them. During the time that Kramer was writing his report, he observed appellant walking around in the roadway and admonished him on several occasions to stay out of the road. When appellant entered the vehicle of his wife, who had arrived at the scene in response to appellant’s telephone call, and gave evidence of an intent to leave the accident scene, Chasar instructed Kramer to have appellant sit in the police vehicle. Kramer then read to appellant his rights under Miranda and told him that he was being placed under arrest for driving while under the influence. With Litzenberger in his police vehicle, Kramer set out for the State Police Barracks in Dublin for purposes of administering a sobriety test to appellant. While en route, Kramer was advised by radio that the equipment at Dublin was inoperative. Therefore, he took appellant a distance of fifteen miles to the barracks of the State Police located at Bethlehem. There a breathalyzer test was administered and disclosed a blood alcohol content of .22 percent.

This evidence was clearly sufficient to support appellant’s conviction. He contends, however, that the breathalyzer test was unlawfully administered (a) because his arrest had been without probable cause; and (b) because the test was administered in a county different than that in which the alleged offense occurred. The suppression court found that appellant had been arrested by Officer Kramer after Kramer had probable cause to believe that appellant had been under the influence of alcohol at the time the accident occurred. In reviewing the findings of the suppression court, we will not disturb that court’s findings if they are supported by the record; in making such a determination, we look only to the prosecution’s evidence and so much of the evidence of the defense as, looking at the record as a whole, remains uncontradicted. Commonwealth v. Frederick, 327 Pa.Super. 199, 206, 475 A.2d 754, 758 (1984). The suppression court’s order is fully supported by the record in this case. Although the offense which appellant was believed to have committed was only a misdemeanor, Kramer could, nevertheless, effect a lawful arrest without warrant under the Motor Vehicle Code then in effect. See: Act of April 29, 1959, P.L. 58, § 1204, 75 P.S. § 1204 (repealed and replaced by 75 Pa.C.S. § 6304).

Pursuant to the provisions of Section 624.1 of the Motor Vehicle Code of 1959, 75 P.S. § 624.1, as amended, an officer effecting a legal arrest for driving while under the influence of alcohol was authorized to transport the person arrested to an appropriate facility for a sobriety test. See: Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974). The statute imposed no geographical limitation. We decline to interpret the section as requiring that the testing facility be situated in the same county as that in which the alleged offense occurred. Where, as here, the equipment at the Dublin barracks was inoperative, the facilities at the Bethlehem Barracks in Lehigh County were appropriately located. These facilities were located a mere fifteen miles from the scene of the accident. They were not rendered inappropriate because they were available in an adjacent county. Compare: Commonwealth v. Quarles, supra (a suspect not under legal arrest may not be transported 22 miles for a sobriety test without his consent).

After post-trial motions had been denied and sentence had been imposed, an appeal was filed in this Court. Thereafter, appellant discharged his trial counsel, and Ralph Litzenberger, Esquire, entered an appearance on appellant’s behalf. Appellant and his new counsel were then successful in obtaining an order remanding the case to provide appellant with an opportunity to show at an evidentiary hearing that trial counsel had been ineffective. Following an evidentiary hearing, the court found that trial counsel had not been constitutionally ineffective and again refused appellant’s request for a new trial. Although appellant continues to assert in this Court that trial counsel was ineffective, he has inexplicably failed to provide this Court with a transcript of the evidentiary hearing at which relevant testimony was taken. Such a transcript, we are advised, is unavailable and cannot be provided.

On May 14, 1984, the Supreme Court of the United States, in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), gave us for the first time a definition of that defective assistance which would render counsel ineffective under the federal constitution. The Court said:

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

* * * * * *

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. New York, [350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)] [sic]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).

“The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

“Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

“These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions. See United States v. Decoster, [624 F.2d 196, 209-210 (D.C.Cir.1979) ].

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error has no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 [101 S.Ct. 665, 667-668, 66 L.Ed.2d 564] (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”

Id. at -- - --, 104 S.Ct. at 2064-2067.

If, at first blush, this appears to be a departure from the analysis of counsel’s effectiveness under Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), a close examination of subsequent Pennsylvania decisions discloses a totally harmonious relationship between Strickland and the rule adopted by the courts of this Commonwealth for determining ineffectiveness under Article 1, section 9 of the Pennsylvania Constitution. Thus, in Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983) the Supreme Court said:

“Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967). We presume counsel is effective. Moreover, the burden of establishing counsel’s ineffectiveness rests upon his client.

Id., 503 Pa. at 596, 470 A.2d at 77. The first issue to be addressed under the Pennsylvania decisions is whether the claim of ineffectiveness has arguable merit. Only if that issue is answered affirmatively, does it become necessary to determine whether counsel had a reasonable basis, designed to serve the interests of his client, for the course actually chosen. See: Commonwealth v. Stoyko, supra, 504 Pa. at 472, 475 A.2d at 723; Commonwealth v. Tann, 500 Pa. 593, 600, 459 A.2d 322, 326 (1983); Commonwealth v. Torres, 329 Pa.Super. 58, 67, 477 A.2d 1350, 1355 (1984); Commonwealth v. Howard, 324 Pa.Super. 443, 448, 471 A.2d 1239, 1241 (1984). Moreover, the courts of this State have repeatedly said that counsel will not be deemed ineffective in the absence of some showing that the defendant was prejudiced by counsel’s alleged shortcomings. Commonwealth v. Ford, 491 Pa. 586, 592, 421 A.2d 1040, 1043 (1980), quoting Commonwealth v. Wade, 480 Pa. 160, 172, 389 A.2d 560, 566 (1978); Commonwealth v. Smith, 321 Pa.Super. 170, 209-213, 467 A.2d 1307, 1328-1329 (1983). Accord: Commonwealth v. Laurenson, 323 Pa.Super. 46, 60-61, 470 A.2d 122, 129 (1983); Commonwealth v. Vesay, 318 Pa.Super. 320, 326-327, 464 A.2d 1363, 1367 (1983); Commonwealth v. Barton, 312 Pa.Super. 176, 182, 458 A.2d 571, 575 (1983). But see: Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978). Other decisions have reached the same result when alternatives not chosen by counsel failed to offer “a potential for success greater than those actually utilized.” Commonwealth ex rel. Washington v. Maroney, supra at 605 n. 8, 235 A.2d at 353 n. 8. See: Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976); Commonwealth v. Presbury, 329 Pa.Super. 179, 184, 478 A.2d 21, 24 (1984); Commonwealth v. Whyatt, 327 Pa.Super. 491, 495, 476 A.2d 374, 376 (1984); Commonwealth v. Bailey, 322 Pa.Super. 249, 267, 469 A.2d 604, 613 (1983); Commonwealth v. Wilson, 321 Pa.Super. 318, 322, 468 A.2d 498, 500 (1983).

In this case the defendant was himself an attorney who was knowledgeable and experienced in the practice of criminal law and procedure. His assertion that trial counsel was ineffective for failing to interview witnesses, therefore, was understandably viewed with suspicion by the trial court. It explains the trial court’s finding that appellant was not prejudiced by the failure of counsel to conduct his own interviews with witnesses, some of whom, in fact, had been cross-examined extensively during the preliminary hearing.

We reject appellant’s argument that we should remand once again so that he can have another opportunity to prove the ineffectiveness of trial counsel. A prior remand, with resulting, lengthy delay, was obtained at the behest of appellant so that he might effect an evidentiary record to support his claim that trial counsel had been ineffective. We will not again remand merely because appellant failed to obtain and provide us with a record of the hearing held before the trial court. Appellant has failed to meet the burden of proving that trial counsel was ineffective, and the judgment of sentence, therefore, will be affirmed.

Judgment of sentence affirmed.

      . An argument has also been made that the criminal complaint was insufficient. This issue was not preserved in written post-trial motions and, therefore, has been waived. See: Commonwealth v. Shain, 324 Pa.Super. 456, 467 n. 1, 471 A.2d 1246, 1251 n. 1 (1984); Common

        wealth, Dept. of Labor and Industry v. Giugliano, 318 Pa.Super. 32, 34, 464 A.2d 503, 504 (1983). In any event, there is no merit therein.

      . This section was added to the Motor Vehicle Code by the Act of July 28, 1961, P.L. 918, § 1 and has now been replaced by 75 Pa.C.S. §§ 1547, 3749.


author: MONTEMURO, Judge:

text:
    482 A.2d 974
    L. David HALL, M.D. and Sharon McGonigal, Executors of the Estate of Fred L. Hall, Deceased v. Martha HALL, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1984.
    Filed Sept. 7, 1984.
    Reargument Denied Nov. 9, 1984.
    Reargument Denied Feb. 14, 1985.

      Alida O’Hara, Honesdale, for appellant.

      Joseph Wright, Jr., Scranton, for appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from an order entered by the Honorable Robert J. Conway, President Judge of the Court of Common Pleas of Wayne County, granting a decree in divorce.

The parties to this case were married in 1952, and lived together until 1974. The husband, Fred L. Hall, commenced the present action by filing a complaint for divorce in which he alleged that the marriage was irretrievably broken. Although the complaint was originally filed in Centre County, appellant/wife, Martha Hall, filed preliminary objections requesting, inter alia, a change of venue to Wayne County. The preliminary objections were sustained. Subsequently, appellant/wife filed an answer and counterclaim averring indignities, and asking for alimony, alimony pendente lite, and equitable distribution.

Various pleadings were then filed by each of the parties, the most central of which were a motion for recusal filed by appellant, and a motion for bifurcation filed by Fred L. Hall. A hearing was held on both of these matters on April 14, 1982. On that same day, the trial judge issued orders denying the motion for recusal, and granting an immediate divorce, but retaining jurisdiction over the economic claims raised by appellant. Exceptions were then filed, and denied by order of court on June 1, 1982. This appeal followed; consequently, all proceedings in regard to economic matters in the lower court were stayed. On January 28, 1984, while this case was pending on appeal, Fred L. Hall, the appellee, died. By order of June 13, 1984, the executors of his estate, Sharon McGonigal and L. David Hall, were substituted as parties in the case.

Initially, we must deal with the question of whether the lower court erred in refusing to recuse itself. A party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal. Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Appellant certainly did not meet that burden here. In her motion for recusal she alleged two possible bases for disqualification, only one of which is raised on appeal. It concerns an ex parte communication which appellant alleged was in violation of Canon 3(A)(4) of the Code of Judicial Conduct. Specifically, the subsection states:

(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, must not consider ex parte communications concerning a pending proceeding.

From the little that was brought out at the April 14 hearing, it seems that the “ex parte” communication appellant refers to is a telephone conversation in which the court informed appellee’s attorney when certain Income and Expense Statements had to be filed, and when the hearing on alimony pendente lite would take place. This information or directive was subsequently or simultaneously made subject to court order. Obviously, this is not the type of communication contemplated in the subsection quoted above. It defies logic to suggest that the aim of the provision is to prohibit a judge from considering a communication which he himself makes to another person. Finding no abuse of discretion, we hold that the recusal motion was properly denied. Commonwealth v. Kane, 199 Pa.Super. 89, 184 A.2d 405 (1962).

We now turn to the question of the divorce.

What the lower court did, and appellant says this was error, was to sever the economic claims from the divorce claim. However, we find this to be in keeping with 23 P.S. § 401(b) which provides:

(b) Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of separation agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment. 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. (Emphasis added)

Similarly, Pa.R.C.P. 1920.52(c) states that:

(c) The court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.

Appellant raises two issues regarding the lower court’s order granting the divorce. Essentially, these two issues may be stated as one question — did the court err in bifurcating the proceedings?

Standards for bifurcation were recently set forth in the case of Wolk v. Wolk, 318 Pa.Super. 311, 317-318, 464 A.2d 1359, 1362 (1983). Therein, this court stated:

[T]he decision to bifurcate, though permissible, should not be made pro forma, as in the case of Klein v. Klein, [16 Pa.D&C 3d 651 (1980)]. Rather, such a determination should be made only after the disadvantages and the advantages have been carefully explored and analyzed. Each case must be reviewed on its own facts and only following the court’s determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition.

It went on to note:

Since the decision to bifurcate is discretionary, we will review lower court decisions pertaining to bifurcation by using an abuse of discretion standard. So long as the trial judge assembles adequate information, thoughtfully studies this information, and then explains his decision regarding bifurcation, we defer to his discretion. In other words, this determination should be the result of a reflective examination of the individual facts of each case.
Id.

We now turn to an examination of the record in an effort to determine whether the court in this instance complied with the standards enunciated in Wolk v. Wolk, supra.

As was stated earlier, the matter of bifurcation was considered by the lower court at the April 14, 1982, hearing. Out of a twenty-one page transcript of that hearing, only five pages contain testimony concerning the matter of bifurcation. (R. 113a-118a). Much of this testimony consists of discussion among the court and the parties’ attorneys on what the concept of bifurcation involves. Relatively little discussion is devoted to an examination of the potential consequences of bifurcation on these particular facts.

The hearing was abruptly ended by the trial judge who ordered from the bench that a divorce decree be entered. (R. 118a). This after stating, “I didn’t have to have a hearing on this motion for bifurcation ... I simply could have gone in the office and signed the decree.” (R. 117a).

The lower court did issue an opinion in this matter. Unfortunately, it is not terribly illuminating. Only one paragraph is devoted to an explanation of reasons for the decision to bifurcate. The relevant excerpt is set forth below:

It is this Court’s Opinion, in the interest of justice, and of the parties involved and taking all factors into consideration [sic], bifurcation will bring unnecessary procrastination to a minimum in this particular case. The fact that the marriage is irretrievably broken, and the parties have lived separate, and apart, for a period in excess of three (3) years is specifically admitted by defendant. Also, the history of litigation, involving these parties, gives good cause to believe that the matters of alimony and equitable division, will not be quickly nor easily resolved, in this particular case.

(Brief of Appellant at 23). While we recognize that the last sentence of the paragraph does give some account of the trial judge’s decision, it is basically a conclusion. Without elaboration, we are unable to ascertain whether the “disadvantages and the advantages [of bifurcation] have been carefully explored and analyzed.” Wolk v. Wolk, supra, 318 Pa.Super. at 317, 464 A.2d at 1362. In sum then, although we realize that the decision to bifurcate is discretionary, we are not convinced that in the case sub judice we have been presented with a, record wherein, “the trial judge assembles adequate information, thoughtfully studies this information, and then explains his decision regarding bifurcation ...” Id.

Appellee attempts to counter all of this by arguing that the lower court did in fact gather adequate information, and that it would have issued a decision on all of the economic claims but for the fact that appellant filed the instant appeal.

As to the adequacy of information, appellee points out that immediately following the April 14, 1982, hearing on the recusal motion and the motion to bifurcate, the court commenced taking testimony on economic matters. More testimony was taken on May 10, 1982 and May 11, 1982.

Initially, we note that there is some dispute between the parties as to the substance of this testimony. Appellee’s counsel seems to suggest that he indicated a desire that the testimony encompass equitable distribution, while appellant asserts that the sole subject was alimony pendente lite. We are unable to resolve this dispute because the transcripts of these hearings are not included in the record. However, it matters little since all of this occurred subsequent to the court’s decision to bifurcate. Obviously, what was contemplated in Wolk, and contrary to the suggestion offered by appellee, was that this information be gathered, and thoughtfully studied, before a decision on bifurcation is made; not merely before exceptions are decided or before an appeal is taken.

In a somewhat related vein, appellee asserts that the lower court, as evidenced by the hearings of April 14, May 10, and May 11, 1982, was moving toward a resolution of the economic issues, and would have rendered a decision on them if the appellant had not filed an appeal. Consequently, appellee reasons that any delay in the resolution of economic matters has been occasioned by the appellant’s actions. Instead, appellee suggests that appellant should have waited until all of the economic claims had been decided, and then should have appealed from all orders at the same time.

Appellee’s reasoning in this regard is flawed. An order entering a bifurcated divorce is final and appealable. See Thill v. Lamer, 321 Pa.Super. 62, 467 A.2d 894 (1983); Wolk v. Wolk, supra. If appellant were to wait until all economic claims were resolved, she would risk losing her right to appeal the bifurcation. The vagaries of court calendars being what they are, there certainly was no guarantee that all economic claims would be resolved prior to expiration of the thirty (30) day appeal period.

Having refuted appellee’s arguments, we now turn to the question of how we shall ultimately dispose of the case. In Wolk v. Wolk, supra, upon finding that the lower court failed to exercise its discretionary powers, the case was reversed and remanded.

It is in view of this potential disposition that the implications of the death of Fred L. Hall must be examined.

The normal consequence of an appeal is to suspend the effect of a divorce decree. As was stated by this court in Shuda v. Shuda, 283 Pa.Super. 253, 258, 423 A.2d 1242, 1244 (1980), “If the decree is set aside, the parties are still married; in retrospect, their marriage was never interrupted.”

What must be considered in conjunction with this principle regarding appeals, is the general rule that divorce proceedings pending at the death of either party are abated thereby, and the personal representatives of the deceased cannot be substituted. Matuszek v. Matuszek, 160 Pa.Super. 526, 52 A.2d 381 (1947); Upperman v. Upperman, 119 Pa.Super. 341, 181 A. 252 (1935); Chappell v. Chappell, 21 Pa. D.&C. 3d 44 (1981). However, there is an exception to this general rule which permits preservation of the action for purposes of appellate review, so long as the appeal has been perfected prior to death. Rhinehart v. Rhinehart, 197 Pa.Super. 558, 180 A.2d 82 (1962); Henszey v. Henszey, 195 Pa.Super. 377, 171 A.2d 837 (1961). It is on the authority of these cases that we have allowed substitution here.

Taken together, these two propositions dictate that it would be meaningless to remand in this instance.

To illustrate this point, let us suppose that we were to remand. Let us assume further that the lower court reviewed the matter in accordance with the requirements of Wolk, and determined that bifurcation was indeed proper. What then would the trial judge be able to do? The previous order granting the divorce would have been reversed by this court and a new order granting a divorce to a deceased or substituted party could not be entered. Conversely, let us assume that on remand the trial judge decided that the case should not be bifurcated. If the economic matters could somehow be considered, the court would still be faced with the impermissible eventuality of having to grant a divorce to a deceased or substituted party. Therefore, as a consequence of this reasoning, we decline to engage the lower court in the futility of a remand.

Order reversed.

      . 23 P.S. § 201(d).

      . There appears to be some confusion concerning which order was appealed. The lower court entered two orders on April 14, 1982. Timely exceptions were filed to both of these orders, and denied by a single order on June 1, 1982. The notice of appeal, which was not filed until June 15, 1982, states that the appeal is from the order of April 14; but, appellant’s brief sets forth the text of the order of June 1 as the order or determination in question. (See Pa.R.A.P. 2115).

        Appellee also treats this as an appeal from the order of June 1, 1982. (See appellee’s answer to motion for stay of hearing). We regard the properly appealable order, that of June 1, 1982, as the order from which this appeal was taken.


author: HESTER, Judge:

text:
    482 A.2d 979
    V.P. GOTTSCHALL, Appellant, v. JONES & LAUGHLIN STEEL CORPORATION. V.P. GOTTSCHALL, and V.P. Gottschall, as custodian under the Uniform Gifts to Minors Act for Nicholas P. Gottschall and Teresa Gottschall, Minors, All In Their Own Behalf, and for all others similarly situated v. JONES & LAUGHLIN STEEL CORPORATION, A Corporation, and Paul Thayer, Raymond A. Hay, Thomas C. Graham, G.E. Smith and D.T. Kalil. Appeal of V.P. GOTTSCHALL.
    Superior Court of Pennsylvania.
    Argued May 15, 1984.
    Filed Sept. 7, 1984.
    Reargument Denied Nov. 9, 1984.
    Petition for Allowance of Appeal Denied April 16, 1985.

      V. Gottschall, Pittsburgh, in propria persona.
    Donald C. Winson, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Appellant, as both named party-plaintiff and counsel of record for the class of plaintiff shareholders, instituted a class action against his former employer, Jones & Laughlin Steel Corporation (hereinafter referred to as “J & L”), and five individuals who were officers of J & L and/or its parent. Appellant was an attorney for J & L from 1969 until his termination in 1979. From 1971 through 1979 he was an Assistant Secretary of J & L and from 1976 through 1979 he was an Assistant General Counsel of J & L. Appellant had responsibility for J & L’s compliance with securities law.

Appellant, at the time this suit was initiated, October 29, 1980, was a preferred shareholder in J & L along with his two children. Appellant alleges in this class action, inter alia, appellees depressed the price of the preferred stock, failed to disseminate information and issued erroneous material information to the class.

As both plaintiff and counsel, appellant subsequently filed another lawsuit against J & L requesting the involuntary dissolution of J & L pursuant to § 2107 of the Pennsylvania Business Corporation Law. 15 P.S. § 1001 et seq.

In both suits appellees petitioned the lower court to disqualify appellant as plaintiff and counsel of record. Appellees assert appellant’s lawsuits breach the attorney-client privilege and undermine the Pennsylvania Code of Professional Responsibility, Canons 4 and 9. Canon 4 prohibits an attorney from using client confidences in suits against a former client. Canon 9 prohibits the appearance of impropriety.

In support of its petitions to disqualify appellant, appellees submitted to the trial judge appellees’ affidavits and documents from J & L’s files to demonstrate that appellant’s past representation of J & L was substantially related to the subject matter of the present actions. Subsequently, appellant filed in both suits petitions to disqualify counsel for J & L.

The trial judge scheduled a hearing to resolve the petitions to disqualify and stayed both actions pending resolutions of the petitions. Concomitantly, the trial judge issued protective orders in both suits to insure the confidentiality of J & L’s documentation of their espoused attorney-client privilege until the hearing conducted to resolve the matters set forth in the petitions.

Appellant then appealed the protective orders in both actions. Upon appellant’s motion, this Court stayed the trial court’s hearing to resolve the petitions to disqualify. Appellees moved to quash the appeals on the basis that they were interlocutory. This Court directed the parties to brief and argue the jurisdictional propriety of the appeals together with the merits.

This Court consolidated the appeal in the action requesting involuntary dissolution of J & L (No. 267 Pittsburgh, 1981) with the appeal in the class action (No. 59 Pittsburgh, 1981).

The protective order at No. 59 Pittsburgh, 1981 seals those portions of the record pertaining to appellee’s petition to disqualify appellant. Additionally, appellant or any other counsel of record for plaintiffs is prohibited from disclosing the contents of the sealed portions to third parties. At No. 267 Pittsburgh, 1981, the order prohibits disclosure to third parties, but excepts potential counsel for appellant who agree to be bound by the order, however, written notice must be given to appellees before appellant consults with proposed counsel.

Appellant argues the protective orders are final, collateral and injunctive, and therefore, this Court has subject matter jurisdiction to hold the orders are a restraint on appellant’s First Amendment rights and his right to secure counsel.

We cannot agree. Appellate jurisdiction attaches only to “final orders”, 42 Pa.C.S.A. §§ 702, 742, and in determining what constitutes a final order we consider the principles set forth by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and by the Pennsylvania Supreme Court in Piltzer v. Independence Federal Savings and Loan Assn., 456 Pa. 402, 319 A.2d 677 (1974) and Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).

A final order is one which ends the litigation, or alternatively, disposes of the entire case. Piltzer, supra. The protective orders do not preclude appellant from further litigating his actions in the lower court, but rather, provide safeguards necessary to protect appellees’ asserted attorney-client privilege pending appellees’ actual proof of the existence of that privilege.

We must consider the practical ramifications of the orders to ascertain if they terminate appellant’s actions. Conaway v. 20th Century Corp., 491 Pa. 189, 420 A.2d 405 (1980); Gordon v. Gordon, 293 Pa.Super.Ct. 491, 439 A.2d 683 (1981), aff'd. mem., 498 Pa. 570, 449 A.2d 1378 (1982).

In Conaway, the trial court sustained defendant’s preliminary objections in the nature of a demurrer to plaintiff’s complaint. The trial court dismissed plaintiff’s action, and sustained the demurrer “in accordance with the above opinion.” The above opinion invited, via “reconsideration”, the plaintiff to add to the record. The Pennsylvania Supreme Court stated:

Hence, whatever finality the court expressed on the one hand, it destroyed on the other, and the practical ramification of the order of September 29, 1975 was not to put Conaway out of court. Accordingly, the order of September 29, 1975 was not final, [emphasis added].

491 Pa. at 197, 420 A.2d at 409.

Instantly, the orders restrict for a limited period and to a limited class appellant’s dissemination of the protected information. Appellant still has the ability to litigate the merits of the petitions to disqualify. The orders sufficiently insure appellant’s right to secure counsel. Appellant may in fact be disqualified based on the protected information, but that is the issue to be decided at the pending lower court hearing on the petitions to disqualify.

The appealability of an order or judgment must be determined as of the time the appeal therefrom is filed. If the order appealed from is interlocutory, the appeal may be quashed immediately upon motion. See: Pa.R.A.P. 1972. In such cases, the lack of jurisdiction to entertain an appeal from the interlocutory order cannot be corrected by subsequent events in the same action.

Praisner v. Stocker, 313 Pa.Super.Ct. 332, 343 n. 4, 459 A.2d 1255, 1261 n. 4 (1983).

Appellant propounds that his communication with the press, other attorneys or experts, etc., limited by the protective orders, is a matter which is separable from and collateral to the main cause of actions and therefore, the orders are final as determined by the three-part test announced in Cohen v. Beneficial Industrial Loan Corporation, supra.

In Cohen, the issue was the appealability of an order, collateral to a stockholders’ derivative action, which denied a petition to require the plaintiff to post security to cover defendant’s expenses and counsel fees if plaintiff’s action proved unsuccessful. The Supreme Court held the order appealable because the claim adjudicated was “separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Praisner v. Stocker, 313 Pa.Super.Ct. at 342, 459 A.2d at 1261 (quoting Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. at 546, 69 S.Ct. at 1225, 93 L.Ed.2d at 1536).

Appellant’s interpretation of the protective orders is too restrictive. Appellant considers only the fact that information is placed under seal and that his ability to disseminate that information is restricted. Appellant fails to acknowledge the significance the information may have to the underlying actions. The information placed under seal has the potential to determine the ultimate issues of liability, or alternatively to disqualify appellant from pursuing the merits of the actions. Therefore, the orders directly relate to the main causes of action.

The Cohen test is applicable only to determine the appealability of an order which is collateral to the main action. Praisner, supra. Since appellant fails to satisfy the first requirement in the three-part Cohen test, it is not necessary to consider herein the remaining two requirements.

Appellant erroneously defines the protective orders as injunctions and therefore, appealable as of right pursuant to Pa.R.A.P. 311(a)(4). Appellant relies on Rosenzweig v. Factor, 457 Pa. 492, 327 A.2d 36 (1974), as authority for his position that the protective orders maintain the status quo and therefore, are special injunctions.

The lower court in Rosenzweig, Id., failed to follow the mandatory procedure before issuing the special injunction directing appellant to deposit the controverted funds in escrow. Although ample time existed, the injunction was issued without a hearing or prior notice, and without a showing of irreparable injury.

Appellant suffers no irreparable injury. This Court’s jurisdiction cannot automatically be conferred because unlike the funds in Rosenzweig, Id., the sealed information will remain available for future dissemination if appellant prevails on appellees’ petitions to disqualify appellant. Appellant cannot complain that the lapse of time will nullify the importance of the protected information, as he requested the stay of the hearing on the petitions to disqualify.

The protective orders are not injunctions as they acknowledge the continuing attorney-client privilege. They are a means to avoid potential contravention of the policies underlying Canons 4 and 9 of the Pennsylvania Code of Professional Responsibility.

Since this Court lacks subject matter jurisdiction, we cannot consider the merits of these consolidated appeals.

Orders affirmed. Appeals quashed.

      . The Order on Appeal at No. 59 Pittsburgh, 1981 reads as follows:
      AND NOW, to wit, this 30 day of December, 1980, upon consideration of defendant's December 29, 1980 Motion, it is hereby ordered that, until further order of court: (1) defendants’ Petition for Disqualification, the Affidavit of D.T. Kalil with attached exhibits, the Affidavit of J.P. Kelly and defendants' Brief supporting its Petition for Disqualification as well as any responsive proceedings relating to defendants’ Petition for Disqualification be kept confidential and under seal such that they are not made part of the public record in this case, and (2) Mr. Gottschall and any other counsel of record for plaintiffs in this action refrain from disclosing to any third party the nature or contents of those parts of the record made confidential by the within order.
      By the Court

        /&/ Silvestri, J.

      . The Order on Appeal at No. 267 Pittsburgh, 1981 reads as follows:
      AND NOW, to wit, this 29th day of January, 1981, upon consideration of the January 29, 1981 Motion filed by Jones and Laughlin Steel Corporation ("J & L”), it is hereby ordered that, until further order of court: (1) J & L’s Petition for Disqualification of Mr. Gottschall, the Affidavits of D.T. Kalil and J.P. Kelly with attached exhibits and J & L’s Brief supporting its Petition for Disqualification of Mr. Gottschall, be kept confidential and under seal such that they are not made part of the public record in this case and (2) Mr. Gottschall and any other counsel of record for Mr. Gottschall in this action refrain from disclosing to any third party the nature or contents of those parts of the record made confidential by the within order; provided, that Mr. Gottschall and any other counsel of record for plaintiff in this action may disclose the nature or contents of those parts of the record made confidential by this order if (i) such disclosure is limited to an attorney being consulted for purposes of possibly becoming additional counsel of record for plaintiff in this action, (ii) such disclosure is made only after prior written notice to counsel of record for J & L of the name and address of the attorney to whom such disclosure is proposed to be made and (iii) such disclosure is made only to an attorney who is not presently involved in any other litigation concerning J & L and who agrees to be bound by the terms of this order.
      By the Court
      /s/ Silvestri, J.