author: HUDOCK, Judge: CERCONE, Judge,

text:
    638 A.2d 1019
    In re ESTATE OF John LISCIO, deceased. Appeal of Kimberley A. SOMMA, Administratrix of the Estate of John Liscio, deceased.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1993.
    Filed March 17, 1994.

      Ruth A. Zittrain, Pittsburgh, for appellant.
    Raymond Radakovich, Pittsburgh, for participating party.
    Before TAMILIA, HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

Kimberley A. Somma, Administratrix of the Estate of John Liscio, deceased, appeals from the order sustaining the exceptions of Mary DiPerna to the estate’s award of counsel fees and costs pursuant to 42 Pa.C.S. § 2503 as sanctions for the vexatious, arbitrary, dilatory, frivolous, and bad faith action of Ms. DiPerna and her counsel during the pendency of the underlying claim they had brought against the estate. We reverse.

On June 10,1989, John Liscio died intestate, survived by his daughter, Sherilynn Liscio. Because Ms. Liscio resided in Florida, she renounced her right to administer her father’s estate. Thereafter, Mrs. Kimberley Ann Somma was appointed to administer- the estate. Letters of administration were duly issued to Mrs. Somma on June 15,1989. On July 6,1989, Ms. DiPerna, through her counsel, Raymond Radakovich,Esquire, filed a petition for revocation of letters, requesting the court to remove Mrs. Somma as Administratrix of the Estate of John Liscio and substitute Ms. DiPerna, based on Ms. DiPerna’s allegation that she was decedent’s natural daughter. A rule was issued by the Register of Wills, and the administratrix defended on two bases: 1) that Ms. DiPerna was not the natural daughter of the decedent, and 2) that Ms. DiPerna had been adopted legally shortly after her birth by persons other than decedent or his former wife; thus, her right, if any, to administer and inherit under decedent’s estate was terminated by reason of the adoption. See 20 Pa.C.S. § 2108. The petition to revoke the letters subsequently was withdrawn, when counsel for the estate agreed to give notice to Ms. DiPerna of the filing of an account and to permit the issue of Ms. DiPerna’s right to inherit from the estate to be decided by the Orphans’ Court following the filing of the account.

In accordance with that agreement, Ms. DiPerna was notified of the filing of the account, and she filed objections, again contending that she was an equal heir with Ms. Sherilynn Liscio in the estate by virtue of her status as a natural daughter to decedent. A hearing was held on her claim on July 11, 1990, where the following was established: Ms. DiPerna, adopted as a baby, decided in 1979 to discover the identity of her natural parents. Ms. DiPerna eventually found, met, and developed a relationship with her natural mother, who informed her that her natural father was the decedent. However, Ms. DiPerna never met decedent prior to his death.

At the hearing, Ms. DiPerna acknowledged that she was adopted, but contested the fact that she was adopted “legally”. Specifically, Ms. DiPerna contended that, because her alleged father, John Liscio, had not been present at the adoption proceedings, and because he had not been notified of the proceedings, her adoption was tainted. Ms. DiPerna alleges that it was not until sometime after the proceedings had been completed that John Liscio was informed of the adoption. Since Ms. DiPerna’s adoption proceedings had never been made available for her review, she suggested that the estate could not sustain a finding that she was legally adopted. In 1979, Ms. DiPerna attempted to gain access to her adoption file by instituting an action against the children’s home that handled her adoption. It is established in the record of this proceeding that, in the 1979 action, Ms. DiPerna averred that she was adopted on July 5, 1950, through the children’s home. The Orphan’s Court in this action had the adoption file, and, over Ms. DiPerna’s protest, reviewed the adoption file in camera. Ms. DiPerna was shown the cover of the file, and the hearing was concluded.

On July 11, 1990, the Orphans’ Court determined that Ms. DiPerna was adopted legally and dismissed her objections to the first and final account. Ms. DiPerna timely filed an appeal to this Court. This Court affirmed, 413 Pa.Super 661, 596 A.2d 257, and the Supreme Court denied Ms. DiPerna’s petition for allocatur, 529 Pa. 621, 600 A.2d 537. Subsequently, the estate filed a motion for counsel fees and costs, pursuant to 42 Pa.C.S. § 2503, for Ms. DiPerna’s dilatory, vexatious, arbitrary and bad faith actions in continuing to pursue a frivolous and meritless claim. This motion included Ms. DiPerna’s attorney as a sanctionable party for his actions in promoting and proceeding with a claim he knew was frivolous, meritless, and against settled law. Briefs were prepared and argument was heard on December 20, 1991, by the Honorable Michael J. O’Malley. On April 9, 1992, the court ordered that Ms. DiPerna and/or her counsel, Raymond Radakovich, Esquire, reimburse the estate of John Liscio the sum of $15,563. Ms. DiPerna and her counsel filed exceptions, which were granted on January 21, 1993, after hearing oral argument by the Orphans’ Court en banc, thereby reversing the award. This appeal followed.

On appeal, the estate raises the sole question of:

WHETHER THE ACTIONS OF APPELLEE AND HER COUNSEL IN THE UNDERLYING CASE WON BY THE APPELLANT FALL WITHIN THE DEFINITION OF FRIVOLOUS, VEXATIOUS, ARBITRARY, DILATORY AND BAD FAITH SO AS TO ENTITLE APPELLANT TO COUNSEL FEES AND COSTS PURSUANT TO 42 Pa.C.S.A. § 2503?

Appellant’s Brief at p. viii.

The court may require a party to pay another participant’s counsel fees if the party’s conduct in commencing the action was “arbitrary, vexatious or in bad faith.” 42 Pa.C.S. § 2503(9); Brenckle v. Arblaster, 320 Pa.Super. 87, 93, 466 A.2d 1075, 1078 (1983). Likewise, the court may require an award of counsel fees if the party’s conduct during the pendency of the matter is dilatory, obdurate or vexatious. 42 Pa.C.S. § 2503(7). “Generally, if the record supports a court’s finding of fact that the conduct of one party was in bad faith, an award of counsel fees will not be disturbed in the absence of an abuse of discretion.” State Farm Mutual Automobile Insurance Company v. Allen, 375 Pa.Super. 319, 325, 544 A.2d 491, 494 (1988).

The estate argues that the record is replete with conduct which demonstrated that Ms. DiPerna’s actions, as well as her counsel’s, in instituting the within action and then proceeding through all the levels of the judiciary with the action, were arbitrary, vexatious and taken in bad faith. The estate contends that Ms. DiPerna and her counsel were well aware that Ms. DiPerna had been adopted, and that the law in this Commonwealth is absolutely and unequivocally clear that an adopted child cannot inherit from her biological parents. The estate thus concludes that because both statute and case law establish as black letter law that an adopted child cannot inherit from her biological parents, the fact that Ms. DiPerna and her counsel, nonetheless, chose to contest the distribution of the estate equates with the conduct necessary to recover counsel fees and costs pursuant to 42 Pa.C.S. § 2503.

Conversely, Ms. DiPerna and her counsel argue that their case was not without merit and that it was not vexatious, arbitrary or taken in bad faith. Rather, Ms. DiPerna and her counsel contend that the issue they pursued in all of the underlying proceedings had been consistent and legitimate, namely: whether, for purposes of intestate distribution of an estate, an adult individual, allegedly adopted at birth, may discover if the proper process and procedure was followed in her alleged adoption, thus testing the validity of the alleged adoption decree, "with the possibility of having it declared void and enabling inheritance from the estate of the biological parent.

The Orphans’ Court en banc, in reversing the award of counsel fees by the hearing court, found that Ms. DiPerna and her counsel did not act in bad faith by instituting the action against the estate, reasoning that, although Ms. DiPerna’s chance of prevailing on her petition was slight, with little or no reasonable chance of success under the governing case law, because she considered her claim to be valid and because she pursued her legal remedy in good faith, her actions failed to rise to the level of “vexatious” conduct sufficient to qualify the estate relief under 42 Pa.C.S. § 2503. The court en banc held that Ms. DiPerna’s litigation was no more vexatious or frivolous than those of her historically significant predecessors which reversed the existing state of the law and which had been precipitated by a challenge to the status quo, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (striking down racial discrimination in public education); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (extending constitutional protections to a woman’s right to an abortion); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (establishing a defendant’s right to counsel throughout the appellate process). Moreover, the court en banc found that with the evolution of the law in the areas of inheritance by an adopted person from his natural parent’s estate, and the notice and consent necessary of a natural father for adoption of a child out of wedlock, Ms. DiPerna’s claim was a valid attempt to prove her entitlement to a portion of the decedent’s estate. We, however, find the court en band’s analysis untenable under the factual scenario of this case.

After carefully reviewing the record in this matter, we find the hearing court’s award of attorney fees to have been proper, as there exists a basis in the record for a finding of arbitrary, vexatious, and bad faith conduct as required by 42 Pa.C.S. §§ 2503(7) and (9) on the part of Ms. DiPerna and her counsel. It has repeatedly been held that, “the intent of the rule permitting the recovery of counsel fees is not to punish all of those who initiate actions which ultimately fail, as such a course of action would have a chilling effect upon the right to raise a claim.” Dooley v. Rubin, 422 Pa.Super. 57, 64, 618 A.2d 1014, 1018 (1993), citing Santilo v. Robinson, 383 Pa.Super. 604, 557 A.2d 416 (1989). “Rather, the aim of the rule is to sanction those who knowingly raise, in bad faith, frivolous claims which have no reasonable possibility of success, for the purpose of harassing, obstructing or delaying the opposing party.” Id. In this instance, Ms. DiPerna and her counsel filed an action against the estate of her alleged natural father, with the knowledge that Ms. DiPerna had been adopted, and that the law prohibits adopted children from recovering from their natural parents’ estates. Moreover, we find Ms. DiPerna’s contention that she had a viable claim due to her adoption being tainted, specifically that her father allegedly did not receive notice of the adoption proceedings nor give his consent to the adoption, to be completely devoid of merit. The law, at the time of Ms. DiPerna’s adoption, clearly stated, “[i]n the case of an illegitimate child, the consent of the mother only shall be necessary.” 1 Pa.S. § 2(c); June 30, 1947, P.L. 1180, § 2, entitled Consents necessary to adoption, (emphasis added) See also, In re McCann’s Adoption, 104 Pa.Super. 196, 159 A. 334 (1932); Adoption of Uhler, 29 North. 76 (1944). Thus, the law at the time of Ms. DiPerna’s adoption was clear that the father of an illegitimate child need not be given notice of the adoption, as his consent was not required to effectuate same. If Ms. DiPerna’s claim would have merely been weak and subsequently found devoid of merit, it would not necessarily have equated with conduct that is arbitrary, vexatious or in bad faith. However, because Ms. DiPerna’s claim had no reasonable possibility of success, coupled with her prolonging litigation and unnecessarily delaying distribution of the estate, as well as costing the estate thousands of dollars in attorney fees, we find that such conduct is the conduct envisioned by 42 Pa.C.S. § 2503 permitting an award of attorney fees. Accordingly, we find that the court en banc abused its discretion by granting Ms. DiPerna’s exceptions and vacating the award of counsel fees and costs.

Next, we must determine whether Ms. DiPerna’s counsel can be held jointly and severally liable for the judgment. For the following reasons, we find that he may. In Simmons v. City of Philadelphia, 80 Pa.Cmwlth. 354, 471 A.2d 909 (1984), the Commonwealth Court held that the trial court had properly awarded counsel fees against the defense attorney for vexatious conduct, pursuant to 42 Pa.C.S. § 2503, in the city’s actions in assumpsit for delinquent wage taxes, where the attorney continued to assert previously adjudicated and rejected defenses. Although Simmons is not of precedential value, we find the reasoning therein to be persuasive. In Simmons, the court stated:

Section 2503(7) of the Judicial Code, 42 Pa.C.S. § 2503(7), provides that counsel fees may be awarded ... “as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter” and Section 102 of the Judicial Code, 42 Pa.C.S. § 102, defines a participant as “[ljitigants, witnesses and their counsel.” Hence Section 2503(7) permits the award of counsel fees against an attorney....
Also, Section 2503(9) of the Judicial Code, 42 Pa.C.S. § 2503(9), authorizes the award of counsel fees against a party “because the conduct of ... [the] party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.” The definition of party at Section 102 of the Judicial Code, 42 Pa.C.S. § 102 “includes counsel [ ] for such a person who is represented by counsel.” [citations omitted.]

Id. at 358, 471 A.2d at 911. Based on these sections of the Judicial Code, we find that counsel fees were appropriately awarded in the within action against Ms. DiPerna and her counsel, jointly and severally. Counsel was aware of the fact that Ms. DiPerna had been adopted, and knew or should have known that notice to the natural father of the adoption of his illegitimate child was unnecessary in 1950. Thus, to continually attempt to argue against well-settled case law, and to attempt to apply retroactively the present law to an adoption in 1950, was clearly a frivolous, as well as a bad faith attempt by counsel to alter the state of the law at the expense of the Liscio estate. We note, however, that this finding should not be construed as disfavoring legitimate attempts to change existing law. Where long-standing case law is contrary to a party’s position, there may be a reasonable basis for arguing the re-evaluation of that law. We merely find .this not to be such a case, as Ms. DiPerna’s counsel could not have reasonably believed that the courts of this Commonwealth would be persuaded to change well-settled law concerning the inheritance of an adopted person, especially when the adoption occurred in accordance with the laws at the time of the adoption.

Order of the Orphans’ Court sitting en banc sustaining exceptions filed by Mary DiPerna and Raymond Radakovich, Esquire, is hereby vacated, and the judgment of the Orphans’ Court is hereby reinstated. Jurisdiction relinquished.

CERCONE, J., files a concurring statement.

CERCONE, Judge,

concurring:

Although I concur in the decision of my esteemed colleagues, I write separately to emphasize my view that since this matter turns on the issue of bad faith as it relates to the imposition of attorneys’ fees, I have serious doubts as to how far our judicial system can go in precluding inspection of court documents by a litigant who has a legitimate interest in and right to explore them. However, since in this particular case, the issue has been waived, this court is correct in not addressing it.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    638 A.2d 1023
    FRAN AND JOHN’S DOYLESTOWN AUTO CENTER, INC., Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1994.
    Filed March 17, 1994.

      George A. Gallenthin, Doylestown, for appellant.
    Steven C. Shahan, Morrisville, for appellee.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the Order sustaining a preliminary objection in the nature of a demurrer to appellant’s second amended Complaint and dismissing the Complaint with prejudice.

On appeal, appellant queries (1) whether an insured may assign an interest which the insured has in a contract of insurance limited to a specific loss covered under the contract of insurance to a third-party beneficiary (appellant herein) without the consent of the insurer (appellee herein); and (2) whether appellant, as a third-party beneficiary to a contract of insurance between an insured and appellee, may file an action as a real party in interest and specifically for fraudulent misrepresentation. We affirm.

Appellant initiated a cause of action against appellee grounded in fraud, for violation of the Unfair Trade Practices and Consumer Protection Law (73 P.S. §§ 201-1 et seq.) and for relief pursuant to 42 Pa.C.S.A. § 8371 for payment of interest because of appellee’s alleged bad faith. This cause of action arose from appellant’s repair of motor vehicles belonging to appellee’s insureds. The vehicles involved had been damaged in automobile accidents. Appellee’s adjustor prepared an estimate for each damaged vehicle and issued checks in the amount of the estimates. Appellant, in the process of repairing the damaged vehicles, requested supplemental sums which it claimed was necessary in order to complete the repairs. Appellee’s adjustor then prepared new estimates and negotiated with appellant concerning these supplemental amounts. Apparently, appellant was dissatisfied with the negotiated supplemental amounts and filed the instant cause of action against appellee to recover sums representing the differences between the negotiated supplemental amounts to repair each of the motor vehicles and the supplemental amounts which appellant had requested from appellee.

Appellant requested each of appellee’s insureds whose motor vehicles were being repaired by it to execute a document which appellant had labelled “Assignment”. This document purported to assign to appellant the insureds’ claim to payment for repairs from appellee under their respective contracts of insurance with appellee. The language of each “Assignment” is identical except for the name of the insured and the date of the accident and is as follows:

ASSIGNMENT
I, [name of insured] for good and valuable consideration and intending to be legally bound do hereby assign and convey to Fran and John’s Doylestown Auto Center, Inc. [appellant herein] any and all claims, rights, actions, and causes of action which I may have against Allstate Insurance Company [appellee herein] in connection with the repair of my vehicle which was damaged in an automobile accident on [date of accident]
[signature of insured]
WITNESS:

(Emphasis supplied).

The “General Provisions” page of the policy issued by appellee and in effect for each of the insureds whose motor vehicles were repaired by appellant contains a “Transfer” clause which reads in pertinent part as follows: “This policy can’t be transferred to another person without our written consent____” (Emphasis in original). Appellant acknowledges the existence of the transfer clause in each of the applicable policies but maintains that it prohibits only the transfer of the policy, itself, not a right or an interest accruing thereunder. Appellant reasons that the Assignments executed by each of the insureds do not transfer the policies to appellant. Instead, appellant maintains, the assignments transfer to appellant only the insureds’ contractual right to payment from appellee for repair work to their damaged vehicles. In other words, appellant attempts to argue that a distinction exists between the assignment of a contractual right to receive payment for repair of damage to a covered automobile and the transfer of the policy, itself.

Our supreme court has said that an assignment is “ ‘a transfer or setting over of property, or of some right or interest therein, from one person to another, and unless in some way qualified, it is properly the transfer of one whole interest in an estate, chattel, or other thing.’” In re Purman’s Estate, 358 Pa. 187, 56 A.2d 86 (1948); (emphasis supplied). Black’s Law Dictionary similarly defines “Assignment” as “[a] transfer or making over to another of the whole of any property____ The transfer by a party of all of its rights to some kind of property----” At 61 (5th ed. 1979); (emphasis supplied). See also National Mutual Aid Society v. Lupold, 101 Pa. 111 (1882) (upholding validity of clause prohibiting transfer of certificate of mutual benefit association without latter’s consent).

Appellant does not argue that the transfer clause of the policies is ambiguous. Hence, and in that case, a court is required to give effect to the unambiguous language of the insurance policy. Stump v. State Farm Mutual Automobile Ins. Co., 387 Pa.Super. 310, 564 A.2d 194 (1989). Appellant’s reasoning that the Assignments in question transfer less than the insureds’ entire contractual interest in or right under the policies stands the transfer provision of the policies on its head. We find the language of this provision to be susceptible of no possible meaning other than to prohibit any transfer without appellee’s consent. We are powerless to place upon the language of the policies in question any construction which conflicts with its plain meaning. Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). In short, we are unpersuaded by appellant’s attempt at what amounts to semantical gamesmanship.

Appellant also argues that it is nevertheless the real party in interest here because it is a third-party beneficiary to the contract of insurance between appellee and its insureds.

In Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), our supreme court adopted Section 302 of the Restatement (Second) of Contracts as a guide to determine whether a party qualifies as a third-party beneficiary to a contract. Section 302 states:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

The supreme court then fashioned the following two-part test to determine whether a person qualifies as a third-party beneficiary to a contract:

(1) the recognition of the beneficiary’s right must be ‘appropriate to effectuate the intention of the parties,’ and (2) the performance must ‘satisfy an obligation of the promisee to pay money to the beneficiary’ or ‘the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.’ The first part of the test sets forth a standing requirement. For any suit to be brought, the right to performance must be ‘appropriate to effectuate the intentions of the parties.’ This general condition restricts the application of the second part of the test, which defines the intended beneficiary as either a creditor beneficiary (§ 302(l)(a)) or a donee beneficiary (§ 302(l)(b))____ Section 302(2) defines all beneficiaries who are not intentional beneficiaries as incidental beneficiaries. The standing requirement leaves discretion with the trial court to determine whether recognition of third party beneficiary status would be ‘appropriate.’ If the two steps of the test are met, the beneficiary is an intended beneficiary ‘unless otherwise agreed between promisor and promisee.’

Guy, supra, at 459 A.2d at 751.

We need not look any further than to the first part of the Guy test to determine “whether recognition of third party beneficiary status would be ‘appropriate’ ” under the facts of this case. Id. We conclude that it would be inappropriate to confer the status of third-party beneficiary upon appellant under the facts at bar. In Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986), appeal denied, 515 Pa. 580, 527 A.2d 541 (1987), we denied third-party-beneficiary status to the Essex Ring Corporation. Gerace Jewelry Store had contracted with Holmes for the installation and maintenance of a burglar alarm system at the jewelry store. Essex, through its sales representative, had left with Gerace a case of sample rings which Essex owned. The rings were stolen as a result of a robbery of the jewelry store. Essex and Gerace then instituted suit against Holmes for, inter alia, breach of contract. In denying Essex the status of third-party beneficiary, we stated that Essex had no contract with Holmes by which the latter owed the former a legal or contractual duty, nor did Essex possess any right or interest in the contract between Gerace and Holmes. The owner of Essex testified at the hearing on Holmes’ Motion for summary judgment that he had no knowledge of the contract between Gerace and Holmes and had no information relating to the operation of the burglar alarm system. This court concluded that Essex was neither a creditor beneficiary under Section 302(a) of the Restatement (Second) of Contracts nor a donee beneficiary under subsection (b) thereof. Therefore, we held that conferring the status of third-party beneficiary to Essex was inappropriate under the circumstances.

In this case, we similarly conclude that it would be inappropriate to confer the status of third-party beneficiary upon appellant because the contract of insurance between appellee and its insureds does not reflect this to be the intention of the parties. Appellee owes no contractual or legal duty of performance to appellant, as the contract of insurance is for the benefit and protection of the insureds, only. See Fizz v. Kurtz, Dowd & Nuss, Inc., 360 Pa.Super. 151, 519 A.2d 1037 (1987) (third party beneficiary must be owed legal duty under by contracting parties; obtaining insurance is for exclusive benefit of insured). This is evidenced by the fact that the transfer provision of the instant policies prohibits transfer to any third party without the consent of appellee, which was not here obtained.

Order affirmed.

      . Neither the parties nor the trial court deny that appellee has not consented to the transfer of any of the policies here involved.

      . In fact, appellant’s argument in this regard is defeated by the very terms of the Assignment set forth above. According this document, the insured assigns to appellant "any and all claims, rights, actions, and causes of action” which the insured may have against appellee. (Emphasis supplied). Hence, the Assignment operates as a transfer of an insured’s entire contractual interest in and all contractual rights under the policy in contravention of the express terms of the policy prohibiting transfer without appellee’s consent.


author: KELLY, Judge:

text:
    638 A.2d 1027
    Gerald FARLEY, Jr. and Susan Farley, h/w, Appellants, v. McDONNELL DOUGLAS TRUCK SERVICES, INC., Mack Trucks, Inc., and Milton Paper Company, Hunters Point Steel, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1993.
    Filed March 17, 1994.

      Louis F. Hinman, III, Philadelphia, for appellants.
    Louis E. Cheek, Philadelphia, for Hunters Point, appellee.
    Before ROWLEY, President Judge, and McEWEN and KELLY, JJ.
   KELLY, Judge:

In this appeal we are asked to determine if the trial court abused its discretion when it granted a motion to dismiss a complaint on the grounds of forum non conveniens. Under the facts of this case, we hold that the trial court did abuse its discretion when it dismissed the complaint. Thus, we reverse the trial court’s order dismissing the complaint and remand for further proceedings consistent with this opinion.

On September 11, 1990, appellant, Gerald Farley, was making a delivery to defendant, Milton Paper Company (“Milton Paper”) in Long Island, New York. When alighting from the truck, appellant’s foot slipped off the truck’s gas tank. After falling from the truck, he twisted his ankle on a piece of scrap iron which was on Milton Paper’s loading dock. Appellants’ complaint alleges that the gas tank of the truck was defectively designed and maintained and the condition of Milton Paper’s property was dangerous and that these two factors combined to injure appellant, Gerald Farley.

The truck involved was manufactured by defendant, Mack Truck, Inc. (“Mack”). Defendant, McDonnell Douglas Truck Services, Inc. (“McDonnell”) leased the truck to appellant’s, Gerald Farley’s, employer.

Appellants are residents of Philadelphia, Pennsylvania. Defendants, Mack and McDonnell, maintain offices in Philadelphia, Pennsylvania. Defendant’s, Milton Paper’s, principal place of business is in Long Island, New York.

Appellants brought a civil action against defendants McDonnell, Mack and Milton Paper in Philadelphia, Pennsylvania. None of the defendants objected to the venue. Defendant, Milton Paper, filed a writ to join Hunters Point Steel Company (“Hunters Point”), as an additional defendant. Approximately a year after Hunters Point was joined as an additional defendant, Milton Paper filed a defendant’s complaint against appellee. Nine days later, appellee filed a motion to dismiss on the basis of forum non conveniens. Hunters Point’s principal place of business is in Long Island, New York.

Hunters Point’s motion to dismiss was granted and appellants’ complaint was dismissed. This appeal follows.

. Appellants raise one issue on appeal:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE ADDITIONAL DEFENDANT’S PETITION TO DISMISS/TRANSFER ON THE BASIS OF INCONVENIENT FORUM, WHEN IT FAILED TO GIVE GREAT WEIGHT TO PLAINTIFFS’ CHOICE OF FORUM, WHEN IT FAILED TO INSURE THAT AN ALTERNATIVE FORUM WAS AVAILABLE, AND WHEN IT FAILED TO WEIGH OTHER IMPORTANT FACTORS INDICATING THAT PENNSYLVANIA WOULD OFFER A MORE CONVENIENT AND APPROPRIATE SITUS FOR PLAINTIFFS’ ACTION.

Appellants’ Brief at 2.

The doctrine of forum non conveniens has been codified at 42 Pa.C.S.A. § 5322(e) as follows:

(e) Inconvenient forum.—When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.

Forum non conveniens allows a trial court to dismiss a complaint even if jurisdictional requirements are met. Cinousis v. Hechinger Dep’t. Store, 406 Pa.Super. 500, 594 A.2d 731 (1991). The decision to dismiss a case under 42 Pa.C.S.A. § 5322(e) is within the trial court’s discretion and will not be reversed where there is not an abuse of discretion. Shears v. Rigley, 424 Pa.Super. 559, 623 A.2d 821 (1993); Tyro Industries v. James A. Wood, Inc., 418 Pa.Super. 296, 614 A.2d 279 (1992); Cinousis v. Hechinger Dep’t. Store, supra; Beatrice Foods Co. v. Proctor and Schwartz, Inc., 309 Pa.Super. 351, 455 A.2d 646 (1982).

Because it is for the plaintiff to choose the place of suit that choice will not be disturbed absent weighty reasons. Walker v. Ohio River Co., 428 Pa. 552, 239 A.2d 206 (1968), cert. denied, 393 U.S. 835, 89 S.Ct. 106, 21 L.Ed.2d 105 (1968); Shears v. Rigley, supra; Daugherty v. Inland Tugs Co., 240 Pa.Super. 527, 359 A.2d 465 (1976). For a dismissal on the ground of forum non conveniens to be appropriate, the private and public factors must be strongly in favor of the party moving for dismissal. Shears v. Rigley, supra; Petty v. Suburban General Hospital, 368 Pa.Super. 277, 525 A.2d 1230 (1987). The private elements to consider are:

the relative ease of access to sources of proof; availability of compulsory process for attendance for unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Plum, v. Tampax, Inc., 399 Pa. 553, 561, 160 A.2d 549, 553 (1960). See also Shears v. Rigley, supra; Cinousis v. Hechinger Dep’t Store, supra.

The public elements to consider are:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. There is an appropriateness, too, in having the trial ... in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Plum v. Tampax, Inc., supra at 561-62, 160 A.2d at 553. See also Shears v. Rigley, supra; Cinousis v. Hechinger Dep’t Store, supra.

But, one of the most important factors in determining whether a dismissal on ground of forum non conveniens is appropriate is whether an alternative forum is available to the plaintiff. Plum v. Tampax, Inc., supra. See also Shears v. Rigley, supra; Cinousis v. Hechinger Dep’t Store, supra; Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983). The Pennsylvania Supreme Court in Plum v. Tampax, Inc., supra, stated:

[an] action will not be dismissed in any event unless an alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how appropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same will be true if plaintiffs cause of action would elsewhere be barred by the statute of limitations, unless the court is "willing to accept defendant’s stipulation that he will not raise this defense in the second state.

Id. at 561, 160 A.2d 553 (quoting Restatements (Second) Conflicts of Laws § 117(c) (tentative draft 1957)). See also Shears v. Rigley, supra; Cinousis v. Hechinger Dep’t Store, supra. Proper application of the doctrine of forum non conveniens requires the trial court to make a finding, on the record, as to the availability of other forums and then exercise its discretion after considering all other factors. Plum v. Tampax, Inc., supra. Dismissal of a complaint on the grounds of forum non conveniens should not be granted when such a decision results in the plaintiff being unable to institute an action elsewhere. Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983). Cf. Norman v. Norfolk & Western Railway, Co., 228 Pa.Super. 319, 323 A.2d 850 (1974) (no abuse of discretion to dismiss a complaint conditionally requiring the defendant to stipulate that he will accept service and will not plead the statute of limitations in the more convenient forum); White v. Norfolk and Western Railway Co., 229 Pa.Super. 331, 323 A.2d 68 (1974) (same).

Presently, the trial court granted appellee’s motion and dismissed appellants’ complaints on the grounds of forum non conveniens. While the trial court did discuss the private and public factors it considered, the trial court did not make a finding that an alternative forum was available. By failing to consider all of the necessary factors, specifically the availability of an alternative forum, before dismissing the case on the basis of forum non conveniens, the trial court abused its discretion when it dismissed appellants’ complaint.

Further, the trial court erred when it found the public and private factors strongly favored the forum proposed by additional-defendant, appellee. Presently, the trial court stated it found insufficient contacts in Philadelphia to maintain the case in this forum. (Trial Court Opinion at 18). We disagree.

The private interests which the trial court found to be in favor of granting the motion to dismiss the complaint were that New York was the site of the physical injury, the witnesses and documents relating to the physical injury are in New York and appellee’s and Milton Paper’s principal places of business are in New York. The trial court acknowledged that appellants reside in Philadelphia, appellant was treated in Philadelphia for his injury and at least one of the defendants has an office in Philadelphia. However, the trial court did not consider that the witnesses concerning appellant’s employment, the documents and witnesses regarding the truck’s leasing agreement to appellant’s employer, and the witnesses and records concerning the maintenance and repair of the truck are all in Pennsylvania.

Also, the trial court has failed to consider that a year’s worth of discovery has taken place in Philadelphia. In addition to the enumerated private factors to consider, the trial courts are also to consider “other practical problems that make trial of a case easy, expeditious and inexpensive.” Plum v. Tampax, Inc., supra at 561, 160 A.2d at 553. One of these practical problems is the amount of discovery and pre-trial preparations which has taken place between the filing of a complaint and the filing of a motion to dismiss on the ground of forum non conveniens. The federal courts do consider such factors when determining if the motion to dismiss should be granted. See e.g. McFarlin v. Alcoa S.S. Co., 210 F.Supp. 793 (D.C.Pa.1962) (when pretrial proceedings had gone on for nearly one year, court did not abuse its discretion in refusing to transfer to another forum). See also e.g. McGraw-Edison Co. v. Van Pelt, 350 F.2d 361 (8th Cir.1965) (trial court did not abuse its discretion in denying transfer when motion was not made until five months after complaint was filed); American Standard, Inc. v. Bendix Corp., 487 F.Supp. 254 (W.D.Mo.1980) (delay in moving for a change of venue is a consideration).

Presently, appellant and the three original defendants had been taking discovery for a year before additional-defendant moved to dismiss. The trial court failed to consider that none of the original defendants to the suit objected to the venue. Rather, each party, including Milton Paper, whose principle place of business is in New York, was proceeding with the suit and involved in the discovery process in Pennsylvania. It is only the additional defendant, appellee, who objected to the venue of this case. Notwithstanding that appellee filed a motion to dismiss promptly after being served the complaint, the objection to the forum is a year and a half after the case was initiated.

The private factors which must be considered do not strongly favor dismissing the complaint. The burdens of trying this case in New York appear to be equal to the burdens of trying the case in Philadelphia, Pennsylvania. Regardless of where the case is tried, witnesses and documents are going to have to be brought from the other state. Dismissing the case from the Pennsylvania court so that it may be held in New York does not best effectuate the interests of all the parties. Indeed, as the three original defendants already have participated in discovery in Pennsylvania, many of the necessary documents already have been brought to Pennsylvania. We further note that the original defendants have not filed a brief or presented argument in this appeal. The private factors simply do not supply any weighty reasons for depriving appellants of their choice of forum for this suit.

The trial court also lists the public factors which it must consider in determining whether to dismiss a case on the ground of forum non conveniens. But, the trial court only mentions one public factor, the backlog of cases in Philadelphia County, Pennsylvania, when it explains why it found it appropriate to dismiss the complaint. While we are aware of the increased congestion in the Philadelphia courts, this factor alone should not be viewed as giving trial courts carte blanche authority to transfer any case which may be as conveniently litigated elsewhere. See Rini v. New York Central Railroad Co., 429 Pa. 235, 240 A.2d 372 (1968) (Musmanno, J., dissenting) (“if case load is to determine availability of the courts to injured persons, then justice has become a commodity dependent on the size of the courthouse and the number of personnel therein rather than on the intrinsic merit of claims filed by litigants”); Greenfeig v. Seven Springs Farm, Inc., 416 Pa.Super. 580, 611 A.2d 767 (1992) (“Although we certainly recognize the tremendous burdens placed upon our courts by inadequate and unreasonable funding limitations, such circumstances do not provide the basis for a forum non conveniens transfer of a case.”). See also Wills v. Kaschak, 420 Pa.Super. 540, 617 A.2d 37 (1992) (Kelly, J. dissent); Turner v. Kohl, 420 Pa.Super. 507, 617 A.2d 20 (1992) (Concurring Statement by Kelly, J.).

Most trial courts in large urban areas are experiencing a backlog of cases; neither the trial court nor appellee suggest that the courts in Long Island, New York are not facing a similar burden. Further, because the appellants are residents of Philadelphia, and part of the reason for appellant’s injuries, i.e. the defective maintenance of the truck occurred in Philadelphia, Philadelphia does have an interest in the case. Therefore, jury duty would not be imposed upon a community which has no relation with the litigation. Finally, regardless of where the case is tried, in Pennsylvania or in New York, the trial court hearing the case will have a conflict of laws question to determine. Thus, the public factors do not strongly favor the motion to dismiss on the ground of forum non conveniens.

The public and private factors are not strongly in favor of appellee. There are no “weighty reasons” in the record which support the dismissal of appellants’ action in the trial court. The trial court did not consider all of the factors on the record, most importantly whether an alternative forum existed, before deciding to dismiss appellants’ complaint and therefore abused its discretion when it dismissed the complaint. Accordingly, we reverse the order and remand for further proceedings consistent with this opinion.

Order reversed. Jurisdiction not retained.

      . Appellee contends that the fact that discovery had been ongoing for a year before appellee’s motion to dismiss was filed was, in part, appellants’ fault. Appellee posits that appellants had a duty to ensure that a complaint was filed against appellee in a timely fashion, and appellants’ failure to do so should also be considered when the trial court is considering the private factors. We disagree.
      A party joining an additional-defendant has the duty to file, in a timely fashion, a complaint against an additional-defendant. Pa. R.Civ.P. 2252. The plaintiff is permitted to seek a rule to file the complaint if the joining party does not file a complaint in a timely fashion. Id. But the plaintiff is not required to do so. See Id. We further note that the additional-defendant has the same right as the plaintiff to seek a rule to file a complaint. Id.

      Presently, appellants were not the joining party. Appellants were the plaintiffs. Therefore, appellants were not required to ensure a complaint was filed against appellee, the additional-defendant. Because the delay in the filing of a complaint against appellee was not appellants’ fault, the delay should not detract from the consideration of the amount of pre-trial preparation and discovery which has taken place so far.

      . We note that the trial court's order permits the appellants to file the complaint within thirty days in the proper court in New York State. Our courts lack the authority to transfer matters to courts of our sister states. Shears v. Rigley, supra; United Carolina Bank v. Martocci, 416 Pa.Super. 16, 610 A.2d 484 (1992). Therefore, a Pennsylvania court cannot give appellants permission to proceed with their case in a sister state regardless of whether the statute of limitations has run in the sister state. Rather, the trial court should either retain jurisdiction or dismiss on the condition that the defendants will accept service and not invoke the statute of limitations when the case is brought in the new forum. See Miller v. Gay, supra; Norman v. Norfolk & Western Railway Co., supra.


author: POPOVICH, Judge:

text:
    638 A.2d 1032
    COMMONWEALTH of Pennsylvania, Appellee, v. Clyde McGRIFF, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1993.
    Filed March 18, 1994.

      Phyllis L. Monheim, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County which denied appellant’s petition for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541, et seq. Herein, appellant questions:

I. Whether the trial court erred in imposing a sentence of probation of twenty years due to the fact that the trial court failed to specify the offenses for which the sentence was imposed?
II. Whether the appellant was denied his due process since the Commonwealth failed to provide him with written notice of the alleged probation violation charges and scheduled hearing?
III. Whether appellant’s plea of guilty was not voluntary, knowing and intelligent?
IV. Whether appellant was denied his right to a direct appeal and consequently the truth determining process was so undermined that no reliable adjudication of guilt or innocence could have taken place?
V. Whether appellant’s trial counsel was ineffective for permitting an off-the-record colloquy and for not pursuing appellant’s appellate rights?
VI. Whether appellant’s post conviction relief act counsel was ineffective for not arguing all of the preserved errors of trial counsel and the trial court?

Upon review, we find that the issues raised herein are either frivolous, moot, waived or previously litigated, and, thus, appellant is not entitled to relief under the Post Conviction Relief Act.

The record reveals that on December 7, 1981, appellant pleaded guilty to burglary, criminal trespass, theft by unlawful taking and receiving stolen property. On January 6, 1982, he was sentenced, inter alia, to twenty years probation. No direct appeal followed. On June 28, 1986, appellant was released from state prison where he had been incarcerated on unrelated crimes, and appellant requested the State Board of Probation and Parole to permit him to move to California. On July 22, 1987, appellant pleaded guilty to attempted burglary in California. He served sixty days in a California prison, and, upon his release, he was ordered to return to Pennsylvania and contact the probation and parole authorities. He did return to Pennsylvania but failed to contact his parole officer. On October 23, 1987, appellant was arrested on drug-related charges, and he pleaded guilty to those charges on April 14, 1988.

On June 3, 1988, a probation violation hearing was held. Appellant’s twenty year sentence of probation was revoked, and he was sentenced to two and one-half to twenty years of incarceration for his 1981 burglary conviction. His motion to modify sentence was denied, and an appeal followed. Therein, appellant alleged that he was prejudiced because his probation violation was not presented to the sentencing court within a reasonable time and that his probation revocation counsel was ineffective for failing to object to hearsay evidence of prior convictions and for failing to request a continuance for better preparation. We affirmed appellant’s judgment of sentence. Commonwealth v. McGriff, 392 Pa.Super. 651, 564 A.2d 261 (1989). Allocatur to our Supreme court was denied.

On January 19, 1991, appellant filed a pro se PCRA petition alleging his original sentence of twenty years of probation was illegal because the court failed to specify for which crime his sentence was imposed. He also complained that he did not receive adequate notice of his probation revocation hearing and was not given notice of the grounds for the revocation. The public defender’s office was appointed to represent appellant. An amended PCRA petition was filed which alleged that appellant’s guilty plea was invalid because of the absence of an on-the-record guilty plea colloquy, that appellant’s pleas were involuntary, that prior counsel was ineffective for failing to insure an on-the-record colloquy was performed and for failing to move to withdraw appellant’s plea. Since the public defender’s office originally represented appellant, new counsel was appointed to permit the ineffectiveness allegation to proceed. On November 23, 1992, an evidentiary hearing was held, and, thereafter, appellant’s PCRA petition was denied. New counsel for appeal was appointed, and this appeal followed.

Appellant first contends that his initial sentence of twenty years of probation was illegal because the court failed to specify the offense for which appellant’s sentence was imposed. This argument fails for two reasons. First, appellant’s original sentence was not illegal, and, therefore, he is not entitled to post conviction relief. 42 Pa.C.S.A. § 9543(a)(2)(vii). Although the court did not specifically state that the sentence of probation was for the burglary which it should have done, Commonwealth v. Hitchcock, 523 Pa. 248, 252, 565 A.2d 1159, 1162 (1989), it was abundantly clear to all present at the sentencing that the twenty year probationary sentence was based upon the burglary conviction. See, N.T., 1/6/82, pp. 7-8. Second, appellant was resentenced on June 3, 1988, because of numerous probation violations, and he does not allege that his current sentence is illegal. Thus, his attack on his initial sentence of probation is moot. See, Commonwealth v. Smith, 336 Pa.Super. 636, 640, 486 A.2d 445, 447-448 (1984). Third, since we have determined the legality of appellant’s sentence is not at issue, appellant could have raised this discretionary attack on his sentence on direct appeal from his initial sentence but failed to do so. Thus, the issue is waived. 42 Pa.C.S.A. §§ 9543(a)(3)®, 9544(b). Commonwealth v. Lehr, 400 Pa.Super. 514, 583 A.2d 1234 (1990); Commonwealth v. Eaddy, 419 Pa.Super. 48, 614 A.2d 1203 (1992) allocatur denied, 534 Pa. 636, 626 A.2d 1155 (1993); see also, Discussion of Appellant’s Issue V, infra.

Next, we address appellant’s contention that he was denied due process since the Commonwealth failed to provide him with written notice of the alleged probation violation charges and scheduled hearing. This issue has been finally litigated and/or waived by appellant, and, thus, he is not entitled to relief. 42 Pa.C.S.A. §§ 9543(a)(3)®, 9544(a)(1), 9544(b). In his motion to modify his sentence, appellant specifically alleged that his due process rights were violated by the Commonwealth’s failure to provide him notice of the probation revocation hearing and the acts which would serve as the basis of his revocation. However, appellant neglected to continue these issues in his direct appeal, and, thus, the issue is waived. Commonwealth v. Shaffer, 390 Pa.Super. 610, 615, 569 A.2d 360, 363 (1990), allocatur denied, 525 Pa. 617, 577 A.2d 889 (1990); Eaddy, supra. Moreover, appellant finally litigated similar issues in his direct appeal from his probation revocation. 42 Pa.C.S.A. §§ 9543(a)(3), 9544(a)(2). Therein, he complained that his revocation hearing was not held soon enough, that his counsel was ineffective for failing to insure that hearsay evidence of the crimes which served as the basis for the revocation was not admitted and that counsel was ineffective for failing to request a continuance for further preparation. On direct appeal, we found no merit to these issues. McGriff, supra.

Appellant also contends that his guilty plea was not entered in a voluntary, knowing and intelligent manner. We find that appellant has waived his right to challenge his guilty plea. Appellant did not file a motion to withdraw his plea, and he did not file a direct appeal challenging his plea. Further, he did not challenge the voluntariness of his plea following his probation revocation and resentencing. Ordinarily, failure to petition to withdraw plea, combined with failure to pursue direct appeal will bar consideration of an attack on one’s plea in collateral proceedings. Commonwealth v. Scott, 318 Pa.Super. 526, 527, 465 A.2d 678, 679 (1983). Since appellant could have raised the issue previously, he has waived it here. 42 Pa.C.S.A. § 9544(b). Cf., Commonwealth v. Gibson, 385 Pa.Super. 571, 561 A.2d 1240 (1989) allocatur denied, 525 Pa. 642, 581 A.2d 568 (1990); Commonwealth v. Royster, 524 Pa. 333, 572 A.2d 683 (1990).

Appellant claims that trial counsel was ineffective for failing to file a direct appeal. This claim fails for two reasons. First, appellant has been presented with previous opportunities to raise trial counsel’s alleged ineffectiveness for failing to perfect a direct appeal and has neglected so to do. Thus, the issue is waived. 42 Pa.C.S.A. § 9544(b). Second, appellant does not allege which issues counsel was ineffective for failing to raise on direct appeal, with the exception of counsel’s failure to attack appellant’s plea on direct appeal. Boldface allegations of ineffectiveness will not preserve issues for appeal. Gibson, 561 A.2d at 1242.

In a claim related to his challenge to his guilty plea, appellant contends that his trial counsel was ineffective for failing to insure his guilty plea was made on-the-record and for not directly appealing the validity of appellant’s guilty plea. Although appellant alleges that his plea colloquy occurred off-the-record, it is clear that the colloquy was held on-the-record in open court. However, it is also clear that the transcription of the guilty plea colloquy was lost sometime during the nine years between entry of his plea on December 7, 1981, and the filing of appellant’s pro se PCRA petition on January 17, 1991. To the extent that appellant contends his plea was not entered in a knowing and voluntary manner, this contention must fail because appellant has neglected to comply with Pa.R.A.P. 1923 which sets forth the procedure for completing the record when a transcript is missing. Moreover, we agree with the Commonwealth and the PCRA court that appellant’s unexplained delay in filing his PCRA challenge to his guilty plea has prejudiced the Commonwealth’s ability to respond to his allegations concerning his plea. Accordingly, pursuant to 42 Pa.C.S.A. § 9543(b), we dismiss this allegation of error because of the inordinate, unexplained delay. Cf., Commonwealth v. Thompson, 343 Pa.Super. 468, 495 A.2d 560 (1985), allocatur denied, 528 Pa. 610, 596 A.2d 156 (1986) (fact that notes of testimony from sentencing were not part of the record did not require sentence to be vacated and remanded for resentencing upon petition for post conviction relief, where defendant failed to explain delay of more than five and one-half years). In regard to his allegation that counsel was ineffective for failing to challenge his plea on direct appeal, we note that appellant has not alleged that he is innocent. Thus, he cannot surmount the waiver of having failed to challenge his guilty plea at the time of his probation revocation hearing. 42 Pa.C.S.A. §§ 9543(a)(3)(h), 9544(b).

Appellant’s final allegation of error is that prior PCRA counsel was ineffective for failing to raise all of the issues raised in appellant’s pro se PCRA petition. Two problems for appellant cause us to reject this issue. First, counsel fails to set forth the issues that have been waived by prior PCRA counsel, and, second, all issues raised in appellant’s pro se PCRA petition and his amended petition have been addressed herein.

In sum, all of the issues raised by appellant were either waived, finally litigated, moot and/or meritless. Upon review of the record, we note this is a case where appellant’s own failure to comply with the terms of an extremely favorable sentence (twenty years probation for burglary, despite an extensive criminal record), has resulted in this long-delayed attack on his guilty plea. The disingenuous nature of this appeal is demonstrated by the fact that appellant did not even consider challenging his guilty plea until many years after his conviction and only after his probation was revoked and he was incarcerated. See, N.T., 11/23/92, p. 27.

PCRA order affirmed.

KELLY, J. concurs in the result.

      . It is also clear that, at the time of his sentencing, appellant’s other convictions would have merged with his burglary convictions for the purposes of sentencing. Commonwealth v. Simpson, 316 Pa.Super. 115, 462 A.2d 821 (1983) (criminal trespass merged with burglary); Commonwealth v. Wilson, 312 Pa.Super. 77, 458 A.2d 244 (1983).

      . We note that this is a state procedural default which bars federal habeas corpus relief, since appellant has not alleged his probation revocation counsel was ineffective for failing to raise the due process issue in that direct appeal. See, 42 Pa.C.S.A. § 9543(a)(3)(iii); compare, Eaddy, 614 A.2d at 1207. In addition, appellant has failed to state a claim upon which relief may be granted since appellant has not alleged that the truth determining process at the probation revocation hearing was undermined by the alleged failure to notify. See, 42 Pa.C.S.A. § 9543(a)(2)(i); Commonwealth v. Laskaris, 407 Pa.Super. 440, 444, 595 A.2d 1229, 1231 (1991).

      . It is clear from the record that appellant was advised by the trial court of his right to challenge the validity of his plea, his right to file post-verdict motions and his right to perfect a direct appeal. See, N.T., 1/6/82, pp. 9-10.


author: WIEAND, Judge:

text:
    639 A.2d 37
    Charles A. HALPIN, Jr. and Robert J. Courtney, Appellees v. LaSALLE UNIVERSITY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Filed Feb. 3, 1994.
    Reargument Denied April 13, 1994.

      David H. Marion, Philadelphia, for appellant.
    Robert A. McAteer, Philadelphia, for appellees.
    Before WIEAND, CIRILLO and HESTER, JJ.
   WIEAND, Judge:

In this declaratory judgment action, the trial court held that contracts of employment between La Salle University, the employer, and Charles A. Halpin, Jr. and Robert J. Courtney, professors, conferred employment upon the professors for the remainder of their academic lives so as to render them exempt from the university’s mandatory retirement program. The university appealed. After careful review, we reverse.

Halpin and Courtney began their teaching careers at La Salle University during the 1940’s. On March 20, 1956, the university published in the Faculty Bulletin a policy on tenure, and, on March 21, 1956, Halpin and Courtney were granted tenure according to the conditions set forth in the Faculty Bulletin.

On February 13,1964, Courtney received written notice that he was to be promoted to the rank of professor. The notice provided that the terms of the appointment would be determined by contract and stated that by promoting a faculty member to the rank of professor, “the College [was] extending to him an invitation to continue as a member of the faculty for the remainder of his active academic life.” On February 28, 1964, the university and Courtney entered into a written employment contract which provided that Courtney was appointed professor in the Department of Political Science for the period from September 15, 1964 to June 15, 1965, at a salary of $10,450.00. The contract stated that “[t]he distinctive rank of ‘Professor’ is an appointment for life. In the future this document will be a notice of salary adjustment, if any.” The contract contained both an integration clause and a statement signed by Courtney to the effect that the parties’ contract constituted the entire agreement regarding rank, salary and term of appointment.

In February, 1966, Halpin also received notice that he was being promoted to the rank of professor; and on February 28, 1966, he entered into a contract with La Salle University similar to that entered into by Courtney. Halpin’s appointment, however, was to the Department of Industry and was for a period from September 15, 1966 to June 15, 1967, at a salary of $11,400.00 per year.

In subsequent years and until 1990, the professors and the university executed annual contracts containing similar language except that (1) the salary was adjusted, and (2) the “appointment for life” clause was omitted.

A retirement policy was adopted by the university subsequent to the appointment of Halpin and Courtney as professors; and in 1982, the university’s retirement policy was amended to make retirement mandatory when ranked and tenured members of the faculty reached the age of seventy. During the 1989-1990 and 1990-1991 academic years, Courtney and Halpin, respectively, reached mandatory retirement age and were notified by the university that they would be retired from active faculty status. The professors, contending that they were not subject to the university’s mandatory retirement policy, commenced an action for declaratory judgment.

They rely upon the language in their original contracts which granted them the rank of professor and membership in the faculty for the remainder of their academic lives. This, they argue, means they are to be employed as active members of the faculty as long as they are physically and mentally capable of performing the duties of a professor. The subsequent annual contracts, they argue, had no effect on their lifetime tenures and served only to adjust their annual salaries. The university argues, on the other hand, that while the rank of “professor” was a lifetime rank, employment as a member of the faculty was year by year.

The presumption under Pennsylvania law is that the employment relationship is terminable at-will by either party. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 543, 526 A.2d 1192, 1196, allocatur denied, 517 Pa. 607, 536 A.2d 1331 (1987). See generally: Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 94, 545 A.2d 334, 336 (1988); Darlington v. General Electric, 350 Pa.Super. 183, 188, 504 A.2d 306, 309 (1986). The employee may leave the job for any or no reason and the employer is free to discharge the employee with or without cause. Greene v. Oliver Realty, Inc., supra 363 Pa.Super. at 543, 526 A.2d at 1196. The party claiming that an employment agreement is for a definite period has the burden of proving such fact. Id. This can be accomplished by clear proof that the parties contracted for a specific duration. Id. See also: Nix v. Temple University of the Commonwealth System of Higher Education, 408 Pa.Super. 369, 375, 596 A.2d 1132, 1135 (1991).

Here, none of the parties contend that employment was at will. There is dispute, however, regarding the length of the term for which employment was contracted.

The interpretation of a contract is a question of law. In deciding an issue of law, an appellate court need not defer to the conclusions of the trial court. American States Ins. Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 181, 628 A.2d 880, 886 (1993); Katzeff v. Fazio, 427 Pa.Super. 55, 60, 628 A.2d 425, 428 (1993). When interpreting a contract, the court’s paramount goal is to ascertain and give effect to the intent of the parties as reasonably manifested by the language of their written agreement. Toombs NJ Inc. v. Aetna Casualty & Surety Co., 404 Pa.Super. 471, 476-477, 591 A.2d 304, 307 (1991); Greene v. Oliver Realty, Inc., supra 363 Pa.Super. at 539, 526 A.2d at 1194. When the words used in a contract are ambiguous, a court may examine the surrounding circumstances to ascertain the intent of the parties. Greene v. Oliver Realty, Inc., supra at 539, 526 A.2d at 1194. When the language of a writing is clear and unequivocal, however, its meaning must be determined by its contents alone. Id. A written contract which is deemed unambiguous “must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings are admissible to explain or vary the terms of the contract.” McGuire v. Schneider, Inc., 368 Pa.Super. 344, 349, 534 A.2d 115, 117-118 (1987), aff'd, 519 Pa. 439, 548 A.2d 1223 (1988) (citations omitted). When determining whether a contract is ambiguous, a court must view the contract as a whole and not in discrete units. O’Brien Energy Systems, Inc. v. American Employers’Ins. Co., 427 Pa.Super. 456, 461, 629 A.2d 957, 960 (1993).

The contracts in the instant case, when construed as a whole, are clear and unambiguous. It was unnecessary to refer to the language appearing in the 1956 Faculty Bulletin or letters by the university to members of the faculty to ascertain the parties’ intent. The fact that parties to a contract disagree upon its proper interpretation does not necessarily render the writing ambiguous. Katzeff v. Fazio, supra at 64, 628 A.2d at 430. “[R]esort to the plain meaning of language hinders parties dissatisfied with their agreement from creating a myth as to the true meaning of the agreement through subsequently exposed extrinsic evidence---- In holding that an ambiguity is present in an agreement, a court must not rely upon a strained contrivancy to establish one; scarcely an agreement could be conceived that might not be unreasonably contrived into the appearance of ambiguity.” Id. at 64, 628 A.2d at 429-430, quoting Steuart v. McChesney, 498 Pa. 45, 51-53, 444 A.2d 659, 662-663 (1982).

University faculty members were appointed a rank or title according to their educational background, teaching experience and contributions to the college community. These ranks included lecturer, instructor, assistant professor, associate professor and professor. The language of the parties’ contracts provided that once a faculty member was appointed to the rank of professor, he or she was entitled to retain that rank for the remainder of his life. Future contracts could be used to adjust salary, but future contracts could not affect or change a faculty member’s status as a professor. This did not imply that after appointment to the rank of professor, a faculty member was guaranteed employment for life. On this the contract was clear and unequivocal. The duration of employment in each contract was for a period of one academic year; and the salary for that year of employment was determined by the terms of the contract. This was the relationship established by the parties in their original contracts and in each annual contract executed thereafter.

To construe the original or any subsequent contract as guaranteeing employment until physical or mental incompetency of a professor would be inconsistent -with the express terms of each agreement entered by the parties. The language extending the rank of professor for life cannot be interpreted to annul the clear language of the employment contract which limited the term thereof to the then current academic year. One portion of an agreement cannot be interpreted to annul another part of the same agreement. Laudig v. Laudig, 425 Pa.Super. 228, 234, 624 A.2d 651, 654 (1993). Rather, a court will endeavor to interpret the parties’ contract to effectuate the result reasonably intended by the parties. Id.

Because the contracts in this case clearly specify the terms of employment granted, we will not ignore the parties’ reasonable intent in favor of a contract of indefinite employment. Our interpretation is consistent with Pennsylvania decisions which show a clear reluctance, in the absence of an agreement establishing a contrary intent, to interpret contracts of employment as guaranteeing employment for life. See: Curran v. Children’s Service Center of Wyoming County, Inc., 396 Pa.Super. 29, 34, 578 A.2d 8, 10 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991).

Reversed and remanded for the entry of a decree consistent with the foregoing Opinion. Jurisdiction is not retained.


author: ROWLEY, President Judge:

text:
    639 A.2d 40
    COMMONWEALTH of Pennsylvania, v. Richard L. BARNYAK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1993.
    Filed Jan. 25, 1994.
    Reargument or Reconsideration Denied March 30, 1994.

      John R. Carfley, Philipsburg, for appellant.
    J. Karen Arnold, Asst. Dist. Atty., Bellefonte, for Com., appellee.
    Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   ROWLEY, President Judge:

Richard L. Barnyak appeals from the judgment of sentence imposed following his conviction for aggravated assault, simple assault, recklessly endangering another person, and terroristic threats. Upon review of the variety of issues raised on appeal, we affirm the judgment of sentence.

The charges against appellant arose from a domestic dispute in which Kathy Dixon, now Kathy Barnyak, appellant’s wife, was shot in the hand. The incident occurred on April 21, 1990, at approximately 2:00 a.m. Ms. Dixon was admitted to the hospital for treatment at 2:35 a.m. and was initially interviewed there by a police officer at approximately 3:10 a.m. While present at the hospital, Ms. Dixon’s son and nephew also made statements to the officer regarding the shooting incident. The out-of-court statements of Ms. Dixon, her son, and her nephew were introduced at trial as substantive evidence.

Ms. Dixon and her son were subpoenaed to appear in court at the time of trial and there reiterated, in the presence of the jury, a prior refusal to testify against appellant. Both were held in contempt and incarcerated by the trial judge until the conclusion of the Commonwealth’s case. Appellant was convicted of the offenses named above and was acquitted on charges of attempted first and third degree murder. The trial court denied appellant’s motions for a new trial and in arrest of judgment, his petition for reconsideration, and his motion to modify sentence. We consider, in order, the issues he has raised on appeal.

First, appellant argues that out-of-court statements made at the hospital by the victim and other witnesses were improperly admitted at trial under the excited utterance exception to the hearsay rule. The statements were introduced through the testimony of Trooper Paul Yuhouse who interviewed Ms. Dixon, her son, and her nephew at the hospital. Trooper Yuhouse did not have an independent recollection of the interviews, but testified with reference to field notes. Before considering the hearsay issue raised, we address appellant’s allegation that Trooper Yuhouse could not “accurately attribute any of the statements [recorded in the field notes] to any one particular individual.” Brief of Appellant at 15. We find this allegation without basis in the record.

Prior to relating the statements made to him at the hospital, Trooper Yuhouse was specifically asked by the Commonwealth’s attorney i) “did Ms. Dixon make statements to you ... and if so could you tell the jury what those statements were?” N.T. 3/11/91 at 43; ii) “Do you recall what statements Mr. Bumbarger [Ms. Dixon’s son] made to you relative to what happened?” Id. at 44; and iii) “With respect to Raymond Smeal [Ms. Dixon’s nephew], you indicated you had also spoken with him?____ What statements did he make relative to what had occurred that night?” Id. at 46. Our review reveals that Trooper Yuhouse testified with specificity as to what each individual told him. This was evident from the fact that each individual’s rendition of the events was from the vantage point of that individual. Because we conclude that Trooper Yuhouse did attribute the statements recorded in his field notes to each particular individual, we can consider whether these statements were properly admitted as excited utterances with respect to each speaker.

Appellant generally cites the following factors, among others, as persuasive that none of the statements qualify as excited utterances: 1) the statements were not made sufficiently close in time to the startling event; 2) the site of the startling event was remote from the hospital where the statements were made. We also note that the statements were made in response to police questioning. Even so, these factors are not preclusive to a finding of an excited utterance. See Commonwealth v. Von Smith, 303 Pa.Super. 534, 450 A.2d 55 (1982) (although victim died, death of speaker not required for admission of excited utterance).

The following relevant circumstances support the conclusion that the statements made by Ms. Dixon and her son qualified as excited utterances. See Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1980) (spontaneous declaration made when experiencing overpowering emotion in response to an unexpected or shocking event). On April 21, 1990 at approximately 2:00 a.m., appellant and Ms. Dixon were drunk and arguing inside the trailer they shared. N.T. 3/11/93 at 96 (Test, of Trooper Robert Snook, investigating officer testifying to statements made to him by appellant), and N.T. 3/12/93 at 14 (Test, of appellant Richard Barnyak). Ms. Dixon’s son, Douglas Bumbarger, and her nephew, Raymond Smeal, were present in the trailer throughout the heated and physical argument. N.T. 3/11/93 at 58-62 (Test, of Raymond Smeal).

Appellant and Ms. Dixon continued arguing, pulling one another’s hair, and moved toward the master bedroom away from the area where the son and nephew were. N.T. 3/11/93 at 96 (Test, of Trooper Snook). Appellant entered the master bedroom but testified that he was unsure whether he or Ms. Dixon, who had not entered the room, closed the door behind him. N.T. 3/12/93 at 25 (Test, of Appellant). Ms. Dixon’s son went back toward the bedroom, then ran back to the area where the nephew was. N.T. 3/11/93 at 61 (Test, of Raymond Smeal). Appellant picked up his gun from the dresser, pointed at the closed bedroom door and fired. N.T. 3/11/93 at 97 (Test, of Trooper Snook).

Four gunshots were fired through the door. Id. A fifth shot was fired directly above the doorknob and struck Ms. Dixon in the hand. Id. After appellant fired at the doorknob, he heard Ms. Dixon scream “oh, my hand,” N.T. 3/12/93 at 27 (Test, of Appellant), then fired one round through the bedroom wall after he heard her screaming, N.T. 3/11/93 at 97-98 (Test, of Trooper Snook). Appellant did not pause at any time between the shots, and he emptied the gun. N.T. 3/12/93 at 25 (Test, of Appellant). Once the shots were fired and the son and nephew heard Ms. Dixon scream, the son ran back down the hallway. N.T. 3/11/93 at 61-62 (Test, of Raymond Smeal). Ms. Dixon, her son and nephew then left the trailer and went to the car which the nephew had started. Id. at 62. Ms. Dixon was yelling “my hand,” and her son was yelling at appellant from outside “you’ll pay for this you son of a b-.” Id.; N.T. 3/12/93 at 49 (Test, of Appellant).

Dr. Howard Bursh, the emergency room physician who treated Ms. Dixon shortly thereafter, testified that she was pale and obviously frightened. N.T. 3/11/93 at 16. Her pulse was elevated; her blood pressure was markedly elevated; and her pupils were dilated. Id. Dr. Bursh administered an injection of an antianxiety agent because Ms. Dixon seemed to be “really panic stricken.” Id. at 25. The emergency room nurse, Judy Pleskonko, further testified that Ms. Dixon was crying and saying she could not believe this had happened to her. Id. at 27-28. When Trooper Yuhouse arrived to interview Ms. Dixon, her son, and her nephew, he observed that all of them were excited and upset that Ms. Dixon had been shot. Id. at 42. Nurse Pleskonko testified that Ms. Dixon was still upset when she left treatment from the emergency room at 4:45 a.m.

Considering the involvement of Ms. Dixon and her son in the shooting incident, and considering the mother/son relationship between the two, we have no difficulty finding that their statements at the hospital were declarations made while experiencing overpowering emotion caused by a shocking event. Therefore, the trial court did not abuse its discretion by admitting them as excited utterances. With respect to the nephew, Raymond Smeal, who had less involvement with the incident and a more distant relationship with Ms. Dixon, there might be some question about whether his statements also qualified. Even so, Raymond Smeal did testify at appellant’s trial, and the statements he made at the hospital to Trooper Yuhouse were covered by his own testimony. Consequently, even if the admission of Smeal’s statements was error, it was harmless error because the content of the statements was testified to by Smeal as well as by other trial witnesses, i.e., Trooper Snook, appellant, the emergency room physician and nurse. See Commonwealth v. Foy, 531 Pa. 322, 612 A.2d 1349 (1992) (no grounds for a new trial when error of admission harmless).

In his second issue, appellant claims the trial court erred in its denial of the wife/vietim’s motion to quash a subpoena and motion for a protective order. In support of this issue, appellant argues that Commonwealth v. Hatfield, 406 Pa.Super. 139, 593 A.2d 1275 (1991), aff'd, 610 A.2d 466, 530 Pa. 590 (Pa.1992), is “inconsistent” with the court’s disposition of the motions in this case.

When a subpoena to testify has been challenged and no privilege to avoid testifying exists, whether “to force the unwilling spouse to give evidence” is a discretionary question for the trial court. Id. 406 Pa.Super. at 142, 598 A.2d at 1276. The disposition of the discretionary question in Hatfield is not inconsistent with the disposition of the discretionary question in this case. As required, the court in Hatfield based its decision to quash the wife’s subpoena on the unique facts and circumstances of that case. It was not an abuse of discretion for the same court to later refuse to quash the subpoena in this case merely because the court quashed the subpoena in Hatfield.

Appellant contends that ex parte communications transmitted from the Commonwealth’s attorney to the trial judge prior to trial “may have convinced the court to decide this case contrary to the decision in Hatfield.” Brief of Appellant at 21. We find no evidence in the record that the trial judge was influenced. Therefore, even if the ex parte communications were improper, in the absence of evidence of influence, there is no basis for the grant of a new trial.

Also, under this second issue, appellant argues that the court prejudicially required the wife/victim “to take the stand in open court in the presence of the jury and state her refusal to testify.” The Commonwealth states in response to this argument that “this issue was never raised in post verdict motions and is accordingly waived.” Upon examination of the record, we agree with the Commonwealth. Within appellant’s post-trial motion for a new trial, he alleges that the trial judge “[flailed to permit the defendant and/or the alleged victim to assert a privilege not to testify under § 5913 and § 5914 of the Judicial Code.” This allegation of error does not encompass the issue of whether it was prejudicial to require the victim to take the stand and state her refusal to testify before the jury. Considering the additional fact that the trial court did not have the opportunity to address the issue, it is waived on appeal. See Pa.R.Crim.P. 1123(c)(3).

Appellant’s third issue argues that his conviction on the charge of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), was inconsistent with his acquittal on the charges of attempted murder of the first, 18 Pa.C.S.A § 2502(a), and third, 18 Pa.C.S.A. § 2502(c), degree. He claims these crimes have identical elements of intent, and therefore the acquittal on the attempted murder charges also should have resulted in an acquittal on the charge of aggravated assault. First, attempted murder of the first degree requires a specific intent to kill, which a conviction for aggravated assault obviously does not require.

Next, it does appear that the portion of the verdict acquitting appellant of attempted third degree murder and convicting him of aggravated assault might be inconsistent, particularly with respect to the elements of intent. The conviction in this case for aggravated assault, section 2702(a)(1), was based on the jury’s finding that appellant attempted to cause serious bodily injury to his wife, i.e., that he specifically intended to cause her serious bodily injury. Comparatively, the court instructed the jury that conviction for third degree murder would require a finding of “malice.” The court defined malice to include “an intent to inflict serious bodily harm.” N.T. 3/12/91, at 143. In spite of the fact that the intent elements of the two charges overlap, we will not disturb the verdict on the basis of the apparent inconsistency in result where we find the evidence sufficient to support the guilty verdict. See Commonwealth v. Boyles, 407 Pa.Super. 343, 595 A.2d 1180 (1991), allocatur denied, 531 Pa. 651, 613 A.2d 556 (Pa.1992).

Fourth, appellant argues that certain evidence was obtained as a result of an illegal search and seizure and therefore was improperly admitted at trial. The trial court held upon its examination of the record that appellant “did not file a Motion to Suppress or object at trial to the admission of this evidence,” and therefore “such error, if any, is deemed to be waived.” Opinion of Trial Court 9/14/92, at 4-5. A motion to suppress evidence must be made pretrial, unless “the opportunity did not previously exist, or the interests of justice otherwise require.” Pa.R.Crim.P. 323(b); Commonwealth v. Meischke, 273 Pa.Super. 134, 416 A.2d 1126 (1979).

Appellant claims the following circumstances prevented him from being apprised of facts necessary to file a pretrial suppression motion: i) at the time the investigative team appeared at the crime scene, appellant was in custody and had no independent knowledge of the search and seizure event; ii) three other witnesses were likewise unaware of the circumstances giving rise to the event; iii) while appellant was aware that the search and seizure had occurred, he was not apprised in the pretrial proceedings of the exact sequence of events. Upon consideration of the record together with the parties’ arguments, we find insufficient justification for the failure to file a timely objection to the legality of the search and seizure.

The fact that appellant was not personally aware of the facts surrounding the search and seizure does not mean the opportunity to file a motion to suppress did not previously exist. Moreover, justice does not otherwise require us to address the question of the legality of the search and seizure where our review reveals that appellant’s arguments have no merit.

In his fifth issue, appellant argues that the Commonwealth failed to provide him with reasonable notice of its intention to seek a mandatory sentence under 42 Pa.C.S.A. § 9712(a). Appellant claims he was not provided with written notice of the Commonwealth’s intent to proceed under section 9712(a) “until Friday, September 25, 1992, at approximately 3:30 o’clock P.M. when the District Attorney tele-faxed a letter to the office of defense counsel.” Appellant further asserts that the “fax arrived after counsel had left the office for the weekend.” Appellant was sentenced on Monday, September 28, 1992.

We cite the trial court’s correct conclusion that sentencing under the statute was justified due to i) pre-trial discussions between the Commonwealth and defense counsel “regarding the Commonwealth’s intent to seek the mandatory five-year sentence” and ii) the written notice provided prior to sentencing. Also, in response to appellant’s argument that the Commonwealth failed to carry its burden of proof for application of the statute, we note that the “statute specifically provides that the court shall consider evidence from the trial, which in this instance would be sufficient to prove the use of a weapon.” Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987).

Judgment of sentence affirmed.

      . The memorandum decision filed on September 7, 1993, which reversed the judgment of sentence, was withdrawn by this panel pursuant to an order dated October 25, 1993.

      . As stated earlier, the incident occurred at approximately 2:00 a.m. and Ms. Dixon was admitted for medical treatment at 2:35 a.m.

      . Kathy Barnyak testified in the presence of the jury as follows:
      Q. Mrs. Barnyak, do you know an individual named Richard Barn-yak?
      A. I do not wish to testify against my husband.
      Q. You’re stating that you know—
      A. I’m stating that I’m not saying nothing against him.
      N.T. 3/11/91 at 178-79. The court then explained to Mrs. Barnyak that she did not have a legal privilege not to testify. Upon her persistent refusal, the court excused the jury and determined to incarcerate Mrs. Barnyak for contempt of court. Id. at 180-81.

      . 42 Pa.C.S.A. § 5913 (1993), Spouses as witnesses against each other. 42 Pa.C.S.A. § 5914, Confidential communications between spouses.

      . Although appellant does not raise the issue, we must also note that there is no crime of attempted third degree murder. See Commonwealth v. Spells, 417 Pa.Super. 233, 237, 612 A.2d 458, 460 n. 5 (1992); Commonwealth v. Griffin, 310 Pa.Super. 39, 50, 456 A.2d 171, 177 (1983).

      . "The evidence complained of consists of physical evidence, measurements, photographs and other evidence relating to the interior of [appellant's and the victim’s] trailer.” Brief of Appellant at 31. Additional evidence complained of includes "the weapon allegedly used in this criminal incident” and “other items of evidence eventually introduced at trial.” Id. at 32.

      . Appellant’s suppression arguments are as follows:
      1) following a consensual entry into the trailer, an investigating officer exited the trailer, waited several hours for an investigative team, then reentered the premises without additional consent or exigent circumstances;
      2) with only the consent of appellant’s brother, a police officer entered and searched the property of appellant’s father.
      Brief of Appellant at 31-32.