text:
    446 A.2d 316
    Donald W. MINTEER and Mavilla O. Minteer v. Kenneth E. WOLFE and Noreita Wolfe, his wife, and Darrel K. Lewis and Lesley K. Lewis, his wife, Appellants. (Two cases) Appeal of Mavilla O. MINTEER.
    Superior Court of Pennsylvania.
    Argued May 20, 1981.
    Filed May 28, 1982.

      John B. McCue, Kittanning, for the Minteers.
    Jerome D. Lombardi, Kittanning, for the Wolfes et al.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   POPOVICH, Judge:

This is an action in quiet title involving an easement by prescription.

Appellant, Mavilla 0. Minteer, instituted the instant action to quiet title and to enjoin appellee-defendants from interfering with appellant’s use of a lane located in Armstrong County, Pennsylvania. The lane in question, extending from a township road to appellant’s land, traverses the boundary line of contiguous tracts of land owned by appellee-defendants. Appellant’s claim to an easement is based on prescription or adverse use of the lane for a period exceeding twenty-one years.

Following a non-jury trial, an order nisi granting appellant-plaintiffs a prescriptive easement was entered. Appellees then filed exceptions which were adopted in part, and the lower court vacated its order nisi and entered a final order in favor of appellees. These cross appeals followed.

On appeal, appellant’s sole contention is that the trial court erred when it held that because the record did not contain any direct evidence of usage by appellant’s predecessor in title for certain initial years of the prescribed twenty-one year period, appellant failed to establish adverse use for the requisite period and, therefore, had not acquired an easement by prescription. We agree and reverse and remand for proceedings consistent with this opinion.

First, we recognize that findings of the lower court will not be disturbed on appeal absent a clear abuse of discretion or error of law. See Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981). It is equally axiomatic, however, that this court is not bound by the trial court’s conclusions of law but is free to draw its own inferences and conclusions from the facts as established. First Pennsylvania Banking and Trust Co. v. Liberati, 282 Pa. Super. 198, 422 A.2d 1074 (1980).

Moreover, we must review a claim to an easement in light of the following axiom: .

“The nature of the easement, whether it is seasonal, periodical, or for all periods of the year, the frequency and the extent of the user, its definiteness, and its location in city or rural districts are important factors in a determination of whether an easement exists and exactly what rights have been acquired thereunder.” Shaffer v. Baylor’s Lake Ass’n, Inc., 392 Pa. 493, 499, 141 A.2d 583, 587 (1958).

Based on the foregoing standards of review, the facts in the instant case are as follows:

Appellant is the owner of a tract of land located in a rural section of Armstrong County. The only structures located on appellant’s land are two working gas wells which have been operating since approximately 1918, and the ruins of “what appears to be” an old house. Appellant and her husband, who is now deceased, acquired title to the property in 1964 and, since that time, had used the lane as an access route for foot and motorized vehicular travel to their gas wells. The lane traverses the boundary line of appellees contiguous tracts of land and extends from a township road, over appellees’ boundary line to appellant’s land and the gas wells located thereon.

In 1975, appellees-defendants blocked appellant’s access to the lane by erecting a cable across its entrance. Appellees obstructed the lane because appellant’s husband, or those acting on his behalf, had begun to cut down trees to widen the lane for heavy vehicular traffic.

At trial, the evidence established that there exists no other discernibly traveled route to the gas wells. A government topographical map showed that the lane was in existence in 1900. A resident of the area, Olive Pennington, aged 81 at the time of trial, testified to the use of the land by her husband, an employee of appellant’s predecessor in title, since 1957, or 18 years prior to the commencement of this action. She stated that her husband was using the lane as an access route to service the gas wells and that he had obtained the job in 1957 because his brother, who had been employed in the same capacity for the preceding forty years, had passed away that year. Pennington further stated that her husband used the lane to gain access to the gas wells because this was the longstanding practice of his employer.

Appellant’s husband’s partner in the oil and gas business, Arthur Baker, testified that prior to appellant’s acquiring title to the property, his partner’s predecessors in title drove him to the gas wells via the lane in question. When Baker first saw the road in 1957, eighteen years prior to the commencement of this action, the lane appeared as if it had “been there for a long time . .. like it had been traveled and wore [sic] down over the period of years.” (N.T. 11/3/78, p. 45). He stated that the lane runs directly to the gas wells, then continues beyond the wells to the ruins of a dilapidated structure. Baker opined that the lane originally was used as a horse and buggy road to travel to this structure. This evidence was uncontradicted at trial.

Based on the foregoing, the lower court concluded that appellant had failed to establish adverse use from 1954 to 1957, the first three years of the prescriptive period. We disagree.

To begin with, it is axiomatic that “[w]hen a right or title is of ancient origin or where the transaction under investigation is so remote as to be incapable of direct proof .. . the law, of necessity, relaxes the rules of evidence and requires less evidence to substantiate the fact [in] controversy.” Hostetter v. Commonwealth, 367 Pa. 603, 606, 80 A.2d 719, 720 (1951) (emphasis added).

Moreover, with respect to whether direct evidence is required to establish adverse use for an uninterrupted twenty-one years, we have said that:

[T]he evidence need not show a constant use in order to establish continuity; rather, continuity is established if the evidence shows a settled course of conduct indicating an attitude of mind on the part of the user or users that the use is the exercise of a property right. Keefer v. Jones, 467 Pa. 544, 548, 359 A.2d 735, 737 (1976).

Herein, we conclude that there existed substantial evidence to “show a settled course of conduct” by appellant’s predecessors in title for those years where direct evidence was unavailable and, accordingly, that appellant had acquired a prescriptive right to use and enjoy the lane in question.

The record established that the lane was the only access route to the gas wells and that the wells had been operating since approximately 1918. In this connection, we note that while the testimony of Olive Pennington established only that her husband, as an employee of appellant’s predecessor in title, traveled the lane in a pick-up truck eighteen years prior to appellees’ interference in 1975; he had obtained the job upon the death of his brother who had been employed in the same capacity for the preceding forty years. Moreover, Pennington stated that her husband used the lane because it was his employer’s practice to do so. See, e.g., Keefer v. Jones, 467 Pa. 544, 549 n.1, 359 A.2d 735, 738 n.1 (1976) (where direct evidence did not establish constant use but both of appellee’s predecessors in title were shown by direct evidence to have used road on numerous occasions and for many years over thirty-three year period, an inference that they also used it for periods where direct evidence was unavailable might well have been properly drawn); Steel v. Yocum, 189 Pa.Super. 522, 151 A.2d 815 (1959) (where witness, aged seventy-three, testified to use of lane by plaintiffs’ predecessors sixty-seven years prior to suit and other witnesses testified to use for consecutive periods in excess of twenty-one years, plaintiffs evidence as to use “extensive and convincing”). Second, witnesses for appellant opined that the lane previously was an old “horse and buggy” road that served as the sole access route to what “appeared to be an old house” formerly existing on appellant’s property. One of the appellees stated that he knew of the lane’s existence since 1952, or twenty-three years prior to this action, and also was aware that hunters were using the lane at that time. Finally, photographs and a government topographical map demonstrated that the lane existed as a horse and buggy road as long ago as 1900. See Predwitch v. Chrobak, 186 Pa.Super. 601, 142 A.2d 388 (1958) (right by prescription created where testimony showed that road in question had existed “beyond the memory of living witnesses” and was used not only by those claiming the easement but also by the general public).

Under these circumstances, we conclude that appellant and her predecessors in title exercised a property right over the lane in question that was adverse, continuous, open, notorious, and in excess of twenty-one years. More specifically, our review of the record leads us to conclude that an easement by prescription was established despite the absence of direct evidence of use by- appellant’s predecessors in title during the initial three years of the prescriptive period. Accordingly, we reverse the trial court’s decision as to Minteér at No! 991.

In their cross-appeal, appellees ask us to determine whether appellant is precluded from acquiring by prescription a right to use the lane either (1) by application of the Act of 1850, which prevents acquisition of an easement through unenclosed woodlands; or (2) by appellant’s alleged failure to present evidence of more than occasional use of the easement or of its specific location. Appellees also question whether appellant’s use of the lane (assuming, arguendo, that a prescriptive easement was established) should be restricted to servicing the gas wells and exclude any right to motorized vehicular travel.

With regard to appellees’ first contention, our own Supreme Court has said: “[T]he act [of 1850] ... admits of but one meaning, viz. that a right by prescription to a road through unenclosed woodland cannot be obtained.” Kurtz v. Hoke, 172 Pa. 165, 173, 33 A. 549, 550 (1896). Likewise, this court has said that “the character of the land itself is determinative of the application of the Act of 1850.” Humberston v. Humbert, 267 Pa.Super. 518, 521, 407 A.2d 31, 32 (1979).

Herein, the record establishes that the land surrounding the lane was not woodland within the meaning contemplated by the Act of 1850. Rather,- the growth that appellees alleged was woodland consisted of a fence row of trees and brush as is commonly found to exist on the boundary lines of land located in rural areas. Hence, the Act of 1850 does not operate to bar appellant’s acquisition of a prescriptive right to use and enjoy the lane.

Appellees next argue that a prescriptive easement was not established because the record did not contain either evidence of anything other than an occasional use of the lane or evidence of its specific location. Again, we disagree.

First, it is well-settled that “day-to-day use [is not] required to satisfy the continuity element essential to the creation of prescriptive rights.” Adshead v. Sprung, 248 Pa.Super. 253, 257, 375 A.2d 83, 85 (1977). Likewise, what our Supreme Court said in Shaffer v. Baylor’s Lake Ass’n, Inc., 392 Pa. 493, 141 A.2d 583 (1958), is instructive:

“[the] inability to measure the exact width of [a] footpath for 21 or more years will not defeat a prescriptive right-of-way over this footpath which has been acquired by adverse user for 21 years, nor is the law so unreasonable as to require that the path be used and trod 24 hours each day, or the same hour each day. ” Id., 392 Pa. at 499, 141 A.2d at 587 (emphasis added).

In the instant case, the evidence established a settled course of conduct by appellant and her predecessors in title, viz., use of the lane as an access route to the gas wells located on appellant’s land for a period in excess of 21 years. Moreover, the specific location of the lane was established by government maps and also by the testimony of witnesses for both parties. Hence, this contention also must fail.

Finally, appellees argue that the scope of the easement should be restricted to servicing the gas wells and should not include any right to motorized vehicular travel. In this connection we recognize that because an easement by prescription is created by adverse use, it is limited to the use made during the prescriptive period. Bodman v. Bodman, 456 Pa. 412, 321 A.2d 910 (1974). Here, the record reveals that the lane was used during the prescriptive period for single lane ingress and egress to the gas wells by various motor vehicles. We cannot now say that such single lane passage of motorized vehicles increases the scope or extent to which the easement was used during the prescriptive period. Accordingly, appellant is entitled to use the lane for single lane travel by motorized vehicles to service the gas wells.

Order at No. 991 reversed and Order at No. 1024 affirmed.

DiSALLE, J., did not participate in the consideration or decision of this case.

      . The complaint was filed in 1978 by Mavilla O. Minteer and Donald W. Minteer, husband and wife. In 1979, Donald W. Minteer died and Mavilla O. Minteer, as surviving plaintiff and surviving spouse in a tenancy by the entireties, filed the instant appeal.

      . In an answer filed with a counterclaim, appellees denied the existence of an easement and sought reimbursement for damages sustained by the removal of trees from their land by plaintiffs. The final order in favor of appellees was entered only with regard to the nonexistence of an easement by prescription because appellees failed to prove in their counterclaim that they had sustained damages as a result of appellant removing trees from their land.

      . For purposes of clearness, appellant at No. 991 (Mavilla O. Minteer) will be referred to throughout this opinion as “appellant” while appellants at No. 1024 will be referred to as “appellee-defendants” or “appellees.”

      . Act of 1850, § 21, 68 P.S. § 411 (1965). The Act provides:
      No right of why shall be hereafter acquired by user, where such way passes through uninclosed [sic] woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing or enclosure.
      This Act, repealed in 1974, was reenacted and given retroactive application to the date of repeal by virtue of Act No. 1981-61 (1981).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    446 A.2d 321
    Robert MAHLER, Appellee, v. James EMRICK and Judi Emrick, and Panel & Tile Mart, Inc. v. Dan K. ROSS and Marie V. Ross, his wife, Intervenors, Appellants.
    Superior Court of Pennsylvania.
    Argued May 21, 1981.
    Filed May 28, 1982.

      Lee C. McCandless, Butler, for appellants.
    R. Bruce Ralston, Butler, for appellee.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the court below denying appellants’ petition to open judgment or strike a judgment and stay a sheriff’s sale of certain real estate which had been purchased by appellants. This appeal followed. We affirm.

Initially, it must be noted that appellants’ petition, a “PETITION TO OPEN OR STRIKE AND STAY SHERIFF’S SALE”, is essentially one to open the judgment since the factual averments stated therein were “based on .. . matter[s] dehors the record.” J. F. Realty Co. v. Yerkes, 263 Pa.Super. 436, 440, 398 A.2d 215, 217 (1979). Accord DeFeo v. MacIntyre, 265 Pa.Super. 95, 99, 401 A.2d 818, 819 (1979); See also Pa.R.C.P. 2959 (all motions to strike or open a judgment must be set forth in a single petition).

In reviewing the lower court’s ruling on a petition to open a default judgment, we have stated that a court should not exercise its discretion to grant a petition unless the petitioner meets three requirements:

(1) the petition to open has been promptly filed;
(2) a legitimate explanation exists for the delay that prompted the default judgment; and
(3) a meritorious defense is averred.”
Hatgimisios v. Dave’s N. E. Mint, Inc., 251 Pa.Super. 275, 276, 380 A.2d 485 (1977). Accord Duffy v. Gerst, 286 Pa.Super. 523, 429 A.2d 645, 650 (1981).

Additionally, we have said that “ ‘[ejquitable considerations are generally no longer relevant’ unless related to a particular defense asserted.” Bell Fed. Sav. & Loan Asso. v. Laura Lanes, Inc., 291 Pa.Super. 395, 398, 435 A.2d 1285, 1286 (1981) (quoting Kardos v. Morris, 470 Pa. 337, 341, 368 A.2d 657, 660 (1977). When the relevant guidelines are applied to the facts of the instant case, the record reveals that appellants failed to meet the first two requirements.

The record in the instant case reveals the following:

A default judgment was entered on February 23, 1979. Written notice of entry of the judgment was sent to appellants, the Panel & Tile Mart, Inc., on or about February 26, 1979.

On April 27, sixty-three days after entry of the judgment, appellants filed the instant “PETITION TO OPEN OR STRIKE AND STAY SHERIFF’S SALE”. The petition did not state that it was filed timely nor did it proffer an explanation for the delay in filing.

As this Court has stated before in a case which involved a shorter delay in the filing of the petition to open:

“Thirty-seven days is not a very long delay, and might not be hard to explain; but unexplained it is too long. See Schutte v. Valley Bargain Center, Inc., [248] Pa.Super. [532], 375 A.2d 368 (1977) (forty-seven days); Texas & B. H. Fish Club v. Bonnell Corp., 388 Pa. 198, 130 A.2d 508 (1957) (twenty-seven days; prejudice shown).” Hatigimisios v. Dave’s N. E. Mint, Inc., 251 Pa.Super. at 276, 380 A.2d at 486.

In the instant case, where appellants’ “unexplained” delay in filing the petition was almost twice as long as the one which existed in Hatigimisios, the petition to open was not filed promptly.

Additionally, we observe that appellants did not advance in the petition or on appeal any articulable reason for the delay which occasioned the entry of the default judgment.

The facts in relation to this aspect of the appeal reveal the following:

Appellants averred in the petition that appellee “brought a proceedings [sic] on the mortgage on January 12, 1979 . . . and finally entered a money judgment . . . and issued execution thereon February 23, 1979.” Record No. 3. The “money judgment” which appellants referred to contained the following information:

“JUDGMENT
AND NOW, to-wit: February 23, 1979, a Complaint in Mortgage Foreclosure, duly endorsed with notice to plead, having been served upon the defendants, and more than twenty (20) days having elapsed since service of the same, and no answer having been filed, JUDGMENT is hereby entered in favor of the Plaintiff and against the Defendants, JAMES EMRICK: JUDY EMRICK: and PANEL & TILE MART, INC. in the amount of Twenty-one thousand five hundred forty-three and 95/100 Dollars ($21,543.95) with Interest, and costs, as per Praecipe filed at A.D. No. 79-056 Book 114 Page 364.
/s/ John H Wise
Prothonotary”

Record No. 1, (emphasis added).

Under these circumstances, the court did not abuse its discretion in denying appellants’ petition to open because no legitimate explanation was advanced for the delay which prompted the default judgment.

For the purposes of this case, we note that at the time the original complaint in equity was filed, January 12, 1979, the Rules of Civil Procedure did not require that notice of praecipe for entry of a default judgment be given to the party. However, effective February 1,1980, Pa.R.C.P. 237.1 was enacted.

In pertinent part, this rule provides:

“(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party- against whom the judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.”

Rule 237.1 was enacted because of the inequities which inured to a party when a default judgment was taken without notice on the next day or within a few days after the deadline for filing an answer to the complaint. Carson v. Pirie Scott & Co., 290 Pa.Super. 353, 357, 434 A.2d 790, 791 (1981). These judgments, termed “snap” judgments, were frowned upon by the courts even before the enactment of Rule 237.1 when this Court said that:

“ ‘[o]ne very frequent element in the sets of circumstances of cases where a default judgment has been upheld is notice to opposing counsel of the intent to enter a default judgment. Conversely, the lack of such notice is frequently singled out as an important factor justifying the opening of a default judgment.’ ” Id., 290 Pa.Super. at 358, 434 A.2d at 792.

However, in those cases where the “lack of such notice” has been singled out as an important factor, other facts also were determinative; namely, the judgment was taken on the first day that the parties were in default, see Queen City Electrical Supply Co., Inc. v. Soltis Electric Co., Inc., 491 Pa. 354, 421 A.2d 174 (1980) (the first day party was in default; Main Line Abstract Co. v. Penn Title Insurance Co., 282 Pa.Super. 545, 423 A.2d 379 (1980) (the second day); Quaker Transit Co. v. Jack W. Blumenfeld & Co., 277 Pa.Super. 393, 419 A.2d 1202 (1980) (the second day); Nardulli v. John Carlo, Inc., 274 Pa.Super. 34, 417 A.2d 1238 (1979) (the second day); Safeguard Investment Company v. Energy Service Associates, Inc., 258 Pa.Super. 512, 393 A.2d 476 (1978) (the first day); Ruggiero v. Phillips, 250 Pa.Super. 349, 378 A.2d 971 (1977) (the first day). Additionally, the relief sought by the party in default was sought without undue delay. Main Line Abstract Co. v. Penn Title Insur ance Co., supra (five days after default judgment was taken); Quaker Transit Co. v. Jack Blumenfeld & Co., supra (fourteen days); Safeguard Investment Company v. Energy Service Associates, Inc., supra (nine days); compare Queen City Electrical Supply Co., Inc. v. Soltis Electric Co., supra, (twenty month delay was reasonable under the circumstances) with In Re Estate of McCauley, 478 Pa. 83, 385 A.2d 1324 (1978) (three month delay in filing petition to strike was unreasonable).

In the instant case, judgment was not taken immediately after the parties were in default. Rather, the record reveals that appellee waited until February 23, 1979, which was approximately twenty-two days from the deadline in which an answer to the complaint had to be filed. Therefore, this case cannot be characterized as a “snap” judgment case. See Bollinger v. Cressman, 267 Pa.Super. 535, 407 A.2d 39 (1979) (no “snap” judgment where one month after complaint was served, default was taken). Moreover, as stated above, appellants delayed more than two months without explanation in the filing of their petition to open.

Thus, because appellants failed to meet the first two requirements for opening a default judgment, there is no need to discuss whether a meritorious defense existed. See e.g., Penn Clair Construction Co. v. Eden Roc Country Club, 292 Pa.Super. 377, 381, 440 A.2d 514, 516 (1981); MacClain v. Penn Fruit, Inc., 241 Pa.Super. 303, 305, 361 A.2d 403, 404 (1976).

Order affirmed.

DiSALLE, J., did not participate in the consideration or decision of this case.

      . Jurisdiction is vested in this Court pursuant to 42 Pa.C.S. § 5105(c) and Pa.R.A.P. 311(a) which provide that an interlocutory appeal may be taken as of right from an order refusing to open, vacate, or strike off a judgment.

      . In this connection, we have applied the following guidelines:
      “If the alleged defect in the judgment is based on a matter dehors the record, the proper approach is to petition the court to open the judgment. On the other hand a motion to strike is proper only when the defect in the original judgment appears on the face of the record.” Id.

      . At the time the original complaint was filed, Panel & Tile Mart, Inc. and James Emrick were the defendants. The record shows that Dan and Marie Ross, the owners of Panel & Tile Mart, Inc., were joined as intervenors for the purposes of taking an appeal.

      . Pa.R.C.P. 1026 provides that “[e]very pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.”

      . We note that the court below dismissed appellant’s petition on the merits. However, although we have relied on grounds different from those stated in the trial court, this Court “may affirm the action of a lower court on a different rationale than that advanced by the lower court . . . .” Commonwealth v. Meischke, 273 Pa.Super. 134, 139 n. 3, 416 A.2d 1126, 1128 n. 3 (1979). Accord Sones v. Aetna Casualty and Surety Co., 270 Pa.Super. 330, 411 A.2d 552 (1979).


author: HOFFMAN, Judge:

text:
    446 A.2d 325
    COMMONWEALTH of Pennsylvania v. Leonard MILANO, Appellant. COMMONWEALTH of Pennsylvania v. Anthony TERRA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1981.
    Filed May 28, 1982.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.

      John J. Gallagher, Philadelphia, for Milano, appellant.
    Thomas A. Bergstrom, Philadelphia, for Terra, appellant.
    David E. Fritchey, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that their prosecutions were not timely commenced. We disagree and, accordingly, affirm the judgments of sentence.

Following a lengthy joint state-federal investigation, the Commonwealth obtained, on March 18,1980, arrest warrants charging appellants with certain drug offenses and criminal conspiracy arising from their activities between March 28, 1978 and April 13, 1978. Appellants were arrested on March 19, 1980, and informations were filed on April 16, 1980. Following the denial of their motions to dismiss the charges on the ground that the statute of limitations had expired, appellants were found guilty of all charges in a nonjury trial. The lower court subsequently denied their post-verdict motions and imposed sentence. This appeal followed.

There is no dispute that these prosecutions would be barred by the statute of limitations if not commenced by April 13, 1980. Relying upon section 77 of the Act of March 31, 1860, P.L. 427, § 77, as amended by the Act of April 6, 1939, P.L. 17, § 1; 19 P.S. § 211 (repealed) (hereinafter section 77 of the Act of I860), appellants contend that the filing of informations commenced their prosecution on April 16,1980, three days too late. Relying upon subsection 108(e) of the Crimes Code, 18 Pa.C.S.A. § 108(e) (repealed), however, the Commonwealth argues that the obtaining and execution of arrest warrants by March 19, 1980 timely commenced these prosecutions. The lower court applied subsection 108(e) of the Crimes Code and, therefore, held the prosecutions to be timely.

Appellants argue that section 77 of the Act of 1860 is controlling because it was not expressly repealed by section 108 of the Crimes Code. We disagree. A statute may be repealed by express legislative act or by implication. Commonwealth, Department of Education v. First School, 471 Pa. 471, 482, 370 A.2d 702, 707 (1977); Newton Estate, 354 Pa. 146, 148, 47 A.2d 229, 230 (1946); Girard Trust Co. v. Philadelphia, 336 Pa. 433, 436, 9 A.2d 883, 884 (1939). “Express repeal is not necessary where a substitute statute is manifestly intended for a former act.” Id., 336 Pa. at 436-37, 9 A.2d at 884-85, citing Bosack v. Schuylkill County, 311 Pa. 157, 162, 165 A. 393, 396 (1933). Because section 77 of the Act of 1860 was not expressly repealed until the enactment of the Judicial Code, see Commonwealth v. Haw kins, 295 Pa.Superior Ct. 429, 436 n.3, 441 A.2d 1308, 1311 n.3 (1982); Commonwealth v. Bidner, 282 Pa.Superior Ct. 100, 853, 422 A.2d 847, 853 (1980), we must therefore determine whether it had already been impliedly repealed by section 108 of the Crimes Code, 18 Pa.C.S.A. § 108 (repealed).

It will be presumed that the legislature, in enacting a statute, acted with full knowledge of existing statutes relating to the same subject; and where express terms of repeal are not used, the presumption is always against an intention to repeal an earlier statute, unless there is such inconsistency or repugnancy between the statutes as to preclude the presumption, or the latter statute revises the whole subject matter of the former.

Kingston Borough v. Kalanosky, 155 Pa.Superior Ct. 424, 429, 38 A.2d 393, 394 (1944). Because implied repeals are not favored in the law, the legislative intent to impliedly repeal a statute by enacting another must be clearly shown. Newton Estate, supra 354 Pa. at 149, 47 A.2d at 231; Girard Trust Co. v. Philadelphia, supra 336 Pa. at 436, 9 A.2d at 884; First National Bank of Millville v. Horwatt, 192 Pa.Superior Ct. 581, 586, 162 A.2d 60, 62 (1960). The Statutory Construction Act of 1972, Act of December 6, 1972, P.L. 1339, No. 290, § 3, provides in pertinent part: 1 Pa.C.S.A. § 1971(a). See also Fedor v. Borough of Dormont, 487 Pa. 249, 409 A.2d 334 (1979); Commonwealth, Department of Education v. First School, supra; Girard Trust Co. v. Philadelphia, supra; Bosack v. Schuylkill County, supra; Werner v. King, 310 Pa. 120, 164 A. 918 (1933).

Whenever a statute purports to be a revision of all statutes upon a particular subject, or sets up a general or exclusive system covering the entire subject matter of a former statute and is intended as a substitute for such former statute, such statute shall be construed to repeal all former statutes upon the same subject.

The Crimes Code was passed in December, 1972 as a comprehensive effort to collate, modernize, and codify the criminal law of the Commonwealth. See Toll, Pennsylvania's First New Crimes Code in More than a Century, 44 Pa.B.A.Q. 294 (1973); Symposium, Crimes Code, 78 Dick.L.Rev. 1 (1973). See also Statutory Construction Act of 1972, supra, 1 Pa.C.S.A. § 1921(c)(2),(4) (in ascertaining legislative intent, court may consider circumstances under which act was passed and object to be obtained). Section 107(a) of the Crimes Code provides: “The provisions of Part I of this title [18 Pa.C.S.A. §§ 101-1106] (relating to preliminary provisions) are applicable to offenses defined by this title or by any other statute.” In Commonwealth v. Bidner, we emphasized that “the.clear intent of the legislature by virtue of § 107(a),” 282 Pa.Superior Ct. at 114, 422 A.2d at 854, required the application of the Crimes Code statute of limitations, 18 Pa.C.S.A. § 108, to an election code violation that had been committed after the effective date of the Crimes Code, 282 Pa.Superior Ct. at 112-14, 422 A.2d at 853-54. Both section 108 of the Crimes Code and section 77 of the Act of 1860 purport to be all-encompassing statutes of limitations for crimes and offenses. Although section 108 of the Crimes Code retained the basic scheme of section 77 of the Act of 1860, the format of the statute was significantly changed; two provisions were modified (see 18 Pa.C.S.A. § 108(c)(2), (e)); and three new provisions were added (see id. § 108(c)(1), (d), (f)(2)). See generally S. Toll, Pennsylvania Crimes Code Annotated, § 108, pp. 30-31, 36 (1974) (Report of the Joint State Government Commission and Reporter’s Comment). In particular, the legislature repudiated the position that a prosecution could only be commenced by filing an indictment or information. Id. Moreover, our consideration is influenced but not controlled by the general repealer in the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 5(b) (“all acts and parts of acts inconsistent with [the Crimes Code] are hereby repealed”). Kelly v. Philadelphia, 382 Pa. 459, 471, 115 A.2d 238, 244 (1955); First National Bank of Millville v. Horwatt, supra, 192 Pa.Super. at 586-87, 162 A.2d at 63. We are thus satisfied that, in enacting section 108 of the Crimes Code, the legislature manifested its intent to supplant section 77 of the Act of 1860. Accordingly, we now hold that section 77 of the Act of 1860 had been impliedly repealed before it was expressly repealed by the Judicial Code. Because these crimes occurred after the effective date of the Crimes Code and the arrest warrants were obtained within the two-year period allowed by subsection 108(b)(2) of the Code, and were promptly served, these prosecutions were timely commenced. 18 Pa.C.S.A. § 108(e) (repealed).

Judgments of sentence affirmed.

      . Appellants were charged with possession of and possession with intent to deliver methamphetamine under the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(16), (30), as amended; 35 P.S. § 780 113(a)(16), (30).

      . 18 Pa.C.S.A. § 903. Appellant Milano was also charged with criminal solicitation. Id. § 902.

      . Section 77 of the Act of 1860 provides:
      Time within which indictments or prosecutions may be brought All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor, murder and voluntary manslaughter excepted, shall be brought or exhibited within the time and limitation hereafter expressed, and not after; that is to say, all indictments and prosecutions for treason, arson, sodomy, buggery, robbery, burglary, perjury, counterfeiting, forgery, uttering or publishing any bank note, check or draft, knowing the same to be counterfeited or forged, shall be brought or exhibited within five years next after the offense shall have been committed; and all indictments and prosecutions for other felonies not named or excepted heretofore in this section, and for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed: Provided however, That if the person against whom such indictment shall be brought or exhibited, shall not have been an inhabitant of this State, or usual resident therein, during the said respective terms for which he shall be subject and liable to prosecution as aforesaid,
        then such indictment shall or may be brought or exhibited against such person at any period within a similar space of time during which he shall be an inhabitant of, or usually resident within this State: And provided also, That indictments for misdemeanors committed by any officer of a bank, or other corporation, may be commenced and prosecuted at any time within six years from the time the alleged offense shall have been committed: And provided also, That indictments for malfeasance, misfeasance, or nonfeasance in office, or for extortion or blackmail by color of office, or for embezzlement of public moneys or property or fraudulent conversion of public moneys or property, or for any misdemeanor in office, or for any conspiracy to commit any of said offenses heretofore or hereafter committed by any officer or employe of this Commonwealth or of any agency thereof, or of any city, county, borough, township, or school district or of any agency thereof, and their accomplices and confederates, may be brought or exhibited at any time within two years from the time when said public officer or said employe shall have ceased to occupy such office or such employment, but in no event more than six years from the commission of the offense.

      . In Commonwealth v. Bidner, supra, our Court held that the time limitations of section 108 of the Crimes Code applied to Crimes arising outside the Crimes Code itself. In so doing, we specifically applied subsection 108(c)(1) (relating to discovery of crimes involving fraud) to a violation of the Election Code. Because subsection 108(c)(1) had no counterpart in section 77 of the Act of 1860, see S. Toll, Pennsylvania Crimes Code Annotated, § 108, p. 31 (1974), the Court had no occasion to address the issue we reach today.

      . A later statute also will impliedly repeal an earlier one if it “purports to establish a uniform and mandatory system covering a class of subjects” formerly covered by a local or special statute, 1 Pa.C. S.A. § 1971(b), or if “the two statutes are irreconcilable,” id. § 1971(c). Neither of those standards are applicable.

      . Section 108 of the Crimes Code provides:
      Time limitations
      (a) Murder.—A prosecution for murder of the first degree or of the second degree may be commenced at any time.
      (b) Other offenses.—Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:
      (1) A prosecution for any of the following offenses under this code must be commenced within five years after it is committed:
      Section 3123 (relating to involuntary deviate sexual intercourse)
      Section 3301 (relating to arson and related offenses)

        Section 3502 (relating to burglary)
      Section 3701 (relating to robbery)
      Section 4101 (relating to forgery)
      Section 4902 (relating to perjury)
      (2) A prosecution for any other offense under this code must be commenced within two years after it is committed.
      (c) Exceptions.—If the period prescribed in subsection (b) of this section has expired, a prosecution may nevertheless be commenced for:
      (1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.
      (2) Any offense committed by a public officer or employe in the course'of or in connection with his office or employment at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.
      (d) Commission of offense.—An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the complicity of the defendant therein is terminated. Time starts to run on the day after the offense is committed.
      (e) Commencement of prosecution.—A prosecution is commenced either when an indictment is found or when a warrant or summons is issued, if such warrant or summons is executed without reasonable delay.
      (f) Tolling of statute.—The period of limitation does not run:
      (1) during any time when the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth; or
      (2) during any time when a prosecution against the accused for the same conduct is pending in this Commonwealth.

      . Section 77 of the Act of 1860 contained the following language which was apparently omitted from section 108 of the Crimes Code: “And provided also, That indictments for misdemeanors committed by any officer of a bank, or other corporation, may be commenced and prosecuted at any time within six years from the time the alleged offense shall have been committed.” Because we believe that the legislative intent to wholly revise the statutes of limitations in criminal cases was clear, we hold that this provision is likewise impliedly repealed. Fedor v. Borough of Dormont, supra 487 Pa. at 254, 409 A.2d at 336; Werner v. King, supra 310 Pa. at 124, 164 A. at 920; Reeves’ Appeal, 33 Pa.Superior Ct. 196, 200-01 (1907). Cf. Pipa v. Kemberling, 326 Pa. 498, 503-04, 192 A. 878, 870-1 (1937) (prior provision not germane to later revision from which omitted, no implied repeal); Commonwealth v. Curry, 285 Pa. 289, 294-95, 132 A. 370, 374 (1926) (same).

      . Our decision does not affect those cases arising before the effective date of the Crimes Code because those cases will still be governed by section 77 of the Act of 1860. Act of December 6, 1972, P.L. 1482, No. 334, § 2 (“[The Crimes Code], as added by this act, does not apply to offenses committed prior to the effective date of this act and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this act were not in force.”); Commonwealth v. Bender, 251 Pa.Superior Ct. 454, 457-58, 380 A.2d 868, 869-70 (1977).

      . Appellants’ reliance upon dicta in Commonwealth v. Patterson, 236 Pa.Superior Ct. 131, 134, 344 A.2d 710, 712 (1975), is misplaced. In Commonwealth v. Bidner, supra, 282 Pa.Super. at 112-13, 422 A.2d at 853-54; and Commonwealth v. Bender, supra, 251 Pa.Super. at 458 n.8, 380 A.2d at 870 n.8, we clarified our dicta in Patterson. It is now quite certain that section 108 of the Crimes Code would not apply to crimes committed before June 6, 1973, the effective date of the Crimes Code, see note 8 supra, and that it is not limited to crimes defined in the Crimes Code itself, Commonwealth v. Bidner, supra.

      . Because of our disposition of this case, we need not reach the Commonwealth’s contention that the applicable statute of limitations is set forth in the Judicial Code, 42 Pa.C.S.A. § 5552(a), (e). We note, however, that were the Judicial Code provisions applicable, the result would be identical because the Judicial Code did not change the substance of subsections 108(b)(2) and 108(e) of the Crimes Code.

      . Appellant Terra argues also that his conviction for criminal conspiracy cannot stand for it, too, is subject to the limitation of section 77 of the Act of 1860. We disagree. Criminal conspiracy is defined by the Crimes Code. Section 108, by its literal language, applies to all such offenses. Moreover, in Commonwealth v. Cunningham, 248 Pa.Superior Ct. 219, 375 A.2d 66 (1977), we recognized that attempt to violate the drug law would be governed by the Crimes Code provisions for inchoate crimes. Conspiracy, like attempt, is an inchoate crime under the Crimes Code. Therefore, Terra’s contention is patently frivolous.


author: PER CURIAM:

text:
    446 A.2d 329
    Mary Ann GANZY and Robert Ganzy, her husband, Appellees, v. Charles A. PROVAN, M.D. and Searle & Company, a division of G. D. Searle & Company, a corporation, Appellants. Appeal of SEARLE & COMPANY (at No. 1385). Appeal of Charles A. PROVAN, M.D. (at No. 1404).
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1979.
    Filed June 4, 1982.

      Gerald J. Hutton, Pittsburgh, for appellants.
    John W. Jordan, IV, Pittsburgh, for appellees.
    Before CERCONE, President Judge, and MONTGOMERY and LIPEZ, JJ.
   PER CURIAM:

This is an appeal from an order in which the lower court transferred the case to the Arbitration Panels for Health Care on the ground that the Arbitration Panels had exclusive original jurisdiction. In light of our Supreme Court’s decision in Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), the order must be reversed, and the case remanded for trial. Spruk v. United Laboratories of Cleveland, 290 Pa.Super.Ct. 74, 434 A.2d 136 (1981); Ehritz v. Capriotti, 288 Pa.Super.Ct. 265, 431 A.2d 1040 (1981); Gallagher v. Caliguiri, 287 Pa.Super.Ct. 250, 429 A.2d 1195 (1981); Smith v. Barclay, 286 Pa.Super.Ct. 510, 429 A.2d 438 (1981); see Firich v. American Cystoscope Makers, Inc., 635 F.2d 259, 261 (3rd Cir. 1980).

Order reversed, and case remanded for trial.


author: WICKERSHAM, Judge:

text:
    446 A.2d 605
    COMMONWEALTH of Pennsylvania v. Willie PORTER, Jr., Appellant. COMMONWEALTH of Pennsylvania v. Andrew GILLMER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed May 28, 1982.

      John W. Packel, Assistant Public Defender, Philadelphia, for Porter, appellant (at No. 2729).
    Thomas H. A. Gallagher, Philadelphia, for Gillmer, appellant (at No. 2814).
    James Bowen Jordan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   WICKERSHAM, Judge:

These are appeals from judgments of sentence imposed after jury trials held before the Honorable Levy Anderson of the Court of Common Pleas of Philadelphia County. On April 5, 1978 appellant Gillmer was found guilty of,two informations charging simple assault and aggravated assault and of criminal conspiracy. On October 12, 1978 Gillmer was sentenced to imprisonment for an aggregate term of not less than two years nor more than five years.

Appellant Porter was found guilty on two informations charging simple assault and aggravated assault and of criminal conspiracy. On October 12, 1978 Porter was sentenced to imprisonment for an aggregate term of not less than two years nor more than five years.

The essential facts in the instant case are as follows. On July 23, 1977, several men, including appellants Gillmer and Porter, entered the house of Jack Eleazer in Philadelphia. One of the men stabbed Mr. Eleazer in the chest; twenty-five dollars was taken from Mr. Eleazer after he was bound and gagged. Mr. Eleazer heard appellant Gillmer say that he planned to kill him.

Two of the intruders found Mrs. Eleazer on the second floor of the house. One of them, armed with an ice pick, told Mrs. Eleazer to be quiet or she would be killed. The man then struck Mrs. Eleazer, tied her up, and took fifteen dollars from her purse.

Mr. Eleazer freed himself, obtained a butcher knife, and chased appellant Gillmer upstairs. Mr. Eleazer then went to his living room and recovered a shotgun he had previously hidden there, and ordered appellant Gillmer, who was standing at the top of the steps, to come down. Gillmer refused to do so and threw an old rifle down at Mr. Eleazer. Mr. Eleazer then left the house to notify the police.

Appellants Gillmer and Porter then came to the door of the Eleazer house. Upon seeing Mr. Eleazer returning with his shotgun, appellant Porter told appellant Gillmer that the shotgun was unloaded as he had the shells for it in his pocket. Porter further suggested that they attack the assumedly defenseless Mr. Eleazer.

As appellant Gillmer came out of the house, Mr. Eleazer shot him. Appellant Porter and the other intruders then came out of the house. Porter took the shotgun from Mr. Eleazer and then attempted to help Gillmer escape.

A Philadelphia police officer subsequently found the wounded appellant Gillmer around the corner from the Eleazer house. Appellant Porter was found running away from the scene. Porter’s clothes were soaked with blood. Mr. Eleazer identified both appellants Gillmer and Porter as two of his assailants to the police on the night of the crime and, subsequently, in court proceedings.

At trial, appellant Gillmer testified that he had gone to the Eleazer home to buy wine on the night in question and was robbed by three young men leaving the house. Gillmer maintained that Mr. Eleazer then came out of the house and fired a shotgun, wounding him.

Appellant Porter testified that he was walking towards appellant Gilmer’s sister’s home when he heard gunfire and saw Gillmer doubled over. After taking the shotgun and two shells away from Mr. Eleazer, and helping Gillmer around the corner, Porter said he went to the scene of the crime and was chased by a crowd that had gathered. Porter was arrested shortly thereafter.

When called as a witness, Mrs. Eleazer testified that no wine had been sold from her house during 1977. Joel Moldovsky, Esquire, counsel for appellant Gillmer, then withdrew from the case in order to testify that Mrs. Eleazer had previously admitted to him that such sales had taken place during 1977. During Mr. Moldovsky’s testimony the assistant district attorney prosecuting the case laughed at his testimony and then attempted to impeach him.

During closing argument, the prosecutor made a reference to the jurors’ duty to the community. Defense counsel objected to such reference and was sustained by the trial judge, but specifically asked that no cautionary instruction be given.

During his charge on March 31, 1978, the trial judge instructed the jury that co-conspirators are liable for the natural and probable consequences of each others’ acts committed during the conspiracy.

After several hours of deliberations on March 31 and April 3, 1978, the jury announced that they had reached a verdict. At the request of both defense counsel the jury was polled individually. All jurors polled announced that they found appellants Gillmer and Porter guilty on all counts until juror number nine announced that his verdict was not guilty on all counts. At that point the trial judge dropped the pencil he was holding in surprise. The trial judge then instructed the jury to continue its deliberations as it had not yet reached a verdict.

Jury deliberations continued into the next day, April 4, 1978, at which time the jury advised the trial judge that they were deadlocked. The trial judge then delivered a supplemental charge to the jury which urged them to consult with one another during their deliberations.

The jury continued its deliberations for approximately two hours on April 4, 1978 and for approximately two and one-half hours on April 5, 1978. The jury then returned with the verdicts of guilty which appellants Gillmer and Porter challenge in this appeal.

Appellants Gillmer and Porter phrase their first contention of error as:

Did not the lower court violate appellant’s federal and state constitutional rights to trial by jury and coerce the jury into a verdict when the court: (A) exhibited what could reasonably have been viewed as disgust and disapproval when juror number nine announced a dissenting not guilty verdict and directed the jury to continue deliberations and (B) reinstructed the jury on its duties in deliberations for the third time—directing the jury to continue deliberating after the jury reported that it could not reach a unanimous verdict without violating the conscience of a juror(s)?

Briefs for Appellants at 2.

An unwise or irrelevant remark made by the judge during the course of a trial does not compel the granting of a new trial unless the remark is of such a nature or is delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair trial. Commonwealth v. Nesbitt, 276 Pa.Super. 1, 419 A.2d 64 (1980).

It cannot be reasonably said that the action of the trial judge in dropping a pencil in surprise at juror number nine’s response during the initial jury poll deprived appellants Gillmer and Porter of a fair trial. As the trial court noted in denying post-verdict motions, there was no evidence that the jurors even noticed the judge drop his pencil. The jury continued deliberations for two more days after the pencil dropping incident. Such a lengthy period of deliberation after the incident indicates the verdict was the result of intense consideration rather than of coercion.

Appellants also contend that the trial judge erred in delivering the following instruction after the jury announced it was deadlocked on April 4, 1978:

You, as jurors, have a duty to consult with one another and to continue consulting with one another and to deliberate with a view to reaching a unanimous agreement, if it can be done without violence to individual judgment, that is to say, each juror must decide the case for himself or herself, but only after a careful consideration of the evidence with his and her fellow jurors, and in the course of such deliberations a juror shouldn’t hesitate to re-examine his or her own views and to change his or her opinion if convinced that it is erroneous, but no juror should surrender his or her honest convictions as to the weight or effect of the evidence or as to the guilt or innocence of the defendants or either of them solely because of the opinion of his or her fellow jurors or for the mere purpose of returning a unanimous verdict.

Record at 26-27.

This jury instruction is in conformance with that recommended in Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971) as a guideline for courts to follow when a jury is deadlocked. Whether to give a Spencer charge is matter for the exercise of discretion by the trial court which will not be reversed absent an abuse of that discretion. Commonwealth v. Santiago, 492 Pa. 297, 424 A.2d 870 (1981).

Instantly even after the allegedly coercive instruction was given to the jury, a verdict was not reached until the next day. We find no abuse of discretion by the trial court and no evidence of a coerced verdict.

Appellants’ second contention of error is stated as:

Was not appellant deprived of a fair trial where the prosecutor expressed his personal opinion on the credibility of an important defense witness and requested a verdict based on emotion and sympathy in his closing address to the jury?

Brief for Appellants at 2.

Even where the language of the prosecuting attorney is intemperate, uncalled for and improper, unless its unavoidable effect would be to prejudice the jurors by forming in their minds fixed bias and hostility towards the defendants, so that they could not weigh the evidence and render a true verdict, a new trial is not required. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980).

Instantly, neither the prosecutor’s laughter during the testimony of Joel Moldovsky, Esquire, his challenge to Moldovsky’s credibility, nor his closing argument in which he made reference to the interests of the community in the case were so prejudicial as to cause the jury to be unable to weigh the evidence and render a true verdict. These were all minor incidents in a trial where testimony spanned four days.

Appellant Porter states his next contention of error as:

Was not trial counsel’s representation of appellant ineffective because counsel did not object to: (1) the court’s failure to instruct on the legal theory of justification in the use of force for the protection of other persons, where appellant admitted to an assault on the complainant and where such an instruction was necessary in connection with the instruction that a conspiracy could be inferred from the actions of the parties; (2) the court’s failure to instruct that vicarious substantive liability for the acts of a co-conspirator does not apply to acts performed prior to a defendant’s entry into the conspiracy; and (3) the court’s charge that a conspirator is responsible for all substantive crimes committed by a co-conspirator which result from or are involved in a conspiracy?

Brief for Appellant at 2-3.

Defense counsel cannot be deemed ineffective if the particular course he chose to pursue had some reasonable basis designed to effectuate his client’s interests. Defense counsel cannot be found ineffective for failing to assert meritless claims. Commonwealth v. Burton, supra.

Instantly, appellant Porter’s counsel was not ineffective for failing to request that the jury be instructed on the theory of justification in the use of force to protect another. At trial, Porter maintained he was not involved in any criminal activity against the Eleazers on the night in question. While appellant Porter did admit to knocking a shotgun from Mr. Eleazer’s hands after the shooting of appellant Gillmer, he was not charged with any crime for that particular action as the trial judge made clear in his jury charge. Record at 153-55. It would be frivolous to request an instruction for a crime that was not charged.

Appellant Porter’s claim that his trial counsel was ineffective for failing to request jury instructions detailing the criminal liability resulting from an entry into an on-going conspiracy is also meritless. It was appellant Porter’s defense at trial that he had not entered into any conspiracy nor committed any crime at all. If the jury accepted appellant Porter’s version of events it would have returned a verdict of not guilty. If Porter’s trial counsel had requested, and been granted, the jury charge suggested by appellate counsel, he would have invited the jury to find that Porter entered a conspiracy that was already underway and, accordingly, to find him guilty of some of the charges in direct contradiction of his testimony that he was completely innocent. Appellant Porter’s trial counsel had a reasonable basis for not requesting the instruction: he hoped the jury would believe his client and find him not guilty.

Appellant Porter’s claim that his trial counsel was ineffective for failing to object to the charge concerning vicarious liability in a conspiracy is also meritless. In charging the jury the trial judge stated:

When the existence of a conspiracy has been established, the law imposes upon that co-conspirator full responsibility for the natural and probable consequences of the acts committed by his fellow conspirator or conspirators.
That rule applies even to an act which is a constituent of the natural and probable execution of the conspiracy, even though such act is not specifically contemplated by the parties.

Record at 157-58.

During deliberations the jury requested additional instructions and the trial judge charged:

When the existence of a conspiracy has been established the law imposes upon a co-conspirator full responsibility for the natural and probable consequences of the acts committed by his fellow conspirators or conspirator; that rule applies even to an act which is a constituent of the natural and probable execution of the conspiracy, even though such act is not specifically contemplated by the parties.
Let me give you an illustration, although this illustration doesn’t apply to this case, but merely for illustrative purposes.
For instance, if a conspirator conspires with others or with another in an attempt to commit a robbery or burglary, and during the course of the robbery or burglary a person is killed in the perpetration of those crimes, each conspirator would also be responsible for the murder that results therefrom.
Now, in this case the Commonwealth has charged that a criminal conspiracy was entered into by each of these defendants, with another person or persons, among themselves and with another person or persons, depending on whether or not there were three people who entered the house, for the purpose of committing robbery, or four; the testimony is not altogether clear.
Now, if you find that either of the defendants did conspire with the other persons or with each other, as I have just defined it for you, and you find this beyond a reasonable doubt, then you would find him guilty of criminal conspiracy; otherwise, you must find him not guilty.

Record at 10-11.

On April 4, 1978, the jurors indicated they had several questions concerning the criminal liability flowing from a conspiracy, which are reprinted below:

One, if one defendant is guilty of criminal conspiracy is he then guilty of all the other charges against him or any other co-conspirators?
Two, can he be guilty of criminal conspiracy, but not of any of the other charges?
Three, is it possible in this case to come to a verdict as to one defendant and not on the other?
Five, does a person by his very presence, without participation, give his tacit consent, thus making him a fellow co-conspirator?

Record at 18-19.

The trial court answered the questions as follows:

First Question....
The answer is: yes, he would be guilty of all crimes resulting from the conspiracy, whether committed by him or a co-conspirators
Two ... He would be guilty of all the crimes involved in the conspiracy, committed by him or any co-conspirator, unless he withdrew from the conspiracy prior to the commission of any of the crimes involved in the conspiracy.
Number three ... the answer is yes.
Five. Does a person, by very presence, without participation, give his tacit consent, thus making him a fellow conspirator?
The answer is no.
Mere presence alone is not sufficient to imply guilt of conspiracy or any other crime, but presence with the other circumstances involving a conspiracy, on which I have already instructed you, would make him guilty, if, in fact, he were part of the conspiracy, even though he did not personally participate in any of the acts involved in the conspiracy.
In other words, if there was conspiracy to commit this crime, the crime of robbery. Do you understand that? All right.
So, the answer to the question as written is no, but you have to consider that in terms of the definition of responsibility for a conspiracy, and I think I gave you an example yesterday.

Record at 19-21.

In charging the jury the trial court is free to use its own form of expression; the only issue is whether the area of law is adequately, accurately, and clearly presented to the jury. In evaluating a challenge to the correctness of a jury charge, the charge must be read and considered in its entirety and it is the general effect of the charge that controls. Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d. 1088 (1977).

The unlawful agreement among conspirators renders each liable for the acts any of them commit in furtherance of the conspiracy. Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979). A person is legally accountable for the conduct of another when he is so made accountable by the law defining the offense. 18 Pa.C.S. § 306(b). A person is guilty of conspiracy to commit a crime if with the intent of promoting or facilitating its commission he agrees with another person or persons that they will engage in conduct which constitutes such crime or agrees to aid such other person or persons in the commission of such crime. 18 Pa.C.S. § 903(a).

Instantly, the general effect of the trial judge’s instructions concerning vicarious liability in a conspiracy is that conspirators are liable for the natural and probable effects of crimes committed by each other in the course of the conspiracy. These instructions constitute a correct statement of the law and are, accordingly, unobjectionable. Appellant Porter’s counsel is, therefore, not ineffective for failing to object to them.

Appellant Gillmer frames his final contention of error as: That the appellant’s federal and state constitutional rights to due process were violated by the court permitting and abetting substitution of trial counsel during the trial which is a critical stage in any criminal action.

Brief for Appellant at 2.

The issue refers to the substitution of Thomas Gallagher, Esquire, as counsel for appellant Gillmer after Joel Moldovsky, Esquire, Gillmer’s original trial counsel, took the stand to rebut the testimony of Mrs.. Eleazer concerning liquor sales at the Eleazer house.

The' fact that a defendant’s attorney takes the stand during the trial is not cause for a mistrial unless actual prejudice can be shown. Commonwealth v. Floyd, 494 Pa. 537, 431 A.2d 984 (1981).

Appellant Gillmer assented to the change in counsel during a colloquy the trial court held when Mr. Moldovsky informed the court of his intention to take the stand. Record at 69-71. Instantly, no actual prejudice to appellant Gillmer has been demonstrated to have occurred as a result of the change of counsel, nor does our review of the record reveal any such prejudice. Appellant Gillmer’s contention is without merit.

Judgments of sentence affirmed.


author: BECK, Judge:

text:
    446 A.2d 612
    COMMONWEALTH ex rel. Patricia Ann ALLEN v. Augustus HENDERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed May 28, 1982.

      Phillip Lord, Philadelphia, for appellant.
    Kenneth Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   BECK, Judge:

This is an appeal from an order of the Court of Common Pleas, Family Division, requiring appellant to pay support to his illegitimate child in the amount of $15.00 per week. The court found at a civil trial that appellant was the father of appellee’s child. Appellant questions the civil court’s subject matter jurisdiction over the paternity action after he elected to have the matter heard in criminal court.

The instant action arose after appellee filed, on June 6, 1977, a petition for child support pursuant to the Pennsylvania Civil Procedural Support Law. That support law was replaced by 42 Pa.C.S.A. § 6701 et seq., effective June 27, 1978, which makes a cause of action for paternity exclusively civil:

Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil trial and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.

42 Pa.C.S.A. § 6704(g).

Prior to June 27, 1978, a defendant had a statutory right to proceed in a criminal forum in a paternity action under 18 Pa.C.S.A. § 4323. That section stated that a defendant could be convicted of a misdemeanor of the third degree “if he, being a parent, willfully neglects or. refuses to contribute reasonably to the support and maintenance of a child born out of lawful wedlock.. .. ” That statute carried with it a two-year statute of limitations. This Court in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831, 833 (1982) (emphasis added) summarized the role of such a criminal proceeding prior to the effective date of 42 Pa.C.S.A. 6701 et seq. in a paternity determination: “[W]hen paternity was contested, a criminal proceeding was an ancillary condition precedent to the right to recover. . . . ” That is, a civil court would be without jurisdiction if the civil action was brought after the expiration of the criminal statute of limitations period unless defendant waived his right to that criminal proceeding by opting for a civil adjudication of paternity or admitting his paternity. Commonwealth ex rel. Yentzer v. Carpenter, 240 Pa.Super. 202, 362 A.2d 1101 (1976).

Section 4323 was repealed by Act of April 28, 1978 (“Repealer Act”), P.L. 106, No. 46, § 3(a), effective June 27,1978. The Repealer Act preserved prosecutions already commenced under Section 4323 and also amended the Pennsylvania Civil Procedural Law to include a six-year statute of limitations.

In the instant case, a preliminary hearing was scheduled for July 13, 1978 which was subsequent to the effective date of the Repealer Act. At that hearing, the district attorney moved to dismiss the criminal case and to proceed with a civil adjudication. The lower court granted the motion to dismiss and transferred the case to the Family Division of the Court of Common Pleas. A hearing was scheduled for October 24, 1978.

On July 28, 1978, appellant filed a motion to dismiss the civil proceeding for lack of jurisdiction stating that the civil court lacked subject matter jurisdiction once appellant chose to proceed criminally. On January 17, 1979, the lower court denied the motion.

In its opinion accompanying the denial of the above motion, the lower court held that the election of appellant to proceed criminally did not commence the prosecution. Since no criminal complaint was filed, the language of the Repeal-er Act did not save the action as one already commenced prior to its effective date. The lower court reasoned that since the preliminary hearing took place after the effective date of the Repealer Act, the civil court did have subject matter jurisdiction.

On August 18, 1980, a civil trial was held and appellant was found to be the father of appellee’s child.

Appellant argues that once he exercised his statutory right to proceed with a criminal adjudication as to his paternity, the civil court was deprived of its subject matter jurisdiction. He cites Jackson v. Moultrie, 288 Pa.Super. 252, 431 A.2d 1033 (1981) for the above proposition. The Moultrie court held that since the criminal action in that case was commenced prior to the effective date of the Repealer Act, the civil court was without jurisdiction. It is clear, though, that the holding of the Moultrie court was premised upon the savings clause of the above Act. Id., 288 Pa. Super, at 255, 431 A.2d at 1035. The above facts are clearly distinguishable from those of the instant case in that no complaint was issued in the instant case and thus no prosecution was commenced. The Moultrie court quite explicitly delineated an exception to the conferral by 42 Pa.C. S.A. § 6701 et seq. of subject matter jurisdiction to the Family Division.

We note that since the child was born on November 23, 1974, the action for support was filed after the two-year statute of limitations had run. We agree, therefore, with appellant’s conclusion that the Commonwealth was thus precluded from prosecuting appellant under 18 Pa.C.S.A. § 4323. But this Court in Wolfe, 297 Pa.Super. at 275-76, 443 A.2d at 834 (1982) held that where a support action is commenced after the effective date of 42 Pa.C.S.A. § 6701 et seq., “merely because the Commonwealth’s right to prosecute Appellee criminally has been barred it does not follow that Appellant’s civil action is barred.”

While in the instant case the civil action was commenced before the effective date of 42 Pa.C.S.A. § 6701 et seq., no final determination of paternity was reached before the above effective date. The civil proceeding therefore was not barred by res judicata or collateral estoppel. Commonwealth ex rel. Johnson, v. King, 297 Pa.Super. 431, 434, 444 A.2d 108, 110 (1982). The King court followed Williams v. Wolfe in holding that the civil cause of action was not barred by the running of the two-year criminal statute of limitations. We are persuaded that the Wolfe and King decisions control this case.

We conclude that the lower court had subject matter jurisdiction to hear the instant case and accordingly affirm the order of the court below.

      . Act of July 13, 1953, P.L. 431, § 1, as amended, Act of August 14, 1968, P.L. 872, 62 P.S. § 2043.31 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1291], effective June 27, 1978.

      . This Court in Wolfe, 297 Pa.Super. at 276, 433 A.2d at 834, noted the same exception:
      It is clear then, that the Legislature intended the criminal statute to continue to be applicable only if a prosecution had been commenced prior to its repeal on June 27, 1978. This leads to the conclusion that as of June 27, 1978, the requirement of a criminal determination of paternity for actions involving disputed paternity was eliminated, even if the cause of action arose prior to that date, if no criminal action was pending.


author: SPAETH, Judge:

text:
    446 A.2d 614
    BOISE CASCADE CORPORATION v. EAST STROUDSBURG SAVINGS ASSOCIATION. Appeal of Edward W. DeVINNEY and Jean A. DeVinney, Intervenors.
    Superior Court of Pennsylvania.
    Argued April 6, 1981.
    Filed June 4, 1982.

      William H. Robinson, Jr., Stroudsburg, for appellant.

      Mark Love, Stroudsburg, for appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   SPAETH, Judge:

This appeal is from an order denying appellants’ petition to intervene in an action in assumpsit brought by Boise Cascade Corporation against East Stroudsburg Savings Association. Boise Cascade has filed a motion to quash the appeal as interlocutory. We grant the motion.

-1-

Often, in deciding to quash an appeal as interlocutory, we do not consider the merits of the case. If, for example, we find that an appeal is from an order dismissing exceptions, instead of from a judgment entered on the docket, we look no further. Penstan Supply, Inc. v. Hay, 283 Pa.Superior Ct. 558, 424 A.2d 950 (1981). It would be pointless in such a case to consider the merits. We are a court of limited jurisdiction, and unless a case is within our jurisdiction we have no power to decide it, no matter how compelling its merits might be. Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981).

Sometimes, however, the decision whether to quash an appeal is interwined with a consideration of the merits, for “[t]he finality of an order is a judicial conclusion which can be reached only after examination of its ramifications.” Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). This is especially so when the appeal is from an order denying a petition to intervene.

[A]s a rule, an appeal will not lie from an order refusing leave to intervene, because such an order is not a final one, [but] cases may arise where a denial of a petition to intervene would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way; and in such cases the refusal to permit an intervention is a final order or decree as to the petitioner. Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912) (citations omitted).

Unless we consider the merits—or “ramifications”—of a case, we cannot tell whether an order denying a petition to intervene is “a practical denial of relief to which the petitioner for intervention is entitled.” See, e.g., Taub v. Merriam, 251 Pa.Superior Ct. 572, 380 A.2d 1245 (1977) (deciding appeal); Richard Held Builders, Inc. v. A. G. Allebach, Inc., 266 Pa.Superior Ct. 101, 403 A.2d 113 (1979) (quashing appeal).

Here the lower court concluded that if appellants were a party to Boise Cascade’s action against East Stroudsburg Savings, they would be entitled to no relief. The issue we must decide is whether that conclusion was correct. If it was, then under Frey’s Estate, supra, the lower court’s order denying appellants’ petition to intervene in the action is not a final order, and appellant’s appeal must be quashed.

-2-

Appellants wanted to build a house on a lot they owned in a development known as Saw Creek Estates, in Pike County, Pennsylvania. On July 3,1978, they got a loan, secured by a mortgage on the lot, from East Stroudsburg Savings Association. The house was to be built by Tahoe Homes, Ltd., and’ on the same day as they got their loan, appellants entered into an agreement with East Stroudsburg Savings by which it was to pay Tahoe Homes from the proceeds of the loan according to a certain schedule of payments, or “draws,” as the house was built.

On July 7, 1978, Tahoe Homes entered into an agreement with Boise Cascade Corporation for the purchase of a prefabricated house, to be delivered to appellants’ lot. On August 10, 1978, before the house had been delivered, appellants and Tahoe Homes executed an assignment authorizing East Stroudsburg Savings to pay “directly to Boise Cascade . . . the approximate sum of $13,000 out of the 2 and 3rd draws” of the proceeds of the loan that East Stroudsburg Savings had made to appellants. On August 21 East Stroudsburg Savings accepted this assignment and agreed to pay Boise Cascade accordingly.

Boise Cascade completed delivery of the pre-fabricated house to appellants’ lot on September 26, 1978, and shortly thereafter requested payment of $14,071.15 from East Stroudsburg Savings. Appellants, however, complained that Tahoe Homes had not put up the house properly and had ceased work on it, and at appellants’ request, East Stroudsburg Savings did not pay Boise Cascade.

On June 6, 1979, Boise Cascade filed a complaint in assumpsit against East Stroudsburg Savings. On August 2, 1979, East Stroudsburg Savings filed a petition for inter-pleader. On October 1, 1979, appellants filed a petition to intervene. On July 25, 1980, the lower court denied both petitions. East Stroudsburg Savings did not appeal the denial of its petition for interpleader, so only the denial of appellants’ petition to intervene is before us.

Appellants argue that they are entitled to intervene because their claims against Tahoe Homes are such that Tahoe Homes would not be entitled to any further payment from the proceeds of the loan. Appellants assert no claim against Boise Cascade. In support of their argument, appellants say that the assignment of August 10, 1978, should be viewed as involving only Tahoe Homes as assignor and Boise Cascade as assignee. If this were true their petition to intervene would appear to have merit. Boise Cascade’s right to payment would depend on Tahoe Homes’ right to payment, which in turn would depend on Tahoe Homes’ performance. Northwestern National Bank v. Commonwealth, 345 Pa. 192, 27 A.2d 20 (1942); Restatement (Second) of Contracts § 336 (1979). In other words: If appellants are right in saying that Tahoe Homes has performed so poorly that it would not be entitled to any more payments, then East Stroudsburg Savings should not pay Boise Cascade. If appellants are not permitted to intervene, and East Stroudsburg Savings pays Boise Cascade, appellants will be required to bring a separate action against East Stroudsburg Savings to recover the payment, for appellant will still be liable on the loan that East Stroudsburg Savings made to them.

The difficulty with appellants’ argument is that the assignment of August 10, 1978, does not involve only Tahoe Homes as assignor and Boise Cascade as assignee. Instead, appellants and East Stroudsburg Savings are also parties to the assignment—-appellants as borrowers of the funds from which Boise Cascade is to be paid, and East Stroudsburg as lender of the funds and as the party charged with paying Boise Cascade out of the funds.

In full, the assignment reads as follows (the assignment was a printed form, and the parts we have underlined were filled in):

Date August 10. 1978
TO: EAST STROUDSBURG SAVINGS ASSOCIATION
75 Washington St
East Stroudsburg. PA 18301
Gentlemen:
East Stroudsburg Savings Assn, is hereby authorized by the undersigned to pay and disburse directly to Boise Cascade Manufactured Housing Division/Eastern Operations, located at 61 Perimeter Park East, Atlanta, Georgia 30341, the approximate sum of $13.000 out of the 2 & 3rd draws (Draw Schedule Attached) of the recorded construction loan and/or mortgage loan on the property known as LOT 607. SECTION 10. SAW CREEK ESTATES. PIKE COUNTY. BUSHKILL. PENNA. 18324.
This assignment is made to provide a means for payment and secure the assignee against any loss by reason of credit extended or to be expended [sic] for materials required in the construction of buildings upon the above described property. This assignment is made in consideration for credit extended or to extend to TAHOE HOMES LTD, and may not be changed without the mutual consent in writing by Boise Cascade Manufactured Housing Division/Eastern Operations and EAST STROUDSBURG SAVINGS ASSN.
/s/ _
Tahoe Homes, Ltd.
/s/ _
Borrower
/s/ _
Borrower
The undersigned does hereby irrevocably consent to the within assignment and agrees to be bound by the terms thereof, and to pay the amount therein* assigned directly to Boise Cascade Manufactured Housing Division/Eastern Operations, 61 Perimeter Park East, Atlanta Georgia 30341.
Dated at East Stroudsburg. State of Pennsylvania, this 21st day of August. 1978.
East Stroudsburg Savings Association
BY: /s/_
Officer Title
[* emphasized in the original]

We agree with the lower court that the intent of this assignment was to give Boise Cascade a direct claim on the proceeds of the loan from East Stroudsburg Savings to appellants. The agreement by which Tahoe Homes purchased the pre-fabricated house from Boise Cascade is part of the record; it did not provide for Boise Cascade to extend any credit to Tahoe, but instead provided that payment was to be on delivery. The assignment was executed after this agreement but before Boise Cascade delivered the house. We assume that this was done because Tahoe Homes realized that it would not be able to pay on delivery, but the reason does not really matter to us. Whatever the reason, Boise Cascade extended credit to Tahoe Homes only after appellants and East Stroudsburg Savings had joined in executing an assignment that recited that its purpose was to protect Boise Cascade “against any loss,” and provided that Boise Cascade was to be paid directly by East Stroudsburg Savings.

The lower court found that East Stroudsburg Savings was in the position of one who has received and holds money for the specific purpose of paying another after certain work is done; once the work is done, his duty is to pay the money over, regardless of objections at the time from the person who provided the money. See Warrington v. Mengel, 41 Pa.Superior Ct. 862 (1909). Here, the lower court reasoned, once Boise Cascade had delivered the pre-fabricated house, its work was done and it was entitled to be paid. However, as we have seen, the assignment provided that the payment to Boise Cascade was to be out of the second and third draws. The draw schedule provided that the second draw was payable when the house was under roof and closed in, and the third draw when the rough plumbing and wiring were complete and the house was ready for interior painting. Thus, although by the terms of the agreement by which Tahoe Homes purchased the house, Boise Cascade was entitled to payment upon, delivery, by the terms of the assignment, it was not entitled to payment until the house was largely completed.

Although the lower court appears to have overlooked this feature of the assignment, its error was harmless. The executive vice president of East Stroudsburg Savings testified on deposition that based on the latest inspection reports, the house was 85% complete, so that according to the draw schedule, the second and third draws were payable. The draw schedule and the inspection reports were made exhibits to the deposition and are part of the record. Thus, the record shows that payment by East Stroudsburg Savings to Boise Cascade was due before the case was heard by the lower court. Since Boise Cascade’s right to payment from the proceeds of the construction loan is under the terms of the assignment independent of any claims appellants may have against Tahoe Homes, the lower court did not err in denying appellants’ petition to intervene. Although it might be more realistic to say that we therefore affirm the order of the lower court, we must instead, under the rule of Frey’s Estate, supra, quash this appeal.

SO ORDERED.

      . In federal practice the appealability of an order denying intervention is stated in a manner similar to the rule of Frey’s Éstate, supra. This approach has been criticized as “a fictional barrier insofar as it pretends to restrict appellate jurisdiction. Since the rule makes the initial question of jurisdiction turn on the merits of the question being raised, i.e., whether intervention was of right or invoked the sound discretion of the trial court, as a practical matter the appellate court must decide the merits whether it dismisses the appeal, affirms, or reverses.” 3B Moore’s Federal Practice ¶ 24.15, at 564-65 (2d ed. 1976) (citations omitted). It has therefore been argued that all denials of intervention should be regarded as final orders. Id.; Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 748-51 (1968).

      . It appears from the deposition that after Tahoe Homes ceased work on the house, appellants made other arrangements to complete it. By the time this dispute reached the lower court, Tahoe Homes was out of business and had filed for bankruptcy.

      . Other cases, including Boyd Estate, 394 Pa. 225, 146 A.2d 816 (1958), cited by Boise Cascade, and In the Matter of Gebco Investment Corporation, 641 F.2d 143 (3d Cir. 1981), also hold that assignments similar to the one in this case create a direct interest in an assignee to the proceeds of a construction loan. Although those cases are consistent with the result we reach here, to the extent that they recognize that this assignment may give the assignee an interest that is not subject to the claims of the trustee in bankruptcy, they are distinguishable in that in them it was not contended that the subcontractor’s right of payment should be defeated by the contractor’s failure to perform.

      . See note 1, supra.

      . We intimate no opinion either as to whether appellants will have standing to appeal from a subsequent final order in this case, or as to whether, if they do have standing, they will be bound in any way by our conclusion here that the lower court correctly determined that they have no interest in the fund held by East Stroudsburg Savings Association. These appear to be undecided questions in Pennsylvania, and they are not now before us. An annotation in the American Law Reports indicates that courts that have considered the question of standing do not agree on the answer. Annot., 15 A.L.R.2d 336, 368.


text:
    446 A.2d 618
    Bonnie L. MARKS, Appellant, v. Harold J. MARKS.
    Superior Court of Pennsylvania.
    Argued May 5, 1982.
    Filed June 4, 1982.

      Lynn Erickson Ober, Reading, for appellant.
    Frank Robert Cori, Orwigsburg, for appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   SPAETH, Judge:

This appeal is from an order denying appellant’s application that her divorce action proceed under the provisions of the Divorce Code.

Appellant is the plaintiff in the divorce action. The action was filed October 3, 1979, under the Divorce Law, and was still pending on July 1, 1980, the effective date of the Code. At the time appellant filed her application that the action proceed under the Code, a master’s report recommending that the divorce be granted had already been filed, and although appellee had filed exceptions to the report, they had been withdrawn. In the opinion that accompanied its order denying appellant’s application the lower court said, “Except for the pending petition [application], the case is ready for entry of a final decree.” Appellant argues, in effect, that the lower court thus indicated that it had decided to accept the master’s report and grant the divorce, and that from that it follows that the order denying her application is a final order for it disposed of the only remaining issues—her right to equitable distribution.

We can understand why appellant takes this position. In its opinion the lower court states that there is no marital property subject to equitable distribution. We note that the court does not discuss appellant’s testimony at the hearing on her application that the real property that appellee owned prior to the marriage had been improved during the marriage by construction of a house, and that she had both contributed funds for building the house and had joined in the mortgage obtained in connection with building the house. We also note that the court does not discuss appellant’s testimony that a purported division of marital personal property was made under duress. Even so, from the face of the opinion it might appear that the issues of whether there was marital property, and if so, whether there should be equitable distribution, had been decided.

It is clear nevertheless that the lower court did not, and could not, decide the issues of marital property and equitable distribution. As an appellate court we are limited to reviewing the order entered by the lower court. Here that order simply, and only, denied appellant’s application that her divorce action proceed under the Divorce Code. Since the lower court denied the application, the action could not proceed under the Divorce Code, which is to say, the action remained an action under the Divorce Law. Under the Divorce Law the lower court had no power to make any decisions regarding marital property and equitable distribution. The court’s statements in its opinion regarding those matters are therefore of no effect.

It follows that the only issue before us is whether the lower court acted properly in denying appellant’s application that her divorce action proceed under the Divorce Code. We cannot, however, decide this issue, for the lower court’s order is interlocutory.

We have already considered the appealability of an order denying an application that an action proceed under the Divorce Code. Gordon v. Gordon, 293 Pa. Superior Ct. 491, 439 A.2d 683 (1981). In Gordon the applicant was the defendant. We held that the order denying the application was appealable. We noted the argument that the order should be found to be interlocutory because, the divorce action not having been concluded, the defendant remained in court. However, the defendant remained in court only to defend against the plaintiff’s case; she was precluded from presenting any case of her own. We reasoned that she was therefore in the same position as the appellant in T. C. R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977), where the Supreme Court held that a plaintiff whose entire casein-chief had been dismissed but who was still required to defend against a counter-claim was sufficiently out-of-court that an appeal would lie. Accordingly, we held the order in Gordon appealable.

In this case the party filing the application that the action proceed under the Divorce Code is not the defendant, as in Gordon, but the plaintiff. The order denying the application therefore cannot be said to have put the plaintiff (appellant) out of court in any sense, even in the “sufficiently out-of-court” sense of T. C. R. Really.

We may make this clearer if we suppose that the facts of this case were slightly different. Suppose that the master’s report recommending a divorce had been filed and that exceptions to it were pending, and that then the lower court had denied the plaintiff’s (appellant’s) application that the action proceed under the Code. Plainly, an appeal from that order would be interlocutory: the plaintiff would still be in court, and for all we knew, the defendant’s exceptions might be sustained, with the result that no divorce would be granted. We would therefore quash the appeal, and leave the issues of entitlement to divorce and to equitable distribution to such appeal as might be taken from the final decree, either a decree granting a divorce or a decree denying a divorce. That is what we must do here. For whether an order denying a plaintiff’s application happens to be entered before or after a master’s report or exceptions to a master’s report is of no consequence. What is of consequence is whether the applicant-appellant is either out of court entirely or at least sufficiently out of court.

The gist of appellant’s argument is that because the exceptions to the master’s report have been withdrawn we should treat the record as though she were entirely out of court, in other words as though a final decree granting a divorce had been entered. This argument assumes that entry of a final decree is a mere “ministerial act.” We cannot accept this argument. Indeed, we have already rejected it. The entry of a final decree is not a mere ministerial act but is rather an exercise of judicial authority and responsibility. Aloi v. Aloi, 290 Pa. Superior Ct. 125, 434 A.2d 161 (1981) (quashing an appeal taken after dismissal of exceptions to a master’s report recommending a divorce but before entry of a final decree). Because appellant is in no sense out of court, her appeal is interlocutory and we have no choice but to quash it. Toll v. Toll, 293 Pa. Superior Ct. 549, 439 A.2d 712 (1981).

We do not believe, however, that this should end our consideration. The lower court gave as its reason for denying appellant’s application that the application was not verified as required by Pa.R.C.P. 206. There is no requirement in the Divorce Code or in the Pennsylvania Rules of Civil Procedure that an application that an action proceed under the Divorce Code be presented by means of a verified petition; the Code and the Rules are silent on the matter. In the face of this silence various approaches have been adopted by courts and counsel throughout the Commonwealth. If it is the position of the lower court that in Schuylkill County an application must be by verified petition, we expect that when this record is returned to the lower court, the court will permit appellant to file another application in the appropriate form. To deny appellant even the opportunity for a hearing because of a failure to comply with a technical requirement of procedure in an area where the procedure itself was highly uncertain would be contrary to the legislative intent as expressed in Divorce Code. See Gordon v. Gordon, supra.

We further note that should appellant present another application, the lower court in considering it will have the benefit of our opinions in Miller v. Miller, 296 Pa. Superior Ct. 519, 442 A.2d 1172 (1982); Gordon v. Gordon, supra; Toll v. Toll, supra; and Conrad v. Conrad, 293 Pa. Superior Ct. 558, 439 A.2d 717 (1981). In these cases this court sitting en banc held that a lower court has only a very limited discretion in considering an application that a divorce action proceed under the Divorce Code, and that in almost all cases, the proper response is to grant the application.

Quashed.

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

        . Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1 et seq. (repealed).

      . Although we have determined that this appeal is interlocutory, once it was taken the lower court lost its jurisdiction over the case and therefore its power to proceed further. Pa.RA.P. 1701. A divorce decree entered subsequent to the filing of an appeal is void. Gordon v. Gordon, supra; Aloi v. Aloi, supra. Until a valid final decree has been entered, a pending action is subject to possible transfer for decision under the Divorce Code.