author: WIEAND, Judge: LIPEZ, Judge,

text:
    511 A.2d 1382
    COMMONWEALTH of Pennsylvania, Appellee, v. Elmer Wilson CLARK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed July 3, 1986.

      Before SHAULIS, J.
    Sandra W. Upor, Somerset, for appellant.

      George B. Kaufman, Assistant District Attorney, Somerset, for Commonwealth, appellee.
    Before WIEAND, POPOVICH and LIPEZ, JJ.
   WIEAND, Judge:

Elmer Wilson Clark, on August 13, 1981, entered pleas of guilty to forgery, criminal attempt to cash a forged check and escape. He was sentenced to serve a term of imprisonment for not less than six years nor more than fourteen years. On January 19, 1983, Clark filed a P.C.H.A. petition in which he alleged that he had been denied his right of allocution. The petition was twice amended to include averments (1) that the sentencing court had failed to state adequate reasons for the sentence; (2) that the guilty plea court had failed to explain the elements of the crime of escape; and (3) that prior counsel had been ineffective for failing to raise these issues. Counsel was appointed to represent Clark, but the P.C.H.A. petition was denied without hearing. This appeal followed. We affirm.

The allocution issue was lacking in merit and did not require an evidentiary hearing. At sentencing, the court specifically asked Clark, “Is there anything else to be said?” to which Clark replied, “No, sir.” This constituted full compliance with Pa.R.Crim.P. 1405(a). We have also examined the reasons for the sentence which the court imposed and find them adequate. Counsel was not ineffective for failing to pursue this issue in a motion to modify sentence.

It is correct, of course, that “a guilty plea is valid only if the defendant understands the nature of the charges brought against him.” Commonwealth v. Campbell, 309 Pa.Super. 214, 218, 455 A.2d 126, 128 (1983). However,

an esoteric explanation of the elements of the crime is not necessarily a prerequisite to constitutional validity of a guilty plea in all circumstances. The “true constitutional imperative is that the defendant receive ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” [Commonwealth v. Shaffer, 498 Pa. 342, 350, 446 A.2d 591, 595 (1982)], quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108, 114 (1976). Whether notice has been adequately imparted may be determined from the totality of the circumstances attendant upon the plea, Shaffer [446 A.2d] at 595, see also Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973), Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968).

Commonwealth v. Martinez, 499 Pa. 417, 420, 453 A.2d 940, 942 (1982).

In the instant case, the guilty plea colloquy with respect to escape was as follows:

Q. And in the third case, No. 257 Criminal 1981, in which you are charged with Escape, a Felony of the third degree; did you Escape from the Somerset County Jail while you were imprisoned on that charge?
A. Yes, sir.
Q. Tell me how you escaped.
A. Well, I climbed up over the fense [sic] and down over the wall.
Q. From the roof?
A. Yes, sir.
Q. Did you have any authority to leave?
A. No, sir.
Q. Were you imprisoned there on this charge?
A. Yes, sir.
Q. Well, that is the other check charges.
A. Yes.
Q. Well, that’s a Felony of the third degree, and can also carry with it a possible seven year prison sentence or fine or both. (N.T. 8/13/81, at 6-7).

The foregoing colloquy was adequate to impart to appellant that he was entering a plea of guilty to an escape from the Somerset County Jail because he had left without authority while subject to imprisonment on a charge of forgery. He had previously been told by the court, moreover, that the charge of forgery was a felony. In view of these instructions there were no additional elements of the crime of escape which remained to be explained. See: 18 Pa.C.S. § 5121. Moreover, the elements of the offense were straightforward and did not require further explanation in order to make them understandable. We conclude, therefore, that the colloquy accompanying appellant’s plea of guilty to escape was adequate. A challenge to the validity of the guilty plea on this basis would have been meritless. Counsel was not ineffective for failing to make such a challenge.

Clark argues for the first time in this appeal that the trial court lacked jurisdiction to sentence him for escape because an information charging that offense had not been filed against him. A review of the record discloses that a criminal complaint had been filed by the Sheriff of Somerset County in which the charge was escape in violation of 18 Pa.C.S. § 5121. Specifically, the complaint averred that on July 28, 1981, at 9:45 p.m., appellant “did unlawfully remove himself from official detention in the Somerset County Jail where he had been committed in lieu of bond on charge of Forgery, a felony.” On August 13, 1981, appellant appeared before the trial court for the purpose of entering a plea of guilty to informations charging him with forgery and criminal attempt. At this hearing, appellant indicated his desire to plead guilty also to the escape charge so that he could be sentenced on all pending charges at the same time. The trial court conducted a full guilty plea colloquy and accepted appellant’s plea of guilty to forgery, criminal attempt and escape.

Appellant’s present argument is that a trial court lacks jurisdiction to accept a guilty plea to a crime not charged by information or indictment. We disagree. To invoke the jurisdiction of the court to accept a plea of guilty for a criminal offense,

it is necessary that the Commonwealth confront the defendant with a formal and specific accusation of the crimes charged. This accusation enables the defendant to prepare any defenses available to him, and to protect himself against further prosecution for the same cause____

Commonwealth v. Little, 455 Pa. 163, 168-169, 314 A.2d 270, 273 (1974). In Little, the Supreme Court held that the requirement of “a formal and specific accusation” had been satisfied by an indictment returned by the grand jury and that the absence of a criminal complaint did not affect the subject-matter jurisdiction of the lower court.

Four years later, in Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978), the Supreme Court again considered the necessity for “a formal and specific accusation” of the crimes charged. There, a defendant who had been charged with attempted rape, kidnapping, indecent assault and simple assault, waived a preliminary hearing, waived presentment to the grand jury, waived formal indictment and entered a plea of guilty to attempted rape. The remaining charges were nolle prossed, and the defendant was sentenced to probation for five years. Thereafter, he was indicted on the same charges. He moved to dismiss the charges, contending that his constitutional right to be free of double jeopardy was being violated. The Commonwealth argued that there could be no double jeopardy violation because the trial court, without an indictment, had lacked jurisdiction to accept the defendant’s guilty plea and impose sentence upon him.

When the issue reached the Supreme Court, it held that the trial court had, in fact, had jurisdiction to accept the defendant’s plea and to impose sentence. After discussing the constitutional requirement of formal notice, the Court said:

In the case before us, [defendant] had formal notice of the charges against him. The complaint filed against [defendant] was not so broad in its allegations that the specific conduct allegedly committed by [defendant] was in doubt. The complaint was specific as to the date of the crime, identified the victim of the crime, and specifically described the acts alleged to have been done by [defendant] during the attempted rape. Moreover, the specific facts underlying the charge of attempted rape were formally placed on the record in the presence of the [defendant] and [defendant’s] counsel____
We conclude that the requirement of Little, that the accused be given a formal notice of the charges has been satisfied in this case. There is no question concerning the specific charges to which the appellant pleaded guilty and for which he was sentenced on April 13, 1974. The trial court was therefore not divested of subject matter jurisdiction by any lack of notice to the defendant of the crimes of which he stood accused.

Commonwealth v. Diaz, supra, 477 Pa. at 126-127, 383 A.2d at 854-855.

Appellant’s reliance on Commonwealth v. Komatowski, 347 Pa. 445, 32 A.2d 905 (1943) is misplaced. There, the defendant had been convicted by a jury “of a crime utterly unknown to the law.” Moreover, the Court observed by way of dictum, the verdict of the jury had not been responsive to the charge contained in the indictment. Under these circumstances, the Court held, the defendant’s motion in arrest of judgment should have been granted. Instead, the record showed, the trial court had sentenced the defendant for another crime of which he had not been convicted by the jury. This, the Supreme Court held, was error. This decision clearly is not determinative of a trial court’s jurisdiction to accept a plea of guilty, at defendant’s express request, to a charge then pending but for which an information has not yet been filed. Moreover, even if the dictum in Komatowski can possibly be construed as questioning a court’s jurisdiction to accept a plea of guilty and impose a sentence to such a pending charge, we would nevertheless be required to follow Diaz. The holding of Diaz is later in time than the dictum in Komatowski and represents the most recent word of the Supreme Court on this issue.

In the instant case, as in Diaz, a criminal action for escape had been commenced against the defendant by the filing of a criminal complaint. That complaint contained averments which established with specificity the date and time of the escape, the prison facility where appellant had been confined at the time of his escape, and the names of the persons who had escaped with appellant. In order to enter a plea of guilty to this charge and dispose of all pending charges at one and the same time, appellant expressly waived the necessity for the prior filing of an information charging escape. During the guilty plea colloquy, he told the court exactly how the offense had been committed. Thus, appellant clearly had notice of and understood the charge of escape to which he was entering a plea of guilty. He had a full comprehension of the nature of the act for which he was being sentenced. This was “substantially equivalent” to an information and was sufficient to vest jurisdiction in the trial court to accept the guilty plea and impose sentence.

The order dismissing appellant’s P.C.H.A. petition is affirmed.

LIPEZ, J., files a dissenting Opinion.

LIPEZ, Judge,

dissenting:

I agree with the majority’s disposition of all issues except defendant’s claim that he should be discharged for escape. While the county sheriff filed a criminal complaint against defendant for the crime of escape, the district attorney never filed an information formally charging defendant with that crime. This would clearly seem to require defendant’s discharge on his escape conviction, because as Chief Justice Maxey observed in a unanimous opinion for our Supreme Court:

No authority is needed to sustain the proposition that a defendant cannot be legally convicted of a crime neither charged in the indictment nor a necessary constituent of any crime so charged, but on those rare occasions when such a question has come before the appellate courts of this State they have consistently held as we hold in this case that such a conviction is a nullity.

Commonwealth v. Komatowski, 347 Pa. 445, 455-56, 32 A.2d 905, 910 (1943).

Since the time of Komatowski, almost all judicial districts in Pennsylvania, including the one involved in this case, have abandoned grand jury indictments and adopted infor-mations filed by the district attorney as the instrument for formally charging defendants with crimes. See Pa.Const., art. 1, § 10 (Supp.1985); Pa.R.Crim.P. 225. The rule stated in Komatowski, however, is equally applicable to informa-tions and this court has held that a trial court lacks jurisdiction to convict a defendant of a crime not charged in the information. Commonwealth v. Speller, 311 Pa.Super.Ct. 569, 579, 458 A.2d 198, 203-04 (1983). We have also held that the court has no jurisdiction to accept defendant’s guilty plea to a crime not charged in the information. Commonwealth v. Longo, 269 Pa.Super.Ct. 502, 503-04, 410 A.2d 368, 369 (1979).

Since the defendant here pled guilty to escape, with which the district attorney had not charged him by information, the Longo case is directly on point, and the escape conviction could be reversed and discharged without further explanation, were it not for Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978), in which the Supreme Court unanimously held that a trial court did have jurisdiction, under the circumstances of that case, to accept a guilty plea to a charge as to which there had been no indictment filed. Id., 477 Pa. at 127, 383 A.2d at 855. The unanimous opinion in Diaz, however, did not refer to the unanimous opinion in Komatowski, which seemed to hold exactly the opposite. This conflict cannot be resolved by viewing Komatowski as an old and outdated case, since its holding was a fundamental principle of law, which both the Supreme Court and this court en banc had recently restated at the time Diaz came before the Supreme Court. See Commonwealth v. Lee, 454 Pa. 526, 528, 312 A.2d 391, 392 (1973); Commonwealth v. Hoffman, 230 Pa.Super.Ct. 444, 446, 331 A.2d 805, 806 (1974).

Although Komatowski involved a trial and Diaz involved a guilty plea, there is nothing in the Diaz opinion to suggest that the different result in that case was based on the fact that a guilty plea, rather than a trial, was involved. Thus we seem to have two unanimous Supreme Court opinions contradicting each other. I believe the cases can only be reconciled by close analysis of the discussion in the Diaz opinion in the context of the facts of the case.

The Diaz opinion quoted the trial court’s summary of the facts as follows:

“On April 13, 1974, the defendant, Anibal Diaz, was arrested and charged with Attempted Rape, Kidnapping, Indecent Assault and Simple Assault. On April 18, 1974, the defendant appeared before Judge Thomas N. Shio-mos. The defendant knowingly and intelligently waived the preliminary hearing, presentment to the Grand Jury and indictment, and entered a plea of guilty on the Municipal Court transcript to the charge of Attempted Rape. In return for the guilty plea, the Commonwealth moved to nolle prosse the remaining charges. Thereupon, Judge Shiomos, sitting as a Judge of the Court of Common Pleas, accepted the guilty plea and sentenced the defendant to five years probation.”

Commonwealth v. Diaz, supra, 477 Pa. at 124, 383 A.2d at 853.

The Commonwealth later indicted defendant for the same charges, and defendant moved to dismiss the indictment on double jeopardy grounds. The Commonwealth argued that there was no double jeopardy violation in reprosecuting defendant on the same charges, because the trial court had not had jurisdiction to accept defendant’s guilty plea, since there was no indictment at the time the guilty plea had been accepted. The Supreme Court rejected this argument, discussing the issue as follows:

- If the trial court had subject matter jurisdiction, appellant was placed in jeopardy, within the meaning of the constitutional protections, on April 13, 1974, when he pleaded guilty in conjunction with the plea bargain and was sentenced for the crimes of which he was accused. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The prosecution argues that the trial court did not have subject matter jurisdiction because an indictment was necessary to invoke that court’s jurisdiction. The prosecution relies principally on Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974), and Commonwealth ex rel. Fagan v. Francies, 53 Pa.Super. 278 (1913). According to the prosecution, these cases hold that a court’s subject matter jurisdiction cannot be invoked absent an indictment. We do not accept the prosecution’s statement of the holdings of these cases. In Commonwealth v. Little, we said:
“The right to formal notice of charges, guaranteed by the Sixth Amendment to the Federal Constitution and by Article I, Section 9 of the Pennsylvania Constitution, is so basic to the fairness of subsequent proceedings that it cannot be waived even if the defendant voluntarily submits to the jurisdiction of the court. Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927); Commonwealth ex rel. Fagan v. Francies, 53 Pa.Super. 278 (1913).” (Emphasis added.) 455 Pa. at 168-169, 314 A.2d at 273.
We further said in Little, supra:
“In the case before us, the requirement of notice to the defendant is fully satisfied by the indictment returned by the grand jury. Id. 455 Pa. at 169, 314 A.2d at 273.
The prosecution misreads Little. Little said that there must be a “formal notice of charges,” and that “the requirement of notice ... is fully satisfied by the indictment.” Little did not say that an indictment was the only way to satisfy the requirement of formal notice.
Likewise, in Fagan, supra, cited in Little, the Superior Court said:
“The objection that the case was not certified into the oyer and terminer may be regarded as technical, but the objection that no court had power to impose the sentence, except upon an indictment, without the relator’s express and unequivocal consent, is not technical but substantial.” (Emphasis added.)
Fagan, like Little, was concerned with whether there had been a formal notice of charges. Had there been an “express and unequivocal consent” in Fagan, an indictment would have been dispensable.

Commonwealth v. Diaz, supra, 477 Pa. at 124-25, 383 A.2d at 854.

The opinion in Diaz went on to determine that the formal notice requirement had been satisfied without an indictment under the specific facts of that case, but this determination can only be understood against the background of the above-quoted discussion of the Little and Fagan cases. The significant point about this discussion is that it clearly does not discard the long-standing rule that the requirement of formal notice of charge is jurisdictional, and therefore cannot be waived. Instead, Diaz says that Little leaves open the possibility of satisfying the formal notice requirement by means other than an indictment. The only specific reference to any means other than an indictment is the quotation from Fagan, referring to an “express and unequivocal consent.”

When read only in the context of the single sentence from Fagan quoted in Diaz, the phrase “express and unequivocal consent” might be interpreted to mean consent to the jurisdiction of the court, but such an interpretation would be inconsistent with the statement Diaz had just quoted from Little, that there could be no waiver “even if the defendant voluntarily submits to the jurisdiction of the court.” When the phrase “express and unequivocal consent” is read in the context of the full opinion in Fagan, however, it becomes clear that what appears to be a vague and open-ended expression was intended to have a quite specific meaning. It refers to a procedure under the Act of April 15, 1907, P.L. 62, § 1, 19 P.S. § 241, whereby a defendant could waive grand jury action of an indictment by endorsing the waiver on a bill of indictment prepared by the Commonwealth.

It was only action by the grand jury that was waived by the procedure under the Act of 1907. There still had to be a bill of indictment, an instrument by which the district attorney formally charged the defendant with a specific crime or crimes, as a basis for the jurisdiction of the court. See Commonwealth ex rel. Fagan v. Francies, supra, 53 Pa.Super.Ct. at 290. This remained true when the Act of 1907 was supplanted by an essentially similar procedure in Rule of Criminal Procedure 215, adopted by the Supreme Court in 1964.

With the understanding that the “express and unequivocal consent” approved by the Diaz opinion refers to the procedure for waiver of grand jury action under the Act of 1907 and Rule 215, it is possible to make sense of the Diaz holding that the court had jurisdiction under the circumstances of the case, even though there had been no indictment. Most of the Diaz opinion’s discussion of the circumstances on which it relied consists of a lengthy quotation from the Municipal Court transcript of a statement by the prosecutor of the specific facts underlying the charges. This transcript, which defendant endorsed with his waiver of grand jury action, thus provided the substantial equivalent of a bill of indictment prepared by the Commonwealth.

From this close reading of the entire discussion in the Supreme Court’s opinion in Diaz, it is possible to glean the essential holding that the specific facts of Diaz represented a case of substantial compliance with Rule of Criminal Procedure 215. While the opinion is not explicit concerning this or any other rationale, this is the only way to reconcile the Diaz opinion with Little and Fagan, which Diaz approved, as well as the Supreme Court’s unanimous holding in Commonwealth v. Komatowski, supra, that the court has no jurisdiction to convict or sentence a defendant for a crime for which he has not been indicted.

In the case before us, there is no question of substantial compliance as in Diaz. There was simply no information or indictment or any other instrument filed with the court by the district attorney formally charging defendant with the crime of escape. The court below therefore had no jurisdiction to accept defendant’s guilty plea to escape, or to sentence him for that crime. Commonwealth v. Komatowski, supra; Commonwealth v. Speller, supra; Commonwealth v. Longo, supra. Defendant should therefore be discharged for escape.

      . Appellant also contends that there were reasons why the sentencing court would have granted his request for modification of the sentence if they had been presented to the court. There is no merit in this contention. The reasons now suggested by appellant were trivial and would not have warranted a reduced sentence.

      . Although this issue was not previously raised, it has not been waived. "[A]n objection to lack of subject-matter jurisdiction can never be waived." Commonwealth v. Little, 455 Pa. 163, 168, 314 A.2d 270, 272 (1974).

      . Our Supreme Court might well take this case to clarify this issue, since it is one of great technical difficulty, and involves interpretation of the court’s own apparently conflicting opinions.

      . Like the Komatowski case, Commonwealth v. Lee, supra, appears to contradict Diaz, since Lee cites Komatowski for the following proposition: "One cannot be convicted or sentenced for an indictable offense unless the grand jury has approved an indictment covering that offense.” What makes this particularly astonishing is that the Lee and Diaz opinions were written by the same author. Further compounding the confusion is the fact that only a year after Diaz, which superficially seems to hold that even a jurisdictional issue is waivable, the author of Diaz argued in a lone dissent that even a nonjurisdic-tional issue should not be waivable. Commonwealth v. Montgomery, 485 Pa. 110, 115, 401 A.2d 318, 320 (1979) (dissenting opinion).

      . The quotation from the Municipal Court transcript is preceded by a brief reference to the sufficiency of the criminal complaint, but there is no indication that a complaint alone would be sufficient to confer criminal jurisdiction. Commonwealth v. Little, supra, 455 Pa. at 169, 314 A.2d at 273, held that the absence of a complaint did not deprive the court of criminal jurisdiction, which was conferred by the indictment. It would seem to follow from the reasoning of Little that something as insignificant to the jurisdictional issue as a criminal complaint could not by itself substitute for something as important as the indictment. Since Diaz purported to be consistent with Little, the brief mention of the criminal complaint in Diaz should be interpreted as simply one factor the Court took into consideration in holding that under all the circumstances, the unusual procedure followed by the Commonwealth amounted to the substantial equivalent of filing a bill of indictment under Rule of Criminal Procedure 215.

      . According to the trial court’s statement of facts, which the Supreme Court quoted, “The defendant knowingly and intelligently waived the preliminary hearing, presentment to the Grand Jury and indictment, and entered a plea of guilty on the Municipal Court transcript to the charge of Attempted Rape.” Commonwealth v. Diaz, supra, 477 Pa. at 124, 383 A.2d at 853.

      . It is not clear why the Supreme Court’s opinion fails to mention Rule 215 explicitly, since the Superior Court, whose judgment was reversed by the Supreme Court, had discussed the rule in holding that an indictment or a bill of indictment was necessary to the court’s criminal jurisdiction. Commonwealth v. Diaz, 235 Pa.Super.Ct. 352, 355-56, 340 A.2d 559, 561 (1975). The Superior Court, however, had not mentioned the possibility that even though no bill of indictment had been formally drawn up, the Municipal Court transcript with defendant’s waiver endorsement constituted the substantial equivalent of the Rule 215 bill of indictment, and this interpretation is the only one which fits the facts cited in the Supreme Court’s opinion. Cf. Commonwealth ex rel. Kolodziejski v. Tancredi, 222 Pa.Super.Ct. 436, 443-44, 295 A.2d 174, 178 (1972) (citing factors supporting a finding of a lack of substantial compliance with Rule 215).

      . An alternative route by which the Diaz result could have been justified would have been to distinguish Diaz from Komatowski and its progeny, in that the Komatowski type of case involves a defendant who claims the court had no jurisdiction to try him unless the attorney for the Commonwealth files a formal charge, while Diaz involved a defendant who was being prosecuted for the second time on the same charges, and the Commonwealth opposed the defendant’s double jeopardy claim on the ground that the court had no jurisdiction over the first set of charges, which were void. The Diaz Court could simply have held that the whole question of jurisdiction over the first set of charges, along with the "void — voidable” distinction, has no relevance in the double jeopardy context. In effect, the Commonwealth would be estopped from disclaiming the validity of the original set of charges it had brought. The United States Supreme Court had at least left the door open to this approach in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), a case cited by the Pennsylvania Supreme Court in Diaz, 477 Pa. at 124, 383 A.2d at 854. In Benton, the U.S. Supreme Court called the government’s argument that the defective first indictment involved in that case was void "a bit strange,” 305 U.S. at 796, 89 S.Ct. at 2063, but did not go so far as to hold that the "void-voidable” distinction should be eliminated entirely in the double jeopardy context, as it was unnecessary in that case, since under Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the defective first indictment was merely voidable. Benton v. Maryland, supra, 395 U.S. at 797, 89 S.Ct. at 2064. This would certainly have permitted the Pennsylvania Supreme Court to throw out the void-voidable distinction entirely in a case such as Diaz, where there was no indictment at all, rather than merely a defective one as in Benton, making it much more difficult in Diaz to characterize the original charges as merely voidable. The Diaz Court could also have bypassed federal law entirely by holding that double jeopardy claims under the Pennsylvania Constitution do not require that the first set of charges be voidable rather than absolutely void, although perhaps the Court did not do this because of the confusion surrounding the applicability of the double jeopardy clause of the Pennsylvania Constitution to non-capital cases at the time of the Diaz decision. See generally Commonwealth v. Boerner, 281 Pa.Super.Ct. 505, 513-15 & nn. 7-11, 422 A.2d 583, 587-88 & nn. 7-11 (1980), petition for allowance of appeal denied (1981). In any event, I have not relied on these alternative approaches, since the Diaz opinion does not indicate they provided a basis for the Court’s decision.

      . A criminal complaint was filed by the sheriff charging defendant with escape, but as previously discussed, a criminal complaint alone is insufficient. See note 3, supra.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: POPOVICH, Judge,

license: Public Domain

text:
    512 A.2d 1
    Samuel R. CRONAN and Dorothy A. Cronan, His Wife, Appellants, v. CASTLE GAS COMPANY, INC., a Corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 20, 1986.
    Filed June 9, 1986.
    Reargument Denied July 25, 1986.
    Petition for Allowance of Appeal Denied Dec. 15, 1986.

      George A. Conti, Jr., Greensburg, for appellants.
    Wayne A. Kablack, Indiana, for appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This appeal arises from a final decree and judgment, entered November 2, 1984, dismissing appellants’ exceptions to the Findings of Facts, Conclusions of Law, and Decree Nisi of the Court of Common Pleas of Indiana County. Appellants had filed exceptions to the court’s order of June 18, 1984, denying the requested injunction against appellee and refusing to grant monetary damages. A brief recital of the facts of this case will be helpful.

Appellants, Samuel R. Cronan and Dorothy A. Cronan, purchased a tract of land from Joseph M. Frye, et ux., by deed dated November 29, 1972. This deed contained the following reservation clause:

EXCEPTING AND RESERVING to M.V. Lias all of the oil and gas in, under and upon the said premises for and during the term of his natural life as excepted and reserved in the recital deed.

Similarly, the deed by which Frye had purchased this tract from M.V. Lias in 1971 contained the following reservation clause:

EXCEPTING AND RESERVING to the grantor herein all the oil and gas in, under and upon the said premises for and during the term of his natural life. Upon his death said oil and gas interest shall forthwith pass to and be vested in the grantees herein named, their heirs and assigns.

In 1963, Lias had entered into a ten-year oil and gas lease with the Manufacturer’s Light and Heat Company. This lease was recorded, but no activity was conducted on the land. On September 28, 1972, Lias entered into a ten-year oil and gas lease with Columbia Gas Transmission Corporation. This lease was to take effect on April 2, 1973. On or about June 15, 1980, appellee entered appellants’ land for the purpose of drilling gas wells. Appellee constructed a roadway and two well sites, one of which was actually drilled. Subsequent to the drilling, the well was outfitted and treated, the roadway was backfilled, and any trees that were disturbed were cut and stacked for the appellants. Appellants brought this action alleging damage to their land, crops and timber.

Initially, we are faced with the question of whether the exception and reservation clause in the subject deed excepted and reserved to the grantor/life tenant (M.V. Lias) the right to enter into a subsequent oil and gas lease and to produce oil and gas thereunder without the joinder of the remainderman. As a general rule, a life tenant cannot produce oil and gas without the joinder of the remainder-man, as such independent production would constitute waste:

Absent special conditions (e.g., the existence or threat of drainage, the opening of mines before the creation of the life estate, a power of consumption of the corpus given the life tenant or the creation of the life estate without impeachment of waste), the life tenant is without the right to develop the minerals, either personally or through a lessee, by reason of the fact that this constitutes waste.

Oil and Gas Law, Williams & Meyers, Vol. 2, page 636.1, Sec. 512.1. It is a recognized exception to this rule that a life tenant may operate oil and gas wells, mines and quarries if they were opened before his life estate began. See Crozer’s Estate, 336 Pa. 266, 9 A.2d 535 (1939); Knox’s Estate, 328 Pa. 177, 195 A. 28 (1937). In such a case, the Open Mine Doctrine entitles the life tenant to continue operation of the opened mine and retain the proceeds of such operation. This doctrine is justified by the principle that a life tenant is entitled to enjoy the land in the same manner as it was enjoyed before the creation of the life estate. Oil and Gas Law, supra, Vol. 2, page 646.1, Sec. 513.

In this case, however, the oil and gas mine was not physically opened before the life estate began. There had been no drilling though the land had been leased. This lease, despite the absence of actual drilling operations on the land, is sufficient to constitute the opening of mines under the Open Mine Doctrine. See Oil and Gas Law, supra, Vol. 2, page 648, Sec. 513. It can be determined from the granting of a lease that the grantor contemplated the use of the land for the extraction of oil and gas, and the mine is considered open. Since Lias leased the oil and gas rights in 1963 for a ten-year period, and created a life estate in these rights when he sold the property to Frye in 1971, there was a lease of the oil and gas rights in effect when the life estate was created. Thus, the Open Mine Doctrine certainly applied at that point.

Appellants’ contention is that the expiration of the first lease in 1973 terminated the applicability of the Open Mine Doctrine, and Lias could not enter a new lease as such was not permitted by either the exception and reservation clause or existing law. It is uncertain under the Open Mine Doctrine how the expiration of the lease without actual production would affect Lias’ rights as life tenant to produce oil and gas. One commentator has reduced the argument to the following set of circumstances:

There is uncertainty as to the result if the lease, which existed at the time the life estate began, terminates after the life estate has begun. If emphasis be given to the grantor’s intention to the effect that he intended that the land be dealt with as he had dealt with it, it would follow that the life tenant, acting alone, would have the power to give a valid lease after the termination of an existing lease and would be entitled to all proceeds payable under such subsequent lease. If, on the other hand, emphasis be given to the factor that wells are drilled under the authority of an existing lease which is the equivalent of an open mine, then it is apparent that such authority for opening mines or drilling wells no longer exists after termination of the outstanding lease, and the life tenant, acting alone, would not be entitled to lease again and enjoy the proceeds of a subsequent lease.

The Law of Oil and Gas, Kuntz, 8.2, page 177. We find that the weight of existing law favors emphasis upon the grantor’s intent, and thus the Open Mine Doctrine continues in effect in this case.

Interpretation of the exception and reservation clause of the deed will determine the parties’ rights thereunder, and in construing such an instrument the law provides that “our primary object must be to ascertain and effectuate what the parties intended.” Brookbank v. Benedum-Trees Oil Company, 389 Pa. 151, 131 A.2d 103 (1957); see Lawson v. Simonsen, 490 Pa. 509, 417 A.2d 155 (1980). A rule of construction of deeds provides that in ascertaining the intention of the parties, the language of the deed should be interpreted “in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.” Brookbank, 389 Pa. at 157, n. 6, 131 A.2d at 107, n. 6. Looking to the intent of Lias in reserving a life estate in the oil and gas on the property, we find that it was his intention that the right to produce oil and gas would continue throughout his life tenancy. Thus, the granting of a second lease did not terminate the applicability of the Open Mine Doctrine.

First, we note that at the time the life tenancy was created, a lease had been in effect for eight years for the production of oil and gas. Oil and gas will not disappear if not immediately mined, so the absence of any drilling operations did not indicate that Lias had abandoned any hope of eventual production. Secondly, Lias entered into a second ten-year lease agreement in September of 1972, such lease to take effect immediately upon the expiration of the first lease in April of 1973. Viewing the exception and reservation clause in light of those circumstances of its creation, we find an intention on the part of Lias to retain his rights to produce oil and gas on appellants’ land for the duration of his life tenancy.

Appellants’ argue, nevertheless, that the case of Nutter v. Stockton, 626 P.2d 861 (Okla.1981), mandates a different decision. We disagree. Nutter involved a similar factual situation in which the Open Mine Doctrine was interpreted in an oil and gas case where a lease had expired and the life tenant wished to grant another lease. Id. In Nutter, Mrs. Beuna Gass, the grantor, executed a two-year oil and gas lease on a parcel of land and she died in the same year. Mrs. Nutter was left a life estate in the land in question. Following the expiration of the two-year lease, Mrs. Nutter attempted to grant a new mineral lease despite the fact that no actual drilling had occurred. Id. Oklahoma’s Supreme Court held that the Open Mine Doctrine would not apply beyond the lease in existence, as there was no evidence that the grantor (Mrs. Gass), intended to grant the life tenant (Mrs. Nutter) authority to do with the land as she pleased to the exclusion of the remainderman. Id. at 864.

It is important to note that the Oklahoma Court based its decision on the intent of the grantor in granting the life tenancy. Without more, the granting of the lease could not support a finding that the grantor intended that the life tenant should have the benefits of the Open Mine Doctrine. In the case at bar, however, the grantor and life tenant are the same person. From Lias’ actions in executing the two leases to take effect consecutively, we can determine his apparent intention to continue to enjoy the benefits of the Open Mine Doctrine. Further, unlike Nutter, the grantor is still alive and was able to testify as to his intention to maintain his rights under the Open Mine Doctrine. Therefore, we hold that the Open Mine Doctrine permits Lias to make a second lease for the production of oil and gas under his rights as life tenant to the exclusion of the remainder-man.

Appellants further contend that it was error to allow Lias to enter parol evidence as to his intent in reserving a life tenancy in the oil and gas. Parol evidence should not be admitted when the deed describing a real estate interest contains language which is clear and free from ambiguity. Wysinski v. Mazzotta, 325 Pa.Super. 128, 472 A.2d 680 (1984). In this case the interest created, a life tenancy in the oil and gas on the property, was not clear and free from ambiguity, as it was unclear what right would remain to develop oil and gas after the expiration of the first lease. The deed was silent on this point. Given the importance of the grantor’s intent vis-a-vis the Open Mine Doctrine, Lias’ testimony was material, relevant, and essential to a proper interpretation of the deed. Therefore, the lower court did not err in allowing the admission of parol evidence.

Finally, appellants argue that the lower court erred in finding that there was insufficient proof of damages and that appellants failed to mitigate damages. It is appellants’ contention that they suffered damage to their land by virtue of appellee’s mining and drilling operations under the lease. Appellants claimed damages for the destruction of trees, insufficiency of backfilling, and their costs to reclaim the land. A figure of $12,500 was put forth by appellants as the total value of damages to the property.

With regard to damages for the destruction of timber, the lower court ruled that no such damages would be allowed due to appellants’ failure to mitigate damages. Appellee had the initial burden to show that appellants could have minimized damages. See APCL & K, Inc. v. Richer Communications, Inc., 241 Pa.Super. 396, 361 A.2d 762 (1976). This burden was met when the appellee showed that appellants failed to put the timber to some reasonable use for a three-year period after it was cut, stacked, and made available to appellants. Having the opportunity, appellants must mitigate damages. Since appellants made no such effort, and allowed the timber to rot and become worthless, no damages can be awarded for the destruction of timber.

Damages for other harm to the land caused by the alleged insufficient backfilling and reclamation by appellees cannot be awarded in this case. Appellants had the burden of proving their damages by a preponderance of the evidence. Wright v. Buckeye Coal Co., 290 Pa.Super. 231, 434 A.2d 728 (1981). Any damages that are not proved are not recoverable. Maxwell v. Schaefer, 381 Pa. 13, 112 A.2d 69 (1955). In this case, although appellants alleged damage to their property, there was no evidence as to specific damages, and appellants did not testify as to reclamation costs. Appellants merely offered a general prayer for damages in the amount of $12,500. Appellants had a duty to establish by evidence such facts as would furnish a basis for the legal assessment of damages according to some definite and legal rule. Gordon v. Trovato, 234 Pa.Super. 279, 338 A.2d 653 (1975). Our law requires not merely conjecture, but rather sufficient data from which damages can be assessed with reasonable certainty. Macan v. Scandinavia Belting Company, 264 Pa. 384, 107 A. 750 (1919); Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982); Gordon v. Trovato, 234 Pa.Super. 279, 338 A.2d 653 (1975). While we do not require mathematical exactness, we cannot award damages by guess or speculation. There must be before us a reasonably fair basis for calculation. See Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980). We find that appellants have failed to give the court a reasonable basis for the calculation of damages. Absent some specifics, a general prayer for $12,500 in damages invites us to award damages by speculation. Therefore, we find that the lower court properly refused to award damages on appellants’ proof. Finding no error in the trial court’s opinion, we affirm.

Judgment affirmed.

POPOVICH, J., files a concurring opinion.

POPOVICH, Judge,

concurring:

I find the Majority’s embarking on an analysis of the Open Mine Doctrine to be superfluous to the facts at bar. The question is: Why would not the Exception and Reservation Clause in Lias' Deed to Frye, and, in turn, Frye’s Deed to the plaintiffs/appellants be sufficient to retain the life tenant’s (Lias’) right to extract the oil and gas as so reserved in the Deed?

A life estate arises when the conveyance, as is the case here, expressly limits the duration of the created estate in terms of the life of a person (Lias). Instantly, the grantor reserved to himself the use of the minerals on the property for his natural life. No one disputes the clarity with which the life estate was created, and the remaindermen’s interest was postponed until an ascertainable life in being expired.

My reading of the Clauses in question leaves no doubt in my mind that Lias expressly and intentionally reserved to himself the right to extract the natural resources from the land in question. This reservation was plainly written so that all subsequent purchasers (grantees) would be on notice of the right reserved. Accordingly, I see no need to resort to the Open Mine Doctrine to determine the rights of the parties at bar.

On the question of damages, the law is quite clear as to the liabilities and responsibilities of one having a life estate; to-wit:

His use and enjoyment of the premises is limited by the law of waste, that is, he is under a duty to refrain from any act which will diminish the value of the reversion or the remainder if such act is also, under all the circumstances, an unreasonable use of the premises.

Moynihan, Cornelius J., Introduction to the Law of Real Property 59 (1962); Smith and Boyer, Survey of the Law of Property 237-39 (1971).

The Cronans did not assert that the use of the land was “unreasonable” under the terms of the Deed. Accordingly, I would affirm the judgment of the court below.


author: WIEAND, Judge: POPOVICH, J.,

text:
    512 A.2d 6
    Elizabeth I. McGurl BENESHUNAS, Appellee, v. INDEPENDENCE LIFE AND ACCIDENT INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed June 13, 1986.

      Gilbert F. Casellas, Philadelphia, for appellant.
    Felix P. Gonzalez, Philadelphia, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

Elizabeth McGurl Beneshunas was the beneficiary of a policy of insurance issued by Independence Life and Accident Insurance Company to provide indemnity in the event of the accidental death of the beneficiary’s son, Harry McGurl. The insured was killed when the tractor trailer unit which he was operating collided with a concrete bridge abutment. The insurance company denied liability pursuant to a policy exclusion applicable to death caused in whole or in part by the insured’s intoxication. Beneshunas sued and, following trial without jury, recovered a verdict for $15,-000.00. The insurer’s motion for post-trial relief was denied, and judgment was entered on the verdict.

On appeal, the insurer contends (1) that the trial court’s findings were not supported by the evidence, and (2) that the trial court committed an abuse of discretion when it denied the insurer’s request to reopen its case for the purpose of hearing the testimony of the insured’s widow.

The written policy provided as follows:

“The company shall not be liable for any loss to which a contributing cause was the insured’s being intoxicated or under the influence of any narcotic unless administered on the advice of a physician.”

At trial, the beneficiary established that her son, the insured, had died as a result of accident. The burden was then upon the insurer to show by a fair preponderance of the evidence that a contributing cause of the accident had been the insured’s intoxication. The trial court determined that the appellant-insurer had failed to meet this burden.

“In reviewing the findings of the trial judge, the test is not whether the appellate court would have reached the same result on the evidence presented, but [whether], after due consideration of the evidence, a judge could reasonably have reached the conclusion of the trial judge.” Delahanty v. First National Bank, N.A., 318 Pa.Super. 90, 113-114, 464 A.2d 1243, 1255 (1982). See: School District of City of Harrisburg v. Pa. Interscholastic Athletic Assn., 453 Pa. 495, 499, 309 A.2d 353, 356 (1973). The evidence must be viewed in the light most favorable to the party prevailing at trial. Delahanty v. First National Bank, N.A., supra, 318 Pa.Super. at 114, 464 A.2d at 1255; Krobot v. Ganzak, 194 Pa.Super. 49, 52, 166 A.2d 311, 312 (1960). In examining the evidence of record and the trial judge’s conclusions based on the evidence he found credible, we are cognizant of the rule that it is not the province of an appellate court to find facts nor substitute its judgment for that of the trial judge. Delahanty v. First National Bank, N.A., supra; Stowe v. Booker, 284 Pa.Super. 53, 57, 424 A.2d 1388, 1390 (1981). Therefore, we accept the trial judge’s findings with respect to the credibility of the witnesses and the weight to be accorded their testimony. Delahanty v. First National Bank, N.A., supra; In Interest of Black, 273 Pa.Super. 536, 543, 417 A.2d 1178, 1182 (1980); Commonwealth ex rel. Pruss v. Pruss, 236 Pa.Super. 247, 249, 344 A.2d 509, 510 (1975).

Trooper Eugene Baidas, a twenty-five year veteran of the Pennsylvania State Police, testified that on the afternoon of May 8, 1979, he had overtaken and followed McGurl’s tractor trailer while it was traveling north on 1-81. He testified that McGurl, although within the speed limit, appeared to be driving erratically. When Trooper Baidas attempted to pass McGurl, the tractor trailer drifted from the driving lane into the passing lane, nearly forcing the police vehicle off the road. After completing the pass, Trooper Baidas observed in his rear view mirror that McGurl had pulled his rig off the road and had stopped near an exit ramp. The trooper turned his vehicle around and approached the truck to determine the condition of the driver. After Baidas had exited his vehicle, he asked McGurl, who had alighted from the cab of the truck, for his driver’s license. McGurl, the trooper testified, climbed the ladder to the cab, retrieved his license, and descended to the road, all without assistance. Upon being questioned, McGurl assured Trooper Baidas that he had not been drinking, was not taking medication and was not tired. During the period of five minutes in which McGurl was in the trooper’s presence, Baidas did not detect an odor of alcohol on McGurl’s breath. Baidas testified that although he believed “there was something wrong,” he did not then conclude that McGurl was intoxicated. Baidas testified that he had told McGurl to remain where he was and used his radio to request another patrol car to check on McGurl. He then drove away. A few minutes later, he said, he learned via radio that McGurl’s tractor trailer had struck the bridge abutment.

Dr. Richard Bindie, a pathologist at Pottsville Hospital, conducted an autopsy. He extracted both blood and urine from McGurl’s body and submitted samples thereof for chemical testing. These tests disclosed that McGurl’s blood contained an alcoholic content of .33 percent, and his urine contained alcohol of .30 percent. He concluded that McGurl had been drinking before the accident. He also said that McGurl had had a history of epilepsy and conceded that an epileptic seizure while McGurl had been driving the truck was a possibility.

Mrs. Beneshunas, to rebut the charge that her son had been intoxicated, testified that he had stopped at her home four or five hours before the accident. At that time, she said, he consumed no alcoholic beverages; and when she kissed him goodbye, she did not detect the odor of alcohol on his breath. She testified further that her son was an epileptic and had occasionally suffered seizures. One of these seizures, she said, had occurred in her home a week or two before the accident.

In civil cases in which the intoxication of a driver is an issue, the results of blood tests are admissible. See: Ackerman v. Delcomico, 336 Pa.Super. 569, 575, 486 A.2d 410, 414 (1984). Indeed, where a blood alcohol content of more than .10 percent is shown, a jury may infer intoxication. See: Couts v. Ghion, 281 Pa.Super. 135, 144, 421 A.2d 1184, 1189 (1980); Cusatis v. Reichert, 267 Pa.Super. 247, 251-252, 406 A.2d 787, 789-790 (1979); Schwarzbach v. Dunn, 252 Pa.Super. 454, 462, 381 A.2d 1295, 1298 (1977). See also: 75 Pa.C.S. § 1547(d)(3). Such evidence, however, is not conclusive. An inference of intoxication may always be rebutted by evidence tending to show that the driver was not under the influence of alcohol. Cf. Commonwealth v. DiFrancesco, 458 Pa. 188, 193-194 & n. 3, 329 A.2d 204, 207-208 & n. 3 (1974) (analyzing statutory inference of intoxication in the context of a criminal case).

In the instant case, the totality of the evidence did not require a finding that intoxication of McGurl was a contributing cause of his fatal accident. Rebutting the possible inference to be drawn from the results of the blood and urine tests was the testimony of Trooper Baidas, who said that minutes before the accident he had not smelled alcohol on McGurl’s breath and did not then believe that McGurl was under the influence of alcohol. Similarly, the substance of Mrs. Beneshunas’ testimony and McGurl’s history of epilepsy were such as to cause a factfinder to hesitate before accepting as conclusive the results of the chemical tests of the decedent’s blood and urine.

The total substantive evidence required a determination by the trial judge regarding its credibility and weight. The trial judge’s findings do not disclose a capricious disregard of credible evidence; neither are they unsupported. Under these circumstances, it is not the province of a reviewing court to substitute its judgment for that of the trier of the facts.

We are constrained to conclude, however, that the trial court committed an abuse of discretion when it refused to hear the testimony of McGurl’s widow. Deborah Geist had been subpoenaed to testify by the plaintiff, Mrs. Beneshunas, but had failed to appear. On the morning following the taking of testimony, she telephoned counsel for the insurance company. The conversation was recorded. Thereafter, a request was made to the trial court to reopen the defendant’s case to receive testimony from Mrs. Geist. The trial court denied the request.

The offer of proof made by appellant’s counsel was that Mrs. Geist, if called, would testify that she had been offered money to testify falsely on behalf of appellee. She would have testified further that McGurl rarely suffered from epileptic seizures and did not experience a seizure within the one or two weeks before the accident as testified by appellee. She also would have testified, according to the offer of proof made to the trial court, that she had been in the company of McGurl until a short time before the accident and that they had visited a tavern. In addition, she would have described the food eaten and the alcohol consumed by her husband before he began his trip.

This testimony, in view of the intoxication issue upon which the right of recovery depended, was both relevant and important. The trial court denied the defense request because it believed, contrary to defense counsel’s contention, that the defendant should have known of Mrs. Geist’s testimony before it rested. The court’s opinion suggests that it denied the request to reopen the defense case because it applied standards applicable to a motion for new trial based on after-discovered evidence. We conclude that the court committed an abuse of discretion.

The Supreme Court, in In re J.E.F., 487 Pa. 455, 458, 409 A.2d 1165, 1166 (1979), said “[t]he general rule is that ‘a court may, in its discretion, reopen the case after a party has closed for the taking of additional testimony, but such matters are peculiarly within the sound discretion of the trial court____’ Such a ruling will be disturbed only if the court has abused its discretion. Thomas v. Waters, 350 Pa. 214, 38 A.2d 237 (1944).” See also: Commonwealth v. Deitch Co., 449 Pa. 88, 100-101, 295 A.2d 834, 841 (1972); Van Buren v. Eberhard, 377 Pa. 22, 29, 104 A.2d 98, 101 (1954). However, a case should ordinarily be reopened “where it is desirable that further testimony be taken in the interest of a more accurate adjudication (Thomas v. Waters, supra; Massachusetts B. & I. Co. v. Johnston & Harder, Inc., 343 Pa. 270, 22 A.2d 709 (1941)) and where an honest purpose would be justly served without unfair disadvantage (Van Buren v. Eberhard, supra).’’ In re J.E.F., supra, 487 Pa. at 459, 409 A.2d at 1166.

The testimony of Mrs. Geist would have contributed to a more accurate determination of the state of McGurl’s sobriety at the time of the fatal accident. As McGurl’s wife at the time of the accident, she was familiar with his health and with whether or not he had experienced epileptic seizures; she was also familiar with his consumption of alcohol prior to the accident. Contrary to the trial court’s suggestion, it does not appear that appellant’s failure to produce the witness before resting his case was the product of either sloth or carelessness. It had been represented to the court by the plaintiff during a discussion regarding the witness’ failure to appear in response to plaintiff’s subpoena that the witness would have testified that the decedent had drunk only one beer before the accident. This was substantially at variance with that which she told defense counsel via telephone after the defense had rested. In any event, the significance of the witness’ testimony and the contribution which it would have made to an accurate adjudication suggest most strongly that the trial court should have heard it. We hold, therefore, that to refuse to permit the defendant to reopen its case to present evidence of such importance was an abuse of discretion.

Reversed and remanded for a new trial. Jurisdiction is not retained.

POPOVICH, J., files a concurring and dissenting statement.

POPOVICH, J.,

concurring and dissenting:

I agree with the Majority’s grant of a new trial on the issue of the proffered testimony of decedent’s widow. However, I respectfully but vigorously disagree with the Majority’s rejection of the intoxication issue.

At page 9, the Majority states that “the trial judge’s findings do not disclose a capricious disregard of credible evidence; neither are they unsupported.”

My reading of the record convinces me that the evidence — the credible evidence — of intoxication was overwhelming: the accident, the erratic driving, decedent’s departure contravening police instructions, and the testimony of the pathologist who performed the autopsy upon decedent whose blood alcohol content was .33!

In its brief opinion, the trial court wrote that appellant “did not present any evidence on the issue of causation,” (emphasis supplied) an astounding conclusion under the facts adduced. Indeed, if this were a trial (assuming decedent had survived, of course) on the charge of drunken driving, these facts would be more than enough for conviction beyond a reasonable doubt. Here, of course, the standard is by the fair preponderance of the evidence.

I agree that it is not our prerogative to substitute our judgment for that of the trier of facts, but, surely, to say there was no evidence of causation is to ignore the imposing and heavily preponderant credible evidence presented instantly.

      . We disagree with the trial court’s suggestion that appellant presented no evidence that McGurl's intoxication, if such was the fact, had contributed causally to the accident. McGurl’s blood alcohol content, as shown by blood and urine tests, was sufficient to create an inference that McGurl was unfit to drive a motor vehicle. See: Schwarzbach v. Dunn, 252 Pa.Super. 454, 462, 381 A.2d 1295, 1298 (1977). That McGurl was unfit to drive was confirmed by the testimony of Dr. Bindie. When McGurl’s unfitness to drive is considered in light of the circumstances surrounding the occurrence of the accident, i.e., the truck left the travelled portion of highway after it had been observed being driven in an erratic manner, it seems clear that there was sufficient evidence, if found credible, to support a finding that intoxication was a contributing cause of the accident.

      . In order to warrant a new trial for after-discovered evidence, "the evidence must have been discovered after the trial and must be such that it could not have been obtained at trial by reasonable diligence, must not be cumulative or merely impeach credibility and must be such as would likely compel a different result.” Freed v. Priore, 247 Pa.Super. 418, 424, 372 A.2d 895, 899 (1977), quoting Townsend Will, 436 Pa. 185, 190, 258 A.2d 518, 520 (1969).

      . Mrs. Geist remarried after McGurl’s death.


author: WIEAND, Judge:

text:
    512 A.2d 10
    Katherine BRASILE, Appellant, v. ESTATE OF Louis BRASILE, By and Through Ann E. BRASILE, Administrator, D.B.N.C.T.A. for Joseph L. Brasile, Executor, Appellee.
    Superior Court of Pennsylvania.
    Argued March 24, 1986.
    Filed June 16, 1986.

      Steven W. Alm, Greensburg, for appellant.
    James E. Kelley, Jr., Latrobe, for appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

In this action to partition real estate owned by a divorced husband and wife as tenants in common, the trial court granted partition of the “Blaney Drive” property but held that title to the “Thompson Street” property was not subject to partition because it was being held subject to a constructive trust. It is argued on appeal that the trial court erred when it constructed a trust for and refused to partition the “Thompson Street” property. We disagree and affirm.

The scope of appellate review of a decree in equity is particularly limited and such a decree will not be disturbed unless it is unsupported by the evidence or demonstrably capricious____ The test is not whether we would have reached the same result on the evidence presented, but whether the judge’s conclusion can be reasonably drawn from the evidence____ Where a reading of the record reasonably can be said to reflect the conclusions reached by the lower court sitting in equity, we cannot substitute our judgment for that of the lower court.

Lombardo v. DeMarco, 350 Pa.Super. 490, 495, 504 A.2d 1256, 1258 (1985) (citations omitted). See: Lynch v. Hook, 298 Pa.Super. 27, 444 A.2d 157 (1982).

Louis Brasile and Katherine Brasile had lived together after 1949 and were married on July 2, 1956. Both had children by prior marriages. Prior to 1949, Katherine owned a dwelling house on Summit Street, Derry Township, Westmoreland County. From the time the parties began living together in 1949 until they were divorced in 1978, they made the Summit Street property their home. In 1954, title was placed in the joint names of Louis and Katherine, but in 1958, title was reconveyed to Katherine. In 1971, title to the Summit Street property was conveyed to Katherine’s children.

During their marriage the parties acquired title to the Thompson Street property, also in Derry Township. Louis had inherited an undivided one-fifth interest in this property upon the death of his mother in 1950. In 1953, Louis and Katherine purchased the remaining four-fifths interest from the other heirs. In 1958, however, title to this property was placed in the name of Louis alone, and the property was later conveyed to his sons. Subsequently, the sons experienced financial difficulties, and in order to prevent the loss of the property, title was reconveyed to Louis and Katherine. Title was still in their names when Katherine commenced the present action of partition.

The Blaney Drive property was purchased by the parties as tenants by the entireties in 1964. In 1971, title was placed in the names of Katherine and Louis’ sons as joint tenants with right of survivorship. In 1972, however, title to the fee was placed in the names of Louis and Katherine, as tenants by the entireties, because of the financial problems being experienced by the sons.

The trial court found that the parties had agreed orally that the Summit Street property, which had been Katherine’s home, was to become the property of her children and the Thompson Street property, which had belonged to Louis’ mother, was to be conveyed to Louis’ sons. Because the agreement had been executed with respect to the Summit Street property and because Louis and Katherine were holding title to the Thompson Street property for Louis’ sons, the court constructed a trust for the Thompson Street property. A constructive trust was necessary, the court said, to prevent Katherine from being unjustly enriched at the expense of Louis and his sons.

In 1972, it was Louis who requested that his sons recon-vey the Thompson Street property to him. He did so because of his fear that his sons’ financial difficulties and gambling activities would result in the loss of the property. He believed that his wife, who was younger than he, would survive him; and she, because the relationship in 1972 was a happy one, did not object to her husband’s scheme to protect the Thompson Street property from his sons’ creditors. Therefore, the sons were requested to reconvey the property to Louis and Katherine so that the survivor could determine when and how title was to be returned to the sons.

Appellant denied that she had agreed to this arrangement. She admitted, however, that in 1971, when she and appellee had transferred the Summit Street property to her children and the Thompson Street property to her husband’s children, their intention was that her children would receive her family homestead and her husband’s children would receive his.

Katherine argues that a trust should not have been imposed because the trial court did not make a finding that she and Louis had promised to hold the real estate for Louis’ sons or reconvey it to them. It is correct that the trial court’s findings of fact did not contain a specific finding that Katherine had orally promised to reconvey the Thompson property to her husband’s sons. This omission was corrected, however, in the court’s opinion denying Katherine’s motion for post-trial relief. There, the court made eminently clear its finding that Louis and Katherine held title after 1972, not because an interest in the real estate was vested in them, “but rather to avoid the clutches of the Defendant’s sons’ creditors and that the agreement of the parties, which apparently began in 1958 when the Thompson Street property was conveyed to Defendant alone and the Summit Street property was conveyed to Plaintiff alone, continued in effect.”

In Yohe v. Yohe, 466 Pa. 405, 411, 353 A.2d 417, 420-[4]21 (1976), our Supreme Court stated: “The imposition of a constructive trust is an equitable remedy designed to prevent unjust enrichment. See Restatement of Restitution § 160 (1937); A.W. Scott, Trusts §§ 462, 462.1 (3d ed. 1967). A constructive trust arises ‘[wjhere a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it----’ Restatement of Restitution § 160 (1937); ----” This theory of constructive trusts does not require an equity court to find an intention or agreement to create a trust; instead, a court may impose a constructive trust as a remedy to prevent the unjust enrichment of one party.

Moreland v. Metrovich, 249 Pa.Super. 88, 97, 375 A.2d 772, 776 (1977).

The trial court concluded that the need to prevent unjust enrichment in this case was acute because of the agreement between the parties that the Summit Street property was to go to Katherine’s children, while the Thompson Street property was to go to Louis’ children. The existence of such an agreement was clear; even Katherine admitted that the agreement existed. Moreover, the agreement had already been consummated in part. Title to the Summit Street property had been conveyed to Katherine’s children in 1971; in that same year, title to the Thompson Street property was conveyed to Louis’ sons. The reconveyance in 1972 was merely an attempt to insure that the agreement would not be defeated by the profligacy of Louis’ sons. It was intended to preserve the property in the face of a threatened loss to the sons’ creditors. The deed of reconveyance was not intended to vest an unconditional title in Louis and Katherine. Under these circumstances, the trial court did not abuse its discretion or commit an error of law by concluding that a constructive trust was necessary to prevent unjust enrichment. See: Chambers v. Chambers, 406 Pa. 50, 176 A.2d 673 (1962) (unjust to permit defendant-wife to retain plaintiff-husband’s beneficial and legal interest in property where evidence showed that husband had conveyed his interest to wife only to avoid loss of property to creditors and evidence showed that conveyance was not executed with any intent to divest husband of his beneficial interest). Compare: Moreland v. Metrovich, supra (court found no unjust enrichment where evidence showed that plaintiff-sister transferred property to sister and brother-in-law in attempt to save their tempestuous and foundering marriage and sister and brother-in-law had made no promises with regard to the property, nor had they taken unfair advantage of plaintiff).

Appellant also argues that the court should have created a life estate in the Thompson Street property, and Louis’ children should have become entitled to the title in fee only upon her death. This argument is made for the first time on appeal. It does not appear in the motion for post-trial relief which appellant filed in the trial court. Therefore, it has not been preserved for appellate determination. See: Pa.R.C.P. 227.1(b)(2). Her failure is not excused because Louis’ death occurred after her post-trial motion had been filed.

Finally, appellant argues that a new trial should be granted because, after trial, it was discovered that she had been mentally ill at the time of trial. It is true, of course, that on August 4, 1982, less than one year after trial, appellant was adjudged incompetent by the Court of Common Pleas of Westmoreland County. The record discloses, however, that appellant and her present guardians knew that appellant was experiencing mental problems as much as nine months prior to trial. The evidence of mental illness, therefore, was not “new”; it was not discovered for the first time after trial. It is not the type of newly discovered evidence which entitles her to a new trial. Lazarus v. Goodman, 412 Pa. 442, 447, 195 A.2d 90, 92 (1963). See: Ebner v. Ewiak, 335 Pa.Super. 372, 380, 484 A.2d 180, 184-185 (1984). Moreover, the record does not suggest that appellant was either unable to understand the nature of the proceedings or cooperate in the prosecution of her claim.

The decree entered by the trial court directed that Katherine convey her one-half interest in the Thompson Street property to Louis. Although the record suggests that it was not Louis but his sons who were the beneficiaries of the constructive trust, this phase of the order has not been challenged on appeal. However, Louis is now dead, and Katherine has been adjudicated incompetent. Under these circumstances, it seems appropriate to remand for the entry of an amended final decree.

Remanded for the entry of a final decree consistent with the findings of the trial court and the foregoing opinion. Jurisdiction is not retained.

      . During the pendency of the partition action Louis died, and the administrator d.b.n.c.t.a. of his estate has been substituted as a party.

      . The trial court found no similar agreement regarding the Blaney Drive property and ordered that it be partitioned. The order partitioning this real estate has not been challenged on appeal.


author: KELLY, Judge:

text:
    512 A.2d 14
    Todd and Brad LEVINSON, Through Their Guardian and Natural Parent Gary LEVINSON, and Gary Levinson, individually, Appellants, v. Susan Austrian Nee LEVINSON, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1986.
    Filed June 27, 1986.

      Harry M. Byrne, Jr., Philadelphia, for appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   KELLY, Judge:

Appeal from the Order of the Court of Common Pleas of Montgomery County as Civil Action-Law No. 85-13135 entered on September 3, 1985. We affirm, in part, and quash the appeal in part.

The facts of the case are as follows: appellant and appellee Gary Levinson and Susan Austrian Levinson, respectively, were married and divorced in Minnesota. During their marriage they had two sons. Custody of the minor children was shared by the parents after the divorce; each parent had joint legal and physical custody. Later the parents renegotiated their original custody arrangement; a court ordered stipulation was entered into on August 6, 1984. Each parent continued to be the children’s legal and physical custodian. Ms. Austrian was to retain physical custody of the boys during the school term at her domicile in the Virgin Islands; Mr. Levinson would care for the boys during all their vacations in Pennsylvania. The parties further stipulated Minnesota would retain jurisdiction of subsequent custody modifications.

This arrangement was in effect when the youngest boy, Todd, first appeared to be experiencing difficulties in school. He was not promoted from first to second grade. Over the summer, while in Mr. Levinson’s custody, Todd was tutored, and finally tested for learning disabilities. Upon receiving a diagnosis of learning disability from medical personnel in Montgomery County, Pennsylvania, Mr. Levinson asked Ms. Austrian if he could retain custody of both children in order that Todd might be enrolled in a special school in Pennsylvania, and so that the boys need not be separated. Ms. Austrian refused. Mr. Levinson then commenced legal action to retain custody of the boys.

Mr. Levinson filed a motion on or about August 12, 1985 in the Court of Hennepin County, Minnesota, pursuant to § 5348 of the Uniform Child Custody Jurisdiction Act (UCCJA), requesting Minnesota declare itself an inconvenient forum, despite the parties’ 1984 agreement to resolve custody disputes in Minnesota. The Minnesota referee, on August 15, declined to refuse jurisdiction, issuing no opinion.

On August 19, Mr. Levinson, appeared before the Honorable Albert Subers, J., in Montgomery County Common Pleas Court, Pennsylvania, and petitioned for a stay of the existing custody order. That stay was granted pending a full hearing on the merits of Mr. Levinson’s Rule and Petition, which requested that Pennsylvania assert jurisdiction to modify the existing custody arrangement. Ms. Austrian filed preliminary objections thereto, challenging, inter alia, the exercise of jurisdiction by Pennsylvania. On August 23, prior to the hearing in Montgomery County scheduled for September 3, the appellant filed an appeal of the Referee’s decision in the District Court of Minnesota.

In the Common Pleas Court of Montgomery County, on September 3, after argument and hearing before the Honorable Yohn, J., the Pennsylvania stay order was dissolved, the children were ordered to be returned to the Virgin Islands, and the Pennsylvania proceedings seeking a modification of the existing custody order were stayed pursuant to 42 Pa. C.S.A. § 5347.

42 Pa. C.S.A. § 5347(a) specifically mandates:

(a) General rule — A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this Commonwealth is a more appropriate forum or for other reasons.

(Emphasis added).

Appellant Levinson argues that the actions of the court below were erroneous; he raises five issues on appeal arguing in main part that the lower court erred in staying Pennsylvania proceedings, and that Pennsylvania should exercise jurisdiction to modify the existing custody order. We disagree with appellant’s arguments and therefore quash the appeal with regard to the stay of Pennsylvania proceedings, and affirm the lower court with regard to the dissolution of Judge Subers’ stay order.

Appellant’s first issue on appeal avers that the trial court erred in staying the Pennsylvania proceedings pursuant to § 5347 “Simultaneous Proceedings in Other States.” After the Minnesota referee declined to declare Minnesota an inconvenient forum on August 15, appellant filed an appeal in Minnesota district court on August 23. Appellant argues these Minnesota actions were not “proceedings” within the meaning of § 5347 but were “purely a legal argument on the question of that state’s continuing jurisdiction over parties.” (Reply Brief at 4). Appellant buttresses his argument by citing Warman v. Warman, 294 Pa.Super. 285, 439 A.2d 1203 (1982). He claims Warman stands for the proposition that a “custody proceeding” must produce decisions, orders or instructions in order to rise to the level of a “proceeding.” He further argues that the Minnesota court actions of the original referee produced no substantive results — such as decisions, orders or instructions — and thus were not “proceedings.”

Appellant misconstrues Warman. Appellant confuses “custody determinations” with “custody proceedings.” The court in Warman defined “custody determinations” as being proceedings which produce decisions, orders or instructions. As for “custody proceedings,” the court found the definition “oddly worded” as it “appears to address itself only to such court actions as might be doubtful of definition.... The presumption, of course, is that any hearing solely concerned with the physical possession and control of a child is so obviously a ‘custody proceeding’ as not to need clarification.” Warman, at 1209. Black’s Law Dictionary, 5th Ed., defines “proceeding” as the “form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment.” Black’s Law Dictionary 1083 (5th ed. 1979) (emphasis added). We hold that a determination of the convenience of a forum is a “possible step in an action and properly constitutes juridical business.” Therefore, we find no logical basis for holding that a motion to declare a forum inconvenient is not a proceeding within the meaning of the UCCJA. We reject appellant’s first contention.

Appellant further argues that because he filed a petition in Pennsylvania on August 19, in the interim period between the Minnesota referee’s adverse decision of August 15, and his own filing of an appeal to the Minnesota District Court on August 23, there were no proceedings pending in Minnesota. Once the original court order is announced, jurisdiction remains in the lower court until either an appeal is filed, or the time for filing appeals has tolled. In Minnesota, as in Pennsylvania, once an appeal is filed, jurisdiction shifts instantly from the lower to the appellate court. County of Hennepin v. Brinkman, 378 N.W.2d 790 (Minn. 1985); Cronin v. Cronin, 372 N.W.2d 778 (Minn.App.1985); see, Pa.R.A.P. 1701(a). Jurisdiction remains in the lower court until the time for appeal has passed or an appeal is filed, especially, as in the instant case, where the lower court’s decision is that it retains jurisdiction of a custody order.

A suit is pending, according to Pennsylvania holdings, from its commencement until its final determination. Groff v. Township of Ulster, 65 Pa.Cmwlth. 584, 442 A.2d 1255 (1982). Other courts which have examined the meaning of “pending” as used in § 5347(a) have reached similar conclusions. For example, the Supreme Court of Colorado, applying California civil procedure law to interpret the California version of the UCCJA, noted that “[A]n action is deemed to be pending ... until its final determination upon appeal, or until the time for appeal has passed....” Lopez v. Dist. Court, 4th Jud. Dist., etc., 199 Colo. 207, 606 P.2d 853, 855 (1980). Moreover, “the policy against simultaneous custody proceedings is so strong...” that courts should refrain from exercising jurisdiction to further the purposes of the Act. See, Rexford v. Rexford, 631 P.2d 475, 479 (S.Ct. Alaska 1980). Finally, as long as one state is exercising jurisdiction, there is no concurrent jurisdiction to modify a decree under the act. See, Neger v. Neger, 93 N.J. 15, 459 A.2d 628, 636 (1983).

We thus reject appellant’s arguments that the Minnesota court actions were not proceedings, and that since the appeal had not been filed, no proceeding was pending. We find that custody proceedings were pending in Minnesota when the Montgomery County Court of Common Pleas properly issued its decision to stay the Pennsylvania proceedings. The stay of the Pennsylvania proceedings by Judge Yohn pursuant to § 5347 because there was a pending proceeding in Minnesota is not a final order, hence it is interlocutory and nonappealable.

We find no need to reach the merits of appellants’ argument concerning § 5355, which states in pertinent part:

(a) if a court of another state has made a custody decree, a court of this Commonwealth shall not modify that decree unless:
(1) It appears to the court of this Commonwealth that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this subchapter or has declined to assume jurisdiction to modify the decree; and
(2) the court of this Commonwealth has jurisdiction. [R.258a]

(emphasis added). We find that in order to apply § 5355 to the facts before us we would have to determine in part whether this Commonwealth has jurisdiction. 42 Pa.C.S.A. § 5355(a)(2). The lower court properly has stayed determination of the jurisdiction issue. We may not address this issue as it is as yet interlocutory. Therefore, we quash the appeal with respect to the issues of jurisdiction raised by appellant. Pa. R.A.P. 311.

Appellant argues the lower court’s dissolution of the stay order which delayed effectuation of the existing custody order was error. His remaining issue was raised in his reply brief (brief at 20). In the original Rule to Show Cause issued on August 19, 1985, Judge Silvers ordered “All proceedings or action which would involve the movement or relocation of the children to stay meanwhile.” (Emphasis added).

Judge Yohn, in dissolving the stay order, wrote that: “.... the children were ordered returned to the Virgin Islands pursuant to the original custody order.” Opinion at 4. This stay order clearly extended beyond a stay of proceedings to include a prohibition on a party’s actions. The dissolution of that order similarly was directed not just to the proceedings but had the effect of permitting appellee to remove her children to the Virgin Islands. If appellee had attempted to remove her children prior to the dissolution issued September 3, she would have been in contempt of court and subject to penalties thereby. Thus, for the foregoing reasons we determine this particular stay order to be in the nature of an injunction.

Such a dissolution of an injunction, though interlocutory, is appealable. Pa. R.A.P. 311(a)(4). Our review of this dissolution is limited however, to considering whether there existed any apparently reasonable grounds for the court’s action. We must affirm the decision unless there was a clear abuse of discretion or palpable legal error committed. Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 478 A.2d 484 (1984); Broad and Locust Associates v. Locust-Broad Realty Co., 318 Pa.Super. 38, 464 A.2d 506 (1983); Diehl v. Lockard, 254 Pa.Super. 111, 385 A.2d 550 (1978).

We find that there was a reasonable basis for the court to determine that returning the children to their mother was in the best interest of the children. The desire to preserve the stability of the children’s environment as the school year was about to begin, in the absence of any life-threatening emergency, was an adequate reasonable basis for dissolution of the stay order. We affirm the lower court action with regard to this issue.

Therefore, for the reasons stated above, we quash the appeal in part, we affirm in part and we relinquish jurisdiction.

      . For the purposes of this opinion, we address Gary Levinson as sole appellant. We find the inclusion of the two boys within the caption to be a matter of form and not substance; the actual contestants herein are the two parents. Their sons are the subjects of the appeal and not additional parties. We note that Appellant Levinson has not been named guardian ad litem of his sons in this court action.

      . § 5348. Inconvenient forum
      (a) General rule. — A court which has jurisdiction under this subchap-ter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
      (b) Moving party. — A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.
      (c) Factors to be considered. — In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
      (1) If another state is or recently was the home state of the child.
      (2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
      (3) If substantial evidence concerning the present or future care, protection, training, and personal relationships of the child is more readily available in another state.
      (4) If the parties have agreed on another forum which is no less appropriate.
      (5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of sub-chapter).

      . The court’s opinion, dated November 27, 1985, states: "Because the custody proceedings in Minnesota are still pending, and because the Minnesota court declined to stay those proceedings, the Act requires that this court decline to exercise jurisdiction pending a final determination by the Minnesota court in accordance with the provisions of § 5347(a).” p. 6. We take as dicta, as the lower court meant us to, the discussion of alternative bases for Pennsylvania’s exercise of jurisdiction. "Although the jurisdictional section of the Act was not the basis of the court’s decision to stay the proceedings, it is appropriate to note....’’ at 7. (emphasis added).

      . "Pendency is the state of an action after it has been begun and before the final disposition of it. The action in the instant case had been finally disposed of and concluded on June 28, 1980, following the end of the appeal period applicable to the lower court’s decree absolute of May 29, 1980.” Groff 442 A.2d at 1256. (emphasis added).

      . It is axiomatic that interlocutory appeals are not subject to interim appeal absent statutory provison or judicial exception. We find none in the instant case. See Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985).

      . We take notice of the fact that after the lower court opinion was rendered, the Minnesota referee's determination was reversed. The Hennepin County District Court found that Minnesota is not an appropriate forum for deciding any modification of the original or amended custody decree. The Montgomery County court is now free to complete its determination of whether Pennsylvania may properly exercise jurisdiction in this case, either alone or in conjunction with the Virgin Islands, as the Minnesota court suggests. See also Commonwealth ex rel. Octaviano v. Dombrowski, 290 Pa.Super. 322, 434 A.2d 774, (1981). (A finding of inconvenient forum cannot properly be made unless the court finds that the court of another state is a more appropriate forum.)

      . Black's Law Dictionary defines a stay as "____ a kind of injunction with which a court freezes its proceedings at a particular point...." Black’s Law Dictionary 1267 (5th Ed.1979).
      Injunction is defined by Black’s as "... a prohibitive, equitable remedy issued or granted by a court at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action at law.” (Emphasis added); Black’s, supra, at 705.


author: LIPEZ, Judge:

text:
    512 A.2d 19
    COMMONWEALTH of Pennsylvania, v. Stanley JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1986.
    Filed July 2, 1986.

      Richard J. Conn, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, WATKINS and LIPEZ, JJ.
   LIPEZ, Judge:

In a non-jury trial, defendant was convicted of possession of a controlled substance, and sentenced to a term of five years probation on January 31, 1974. No direct appeal was taken. On two subsequent occasions, defendant was found to have violated probation, but each time Judge Savitt ordered that his probation be continued. After a third violation, Judge Savitt revoked defendant’s probation after a hearing, and sentenced him to six months to three years imprisonment. This last probation revocation proceeding took place in September, 1978. No direct appeal was taken. In April, 1982, defendant filed a pro se Post Conviction Hearing Act (PCHA) petition in which he alleged that the lower court lacked jurisdiction when it conducted the final probation revocation proceeding. Appointed counsel interviewed the defendant and then sent a letter to the PCHA court wherein counsel stated that he reviewed defendant’s petition and the record, and could find nothing to support the jurisdictional claim. The PCHA court dismissed defendant’s petition without a hearing, and defendant subsequently took this appeal alleging that his PCHA counsel was ineffective for failing to file an Anders brief. He asks that we reverse the PCHA court’s order and remand the case for a hearing. For the reasons discussed below, we decline to do so and affirm the order of the PCHA court.

The mere fact that defendant’s PCHA counsel sent a letter to the PCHA court instead of filing a brief which complied with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), does not, by itself, require a reversal of the order and remand of the case. Cases decided by this court since Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984), a case relied on by defendant, have reviewed identical claims under the general standards for reviewing all ineffectiveness claims, namely that the defendant must show that he has been prejudiced by counsel’s actions or omissions. Commonwealth v. Coley, 350 Pa.Super. 549, 504 A.2d 1286 (1986); Commonwealth v. McGeth, 347 Pa. Super. 333, 500 A.2d 860 (1985). In the context of a failure to file an Anders brief, this means that “a claimant must demonstrate that his counsel failed to brief an issue which would ‘arguably support the appeal’ to show ineffectiveness.” Commonwealth v. Coley, supra 350 Pa.Super. at 554, 504 A.2d at 1289; Commonwealth v. McGeth, supra 347 Pa.Super. at 343, 500 A.2d at 864.

In the instant case, the only issue which defendant claims that counsel should have briefed is that the lower court allegedly did not have jurisdiction at the time of his September 28, 1978 violation of parole hearing. In his letter to the PCHA court, counsel stated that his review of the record revealed nothing to support this claim. In fact, counsel explained that the record clearly showed that the lower court did have jurisdiction at the time of the hearing. Moreover, in its opinion dismissing the petition, the PCHA court stated that it, too, reviewed the record and found defendant’s claim to be meritless.

In this appeal, defendant has failed to allege any facts to support his claim that the issue of the lower court’s alleged lack of jurisdiction would arguably support an appeal. This is not surprising, because the facts reveal otherwise. Judge Savitt sentenced the defendant to five years probation on January 31, 1974. The hearing in question was held before Judge Savitt on September 28, 1978, less than five years after defendant’s original sentence was imposed. It is clear that the lower court had jurisdiction to conduct the probation revocation proceeding on September 28, 1978.

Thus, pursuant to the reasoning of Coley and McGeth, since defendant failed to demonstrate that counsel failed to brief an issue which would arguably support the appeal, he has not shown the requisite prejudice for finding counsel ineffective. We, therefore, affirm the order of the PCHA court.

Order affirmed.

WATKINS, J., notes dissent.


author: POPOVICH, Judge:

text:
    512 A.2d 20
    Carole PARKINSON, Appellant, v. William PARKINSON.
    Superior Court of Pennsylvania.
    Argued April 10, 1986.
    Filed July 7, 1986.

      James R. Fiorentino, Bethlehem, for appellant.
    Jackson M. Sigmon, Bethlehem, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas confirming a prior award of spousal support. We reverse and remand.

In 1984, appellant, Carole Parkinson, filed a complaint in divorce against appellee, William Parkinson, and also commenced the instant support proceedings. The parties have two emancipated children, and appellant sought only support for herself. Following a conference before a hearing officer, appellee was ordered to pay $2529 per month. Appellant requested a de novo hearing which was held. The trial court accepted the recommendations of the hearing officer and the order of support was confirmed at $2529 per month.

The sole issue raised by appellant is whether the trial court abused its discretion in its determination of appellee’s income for purposes of support.

The facts reveal appellee is a self-employed orthodontist whose 1984 weekly gross income was $3,374.81. Appellant is unemployed and attending college with a weekly gross income of $160. Appellant contends it was error to credit appellee with $1379.40 per week in federal withholding tax, because the actual federal tax paid is far less than this amount. We agree.

For the year in question, 1984, appellee paid a total of $1593.00 in federal income tax. The trial court acknowledged appellee withheld more federal tax than he was required to pay but, nevertheless, credited him with a tax due based upon his income. The trial court stated appel-lee’s “investments may shelter income in 1985 as they did in 1984.” However, the probability of such 1985 tax benefits was not established sufficiently for the court to disallow at the time of the hearing [appellee’s] legitimate federal withholding. (Opinion of the Trial Court, 11/8/85, p. 3).

This court has recently held it was error for a trial court to ignore a tax refund in calculating a parent’s income for purposes of determining child support. We said “[w]e could not permit an individual to overpay his taxes all year, and then exclude the amount of his overpayment from calculation of that individual’s income. To do so works an injustice, especially here, where appellee testified that he has a history of refunds.” Curtis v. Curtis, 326 Pa.Super. 40, 47, 473 A.2d 597, 601 (1984).

We have also held it to be error for a trial court to permit one to deduct from income for support purposes the amount of depreciation expense allowable under federal income tax laws. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa. Super. 562, 529 A.2d 665 (1981). It is settled that a court should consider the full nature and extent of property interests and financial resources, including stock holdings and other investments. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 300 A.2d 398 (1977).

The record before us indicates appellee’s federal income tax for 1984 was $1593; for 1983 he paid $3006 in federal taxes; in 1982, appellee paid $23,783; in 1981, he paid $3890; and, in 1980, $10,856. Given this evidence, it was not proper to credit appellee with a weekly federal tax deduction of $1379.40.

An abuse of discretion occurs when a lower court misapplies existing law, makes a manifestly unreasonable judgment or rules with partiality, prejudice, or ill-will. Commonwealth ex rel. Buchakjian v. Buchakjian, 301 Pa.Super. 213, 447 A.2d 617 (1983). Appellee argues that we should affirm the award because its amount is adequate for appellant’s support. We recognize the size of the existing order but find that since the trial court did not properly consider all the facts in setting this award, we must remand. It will be the finder of fact’s determination as to the ultimate amount of support.

Therefore, we reverse the order of the trial court and remand for proceedings consistent with this opinion.

Jurisdiction relinquished.