author: HESTER, Judge:

text:
    462 A.2d 708
    In re FRANK W.D., Jr., D.O.B. April 5, 1980. Appeal of Donna M. SMITH, Natural Mother.
    Superior Court of Pennsylvania.
    Argued March 22, 1983.
    Filed June 17, 1983.

      Jeffrey Lee Ledbetter, Huntingdon, for appellant.

      David Alan Ody, Huntingdon, for participating party.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellant is the natural mother of the subject of these proceedings, Frank D., Jr., who was born on April 5, 1980. On September 25, 1980, Frank sustained a fractured humerus in his left arm. As a result of that injury, Frank was found to be an abused and dependent child within the meaning of the Child Protective Services Law, 11 P.S. § 2201 et seq., and the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. Frank was placed in the custody of Huntingdon County Children’s Services (hereinafter referred to as Children’s Services). It is from this Order that appellant files this appeal.

The following facts led to the above determination in the case at bar. Appellant, who was eighteen years old at the time, was separated from her husband, John J. Smith. At the time of Frank’s injury, appellant was living with Terry Smith. On the day in question, Terry was babysitting the infant between 3 p.m. and 6:30 p.m. When appellant returned, she noticed that the child was fussing, but was not moving his left arm. The next day, she took Frank to his pediatrician, Dr. William Chase, who had been treating the child since birth. When x-rays revealed the fracture, Dr. Chase referred the child to Dr. Nicholas E. Mihelic, an orthopedic surgeon, and also contacted Children’s Services. Mary Clippinger, a caseworker, conducted an investigation into the matter.

A detention hearing was held on September 30, 1980, pursuant to the requirements of 11 P.S. § 2208(c) and 42 Pa.C.S.A. § 6332(a). The caseworker testified that she interviewed all of the people who had been responsible for the child during the time the injury occurred. The only explanation offered was that the child might have sustained the injury when he slipped off his mother’s lap and through her legs as she disembarked from an automobile. Dr. Mihelic testified as to his opinion of this particular fracture:

“I do not have a good biomechanical explanation of the injury and from my knowledge of orthopedics and biome-chanism and knowledge of children’s orthopedics and the nature of the way children fracture, I have not yet heard a good explanation of a natural cause, i.e. fall or accidental cause of the injury. It is a suspicious fracture and in a suspicious area that would have to have a set of circumstances to explain it and I have not been able to ascertain a mechanism of injury that would explain this fracture by stories I have heard. I can’t explain the mechanism of the injury. All I can infer is that it is direct trauma to the mid-shaft of the bone and the possibilities I think I have already outlined that I thought over in my mind that could have caused it. I have not been able to hear a story that matches what I know about the age of the child, the type of fracture itself, the location of the fracture and from my knowledge of forces applied to bones come up with an explanation of why an under year old child has a fracture in the diaphysis of a bone. It is transverse and broken completely through rather than splintered and, you know, without a story there had to be a great deal of force in my estimation to cause this. In order for a bone to break, and I can give you the figures, there is sometimes a force measurable to ten times body weight applied to a human area to break a bone and in a child it is a little bit different because bones give a little bit more. It may take even more force.”

At the conclusion of the hearing, the judge found the infant to be an abused child as defined by 11 P.S. § 2203, and remanded the custody of the child to Children’s Services.

Immediately thereafter, Children’s Services filed a Petition for Adjudication as a Dependent Child. On October 15, 1980, a lengthy dependency hearing was held, with all counsel agreeing that the testimony adduced at the September 30, 1980, hearing be incorporated into the record. For the first time, the babysitter, Terry Smith, testified that, while carrying the infant, he lost his hold on the child. The infant fell from Terry’s arms, only to be caught in the air prior to hitting the floor. Mr. Smith stated that upon grabbing the baby by the arm, “I heard something crack.” The witness conceded that he only revealed his role in the incident the day before the hearing, and that, in fact, he had told several different stories to Children’s Services in the course of its investigation.

Dr. Chase testified at this hearing also, and opined, “this fracture could not have been caused by the way Mr. Smith described the incident and I am a hundred percent certain of that.”
“The nature of the fall and the size and weight of the child and how the child was allegedly grabbed by Mr. Smith, it would not fit the mechanics of the fracture of that location; would not occur that way. There perhaps could be a dislocation or shoulder nerve injury to the shoulder area, but a fracture of that size is practically impossible.”

Once again, the trial judge rendered a decision that Frank was an abused child and a dependent child pursuant to 42 Pa.C.S.A. § 6302, and awarded custody to Children’s Services. The child has remained in foster care to date. Appellant seeks review of the both lower court’s finding that Frank is an abused and dependent child and the decision to vest custody in Children’s Services.

In reviewing an adjudication of dependency, we are guided by the manifest intent of the legislature in drafting the Juvenile Act, which was to preserve unity of the family whenever possible. 42 Pa.C.S.A. § 6301(b)(1). In Re Interest of Ryan Michael C., 294 Pa.Super. 417, 440 A.2d 535 (1982). Consequently, a child will only be declared dependent when he is presently without proper parental care and when such care is not immediately available. In Re LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). A court may not find a child to be dependent absent clear and convincing evidence. 42 Pa.C.S.A. § 6341(c). This standard has been defined as testimony that is so direct and unambiguous as to enable the trier of fact to come to a sure determination, without conjecture, of the truth of the exact facts at issue. Matter of Jackson, 302 Pa.Super. 369, 374, 448 A.2d 1087, 1089 (1982); In Re Jackson, 267 Pa.Super. 428, 406 A.2d 1116 (1979).

This Court has urged the lower court to make a comprehensive and searching inquiry in these cases. In Interest of LaRue, supra. To that end, testimony should be adduced from all interested parties, and, if necessary, from objective, disinterested witnesses. Id. ,244 Pa.Super. at 228-229, 366 A.2d at 1276. Finally, the ultimate decision of dependency should be accompanied by a full and complete analysis of the evidence, supported by appropriate findings of fact and conclusions of law. Id.

Upon reaching that result, a court still may not remove custody of the dependent child from his parents unless there exists the need to preserve and protect the welfare of the child or the interests of public safety. 42 Pa.C.S.A. § 6301(b)(3). In Interest of Pernishek, 268 Pa.Super. 447, 408 A.2d 872 (1979); In Re Whittle, 263 Pa.Super. 312, 397 A.2d 1225 (1979); In Re Clause, 244 Pa.Super. 396, 368 A.2d 780 (1976).

The standard of review which this Court employs in cases of dependency is broad. In Re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. In Re Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980); In Re Kunkle, 265 Pa.Super. 605, 402 A.2d 1037 (1979). Relying upon his unique posture, we will not overrule his findings if they are supported by competent evidence. Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 294 A.2d 782 (1972).

In the instant case, the lower court found the child to be dependent based upon the lack of adequate explanation of the child’s abuse, appellant’s admitted difficulty in caring for her children, the unacceptability of Terry Smith as a babysitter, and the child’s other serious medical problems which were not adequately cared for by appellant. With the exception of the lower court’s final observation, we agree that its decision is supported by clear and convincing evidence that Frank was a dependent child.

When Frank was born, he suffered from complications stemming from his premature birth, specifically, respiratory distress syndrome and an infection in the joints. The latter condition caused a deformity in the left leg and necessitated the wearing of a support harness. Although Dr. Mihelic expressed concern about appellant’s compliance with his instructions on the pelvic harness, Dr. Chase testified that appellant cooperated with his office and appeared to follow the advice she received with respect to Frank’s care. Consequently, we do not concur with the trial judge that appellant neglected to attend to her child’s infirmities or that this should serve as any basis for his decision of dependency.

However, we do agree that sufficient clear and convincing evidence existed for the child to be classified as dependent. Although appellant argues that the child should not be removed in the face of one instance of poor judgment on her part for leaving the child with an unacceptable babysitter, we must disagree. The incident leading to the removal of the child was the infliction of a serious and dangerous injury which neither appellant nor any members of her household could satisfactorily explain. Moreover, since the hearing judge found Terry Smith’s testimony to lack credibility, it remains unresolved as to who inflicted the injury on the child and when it occurred. Finally, expert witnesses testified that only direct force would cause such a break in the infant’s arm.

We believe that Frank was without proper parental care necessary for his physical health and that such care was not immediately available. This Court has defined proper parental care as “that care which (1) is geared to the particularized needs of the child and (2) at a minimum, is likely to prevent serious injury to the child.” In Interest of Per-nishek, supra, 268 Pa.Super. at 458, 408 A.2d at 878. Obviously, appellant’s parental care did not prevent her son from sustaining serious injury under suspicious circumstances. We would be remiss in the execution of one of our highest duties, the protection of the mental and physical welfare of children coming before this Court, if we did not find Frank to be a dependent child within the meaning of the Juvenile Act.

Once a finding of deprivation has been upheld, we must review the decision to separate the child from appellant to determine if it is “necessary” under the Act. In Interest of Black, supra 273 Pa.Super. at 547, 417 A.2d at 1181. Any decision to remove the child from his home must be reconciled with the paramount purpose of preserving the unity of the family. Such factors as the age of the child, the extent of his relationship with appellant, and the nature of that relationship should be considered. Interest of LaRue, supra 244 Pa.Super. at 230, 366 A.2d at 1271. Further, the court should adduce the source of difficulties with appellant and whether her inability to maintain a secure home for her child is due to a lack of cooperation or a lack of understanding as to her duty to her son. In Interest of Black, supra 273 Pa.Super. at 548, 417 A.2d at 1184.

In the instant case, appellant’s two older children were removed from her custody, although she had been working with Children’s Services toward their eventual return. The trial court did not permit testimony concerning the circumstances surrounding the removal of those children, but appellant conceded that she had problems caring for her children. The placement of appellant’s older children in foster homes is relevant to our inquiry herein in that it reflects upon her ability to maintain an appropriate environment for the health and welfare of her youngest child. In Interest of Black, supra; In Re Kunkle, supra. When an incident such as the one at bar occurs, we are constrained to conclude that the supervision and guidance of the caseworker failed to assist appellant in providing for adequate child care.

We therefore hold that the lower court was correct in ordering the immediate removal of Frank from his home and that such a separation was necessary to preserve his safety and health. However, our affirmance of this decision does not constitute a permanent order. “[I]n the interest of safeguarding the permanent welfare of the child, decrees concerning children are temporary and subject to modification to meet changing conditions.” In Interest of Black, supra, 273 Pa.Superior at 549, 417 A.2d at 1185. See also In Re Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978); Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974). Appellant may institute proceedings to recover her child and present evidence or professional evaluations regarding any improvement in her parenting skills and abilities. We encourage her to seek such help so that her child may eventually be reunited with her and grow in an atmosphere of love and nurturance without fear of physical harm.

Order affirmed.

      . The natural father of the child, Frank W. Dick, Sr., was incarcerated during the time period in question. On May 23, 1981, appellant and the father were married.

      . Mr. Smith was a friend of and no relation to appellant.

      . A child is defined as “abused" within the purview of the Child Protective Services Law when he or she "exhibits evidence of serious physical or mental injury not explained by the available medical history as being accidental ... if the injury, abuse or neglect has been caused by the acts or omissions of the child’s parents or by a person responsible for the child’s welfare____”

      . At the dependency hearing on October 15, 1980, the infant was represented by counsel, who acted as Guardian Ad Litem on his behalf.

      . A "dependent” child, according to the Juvenile Act, is one who "is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals____”


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    462 A.2d 713
    Donald SNELLBAKER, Appellant, v. Hans HERRMANN and Euresco, Inc. Donald SNELLBAKER v. Hans HERRMANN and Euresco, Inc. Appeal of Hans HERRMANN.
    Superior Court of Pennsylvania.
    Argued March 23, 1981.
    Filed June 17, 1983.
    Petition for Allowance of Appeal Denied Nov. 1, 1983.

      G. Thomas Miller, Harrisburg, for Snellbaker, appellant (at No. 183) and appellee (at No. 7).
    Harold N. Fitzkee, Jr., York, for Hans Herrmann, appellant (at No. 7) and appellee (at No. 183).
    Before PRICE, WIEAND and LIPEZ, JJ.

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

   WIEAND, Judge:

In these cross appeals from a judgment entered following nonjury trial of an assumpsit action, the parties contend that the findings of the trial judge are not supported by the evidence. We disagree and, therefore, affirm.

If the issue is simple, the facts are not. On the contrary, they are extremely complicated. Donald Snellbaker, the plaintiff, and Hans Herrmann, the defendant, entered a joint venture to import and sell German automobiles. Snell-baker was to provide the money to obtain the vehicles, and Herrmann was to service and sell them upon arrival in the United States. From the proceeds, plaintiff was to be reimbursed for the moneys advanced, expenses were to be paid, and the balance was to be divided equally between the parties.

Defendant introduced plaintiff to Gary Munz, a German automobile dealer, to whom plaintiff paid a total of $56,112 in exchange for Miinz’s promise to obtain and ship to the United States six vehicles as follows:

1 300 D Mercedes Benz
(This vehicle had been sold to and was being ordered for Dr. Max Stoner.)
1 300 D Mercedes Benz
2 280 SE Mercedes Benz
1 300 SL Silver
1 Unimog

Munz failed to deliver these vehicles. Nevertheless, he continued to enjoy the confidence of Snellbaker and Herrmann. Subsequently, they changed their arrangement, and $20,000 was earmarked for eleven Unimogs. This altered arrangement called for delivery, in addition to the Unimogs, of the vehicle for Dr. Stoner and a green Mercedes Benz coupe which the parties had examined in Germany. Munz also failed to deliver these vehicles.

On December 3, 1977, plaintiff and defendant, together with their attorneys, met to discuss Munz’s failure to deliver the vehicles. Their prior joint venture was confirmed, except that the proceeds were thereafter to be held in escrow by their attorneys. Herrmann was to receive and sell the Unimogs and the green Mercedes, plaintiff was to be repaid the moneys which he had advanced, the parties were to be reimbursed for their expenses, and the profits were to be divided equally. Herrmann represented that he had a potential purchaser who was interested in buying the Unimogs for $12,500 each. At that time the parties agreed also to subject to the terms of their agreement a silver 300 Mercedes SL, which Munz had shipped to Herrmann and which was then in the port at Baltimore. This car had been among the six vehicles originally to be sold to Snellbaker by Munz but removed by the amended order.

The silver Mercedes, together with two other Mercedes vehicles, had been purchased by Herrmann from Munz with moneys advanced by Messrs. Herr and Nett, with whom Herrmann had entered a separate joint venture for the importation of automobiles and prefabricated homes from Germany. Subsequently, Herrmann refused to abide by his agreement with Snellbaker that the 300 Mercedes SL at the port of Baltimore be subjected to the terms of their joint venture.

The trial court concluded that Herrmann had no liability to Snellbaker for the $56,112 which Snellbaker had advanced to Munz. The court concluded, however, that Herrmann had subjected the Mercedes 300 SL to the joint venture as a part of the “escrow agreement,” that Herr-mann had breached this agreement and that Snellbaker was entitled to recover the value thereof. The court also found that the remaining two vehicles were not a part of Herr-mann’s business venture with Snellbaker and concluded that Snellbaker had no rights therein or to the proceeds to be derived from their sale.

It is well established that the findings of the trial judge, sustained by a court en banc, have the force and effect of a jury’s verdict. If they are based on sufficient evidence, they will not be disturbed on appeal. Idell v. Falcone, 427 Pa. 472, 474, 235 A.2d 394, 395 (1967); Girard Trust Bank v. Sweeney, 426 Pa. 324, 330, 231 A.2d 407, 411 (1967); Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Super. 177, 180, 395 A.2d 1373, 1374 (1978). See: Agsco Equipment Corp. v. Borough of Green Tree, 297 Pa.Super. 33, 36, 443 A.2d 284, 286 (1981). “Appellate review, therefore, is limited to a determination of whether the findings of the trial court are supported by competent evidence and whether the trial court committed error of law.” (Citations omitted.) Metz Contracting, Inc. v. Boxer Heights, Inc., supra 261 Pa.Super. at 180, 395 A.2d at 1375.

A joint venture is not a status created or imposed by law; it is a relationship voluntarily assumed and arising wholly from contract. 2 Williston on Contracts 557, § 318A (3rd ed. 1959). Whether persons have engaged in it must depend primarily upon their intention as expressed in their agreement and the construction they have placed upon it. “To constitute a joint venture certain factors are essential: (1) each party to the venture must make a contribution, not necessarily of capital, but by way of services, skill, knowledge, materials or money; (2) profits must be shared among the parties; (3) there must be a ‘joint proprietary interest and right of mutual control over the subject matter’ of the enterprise; (4) usually, there is a single business transaction rather than a general and continuous transaction.” McRoberts v. Phelps, 391 Pa. 591, 599, 138 A.2d 439, 443-444 (1958). A joint venture partakes in many ways of a partnership, the principal difference being that it usually, though not necessarily, applies to a single transaction instead of being formed for the conduct of a continuing business. West v. Peoples First National Bank & Trust Co., 378 Pa. 275, 281-282, 106 A.2d 427, 431 (1954).

The rights, duties, and obligations of joint venturers, as between themselves, depend primarily upon the terms of the contract by which they assume that relationship. 46 Am.Jur.2d, Joint Ventures § 36. The obligations of the parties need not be equal; they may differ in character and/or amount. The liability of a joint venturer for a proportionate part of the losses or expenditures of the enterprise may be fixed by the terms of the agreement. Absent a limitation in the agreement, a joint venturer will be held responsible with his or her associates for the losses sustained by the enterprise. See: Handley v. Ching, 2 Hawaii App. 166, 627 P.2d 1132, 1136 (Hawaii App.1981); Kahle v. Turner, 66 Ohio App.2d 49, 52, 420 N.E.2d 127, 130 (Ohio App.1979); Laird v. Johns, 276 Or. 1095, 1097, 557 P.2d 670, 671 (1976); Rice v. Lambert, 408 S.W.2d 287, 291-292 (Tex.Civ.App.1966); 2 Williston on Contracts, 574-575, § 318A (3rd ed. 1959); 48A C.J.S. § 39; 46 Am.Jur.2d, Joint Ventures § 47. However, where one of the co-venturers is responsible to provide funds only and the other agrees to supply knowledge, experience or services, the one who provides the capital cannot, if it is lost, obtain contribution from his associate. See: Kovacik v. Reed, 49 Cal.2d 166, 315 P.2d 314 (1957); Bowling, et al. v. Duvall, et al, 270 Ky. 494, 109 S.W.2d 1200 (1937), reiterating principles announced in Heran v. Hall, 40 Ky. (1 B. Mon.) 159 (1840); Boxwell v. Champagne, 229 Miss. 355, 91 So.2d 256 (1956); Allison v. Dilsaver, 387 S.W.2d 206 (Mo.App. 1965). See also: Newton v. Sackett, 10 D. & C.2d 507 (Phila.1957). In the instant case, the agreement was that Snellbaker would provide and necessarily risk the capital for the venture; whereas Herrmann was to service and sell the imported cars. Under this agreement, Snellbaker was not entitled to contribution for the loss of the risk capital, if ultimately there is a loss of the capital which he invested in this joint enterprise.

Snellbaker argues, however, that by the terms of the informal agreement of December 3, 1977, Herrmann assumed an obligation to repay Snellbaker for his capital outlay. The trial court found no such intent, and the evidence supports this finding. The agreement, noted in longhand and signed by the parties and their attorneys, was as follows:

1. Larkin & Griest [attorneys for both parties] Escrow Agent for all funds.
2. Herrmann will secure delivery of vehicles & deposit proceeds of sale with Larkin & Griest.
3. Snellbaker to be reimbursed for $56,112 advanced plus expenses from sale proceeds.
4. Herrmann to be reimbursed for expenses.
5. Remainder (Profit) to be equally divided.

This agreement, it must be observed, was entered after the original order from Munz had been altered. No longer was Munz expected to ship six Mercedes-Benz vehicles. Rather, he was to obtain and ship eleven Unimogs, a green Mercedes, and the Mercedes 300 D for Dr. Stoner. The arrangement between Snellbaker and Herrmann with respect to these vehicles remained the same as the original agreement, except that the proceeds from sales of vehicles were to be held in escrow by the attorneys. With this exception, the obligations of the joint adventurers were not altered. Herrmann did not assume an obligation to reimburse Snell-baker for his initial investment, and he did not guarantee shipment of the vehicles by Munz.

On this occasion the parties also agreed, albeit verbally, to go to Baltimore, take delivery of a silver 300 SL Mercedes which had arrived, sell it and apply the proceeds in accordance with their agreement. This vehicle, being one that had been part of the original order to Munz and later removed therefrom by the parties’ amendment, was titled in Herrmann’s name but had been purchased, as were two additional vehicles, with moneys provided by Messrs. Herr and Nett. Herrmann subsequently defaulted on his agreement with Snellbaker. He took possession of the vehicle and refused to sell it or pay to Snellbaker the value thereof. The trial court found that Herrmann had agreed to make this a part of the Snellbaker joint venture and had breached the verbal agreement by refusing to subject the vehicle thereto. The court enforced the escrow agreement with respect to this vehicle and permitted Snellbaker to receive the value thereof and apply the same on account of his capital outlay.

Snellbaker contends that he is also entitled to a lien upon the two additional vehicles, a 300 SEL 6.3 and a 280 SL Coupe, which were also titled in Herrmann’s name. The court found that Snellbaker had no lien upon these vehicles and no claim for the value thereof. This is clearly supported by the evidence.

It is correct, of course, that a joint venturer owes a fiduciary duty of the utmost good faith and must act toward his associate with scrupulous honesty. 2 Williston on Contracts 622, § 318C (3rd ed. 1959). See: Friedland v. Weinstein, 429 Pa. 347, 242 A.2d 797 (1968); Universal Builders Supply, Inc. v. Shaler Highlands Corp., 409 Pa. 334, 186 A.2d 30 (1962); William Goldstein Co. v. Joseph J. & Reynold H. Greenberg, Inc., 352 Pa. 259, 42 A.2d 551 (1945). In the instant case, however, the court found that Snellbaker’s evidence failed to demonstrate bad faith on the part of Herrmann. After Herrmann had made the initial introduction of Snellbaker to Munz, Herrmann returned to the United States, and negotiations were conducted by and money exchanged between Snellbaker and Munz without Herrmann’s intervention or participation. Thus, it was Snellbaker who paid money to Munz without obtaining in exchange any documents of ownership for the vehicles he intended to purchase. Herrmann has not benefitted in any way from Munz’s failure to obtain and deliver the Mercedes vehicles.

A more difficult issue, but one which was neither presented to the trial court nor argued on appeal, is whether Herrmann could, in view of his fiduciary position, engage simultaneously in a similar and, perhaps, competing joint venture with persons other than Snellbaker. Because the issue has not been argued, we. express no opinion. Suffice it to say that the evidence supports the trial court’s findings that the two remaining vehicles were not subjected by agreement, express or implied, to the Snellbaker-Herrmann joint venture.

Herrmann has argued that the trial court erred in subjecting the silver 300 SL to the joint venture. He contends that irrespective of his subsequent agreement to sell it and apply the proceeds to the joint venture, he should not have been bound thereby because it was not his vehicle. There is no merit in this contention. In the first place, all the relevant documentation for the vehicle was in his name alone; and, therefore, he had apparent, if not actual, authority to deal with it as his own. See: 2 Williston on Contracts 247-251, § 277C (3rd ed. 1959); 3 Am.Jur.2d, Agency § 100. Moreover and in any event, having agreed with Snellbaker that the vehicle was to be sold and the proceeds applied to the joint venture, it became Herrmann’s duty tó obtain a title which enabled him to perform his agreement. See generally: Daniel B. Van Campen Corp. v. Building and Construction Trades Council of Philadelphia and Vicinity, 202 Pa.Super. 118, 122, 195 A.2d 134, 136-137 (1963); 3 Corbin on Contracts, § 562 (rev. ed. 1960); 11 Williston on Contracts, § 1295 (3rd ed. 1959). His relationship with Herr and Nett did not preclude his contractual liability for failing to act with respect to this vehicle as he had agreed with Snellbaker.

Affirmed.

       The preparation of this opinion was reassigned to the writer on February 11, 1983.

      . Also named as a defendant was Euresco, Inc., a corporation owned and controlled by Hans Herrmann.

      . A Unimog is an all terrain vehicle frequently used by the military. It may also be used in farming and for recreational purposes. The trial court’s recitation of the facts states that only 10 Unimogs were to be purchased. However, the parties were in agreement that those ten were to be in addition to the Unimog included in the original transaction.

      . Snellbaker testified that he was also making efforts by a separate action to recover this amount from Munz.

      . Our research has uncovered only one jurisdiction that would allow recovery of a proportionate share of losses in this situation. The Florida courts have concluded that it is more equitable to permit one who has advanced money to a venture and lost it to seek recompense from the other, non-funding venturer. See: Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536 (Fla.Dist.App. 1974).


author:
WIEAND, Judge:
      MONTGOMERY, Judge,

text:
    462 A.2d 718
    In re Troy McMULLINS. Appeal of Troy McMULLINS.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1983.
    Filed June 17, 1983.

      John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.
    Ralph J. Johnston, City Solicitor, Wilkes-Barre, for participating party.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

The issue in this appeal is one of first impression. Does section 406 of the Mental Health Procedures Act, which authorizes a court to order involuntary treatment “following an examination in aid of sentencing,” have application to juveniles who have been adjudicated delinquent? The Juvenile Court of Luzerne County held that it did and ordered that Troy McMullins, age 17, be committed “for inpatient psychiatric treatment to the forensic adolescent unit at Norristown State Hospital for a period not to exceed ninety (90) days.” The juvenile appealed. We affirm.

The present appeal is not moot. This is because an order providing for an involuntary commitment affects an important liberty interest and because most involuntary commitment orders expire before appellate review is possible. Commonwealth v. Blaker, 293 Pa.Super. 391, 393 n. 1, 446 A.2d 976, 977 n. 1 (1981); In re S.C., 280 Pa.Super. 539, 542-543, 421 A.2d 853, 854-855 (1980); In re Commitment of Ann S., 279 Pa.Super. 618, 621 n. 2, 421 A.2d 370, 372 n. 2 (1980).

Troy McMullins was found guilty of acts constituting the crimes of simple assault, indecent assault and making ter-roristic threats and was adjudicated delinquent. On February 18, 1982, he was sent to the diagnostic center for juveniles at Loysville to undergo psychiatric evaluation to aid the court in making final disposition. Based on a staff report from Loysville, the Juvenile Probation Officer filed a petition requesting that the juvenile be committed for 90 days pursuant to section 406 of the Mental Health Procedures Act. The petition was referred to a Mental Health Review Officer who, following an evidentiary hearing, found that McMullins was “severely mentally disabled and in need of inpatient psychiatric treatment.” She recommended that the petition be granted; and on May 12, 1982, the court entered the order from which the instant appeal has been filed.

The Juvenile Act of July 9, 1976, P.L. 586, 42 Pa.C.S. § 6301 et seq. provides:

“If, at a dispositional hearing of a child found to be a delinquent or at any hearing, the evidence indicates that the child may be subject to commitment or detention under the provisions of the act of October 20, 1966 (3rd Sp.Sess., P.L. 96, No. 6), known as the ‘Mental Health and Mental Retardation Act of 1966,’ or the act of July 9, 1976 (P.L. 817, No. 143), known as the ‘Mental Health Procedures Act,’ the court shall proceed under the provisions of the appropriate statute.”

42 Pa.C.S. § 6356. However, a juvenile delinquent is not per se mentally ill. The presence of mental illness cannot be inferred solely from the fact that the person acted in a manner displaying delinquency. Commonwealth v. Hubert, 494 Pa. 148, 152, 430 A.2d 1160, 1162 (1981).

Section 401(c) of the Mental Health Procedures Act provides:

“(c) As to any person who is subject to a petition or who has been committed under the Juvenile Act, the civil provisions of this act applicable to children of his age shall apply to all proceedings for his examination and treatment....”

Thus far, the Act seems clear. The difficulty arises because, with respect to court ordered involuntary examination and treatment under the Act, no distinction is made between adults and children. One searches in vain through the sections of the Act for provisions pertaining to age distinctions regarding persons who require involuntary examination or treatment.

With respect to voluntary treatment, the Act distinguishes between persons 14 years of age or over and persons under 14. Thus, a person who is 14 years of age or over may submit himself to voluntary examination or treatment. A person under 14, however, can be subjected to examination and treatment only by a parent, guardian or person standing in loco parentis. 50 P.S. § 7201. See also: 50 P.S. § 7204. We shall return to this age distinction at a later point in this opinion.

Section 405 of the Mental Health Procedures Act provides that a court may order an examination for mental illness to aid it whenever “a person who has been criminally charged is to be sentenced.” Specifically, it provides as follows:

“Whenever a person who has been criminally charged is to be sentenced, the court may defer sentence and order him to be examined for mental illness to aid it in the determination of [sic] disposition____”

Section 406 provides further:

“Upon a finding of incompetency to stand trial under section 403 after an acquittal by reason of lack of responsibility under section 404, or following an examination in aid of sentencing under section 405 the attorney for the Commonwealth, on his own or acting at the direction of the court, the defendant, his counsel, the county administrator, or any other interested party may petition the same court for an order directing involuntary treatment under section 304.” (emphasis added).

Did the legislature intend that sections 405 and 406 should have application to proceedings in the Juvenile Courts? Appellant argues that it did not. A juvenile who has been adjudicated delinquent, he contends, has not been “criminally charged” and cannot be “sentenced.” On the other hand, it is argued, sections 405 and 406 are the only provisions of the statute which suggest even remotely a procedure which can be followed to obtain treatment for a juvenile delinquent who is severely mentally disabled.

Section 406 permits a court having jurisdiction to enter an order “directing involuntary treatment under section 304.” The latter section does not distinguish between adults and juveniles. It establishes both conditions and procedure by which “a person who is severely mentally disabled and in need of treatment” can be subjected to court-ordered involuntary treatment. It can be used in cases of adults and juveniles, whether or not there are pending criminal or delinquency proceedings. Involuntary examination and treatment can be court ordered only where the person to be examined or treated is severely mentally disabled. This condition exists “when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion ... is so lessened that he poses a clear and present danger of harm to others or to himself.” 50 P.S. § 7301(a). Clear and present danger is defined in section 301(b)(1) as follows:

“(b) Determination of Clear and Present Danger.—(1) Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated. If, however, the person has been found incompetent to be tried or has been acquitted by reason of lack of criminal responsibility on charges arising from conduct involving infliction of or attempt to inflict substantial bodily harm on another, such 30-day limitation shall not apply so long as an application for examination and treatment is filed within 30 days after the date of such determination or verdict. In such case, a clear and present danger to others may be shown by establishing that the conduct charged in the criminal proceeding did occur, and that there is a reasonable probability that such conduct will be repeated. For the purpose of this section, a clear and present danger of harm to others may be demonstrated by proof that the person has made threats of harm and has committed acts in furtherance of the threat to commit harm.”

This subsection, as do sections 405 and 406, uses language such as “criminal proceeding” which, according to appellant, suggests application only to adult criminal proceedings. The requirement that a clear and present danger to others be shown by conduct within 30 days has been eliminated where a person has been found incompetent to be tried and where he has been acquitted by reason of lack of criminal responsibility.

The 30 day requirement, it will be observed, has not been excused by this section in cases where involuntary treatment is determined to be necessary “following an examination in aid of sentencing under section 405.” This apparent oversight can be explained only if the legislature contemplated that involuntary treatment as a part of sentencing or disposition be covered fully by section 405. This section, it will be recalled, authorizes an examination for mental ill-, ness prior to sentencing or other disposition.

If appellant’s arguments are correct, the Mental Health Procedures Act has failed to provide for involuntary examination or treatment of a juvenile who has been adjudged delinquent, unless by chance he has inflicted or attempted to inflict serious bodily harm on another within thirty days of the dispositional hearing. In most cases, this means that unless a new, second offense has been committed, a delinquent cannot be ordered to receive necessary treatment involuntarily, and the only dispositions available to the court are release or confinement. Such a result is absurd. Not only is it contrary to the provisions of the Juvenile Law which direct that a juvenile court in appropriate cases shall proceed under the Mental Health Procedures Act but it flies in the teeth of the policy and purpose of the Mental Health Procedures Act itself. The legislative purpose, when it enacted the Mental Health Procedures Act, was “to assure the availability of adequate treatment to persons who are mentally ill” and “to make voluntary and involuntary treatment available where the need is great and its absence could result in serious harm to the mentally ill person or to others.” 50 P.S. § 7102. In addition, section 103 states that the Act “establishes rights and procedures for all involuntary treatment of mentally ill persons ... and for all voluntary inpatient treatment of mentally ill persons.” This is all inclusive. It does not establish rights and procedures for all persons except juveniles who have been adjudicated delinquent.

We conclude, therefore, that in enacting the Mental Health Procedures Act the legislature intended that all rights granted to adults be accorded also to juveniles who are fourteen years of age, their parent, guardian or other person in loco parentis must act for them. Whether a person fourteen or older be certified to and convicted in adult court or adjudicated delinquent in juvenile proceedings, the court may order a mental examination of such person to aid in final disposition. To show that such a person is severely mentally disabled because he poses a clear and present danger to others, it is enough that the offense resulting in the adjudication of delinquency involved proof that the person made threats of harm and committed acts in furtherance of the threat to commit harm, and that such conduct is likely to reoccur without treatment. It is not necessary to such a showing that the conduct occur within thirty days of disposition or sentencing. To hold otherwise—to hold that sections 405 and 406 have no significance apart from section 304—would be to render them surplusage. An order for involuntary treatment could then be entered only as permitted by section 304, and sections 405 and 406 would be rendered meaningless. This is contrary to the teaching of the Statutory Construction Act which, at 1 Pa.C.S. § 1921(a) instructs that a statute must be construed, if possible, to give effect to all its provisions. See also: Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596, 607 (1979); Matter of Employees of Student Services, Inc., 495 Pa. 42, 52, 432 A.2d 189, 195 (1981); In Interest of Jones, 286 Pa.Super. 574, 586, 429 A.2d 671, 677 (1981); Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 262-263, 419 A.2d 431, 447 (1980). In construing section 406, we must view it with reference to the entire statute of which it is but a part.

The hearing court accepted the Mental Health Review Officer’s recommended finding that the juvenile was severely mentally disabled and in need of inpatient psychiatric treatment. The juvenile had a history of assaultiveness which, psychiatric testimony predicted, would reoccur without treatment. He was suffering from severe emotional disturbance symptomized by a symbiotic attachment to his mother, assaultiveness toward other women, as well as further thought and feeling disorders.

It is not the function of this Court to find facts but only to determine whether there is evidence in the record to support the hearing court’s findings. Commonwealth ex rel. Gibson v. DiGiacinto, 497 Pa. 66, 70, 439 A.2d 105, 107 (1981). Our review of the record discloses sufficient evidence to support the court’s order. Indeed, except for a contention that the assaultive behavior did not occur within thirty days of disposition, appellant does not contend otherwise.

Order affirmed.

MONTGOMERY, J., files a dissenting opinion.

MONTGOMERY, Judge,

dissenting:

I must respectfully dissent. The issue, as I view it, is whether the requirement of § 301(b)(1) of the Mental Health Procedures Act, 50 P.S. § 7301(b)(1) that clear and present danger to others must be established by conduct which occurred within the previous 30 days is excused in cases where involuntary treatment is determined to be necessary “following an examination in aid of sentencing under section 405.” 50 P.S. § 7406.

The facts of the instant case are not in dispute. Appellant was adjudicated delinquent on February 18, 1982, upon allegations that he committed terroristic threats, simple assault and indecent assault. Thereafter, he was sent to a juvenile diagnostic center at Loysville for an evaluation in aid of disposition. Based on that evaluation, a petition for commitment under MHPA was filed, on the basis that appellant, as a result of mental illness, posed a clear and present danger of harm to others. 50 P.S. § 7301.

The evidence presented at the commitment hearing consisted of the probation officer’s testimony that appellant had been adjudicated delinquent of the above charges and of the evaluating psychiatrist’s testimony of appellant’s mental condition. This hearing took place on May 10, 1982, considerably more than 30 days after the occurrences which formed the basis of the juvenile court’s adjudication.

The relevant portions of the MHPA are sections 405, 406 and 301. Section 405 permits a court to order an examination of a person who has been criminally charged to aid the court in its disposition. Section 406 provides that, following such an examination, a petition may be filed “for an order directing involuntary treatment under 304.” Section 304 requires a finding of clear and present danger as defined in section 301(b)(1), which is as follows:

(b) Determination of Clear and Present Danger.—(1) Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated. If, however, the person has been found incompetent to be tried or has been acquitted by reason of lack of criminal responsibility on charges arising from conduct involving infliction of or attempt to inflict substantial bodily harm on another, such 30-day limitation shall not apply so long as an application for examination and treatment is filed within 30 days after the date of such determination or verdict. In such case, a clear and present danger to others may be shown by establishing that the conduct charged in the criminal proceeding did occur, and that there is a reasonable probability that such conduct will be repeated.

In interpreting the MHPA, it is important to keep in mind the circumstances that surround its enactment. The previous civil commitment statute, Section 406 of the Mental Health and Mental Retardation Act of 1966, had been attacked as unconstitutional in a suit filed in U.S. District Court in July of 1975. On July 8, 1976, a three-judge court for the Middle District of Pennsylvania agreed and enjoined the operation of section 406. Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa.1976). The following day, the MHPA was signed into law having been under consideration by the Legislature at least since September of 1975. The basis of the Goldy decision was that the 1966 Act was so vague as to leave too much discretion to the persons implementing it. To some extent, then, the 1976 MHPA was designed to establish more precise standards for civil commitment which would withstand the type of constitutional attack that invalidated the 1966 Act. We must also bear in mind that a diagnosis of mental illness is a subjective one, often being based only on “observed behavioral deviations from the social ‘norm’ ” with the possibility of different diagnoses from different psychiatrists. Note, Standards for Involuntary Civil Commitment in Pennsylvania, 38 U.Pitt.L. Rev. 535, 538-9 (1977). In addition, we must constantly remain aware of the “substantial deprivation of individual liberty inherent in such commitments.... ” Commonwealth v. C.B., 307 Pa.Super. 176, 452 A.2d 1372 (1982). In recognition of these factors, our Supreme Court has required that the “strict conditions [of the MHPA] be satisfied before a court order for commitment shall be issued,” Commonwealth v. Hubert, 494 Pa. 148, 430 A.2d 1160 (1981), even though this may occasionally result in the release of persons who may be mentally ill. Id. See, also, Note, Standards, supra at 546 (“... we appear to be on the verge of ignoring the ancient maxim of the criminal law that it is better that ten guilty men go free than that one innocent man be imprisoned.”)

With these principles in mind, then, we look to the requirements of section 301(b)(1). With two, and only two exceptions, a person may not be involuntarily committed to a mental hospital unless clear and present danger to others is shown by conduct which has occurred within the previous 30 days. Appellant does not fit into either exception because, as the majority correctly notes, the 30-day requirement is not excused by this section in cases where treatment is deemed necessary following an examination under section 405. I disagree with the majority’s statement that we can view such a significant omission as an “apparent oversight.” I believe that to be inconsistent with the long line of cases requiring strict adherence to the statutory scheme of the MHPA. See, Commonwealth v. C.B., 307 Pa.Super. 176, 452 A.2d 1372 (1982) (reversed because appellant was served one day prior to the hearing rather than three days as required by the act); In re Condry, 304 Pa.Super. 131, 450 A.2d 136 (1982) (reversed because certification did not include the required description of treatment); Commonwealth v. Blaker, 293 Pa.Super. 391, 446 A.2d 976 (1981) (evidence insufficient to show clear and present danger); In re S.C., 280 Pa.Super. 539, 421 A.2d 853 (1980) (evidence insufficient to meet the stringent standards of the Act); In re Ann S., 279 Pa.Super. 618, 421 A.2d 370 (1980) (reversed because appellant’s emergency commitment under § 302 was extended for 90 days under § 304 rather than for 20 days under § 303). Since neither of the two exceptions of § 301(b)(1) apply to appellant and there was no evidence that appellant had inflicted or attempted to inflict serious bodily harm to another within the 30 days prior to the commitment hearing, I would reverse the order of commitment.

The majority’s concern that this interpretation means there is no way for a court to order involuntary treatment for a person in appellant’s position is an illusory one. There is no reason why a petition for involuntary commitment could not have been filed within the time limits of § 301(b)(1) whether a delinquency petition were pending or not. Scores of people have been committed for involuntary treatment on the basis of conduct for which no criminal or juvenile proceedings were ever instituted. The need for and desirability of such treatment should have been even more apparent in appellant’s case since he was well-known to the juvenile court system at the time the delinquent acts took place. At any rate, a pragmatic approach to the MHPA has already been rejected by this court in Commonwealth v. Blaker, supra, in which we said,

It is not enough to find, as the lower court did, that appellant “was truly in need of the services offered by [the] mental health system.” Slip op. at 6. Unless one or more of the requirements of section 301, 50 P.S. § 7301, is met, involuntary commitment is not lawful.

Id. 293 Pa.Super. at 398, 446 A.2d at 982.

I would, therefore, reverse the order of commitment.

      . 50 P.S. § 7406.

      . A juvenile court stands in loco parentis and can subject a child under 14 to observation and treatment under this section. See: In Interest of Green, 273 Pa.Super. 397, 417 A.2d 708 (1980).

      . 50 P.S. § 7301(b)(1).

      . This placement was ostensibly made pursuant to § 405 of the MHPA, 50 P.S. § 7405, which permits a court to order an examination for mental illness ■ whenever "a person who has been criminally charged is to be sentenced.” Appellant has also argued that this section does not apply to juveniles because the language used refers to "criminal” proceedings which does not include an adjudication of delinquency under the Juvenile Act. See, 42 Pa.C.S.A. § 6301. However, under the analysis set forth in this opinion, it is unnecessary to reach this issue.

      . There was no evidence that appellant posed a clear and present danger of harm to himself, an alternate basis for involuntary treatment under 50 P.S. § 7301.

      . 50 P.S. § 7405.

      . 50 P.S. § 7406.

      . 50 P.S. § 7301.

      . 50 P.S. § 7304.

      . 50 P.S. § 7301(b)(1).

      . As noted above, these are: (1) if the person has been found incompetent to be tried or (2) if the person has been acquitted by reason of lack of criminal responsibility. 50 P.S. § 7301(b)(1).


author: McEWEN, Judge:

text:
    462 A.2d 725
    COMMONWEALTH of Pennsylvania v. James HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 25, 1982.
    Filed June 17, 1983.

      Mary Willmann, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, P.J., and CAVANAUGH, ROWLEY, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.
   McEWEN, Judge:

Appellant was convicted of theft by receiving stolen property and unauthorized use of automobile following a non-jury trial before Judge Michael E. Wallace who then proceeded to grant the motion of appellant for a new trial and to deny the motion in arrest of judgment. Appellant brought this appeal from the denial of his motion in arrest of judgment. We affirm the order of the Common Pleas Court.

Appellant contends that he is entitled to be discharged since the Common Pleas Court erred when it granted a Commonwealth petition to extend the time for commencement of trial filed pursuant to Pa.R.Crim.P. 1100(c), for the reason that the finding by the court of due diligence on the part of the Commonwealth was predicated upon the consideration by the court of uncontested court records and of representations of counsel during an extension hearing. The issue appellant presents is whether the court, in determining whether the Commonwealth has exercised the due diligence required by Rule 1100(c), may during an extension hearing take judicial notice of uncontested court records. A thorough consideration of this issue necessitates, of course, that we also consider the principles applicable to the concept of judicial delay under Rule 1100.

Appellant was arrested on February 6, 1979, and, on the same day, a complaint was filed charging him with auto theft and unauthorized use of auto. The calendar run date under Rule 1100 was, therefore, August 6, 1979. The preliminary hearing was held on February 23, 1979 and appellant was held for court. A hearing on the motion of appellant to suppress physical evidence was held on May 30, 1979 and, at the conclusion of the hearing, Judge Nicholas A. Cipriani denied the motion and recused himself. The matter was next listed for July 13, 1979, before Judge Thomas N. Shiomos who recused himself after the assistant district attorney informed him that appellant had been found guilty of certain charges after a jury trial over which he had presided some six years earlier. At that proceeding, Judge Shiomos reviewed the file, indicated that he remembered appellant and proceeded to: (1) recuse himself; (2) note that the recusal posed a Rule 1100 problem; (3) note the need that the case be relisted for the “earliest date possible”; (4) note the unavailability of criminal court rooms; and (5) determine that the earliest possible date for the trial was August 15, 1979. Since the trial date of August 15 was beyond the August 6 run date, the Commonwealth filed, on July 17, 1979, a petition for extension of time within which to commence trial under Rule 1100(c); appellant responded by filing, on August 1, 1979, an answer to the petition for extension and a motion to dismiss the charges under Rule 1100(f). A hearing was held on August 2, 1979 upon the Commonwealth petition to extend at the conclusion of which Judge Edward J. Blake extended the run date to August 17, 1979. Appellant in this appeal claims that the Commonwealth did not present such evidence of its due diligence in attempting to bring the accused to trial promptly as to warrant the grant of an extension.

As we review a ruling of the Common Pleas Court that the Commonwealth has or has not met its burden of proving its due diligence in bringing an accused to trial promptly, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted. Commonwealth v. Bright, 303 Pa.Super. 98, 449 A.2d 596, 598 (1982); Commonwealth v. Sharp, 287 Pa.Super. 314, 317, 430 A.2d 302, 304 (1981). See also Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979); Com monwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977); Commonwealth v. Reiss, 301 Pa.Super. 96, 447 A.2d 259 (1982); Commonwealth v. Hill, 290 Pa.Super. 399, 401, 434 A.2d 813, 814 (1981).

Appellant failed to present any testimonial evidence at the extension hearing held August 2, 1979, although the Commonwealth offered into evidence the record of the case containing the notations made by the trial judge at all prior listings of the case. The notations were carefully reviewed by the hearing judge during the extension hearing and were supplemented with explanatory representations of the assistant district attorney and the public defender, each of whom relied on the notations in the record in presenting their respective arguments. Judge Blake was able to conclude, on the basis of the notations in the record, that there were three continuances for which the court was responsible, one defense continuance and no Commonwealth continuances. Thus, while it appears that the due diligence of the Commonwealth is the basic issue, it seems our analysis must focus, as well, upon the facts of and law applicable to the judicial delay encountered by the parties.

There is no question but that “a court may grant the Commonwealth an extension of time within which to commence trial if it finds the trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” Pa.R.Crim.P. 1100(c). Commonwealth v. Bright, supra 303 Pa.Super. at 102, 449 A.2d at 598; Commonwealth v. Sharp, supra 287 Pa.Super. at 317, 430 A.2d at 304 (1981). The Pennsylvania Supreme Court made just as clear in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), that, while judicial delay can be the basis for an extension of time within which to commence trial, an extension may be granted

only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349-50.

We conclude that, in the instant case, the specific requirements of Mayfield have been met. Although it is clear that “mere assertions of due diligence and unproven facts do not establish cause for an extension under Rule 1100(c)”, Commonwealth v. Ehredt, supra 485 Pa. at 195-96, 401 A.2d at 361, quoting Commonwealth v. Antonuccio, 257 Pa.Super. 535, 536, 390 A.2d 1366, 1367 (1978), we believe that a hearing court may properly take judicial notice of uncontested notations in the court record in deciding both issues, namely, whether the Commonwealth has exercised due diligence in attempting to bring an accused to trial and, whether the requirements necessary to warrant an extension on the basis of judicial delay as defined by Mayfield and Rule 1100(c) have been met. We have, of course, previously held that it is proper for a hearing court to accept such records in making a determination of the due diligence of the Commonwealth. See Commonwealth v. Bright, supra; Commonwealth v. Postell, 280 Pa.Super. 550, 421 A.2d 1069 (1980); Commonwealth v. Jackson, 269 Pa.Super. 249, 409 A.2d 873 (1979); Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977).

The court records in this case reveal that it is beyond dispute that the Commonwealth had exercised due diligence through July 13, 1979, when the case was called for trial before Judge Shiomos, since none of the three continuances through that date were chargeable to the Commonwealth, a fact noted by Judge Blake at the hearing of August 2, 1979. We note that the Commonwealth alleged with regard to that issue, in its petition to extend filed July 17, 1979, that the prosecution had been ready to proceed on the occasion of the three earlier scheduled trial dates and that these allegations were generally denied in the answer of appellant to that petition. We note, as well, that counsel for appellant did not question the specific representation of the Commonwealth at the extension hearing of August 2, 1979, that it had been ready to proceed to trial on each of the three earlier scheduled trial dates, but, instead, merely expressed a general assertion that the Commonwealth had failed to establish the exercise of due diligence in bringing appellant to trial.

We next proceed to study both the reason why the case did not proceed to trial as scheduled on July 13, 1979, and the delay that thereafter ensued. When the case was called for trial on that date before Judge Shiomos, the assistant district attorney advised Judge Shiomos that he had presided over a prior jury trial in which appellant had been found guilty on certain charges and requested that the trial judge recused himself so as to serve the interest of justice and to ensure appellant a fair trial. Counsel for appellant did not object to the request but appeared from the record to have acquiesced in the suggestion. We will not accept the contention of appellant that the request of the assistant district attorney that the judge recuse himself was a deliberate attempt to delay the trial or that it was evidence of the lack of due diligence on the part of the Commonwealth. There is no basis to question the request for recusal in view of the expressed motive of the Commonwealth that the request was made to assure that appellant received a fair and impartial trial; in fact, it is not difficult to envision that, had the defendant suffered an adverse result in the trial that had been scheduled before Judge Shiomos, the post-trial motions of appellant would include the assertion that it was error for the trial to have been conducted by Judge Shiomos.

Therefore, we conclude that the delay in the scheduled trial date from July 13, 1979, through August 15, 1979, a date some nine days beyond the 180 day run date, cannot in any fashion be attributed to a lack of due diligence on the part of the Commonwealth. Since, however, the date of August 15, 1979, was nine days beyond the run date, it remains for us to determine whether the further requirement of Mayfield, supra, was met, namely, that the record show in cases where the court is unable to bring the defendant to trial within the prescribed period, the causes of the delay and the reasons why the delay could not be avoided. The record amply demonstrates the cause of the delay and the reason why it could not be avoided, since Judge Shiomos found, as we earlier discussed, the lack of available criminal courtrooms precluded a trial date sooner than August 15 and Judge Blake by implication confirmed that fact at the hearing on August 2, 1979.

We next consider the events surrounding the postponements of the trial from August 15, 1979, through September 10, 1979. When Judge Shiomos recused himself, he certified that the next available date for appellant’s trial was August 15, 1979, and listed the case for trial on that date in Court Room No. 436 in City Hall. A prisoner bring-up form was subsequently prepared by the Clerk of Quarter Sessions in order to instruct the sheriff to transport appellant from the prison to City Hall for his trial on August 15. However, on August 7, 1979, the Trial Coordinator for the Philadelphia Court of Common Pleas forwarded a memo to all parties involved in the case that the place of trial was to be changed from Court Room No. 436 City Hall to Court Room No. 432 and that the trial date was to be advanced to August 14, 1979, one day earlier than the previously scheduled trial date of August 15 and the date for which the “bring up” had been prepared. A revised “bring up” order for August 14, 1979, was never prepared by the office of the Trial Coordinator and, as a consequence, James Harris was never brought from prison to the court on August 14, 1979. Since the prisoner was not brought to court for trial on August 14, the court continued the trial until the following week, specifically, August 22, a postponement that cannot be considered to be unreasonable in view of the large volume of criminal cases administered by the criminal court system of Philadelphia County. As a result, the Commonwealth filed, on August 15, 1979, a second petition for extension under Rule 1100 since the court on August 14 had ordered the case continued until August 22, 1979, a date which was several days past the first extension deadline date of August 17, 1979. While ultimate responsibility for the delay occasioned by this administrative breakdown may be attributable to the criminal justice system and more specifically to the office of the Trial Coordinator, we determine that the nature of this administrative oversight is not such judicial delay as is contemplated by Mayfield. Furthermore, we hold this lapse does not demonstrate any lack of due diligence on the part of the prosecution.

Nor do we believe that the failure of the Commonwealth to attempt to have the matter relisted for trial between August 14 and the August 17 extension deadline was a demonstration of a lack of due diligence. Rather, the direction of the court on August 14 that the matter be continued and be scheduled for trial on August 22 was a matter exclusively within the control of the trial judge. Commonwealth v. Wroten, 305 Pa.Super. 340, 345, 451 A.2d 678, 681 (1982). The extension deadline of August 17 was tolled, of course, by the petition for extension filed by the Commonwealth on August 15, 1979. While it is true that every effort should be made to conform to the better practice of providing for disposition of a petition for extension prior to the expiration of the deadline, it is certainly clear that the prosecutor and the court handled this case in an alert and expeditious fashion but were precluded, by the circumstances of the case, from conducting the extension hearing prior to the expiration of the deadline.

At the next listing of the case, on August 22, 1979, the defense requested a continuance within which to file a petition to dismiss the charges against appellant and the court consequently rescheduled the trial for September 10, 1979. The petition of the Commonwealth to extend the time for trial and the defense petition to dismiss the charges were consolidated for disposition at a hearing on September 6, 1979 before the distinguished Judge Ned L. Hirsch, who granted the extension petition and extended the rule to September 12, 1979, effectively denying the petition to dismiss. The trial ultimately commenced and concluded on September 10, 1979.

We conclude that this period of delay between August 22 and September 10, 1979, was caused neither by a lack of due diligence on the part of the Commonwealth nor by the inability of the court to try the accused, specifically, judicial delay. Rather, this period of delay was the result of the continuance requested by the defense to enable (1) counsel to prepare and file a petition to dismiss under Rule 1100(f) and (2) the court to schedule a hearing thereon. We cannot hold that the Commonwealth failed to procéed with due diligence either prior to or throughout this period since the record of the combined hearing reveals that despite diligent efforts, the Commonwealth could not bring appellant to trial on August 14, 1979 or August 22, 1979, although it was ready to proceed to trial on both of these dates and had been ready to proceed to trial on several listing dates prior to the original run date of August 6, 1979. Our conclusion that the Commonwealth proceeded with due diligence is strengthened by the fact that the public defender was unable to express any opposition to this expressed position of the Commonwealth at the second and final extension hearing. Thus, we do not believe that the hearing judge erred when he found that the Commonwealth had exercised due diligence. Since we earlier concluded that administrative oversight and not judicial delay was the cause of the continuance of the trial from August 14 through August 22, 1979, and have also concluded that the delay from August 22 through September 10 resulted from the effort of defense counsel to proceed with its petition to dismiss under Rule 1100, we need not consider whether the requirements of Mayfield, supra, were met.

We conclude, therefore, that all periods of delay beyond the mandatory period, namely, August 6, 1979, were properly justified by the grant of the two extensions under Rule 1100(c). See Commonwealth v. Shelton, 469 Pa. 8, 14-15, 364 A.2d 694, 697 (1976). We affirm the order of the Common Pleas Court which denied the motion of appellant in arrest of judgment and remand for a new trial in accordance with the order of the Common Pleas Court.

Order affirmed.

WIEAND, J., concurs in the result.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 3928.

      . Although the order appealed from is interlocutory, such an order is appealable when a new trial has been granted. Pa.R.A.P. 311(a)(5); See Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977); Commonwealth v. Nugent, 291 Pa.Super. 421, 423 n. 3, 435 A.2d 1298, 1299 n. 3 (1981); Commonwealth v. Chenet, 237 Pa.Super. 226, 352 A.2d 502 (1975), rev'd on other grounds, 473 Pa. 181, 373 A.2d 1107 (1977); Commonwealth v. Fox, 181 Pa.Super. 292, 124 A.2d 628 (1956).

      . Since the 180th day fell on Sunday, August 5, 1979, it was properly omitted from computation in ascertaining the run date. 1 Pa.C.S.A. § 1908.

      . The text of Rule 1100(c) as was then in effect provided:
      Rule 1100. Prompt Trial.
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
      In its present form, Rule 1100(c), (as amended October 22, 1981, effective January 1, 1982) conforms with the requirements of Commonwealth v. Mayfield, infra and provides:
      (c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
      (2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
      (3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court's inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
      (4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.

      . The text of the extension hearing held August 2, 1979 is as follows:
      THE COURT: • I have 2-6 normal run date of 8-6.
      • Commonwealth petition filed 7-17. Timely filed.
      • 2-13 to 2-22, voluntary defender unprepared. Less than 30 days.
      • Not chargeable, 4-19 5-30, wrong defendant brought down.
      • 5-30—7-13, motion to suppress denied. Judge Cipriani recused himself.
      • 7-13—8-15, Judge Shiomos recused himself had defendant previously on a jury trial.
      ■ It would appear that there are three court continuances and one defense continuance. No Commonwealth continuance, as far as I can ascertain from this record.
      CEPPARULO: • Your Honor, our indication for July 13, is that Judge Shiomos recused himself upon the advice of the district attorney who advised him that he had had the defendant prior.
      THE COURT: • Well, nevertheless, it was Judge Shiomos’ decision. It wasn’t a Commonwealth continuance, it was Judge Shiomos who continued it.
      GALLAGHER: • We were ready on call.
      CEPPARULO: • We also moved in this case to relist the case.
      THE COURT: • Well, again, that would be the court’s fault.
      • Based on the entire record I will find due diligence. The listing is now 8-15. We will make it August 17.

      . The first continuance was requested by the public defender, while the second and third were charged to the court, the second because the wrong defendant was transported from the prison for the trial and the third when Judge Cipriani recused himself after denying the motion of appellant to suppress.

      . While the matter of judicial delay was not actually addressed by Judge Blake upon the record of the extension hearing of August 6, 1979, the transcript of the proceedings of July 13, 1979, before Judge Shiomos demonstrates that Judge Shiomos considered this Mayfield requirement before he relisted the case for what he determined was the earliest available trial date.


author: BECK, Judge:

text:
    462 A.2d 732
    COMMONWEALTH of Pennsylvania v. Robert Frederick HAZEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 13, 1982.
    Filed June 17, 1983.
    Petition for Allowance of Appeal Denied March 29, 1984.

      John H. Yoder, Smethport, for appellant.
    Jay Paul Kahle, Smethport, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   BECK, Judge:

Robert Frederick Hazen appeals from the lower court’s denial of his PCHA Petition. Finding no merit in appellant’s contentions, we affirm.

On September 12, 1977, appellant entered a counselled guilty plea to the general charge of murder. Following a degree of guilt hearing, the lower court determined appellant guilty of third degree murder and sentenced him to 10-to-20 years imprisonment. Appellant took no direct appeal, but subsequently filed this petition challenging the voluntariness of his guilty plea and the effectiveness of his guilty plea counsel. The lower court held two evidentiary hearings and denied the petition, prompting this appeal.

Appellant’s Petition claims (1) that the colloquy preceding his guilty plea was defective; and (2) that he was denied effective assistance of counsel. The specific allegations regarding the guilty plea are that he was not advised of the various degrees of homicide or the requirement of “malice,” that he was not asked all the questions required by Pa.R. Crim.P. 819, that he was under a tranquilizing drug at the time of the entry of his plea, and that he was not advised of the right of counsel on appeal.

Rule 319 mandates that the trial court conduct an on-the-record examination of the defendant which establishes that the plea is voluntarily and understanding^ tendered. The comment to the rule requires that the colloquy between the court and the accused elicit the following information:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) requires that the rule 319 colloquy include a demonstration that the defendant understands the nature of the charges against him, including a record that the elements of the crime charged were outlined in understandable terms. Appellant relies on Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976) which found reversible error in failure to mention the element of malice in a murder charge, and Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977) which reversed a conviction for failure to ask question (4) on the presumption of innocence.

A party on appeal who challenges a guilty plea must first have filed a motion to withdraw the guilty plea in the court where it was entered. Pa.R.Crim.P. 320, 321. In the instant case, however, appellant’s PCHA Petition also claims ineffective assistance of counsel, and in such cases we permit appellate review of a guilty plea colloquy without compliance with the rules. Commonwealth v. Weiss, 289 Pa.Super. 1, 432 A.2d 1020 (1981).

Our Supreme Court has recently ruled that when considering a Petition to withdraw a guilty plea after sentencing, “a showing of prejudice on the order of manifest injustice” is required before a withdrawal is justified. Otherwise, if a guilty plea could be easily retracted after sentencing, the accused would be encouraged “to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe.” Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591, 593 (1982) (citations omitted). Moreover, guilty plea colloquies conducted without reference to each element of the offense do not, per se, result in involuntary pleas. At most, they shift the burden to the Commonwealth to prove voluntariness through other methods. Commonwealth v. Thompson, 302 Pa.Super. 19, 448 A.2d 74 (1982).

The record shows that in the instant case the lower court held a lengthy colloquy specifically informing appellant that although he was entering a plea to murder generally, it would not rise above third degree. The court carefully outlined the various rights that appellant would be forgoing by his plea, and range of sentences possible for a third degree murder conviction. Appellant indicated that he had discussed the plea and its consequences with his counsel and that he was satisfied with counsel’s representation. Counsel testified at the PCHA hearing that he recalled meeting with appellant at the county jail thirteen or fourteen times prior to the plea and on several of those occasions discussing the elements and penalties of the various degrees of murder. In fact, counsel specifically recalled reading to and discussing with appellant the sections on murder in Jarvis’ Pennsylvania Crimes Code. Although after the fact testimony by a defendant’s counsel is not intended to replace an independent judicial conclusion as to the defendant’s knowledge of the charges to which he is pleading, it may, if sufficiently specific, be considered in the review of all the circumstances surrounding the plea. Commonwealth v. Hines, 496 Pa. 555, 437 A.2d 1180 (1981); Commonwealth v. Gardner, 499 Pa. 263, 452 A.2d 1346. In Hines, counsel had a “murky memory” concerning his discussions with the accused, but appellant’s counsel recalled the exact content of his advice regarding the plea, including his reading appellant the elements of murder.

Recent decisions of this Court have analyzed the validity of guilty plea colloquies in light of intent and totality of the circumstances rather than a formalistic approach to the specific words exchanged between the trial court and the accused. Thus, absent a showing of actual prejudice, we have upheld the validity of the colloquy despite failure to utter the phrase “presumed innocent,” Commonwealth v. Siebert, 305 Pa.Super. 321, 451 A.2d 552 (1982); or failure to advise the defendant concerning right to trial without a jury, Commonwealth v. Warren, 307 Pa.Super. 221, 453 A.2d 5 (1982); or that a conviction required jury unanimity, Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982). This approach is consonant with the ruling of the Supreme Court in Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982) which stated that “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’......Therefore, in addressing appellant’s claim of manifest injustice requiring withdrawal of the plea, ... we will review all circumstances surrounding the entry of the plea” (at 420, citations omitted). “In a case where ample, competent evidence in support of a guilty plea is made a matter of record, allegations of manifest injustice arising from the guilty plea must go beyond a mere claim of lack of technical recitation of the legal elements of crimes” (Id., at 422). Accordingly, we conclude that appellant has failed to establish manifest injustice requiring the withdrawal of his guilty plea.

Appellant contends also that his plea was not knowing and voluntary because he was under the influence of a tranquilizing drug. Although appellant was given medication after his purported suicide attempt, counsel, who had seen appellant many times prior to his taking the medication, opined that appellant was competent and showed no signs of being influenced by medication at the hearing. Moreover, appellant participated in a lengthy colloquy with the lower court, cogently answering each question addressed to him. We are satisfied that appellant knowingly and voluntarily entered his plea.

Appellant also raises several challenges to counsel’s effectiveness. In reviewing allegations of ineffectiveness, “our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Counsel will not be deemed ineffective for failing to raise or pursue a meritless issue. Commonwealth v. Wilson, 482 Pa. 350, 353, 393 A.2d 1141, 1143 (1978).

Appellant argues first that counsel was ineffective because he was being paid by appellant’s parents to persuade appellant into pleading guilty, and thus was not effectuating appellant’s best interests. Although counsel was paid by appellant’s parents, he testified that his fee was not contingent upon persuading appellant to plead guilty and that at all times, appellant, and not appellant’s parents, was his client. Counsel further testified that his advising appellant to plead guilty was based upon his review of the case and his personal belief that first degree murder was a possibility if the case went to trial. We are satisfied from counsel’s testimony that there was no conflict of interest in counsel’s representation and his advice to plead guilty. Counsel analyzed the numerous eyewitnesses to the unprovoked shooting of an unarmed victim and appellant’s contention that he was too intoxicated to recall what had happened, and told appellant that first degree murder was a distinct possibility if the matter went to trial. Counsel’s frank appraisal of appellant’s situation can hardly be said to be ineffective assistance of counsel. Moreover, the record clearly indicates that the decision to plead guilty was appellant’s.

Finally, appellant contends that counsel was ineffective in waiving his right to be tried within 180 days under Pa.R.Crim.P. 1100, and requesting a continuance without appellant’s knowledge or permission. Counsel, however, testified that the Commonwealth was ready for trial on the day of the waiver, but appellant did not want to proceed. Counsel was waiting for psychiatric reports that he hoped would support an insanity defense. Since appellant requested the waiver, and counsel had legitimate reason to seek it, the contention is without merit.

Affirmed.

      . We do not address this issue since all matters cognizable on appeal may be considered in the PCHA hearing, in which appellant was represented by appointed counsel. Commonwealth v. Miller, 246 Pa.Super. 392, 371 A.2d 896 (1977).

      . Although inexplicably omitted from the record before us on this appeal, the lower court also found that the video tape testimony of appellant’s attending physician further established appellant’s volun-tariness.