text:
    473 A.2d 185
    COMMONWEALTH of Pennsylvania v. Garland J. ELAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 7, 1983.
    Filed March 16, 1984.

      Robert S. Robbins, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   BROSKY, Judge:

This is an appeal from the order dismissing appellant’s Post Conviction Hearing Act (PCHA) petition after a hearing. Appellant contends that trial counsel was ineffective for failing to: (1) attack the validity of a line-up identification; (2) obtain film from a bank camera; (3) have bullets taken from appellant’s home suppressed; and (4) object to the introduction of the bullets at trial. We disagree and, accordingly, affirm the order of the lower court.

We accept the history of the case stated in appellee’s brief as follows:

This case is entering its twelfth year of litigation. Its long history began on May 12, 1971, when the victim, Anthony Norris, was unlocking the door of his truck parked at the northwest corner of Ridge and Susquehanna Avenues in Philadelphia. Norris noticed defendant and an accomplice standing behind his truck. A few seconds later, defendant was standing next to Norris, holding a gun to his face. Then, while his cohort rifled Norris’ pockets, taking two wallets, defendant shot the victim in the left forehead. The gun was close enough to leave powder burns on Norris’ face. Norris was hospitalized for twelve days and could not work for three months.
The next day, May IB, 1971, defendant presented a check in the victim’s name for cashing at the First Pennsylvania Bank, where a teller, Phyllis Hudgins, recognized the check as being on the bank’s stolen checks list. As she was taking the check to the bank manager, Hudgins turned and saw defendant running out the door. During her encounter with defendant, she had been only two or three feet from him.
Defendant was arrested on May 14, 1971. Small caliber bullets similar to the one used against the victim were found in his home, and he was positively identified in a line-up by the bank teller.
A pre-trial motion to suppress statements, physical evidence, and a photographic identification by the victim was heard February 4, 1972, by the Honorable Ethan Allen Doty and denied on March 15, 1972. Defendant was tried April 20, 1972, before the Honorable Juanita Kidd Stout, sitting without a jury, and was found guilty of assault and battery with intent to murder, aggravated robbery, and carrying a firearm without a license. After denying post-trial motions, Judge Stout sentenced defendant to a total of thirteen and a half to seventeen years in prison.
Defendant then appealed to the Superior Court, which affirmed the judgment of sentence per curiam. Commonwealth v. Elam, 228 Pa.Superior Ct. 753 [312 A.2d 797] (1973). On April 4, 1974, the Pennsylvania Supreme Court reversed and granted defendant a new trial. Commonwealth v. Elam, Allocatur Docket No. 1276.
Up to this point in the proceedings, defendant was represented by the Public Defender’s Association of Philadelphia. Defendant then retained private counsel on April 29, 1974, to represent him at his new trial.
Before this trial, defendant filed a motion to suppress the victim’s photographic identification and the bank teller’s line-up identification. The late Honorable Merna Marshall heard this motion on May 31, 1974, and denied it. At the suppression hearing, the assigned detective testified that, prior to being placed in the line-up, defendant was advised of his right to be represented by counsel at the line-up, and signed a waiver of this right. The signed waiver was introduced at the hearing and defendant’s counsel examined it.
On July 15-18, 1974, defendant was retried before the Honorable Angelo A. Guardino and a jury. Defendant was convicted on Bills No. 417 (assault and battery with intent to murder, assault and battery, and aggravated assault and battery) and 448 (aggravated robbery). Post-trial motions were denied, and on May 2, 1975, defendant was again sentenced to thirteen and a half to twenty-seven years of imprisonment.
Defendant appealed to the Superior Court. It affirmed the judgment of sentence per curiam. Commonwealth v. Elam, 238 Pa.Superior 740 [357 A.2d 182] (1976). Defendant’s petition for allowance of appeal to the Pennsylvania Supreme Court was denied on June 1, 1976. Commonwealth v. Elam, Allocatur Docket No. 2399 (1976).
Nearly three years later, on February 20, 1979, defendant filed a pro se P.C.H.A. petition, alleging ineffective assistance of his privately retained counsel. On May 15, 1979, new counsel was appointed for defendant, his third attorney in this case. On February 26,1981, an evidentiary hearing was held before the Honorable Edward J. Blake. Defendant’s petition was denied on March 18, 1982. This appeal followed.

Appellant first contends that trial counsel was ineffective for not attacking the line-up as having tainted the in-eourt identification because he was not given legal representation there. Appellant acknowledges that counsel unsuccessfully attempted to suppress the identification, but not on this ground. Counsel will be found to have been effective as soon as it is determined that his decision had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Contrary to appellant’s brief and his testimony at the PCHA hearing, the record reveals that appellant was not represented by counsel at the line-up because he had executed a waiver of that right. The waiver form was introduced at the suppression hearing and examined by trial counsel. It thus would have been frivolous for counsel to have attacked the line-up on a lack of representation ground. Counsel may not be held ineffective for failing to pursue a frivolous course of action. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). Thus, we find no merit to appellant’s first issue.

Appellant’s second contention is that trial counsel was ineffective for failing to obtain film from a bank camera portraying events on May 13, 1971. He testified at the PCHA hearing that he had informed counsel that he believed this film would exculpate him by proving that it was not he who had attempted to cash the victim’s check.

The defendant bears the burden of proof in a PCHA hearing. Shore, supra. The only evidence presented concerning the bank film aside from appellant’s testimony was a stipulation to the testimony of the bank’s security coordinator. She would have testified that, while a camera had been in operation, she did not know whether the transaction in question had been filmed, but that even if it had been, it would have been destroyed at the end of three years.

Based on this evidence, we believe appellant failed in two respects to carry his burden of proving counsel ineffective. First, he did not prove that a film of the events ever existed. Certainly, counsel cannot be held ineffective for failing to obtain the film if it never existed. Second, trial counsel did not enter his appearance until April 29, 1974. Assuming, arguendo, that the film had ever existed, it would have been destroyed by May 13, 1974. Appellant did not establish in his testimony, the date upon which he allegedly requested trial counsel to investigate the possible existence of the film. Thus, appellant failed to prove that any request he might have made was prior to the date by which the film, had it ever existed, would have been destroyed. Again, we will not find counsel ineffective for not following a course of action which would have been frivolous. Therefore, appellant’s second issue merits no relief.

Appellant next contends that trial counsel should have moved to suppress bullets taken from appellant’s home when he was arrested because they were outside the scope of the search warrant. However, it would have been frivolous for counsel to so move, because this issue had been litigated in a suppression hearing before appellant’s first trial.

[W]here the legality of a search and seizure [has] already been litigated in another case in which the defendant was a party, it [does] not have to be relitigated in a subsequent case. This holding, of course, is subject to the caveat that if the defendant alleges new facts tending to show that the seizure was in fact illegal, then another suppression hearing is required.

Commonwealth v. Bastone, 262 Pa.Super. 590, 598, 396 A.2d 1327, 1331 (1979) (citations omitted). Appellant did not allege that there had been any new facts requiring a new suppression hearing and, thus, did not show that he had been entitled to one. Therefore, counsel was not ineffective in failing to move to suppress the bullets. See Shore, supra.

Appellant’s final contention is that trial counsel should have objected to the introduction at trial of the bullets on the ground that they were irrelevant because they were of a different caliber than the bullet which struck the victim. Again, appellant has apparently misperceived the record. Counsel did, indeed, object to the bullets on relevancy grounds and was overruled. Thus, he certainly cannot be held ineffective for not doing so. In any event, the evidence at trial established that: the robber’s gun was of a small caliber; the gun itself was never recovered; and the bullet fired during the robbery was too distorted to be typed. We conclude, therefore, that the bullets were certainly relevant to imply that appellant possessed a small caliber gun and thus link him to the robbery. Therefore, even had counsel not objected to the bullets on the ground of relevancy, such failure would not have constituted ineffectiveness, since the claim was not of arguable merit.

Finding no merit to any of appellant’s must affirm the order of the lower court. contentions, we Order affirmed.

      . 19 P.S. § 1180-1 et seq. transferred to 42 Pa.C.S.A. § 9541 et seq.

      . Although appellant arranged his argument with two sections he actually presents four independent grounds in support of one general claim of ineffective assistance of trial counsel.

      . The issue of trial counsel’s effectiveness is properly before us since this is the first stage of the proceedings that appellant has been represented by counsel other than trial counsel. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

      . Assuming arguendo, that the line-up was tainted, we still do not believe appellant would prevail. He appears to be laboring under the misapprehension that the victim identified appellant at the line-up. However, the record shows that the only witness who identified appellant was the bank teller. Her in-court identification almost certainly had a basis independent of the line-up. Thus, again, any challenge to the conduct of the line-up would have been frivolous. See Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980).

      . We note that appellant was not tried for a crime in the bank for which the teller’s identification would have been necessary. Even had a bank film revealed that someone else had presented the victim’s check, there remained overwhelming evidence of his guilt, particularly in light of the fact that the robbery was committed by two men.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    473 A.2d 189
    William BRADNEY, Thomas Andress and Robert Kerns, T/A Grove Roofing and Siding Company v. Dennis SAKELSON and Gloria Sakelson, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1983.
    Filed March 16, 1984.
    Petition for Allowance of Appeal Denied July 9, 1984.

      Donald A. Semisch, Willow Grove, for appellants.
    Marjorie C. Lawrence, Willow Grove, for appellees.
    Before SPAETH, President Judge and CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

On January 24, 1977, William Bradney, Dennis Sakelson and Ervin Bender formed a joint venture to trade as Terwood Joint Venture. These three individuals brought to the partnership various assets which they personally owned. Among the assets which Dennis Sakelson brought to the joint venture was real estate on Sunset Lane owned by him and Gloria Sakelson, his wife. On October 1, 1977 Dennis Sakelson entered into an oral agreement whereby the appellee, Grove Roofing and Siding Company, agreed to install a new built-up roof on the Sunset Lane property, held by the Sakelsons as tenants by the entireties. The work was completed three weeks later and the appellee submitted a written invoice in the amount of $5446.00. On January 1, 1978 the joint venture was dissolved by a written agreement in which Dennis Sakelson consented to assume responsibility for the roof installed by the appellee.

On March 6, 1979 the appellee commenced an action in assumpsit against the Sakelsons seeking payment of the sum of $5446.00. The Sakelsons filed an Answer and New Matter denying that Dennis entered into an oral agreement for the installation of the roof, and claiming that Gloria is an improper defendant and that the written agreement, executed upon dissolution of the joint venture, is invalid. The appellee filed a reply and on March 11, 1980, oral deposition of Gloria Sakelson was taken. A hearing was held on July 7, 1981. Following testimony and the introduction of Mrs. Sakelson’s deposition into evidence, the court found that Gloria Sakelson permitted her husband to act as her agent and to contract for the improvement of jointly-owned property. The court found that the Sakelsons were obligated to the appellees in the principal amount of $5446.00. Exceptions were subsequently filed and denied and this appeal followed.

On appeal, the following questions have been presented for our review: 1) Did the trial court properly consider the facts in rendering its decision? 2) Did an agency relationship exist between the Sakelsons as husband and wife? 3) Does the Statute of Frauds bar a claim against Mrs. Sakelson? 4) Did the oral contract between Dennis Sakelson and the appellee merge into the written agreement dissolving the joint venture? 5) Did the trial court properly grant relief in this instance?

The Superior Court’s scope of review in this matter is as follows:

Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982); Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Super. 177, 180, 395 A.2d 1373, 1375 (1978). The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Eddystone Fire Co. No. 1 v. Continental Insurance Cos., 284 Pa.Super. 260, 263, 425 A.2d 803, 804 (1981). Furthermore, the verdict winner is entitled to have the evidence considered in a light most favorable to himself. Marryshow v. Nationwide Mutual Insurance Co., [306] Pa.Super. [233, 237], 452 A.2d 530, 532 (1982).

Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 524, 463 A.2d 1017, 1021 (1983); See also: 2401 Pennsylvania Avenue Corp. v. Federation of Jewish Agencies, 319 Pa.Super. 228, 466 A.2d 132 (1983).

In view of this standard and after a thorough review of the record, we find that the trial court properly considered all relevant facts and amply supported its findings by competent evidence.

The basic elements of agency are the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking. Restatement (Second) of Agency, § 1, Comment b (1958). See: Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980). Taking specific note of the marital relationship, our Court has expressed the following:

Neither husband nor wife by virtue of the relation has power to act as agent for the other. The relation is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority may indicate it in the case of husband or wife. Thus, a husband habitually permitted by his wife to attend to some of her business matters may be found to have authority to transact all her business affairs. Restatement, Agency 2d, § 22(b).
The law of Pennsylvania is in accord with the Restatement. (Citations omitted).

Tonuci v. Beegal, 188 Pa.Super. 66, 70, 145 A.2d 885, 888 (1958); See also: Williston on Contracts, Vol. II, § 270 A. Moreover, under Pennsylvania law, there is a presumption with respect to property held by the entireties that either spouse has the power to act for both without specific authority, so long as the benefit of such action inures to both. J.R. Christ Construction Co. v. Olevsky, 426 Pa. 343, 232 A.2d 196 (1967); Sgro v. Sgro, 259 Pa.Super. 425, 393 A.2d 900 (1978); Miller v. Bare, 457 F.Supp. 1359 (W.D.Pa.1978). “The presumption then stands unless and until the other spouse establishes by a preponderance of the evidence that, at the time the contract was made and the services were performed under it, the contracting spouse was in fact not authorized to act for and to bind her in contracting for improvement of the entireties property, the benefits of which ran in favor of both tenants by entire-ties.” J.R. Christ Construction Co. v. Olevsky, 426 Pa. at 349-50, 232 A.2d at 199.

In the present case, in addition to the marital relationship, we have the testimony of Mr. Sakelson:

I had my authority, the authority from my wife in the beginning when the partnership and the joint venture were put together. She knew what was going on. I asked her, I explained to her what was going on; and I had her authority to do that then.
The only property that was not put into the Sakelson properties was our personal home; and that was the only thing she was concerned about.
The other Sakelson Properties that were put into the joint venture, I had her authority to do it. Once I had her authority, then I did it on my own.

This testimony is corroborated by the deposition testimony of Mrs. Sakelson. At the time she was deposed, Mrs. Sakelson stated: that her husband has, over many years, been in the real estate management and investment field; that he has taken ownership of various properties in her name and his; that she did not handle any part of the real estate deals; that she, when necessary, signed deeds and other papers; that she did not enter into any negotiations for the purchase or sale of any property owned by her; that it was customary for her husband to handle the problems involving these real estate deals; that she did not recall signing any papers selling the Sunset Lane property; and that she signs a lot of things and is not really concerned about what they are.

This evidence clearly establishes that Mr. Sakelson was authorized to and indeed did act as Mrs. Sakelson’s agent in this matter. Therefore, Mrs. Sakelson is liable for the improvements made to the property held by the entire-ties which were contracted for by her husband. Cf., John M. Rouse, Inc. v. Logan, 268 Pa.Super. 376, 408 A.2d 514 (1979) (Absent evidence that the husband intended to act as his wife’s agent when he ordered a contractor to do work on residential property of the husband and wife, the wife could not be held liable to the contractor).

The Sakelsons argue that any claim against Gloria is barred by the Statute of Frauds. They cite section 3 of the statute to support their argument.

Promise to answer for the debt of another.
No action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized.

Act of April 26, 1855, P.L. 308, § 1, 33 P.S. § 3. The debt in this case is not the debt of another. It is the debt of Gloria Sakelson as owner of the Sunset Lane property as a tenant by the entirety. The Statute of Frauds, consequently, is inapplicable in the case at bar and a writing, signed by Gloria Sakelson, is not necessary to enforce a claim against her.

The Sakelsons also allege that the oral contract for the installation of the roof merged into the written termination agreement. Therefore, they argue, Gloria Sakelson is released from any liability under the oral contract since she was not specifically held liable under the written agreement. We disagree with this rationale.

Merger is a matter of intention, to be determined from the terms and subject matter of the contract, or from the conduct of the parties thereto, and where there is an evident intent to substitute one agreement for another, and consideration appears, the contract is binding. 8 P.L.E. § 296. The oral agreement, concerning the installation of the roof, was between Dennis Sakelson and an agent of the appellee. The written termination agreement, which delineated the debts which each partner was to assume after the joint venture ceased, involved Dennis Sakelson, William Bradney and Ervin Bender. The termination agreement does not contain an integration clause, and does not encompass the same obligations as, nor involve the same parties that are bound by, the oral agreement. Under the circumstances, we can discern no intention by the parties that the oral contract merged into the termination agreement.

Finally, the Sakelsons aver that the trial court erroneously found against Gloria on the basis of unjust enrichment. We find this averment to be absurd. The cause of action here is in contract. The trial court based its decision on the actual contract price, not on unjust enrichment.

Affirmed.

SPAETH, President Judge, concurs in the result.

      . At no time during the existence of the joint venture was title to the real property ever transferred from the Sakelsons.


author: MONTEMURO, Judge: WICKERSHAM, Judge,

text:
    473 A.2d 193
    COMMONWEALTH of Pennsylvania v. James A. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1983.
    Filed March 16, 1984.

      Joseph C. Mesics, Public Defender, Lebanon, for appellant.
    Daniel J. McDevitt, Assistant District Attorney, Lebanon, for Com., appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the order of the Court of Common Pleas of Lebanon County denying the motion of appellant, James A. Miller, for expungement of a charge of burglary from his criminal record. Because we conclude that the lower court erred in its determination, the order should be vacated.

The facts relevant to the present appeal are as follows: On October 21, 1963, the appellant, James Miller, was charged with the burglary of a restaurant in Lebanon, Pennsylvania. After twenty hours of interrogation, without counsel being present, the appellant admitted the charges and signed a confession to that effect. On November 22, 1963 the appellant, on the advice of counsel, entered a plea of guilty to the burglary charge. He was sentenced to pay a fine of one hundred ($100.00) dollars, and to a term of eight (8) to sixteen (16) years imprisonment.

Subsequently, after exhausting his state court remedies, the appellant petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The appellant alleged, inter alia, that his trial counsel was ineffective in that he did not inform the appellant that he represented the victim of the alleged burglary in an unrelated civil matter. The Federal Court granted the requested relief and entered an Order directing that appellant be released from custody within sixty (60) days unless during that time he was retried with the effective assistance of counsel. See United States ex rel. James A. Miller v. David N. Myers, 253 F.Supp. 55 (E.D.Pa.1966).

The appellant then filed, in the court below, a motion to suppress his confession. This motion was never ruled on; however, on September 19, 1966, an order was issued releasing the appellant from prison. The appellant was never retried on the burglary charge.

On May 14, 1981, the appellant filed his motion to expunge the burglary conviction from his criminal record. Hearings were held on October 1, 1981 and February 1, 1982. In an order dated February 23, 1982, the Honorable G. Thomas Gates denied the appellant’s motion to expunge. This appeal followed.

The appellant raises only one issue for our consideration; i.e., whether the lower court erred in denying the expungement motion, without requiring the Commonwealth to meet its burden of proof. That burden was delineated by our supreme court in Commonwealth v. Wexler, 494 Pa. 325, 331, 431 A.2d 877, 880 (1981): “[I]f the Commonwealth does not bear its burden of proof beyond a reasonable doubt ... or admits it is unable to bear its burden of proof ..., the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” (Emphasis in original). This standard was further explained by the court in Commonwealth v. Chacker, 320 Pa.Super. 402, 408-411, 467 A.2d 386, 389-90 (1983), where it was stated:

We read the unequivocal language in Wexler to foreclose explicitly a hearing court from continuing to shift the burden of persuasion to the petitioner seeking ex-pungement merely because the Commonwealth made out a prima facie case of guilt on the part of the petitioner.2 Thus, under Wexler, the burden to present compelling evidence against expungement is placed upon the Commonwealth if it has failed to establish the accused’s guilt beyond a reasonable doubt (e.g., before the court of common pleas,) or the Commonwealth “admits that it is unable to bear its burden of proof.” (Footnote omitted).

A review of the transcripts of the two hearings at which expungement was at issue, reveals that, with respect to the appellant’s guilt, the Commonwealth produced only the following “evidence:”

Q. Taking you back to this 1963, No. 1 [sic, 10], September; you say you weren’t represented by Mr. Whitman then?
A. 1963?
Q. Yes.
A. One of them I was.
Q. Yes, and—
A. And one of them was overturned in Federal Court.
Q. Do you remember Lou’s restaurant?
A. Yes sir.
Q. Do you remember going in there and burglarizing that?
A. I remember I was charged with burglary, yes sir.
Q. You were charged with it?
A. Yes sir.
Q. And you plead [sic] guilty with Jim Whitman right along side of you?
A. Yes, sir, but that was overturned by Federal Court.

(N.T. October 1, 1981, at 12). The total import of this exchange is that the appellant did indeed plead guilty to a charge of burglary on the advice of counsel who was later found to be ineffective by the Federal District Court for the Eastern District of Pennsylvania. Our case law makes it abundantly clear that a guilty plea entered by a defendant who has not been afforded the effective assistance of counsel is a nullity. Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982); Commonwealth v. Belleman, 300 Pa.Super. 209, 446 A.2d 304 (1982). Moreover, the “signed confession” alluded to in the portion of the lower court opinion which is cited by Judge Wickersham (see Dissenting Opinion at 197) is not a part of the record, and therefore cannot be considered. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981).

Thus, we must conclude that, on the record before us, the Commonwealth has failed to sustain its burden of proving the appellant guilty beyond a reasonable doubt. The Commonwealth relies exclusively on the guilty plea and the “signed confession” as proof of the appellant’s guilt. Although either would sustain the Commonwealth’s burden if properly before us, we can only make our decision based on the facts contained in the record. The record is devoid of proof of appellant’s guilt.

Finally, the only evidence introduced by the Commonwealth in support of its fallback position — i.e., producing compelling evidence to justify retention of the arrest record — was the arrest record itself. The Commonwealth advances no reasons why the arrest record standing alone compels the retention of the appellant’s record, nor do we perceive any. Thus, we would be forced to find that the Commonwealth had failed to meet its burden in the instant case. Consequently, the order of the court below is vacated, and the case remanded with instructions to expunge the burglary charge from the appellant’s arrest record.

Vacated and Remanded. Jurisdiction is not retained.

WICKERSHAM, J., files dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I would affirm the order of the Honorable G. Thomas Gates denying appellant’s motion to expunge.

On October 21, 1963, appellant, James Miller, was charged with having committed a burglary at the Lou & U Restaurant in Lebanon, Pennsylvania. Appellant signed a confession admitting that he committed the burglary. On November 22, 1963, the appellant entered a plea of guilty to the charge. He was sentenced to pay a fine of $100.00, to pay costs, and to undergo imprisonment for a term of not less than eight (8) nor more than sixteen (16) years.

After exhausting his state court remedies, appellant petitioned the United States District Court for the Eastern District of Pennsylvania for a writ of habeas corpus. On April 5, 1966, that court directed that appellant be released from custody within sixty (60) days unless during that time he was retried with the effective assistance of counsel. Appellant was not retried within the sixty (60) day period, which resulted in his eventual release.

On May 14, 1981, eighteen years later, appellant moved to expunge this conviction from his criminal record. Hearings were held on October 1, 1981 and February 1, 1982. In an order dated February 23, 1982, the Honorable G. Thomas Gates denied appellant’s motion to expunge. This appeal timely followed.

Appellant states the issue on appeal as follows:

Whether the Trial Court erred in denying Appellant’s motion for Expungement, without requiring the Commonwealth to meet its burden of proof?

Brief for Appellant at 2.

In Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976), this court held for the first time that upon petition and hearing an accused’s record can be expunged if the evidence at the hearing justifies the expungement. In that case, the accused was discharged at his preliminary hearing because the Commonwealth failed to make out a prima facie case. The court held that the Commonwealth bore the burden to prove that the retention of the accused’s arrest record was justified.

Since Malone, a number of cases have discussed the expungement of an accused’s record.

[I]n Wert v. Jennings, [249 Pa.Super. 467, 378 A.2d 390 (1977) ], we held that due process required the Commonwealth to present compelling evidence justifying the retention of the arrest record of an osteopathic surgeon who had been indicted by a grand jury for perjury and conspiracy but who was never tried because the indictments were subsequently nol pros’d upon the district attorney’s confession that he would be unable to establish a prima facie case at trial. Again, in Commonwealth v. Iacino, [270 Pa.Super. 350, 411 A.2d 754 (1979)], we affirmed an order directing the expungement of the arrest record of an accused who had been indicted for conspiracy and narcotics offenses but who was never tried because the district attorney nol pros’d the indictments. Finally, in Commonwealth v. Rose, [263 Pa.Super. 349, 397 A.2d 1243 (1979) ], we ordered the expungement of the arrest record of an individual who had been acquitted of retail theft because the Commonwealth failed to establish her guilt at trial before a district magistrate.

Commonwealth v. Briley, 278 Pa.Super. 363, 368, 420 A.2d 582, 585 (1980). In each of these cases, the Commonwealth was unable to prove the accused’s guilt beyond a reasonable doubt.

Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981), Commonwealth v. Welford, 279 Pa.Super. 300, 420 A.2d 1344 (1980), and Commonwealth v. Briley, supra, all held that a person who successfully completes an Accelerated Rehabilitative Disposition (“ARD”) is entitled to have his arrest record expunged. In Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), the Pennsylvania Supreme Court held that a juvenile who entered into a consent decree pursuant to the Juvenile Act was entitled to have her arrest record expunged after the decree expired. In all of these cases, the courts noted that special programs with specific rehabilitative goals were involved. The legislative policies underlying these programs require that an individual’s record be expunged after successful completion of these programs.

In contrast to the above cases, which place a heavy burden on the Commonwealth to justify the retention of the accused’s arrest record, is Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978). In that case, the Commonwealth had made out a prima facie case of guilt but prosecution was terminated for failure to comply with Pa.R. Crim.P. No. 1100. The court held that under those circumstances the accused does not have a constitutional right to expungement of this arrest record unless he affirmatively establishes his non-culpability. “[WJhere the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will then have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied.” Id., 258 Pa.Superior Ct. at 223, 392 A.2d at 765.

In Commonwealth v. Wexler, supra, however, the Pennsylvania Supreme Court placed a heavier burden on the Commonwealth. The court decided that the Commonwealth must present more than a prima facie case; rather, the Commonwealth must be able to prove the accused’s guilt beyond a reasonable doubt. “[I]f the Commonwealth does not bear its burden of proof beyond a reasonable doubt ..., or admits that it is unable to bear its burden of proof ..., the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” Commonwealth v. Wexler, supra 494 Pa. at 331, 431 A.2d at 880 (emphasis omitted).

We read the unequivocal language in Wexler to foreclose explicitly a hearing court from continuing to shift the burden of persuasion to the petitioner seeking ex-pungement merely because the Commonwealth made out a prima facie case of guilt on the part of the petitioner. Thus, under Wexler, the burden to present compelling evidence against expungement is placed upon the Commonwealth if it has failed to establish the accused’s guilt beyond a reasonable doubt (e.g., before the court of common pleas,) or the Commonwealth ‘admits that it is unable to bear its burden of proof.’

Commonwealth v. Chacker, 320 Pa.Super. 402, 408-411, 467 A.2d 386, 389-90 (1983) (footnote omitted).

Pursuant to Wexler, supra, the Commonwealth must bear the burden to present compelling evidence against expungement unless it has established the accused’s guilt beyond a reasonable doubt. In the instant case, the appellant confessed to committing the burglary. He pleaded guilty and was convicted. A federal district court judge directed that appellant be retried because appellant’s counsel represented the victims of his crime in an unrelated civil matter. The district court did not find that the Commonwealth failed to carry its burden of proof. I would find that the Commonwealth had proved appellant’s guilt beyond a reasonable doubt. Therefore, the Commonwealth did not bear the burden to present compelling evidence against expungement.

It is not clear now whether we are to shift the burden to appellant to prove his non-culpability before his record may be expunged (Commonwealth v. Miller, supra) or whether we are to balance appellant’s right to be free from the harm attendant to preserving the arrest record against the Commonwealth’s interest in maintaining the record. In the instant case, it is immaterial which alternative we choose because both choices lead to the same result.

If appellant was required to prove his non-culpability before his record could be expunged, it is clear that he did not meet that burden. In fact, appellant presented no evidence at either hearing that tended to prove his innocence.

If the test to be applied is a balancing of the appellant’s interests in expunging the record against the Commonwealth’s interests in maintaining the record, I would hold that the Commonwealth’s interests outweigh the appellant’s. As Judge Gates noted in his Opinion:

Here the Commonwealth had a strong case against defendant Miller, including a signed confession. Miller has a long record of criminal misconduct[] and no employment record to speak of. He has demonstrated no specific adverse consequences which may result from maintenance of the arrest record. We, therefore, find that the Commonwealth’s interest in maintaining the arrest record for purposes of sentencing outweighs defendant’s interest in having the record expunged.

Lower ct. op. at 2.

The lower court properly refused to expunge appellant’s record.

      . 18 Pa.C.S.A. § 3502.

      . In any event, the “signed confession" was made by the appellant after twenty hours of interrogation without counsel. See opinion of Davis, J., 253 F.Supp. 55 at p. 56. In September, 1966, after the Federal District Court ordered that the appellant be granted a new trial, a motion to suppress the confession was filed. The burglary charge was never retried.

      . In an opinion dated April 5, 1966, Judge Davis of the United States District Court for the Eastern District of Pennsylvania found that appellant’s counsel was at the same time representing the owners of the Lou & U Restaurant, which appellant allegedly had burglarized, in an unrelated civil matter. Counsel did not inform the appellant of this potential conflict. Therefore, Judge Davis held that appellant was denied the right to effective assistance of counsel.

      . We note that in each of the cases cited in this opinion, the arrest that the petitioner requested to be expunged was the only stain on his or her record. Expunging the arrest in each of those cases left the petitioners with spotless records. In this case, appellant’s criminal record dates back to 1950 and is three (3) pages long. We do not believe that expunging this offense, even if such expungement were justified, would serve any purpose.


author: MONTEMURO, Judge:

text:
    473 A.2d 197
    Shana L. NEWCOMER v. Michael E. NEWCOMER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1984.
    Filed March 16, 1984.

      Allen H. Smith, York, for appellant.
    John D. Miller, Jr., York, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order entered in a support action in the Court of Common Pleas of York County.

The text of the order is somewhat unusual, therefore, we have included it in full below:

In this case, the specific Order of the Court is that this Defendant shall promptly stop his business and start looking for work full-time. He is to fill out the job search forms supplied by the Domestic Relations Office, and comply with that office in every respect in that connection.
We would like a status report two months from today. We would also like, when available, and we understand that will be in the next week or so, the Defendant’s 1982 income tax return. We want to make it crystal clear that if this Defendant fails to comply with this Order, we are going to pick him up on an Attachment and incarcerate him.
We direct that a copy of this Order be sent to the Department of Public Assistance.

Appellant father and appellee mother were married in 1978, and are the parents of two minor children. The parties separated in November of 1982.

Appellee and the children are currently receiving Public Assistance in the amount of $206 per month. Appellant presently works in his own business and has done so since August, 1982. He is drawing about $60 per week out of the business, and is otherwise being supported by his grandparents.

A hearing on this matter was originally scheduled for April 25, 1983, but was continued because appellant had not yet filed his 1982 tax return. A hearing was finally held on May 24, 1983. Appellant once again failed to bring his 1982 tax return or the books of his business to the hearing, offering as an excuse the fact that his accountant was still working on them. After brief questioning of appellant — he was the only witness who testified — the court entered the order set forth above.

From what we can surmise, the court below must have felt that appellant’s business was a losing business, that appellant should not be permitted to stay with it, and that instead he should be out looking for work at which he could realize his earning potential. Aside from the unusual decision to order appellant to shut down his business — and we emphasis that we do not decide the propriety of this action here — we cannot sustain an order based on an incomplete record.

The record here is deficient in several respects.

First, the question of appellant’s earning capacity was not touched upon at the hearing. There is no testimony as to what appellant earned at any prior job, how long he has been working in his present field, his educational level, etc. A court may not base its decision on a conjectured ability to pay. Commonwealth ex rel. Tizer v. Tizer, 214 Pa.Super. 444, 257 A.2d 683 (1969).

Secondly, there is an absence of testimony regarding the circumstances of appellant’s leaving his prior employment. From what we can glean from a prior order in this case, his former employer went out of business. Yet we do not know when this occurred, or, what efforts appellant made following that to secure employment. This is an extremely relevant question, Commonwealth v. Trimble, 197 Pa.Super. 644, 180 A.2d 92 (1962), and one which we insist be fully explored on remand.

Lastly, as stated earlier, appellant failed to produce his 1982 tax return or the books of his business at the hearing. Consequently, the court below, as it freely admitted, “had no idea of the defendant’s gross and net income.” (Slip Opinion, p. 2). Additionally, appellant provided no documentation of his claim that he was taking only $60.00 a week from the business, and the lower court seemed to doubt his credibility in this respect. Id. A court would be hard pressed to determine whether an individual is engaged in a “losing business” without this information. It may well be that appellant’s business is a profitable one, but that he is not taking an appropriate amount of funds out of it; or, it could be that documentation would not support his testimony that he is drawing only $60 a week. We would suggest to the court below that when faced with such a situation, it should employ the powers described at Pa.R. C.P. 1910.13 to ensure that the necessary documents are provided.

Having so held, we nonetheless feel it is appropriate to express some concern over what we see as a potential practical consequence of the lower court’s actions. Essentially, appellant has been ordered to close his present business and look for work full time. It is certainly fitting that appellant seek employment commensurate with his earning potential, and obtain such work if it is available. See Commonwealth ex rel. Raitt v. Raitt, 203 Pa.Super. 226, 199 A.2d 512 (1964). In addition, we recognize that compliance with the Domestic Relations Section’s job search procedures will involve considerable time. Nevertheless, to the extent that appellant is able to continue his business while job searching, it would seem that the wisest course would be to permit him to do so. What we fear is the situation where, after continued search, appellant is unable to find employment. If he has ceased operating his business he will have neither the business nor the $60 per week income. He will have few alternatives at that juncture other than to become a public charge. While we by no means wish to condone a party’s failure to support his family to the utmost .of his ability, and recognize that one cannot avoid support by staying with a losing enterprise, Commonwealth v. Testa, 226 Pa.Super. 585, 323 A.2d 199 (1974); Commonwealth ex rel. Wills v. Bonetti, 190 Pa.Super. 335, 154 A.2d 404 (1959), we believe that the best course is to attempt to achieve these objectives in a manner which at the same time does not discourage efforts at self sufficiency.

The Order is reversed and case remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

      . We note that but for that portion of the order which directs appellant to promptly cease operating his business, this would not qualify as a final order. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).


author: HOFFMAN, Judge:

text:
    473 A.2d 200
    TIMBERPLACE ASSOCIATES d/b/a Place One Apartments v. Wasyl POSPOLYTA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1983.
    Filed March 16, 1984.

      M. Patricia Harkins, Lafayette Hill, for appellant.
    Robert J. Edelmayer, Norristown, for appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in dismissing his petition to open and/or strike judgment because he had failed to file a supporting brief within the period mandated by Rule 302(d) of the Montgomery County Rules of Civil Procedure. We disagree and, accordingly, affirm the order of the court below.

On September 16, 1981, because appellant defaulted on his rent payments and continued to occupy the leased premises, appellee, the lessor, commenced a civil action against appellant seeking a judgment in ejectment and for money damages in the amount of the unpaid rent. On the same date, appellee confessed judgment against appellant. On September 29, 1981, appellant filed a petition to open and/or strike the judgments. After appellee answered the petition, the lower court, by order dated December 4, 1981, directed that the case be placed on the argument list upon the filing of a praecipe and, if necessary, the taking of depositions. On December 14, 1981, appellee filed the praecipe. On February 11, 1982, the lower court issued an order dismissing the petition to open and/or strike judgment because appellant had failed to file a supporting brief within the thirty day period mandated by Rule 302(d) of the Montgomery County Rules of Civil Procedure. This appeal followed.

Rule 302(d), in effect at the time of the instant case, provided:

Briefs required — In Interlocutory matters, 302(c)(1), briefs or memoranda of law may be submitted by counsel to the court administrator at any time prior to the date of argument or to the hearing judge at the time of argument. In Appealable matters, 302(c)(2), the moving party or parties shall file its brief within 30 days of the filing of the motion, petition or preliminary objection, and shall file the same by giving three copies of the brief to the court administrator’s office, who shall stamp the same received, and by serving concurrently therewith copies upon all other parties of record. The court administrator shall distribute to the judge or judges assigned to hear those matters, a copy of said brief or briefs.
The responding party or parties, within 30 days of the filing and service of the moving party’s brief, shall likewise file three copies of its brief with the court administrator’s office, who shall stamp the same received, and shall serve concurrently therewith copies upon all other parties of record. The court administrator shall distribute to the judge or judges assigned to hear those matters, a copy of said brief or briefs.
If the briefs of either the moving party or responding party are not timely filed within the period above stated, unless the time shall be extended prior thereto by the court for good cause and reason shown, the court administrator shall notify the court. The court may then, or at any time subsequent thereto:
(1) Dismiss the motion, petition, preliminary objection or other matter, where the moving party has failed to comply, or
(2) Grant the requested relief where the responding party has failed to comply, or
(3) Direct the matter to be listed for argument, at which time the complying party or parties shall alone be heard and/or
(4) Impose such other sanction upon a non-complying party as it shall deem proper.
No extension of time for the filing of briefs by agreement of counsel shall be permitted.
The moving party shall file a praecipe in duplicate with the prothonotary at the time it files its Appealable matter and the prothonotary shall timestamp the praecipe. The moving party shall serve a copy of the praecipe on the opposing counsel or unrepresented party along with the motion or petition.

(Emphasis added). It is clear that appellant has violated the rule’s mandates in two respects: first, in failing to file a praecipe with the prothonotary contemporaneously with his filing the petition to open and/or strike, and second, in failing to file a brief within 30 days of filing the petition to open and/or strike. Therefore, we find that the lower court properly exercised its discretion under 302(d)(1) in dismissing the petition because of appellant’s noncompliance with Rule 302(d).

Moreover, the case of Hesselgesser v. Glen-Craft Contractors, Inc., 287 Pa.Superior Ct. 319, 430 A.2d 305 (1981), directly supports our affirming the lower court’s dismissal order. In Hesselgesser, the appellant filed a praecipe but failed to file a brief within the thirty day period mandated by Rule 302(d) of the Montgomery County Rules of Civil Procedure. This Court, accordingly, affirmed the lower court’s order dismissing appellant’s petition to open a default judgment on that ground. We stated that “appellant initially violated Rule 302(d) by failing to file a brief within thirty days of December 27, 1979, the day on which it filed its petition to open judgment.” Id., 287 Pa.Superior Ct. at 325-26, 430 A.2d at 308. Here, appellant’s violation of Rule 302(d) is more egregious because he failed to file even a praecipe.

Accordingly, because appellant has given us no reason to disturb the lower court’s order dismissing his petition to open and/or strike judgment, we affirm.

Affirmed.

      . The February 11, 1982 order read: "AND NOW, this 11th day of February 1982, Plaintiff [appellee] having filed a Praecipe to have the Petition to Open and/or Strike Judgment listed for argument and thirty (30) days having passed without the requisite filing of supporting briefs, as required by Rule 302(d), the Petition is therefore dismissed."

      . The applicable version of Rule 302 was adopted November 23, 1970, and amended January 8, 1979, January 29, 1979, June 22, 1979, and October 27, 1980.

      . The version of Rule 302(d) in effect at the time Hesselgesser was decided compelled dismissal upon a party's failure to comply with the brief-filing requirement. The version of the rule applicable to the instant case gives the court discretion in determining the appropriate sanction. See Montgomery County Civil Rule 302(d).

      . Appellant’s argument that appellee was required to give notice of its filing of a praecipe pursuant to Rule 301 of the Montgomery County Rules of Civil Procedure is without merit because Rule 301 has no application to the instant case. Rule 301 (effective October 1, 1979; amended October 29, 1980), entitled "Argument Court — Long List”, expressly provided that “Long list matters shall consist of Zoning Appeals, Motion for New Trial or Judgment N.O.V., and Exceptions to Adjudications of the court, and such other matters as may be directed by order of the court.” Montgomery County Civil Rule 301(c). In contrast, Rule 302, entitled "Argument Court — Short List”, provided that “Short list matters” would consist of: (1) Interlocutory matters; and (2) Appealable matters, including petitions to open or strike judgments. See Montgomery County Civil Rule 302(c).
      Here, whether appellee gave notice of its praecipe-filing is irrelevant because, under Rule 302(d), appellant was the party required to file the praecipe and give notice thereof to the other party. See Montgomery County Civil Rule 302(d) ("The moving party shall file a praecipe in duplicate with the prothonotary at the time it files its Appealable matter____"). Here, appellee decided to file the praecipe simply "in an effort to get the matter moving along”. (Brief for Appellee at 11). The propriety or effect of appellee’s action is not at issue and we do not address it at this time. We note, parenthetically, however, that the record indicates that appellee did give notice to appellant of its praecipe-filing by letter dated December 11, 1981.
      We also find appellant’s argument that the lower court erred in failing to file its opinion for nearly six months after receiving the notice of appeal meritless and unsupported by authority. See Pa.R. A.P. 1925(a).


author: SPAETH, Judge: BROSKY, Judge,

text:
    473 A.2d 572
    In the ESTATE OF Arthur STEWART, Deceased. Appeal of Eva S. HIBBERT, Emma, James, Joseph Martin, David Engle, Everett A. Keene, Ray Engle and Walter Todd, Jr.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1982.
    Filed Feb. 24, 1984.
    Petition for Allowance of Appeal Granted July 11, 1984.

      James W. Appel, Lancaster, for appellants.
    Melvin Eugene Newcomer, Lancaster, for appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   SPAETH, Judge:

This appeal is from an order dismissing exceptions to an order denying probate of a will. Appellant argues that under the will she is entitled to appoint the entire estate to herself, subject to the payment of the pecuniary legacies. We agree and therefore reverse.

Arthur Stewart died on March 8, 1979, leaving a three-page handwritten will, as follows:

Nov. 30-78
My last will and testmont
I Arthur Stewart Box 99 Maple Shade Rd. Christiana Pa RD 2
Being in sound mind and memory hereby publish and declair this is my last will and testmont I direct that all my bills and furenal expenses be paid first.
I have two insurance policys with General Steel Ind. in saint Lewis Mo. my holdings are a 31 acre farm on Maple shade Rd. Colarine Township lane Co. Two savings account one in Quarryville Farmers bank one in South Eastern in Atglen also a checking acc in each. I direct that all my bills be paid and satified by my good friend Eva S Hibbert who is my exsector I also direct that Eva S Hibbert does not have to be bonded or enter security to form a formal account Mrs Hibbert is to appoint who ever she wants to help her settle up the estate.
My friend Eva Hibbert who has been so helpfull to me and Mother she has taking up so much of her time taking care of Mother and me and would not take any money for her service, She is to take and keep what ever she wants from the house or farm and then sell the rest at her convience.
Mrs. Hibbert has taking care of my business for four years and knows all about my estate so she can handle my estate as she sees fit
/s/ Arthur Stewart
To my friends I leave a small rememberance after the estate is settled up.
George Cornog 2000.00
Alice Day 2000.00
Asbury & Mary Passwaters 2000.00
Alberta McNiss 3000.00
Alice Cooper 1000.00
Shirley O’Neal 1000.00
Shannon O’Neal 1000.00
Brandon O’Neal 1000.00
Jim & Emma Martin for coming to visit mother often 2000.00
Joseph Martin 1000.00
Evert Keene 1000.00
David Engle 1000.00
Earl Ewing & Tish 2000.00
Walter Todd, Jr. 2000.00
I have set my hand this day of Nov. 80 1978
/s/ Arthur Stewart

Appellant sought to exercise a general power of appointment under the will, and she requested that the entire estate be awarded to her, subject to payment of the pecuniary legacies. On April 29, 1980, two nephews of the testator filed objections, and after audit the trial court entered an adjudication in which it concluded that the will did not give appellant a power of appointment; that appellant was entitled to take only whatever personal, tangible property she wanted from the house or farm; and that there was an intestacy as to the residue of the estate.

As noted, the will provides that appellant should “handle my estate as she sees fit.” Appellant argues that this provision gives her a general, presently exercisable power of appointment over the residue of his estate.

A power is general if the donor of the power does not restrict the class of persons in whose favor it may be exercised; a power is presently exercisable if the donee of the power may exercise it by inter vivos, as well as by testamentary conveyance. See generally V American Law of Property § 23.4 at 467 (A. James Casner ed. 1952) (“The donee of a general power of appointment, where the power is presently exercisable, is effectively the beneficial owner of the property subject to the power. Although technically he has no title to the property until he exercises the power, he can obtain the title, and therefore enjoy all the benefits of ownership, simply by going through a mere formality.”).

The trial court concluded that the word “ ‘handle’ means to manage or operate,” and is a “word of administration [rather than] a word of disposition.” Adjudication at 6. We find this conclusion unpersuasive, for several reasons.

To begin, the trial court ascribed to the testator a skill with words that he didn’t have — as the face of the will demonstrates. Words are misspelled {e.g., “furenal”; “declair”; “exsector”; “convience”); sentences are incomplete, or ungrammatical, or both {e.g., “my friend Eva Hibbert who has been so helpfull to me and Mother she has taking up so much of her time taking care of Mother and me and would not take any money for her service.”); and administrative and dispositive provisions are mixed up, first one and then the other, in no logical order.

The trial court suggested that to create a general power of appointment in appellant, the testator should have used the word “dispose” instead of “handle.” But “dispose” is a fancy word that wouldn’t have occurred to the testator. Furthermore, “handle” is not only a word of administration. The expression, “You handle it!” is common, and is understood as conferring a very general authority, or power.

Moreover, the trial court’s narrow construction of “handle” is inconsistent with two features of the will.

Perhaps the more striking of these features is that the testator signed the will in the middle — immediately after his statement that appellant “knows all about my estate and she can handle my estate as she sees fit.” Then the testator wrote “next page,” and on the next page he listed the pecuniary legacies and signed his name again. This is consistent only with a broad construction of “handle.” Apparently the testator believed that when he had given appellant the power to “handle my estate as she sees fit,” he had completed his will. For otherwise he wouldn’t have signed his name. The way to construe this will is to think of it as a will giving appellant the power to handle the entire estate as she sees fit, with a codicil giving pecuniary legacies.

The second, almost as striking, feature of the will is the distinction the testator made between appellant and the legatees. While briefly characterizing the legatees as “my friends” to each of whom he was “leavpng] a small rememberance,” the testator referred to appellant as “my very good friend,” explaining that appellant “has been so help-full to me and Mother she has taking up so much of her time taking care of Mother and me and would not take any money for her service,” and “has taking care of my business for four years,” and further manifesting his confidence in appellant by providing that she “does not have to be bonded or enter security to form a formal account” and may “appoint whoever she wants to help her settle up the estate.” The testator’s intention to be more generous to appellant than to any of the legatees is unmistakable.

These features of the will powerfully support the view that “handle” should not be narrowly but broadly construed. It appears that by the first, signed, part of his will the testator intended to confer a very general authority, or power, upon appellant as a person for whom he had special regard (“Here is my estate. You handle it!”), but that by the second “codicil”, part, he decided to confine this authority, or power, slightly, by providing that certain friends were each to receive “a small rememberance.”

It is a fundamental principle that in construing a will, we must give effect to the testator’s intention, and we can’t do that unless we consider every feature and all of the words of the will. In re Estate of Kohler, 463 Pa. 150, 344 A.2d 469 (1975); Burleigh Estate, 405 Pa. 373, 175 A.2d 838 (1961). In construing “handle” as though it gave appellant only the power to administer the estate, the trial court failed to give effect to this principle.

We understand, and indeed have some sympathy with, the trial court’s unwillingness to construe “handle” as broadly as appellant urges — as giving her a general, presently exercisable power of appointment over so much of the estate as remains after payment of the legacies. For appellant wishes to appoint to herself, which is to say, not to the testator’s family. But to be unwilling to permit an estate to go outside the family is to beg the question. The question is, How did the testator want his estate to go? If he wanted it to go outside the family, then it must go that way. For a court’s responsibility is not to protect the family’s interests but to give effect to the testator’s intention. See Kish v. Bakaysa, 330 Pa. 533, 199 A. 321 (1938); In re Agostini’s Estate, 311 Pa.Super. 233, 457 A.2d 861 (1983). Here, the testator’s intent is clear.

The residue of this estate is some $97,000. By construing “handle” narrowly, the trial court declared that this residue goes by intestacy. For if the direction, “she can handle my estate as she sees fit,” doesn’t empower appellant to dispose of the residue, nothing in the will disposes of it — as the trial court recognized. The intestate heirs are five nephews and one grandnephew. Of these six persons, the testator named five as pecuniary legatees. Thus, under the trial court’s adjudication, persons to whom the testator said he intended to leave only “a small rememberance”, of $1,000 or $2,000, would instead each receive, in addition to a legacy, $16,450.04 (one sixth of the residue), while appellant, for whom the testator expressed such special regard, would receive only the proceeds of the sale of the items she took from the house or farm ($16,452.53).

We see no need thus to defeat the testator’s intention. Sometimes, of course, a court can’t avoid finding an intestacy. But a will should be construed to “dispose of [the testator’s] estate____‘unless [such a construction] does violence to the language of the will.’ ” Farrington Will, 422 Pa. 164, 168, 220 A.2d 790, 793 (1966) (quoting Biles v. Biles, 281 Pa. 565, 568, 127 A. 235, 236 (1924). See also Vandergrift Estate, 406 Pa. 14, 26, 177 A.2d 432, 438 (1962). Our construction, that the testator’s direction that appellant should “handle [the testator’s] estate as she sees fit” gave her a general, presently exercisable power of appointment, does no violence to the language of the will. “[N]o technical form of words is required to create a power of appointment . . . .” In re Estate of Kohler, supra, 463 Pa. at 153, 344 A.2d at 471. See also Keffalas Estate, 426 Pa. 432, 437, 233 A.2d 248, 251 (1967); American Law of Property § 23.10, at 483 (A. James Casner ed. 1952); RESTATEMENT OF PROPERTY § 323 comment a (1940). Our construction further gives effect to the entire will, and implements a scheme of distribution plainly consistent with the testator’s intention as manifest in his will.

We therefore conclude that the trial judge should have approved appellant’s proposed schedule of distribution.

The order of the trial court is reversed and the case is remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. I would agree with the court below that the term “handle” was intended to be a “word of administration” rather than a “word of disposition” and, therefore, that appellant was not given a general power of appointment. Initially, I note that:

“It is, of course, a cardinal rule that a will, is to be construed according to the intent of the testator.” To ascertain this intent, a court examines the words of the instrument and, if necessary, the scheme of distribution, the circumstances surrounding execution of the will and other facts bearing on the question. Should the testator’s intent remain uncertain, a court resorts to canons of construction to supply the testator’s likely intent. The intent of a testator must appear with reasonable certainty, such that there can be little doubt of his intent. If, from the language of the document, the scheme of distribution, and the relevant facts and circumstances, a court cannot determine a testator’s intent with reasonable certainty, it must resort to canons of construction.

Estate of Sykes, 477 Pa. 254, 257, 383 A.2d 920, 921 (1978) (citations and footnote omitted).

The words in the will which gives rise to the issue in controversy concerning the disposition of the residuary estate are as follows:

Mrs. Hibbert has taking [sic] care of my business for four years and knows all about my estate so she can handle my estate as she sees fit.
s/ Arthur Stewart

Appellant first contends that the meaning of this clause is made ambiguous by the word “handle” and, thus, that we must resort to canons of construction. Alternatively, she argues that the clause indicates the testator’s actual intent to confer upon her a power of appointment of the residuary estate.

In support of the latter contention, appellant cites the case of Estate of Seifert, 22 Lehigh County Law Journal 425 (1947). There, the testatrix devised her estate to one Susan Hudson, “to be disposed of as she sees fit.” The court concluded that Hudson had been given a power of appointment and that she had effectively exercised it in favor of herself.

Instantly, the court below determined that “handle” is not an ambiguous term, but means “to manage or operate” and is a word of administration; while dispose means “to get rid of” and is a word of disposition. It therefore concluded that the present will conferred on appellant only the power to administer or manage the estate, while in Seifert, the testatrix conferred the power to determine the individuals entitled to receive.

I agree with this determination by the court below and find that it is reinforced by other language in the will. As noted by the majority, we must consider every feature and all of the words of the will in order to give effect to the testator’s intention. In re Estate of Kohler, 463 Pa. 150, 344 A.2d 469 (1975). In so doing, I note that in the clause immediately preceding the one in question, the testator stated that appellant was to take and keep whatever she wanted from the house and farm and then sell the rest at her convenience. Clearly, the testator understood quite well the meaning of the words “take, keep and sell.” If the will gave appellant a general power of appointment, she certainly had the power to take and keep whatever she wanted from the house and farm regardless of the language that specifically enabled her to do this. If the testator had intended that appellant have the power to take all of the residuary estate, there would have been no reason to include the language in the last sentence.

Thus, if we were to conclude that appellant did have the power to dispose of the residuary estate, we would be rendering the immediately preceding language nugatory. “It is fundamental that the construction of a will which renders portions of it nugatory is not to be preferred to one which makes every word operative.” Wright Estate, 391 Pa. 405, 410, 138 A.2d 102, 108 (1958). Therefore, I would conclude that the testator’s intent was to give her something of the estate but not all of it.

I thus agree with the court below that it can be determined from examination of the language of the will that the testator did not intend to confer the power to dispose of the estate on appellant, only the power to administer it and, accordingly, I would affirm the trial court’s order.

      . Appellant suggests that this clause was probably the result of a layman’s misconception that an executor must liquidate everything in order to settle an estate and that he simply wanted her to be able to take property in kind. While this may be a plausible explanation, for purposes of construction of this will, we can regard it as no more than mere speculation. "In expounding a will, it is not what the Testator may have meant, but what is the meaning of his words. It does not extend to a consideration of what Testator might have said but did not say...." Swope Estate, 383 Pa. 494, 496, 119 A.2d 57, 58 (1956).


text:
    March 2, 1984.
    473 A.2d 646
    Am. Lumber, Appellant v. Murphy, Appellant
    (at Nos. 737, 3039 & 3335),
    (at 2857).
    Argued November 17, 1983.
    Richard J. Conn, for appellant (at Nos. 737, 3039 & 3335), and for appellee (at No. 2857);
    Kenneth M. Rodgers, for appellants (at No. 2857) and for appellees (at Nos. 737, 3039 & 3335).

      Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   The orders of the trial court dated February 3, 1982, September 27, 1982, and November 3, 1982, are vacated. Case remanded for further proceedings. We do not retain jurisdiction.


text:
    473 A.2d 646
    Bobinas, Appellant, v. Gordon Cherrybon, Appellant, v. Gordon
    (at No. 1711).
    (at No. 1712).
    Argued January 17, 1984.
    Edward E. Kopko, for appellants;
    Betty F. Perry, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Orders of the Court of Common Pleas affirmed.


text:
    473 A.2d 647
    Bouch, Appellants, v. Wise.
    Petition for Allowance of Appeal Denied July 20, 1984.
    Submitted October 14, 1983.
    W. Parker Ruddock, for appellants;
    H. Heilman, Jr., for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    473 A.2d 647
    Commonwealth v. Bowser. Appeal of Joe Baker.
    Reargument Denied April 18, 1984.
    Submitted September 23, 1983.
    Joe Baker, appellant, in propria persona;
    Charles J. Rehkamp, Jr., District Attorney, for Commonwealth, appellee;
    Robert Bowser, participating party, in propria persona.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Affirmed.


text:
    473 A.2d 647
    Commonwealth v. Dennis, Appellant.
    Argued November 22, 1983.
    Irene H. Cotton, for appellant;
    Leslie Ann Sudock, Assistant District Attorney, for Commonwealth, appellee.

      Before MONTEMURO, WATKINS and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 648
    Commonwealth v. Dickens, Appellant.
    Submitted November 14, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 648
    Commonwealth v. Hairston, Appellant.
    Petition for Allowance of Appeal Denied July 11, 1984.
    Argued November 17, 1983.
    Augustine J. Rieffel, for appellant;
    Frances G. Gerson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   The judgment of sentence is vacated and the case remanded for resentencing. Jurisdiction is not retained.


text:
    473 A.2d 648
    Commonwealth v. Hairston, Appellant.
    Submitted May 24, 1983.
    Janette Baisley-Worstell, Assistant Public Defender, for appellant;
    Debbie O’Dell, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 648
    Commonwealth v. Holloway, Appellant.
    Petition for Allowance of Appeal Denied June 13, 1984.
    Submitted November 8, 1983.
    Richard S. Levine, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 649
    Commonwealth v. Jones, Appellant.
    Submitted November 7, 1983.
    Marilyn C. Zilli, Assistant Public Defender, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The judgment of sentence of the learned Dauphin County Common Pleas Court Judge Clarence C. Morrisson is affirmed.

POPOVICH, J., concurred in the result.


text:
    473 A.2d 649
    Commonwealth v. Larry, Appellant.
    Petition for Allowance of Appeal Denied May 14, 1984.
    Submitted October 7, 1983.
    Arnold L. New, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Order affirmed.


text:
    473 A.2d 649
    Commonwealth v. Nelson, Appellant.
    Petition for Allowance of Appeal Denied Sept. 5, 1984.
    Submitted October 14, 1983.
    Joseph C. Barnhart, for appellant;
    Richard A. Hernán, Jr., District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    473 A.2d 650
    Commonwealth v. Nicholson, Appellant.
    Submitted November 4, 1983.
    Martin L. Trichon, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Order affirmed.


text:
    473 A.2d 650
    Commonwealth v. Oehrle, Appellant.
    Argued January 10, 1984.
    John H. Martin, III, for appellant;
    Christopher S. Serpico, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Order and judgment of sentence affirmed.


text:
    473 A.2d 650
    Commonwealth v. Pacewicz, Appellant.
    Submitted November 4, 1983.
    John Joseph Cerra, for appellant;
    Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Order affirmed.


text:
    473 A.2d 650
    Commonwealth v. Portmann, Appellant.

      Submitted November 7, 1983.
    William C. Cramer, Jr., for appellant;
    David W. Rahauser, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 651
    Commonwealth v. Rainey, Appellant.
    Submitted September 9, 1983.
    Steven M. Dranoff, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, CAVANAUGH and HOFFMAN, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    473 A.2d 651
    Commonwealth v. Risko, Appellant.
    Petition for Allowance of Appeal Denied June 28, 1984.

      Argued October 18, 1983.
    Richard J. Orloski, for appellant;
    David Stephen Smith, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   The judgment of sentence of the learned Lehigh County Common Pleas Court Judge John E. Backenstoe is affirmed.


text:
    473 A.2d 651
    Commonwealth v. Rock, Appellant.
    Submitted October 24, 1983.
    Ronald Segal, for appellant;
    jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Affirmed.

BROSKY, J., filed a memorandum concurring opinion.


text:
    473 A.2d 652
    Commonwealth v. Unger, Appellant.
    Petition for Allowance of Appeal Denied July 10, 1984.

      Submitted November 8, 1983.
    Richard S. Levine, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    473 A.2d 652
    Commonwealth v. White, Appellant.
    Submitted October 21, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 652
    Commonwealth v. Williams, Appellant.
    Submitted March 31, 1983.

      Richard S. Levine, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 652
    Hilbert v. V.F.W. Home Assn. of Monroe Cnty., Appellant.
    Argued October 12, 1983.
    Edward H. Hoffner, for appellant;
    Edwin Krawitz, for appellee.
    Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.
   The judgment of the court is affirmed.


text:
    473 A.2d 653
    King, Appellant, v. Palguta.
    Argued March 30, 1983.
    Jon Mark Lewis, for appellant;
    Orville L. Hardman, for Brooks, appellee;
    John Joseph Dirienzo, Jr., for Caver, appellee.

      Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    473 A.2d 653
    Marine National Bk. v. Hepler. Appeal of David R. Hepler.
    Argued October 27, 1983.
    Evan Edward Adair, for appellant;
    John A. Spaeder, for appellees.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   The order of the lower court is hereby affirmed.


text:
    March 6, 1984.
    473 A.2d 653
    Abdullah, Appellants, v. Jefferson Hospital.
    Argued February 15, 1984.
    Waliyyuddin Abdullah, appellant, in propria persona;
    David L. Topel, for appellees.

      Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Order affirmed.

CAVANAUGH, J., filed a memorandum dissenting statement.


text:
    473 A.2d 653
    Commonwealth v. Gill, Appellant.
    Submitted February 15, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    John A. Kenneff, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    March 9, 1984.
    473 A.2d 654
    Washington Industrial Corp. v. Ciaffoni, Appellant.
    Petition for Allowance of Appeal Denied June 29, 1984.

      Submitted November 8, 1983.
    Eugene J. Julian, for appellant;
    Phillip J. Binotto, Jr., for appellees.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Appeal from order dated September 18, 1981 quashed. Appeal from order dated April 7, 1982 affirmed. Appeal from order of December 31, 1982 quashed.


text:
    473 A. 2d 654
    Commonwealth v. Andres, Appellant.
    Submitted November 4, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 654
    Commonwealth v. Brown, Appellant.
    Submitted November 22, 1983.
    Basil G. Russin, Chief Public Defender, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 655
    Commonwealth v. Broxton, Appellant.
    Submitted September 9, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.

SPAETH, President Judge, concurred in the result.


text:
    473 A.2d 655
    Commonwealth v. Burke, Appellant.
    Submitted October 14, 1983.
    Daniel R. Lovette, III, Assistant Public Defender, for appellant;
    D. Long, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Cambria County Common Pleas Court Judge Caram J. Abood is affirmed.


text:
    473 A.2d 655
    Commonwealth v. Capps, Appellant.
    Argued November 17, 1983.
    Paul Benjamin, for appellant;
    Clifford A. Goldstein, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    473 A.2d 656
    Commonwealth v. Evans, Appellant.
    Petition for Allowance of Appeal Denied Oct. 31, 1984.
    Submitted October 24, 1983.
    Barnaby Wittels, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    473 A.2d 656
    Commonwealth v. Goldberg, Appellant.
    Petition for Allowance of Appeal Denied July 10, 1984.
    Argued September 6, 1983.
    David Kanner, for appellant;
    Stephen G. Heckman, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY* POPOVICH and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 656
    Commonwealth v. Goss, Appellant.
    Submitted February 18, 1982.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Edward F. Browne, Assistant District Attorney, for Commonwealth, appellee.

      Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 656
    Commonwealth v. Green, Appellant.
    Submitted October 7, 1983.
    Douglas M. Johnson, Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 657
    Commonwealth v. Hall, Appellant.
    Submitted October 7, 1983.
    David Zwanetz, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Order affirmed.


text:
    473 A.2d 657
    Commonwealth v. Hayward, Appellant.
    Submitted November 18, 1983.
    Stokes E. Mott, Jr., for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 657
    Commonwealth v. Hughes, Appellant.
    Submitted November 28, 1983.
    James M. Pierce, for appellant;
    Yram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   Order affirmed.


text:
    473 A.2d 658
    Commonwealth v. Johnson, Appellant.

      Submitted October 7, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Order affirmed.


text:
    473 A.2d 658
    Commonwealth v. Jones, Appellant.
    Submitted October 3, 1983.
    Stephen A. Seidel, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 658
    Commonwealth v. Melvin, Appellant.
    Argued May 11, 1983.
    Michael Alan Shechtman, for appellant;

      Robert Ciaffa, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

WICKERSHAM, J., concurred in the result.


text:
    473 A.2d 659
    Commonwealth v. Mills, Appellant.
    Submitted January 3, 1984.
    Patrick G. Murphy, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and DEL SOLE and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 659
    Commonwealth v. Paige, Appellant.
    Petition for Allowance of Appeal Denied Aug. 27, 1984.

      Submitted October 3, 1983.
    Charles A. Cunningham, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 659
    Commonwealth v. Pomeroy, Appellant.
    Argued November 15, 1983.
    Christopher J. Brill, for appellant;
    Stephen B. Harris, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Judgment of sentence vacated and case remanded for resentencing.

Jurisdiction is relinquished.


text:
    473 A.2d 659
    Commonwealth v. Ramsey, Appellant.

      Submitted November 8, 1983.
    Paulette J. Balogh, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 660
    Commonwealth v. Samson, Appellant.
    Submitted December 14, 1983.
    Bert Ryland Wiggs, III, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Affirmed.


text:
    473 A.2d 660
    Commonwealth v. Shultz, Appellant.
    Petition for Allowance of Appeal Denied June 29, 1984.
    Submitted October 3, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 660
    Commonwealth v. Wagner, Appellant.
    Petition for Allowance of Appeal Denied June 25, 1984.
    Submitted January 3, 1984.
    Patrick J. Flannery, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and DEL SOLE and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 660
    Commonwealth v. Watson, Appellant.
    Petition for Allowance of Appeal Denied July 20, 1984.

      Argued November 29, 1983.
    W. Terrence O’Brien, for appellant;
    Dara A. DeCourcey, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 661
    Commonwealth v. Worlds, Appellant.
    Petition for Allowance of Appeal Denied June 7, 1984.
    Submitted November 8, 1983.
    John H. Corbett, Jr., Public Defender, for appellant;
    Dara A. DeCourcey, Assistant Public Defender, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 661
    Cornell, Appellants, v. D’Italia.
    Argued November 22, 1983.
    Jeffrey Vincent Matteo, for appellants;
    Parke H. Ulrich, for appellees.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.


text:
    473 A.2d 661
    Donoflio, Appellant, v. Light, et al.
    Petition for Allowance of Appeal Denied June 11, 1984.
    Argued May 19, 1983.
    James J. DeMarco, for appellant;
    Herbert J. Hutton, for appellees.
    Before SPAETH, HESTER and BROSKY, JJ.
   Order affirmed.


text:
    474 A.2d 351
    Harris, Appellant, v. Midwest Mut. Ins. Co.
    Reargument Denied May 16, 1984.
    Petition for Allowance of Appeal Denied Aug. 22, 1984.
    Argued January 17, 1984.
    James L. Womer, for appellant;
    Michael P. McKenna, for appellee.

      Before ROWLEY, HESTER and ROBERTS, JJ.
   Judgment affirmed.


text:
    473 A.2d 661
    In re Adoption of Eubank, Jr. Appeal of Eleanor Eubank, Lackawanna County Children and Youth Services.
    Submitted November 18, 1983.
    Paul Sotak, Assistant Public Defender, for appellant;
    Sylvia Hope Hahn, for appellees.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Order affirmed.


text:
    473 A.2d 662
    In re Estate of Kowalewski, Deceased. Appeal of Joseph F. Battle, Esquire, Administrator of the Estate of Stanley F. Kowalewski, Deceased.
    Argued December 7, 1983.
    Edward J. Zetusky, Jr. for appellant;
    Robert M. Diorio, for appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   Order affirmed.


text:
    473 A.2d 662
    Kendall, Appellant, v. Kendall.
    Argued January 24, 1984.
    Douglas G. Linn, II, for appellant;
    Thomas W. King, III, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Order affirmed and jurisdiction relinquished.


text:
    473 A.2d 662
    Maniace, Appellant, v. Orochena.
    Argued November 16, 1983.
    Norman Blatt, Jr., for appellant;
    Nancy Ann Longenbach, for appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    473 A.2d 662
    Star Savings & Loan, Appellant, v. Briggs.

      Argued November 21, 1983.
    Robert J. Landy, for appellant;
    Michael J. Dowd, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.


text:
    473 A.2d 663
    Tubner, et al., Appellants, v. State Farm Mutual Auto. Ins.
    Argued April 26, 1983.
    Mark B. Aron-son, for appellants;
    John C. Conti, for State Farm, appellees;
    Samuel Wayne Braver, for Allstate, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   The appeal from the order dated October 15, 1982, denying appellants’ motion for certification, is quashed. The order of September 22, 1982, as amended September 27, 1982, sustaining the preliminary objections of sixteen of the named defendants, and the order of October 15, 1982 granting the motion of Allstate Insurance Company for judgment on the pleadings, are affirmed.


text:
    473 A.2d 663
    Zankowich v. Huntingdon Valley Hunt. Appeal of Huntingdon Valley Hunt.

      Submitted November 4, 1983.
    Stephen B. Harris, for appellant;
    David I. Grunfeld, for appellees.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   The decree of the lower court is hereby affirmed.


text:
    March 13, 1984.
    473 A.2d 663
    Commonwealth v. Butler, Appellant.
    Submitted February 15, 1984.
    Kimberly McFadden, for appellant;
    James Martin Connell, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 664
    Commonwealth v. Dana, Appellant.
    Argued February 16, 1984.
    Robert A. Gonos, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 664
    Commonwealth v. Derr, Appellant.
    Submitted February 2, 1984.
    Timothy J. Reese, for appellant;
    Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   The order of the trial denying the motion to dismiss is affirmed, and the case is remanded for trial. Jurisdiction is relinquished.


text:
    473 A.2d 664
    Commonwealth v. Wilkinson, Appellant.
    Petition for Allowance of Appeal Denied July 2, 1984.
    Submitted February 1, 1984.
    Lewis J. Bott, Assistant Public Defender, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    March 16, 1984.
    473 A.2d 665
    Albright v. Zepp, Appellant.
    Submitted December 13, 1983.
    Leslie Gorbey, for appellant;
    Michael E. Bortner, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    473 A.2d 665
    Brosky, et ux., Appellants v. Housing Auth., et al.
    Argued October 26, 1983.
    Layden C. Sadecky, for appellants;
    C. Gus Kwidis, for appellee.

      Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    473 A.2d 665
    Commonwealth v. Austin, Appellant.
    Petition for Allowance of Appeal Denied July 2, 1984.
    Submitted October 13, 1983.
    Mark E. Kogan, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 665
    Commonwealth v. Babb, Appellant.
    Submitted July 28, 1983.
    Peter T. Campana, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.

      Before ROWLEY, BECK and MONTEMURO, JJ.
   Order affirmed.

BECK, J., filed a memorandum dissenting opinion.


text:
    474 A.2d 638
    Commonwealth v. Brant, Appellant.
    Reargument Denied May 29, 1984.
    Petition for Allowance of Appeal Denied Sept. 6, 1984.
    Argued October 25, 1983.
    Edgar M. Snyder, for appellant;
    Kemal Alexander Mericli, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 666
    Commonwealth v. Clay, Appellant.
    Submitted May 4, 1983.
    William L. Kinsley, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   Affirmed.


text:
    473 A.2d 666
    Commonwealth v. Cunrod, Appellant.
    Submitted January 5, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 666
    Commonwealth v. Cupit, Appellant.
    Argued December 9, 1983.
    Stanley P. Stern, for appellant;
    Robert Ciaffa, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 667
    Commonwealth v. Emerson, Appellant.
    Submitted January 3, 1984.
    Margaret M. Boyce, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and DEL SOLE and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    473 A.2d 667
    Commonwealth v. Fingal, III, Appellant.
    Reargument Denied April 9, 1984.
    Petition for Allowance of Appeal Denied Aug. 20, 1984.
    Submitted December 8, 1983.
    Ambrose R. Campana, for appellant;
    Kevin H. Way, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   Order affirmed.


text:
    473 A.2d 667
    Commonwealth v. Free, Appellant.
    Petition for Allowance of Appeal Granted Aug. 9, 1984.
    Submitted November 7, 1983.
    Judith A. Calkin, for appellant;
    Katherene E. Holtzinger, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

POPOVICH, J., filed a memorandum dissenting opinion.


text:
    473 A.2d 667
    Commonwealth v. Garrett, Appellant.
    Submitted October 24, 1983.
    Joseph Scott O’Keefe, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    473 A.2d 668
    Commonwealth v. Goetz, Jr., Appellant.
    Petition for Allowance of Appeal Denied July 2, 1984.
    Argued November 1, 1983.
    Daniel F. Wolfson, for appellant;
    Roy A. Keefer, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   Order and judgment of sentence affirmed.


text:
    473 A.2d 668
    Commonwealth v. Henderson, Appellant.
    Petition for Allowance of Appeal Denied June 29, 1984.
    Submitted January 3, 1984.
    Leslie J. Carson, Jr., for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and DEL SOLE and HESTER, JJ.
   Order affirmed.


text:
    473 A.2d 668
    Commonwealth v. Johnson, Appellant.
    Submitted September 30, 1983.
    John A. Halley, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Order affirmed.

ROWLEY, J., filed a memorandum concurring and dissenting statement.


text:
    473 A.2d 669
    Commonwealth v. Knox, Appellant.
    Argued November 17, 1983.
    Joel P. Trigiani, for appellant;
    Thomas R. Quinn, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    473 A.2d 669
    Commonwealth v. Kreitzer, Appellant.
    Submitted November 7, 1983.
    Marilyn C. Zilli, Assistant Public Defender, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The order of the learned Dauphin County Common Pleas Court Judge Warren G. Morgan is affirmed.


text:
    473 A.2d 669
    Commonwealth v. Krug, Appellant.
    Argued January 11, 1984.
    Victor Dell’Alba for appellant;
    Sheryl Ann Dorney, First Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   Judge of sentence affirmed.


text:
    473 A.2d 669
    Commonwealth v. Maze, Appellant.
    Petition for Allowance of Appeal Denied June 27, 1984.
    Submitted November 18, 1983.
    Douglas M. Johnson, Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   The judgment of sentence of the learned Montgomery County Common Pleas Court President Judge Richard P. Lowe is affirmed.


text:
    473 A.2d 670
    Commonwealth v. Nolan, Appellant.
    Submitted November 18, 1983.
    Jeffrey J. Wander, for appellant;
    Stephen Bresset, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   The judgment of sentence of the learned Wayne County Common Pleas Court President Judge Robert J. Conway is affirmed.


text:
    473 A.2d 670
    Commonwealth v. Palmisano, Appellant.
    Submitted November 23, 1983.
    Christopher G. Bokas, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and HOFFMAN, JJ.
   Affirmed.