author: MONTEMURO, Judge:

text:
    450 A.2d 51
    Dollie M. LIGHT, Administratrix of the Estate of Donald M. Light, Deceased, and Dollie M. Light, Trustee ad litem, of Dale M. Light, a minor and Dollie M. Light, Individually, v. Robert D. MILLER and Patricia A. Miller, and United States Fidelity and Guaranty Company. Appeal of UNITED STATES FIDELITY AND GUARANTY COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1981.
    Filed Aug. 27, 1982.

      Robert J. Stewart, York, for appellant.
    Lewis H. Markowitz, York, for Dollie M. Light, appellee.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This appeal is taken from a declaratory judgment entered in favor of one appellee in this matter, who will be designated “petitioner” herein. Petitioner is the widow of a deceased who was killed in a motor vehicle accident in which a second woman, also an appellee and termed “appellee” herein, was the driver and the alleged tortfeasor.

The issues to be determined concern the availability of protection under the terms of an insurance policy issued by the appellant insurance company to the appellee and her husband. Specifically the policy contracts to provide a defense for appellee-tortfeasor and to pay any award returned against her according to its terms. However, when appellee applied for these benefits, appellant refused to provide either the defense or any coverage under the policy terms.

Petitioner then petitioned the lower court for a declaratory judgment as to the interpretation of the written contract between the appellant and the appellee, citing the Declaratory Judgment Act, 42 Pa. C.S.A. § 7531 et seq, which permits “any person interested under a written contract” to receive a determination of any question of construction arising under that instrument. The court agreed to make that determination.

A Statement of Fact (R. Document # 6) was submitted to the court and executed by all three parties, and the opinion of the trial court was based upon the stipulations as interpreted under policy language and law. The lower court found that appellee was entitled to a defense and to payment of any award returned against her consistent with the policy terms. We affirm the decisions of the court below.

The undisputed facts of the case as submitted by the parties are as follows. Appellee was covered by an insurance policy issued to her husband by appellant. Appellee was employed as a driver of a 1977 Chevrolet Sport Van to transport school-children. This vehicle was not furnished for personal use of appellee or her family, although she was permitted to park the vehicle at her home when she was not transporting the children.

On the morning of September 7, 1977, appellee left her home to begin transporting her charges. Before she picked up her first passenger, she had an automobile accident that resulted in the death of petitioner’s husband.

Appellee’s employers, the owners of the vehicle, had insurance which is conceded to be applicable to these circumstances. Petitioner seeks declaratory judgment in order to provide a second policy which would be available to cover a verdict for any award exceeding the primary policy’s coverage.

The appellee’s application for coverage to appellant was refused by letter of September 8, 1978, on the following reasoning:

Please be advised that under the terms of your automobile policy, No. SD-11936, which was in effect from March 16, 1977 thru March 16,1978, there is no coverage available or applicable for this accident. The Exclusion reads as follows:
“This policy does not apply: (under the Liability Coverage . . .) (h) to a nonowned automobile while such person is employed or otherwise engaged in any other business or occupation, but this exclusion does not apply to a private passenger automobile operated or occupied by the named insured or his private chauffer [sic] or domestic servent, [sic] or a utility trailer used therewith.” (R. Exhibit “B”)

We agree with the lower court that this vehicle falls into the “non-owned” category, as defined in the policy:

“non-owned automobile” means an automobile not owned by or available for the regular use of either the Named Insured or any resident of the same household, and includes, while used therewith, a home trailer not owned by the Named Insured or a utility trailer, but “non-owned automobile” does not include a temporary substitute automobile.

Appellee argues that the vehicle falls into neither the “owned” nor the “non-owned” categories because it was available to appellee for regular use—meaning almost daily driving in fulfillment of her employment. Whether “regular use” means merely “frequent use” or, in contrast, carries the meaning of “personal use” might appear to be an ambiguity in the language of the contract and thus open to court construction. In this instance, however, we need not decide the matter, for the parties have done that themselves. The Statement of Facts supplied to the court and executed by all parties, including counsel for appellant, states decisively at Paragraph 23:

“The vehicle was not furnished for the personal or regular use of the [appellee] or her family.” (R. Exhibit 6)

Appellant’s argument contra the above statement was made too late; appellant had already admitted as a stipulated fact that the vehicle involved was not furnished for the regular use of the. appellee in a paragraph that clearly equates “regular” with “personal.”

Our Supreme Court has held that admissions “contained in pleadings, stipulations and the like” are “judicial admissions” and may not be contradicted later by the party which made them at least for the case in which they were filed. See e.g. Tops Apparel Manufacturing, Co. v. Rothman, 430 Pa. 583, 244 A.2d 436 (1968); Dale Manufacturing Co. v. Bressi, 491 Pa. 493, 421 A.2d 653 (1980); Glick v. White Motor Co., 458 F.2d 1287 (3 Cir. 1972).

We therefore find that appellant itself has agreed that this vehicle qualifies for the “non-owned” category of vehicle.

There is no dispute, however, that appellee in this instance was using the non-owned vehicle while “employed.” Under “Exclusions” (h) of the policy, coverage is not available for non-owned vehicles “while . . . used by any person while such person is employed ... ”, unless certain criteria are met, which make an exception to the exclusions. We here reiterate the pertinent part of (h), set forth supra in its entirety:

“. . . but this exclusion does not apply to a private passenger automobile operated ... by the named insured or his private chauffeur or domestic servant. . . .

First, although this policy was taken out by appellee’s spouse, she is clearly encompassed in the language of the policy itself as a “named insured.”

“Named Insured” means the individual or husband and wife named in Item 1 of the declarations, but if only one individual is named the term “Named Insured” also includes his spouse, if a resident of the same household;

Therefore, the remaining question becomes that of the status of the vehicle itself. Is it a “private passenger automobile”, and thus covered, or some other type of vehicle, and thus excluded?

The definition of “private passenger automobile” as set forth in the policy is as follows:

“private passenger automobile” means a private passenger or station wagon type automobile.

It is axiomatic that the language used in a contract is normally to be given its ordinary meaning in the absence of evidence of some special meaning. 8 Pennsylvania Law Encyclopedia § 145, at 178 and cases cited therein. Therefore, we have consulted Webster’s New Collegiate Dictionary for the ordinary meaning of “station wagon” and “type.”

Webster’s defines “station wagon” as “an automobile that has an interior longer than a sedan’s, has one or more rear seats readily lifted out or folded to facilitate light trucking, has no separate luggage compartment, and often has an adjustable rear window and a tailgate.”

The definition of “type” most apropos to its use in this contract is “shared meaning element: a number of individuals thought of as a group because of a common quality or qualities.”

The policy itself obviously contemplates a category of vehicle which is neither a sedan nor a station wagon proper, but which, as a “station wagon type” vehicle would presumably perform the same sorts of functions that station wagons were designed to perform; to quote Webster’s, it would share a “common quality or qualities.”

Turning to the parties own stipulated facts, we find they agreed that the following items applied to the vehicle in question: the vehicle had four wheels; the driver’s seat and the seat next to it were bucket seats; there were three bench type seats behind the driver’s seat, all easily removable without the use of tools. Vehicles of this type are classified as “station wagons” by the Pennsylvania Department of Transportation for motor vehicle registration purposes.

It is obvious that this vehicle shares common qualities with the station wagon: four wheels, a body longer than a sedan’s, easily removable rear seats. The two vehicles resemble each other sufficiently to be grouped together by the Department of Motor Vehicles for registration purposes. It is hard to imagine what the term “station wagon-type” vehicle would include, if not this vehicle. We therefore have no problem with holding that the vehicle involved in this accident was a “station wagon-type” vehicle and was thus potentially covered, since it was driven by a named insured.

Only one question of construction now remains. Appellant argues that the vehicle was not “private” and that therefore it does not fit the exclusion which allows coverage for a named insured driving a non-owned “private passenger automobile.” We do not dispute appellant’s argument that “private”.in the definition of “private passenger automobile” is likely to modify both sides of the phrase “private passenger or station wagon-type vehicle.” See Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682 (1963).

What, however, “private” can mean in the context of these facts applied to the definitions of the policy itself is a mystery. A non-owned vehicle is defined as not furnished for “the regular use of the Named Insured or a resident of the household.” The policy does not apply to a non-owned car used by a person who is “employed” or “engaged in a business or occupation” unless the vehicle fits the “private passenger automobile” category and is driven by a named insured. Since a non-owned car is, as we have seen, by definition not for “regular use” of the insured or that insured’s family, the ordinary “private passenger” mixture of friends, children and neighbors is eliminated by the terms of the policy itself. We must assume that the “private passengers” envisioned as riding in the vehicle would be some kind of business invitee in addition to the named insured, his chauffeur or servant.

Possibly then, “private” in this context means “not public.” Turning to Webster’s, supra, again, we find “private” defined as “restricted to the use of a particular person, group, or class.” The school children transported in this instance were a particular group of persons and the vehicle was restricted to use for their transportation.

Appellant argues that the use was “commercial” and thus not “private,” and queries the reasons for eliminating a taxi (a non-private passenger automobile) while permitting coverage for a station wagon-type vehicle in the non-private category. The definition points out the differences; one vehicle is for restricted use of a single group and is “private” in the sense that a private school or a private club is private; the other is a form of “public” transportation, available to any pedestrian who can pay.

If the insurance company intended to distinguish between non-paying business invitees and paying business invitees, it should have used language which accomplished that purpose. At present this court must deal with the language as presented, and we find it imprecise. Since “private” in this context cannot mean “privately-owned” nor “used for personal friends and family” and must include “business invitee” but does not go so far as to discuss “commercial,” we agree with the lower court that it is ambiguous, and therefore is to be construed in a light most strongly supporting the insured. Mohn v. American Casualty Co., 458 Pa. 576, 326 A.2d 346 (1974). Moreover, if the ambiguity exists as to an exception to general liability, the language must be strictly construed against the insurance company. Celley v. Mutual Benefit Health & Accident Asso., 229 Pa.Super. 475, 324 A.2d 430 (1974), also, see argument in Cohen v. Erie Indemnity Co., 288 Pa.Super. 445, 447, 432 A.2d 596, 597.

We therefore hold that under the facts of this case and the wording of the policy, the appellee is covered as a named insured operating in the course of her employment a private station wagon-type vehicle at the time of the motor vehicle accident which resulted in the death of petitioner’s husband.

We affirm the declaratory judgment of the court below in favor of both petitioner-appellee and tortfeasor-appellee and against appellant insurance company.

Order affirmed.

      . The parties themselves stipulated to the fact that the vehicle was not supplied for “personal or regular use.” See supra.


source: Caselaw Access Project

license: Public Domain

text:
    450 A.2d 55
    COMMONWEALTH of Pennsylvania v. William VON SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1981.
    Filed Aug. 27, 1982.
    Petition for Allowance of Appeal Denied Feb. 7, 1983.

      Peter Foster, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant, William Von Smith, was first tried on October 21, 1972, along with a co-defendant and both were found guilty by a jury of murder and aggravated robbery. Pursuant to a Post-Conviction Hearing Act petition filed by appellant, the Supreme Court, on November 15,1979, reversed the judgment of sentence and awarded appellant a new trial. Commonwealth v. Smith, 486 Pa. 564, 406 A.2d 1034 (1979). Appellant was retried on March 17, 1980 and again was found guilty by a jury of murder and aggravated robbery. Post-trial motions were denied and appellant was sentenced to a term of life imprisonment. This appeal followed.

On January 15, 1972, at approximately 5:20 p.m., two men walked into the victim’s barber shop and inquired as to whether or not he was hiring. The victim replied that there were no positions available. As he turned his back on the two men, he was struck in the head and rendered unconscious. Upon regaining consciousness, the victim discovered that his wallet, containing sixty dollars ($60.00), was missing. Shortly thereafter, the victim was taken to the Polyclinic Hospital in Harrisburg where, initially, he appeared not to be in a life threatening situation. While in the emergency hospital room, at approximately 6:15 p.m. the victim was questioned by a Harrisburg police officer concerning the facts involved in the robbery. The victim recalled the situation leading up to the time he was attacked and gave a general description of the assailants. As a result of the vicious blows to the head, the victim indeed suffered extreme brain damage, lapsed into a coma and died four days later.

Appellant’s first contention is that the lower court erred in admitting, under the excited utterance res gestae exception, the hearsay testimony of the police officer concerning the victim’s statement of the circumstances surrounding the robbery. Appellant contends that the excited utterance exception is inapplicable in the instant case because of the fifty-five (55) minute delay between the time of the robbery and the victim’s statement, the fact that the victim was alert and well oriented upon admission to the hospital and that the statement was made in response to police questioning. We do not agree that these particular facts support appellant’s position and, for the following reasons, we find that the lower court properly admitted the police officer’s hearsay testimony.

A statement falls within the excited utterance exception to the hearsay rule if it is:

... a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in as closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude likelihood of its having emanated in whole or part from his reflective faculties. Commonwealth v. Pronkoski, 477 Pa. 132, 137-138, 383 A.2d 858, 860 (1978) quoting Allen v. Mack, 345 Pa. 407, 410, 18 [28] A.2d 783, 784 (1942).

The fifty-five (55) minute interim period between the robbery and the statement is not, in and of itself, dispositive of the issue. Rather, as the Supreme Court stated in Commonwealth v. Cheeks, 423 Pa. 67, 70, 223 A.2d 291, 293 (1966):

No definite time limit, or distance from the site of the crime, has been fixed by the courts in determining what spontaneous utterances are admissible as part of the res gestae. Each case has been judged on its own facts and circumstances.... The length of time which has elapsed between when the declarations were uttered and when the occurrence took place is only one element to be considered in determining this spontaneity, (citations omitted).

In several cases this court has approved of the admission of hearsay testimony under the excited utterance exception even though the interim period was comparable to or even greater than that in the present case. Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979) (30 minutes); Lininger v. Kromer, 238 Pa.Super. 259, 358 A.2d 89 (1976) (2 hours); Commonwealth v. Cheeks, supra, (45 minutes); Commonwealth v. Soudani, 190 Pa.Super. 628, 155 A.2d 227 (1959) affirmed, 398 Pa. 546, 159 A.2d 687, 689 (1960); cert. denied, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960) (45 minutes). There can be no doubt here that the victim suffered severe head injuries and certainly underwent a traumatic and shocking experience of lasting import. We are satisfied that the statements elicited from the victim emanated from the attack, precluding “. . . the possibility that the declarations were the product of premeditation or design.” Commonwealth v. Edwards, 431 Pa. 44, 48, 244 A.2d 683, 685 (1968). We do not find the fifty-five (55) minute interim period so excessive under the applicable case law as to prevent the admission of the victim’s statements under the excited utterance exception. See Commonwealth v. Hess, supra. Further, the fact that the victim’s statements were made in response to questions asked by the police officer does not preclude them from being spontaneous. Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973); Commonwealth v. Edwards, supra.

Appellant also contends that the lower court erroneously permitted the Commonwealth to read into evidence the prior testimony of two Commonwealth witnesses where the only ground for doing so was that they could not remember the events to which they testified to in the prior trial. During appellant’s first trial, in October of 1972, Alfred and Pearline Patterson testified that the appellant had admitted committing the crime to them. In addition, Alfred Patterson testified that on the day of the robbery he drove with appellant and another man to the victim’s barber shop. Appellant and his companion entered the barber shop while he (Patterson) waited in the car. Patterson further testified that they returned to the car with a wallet containing sixty ($60.00) dollars and that appellant was carrying a stick. At appellant’s second trial on March 17, 1980, the Pattersons stated that they were unable to remember What had taken place eight years ago. The lower court found that because the Pattersons were unable to remember any of the events to which they previously testified, they were unavailable and therefore, their prior testimony at appellant’s first trial was admissible. Appellant contends that mere lack of memory, without cause, is not a sufficient basis to justify the introduction of a witness’ prior testimony. For the following reasons, we disagree.

The introduction of a witness’ prior testimony into evidence at a subsequent trial is governed by the Act of July 9, 1976, P.L. 586, No. 142 § 2, 42 Pa. C.S.A. § 5917 which provides in pertinent part:

Whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such a witness afterwards dies, or is out of the jurisdiction so that he cannot be effectively served with subpoena, or if he becomes incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue.... (Emphasis added).

Appellant argues that because none of the four requirements specified in Section 5917 (underscored above) were present in the instant case, the lower court could not find the Commonwealth witnesses unavailable. However, in Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979), the Supreme Court held that the Act of May 23, 1887, P.L. 158, § 3, 19 P.S. § 582, now 42 Pa. C.S.A. § 5917, was not “the exclusive means by which a witness’ prior testimony may be admitted into evidence at trial.” Id., 484 Pa. at 36, 398 A.2d at 648. The Graves decision specifically stated that the common law hearsay exception for prior testimony was still applicable, notwithstanding the Act, and held that a witness’ partial memory loss rendered him unavailable under that exception. The Court in Graves stated:

. .. the better view seems to be that partial memory loss also renders the witness unavailable and the prior testimony as well as the present testimony is admissible.
The inconvenience of this narrow view, that forgetfulness is not a ground of unavailability, it seems, should be avoided by treating lapse of memory if complete as a ground of unavailability, or if partial as a ground for admitting both the former and the present testimony of the witness.
McCormick, supra, at 6111-12 (emphasis added) (citation omitted), citing Anderson v. Gaither, 120 Fla. 263, 162 So. 877, 879 (1935) (citing other authority). This approach has the value of fairness to both parties in that necessary testimony is admitted, with the opponent being permitted to cross-examine the witness both as to his asserted lack of memory as well as to his present testimony. This in fact is what happened at trial in the instant case. Therefore, we hold that the trial judge properly admitted Mathis’ prior testimony.

Id., 484 Pa. at 38, 398 A.2d at 649. (footnotes omitted)

Clearly, the Graves decision recognizes complete lack of memory as a ground for determining a witness’ unavailability as well as partial memory loss. Obviously, total lack of recall presents a more compelling instance to find unavailability than does partial memory loss. We believe Graves is controlling here and accordingly hold that the lower court properly admitted the prior testimony.

Judgment of sentence affirmed.


author: POPOVICH, Judge:

text:
    450 A.2d 58
    COMMONWEALTH of Pennsylvania ex rel. Dorothy McClelland, Appellant, v. William J. McClelland.
    Superior Court of Pennsylvania.
    Submitted April 26, 1982.
    Filed Aug. 27, 1982.

      Mark Stephen Sedley, Butler, for appellant.
    Christopher J. Coyle, Pittsburgh, for appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the court below which denied a petition, filed by appellant-mother, for a “REHEARING AND FOR DISQUALIFICATION OF TRIAL JUDGE” in a support matter. Because the record is incomplete, we must remand the matter for further proceedings.

The facts are undisputed.

On February 24, 1979, appellee-father was ordered to pay the sum of $50.00 per week for the support of his wife and two minor children. On December 6, 1979, the court entertained appellant’s modification motion and on that date “determine[d] there [was] a basis for modification.” Record # 2. The court then forwarded the petition to the Domestic Relations Division of the Court of Common Pleas of Butler County for further consideration. On January 18, 1980, appellee filed a petition to suspend support for the reason that he was unemployed and was without a source of income. After a hearing, the hearing officer reaffirmed the initial support order and also recommended that appellee maintain hospitalization coverage and also provide $125.00 per year per person for any uninsured medical, dental, or other such related expenses. Appellant then requested that the court direct the sheriff to arrest appellee pursuant to 42 Pa. C.S.A. § 6707 because she believed that appellee was about to leave the Commonwealth.

On January 30, 1980, appellee appeared before the court and stated that he and his wife intended to relocate to Jacksonville, Florida. As a result, the court ordered appellee to post bond in the amount of $450.00.

Subsequently, appellant served subpoenas on appellee’s employer in order to produce appellee’s employment records and also served the Bureau of Employment Security in order to document the unemployment benefits appellee was receiving. Appellee filed a motion to quash the subpoena. Both appellee’s employer and the Bureau appeared at the hearing to oppose the subpoenas. Argument was entertained on the subpoena issue at which time the following occurred: [Attorney for Appellant]

“MR. SEDLEY: Your Honor, our position, I can state hopefully shortly, Mr. McClelland has told Mrs. McDonald Mr. Skander [appellee’s employer] has minimized his wages and has laid him off in contemplation of a support hearing occurring. We subpoenaed Mr. Skander to attempt to get to the bottom of that, and we subpoenaed the Bureau of Employment Security in the hope of either, in the hope of substantiating what Mr. Skander has to tell us, or contradicting what Mr. Skander has to tell us, as the case may be. We feel that the information from both parties is necessary to get to the bottom of the matter.
THE COURT: Is this a welfare case?
MR. SEDLEY: It’s partly a welfare case, yes.
THE COURT: What are you wasting these people’s valuable time for then?
MR. SEDLEY: Again, Your Honor, I feel that Mrs. McClelland is deserving of support. We can get Mrs. McClelland off of welfare.
THE COURT: Your motion is granted, sir. We’ll hear no—you’re not subpoening the Unemployment Compensation officer in a civilized proceeding to ascertain what the unemployment is, and that’s the proceeding this Court is following. These proceedings are closed. You have a right to find out from Mr. Spryn what the unemployment is, and then we’ll make an appropriate order. We can attach his unemployment. We can—but you’re not wasting these people’s time on such a foolish subpoena. The matter is closed at this time.
[Attorney for Appellee’s Employer]
MR. HEISEY: Thank you, Your Honor.
[Attorney for Unemployment Compensation]
MS. EHRENWERTH: Thank you, Your Honor.
MR. SEDLEY: Your Honor, would you like to hear argument on that?
THE COURT: I’m not at all interested in an argument. This is an outrage. Take your clients and leave the court room [sic]. Take your clients and leave the court room [sic],
[Attorney for Appellee]
MR. COYLE: Thank you, Your Honor.
MS. EHRENWERTH: Thank you, Your Honor.
MR. SEDLEY: Might I discuss this with you in chambers, Your Honor?
THE COURT: There’s nothing to discuss, Mr. Sedley.
MR. SEDLEY: Your Honor, we could get the children off welfare.
THE COURT: Out.
MR. COYLE: Your Honor, may it please the Court, as I understand, has the Court dismissed the exceptions that were before the Court? There was a hearing held before Mr. Fritz on the 24th, and I just wanted to clarify whether the exceptions had been dismissed.
THE COURT: I’m not so sure I’ve done that, but I certainly am not authorizing the subpoenaes in this.
* * 4. * *
(Thereupon the proceedings were concluded.)”
Notes of Testimony 3/7/80 at 4-7. (Emphasis added).

After the hearing, appellant filed a “MOTION FOR A HEARING AND FOR DISQUALIFICATION OF TRIAL JUDGE” on the grounds that appellant should have a rehearing in order to “present evidence in support of her Petition for Modification, . . . [and also requesting] that the original trial judge in this matter disqualify himself from further hearing due to his demonstrated prejudice against the Petition and those similarly situated.” Record at # 10. We agree in part with appellant’s argument and remand the matter for the reasons articulated below.

Our standard for reviewing support is limited to a determination of whether the trial court abused its discretion. See Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 421 A.2d 762 (1980). We also have stated that “a modification of an existing order is justified, however, only when it is supported by ‘clear and positive’ evidence after a hearing on the merits.” Commonwealth ex rel. Rubin v. Rubin, 230 Pa.Super. 591, 326 A.2d 578, 580 (1974) (emphasis added).

In Commonwealth ex rel. Stone v. Stone, 293 Pa.Super. 427, 429-430, 439 A.2d 185, 187 (1981), our Court was faced with an identical situation where the court denied a wife’s petition for an increase in child support without conducting a hearing on the merits. In that case, we stated that the following:

“Here, we find that discretion was abused because no testimony was taken under oath and no evidence was properly introduced and made a part of the record. The well-settled principles governing requests for modification of child support orders are as follows: First, that ‘the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification,’ Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 366, 421 A.2d 762, 766 (1980) (emphasis added), Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa.Super. 127, 392 A.2d 717 (1978); and third, that ‘a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to require such modification,’ Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. [at] 366, 421 A.2d at 766 (emphasis added).
Since no evidence was placed on the record here, it is clear that the above principles were violated. Here, the attorneys were not under oath, and the litigants were not afforded the opportunity to present their version of the case, to add to or contradict the attorneys’ presentation, or to be cross-examined.” (emphasis added)

Likewise, appellant should be allowed to demonstrate that a change of circumstances has occurred.

In its opinion, the court stated that appellant’s petition for modification was without merit because of the following:

“In the interest of judicial expediency, Mrs. McClelland was directed to contact the Butler County Domestic Relations Service and initiate a reciprocal support proceeding. The revised Uniform Reciprocal Enforcement Act at Section 6741 of the Judicial Code (42 Pa. C.S.A.) provides Mrs. McClelland her remedy. She filed her reciprocal (April 23, 1980) petition. No action has been received from Davel County, Florida. Mr. McClelland has been paying direct to the Domestic Relations Service of Butler County. Since April 21, 1980, Mr. McClelland has made weekly payments of $30.00 for the support of his two children. The Butler County Domestic Relations Service still retains the $450.00 cash bond.
It is apparent that this appeal is without merit.” Trial Court Opinion at 3. Record at # 13.

The Revised Uniform Reciprocal Act, however, does not provide appellant with an exclusive remedy. We have said that “if there is a duty to support under the law of this Commonwealth the Uniform Reciprocal Enforcement of Support Act, supra, can be used to enforce that duty.” Commonwealth v. Mexal, 201 Pa.Super. 457, 459, 193 A.2d 680, 681 (1963) (emphasis added). Additionally, we note

“that the Uniform Act did not intend an order of support entered in one state to act as a bar to the entry of an order in another state having jurisdiction. See: Commonwealth v. Ladue, 55 Pa.D. & C.2d 216 (C.P. Adams 1972).” Myers v. Young, 285 Pa.Super. 254, 257, 427 A.2d 209, 211 (1981).

Moreover, Section 6771 of the Uniform Act provides for the following:

“A support order made by a court of this Commonwealth pursuant to this subchapter does not nullify and is not nullified by a support order made by a court of this Commonwealth pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar law or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state Shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this Commonwealth.” (emphasis added)

Thus, it is apparent that appellant’s outstanding reciprocal petition does not foreclose this court from holding a full evidentiary hearing on the merits of appellant’s petition.

Appellant also contends that the trial judge abused his discretion when he failed to recuse himself from the case and also when he quashed the subpoenas.

To begin with, the standard applicable in the instant case is as follows: ■

“It is well settled that the burden to show bias and prejudice is always on the party seeking recusal of a judge. A judge’s refusal to recuse himself will not be reversed absent a clear abuse of discretion. Crawford’s Estate, 307 Pa. 102, 160 A. 585 (1931) [sic].”
Commonwealth v. Council, 491 Pa. 434, 438, 421 A.2d 623, 625 (1980).

When this principle is applied to the facts before us, we are unable to conclude that such a clear abuse occurred. According to appellant, bias is indicated on the record by the “judge’s pronouncement that, since the appellant was a welfare recipient, it was a ‘waste of valuable time’ to go forward with a full hearing.” Brief for Appellant at 49. Although it is obvious that the court was somewhat irked by the subpoenas issued by counsel for the appellant, the record also indicates that the court was disturbed by the fact that the appellant could determine the amount appellee was receiving on unemployment without “wasting these people’s time on such a foolish subpoena.” Notes of Testimony at 5. On these facts, we are unable to conclude that the court was biased because appellant was a welfare recipient or that a clear abuse of discretion occurred because the judge refused to recuse himself.

With respect to the subpoena issue, we conclude that the trial court did not abuse its discretion when it granted appellee’s employer’s motion to quash inasmuch as appellant requested the production of employment records of all other employees. However, the employer had no objection to producing “the entire employment records of defendant [appellee].” “MOTION TO QUASH SUBPOENA AND/OR PRODUCTION ORDER”, Allegation # 5.

The court also quashed the subpoena for the production of appellee’s unemployment compensation records; however, the court stated that appellant “ha[d] a right to find . . . what the unemployment is, and then we’ll make an appropriate order. We can attach his unemployment.” Notes of Testimony at 5. The record reveals that no such order has been entered; however, on remand such evidentiary matters can be corrected.

Under these circumstances, we conclude that the court did not abuse its discretion in this regard.

We, therefore, affirm in part and reverse in part and remand to the lower court for a full evidentiary hearing on the merits.

Jurisdiction is relinquished.

      . Before addressing the merits of the instant case, we first must address the jurisdictional issue. Although not raised by either party, this Court sua sponte can review the issue. See Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981). Because the order appealed denied appellant’s increase in support and required her to bring a new cause of action under a different statute, the order is final for appeal purposes since it effectively terminated appellant’s modification action. See Urbano v. Meneses, 288 Pa.Super. 103, 431 A.2d 308 (1981).

      . § 6707 provides:
      § 6707. Surety for attendance or performance
      (a) General rule.—At any stage of the proceedings under this subchapter, upon affidavit that the defendant is about to leave the Commonwealth, appropriate process may be issued directing that the defendant be brought before the court at such time as the court may direct, at which time the court may direct that the defendant give security, by one or more sureties, to appear when directed by the court or to comply with any order of the court.
      (b) Philadelphia cases.—In any county of the first class the hearing shall be fixed as provided in section 6705(b) (relating to Philadelphia cases).

        1978, April 28, P.L. 202, No. 53, § 10(88), effective June 27, 1978. As amended 1980, Oct. 5, P.L. 693, No. 142, § 501(a), effective in 60 days.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa. C.S.A. 6741 et seq. The states of Pennsylvania and Florida have adopted the Uniform Act. See 42 Pa. C.S.A. Table at 522.


author: HOFFMAN, Judge:

text:
    450 A.2d 63
    COMMONWEALTH of Pennsylvania v. Ralph WHITE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1982.
    Filed Aug. 27, 1982.

      Daniel M. Preminger, Philadelphia, for appellant.
    Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to support his conviction for conspiracy and that his counsel was ineffective in failing to interview and call certain eyewitnesses. Although we find the evidence sufficient, we agree that counsel was ineffective and, accordingly, reverse the order and judgment of sentence of the lower court and grant a new trial.

On the evening of December 4, 1978, Robert Dolison approached the victim, James Helm, and his girlfriend, Myrtle Carter, and asked why Helm was carrying a baseball bat. Observing a group of youths on the corner, Helm replied that it was for protection from dogs roaming the neighborhood. A scuffle ensued between the two, and as the pushing continued, appellant ran by Ms. Carter’s left side and punched Helm in the back of the head. Within seconds, Gregory Dolison ran by Ms. Carter’s right side and stabbed Helm in the back. Appellant and Gregory then ran off in the same direction. Helm subsequently died and appellant was charged with murder and criminal conspiracy. After a jury trial, he was acquitted of murder, but found guilty of conspiracy and sentenced to five-to-ten years imprisonment. Following the appointment of new counsel and the filing of an appeal, this Court remanded for an evidentiary hearing on trial counsel’s effectiveness. After the hearing, the lower court found counsel effective. This appeal followed.

Appellant contends first that the evidence was insufficient to support his conviction for conspiracy. We disagree. “The test of the sufficiency of the evidence is whether viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could reasonably have found all the elements of the crime had been established beyond a reasonable doubt.” Commonwealth v. Eckert, 244 Pa.Superior Ct. 424, 428, 368 A.2d 794, 795, 796 (1976). “[F]or a defendant to be convicted of conspiracy, the Commonwealth must prove his involvement in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy.” Commonwealth v. Lewis, 276 Pa.Superior Ct. 451, 457, 419 A.2d 544, 547 (1980). See 18 Pa. C.S.A. § 903. “A conspiracy may be inferentially established by showing the relation, conduct or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 500, 402 A.2d 546, 549 (1979), quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958). Appellant testified that after the fight had started, someone in the crowd of youths gathered at the corner yelled “you get [Robert Dolison] and some of us get Mr. Helm.” (N.T. May 18, 1979 at 124). Ms. Carter testified that appellant and Gregory Dolison attacked Helm within seconds of one another and then ran off together in the same direction. Appellant also testified that Gregory Dolison told him that “I got [Helm] two times,” as he wiped his knife off in the grass. The jury could have concluded that appellant and Gregory Dolison agreed to attack and did in fact attack Helm, and thus, the evidence was sufficient to support the verdict.

Appellant contends also that his trial counsel was ineffective in failing to find, interview, and call at trial, certain eyewitnesses. We agree. In reviewing claims of ineffective assistance of counsel, “our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty.” Commonwealth v. Bailey, 480 Pa. 329, 336, 390 A.2d 166, 170 (1978) (plurality opinion), quoting ABA Standards Relating to the Defense Function, § 4.1. Although counsel’s failure to interview witnesses about whom he neither knew, nor should have known does not constitute ineffectiveness, Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980), he must investigate those he knows or has reason to know would be helpful to the defense. See Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). “In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.” Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975). Accord, Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976). Though counsel may have a legitimate strategy for not calling eyewitnesses at trial, “there is no basis for the decision not to interview them nor attempt to do so.” Commonwealth v. Mabie, supra, 467 Pa. at 475, 359 A.2d at 374. Despite being aware that the incident took place before a group of people and that appellant named two eyewitnesses in his statement to the police, counsel did not seek to have an investigator hired to locate possible eyewitnesses, nor did he investigate the scene himself. He left the task of finding the two named eyewitnesses to appellant’s family. Placing the burden on a defendant’s family in circumstances such as these does not constitute a reasonable attempt to interview them. Commonwealth v. Williams, 273 Pa.Superior Ct. 147, 416 A.2d 1132 (1979). Moreover, at the evidentiary hearing, appellant’s present counsel produced one of the named witnesses and a second eyewitness through the use of an unlicensed investigator. Both witnesses corroborated appellant’s testimony that he was merely trying to break up the fight when Helm was stabbed. Trial counsel testified that based upon discussions with appellant and his family, he determined that the witnesses’ testimony would only complicate the case. However, he admitted that had he interviewed the witnesses, his conclusion not to call them - may have differed. We would not second guess counsel’s decision had he actually interviewed the witnesses and then determined that their testimony would unnecessarily complicate the case. However, counsel did not interview, nor take reasonable steps to interview the witnesses and consequently he was unable to make an informed, independent decision on the value of their testimony. Counsel’s decision not to investigate the witnesses cannot be said to have been reasonably designed to effectuate his client’s interests and thus, we must reverse the judgment of sentence and grant a new trial.

Order and judgment of sentence reversed and a new trial granted.

      . The lower court found that as a result of conversations with appellant and his family, counsel concluded that the witnesses’ testimony would be of little assistance. We cannot agree that counsel was able to intelligently and effectively make that decision by merely speaking to appellant and his family. Counsel admitted that had he spoken to the witnesses, his view may have changed. Thus, his decision not to interview the witnesses cannot be considered to have been designed to effectuate appellant’s interests.

      . The lower court’s finding that one of the eyewitnesses was “dimwitted,” and a poor witness in no way diminishes counsel’s original obligation to interview and evaluate the witness himself.


author: HOFFMAN, Judge: VAN der VOORT, Judge,

text:
    450 A.2d 65
    COMMONWEALTH of Pennsylvania v. Charles GARRISON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1981.
    Filed Aug. 27, 1982.

      Louis J. Presenza, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends the lower court erred in summarily dismissing his pro se PCHA petition. We agree and, accordingly, reverse and remand for appointment of counsel and further proceedings consistent with this opinion.

Appellant was convicted on May 30, 1975, and his judgment of sentence affirmed on direct appeal. Commonwealth v. Garrison, 249 Pa. Superior Ct. 546, 377 A.2d 170 (1977). Appellant filed a pro se PCHA petition on November 21, 1977; counsel was appointed; the petition amended; a hearing held on September 15,1979; the petition denied on April 24,1980; and no appeal taken. Appellant had filed a second pro se PCHA petition on November 8, 1979, prior to any ruling on the first petition, and the lower court denied it as premature. Appellant filed his third pro sc PCHA petition on June 6,1980, and the lower court summarily dismissed it, prompting this appeal.

A PCHA petition may be summarily dismissed only when a previous counseled petition raising the “same issue or issues” was determined adversely to the petitioner. Pa. R. Crim. P. 1504. Otherwise, the court must appoint counsel and afford an opportunity to amend. Id. 1503. Pro se PCHA petitions must be “read with liberality.” Commonwealth v. Fox, 448 Pa. 491, 494, 295 A.2d 285, 287 (1972). Though appellant’s pro se PCHA petition reiterates several previously litigated suppression issues, it also alleges the extraordinary circumstance of prior counsel’s ineffectiveness, see Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), presumably including prior PCHA counsel, and asserts that appellant was not properly advised of his rights. Because these were new issues properly raised, summary dismissal is precluded. Accordingly, we reverse the lower court and remand for appointment of counsel and further proceedings consistent with this opinion. Jurisdiction relinquished.

VAN der YOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

On November 21,1977, appellant filed a petition under the Post Conviction Hearing Act. Counsel was appointed who filed an amended petition. On September 25, 1979, a hearing was held on the petition. Appellant filed a second PCHA petition on November 8, 1979, prior to any ruling on the first petition. On January 21,1980, the court denied the second petition as being premature. On April 24, 1980, the court filed an opinion and order denying relief on the first petition. No appeal was taken therefrom. On June 6, 1980, appellant filed a third PCHA petition, pro se. By an opinion and order dated December 11, 1980, the court denied, without a hearing, this third petition. Appellant has appealed from the denial of relief on the third petition.

Appellant argues that his second and third petitions alleged that court appointed PCHA counsel on the first petition, was ineffective. Therefore, he contends the court should have appointed yet new counsel and held another hearing on the second and third petitions.

As to the second petition, in my judgment, the court correctly denied relief. The first amended petition was still pending; it was premature to claim counsel was ineffective prior to any indication of his success or failure.

Reviewing the third petition, I likewise agree with the lower court and would affirm its decision. Contrary to appellant’s claim on this appeal, I do not find that the third petition alleged that prior PCHA counsel was ineffective. While he did check off the block, in the standardized petition, questioning counsel’s effectiveness, nowhere in the petition is there an indication that he was challenging PCHA counsel’s stewardship. Instead he challenged a photographic identification, and claimed he was not advised of certain rights or the existence of certain evidence. He did not claim that such challenges had not been finally litigated or waived because of petitioning counsel’s ineffectiveness.

The lower court had just recently decided, adversely to appellant, allegations of trial error and trial counsel’s ineffectiveness. Therefore, I believe the trial court properly, pursuant to Rule 1504 Pennsylvania Rules of Criminal Procedure, denied appellant’s third petition without the appointment of counsel or the holding of another evidentiary hearing thereon. Appellant’s claim was not properly presented in his third petition and neither the trial court or this court should consider it. Commonwealth v. Carrier, 494 Pa. 305, 308-309 n. 3, 431 A.2d 271, 273 n. 3 (1981); Commonwealth v. Zillgitt, 489 Pa. 189, 192 n. 3, 413 A.2d 1078 n. 3 (1980); Commonwealth v. Stokes, 294 Pa.Superior Ct. 529, 440 A.2d 591 (1982); Commonwealth v. Stanton, 294 Pa.Superi-or Ct. 516, 440 A.2d 585 (1982).

I respectfully dissent.

       Moreover, appellant’s second pro se PCHA petition had alleged that the Commonwealth withheld exculpatory evidence. The court denied that petition as premature. Appellant did not reassert that issue in his current PCHA petition. To infer that appellant abandoned this claim would charge a pro se petitioner with a duty to appreciate and plead according to the distinction between a temporary and final denial of an issue, contrary to the standards of review in Commonwealth v. Fox, supra.

       While appellant did check the box, contained in the standardized PCHA petition, indicating he was denied the assistance of effective counsel, nowhere did this petition refer to PCHA counsel as being ineffective.


text:
    450 A.2d 67
    Dorothy PASHAK, Appellant, v. Marvin I. BARISH, Esquire and Adler, Barish, Daniels, Levin and Creskoff, A Partnership.
    Superior Court of Pennsylvania.
    Argued March 3, 1982.
    Filed Aug. 27, 1982.

      Lee A. Solomon, Philadelphia, for appellant.
    Susan Warnock, Philadelphia, for appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in dismissing her complaint with prejudice. We disagree and, accordingly, affirm the order of the court below.

In May 1976, appellant’s husband, William Pashak, was injured while working as a longshoreman. In September of that year, he sued the ship’s owner in federal court alleging that the ship was unseaworthy and that the shipowner had been negligent. Shortly thereafter, Mr. Pashak retained appellees as his attorneys to prosecute the federal action. In 1979, appellees recommended, and Mr. Pashak agreed, to settle the case for $100,000. Mr. Pashak executed a release and subsequently received the settlement proceeds net of appellees’ fees. Later, he was notified that, contrary to appellees’ advice, his statutory compensation benefits would be terminated due to the settlement. Appellant also learned that she might be precluded from recovering any such benefits as a consequence of her husband’s settlement. In December 1980, appellant commenced this action in assumpsit and trespass alleging that through appellees’ malpractice she “has been precluded from ever receiving any [statutory] compensation benefits.” Appellees filed preliminary objections alleging, inter alia, that appellant’s loss was too conjectural and remote to warrant recovery in a malpractice action. The lower court agreed with appellees and dismissed appellant’s complaint with prejudice. This appeal followed.

Appellant contends that the lower court erred in concluding that her loss was too conjectural and remote to warrant recovery in a legal malpractice action. “[W]hen it is alleged that an attorney has breached his professional obligations to his client, an essential element of the cause of action, whether the action be denominated in assumpsit or trespass, is proof of actual loss.” Duke & Co. v. Anderson, 275 Pa.Superior Ct. 65, 73, 418 A.2d 613, 617 (1980) (assumpsit). Cf. Schenkel v. Monheit, 266 Pa.Superior Ct. 396, 405 A.2d 493 (1979) (trespass). To maintain a cause of action, a third party to the attorney-client relationship must likewise prove he has suffered actual damages as a result of the attorney’s malpractice. See Guy v. Liederbach, 279 Pa. Superior Ct. 543, 547, 421 A.2d 333, 336 (1980) (applying Schenkel to beneficiary’s action for negligent execution of will) (petition for allowance of appeal granted November 15, 1980). “ ‘The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for [malpractice].’ ” Schenkel v. Monheit, supra, 266 Pa.Superior Ct. at 399, 405 A.2d at 494, quoting Budd v. Nixen, 6 Cal.3d 195, 200, 491 P.2d 433, 436-37, 98 Cal.Rptr. 849, 852 (1971).

It is generally accepted that an attorney is not liable for any damages which are remote or speculative. The test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but deals with the more basic question of whether there are identifiable damages. The mere possibility or even probability that the plaintiff will sustain an injury at some future time does not alter the speculative nature of the damage claim or support a cause of action for legal malpractice.

Thus, damages are speculative only if the uncertainty concerns the fact of damages rather than the amount. R. Mallen & V. Levitt, Legal Malpractice § 302 (2d ed. 1981) (emphasis added and footnotes omitted). Accord, D. Meiselman, Attorney Malpractice: Law and Procedure § 4:1 (1980). The lower court reasoned that appellant’s loss was too conjectural and remote because her rights would not vest until her husband’s death and were conditional upon her surviving him. We agree. Sections eight and nine of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 908(d), 909, provide certain post mortem disability and death benefits to the survivors of injured longshoremen. St. Louis Shipbuilding & Steel Co. v. Casteel, 583 F.2d 876, 877-78 (8th Cir. 1978) (emphasis in original). “ ‘When death occurs, a new cause of action arises which requires an adjudication on all questions such as accident, notice of death, claim, causal relationship and dependency.’ ” Puig v. Standard Dredging Corp. 599 F.2d 467, 469 (1st Cir. 1979) (citations omitted). “It could not be known, until the death[] occurred, whether there would be any available survivors(s) or, if so, who those survivor(s) would be.” Todd Shipyards Corp. v. Witthuhn, 596 F.2d 899, 902 (9th Cir. 1979). Appellant would be entitled to benefits under the Act only if she were his surviving widow—requiring “a conjugal nexus between the claimant and the decedent subsisting at the time of the latter’s death.” Thompson v. Lawson, 347 U.S. 334, 336-37, 74 S.Ct. 555, 557, 98 L.Ed. 733, 738 (1954). See generally 33 U.S.C.A. § 902(16). Moreover, the amount of her recovery would depend upon whether they would have any surviving children. See id. §§ 908(d), 909. Under these circumstances, it is readily apparent that appellant has not alleged, and could not amend her complaint to allege, the requisite harm to sustain her cause of action. Accordingly, the lower court properly sustained the preliminary objections and dismissed the complaint. See Behrend v. Yellow Cab Co., 441 Pa. 105, 110, 271 A.2d 241, 243 (1970) (“when the initial pleading indicates that the claim asserted cannot be established,” the principle permitting liberal amendment does not apply).

The only difference of present importance between the death benefits provided for in sections 8 and 9 is that the former are for the benefit of the survivors of one who suffered from permanent partial disability while the latter are for the survivors of one who suffered from permanent total disability. ... In either situation, death benefits are recoverable by a unique class of claimants, namely survivors, and are payable, if at all, only in the event of death, an event distinct from the original injury.

Affirmed.

      . Mr. Pashak is still alive.

      . Accordingly, appellant’s reliance upon Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), is misplaced. While the court there recognized that damages need not be proven with mathematical certainty, id., 491 Pa. at 567, 421 A.2d at 1030, the victim had suffered actual loss—loss of life itself. The difference between actual and speculative loss transcends mere difficulties in application of the actuarial sciences to a sufficient evidentiary base. As discussed in text below, appellant has not yet suffered, and may never suffer, the harm she alleges. Her bald assertion that she could present a sufficient evidentiary basis for valuing her claim is simply insufficient to change the speculative nature of her claim. Cf. Balush v. Borough of Norristown, 292 Pa.Superior Ct. 416, 420, 437 A.2d 453, 455 (1981) (when appellant presented, via timely petition for reconsideration of dismissal of complaint, evidence which would cure defective pleading, appellate court would permit leave to amend).

      . Because of our disposition of this matter, we need not decide whether appellant’s trespass count was barred by her lack of privity, and whether, on her assumpsit count, she was a third party beneficiary of the retainer agreement between her husband and appellees.


text:
    August 6, 1983.
    451 A.2d 8
    Atlas, et al. v. Dalsimer’s, Inc., Appellant.
    Reargument Denied Oct. 22, 1982.
    Argued March 30, 1982.
    Michael S. Silberman, for appellant;
    Edward Greer, for appellees.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Jerome Zaleski is affirmed.


text:
    450 A.2d 179
    Brown, Appellant v. Heinlein and Quaker Highlands.
    Argued February 9, 1982.
    Felix DeGuilio, for appellant; James Addison Lewis, for Quaker, appellee; Harlan S. Stone, submitted a brief on behalf of Heinlein, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Order affirmed.

BROSKY, J., concurred in the result.


text:
    450 A.2d 179
    Cicero, Appellant v. Acme Markets, Inc., et al.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.
    Argued April 14, 1982.
    John A. Metz, Jr., for appellant; J. Phillips Saylor, for Acme, appellee; Gerald S. Lesher and Irvin S. Bails, for Fox, appellee; W. Louis Coopersmith, for Glosser, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 179
    Commonwealth v. Arnold, Appellant.
    Submitted February 16, 1982.
    Robert Lee Moore, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   The order of the lower court is hereby affirmed.


text:
    450 A.2d 180
    Commonwealth v. Beck, Jr., Appellant.
    Petition for Allowance of Appeal Denied Nov. 10, 1982.
    Argued January 27, 1982.
    James D. Flower, for appellant; John Michael Eakin, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 180
    Commonwealth v. Benson a/k/a Stewart, Appellant.
    Submitted May 3, 1982.
    Darryl A. Irwin, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 180
    Commonwealth v. Brendle, Appellant.
    Submitted February 4, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 181
    Commonwealth v. Brown, Appellant.

      Argued January 25, 1982.
    Lawrence S. Rosenwald, for appellant; Steven J. Cooperstein, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 181
    Commonwealth v. Cook, Appellant.
    Petition for Allowance of Appeal Denied Jan. 14, 1983.
    Submitted October 13, 1981.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 181
    Commonwealth v. Crews, Appellant.
    Petition for Allowance of Appeal Denied Nov. 18, 1982.

      Argued April 15, 1981.
    Thomas 0. Vreeland, for appellant; Debbie O’Dell, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   Orders and judgment of sentences affirmed.

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


text:
    450 A.2d 181
    Commonwealth v. Darcy, Appellant.
    Petition for Allowance of Appeal Denied Dec. 20, 1982.
    Argued April 21, 1982.
    Julius E. Fioravanti, for appellant; Sarah B. Vanderbraak, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 182
    Commonwealth v. Easley, Appellant.
    Petition for Allowance of Appeal Denied Nov. 23, 1982.

      Submitted April 22, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 182
    Commonwealth v. Foster, et al. Appeal of Thomas Bell.
    Petition for Allowance of Appeal Denied Feb. 3, 1983.
    Submitted December 5, 1980.
    Joseph J. Yeager, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   Judgment of sentence is affirmed.


text:
    450 A.2d 182
    Commonwealth v. Francis, Appellant.
    Petition for Allowance of Appeal Denied Nov. 19, 1982.

      Argued December 4, 1979.
    Marc R. Steinberg, for appellant; Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki of the Court of Common Pleas of Cambria County, Pennsylvania is sitting by designation.

   Judgment of sentence in the above captioned case is affirmed.


text:
    450 A.2d 183
    Commonwealth v. Frazier, Appellant.
    Submitted November 16, 1981.
    Mark E. Kogan, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Stanley L. Kubacki is affirmed.


text:
    450 A.2d 183
    Commonwealth v. Heffley, Sr., Appellant.
    Petition for Allowance of Appeal Denied Feb. 15, 1983.
    Argued March 22, 1982.
    John J. Krafsig, for appellant; Charles J. Rehkamp, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 183
    Commonwealth v. Henderson, Jr., Appellant.
    Submitted January 11, 1982.
    Barbara A. Roth, for appellant; Daniel Joseph, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 184
    Commonwealth v. Jones, Appellant.
    Submitted December 2, 1981.
    George Shultz, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   Judgments of sentence affirmed.


text:
    450 A.2d 184
    Commonwealth v. Knotts, Appellant.
    Submitted March 24, 1982.
    William H. Poole, for appellant; Thompson J. McCullough, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 184
    Commonwealth v. McCants, Jr., Appellant.
    Petition for Allowance of Appeal Denied Nov. 29, 1982.
    Argued February 8, 1982.
    John A. Halley, for appellant; Kemal A. Mericli, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., filed a memorandum concurring statement.


text:
    450 A.2d 184
    Commonwealth v. Morell, Jr., Appellant.
    Submitted October 6, 1981.
    Filmore S. Harowitz, for appellant; Rayford A. Means, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Charles L. Durham is affirmed.


text:
    450 A.2d 185
    Commonwealth v. Oliver, Appellant.
    Submitted September 15, 1981.
    Thomas V. Hunt, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WATKINS and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 185
    Commonwealth v. Owens, Appellant.
    Submitted March 24, 1982.
    James Lee Goldsmith, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 185
    Commonwealth v. Pagan, Appellant.
    Submitted September 15, 1981.
    Jeffrey L. Schmehl, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WATKINS and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 186
    Commonwealth v. Palumbo, II, Appellant.
    Argued April 14, 1980.
    Anthony S. Guido, for appellant; Kim C. Kerner, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 186
    Commonwealth v. Resek, Appellant. Commonwealth v. Cook, Appellant.
    Argued October 13, 1981.
    G.W. Wilde, for appellants; Kemal Alexander Mericli, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and MONTEMURO, JJ.
   Orders affirmed.


text:
    450 A.2d 186
    Commonwealth v. Rogers, Appellant.
    Petition for Allowance of Appeal Denied Jan. 11, 1983.
    Submitted November 9, 1981.
    R. Charles Thomas, for appellant; Douglas W. Ferguson, District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 186
    Commonwealth v. Runkle, Appellant.
    Submitted March 6, 1980.
    Daniel R. Kehm, Assistant Public Defender, for appellant; Floyd P. Jones, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 187
    Commonwealth v. Smith, Appellant.
    Submitted May 22, 1981.
    Anthony S. Dedola, Jr., for appellant; Gerald R. Soloman, District Attorney, for Commonwealth, appellee.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   Affirmed.


text:
    450 A.2d 187
    Commonwealth v. Spaulding, Appellant.
    Submitted October 26, 1981.
    David P. Truax, for appellant; Donald E. Lewis, District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 187
    Commonwealth v. Thomas, Appellant.
    Petition for Allowance of Appeal Denied Nov. 30, 1982.
    Submitted March 22, 1982.
    William A. Fetterhoff, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 188
    Commonwealth v. Truesdale, Appellant.
    Submitted March 29, 1982.
    William P. James, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 188
    Commonwealth v. White, Appellant.
    Petition for Allowance of Appeal Denied Nov. 15, 1982.
    Argued June 3, 1982.
    Aaron Morton Matte, Assistant Public Defender, for appellant; Robert Lee Steinberg, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   The order is affirmed.


text:
    450 A.2d 188
    Commonwealth v. Williams, Appellant.
    Submitted September 23, 1981.
    John D. Flinchbaugh, Assistant Public Defender, for appellant; Richard H. Horn, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The judgment of sentence of the learned York County Common Pleas Court Judge Joseph E. Erb is affirmed.


text:
    450 A.2d 188
    Com. ex rel. Tabb v. Tabb, Appellant.
    Argued May 5, 1982.
    Earl W. Trent, Jr., for appellant; Gary Goldman, for appellee.
    Before SPAETH, ROWLEY and CIRCILLO, JJ.
   The order of the court is hereby affirmed.


text:
    450 A.2d 189
    Com. ex rel. Weston v. Apone. Appeal of Russell Weston.

      Argued June 21, 1982.
    Samuel C. Stretton, submitted a brief on behalf of appellant; Arthur R. Thomas, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The order of the learned Bucks County Common Pleas Court Judge Isaac S. Garb is affirmed.


text:
    450 A.2d 189
    Cooper, etc., Appellant v. Kenn.
    Argued April 15, 1980.
    William G. Cohen, for appellant; Dominick Motto, for appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Orders affirmed.


text:
    454 A.2d 147
    Heiler Jr. v. Schipani, et al., Appellants.
    Submitted November 14, 1980.
    Ray Radakovich, for appellants; Jane D. Ressler, for appellee.
    Before CERCONE, P.J., WIEAND and HOFFMAN, JJ.
   Affirmed.


text:
    450 A.2d 189
    Hershberger, Appellant v. Romala Corp., et al.
    Argued March 22, 1982.
    Michael E. Farr, for appellant; No appearance nor briefs entered on behalf of Romala, appellee; Donald L. Kornfield, appellee, in propria persona.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 189
    Kassarich v. Donn & Girard Nationwide Plan, Appellants.
    Argued October 19, 1981.
    Robert W. Maris, for appellants; Michael Egnal, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   The final decree appealed from is affirmed.


text:
    450 A.2d 190
    King, etc., Appellant v. Brooks, etc.
    Petition for Allowance of Appeal Denied Nov. 15, 1982.

      Argued October 14, 1981.
    Seymour A. Sikov, for appellant; Charles W. Watson, for appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   Order affirmed.


text:
    450 A.2d 190
    Lake, Appellant v. Lake.
    Argued May 26, 1982.
    Albert Momjian, for appellant; Barry M. Miller, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.

BECK, J., filed a memorandum dissenting statement.


text:
    450 A.2d 190
    Lisbon Contrs. v. Plains Twnshp. Sewer Auth., Appellant.
    Argued December 3, 1979.
    Joseph S. Falchek, for appellant; David Saba, for appellee.

      Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki of the Court of Common Pleas of Cambria County, Pennsylvania is sitting by designation.

   Order in the above captioned case is affirmed.

SPAETH, J., concurred in the result.


text:
    450 A.2d 191
    McNabb, Jr. v. Sea-Land Service Inc., Appellant.
    Petition for Allowance of Appeal Denied Nov. 15, 1982.
    Argued September 9, 1980.
    Edward J. Charlton, for appellant; Donald E. Matusow, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed on the comprehensive opinion of Judge Biunno.

BROSKY, J., filed a memorandum concurring statement.

MONTGOMERY, J., filed a memorandum concurring opinion.


text:
    450 A.2d 191
    Miller v. Ohio Casualty Ins. Co., Appellant.
    Argued March 23, 1982.
    Patricia Ann Butler, for appellant; N. Christopher Menges, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment and order affirmed.

WATKINS, J., filed a memorandum dissenting opinion.


text:
    450 A.2d 191
    Open Door Estates, Inc., Appellant v. Hynes, et al.
    Argued June 8, 1982.
    Edward J. Hardiman, for appellant; Stephen G. Yusem, for appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 755
    Yeckley v. State Farm Auto. Ins. Co., et al. Appeal of Allstate Insurance Co. Appeal of Pennsylvania Nat’l Mutual Cas. Ins. Co.
    Reargument Denied Oct. 7, 1982.

      Argued October 26, 1981.
    Dennis St. J. Mulvihill, for appellant (at No. 133) and for appellee (at No. 255); J. Phillips Saylor, for appellant (at No. 255) and for appellee (at 133).
    Before SPAETH, HESTER and JOHNSON, JJ.
   Judgment affirmed.


text:
    August 13, 1982.
    450 A.2d 191
    Charter Nat’l Ins. Co. v. Wozman, etc., et al. Appeal of Joseph Rosenberger, Sr., Jeri Wilkins and Susan Yoder.
    Argued November 13, 1980.
    William S. Schweers, Jr., for appellants; W. A. Peitragallo, for appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    450 A.2d 192
    Cindrich, Appellants v. Robinhill Development.

      Submitted March 15, 1982.
    Donald Edward Seymour, for appellants; Neal R. Cramer, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   Affirmed.


text:
    450 A.2d 192
    Cohen, Appellants v. Commerce Bank of New Jersey.
    Petition for Allowance of Appeal Denied Jan. 14, 1983.
    Argued January 6, 1982.
    Robert H. Dickman, for appellants; Chanson Pipitone, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Order affirmed.


text:
    450 A.2d 192
    Commonwealth v. Blash, Appellant.
    Submitted March 1, 1982.
    Louis Perez, for appellant; Mark S. Gurevitz, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 192
    Commonwealth v. Carey, Appellant.
    Submitted April 7, 1982.
    Lewis J. Bott, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 193
    Commonwealth v. Carney, Appellant.
    Submitted November 9, 1981.
    Harry E. Knafelc, for appellant; Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   The order and judgment of sentence are affirmed.


text:
    450 A.2d 193
    Commonwealth v. Cheseroni, Appellant.

      Submitted February 24, 1982.
    A. Stephen Cohen, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 193
    Commonwealth v. Clark a/k/a Brown, Appellant.
    Submitted November 9, 1981.
    David G. Metinko, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   The judgments of sentence are affirmed.


text:
    450 A.2d 194
    Commonwealth v. Crumady, Jr., Appellant
    Submitted January 5, 1982.

      Anne L. Wall, Assistant Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   The judgment of sentence is hereby affirmed.


text:
    450 A.2d 194
    Commonwealth v. Czarnecki, Appellant.
    Submitted February 24, 1982.
    James A. Consoli, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 194
    Commonwealth v. Frezzell, Appellant.
    Petition for Allowance of Appeal Denied Jan. 19, 1983.
    Submitted October 28, 1981.
    Charles F. Wade, for appellant; Albert Nichols, District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 194
    Commonwealth v. Fultz, Appellant.
    Submitted March 29, 1982.
    Norris E. Gelman, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 195
    Commonwealth v. Giles, Appellant.
    Submitted November 10, 1981.
    Alphonse P. Lepore, Jr., for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 195
    Commonwealth v. Glenn, Appellant.
    Submitted February 22, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Marianne E. Cox, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The judgment of sentence is hereby affirmed.


text:
    450 A.2d 195
    Commonwealth v. Hayes, Appellant.
    Submitted February 9, 1982.
    John P. Liekar, for appellant; Herman J. Bigi, District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 196
    Commonwealth v. Head, Appellant.

      Submitted May 13, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 196
    Commonwealth v. Hicks, Appellant.
    Submitted January 7, 1982.
    Thomas F. Lawrie, Assistant Public Defender, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 196
    Commonwealth v. Hoar, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      Argued December 1, 1981.
    Jeffrey Lynn Snook, for appellant; William A. Helm, District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 196
    Commonwealth v. Housden, Appellant.
    Submitted November 9, 1981.
    Alphonze P. Lepore, Jr., for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 197
    Commonwealth v. Huett, Appellant.
    Petition for Allowance of Appeal Denied Dec. 20, 1982.

      Argued March 30, 1982.
    Thomas E. Butler, for appellant; Steven J. Cooperstein, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 197
    Commonwealth v. Jennings, Appellant.
    Argued March 9, 1982.
    Julius E. Fioravanti, for appellant; Ron Eisenberg, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    450 A.2d 197
    Commonwealth v. Lee, Appellant.
    Submitted May 11,1982.
    Carol K. McGinley, Assistant Public Defender, for appellant; William H. Platt, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.

CAVANAUGH, J. filed a memorandum concurring statement.


text:
    450 A.2d 198
    Commonwealth v. Lees, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.
    Submitted April 6, 1982.
    Nino V. Tinari, for appellant; Jane Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Order affirmed.


text:
    450 A.2d 198
    Commonwealth v. Matalavage, Appellant.

      Submitted December 15, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 198
    Commonwealth v. Mitchell, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Submitted June 23, 1981.
    Tom M. Close, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and BECK, JJ.
   Order denying post conviction relief is hereby affirmed.


text:
    450 A.2d 198
    Commonwealth v. Robinson, Appellant.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.

      Submitted December 16, 1981.
    James F. McBride, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Order of March 25, 1981 affirmed.


text:
    450 A.2d 199
    Commonwealth v. Scott, Appellant.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.
    Submitted April 5, 1982.
    Darryl A. Irwin, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 199
    Commonwealth v. Shultz, Appellant.
    Petition for Allowance of Appeal Denied Feb. 3, 1983.

      Submitted January 6, 1982.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 199
    Commonwealth, Appellant v. True.
    Petition for Allowance of Appeal Granted Nov. 30, 1982.
    Argued May 12, 1982.
    Bruce Warren Vosburgh, for appellant; D. Gibbons, for appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.


text:
    450 A.2d 200
    Commonwealth v. Underwood, Appellant.
    Petition for Allowance of Appeal Denied Nov. 18, 1982.

      Submitted June 23, 1981.
    Elaine DeMasse, Assistant Public Défender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and BECK, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 200
    Commonwealth v. Wadley, Appellant.
    Submitted November 9, 1981.
    John H. Corbett, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 200
    Commonwealth v. Watson, Appellant.
    Submitted February 22, 1982.
    James Robert Protasio, Assistant Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 200
    Commonwealth v. Weiers, III, Appellant.
    Submitted October 27, 1981.
    Richard H. Galloway, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 201
    Commonwealth v. Wilson, Jr., Appellant.
    Petition for Allowance of Appeal Denied Jan. 31, 1982.
    Argued April 6, 1982.
    James McHugh, for appellant; David E. Fritchey, Deputy District Attorney, for Commonwealth, appellee.

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

CAVANAUGH, J. concurred in the result.


text:
    450 A.2d 201
    Continental Cslty. Co., Appellant v. Aetna Cslty., et al.
    Argued June 3, 1982.
    John S. Kokonos, for appellant; Joseph H. Foster, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    451 A.2d 8
    Estate of: Bertolet. Appeal of Bertolet.
    Reargument Denied Oct. 19, 1982.
    Argued November 4, 1981.
    Charles H. Dorsett, for appellant; Edward Gibbons, Jr., for Frankford, participating party; Paul C. Heintz, for Ethel Bertolet, participating party.
    Before SPAETH, BECK and LIPEZ, JJ.
   The order of the court is hereby affirmed.


text:
    452 A.2d 24
    Estate of Drischler. Appeal of Albert Florian Paslow.
    Reargument Denied Nov. 22, 1982.
    Argued February 8, 1982.
    William M. Acker, submitted a brief on behalf of appellant; John E. Quinn, for Flanyak, participating party.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Order and decree affirmed.


text:
    451 A.2d 9
    Farmers Bank v. Hidden Lagoon Hotel, et al. Appeal of Federal Deposit Ins. Corp.
    Reargument Denied Oct. 21, 1982.
    Argued June 22, 1981.
    Thomas B. Kenworthy, for appellant; Alan Candell, for Pearlstein, et ah, appellees.
    Before HESTER, CAVANAUGH and DiSALLE, JJ.
   Order affirmed.

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


text:
    451 A.2d 562
    Kapner v. Kapner, Appellant.
    Reargument Denied Nov. 3, 1982.
    Argued December 7, 1981.
    Robert C. Houpt, for appellant; Robert W. Landis, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Affirmed.


text:
    450 A.2d 201
    Mucci v. Alvino. Appeal of John J. Farina.
    Argued January 25, 1982.
    John P. Koopman, for appellant; Charles J. Conturso, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Order affirmed.

WIEAND, J., filed a memorandum dissenting opinion.


text:
    450 A.2d 202
    Sanzo v. O’Hara, et al., Appellants.
    Argued January 5, 1982.
    Robert Joseph Borthwick, for appellants; John Joseph Cerra, submitted a brief on behalf of appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   The order of the court is affirmed.


text:
    August 20, 1982.
    450 A.2d 202
    Anderson v. Mason, Appellant.
    Submitted June 8, 1982.
    John Michael Stott, for appellant; Raymond C. Schlegel, for appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Decree affirmed.


text:
    450 A.2d 202
    Buzilow, et al., Appellants v. Mell, et al.

      Argued February 2, 1981.
    David L. Ladov, for appellants; Lawrence Sager, for appellees.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 202
    Commonwealth Credit Plan, etc., Appellant v. Kmett, et al.
    Argued January 12, 1982.
    Reginald L. Pawlowski, for appellant; Suzanna Marie Pawlowski, submitted a brief on behalf of appellant; Lewis H. Ripley, for appellees.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 203
    Commonwealth v. Abbott, Appellant.
    Submitted June 21, 1982.
    David N. Rosen, for appellant; Kenneth S. Gallant, Assistant District Attorney, for Commonwealth, appellee.

      Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Alfred J. DiBona, Jr. is affirmed.


text:
    450 A.2d 203
    Commonwealth v. Bane, Appellant.
    Submitted March 24, 1982.
    Hugh S. Rebert, Public Defender, for appellant; John C. Uhler, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 203
    Commonwealth v. Barnes, Appellant.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.
    Argued March 30, 1982.
    George T. Guarnieri, for appellant; Gail Thackery, Assistant District Attorney, for Commonwealth, appellee.

      Before WIEAND, McEWEN and POPOVICH, JJ.
   Judgments of sentence affirmed.


text:
    450 A.2d 203
    Commonwealth v. Bell a/k/a Boone, Appellant.
    Submitted June 23, 1982.
    Frank Desimone, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    450 A.2d 204
    Commonwealth v. Boone, Appellant.
    Argued May 12, 1982. Stuart
    Wilder, Assistant Public Defender, for appellant; Peter M. Hileman, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 204
    Commonwealth v. Boyer, Appellant.
    Submitted March 17, 1982.
    Jack Raydan Heneks, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 204
    Commonwealth, Appellant v. Clayton.
    Submitted October 20, 1981.
    Eric B. Henson, Deputy District Attorney, for Commonwealth, appellant; Elaine DeMasse, Assistant Public Defender, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   The opinion of the lower court is affirmed.


text:
    450 A.2d 205
    Commonwealth v. Collins, Appellant.

      Submitted March 23, 1982.
    William John Fulton, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 205
    Commonwealth v. Derck, Appellant.
    Argued June 9, 1982.
    Joseph C. Michetti, for appellant; James J. Rosini, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 205
    Commonwealth v. Eperjesi, Appellant.

      Submitted November 10, 1981.
    Thomas P. Ruane, Jr., for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 205
    Commonwealth v. Flynn, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.
    Submitted September 10, 1981.
    Joshua M. Briskin, for appellant; Garold Tennis, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   Order affirmed.


text:
    450 A.2d 206
    Commonwealth v. Fox, Appellant.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.

      Argued March 23, 1981.
    John R. Gailey, Jr., for appellant; William T. Hast, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 206
    Commonwealth v. Gant, Appellant.
    Submitted May 5, 1982.
    Michael J. Byrne, Jr., for appellant; Nancy Dena Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.

SPAETH, J., concurred in the result.


text:
    450 A.2d 206
    Commonwealth v. Gilmore, Appellant.
    Petition for Allowance of Appeal Denied Feb. 22, 1983.

      Submitted February 23, 1982.
    Robert B. Mozenter, for appellant; Richard L. McMonigle, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   The judgment of sentence is affirmed.


text:
    450 A.2d 207
    Commonwealth v. Gorni, Appellant.
    Submitted January 7, 1982.
    Abraham A. Hobson, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 207
    Commonwealth v. Guiseppe, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.

      Argued May 10, 1982.
    Charles M. J. Nester, Assistant Public Defender, for appellant; Frank Capaldo, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Affirmed.


text:
    450 A.2d 207
    Commonwealth v. Hanible, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.
    Submitted June 23, 1982.
    Vincent P. DiFabio, for appellant; William P. Boland, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    450 A.2d 208
    Commonwealth v. Hanna, Appellant.

      Submitted April 21, 1982.
    John H. Chronister, for appellant; Sheryl Ann Dorney, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence is affirmed, and jurisdiction of the Superior Court of Pennsylvania is relinquished. The lower court is directed to enforce its sentence forthwith.


text:
    450 A.2d 208
    Commonwealth v. Huff, Appellant.
    Submitted April 22, 1982.
    William F. Ochs, Jr., Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.


text:
    450 A.2d 208
    Commonwealth v. Johnson, Appellant.
    Petition for Allowance of Appeal Denied Nov. 9, 1982.

      Submitted September 9, 1981.
    Arnold P. Minicozzi, for appellant; Alan Sacks, District Attorney, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

SPAETH, J., filed a memorandum concurring statement.


text:
    450 A.2d 208
    Commonwealth v. Kaminski, Appellant.
    Petition for Allowance of Appeal Denied Feb. 8, 1983.
    Submitted October 28, 1981.
    John H. Corbett, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 209
    Commonwealth v. Morton, Appellant.

      Submitted November 5, 1981.
    Dana Rakinic, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Order affirmed.


text:
    450 A.2d 209
    Commonwealth v. Mosley, Appellant.
    Submitted April 21, 1982.
    Gary Spohn Fronheiser, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence is affirmed, and jurisdiction of the Superior Court of Pennsylvania is relinquished. The lower court is directed to enforce its sentence forthwith.


text:
    450 A.2d 209
    Commonwealth v. Rawlings, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.

      Submitted November 14, 1980.
    Paulette J. Balogh, for appellant; Kathryn L. Simpson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WIEAND and JOHNSON, JJ.
   Judgment of sentence entered September 24, 1979 is affirmed.


text:
    450 A.2d 210
    Commonwealth v. Sellmon, Jr., Appellant.
    Petition for Allowance of Appeal Denied Nov. 15, 1982.
    Submitted January 13, 1982.
    Richard S. Levine, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 210
    Commonwealth v. Solomon, Appellant.

      Submitted May 4, 1982.
    John F. X. Morley, Jr., Assistant Pubic Defender, for appellant; John A. Reilly, District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 210
    Commonwealth v. Taylor a/k/a Hatcher, Appellant.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.
    Submitted October 27, 1981.
    John H. Corbett, Public Defender, for' appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 211
    Commonwealth v. Mark Taylor a/k/a Irving Taylor, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      Submitted November 9, 1981.
    David G. Metinko, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 211
    Commonwealth v. Thomas, Appellant.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.
    Submitted October 5, 1981.
    Sandor Engel, for appellant; William H. Platt, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 211
    Commonwealth v. Tyler, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      Submitted February 17, 1982.
    Richard J. Conn, for appellant; Richard L. McMonigle, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Order affirmed.


text:
    450 A.2d 211
    Commonwealth v. Vlassich, Appellant.
    Petition for Allowance of Appeal Denied Feb. 1, 1983.
    Argued April 13, 1982.
    Stanley Wolowski, for appellant; Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order and judgment of sentence affirmed.


text:
    450 A.2d 212
    Commonwealth v. Waddy, Appellant.

      Submitted May 5, 1982.
    Barry H. Oxenburg, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Order affirmed.