author: CIRILLO, Judge:

text:
    473 A.2d 584
    DASET MINING CORPORATION, a Pennsylvania Corporation, Jacobs Contracting Corporation, a Pennsylvania Corporation, Tased Coal Sales, Inc., a Pennsylvania Corporation, Armstrong Land Company, Inc., a Pennsylvania Corporation, Seven Sisters Mining Company, Inc., a Pennsylvania Corporation, and Jacobs, Jacobs & Jacobs, a Partnership Composed of Seaborn Jacobs, Terrence Jacobs, and Darryl Jacobs v. INDUSTRIAL FUELS CORPORATION, a Delaware Corporation, Peoples Energy Corporation, a Corporation, and Twin Oaks Coal Company, a Delaware Corporation, Appellants. DASET MINING CORPORATION, a Pennsylvania Corporation, Jacobs Contracting Corporation, a Pennsylvania Corporation, Tased Coal Sales, Inc., a Pennsylvania Corporation, Armstrong Land Company, Inc., a Pennsylvania Corporation, Seven Sisters Mining Company, Inc., a Pennsylvania Corporation, and Jacobs, Jacobs & Jacobs, a Partnership Composed of Seaborn Jacobs, Terrence Jacobs and Darryl Jacobs, Appellants, v. INDUSTRIAL FUELS CORPORATION, a Delaware Corporation, Peoples Energy Corporation, a Corporation, and Twin Oaks Coal Company, a Delaware Corporation. TWIN OAKS COAL COMPANY, a Delaware Corporation, v. DASET MINING CORPORATION, a Pennsylvania Corporation, Jacobs Contracting Corporation, a Pennsylvania Corporation, Tased Coal Sales, Inc., a Pennsylvania Corporation, Armstrong Land Company Inc., a Pennsylvania Corporation, Jacobs, Jacobs & Jacobs, a Partnership, Seaborn Jacobs, Terrence S. Jacobs, Darryl M. Jacobs and Martha R. Jacobs, Appellants. TWIN OAKS COAL COMPANY, a Delaware Corporation, Appellant, v. DASET MINING CORPORATION, a Pennsylvania Corporation, Jacobs Contracting Corporation, a Pennsylvania Corporation, Tased Coal Sales, Inc., a Pennsylvania Corporation, Armstrong Land Company, Inc., a Pennsylvania Corporation, Seven Sisters Mining Company, Inc., a Pennsylvania Corporation, Jacobs, Jacobs & Jacobs, a Partnership, Seaborn Jacobs, Terrence S. Jacobs, Darryl M. Jacobs and Martha R. Jacobs.
    Superior Court of Pennsylvania.
    Argued May 24, 1983.
    Filed March 2, 1984.
    Petition for Allowance of Appeal Denied July 2, 1984.

      David B. Fawcett, Jr., Pittsburgh, for Daset, etc., appellants (at Nos. 753 and 754) and appellees (at No. 634 and 648).
    Frederick J. Francis, Pittsburgh, for Industrial Fuels, appellant (at No. 634) and appellee (at No. 753) and for Twin Oaks, appellant (at No. 648) and appellee (at No. 754).

      Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

This breach of contract case is really two cases, which were consolidated for trial, because they relate to the same factual situation and legal conflicts among the parties. In the Spring of 1980, Twin Oaks Coal Company (hereinafter “Twin Oaks”) instituted an action in trespass and assumpsit in the Common Pleas Court of Allegheny County against Daset Mining Corporation, Jacobs Contracting Corporation, Tased Coal Sales, Inc., Armstrong Land Company, Inc., Seven Sisters Mining Company, Inc., Jacobs, Jacobs & Jacobs; a partnership composed of Seaborn Jacobs, Terrence S. Jacobs, Darryl M. Jacobs, and Martha Jacobs (hereinafter all referred to collectively as “Daset”). On June 3, 1980, Daset filed in Westmoreland County, a complaint in Assumpsit and Trespass against Twin Oaks, Industrial Fuels Corporation (“IFC”), and Peoples Energy Company (hereinafter “Peoples”). The case in Westmoreland County was subsequently transferred to Allegheny County and the two were consolidated. B.H. & H., Inc. was brought in as an additional defendant by Daset.

Greatly simplified, the basic facts underlying the controversy are that Twin Oaks purchased the coal-related assets of Daset, which were mainly a large number of coal leases and some strip mining equipment. The sale was consummated with a lengthy integrated agreement dated April 11, 1979. The contract stipulated that Twin Oaks was to pay Daset $3,405,026.00 and assume some of Daset’s outstanding obligations. These included the reclamation of some stripped land, which had not yet been performed by Daset and the remaining payment owed by Daset to B.H. & H. The greater part of the equipment and many of the coal leases had been previously acquired by Daset from B.H. & H. At the time that the agreement was executed, Twin Oaks paid $2,405,026.00, and gave Daset a note for the remaining million, which was payable a year later. Shortly before the due date of the note, Twin Oaks refused to pay Daset and B.H. & H. because of a number of legal grievances against Daset. Subsequently, Twin Oaks filed suit on the basis that there was a breach of the important warranty given by Daset in the agreement of April 11, 1979; namely, that the lands assigned to Twin Oaks by Daset, contained not less than four million (4,000,000) tons of recoverable bitminous coal. Daset filed suit for non-payment of the note and took the position that there was no such breach; but brought B.H. & H. into the case on the theory that if there was such a breach, it would be partly the responsibility of the latter because a number of the coal leases had been acquired from it.

At the trial, Twin Oaks did not elect to prosecute any claim against Daset except this important alleged breach of the warranty of four million (4,000,000) tons of coal. In addition, it alleged that this breach created a right to recover for the loss of tonnage and for its great expenditures for reclamation of stripped land.

After a lengthy jury trial, the judge submitted interrogatories to the jury. The jury found that the lease-holds sold to Twin Oaks by Daset contained four million (4,000,000) or more tons of recoverable bituminous coal as defined in the agreement. This resulted in verdicts against Twin Oaks and in favor of Daset in the amount of $1,394,892.86, and in favor of B.H. & H. in the amount of $598,701.60. Twin Oaks filed a motion for a new Trial, and Daset filed a limited motion for a new trial on the ground that the court should not have restricted its claim for interest to six percent (6%). B.H. & H. settled and has discontinued. The motions of the parties were denied and both parties appealed. We will address their claims seriatim.

As a foundation for the discussion of the parties’ claims, we turn our attention to the contract. This comprehensive agreement, which embodies the rights and obligations of the parties, is a lengthy document, which was thoroughly negotiated prior to its execution on April 11, 1979. However, the controversy now before us revolves around only those certain passages, which deal with the warranty made by Daset, which state as follows:

That on, in and under the lands described in those leases listed in Section 1 of Exhibit I to the Assignment Agreement (Schedule G hereto), and which leases are effectively assigned to Buyer on the date hereof in the title condition required by this Agreement (and not subject to those exceptions or conditions that may be specified on Schedule L attached hereto), there are not less than Four Million (4,000,000) tons of recoverable bituminous coal.

In addition, the definitions section of the agreement defines the term “recoverable bituminous coal” as follows:

Whenever used in this Agreement, the term “recoverable bituminous coal” shall mean bituminous coal that, as of the date hereof, can be mined and removed with the use of modern mining methods considering the generally accepted maximum stripping ratios in the area in which Sellers have conducted their mining operations.

Admission of Evidence.

The appellant, Twin Oaks’, initial contention concerns the admission of various documents and other evidence, which it asserts were irrelevant and prejudicial. More specifically, Twin Oaks alleges that the admission of any testimony beyond the scope , of the issue of whether there were four million (4,000,000) tons of “recoverable bituminous coal”, as defined in the agreement, is grounds for reversal because it tended to divert the jury from the issue and confused or misled them.

A trial court may properly exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury. U.S. v. Hively, 547 F.Supp. 318 (M.D.Pa.1982); Belmont Industries, Inc. v. Bethlehem Steel Corp., 62 F.R.D. 697 (1974), affirmed 512 F.2d 434 (3 Cir.1975); Short v. Allegheny Trust Co., 330 Pa. 55, 198 A. 793 (1938); Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). However, “prejudice” for the purposes of this rule, does not mean detrimental to a party’s case, but rather, an undue tendency to suggest a decision on an improper basis. Whistler, supra. In Pennsylvania, the trial judge has broad discretion regarding the admission of potentially misleading and confusing evidence. Bowers v. Garfield, 382 F.Supp. 503 (E.D.Pa.1974), affirmed 503 F.2d 1398 (3 Cir.1974).

Appellant alleges error in the admission of three documents. The first document was a memorandum, dated March 27, 1979, from the Treasurer of Peoples to the chairman of the Board of Peoples. A portion of it entitled Reserves stated, “In place reserves of bituminous seam coal are estimated to exceed 6,000,000 tons.” A second memorandum, dated February 26, 1979, stated, “I concur with their reserve [Daset’s] estimate of 5.5 million raw tons in place contained in a total of 4,107 surface acres ...”. The court also admitted another document which showed that the appellant allocated the write off of the mineral rights of the coal leases using a figure of six million two hundred thousand (6,200,000) tons.

Appellant argues that because these documents all mentioned amounts of coal in excess of that warranted, they were highly prejudicial and as such had a tendency to compel an improper decision. Further, Twin Oaks asserts that this testimony was irrelevant because neither estimates of coal reserves or in place coal nor “write off figures” are germane to the warranty of the amount of “recoverable bituminous coal”, as defined in the agreement. Twin Oaks further contends that these figures all included “deep mined coal”, which the trial court ruled was not included in the warranty made by Daset.

Regarding the admission of these documents, we fail to see how they prejudiced the appellant’s case. The trial judge clearly ruled that the amount of coal that was being warranted was no less than four million (4,000,000) tons. He also ruled that coal reserves that could be mined by deep mining methods were excluded, as is evidenced by the following discussion:

MR. MCGINLEY: Judge, what about coal that could be deep mined as well as stripped?
THE COURT: What I have said I don’t think has anything to do with that. A person may elect .to mine coal by the deep mining method but for the purposes of the warranty and shall I say this sale of coal, I’m ruling that it was contemplated a minimum of four million tons of coal susceptible of being mined by stripping.
MR. MCGINLEY: As long as I understand the Court to beholding (sic) that the danger in the case, Judge, and what we’re just trying to set forth was that if some of these mines which could have been stripped had been deep mined, that coal would have accounted for the warranties.
THE COURT: Well, it didn’t happen. So, we’re not faced with that.
MR. SMITH: But as I understand your ruling, Your Honor, if that particular coal that Mr. McGinley is referring to could not be stripped, then that coal which could on the other hand been deep mined, that coal is not included in the warranty; is that correct?
THE COURT: That’s correct.

Further, when the estimates of coal reserves were introduced, Judge Weir overruled appellant’s objections on the basis that they were admissions of the appellant that were relevant “to how much [coal] is there”. At no time was this evidence purported to be estimates of the amount of coal reserves covered by the contract warranty. This testimony did not indicate the amount of “recoverable bituminous coal”, which could be obtained by strip mining, but only established that the appellant estimated that there was a certain amount of coal contained in, on and under the lands in question. As to the testimony which concerned the figure used by the appellant in preparing its taxes; at no time during the testimony was there any suggestion that the figure used for depletion of these coal reserves had any correlation to. the amount of coai warranted. In addition, when the jury was charged, the judge reiterated that the figure to be considered in determining breach of the warranty was four million (4,000,000) tons and provided the jury with a copy of the definition of “recoverable bituminous coal” to use during its deliberations. Therefore, we fail to see how, under the circumstances, any confusion could have resulted from the admission of this testimony.

Appellant next contends that it was improper to permit testimony concerning Twin Oaks’ financial condition and operations after the agreement was executed by the parties. The trial court permitted this testimony because it determined that it was relevant to the appellant’s motive for not paying the monies owed. Asserting that evidence of motive is irrelevant in an action for breach of warranty, appellant cites Seneca Falls Machine Co. v. McBeth, 246 F.Supp. 271 (W.D.Pa.1965), vacated and remanded 368 F.2d 915 (3 Cir.1966); Otto v. Imperial Casualty & Indemnity Co., 277 F.2d 889 (8 Cir.1960); and Lane v. Bisceglia, 15 Ariz.App. 269, 488 P.2d 474 (1971).

In Seneca Falls Machine Co., the Federal District Court, applying Pennsylvania law, held that the reasons for terminating an oral contract were irrelevant when no provision was made in the contract for termination. The court then concluded that the contract could be terminated by either party at will or after a reasonable time. In Otto the appellant-agent attempted to recover punitive damages from the appellee-insurance company in an action for breach of contract. The court held that, under Missouri law, punitive damages are not recoverable in a breach of contract action. The appellant had attempted to circumvent this rule, by alleging that appellee’s termination of the contract was malicious and willful. The court held that, “... [T]he motive of one who has the right to terminate a contract at any time is immaterial ...” Id. at 893, 894. (Emphasis supplied). In Lane, the parties entered an agreement for the sale of a property, which was conditioned upon the purchasers being able to assume the existing mortgage at a six percent (6%) interest rate. When the mortgagee would only permit the assumption at a six and three-quarter percent (6%%) interest rate, the buyers refused to purchase the property and the seller retained the $5,000.00 earnest money on deposit. The purchasers then brought suit to recover the money. The court held that the seller materially breached the contract by not providing the purchasers with the mortgage at the agreed rate. Thus, the purchasers’ motive for rescinding the contract was immaterial.

As the appellee, Daset, correctly counters in its brief, these cases are inapposite to the case at bar because they concern the exercise of a contractual right; not the breach of a duty to pay. In the instant case, Twin Oaks neither had a contractual right to terminate the contract nor to refuse to pay the monies owed. In fact, its refusal to pay was in derogation of the terms of the contract, which did provide the remedy in the event that the amount of recoverable bituminous coal was less than the four million (4,000,-000) tons warranted. This remedy, which was properly alleged at trial, was provided in Article VII, paragraph two, which states:

2. With respect to the representations and warranties set forth in paragraph 17 of Article IV above [recoverable bituminous coal], it is acknowledged and agreed by the parties hereto that the truth and accuracy thereof is of the essence of this Agreement and that the damages that would be incurred by Buyer in the event that said representations and warranties were untrue in any respect would be extremely difficult to measure and determine. Therefore, the parties hereto agree that, to the extent there are less than Four Million (4,000,000) tons of recoverable bituminous coal, Sellers and Warrantors jointly and severally agree to promptly reimburse Buyer in the amount of One Dollar ($1.00) per ton for each ton less than Four Million (4,000,000) tons of recoverable bituminous coal existing on in and under the lands described in the leases listed in Section 1 of Exhibit I to the Assignment Agreement (Schedule G hereto). It is agreed by Buyer and Sellers that such sum shall be paid as liquidated damages (“Liquidated Damages”) for the breach of the representations and warranties set forth in said paragraph 17 of Article IV.

As stated previously, the trial judge has broad discretion regarding the admission of potentially misleading and confusing evidence. Bowers, supra. This trial was a lengthy proceeding with a great number of witnesses, many exhibits and extensive testimony. In reviewing the entire record, we can neither say that the trial judge erred in admitting any of this evidence nor that its admission constituted an abuse of discretion such that the court’s judgment was manifestly unreasonable or the result of partiality, prejudice, bias or ill will. Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981); Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980). Also in the aggregate, we cannot say that if this testimony had been excluded, it would have changed the outcome of the case. See, Redevelopment Authority of City of Chester v. Bosacco, 46 Pa.Cmwlth. 242, 406 A.2d 1163 (1979), appeal after remand 53 Pa.Cmwlth. 550, 417 A.2d 1350 (1980).

Parol Evidence

Appellant next contends that the trial court erred by permitting the introduction into evidence of prior negotiations and agreements. Twin Oaks argues that the admission of such testimony was highly prejudicial and improper; and was in violation of the parol evidence rule because the agreement contained an integration clause. The Restatement (Second) of Contracts § 213 explains the effect of such a clause as follows:

§ 213. Effect of Integrated Agreement on Prior Agreements (Parol Evidence Rule)
(1) A binding integrated agreement discharges prior agreements to the extent that it is inconsistent with them.
(2) A binding completely integrated agreement discharges prior agreements to the extent that they are within its scope.
(3) An integrated agreement that is not binding or that is voidable and avoided does not discharge a prior agreement. But an integrated agreement, even though not binding, may be effective to render inoperative a term which would have been part of the agreement if it had not been integrated.

However, Section 214 of the Restatement (Second) also ennumerates the limited circumstances in which evidence of prior or contemporaneous agreements and negotiations may be admitted as follows:

§ 214. Evidence of Prior or contemporaneous Agreements and Negotiations
Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish
(a) that the writing is or is not an integrated agreement;
(b) that the integrated agreement, if any, is completely or partially integrated;
(c) the meaning of the writing whether or not integrated;
(d) illegality, fraud, duress, mistake, lack of consideration, or other invalidating cause;
(e) ground for granting or denying rescission, reformation, specific performance, or other remedy, (emphasis supplied)

Comment b. states as follows:

b. Interpretation. Words, written or oral, cannot apply themselves to the subject matter. The expressions and general tenor of speech used in negotiations are admissible to show the conditions existing when the writing was made, the application of the words, and the meaning or meanings of the parties. Even though words seem on their face to have only a single possible meaning, other meanings often appear when the circumstances are disclosed. In cases of misunderstanding, there must be inquiry into the meaning attached to the words by each party and into what each knew or had reason to know. See § 201. (emphasis supplied)

It is well settled in Pennsylvania law that in the absence of fraud, accident or mistake, parol evidence as to preliminary negotiations or oral agreements is not admissible in evidence if it adds to, modifies, contradicts or conflicts with the written agreement between the parties. Servomation Mathias Pa., Inc. v. Lancashire Hall, Inc., 442 Pa. 602, 276 A.2d 547 (1971); Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968); Keyser v. Margolis, 422 Pa. 553, 223 A.2d 13 (1966). However, it is equally well settled that this general rule does not apply where the agreement is ambiguous. In such a situation parol evidence is admissible to explain the agreement and resolve ambiguities to ascertain the meaning of the parties. Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (1980 3rd Cir.); Silver v. Gene K. Kolber Advertising, Inc., 518 F.Supp. 939 (E.D.Pa.1981); In Re Fessman’s Estate, 386 Pa. 447, 126 A.2d 676 (1956); Pavlich v. Ambrosia Coal Co., 441 Pa. 210, 273 A.2d 343 (1971); Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350 (1976). In addition, our Supreme Court has held that, “[T]he parol evidence rule does not apply in its ordinary strictness where the existence of a custom or usage to explain the meaning of words in a writing is concerned.” Electric Reduction Co. v. Colonial Steel Co., 276 Pa. 181, 186, 120 A. 116, 118 (1923). "... [W]here terms are used in a contract which are known and understood by a particular class of persons in a certain special or peculiar sense, evidence to that effect is admissible, for the purpose of applying the instrument to its proper subject-matter.” Id., 276 Pa. at 188, 120 A. at 118. Accord, Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1957). In Carter v. Edwin J. Schoettle Co., 390 Pa. 365, 134 A.2d 908 (1957), the court held that where there is an integrated agreement, evidence of prior negotiations is inadmissible to show an intent at variance with the language of the written agreement, but is admissible to show local usage, which would give a particular meaning to the language.

Appellant concedes in its brief that an agreement may be interpreted in accordance with “relevant usage” and cites the Restatement (Second) of Contracts § 220, which states as follows:

§ 220. Usage Relevant to Interpretation
(1) An agreement is interpreted in accordance with a relevant usage if each party knew or had reason to know of the usage and neither party knew or had reason to know that the meaning attached by the other was inconsistent with the usage.
(2) When the meaning attached by one party accorded with a relevant usage and the other knew or had reason to know of the usage, the other is treated as having known or had reason to know the meaning attached by the first party.

As the learned Judge Weir stated in his opinion, unless an individual had prior exposure to strip mining, it would be impossible to understand the correct meaning of such a simple term as “stripping ratios”. Thus, without explanatory testimony the jurors would be unable to determine what if any meaning the parties attached to various terms. Testimony in the record revealed that both parties accorded the same meaning to the term “generally accepted maximum stripping ratios”. However, Twin Oaks contends that the admission of other extrinsic evidence concerning prior negotiations or drafts of the agreement to define local usage was improper. We disagree.

The contract in the case at bar concerns an industry that is highly technical in nature and the attendant terms employed by the parties have no meaning to individuals who are not acquainted with coal mining and therefore have no understanding of the terminology employed by those involved in the business. Moreover, because of the significance attached to various pivotal phrases in the agreement it was of great importance for the jury to hear testimony on how the terms were negotiated. This testimony would then provide sufficient background for evaluation of the intent of the parties in employing the particular language used.

Furthermore, the Restatement (Second) of Contracts § 212 provides for the interpretation of an integrated agreement as follows:

§ 212. Interpretation of Integrated Agreement
(1) The interpretation of an integrated agreement is directed to the meaning of the terms of the writing or writings in the light of the circumstances, in accordance with the rules stated in this Chapter.
(2) A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence. Otherwise a question of interpretation of an integrated agreement is to be determined as a question of law.
c. Statements of intention. The rule of Subsection (1) permits reference to the negotiations of the parties, including statements of intention and even positive promises, so long as they are used to show the meaning of the writing.

In support of its argument, Twin Oaks cites a number of cases in which prior drafts and negotiations were ruled inadmissible. However, these cases are inapposite to the case at bar because they all involve situations where the proffered testimony contradicted or attempted to add terms to the agreement. In both Carter, supra and National Cash Register, supra, the parties attempted to introduce evidence which would have contradicted or changed the terms of the agreements. In Fischer & Porter Co. v. Porter, 364 Pa. 495, 72 A.2d 98 (1950), the Supreme Court held that it was improper to admit testimony, which would create an ambiguity where none existed. The situations in these cases are not at all analagous to that in the case at bar. None of the disputed testimony contradicted or varied the terms of the finalized agreement, but only served to illuminate the intent of the parties in utilizing the specific language which was finally incorporated into the contract. Mr. McGinley, the lawyer who had been involved in negotiating the contract on behalf of Daset, testified about terms that had been rejected and the reasoning behind the language actually used as follows.

Q. All right. So, that eliminated the language of economically marketable; is that correct?
A. Yes.
Q. Okay.
A. In the context of the negotiations, it was defined further in that there was a handwritten note, “minable and merchantable bituminous coal shall mean bituminous coal that when reached in the course of mining operations, can be mined and removed with the use of modern mining methods and sold at a reasonable profit under then current market conditions.”
Q. And was there further language negotiated between the parties?
A. Yes. We again negotiated that language and the following draft stated, "That on, in and under the lands described in the leases listed on the attached Schedule A, there are not less than 4,000,000 tons of marketable and merchantable bituminous coal,” and again that was the typed version where the definition stated, “shall mean bituminous coal that can be reached in the normal mining operations and can be mined and removed with the use of modern mining methods and sold at a reasonable profit under then current market conditions.”
Q. Did you object to those definitions?
A. We negotiated them, yes.
Q. And what was the problem with that language as far as your client was concerned?
A. It was subjective and dependent upon the success of the Twin Oaks mining operation.
Q. And was this whole business deal to rest upon the success or failure of the Twin Oaks mining operation?
A. It was not.
Q. Then what happened?
A. From that definition we evolved to the definition of recoverable bituminous coal as defined in the agreement with reference to maximum stripping ratios in the area.
Q. And that final agreement the language of merchantable and selling them at market price and the economic factors that were negotiated out during the negotiations; is that right?
A. Yes.
Q. And therein lies the basis for your opinion with regard to the final definition, being the generally accepted maximum stripping ratio in the area at the time of the agreement.
A. Yes.
Q. As to govern the extent of the warranty of coal.
A. Yes.
MR. FAWCETT: All right.
MR. SMITH: Mr. Pietragallo.
MR. PIETRAGALLO: No, thank you.
RECROSS EXAMINATION

Appellant contends that the above testimony created an ambiguity where none had previously existed. Twin Oaks also asserts that this testimony removed the economic element, which others had testified was an important component of the contract. Appellant’s analysis of the testimony is overbroad and not precisely correct. Mr. McGinley’s testimony regarding the negotiation of the terms only showed that Daset did not want the warranty of the amount of recoverable bituminous coal to rise or fall on the expertise or lack of same, on the part of Twin Oaks. In other words, the economic factor in the contract was not to be pegged to Twin Oaks’ ability or inability to successfully mine the coal in an economically feasible manner. Rather, the standard, which was finalized in the contract, was that which would be “generally” accepted in the area. Accordingly, if Twin Oaks operation was not efficient and could not successfully mine these leases, there could be no assertion on its part that there was not the amount of coal warranted. Therefore, we do not agree with Twin Oaks that the economic element was removed from the contract. What was removed was the subjective standard of the appellant. The final negotiated contract was based on an economic standard, which would be acceptable to others engaged in a similar business in the area. Therefore, we hold that the trial judge did not err by permitting testimony of prior negotiations and agreements.

Appellee’s only contention on appeal is that the trial court erred in not awarding more than the legal interest rate, in prejudgment interest, on the monies due Daset on the note. Appellee asserts that to restrict the interest rate to six percent (6%), when market interest rates are greatly in excess of that amount, only encourages non-payment of obligations and protracted litigation. Furthermore, Daset argues that Twin Oaks has engaged in tactics, which unjustly enriches itself to the financial detriment of appellee. Appellee concedes that the trial judge’s decision is historically correct, but posits that the dramatic change in the economic situation and the correlating high market interest rates render this decision manifestly unjust.

The legal rate of interest in Pennsylvania is fixed at six percent (6%) by statute 41 P.S. § 202 as follows:

§ 202 Legal rate of interest Reference in any law or document enacted or executed heretofore or hereafter to “legal rate of interest” and reference in any document to an obligation to pay a sum of money “with interest” without specification of the applicable rate shall be contraed to refer to the rate of interest of six percent per annum.

Traditionally, Pennsylvania has followed the Restatement (Second) of Contracts § 354 which states as follows:

§ 354. Interest as Damages
(1) If the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less all deductions to which the party in breach is entitled.

Comment:

a. Scope. This Section deals with an injured party’s right to interest as damages in compensation for the deprivation of a promised performance. Had the performance been rendered when it was due, the injured party would have been able to make use of it. Interest is a standardized form of compensation to the injured party for the loss of that use, in the absence of agreement to the contrary. It is payable without compounding at the rate, commonly called the “legal rate, fixed by statute for this purpose. (Emphasis supplied).

In contract cases, prejudgment interest is award-able as of right. Eazor Express, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 520 F.2d 951 (3rd Cir.1975), cert. denied; Gold & Co. Inc. v. Northeast Theatre Corp., 281 Pa.Super. 69, 421 A.2d 1151 (1980). In claims that arise out of a contractual right, interest has been allowed at the legal rate from the date that payment was wrongfully withheld, where the damages are liquidated and certain, and the interest is readily ascertainable through computation. Paul Revere Protective Life Ins. Co. v. Weis, 535 F.Supp. 379 (E.D.Pa.1981); Girard Bank v. John Hancock Mutual, 524 F.Supp. 884 (E.D.Pa.1981); Formigli Corp. v. Fox, 348 F.Supp. 629 (E.D.Pa.1972); Miller v. City of Reading, 369 Pa. 471, 87 A.2d 223 (1952). Moreover, in contracts concerning payment of a sum of money, which bear an interest rate higher or lower than the legal rate; if the parties do not contract that it shall be the rate after the debt becomes due; then, the interest rate fixed by law attaches for the detention of the principal sum. Ludwick v. Huntzinger, 5 Watts & S. 51 (1841); Weinberger v. Wickert, 5 Berks 36 (1912); 41 P.S. § 202; 11 Williston, Contracts § 1416 (3rd Ed.1968). However, contract provisions for non-payment of money due, which provide for a specific rate of interest have been upheld. See, O'Brien & Gere Engineers, Inc. v. Taleghani, 525 F.Supp. 750 (E.D.Pa.1981) (amount not paid by stipulated date, simple interest of 12% per annum).

A review of the case law reveals that the trend of the courts has been to take an equitable approach in determining interest as an element of damages. See, E.I. Du Pont de Nemours & Co. v. Lyles & Lang Construction Co., 219 F.2d 328 (4th Cir.1955) (interest to be awarded not at legal rate, but at rate plaintiff would have had to pay upon loan of similar amount in view of state money market); Davis Cattle Co. v. Great Western Sugar Co., 544 F.2d 436 (10th Cir.1976) (interest awarded at 11.5% per annum, not statutory rate of 6%); Peterson v. Crown Financial Corp., 553 F.Supp. 114 (E.D.Pa.1982) (interest awarded at rate of 2V2% above prime rate); Nedd v. United Mine Workers of America, 488 F.Supp. 1208 (M.D.Pa.1980) (no interest awarded where union did not benefit from breach of trust). But see, Traffic Safety Co. Inc. v. Horan, 21 B.R. 669 (Bkrtcy.Pa.1982) (former trustee of estate only liable for interest at legal rate, not rate which estate would have earned if money invested).

The Pennsylvania courts have also adopted this approach, and in equity cases, the award and rate of interest allowed is at the discretion of the chancellor. Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980); decided after remand 495 Pa. 100, 432 A.2d 971 (1981). Our Supreme Court in Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 410, 276 A.2d 542, 545 (1971), stated as follows:

An examination of the cases dealing with the charge and allowance of interest will disclose many difficulties, but the decided trend of courts of law and courts of equity has been ‘to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case’.
* * * Unless a case be found, which is a conclusive precedent, the safest and at the same time the fairest way for a court is to decide questions pertaining to interest according to a plain and simple consideration of justice and fair dealing.

quoting McDermott v. McDermott, 130 Pa.Super. 127, 130, 196 A. 889, 890 (1938).

See also, In re Kenin’s Estate, 343 Pa. 549, 23 A.2d 837 (1942) (court reduced interest rate from 6% to 21h%)] Barale v. Barale, 282 Pa.Super. 213, 422 A.2d 1082 (1980) (no interest on partition sale of property).

In the tort area, the Supreme Court has promulgated Pa.R.Civ.Pro., Rule 238, which provides as follows:

Rule 238. Award of Damages for Delay in an Action for Bodily Injury, Death or Property Damage

(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq. shall
(1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded which shall become part of the award, verdict or decision;

While these “delay damages” are not termed prejudgment interest as such, they are most certainly a contract prejudgment counterpart. The purpose behind this rule was explained by the Supreme Court as follows, “[T]his rule serves to compensate the plaintiff for the inability to utilize funds rightfully due him, but the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.” Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). See also, American Enka Co. v. Wicaco Machine Corp., 686 F.2d 1050 (1982) (applying Pennsylvania law, damages awarded under Rule 238).

Appellee urges that in light of the above, it is obsolete for the award of prejudgment interest to be limited to the legal rate of six percent (6%). It also contends that with the present high interest rates, it is to a debtor’s advantage to withhold payment and litigate. In the event of loss, the money unjustly withheld, if properly invested will generate sufficient income to pay for all costs and interest. This unjust enrichment of the debtor, is in derogation of the principles of equity and is in contravention of the concept underlying the award of interest.

Appellee submits that 41 P.S. § 202 does not prevent the recovery of interest at a rate greater than six percent (6%) where the principles of restitution are utilized. In Peterson v. Crown Financial Corp., 661 F.2d 287 (3rd Cir.1981), the Court of Appeals held that the appellant’s claim sounded in restitution. However, in Peterson, the court determined that a situation where money was extracted and unjustly withheld was not analogous to a case where a promise to pay money or render a service had been breached. The court reasoned that the appellant’s claim was removed from the purview of the Restatement of Contracts and sounded in restitution. In so doing, Judge Adams stated,

... [I]t is difficult to draw a logical distinction between the present case — a wrongful demand and acceptance of a sum paid under protest — and the refusal to pay funds due under a contract. It may be inequitable to require debtors to pay only six percent under present Pennsylvania law yet force creditors who have made wrongful demands to disgorge at money-market rates. As to the former situation, however, Pennsylvania has provided clear — if questionable — precedent to which a federal court sitting in diversity is bound.

Id. at 298.

Unfortunately, while we find appellee’s arguments logical and persuasive, the law in Pennsylvania, at this time, does not permit an award of prejudgment interest in an amount greater than six percent. Appellee’s claim is under the purview of the Restatement and as such does not sound in restitution. Further, we do not agree with appellee that this is a matter for judicial reform. Being statutory, reform in this matter is the province of the legislature.

Additionally, we are mindful that this contract was extensively negotiated by skillful and knowledgeable individuals, who should have been well aware of the applicable law and the possible consequences in the event of breach of the agreement. The contract specifically provided that the note for one million dollars, which was payable on or before one year from the date of the execution of the agreement, was to generate six percent (6%) interest per annum on the balance remaining unpaid until the due date. However, since the parties neglected to make any provision on the rate of interest on the note in the event of breach, the trial court could only award prejudgment interest at the legal rate prescribed by statute. Accordingly, appellee’s counterclaim is dismissed.

Judgment affirmed.

      . Peoples owns all of the stock of IFC; IFC owns all of the stock of Twin Oaks. Peoples, IFC, and Twin Oaks shall be collectively referred to as “Twin Oaks”.

      . The section of the contract dealing with payment stated as follows: 3. (B)(iii) The remaining balance of One Million ($1,000,000.00) Dollars shall be paid on or before one year from the date hereof, together with interest on the balance remaining unpaid from time to time at the rate of six percent (6%) per annum, which obligation shall be evidenced,by a non-negotiable promissory note in the form set forth in Schedule E (attached hereto and by reference made a part hereof).

      . The trial judge ruled that the contract precluded recovery of reclamation costs. He did so on the basis that under INDEMNIFICATION, Paragraph 2 of the agreement stated as follows:
      Therefore, the parties hereto agree that to the extent there are less than four million tons of recoverable bituminous coal, sellers and warrantors jointly and severally agree to promptly reimburse Buyer in the amount of One Dollar ($1.00) per ton for each ton less than Four Million (4,000,000) tons of recoverable bituminous coal existing on, in and under the lands described in the leases listed in Section 1 of Exhibit I to the Assignment Agreement (Schedule G hereto). It is agreed by Buyer and Sellers that such sum shall be paid as liquidated damages (“Liquidated Damages") for the breach of the representations and warranties set forth in said paragraph 17 of Article IV.

      . The appellee argues that most of Twin Oaks contentions on the basis of relevancy and prejudice have been waived because the only objections made at trial were on the basis of the Parol Evidence Rule, and some of these issues were not raised in post-trial motions. Issues not raised in post-trial motions in the trial court are not preserved for consideration on appeal. O’Malley v. Peerless Petroleum Inc., 283 Pa.Super. 272, 423 A.2d 1251 (1980). In appellant’s Motion for New Trial, it is asserted that the trial judge erred in allowing evidence to be given concerning negotiations prior to the agreement of April 11, 1979. Many of the specific issues raised on appeal would be characterized as negotiations. Therefore, we decline to find all of appellant’s allegations waived.

      . Appellant also raises the issue of the competency of the individuals who made these estimates. However, no such objection was raised at trial or in post-trial motions. Matters raised for the first time on appeal will not be considered. Gibson v. Miller, 265 Pa.Super. 597, 402 A.2d 1033 (1979); Mawhinney v. Hotzhauer, 168 Pa.Super. 283, 77 A.2d 734 (1951); Zoni v. Mutual Life Ins. Co. of New York, 153 Pa.Super. 1, 33 A.2d 445 (1943); Stevens et al. v. Frank et al., 151 Pa.Super. 222, 30 A.2d 161 (1943).

      . Appellant also argues that the admission of this document could have led the jury to believe that it cheated on its taxes. We find such a contention extreme. At no time was such a suggestion made nor was there any inference that that was the purpose for using the 6.2 million ton figure for write-off purposes.

      . Appellant also contends that the trial court erred in admitting evidence of Twin Oaks expectation of profit and motives for entering into the agreement. We have carefully reviewed the record and appellant’s motion for a new trial. This issue was never raised prior to the appeal to this Court. A party may not raise an issue for the first time on appeal. Vend-A-Matic, Inc. v. Frankford Trust Co., 296 Pa.Super. 492, 442 A.2d 1158 (1982); Gibson v. Miller, 265 Pa.Super. 597, 402 A.2d 1033 (1979); Mazza v. Berlanti Const. Co., 206 Pa.Super. 505, 214 A.2d 257 (1965); Robinson v. Brown, 195 Pa.Super. 384, 171 A.2d 865 (1961). Additionally, a reason for new trial not assigned as error in the court below may not be raised and will not be considered for the first time on appeal. Risbon v. Cottom, 387 Pa. 155, 127 A.2d 101 (1956); Schneider v. Albert Einstein Medical Center, Northern Division, 257 Pa.Super. 348, 390 A.2d 1271 (1978); Baccare v. Mennella, 246 Pa.Super. 53, 369 A.2d 806 (1976). Therefore, we find that appellant has waived this contention.

      . Act of Jan. 30, 1974, P.L. 13, No. 6, § 202 imd. effective.

      . This section was formerly § 337.

      . We are also mindful that in the area of workmen’s compensation the interest on awards has been raised from six percent (6%) to ten percent (10%). 77 P.S. § 717.1; C.W. Brown Coal Co. v. Workmen’s Compensation Appeal Bd., 62 Pa.Cmwlth. 539, 437 A.2d 458 (1981).

      . In appellee’s original complaint, it asked for interest at the rate of ten percent (10%) from the time of breach. However, on appeal, Daset did not limit its argument to any specific amount.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    473 A.2d 597
    Donna J. CURTIS, Appellant, v. William H. CURTIS.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1983.
    Filed March 2, 1984.

      Gordon Mair, West Chester, for appellant.
    John J. Snyder, King of Prussia, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order overruling a master’s recommendation that appellee pay $150 per month for the support of a child in college.

The case was commenced in July of 1981 by appellant daughter’s filing of a RURESA action in Westmoreland County, against her father, the appellee, William H. Curtis. At the suggestion of the Westmoreland County Court, and by agreement of the parties, the hearing on this matter was held in Chester County, where appellee resides. It took place before a master on December 2, 1981, and was transcribed. Appellee and his former wife, appellant’s mother, were the only two witnesses who testified at the hearing. The following is a summary of what was presented at that hearing.

Appellant, Donna J. Curtis, born March 15, 1963, is appellee’s daughter by his former wife, who has now remarried and is Mrs. Katherine Conti. A second child, Jane Curtis, was also born of the marriage on April 3, 1965. Katherine Conti and appellee were divorced in March of 1973. Prior to that, in 1972, a. support order was entered, obligating appellee to pay $225 per month for appellant, and an equal amount for her sister. The order did not specify when these payments were to terminate. Appellee faithfully paid this amount until June of 1981, when he ceased making appellant’s share of the payments.

On September 2, 1981, appellant enrolled at Gannon University in Erie, Pennsylvania. Between her graduation from high school and enrollment at Gannon, she was employed at Wendy’s Restaurant and earned approximately $1300.00. She is not employed during the college semester. Appellant’s first semester bill at Gannon was $2430. Appellant paid this with a $2445 loan she had received. Aside from Gannon’s bill, appellant has had additional expenses of $437 during the semester, which have been paid partially with summer earnings, and partially with money provided by her mother and stepfather. (R. 14a).

Appellee, who has also remarried, is an attorney employed by the Bell Telephone Company. His assets include a home in which there is approximately $20,000 in equity: a $2400 savings account; $3500 in bonds; and, $3000 worth of AT & T stock. All assets just described are owned jointly with appellee’s present wife. Appellee also has approximately $238,000 worth of life insurance, some whole life and some term. He testified that he received a $2400 tax refund in 1981, and has a history of receiving tax refunds each year (R. 54a). Appellee’s income, net of taxes, is $2679.66 per month.

As stated above, appellee is obligated to pay $225 per month for the support of appellant’s sister, Jane. Appellee also, as of the date of the hearing, is obligated by court order to pay $1500 for support of his present wife and two minor children of that marriage. He and his present wife became estranged in May of 1981. At the time of the hearing, appellee was living with a friend and paying no rent or utilities. He testified that he was going to move out at the end of the month. He estimated that after moving, his non-discretionary expenses would be $1309 per month, discretionary expenses were estimated at $242 per month.

Appellant’s mother is currently unemployed and at home caring for the three year old child of her present marriage. Appellant’s mother and her husband own a house worth approximately $90,000. They also have joint savings accounts, stocks, and bonds, of which appellant’s mother did not know the value.

After considering all of the above, the master recommended that appellee be required to pay $150 per month to appellant, basing the recommendation on her conclusion that it would not be an undue hardship for him to do so. Appellee filed exceptions to the master’s adjudication. Oral argument on these exceptions were heard by the Honorable Charles B. Smith, who rejected the master’s recommendation, and issued an order dismissing appellant’s complaint for support. Specifically, the court below excluded from consideration of appellee’s ability to pay, all assets owned jointly with his second wife, stating, “These assets are subject to equitable distribution and defendant’s ultimate interest in these assets is uncertain.” (Slip opinion, p. 3). The court below accepted as reasonable appellee’s estimation of expenses, both discretionary and non-discretionary. It subtracted these expenses and appellee’s support obligations from a net pay of $2679.66, yielding a negative cash flow of $597.79 per month. It reasoned that to order appellee to support appellant in such circumstances constituted undue hardship.

On appeal, appellant makes three arguments: (1) that the court below erred in concluding that it would constitute undue hardship to order appellee to contribute to the support of appellant — specific errors in calculating appellee’s ability to pay are alleged; (2) that Pa.R.C.P. 1910.12 is unconstitutional; and, (3) that the court below erred in failing to conclude that appellee had a contractual obligation to support appellant throughout college. We shall consider these issues seriatim.

The legal obligation of a parent to support a child in college, absent a specific agreement to do so, was first set forth in Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), and has undergone little refinement since that time.

We believe that the law of this Commonwealth requires a father, under certain circumstances, to support a child while attending college and that this appeal brings squarely before us the question of what circumstances will justify the entry of a support order in favor of such child. In the first place, before the father should be required by court order to support a child in college, the child should be able and willing to successfully pursue his course of studies. Commonwealth ex rel. Grossman v. Grossman, supra, 188 Pa.Super. 236, 241, 146 A.2d 315 (1958). In the second place, the father should have sufficient estate, earning capacity or income to enable him to pay the order without undue hardship.
The duty of a parent to provide a college education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself. It is a natural law that a parent should spare no personal sacrifice to feed and protect his offspring. Therefore, beyond the barest necessities, a father should be required to sacrifice personal comfort in order to provide the necessities of a child too young to support himself. The same exacting requirement should not be demanded of a father to provide a college education for a child able to support himself.
We are not suggesting that a father should be required to support a child in college only when the father’s income or estate is such that he could do so without making any personal sacrifices. Most parents who send a child to college sacrifice to do so. No mathematical rule can be formulated to determine how extensive the hardship upon a father must be before it will excuse him from supporting a child in college. It must be a matter of judgment in a field where the judgments of sincere and advised men differ materially. However, we have no difficulty in concluding that under all the circumstances of this case the order of the court below imposes an undue hardship upon the defendant. (Emphasis in original).

Ulmer v. Sommerville, supra, 200 Pa.Superior Ct. at 643-44, 190 A.2d at 184.

As there is no dispute regarding appellant’s willingness or ability to do college work, the key question here is whether appellee father has sufficient estate, earning capacity, or income, to enable him to pay an order without undue hardship. The court below determined that he did not. Appellant is arguing on appeal that the court below incorrectly determined appellee’s assets, income, and expenses, hence, it unjustly concluded that appellee was unable to pay any support.

The principles applicable to determining a parent’s ability to pay support were thoroughly discussed in Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981). These principles, in relevant part, are set forth below:

It is well established in evaluating a parent’s support obligation the lower courts should consider the parent’s income (or potential earning power if there is a disparity between that figure and actual income) and the full nature and extent of the parent’s property interests and financial resources. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977); and see Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1967); Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974); Shaffer v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430 (1954). The parent’s stock holdings, and other investments, at their market value, are among the factors the lower court should consider. Commonwealth ex rel. ReDavid v. ReDavid, supra. And see Commonwealth ex rel. Gitman v. Gitman, supra; Commonwealth ex rel. Gutzeit v. Gutzeit, 200 Pa.Super. 401, 189 A.2d 324 (1963). Quite naturally, the court should consider a parent’s income, from whatever source; included in income should be monies received from the rental of real estate, but that ‘income’ must reflect actual available financial resources and not the óft-time fictional financial picture which develops as the result of depreciation deductions taken against rental income as permitted by the federal income tax laws. Commonwealth ex rel. ReDavid v. ReDavid, supra; Commonwealth v. Turnblacer, 183 Pa.Super. 41, 128 A.2d 177 (1956); Commonwealth ex rel. Rankin v. Rankin, 170 Pa.Super. 570, 87 A.2d 799 (1952). Otherwise put, ‘cash flow’ ought to be considered and not federally taxed income. See Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 266 Pa.Super. 301, 310 A.2d 672 (1973). The court must also consider the parent’s interest in jointly held assets, but it may not consider the entire value of joint property as the parent’s. Commonwealth ex rel. Gitman v. Gitman, supra.

Commonwealth ex rel. Hagerty v. Eyster, supra, 286 Pa.Superior Ct. at 568-69, 429 A.2d at 668-69.

Armed with the principles outlined above, we now turn to the lower court’s determinations. Appellant alleges numerous errors in calculation of income, expenses, and assets. We shall discuss below only those allegations which we find to have merit.

First, we find that the court below erred in its calculation of appellee’s monthly net income, in that Social Security deductions were miscalculated. Appellee’s bi-monthly paycheck stubs show a deduction of $139.93 per pay period. However, the maximum annual 1981 employee Social Security obligation was $1975.05 Thus, these deductions cease once this maximum is reached. The trial court’s calculations make no allowance for this, and in effect allows a yearly deduction of $3358.32, an excess of $1383.27 over the actual figure. If appellee’s monthly net income had been properly computed, taking this into account, it would be approximately $2794, not $2679.

The court below erred in its calculation of income in yet another respect. Appellee testified that in 1981 he received a $2400 Federal Income Tax refund, and that he has a history of receiving tax refunds each year. The court below, however, ignores this factor in its calculations. An individual is free to claim fewer allowances than he is entitled to on his W-4 federal income tax form. Doing so, consequently, increases the amount withheld from each paycheck, and decreases the net. However, any excess amounts withheld are returned to the taxpayer at the end of the year as a refund. We could not permit an individual to overpay his taxes all year, and then exclude the amount of his overpayment from calculation of that individual’s income. To do so works an injustice, especially here, where appellee testified that he has a history of receiving refunds.

The trial court’s errors, outlined above, would not necessarily require a reversal or remand. Adjusting appellee’s income to account for each of these does not alter the fact that appellee has a negative monthly cash-flow. It is because of a third, and most significant error, that we must reverse and remand.

This error is the trial court’s summary refusal to consider appellee’s interest in all property jointly owned with his second wife. Commonwealth ex rel. Hagerty v. Eyster, supra; Commonwealth ex rel. Gitman v. Gitman, supra. Specifically included in this property is approximately $20,000 equity in a home, $2400 in savings accounts, $3500 in bonds, and stock valued at approximately $3000. As stated earlier, the trial court reasoned that “these assets are subject to equitable distribution and defendant’s ultimate interest in these assets is uncertain.” (Slip opinion, p. 3). Yet, appellee’s own testimony, which was uncontradicted, was that there had not been a divorce action, or a claim for distribution, filed by either himself or his second wife (R. 47a). Aside from the question of whether an equitable distribution proceeding would render these assets completely unavailable — a we emphasize that this is not the question we are faced with here — the court below abused its discretion in concluding, on the basis of this record, that a divorce was imminent and inevitable.

Unfortunately, the record is devoid of relevant evidence regarding these jointly owned assets, such as whether, and what, dividends or interest is paid, etc. Therefore, we must remand to the court below for a determination of appellee’s ability to pay, taking into account appellee’s interest in the assets described above.

The remaining two issues raised by appellant shall be disposed of briefly.

Appellant’s second argument, that Pa.R.C.P. 1910.12 is unconstitutional, has been waived, as it is being raised for the first time on appeal. Pa.R.A.P. 302(a); Policino v. Ehrlich, 478 Pa. 5, 385 A.2d 968 (1978); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant’s third argument has also been waived. Although we admit that the master’s findings on the question of whether there was an agreement to support appellant throughout college are not as clear as they could be; one thing is certain, and that is that the master’s recommendation is not based on the existence of an agreement, it is based on a finding of lack of undue hardship. If appellant was dissatisfied with the master’s failure to find a contractual agreement, she should have filed exceptions. It is clear that appellant was content to prevail solely on a theory of lack of undue hardship until the lower court’s adverse determination. She then sought to reassert the contractual agreement on appeal. This is improper. Pa.R. C.P. 1910.12(e).

Order reversed and case remanded for proceedings consistent with this opinion. Jurisdiction is not retained by this court.

      . "Revised Uniform Reciprocal Enforcement of Support Act.” 42 Pa.C.S.A. § 6741 et seq.

      . Chester County has adopted Pa.R.C.P. 1910.12, as opposed to Pa.R. C.P. 1910.11.

      . We take judicial notice of this pursuant to 42 Pa.C.S.A. § 5327.

      . Pa.R.C.P. 1910.12(e) reads as follows:
      (e) Within ten days after the conclusion of the hearing, any party may file exceptions to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exceptions shall set forth a separate objection precisely and without discussion. Matters, not covered by exceptions are deemed waived unless, prior to entry of the final order, leave is granted to file exceptions raising those matters. (Emphasis added).


author: BROSKY, Judge:

text:
    473 A.2d 602
    Kenneth ALDRIDGE v. Faith ALDRIDGE and Monroe County Children’s Bureau. Appeal of Faith ALDRIDGE.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1983.
    Filed March 9, 1984.

      Marshall E. Anders, Stroudsburg, for appellant.
    Mark S. Love, Stroudsburg, for Kenneth Aldridge, appellee.
    Richard E. Deetz, Stroudsburg, for Monroe County, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   BROSKY, Judge:

The sole issue before us in this appeal is whether the lower court erred in transferring the instant custody proceedings to the State of Kentucky. Finding the order to be consistent with the provisions of the Uniform Child Custody Jurisdiction Act, (UCCJA) we affirm.

This action was commenced by the appellee, Kenneth Aldridge who is the father of the subject children, Elizabeth and Kenneth, and the former husband of appellant, Faith Aldridge. Mr. Aldridge filed a complaint seeking custody of the children in Monroe County.

The complaint alleged, and the answer admitted, that the father resides in Louisville, Kentucky. The complaint also averred that the mother resided in Monroe County, Pennsylvania, but she denied this in her answer and instead said that she resided in Toms River, New Jersey. The mother admitted that until May of 1982 the children resided with the parents in Kentucky, but averred that from May of that year until August 30, 1982 they resided with the mother. At a hearing held on April 15, 1983 it was disclosed by a case worker for the Children’s Bureau of Monroe County that Elizabeth and Kenneth had been placed in foster care on August 30, 1982, at which time their mother was hospitalized in the psychiatric unit of a hospital. The case worker then testified as to what she perceived to be the best interests of the children.

The father also testified and at the conclusion of his testimony the court asked counsel to research the law concerning jurisdiction because the court was concerned that this case would be more properly resolved in Kentucky. The court concluded that the case should indeed be transferred and so ordered. The court also directed that the custody in the Children’s Bureau should be terminated and that custody be given temporarily to the father, who was to return with the children to Kentucky and post a bond to ensure his compliance with the order.

Appellant contends that the court should have retained jurisdiction over the case since both parties consented to it and that its order deprived her of her due process rights and was in contravention of the terms of the Child Custody Act.

The Act, provides in relevant part at 42 Pa.C.S.A. § 5348:

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

In Hattoum v. Hattoum, 295 Pa.Super. 169, 174-75, 441 A.2d 403, 405 (1982) our court explained:

The Act has three major bases for jurisdiction: § 5344(a)(1) provides for “home” jurisdiction; § 5344(a)(2) provides for jurisdiction based on “significant contacts” among the various parties to the custody action and the locale in which the action has been brought; § 5344(a)(3) provides for “parens patriae” jurisdiction for emergency situations in which a child is abandoned, abused or dependent.

None of these bases calls for the exercise of jurisdiction by Pennsylvania. The first ground on which jurisdiction may be predicated is that the jurisdiction is the “home state” of the children at the time the proceeding is commenced. The “home state” is defined at 42 Pa.C.S. § 5343 as:

“Home state.” The state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, or in an institution, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

The Aldridge children were placed in the custody of the Children’s Bureau of Monroe County on August 30, 1982. Mr. Aldridge filed the custody complaint in March 28, 1983. Although it might seem that Pennsylvania was the “home state” of Elizabeth and Kenneth, we decline to exercise jurisdiction on that basis in this case since we find Pennsylvania to be an inconvenient forum.

Aside from the fact that the children’s maternal grandfather apparently resides in Pennsylvania and that they stayed at his home with their mother for a short while in 1982, there are no contacts with Pennsylvania other than the unfortunate events of August, 1982 which led to the children’s placement in Monroe County, by acquaintances of their mother.

Instead the “significant contacts” test points to Kentucky as the most appropriate forum.

In its opinion the court explained that the factual basis for its determination that the case should be transferred to Kentucky as follows:

(1) Prior to June of 1982, the parties were residents of Kentucky,
(2) The natural father continues to maintain his residence in the State of Kentucky,
(3) The natural mother has removed herself not only from Kentucky, but also Pennsylvania and currently is domiciled or at least [is] a resident of the State, of New Jersey, and
(4) These children have no contact with Pennsylvania except by Court Order directing the Monroe County Children’s Bureau to exercise custody.

Furthermore, at the hearing the lower court noted that the home studies submitted in the case were hearsay, coming as they did from New Jersey and Kentucky and that evidence will be available in Kentucky that is not available in Pennsylvania. The court observed and we agree that:

the most significant relationship would be the State of residence when the family was unified, that being Kentucky and that this is only on the doorstep of Pennsylvania because of the process of the wife removing herself from the jurisdiction of Kentucky and has since removed herself from Pennsylvania.

We would add that the record indicates that the father has lived in Kentucky since 1981 and that he lives in a house which he owns. Although the complaint indicates that in 1980 the father, mother and children lived in Indiana, they apparently lived in Kentucky previous to that time, as the father indicated that the family resided in Kentucky when the children were born.

Exercise of jurisdiction by Pennsylvania would, we believe, contravene one of the purposes of the Act. See 42 Pa.C.S.A. § 5348(a)(5) (quoted supra) and § 5342(a)(3) which states one of the purposes as:

Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.

See also Commonwealth ex rel. Earl R.D. v. Linde H.S., 297 Pa.Super. 78, 443 A.2d 307 (1982).

We agree with the interpretation given the Nebraska “significant connection” provision of the UCCJA in a recent opinion by the Nebraska Supreme Court. The Court wrote in Mace v. Mace, 215 Neb. 640, 647, 341 N.W.2d 307 (1983):

The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: Jurisdiction exists only if it is the child’s interest, not merely the interest of convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state, (citation omitted) (emphasis in original).

Nor do we believe that the court deprived appellant of her chance to be heard. No permanent custody order was entered here. Compare Joseph E.H. v. Jane E.H., 283 Pa.Super. 109, 423 A.2d 739 (1980). The court could have issued its order at any stage in the proceedings, presumably before any hearing was held. See § 5348(a) supra. The order could have been issued on the basis of the facts admitted by the pleadings. Furthermore, the court was within its power in sua sponte raising the jurisdiction question. § 5348(b).

The court granted temporary custody to the father, pending action by the Kentucky court. 42 Pa.C.S.A. § 5348(e) provides:

Disposition. — If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.

Given the finding by the court that Pennsylvania has no significant contacts with these parties or their children, the court acted properly in seeing that they were removed from the Commonwealth and returned to the State where jurisdiction properly lies. To have had the children remain in Pennsylvania in foster care when this state has no real contacts with them would surely not have been in the children’s best interests. To have returned them to their mother in New Jersey, rather than Kentucky, the appropriate forum, would not have aided resolution of the controversy-

We conclude that the lower court acted in compliance with the Uniform Child Custody Jurisdiction Act and did not deprive appellant of her due process rights. The order is therefore affirmed.

      . 42 Pa.C.S.A. § 5341 et seq.

      . It is with these parties, or some of them, that the mother resides in New Jersey, and with whom she was apparently staying at the time of her admission to the hospital in August, 1982.

      . No one has argued that the case should have been transferred to New Jersey, the mother's current residence, and we would find no reason to do so. The children may have resided in that state for a few months in the summer of 1982 (the record is not clear on this point), but they have not lived there before that time or since.

      . We note also that "parens patriae" jurisdiction would not be appropriate in this case. There was some discussion at the hearing as to whether these children were abandoned by the mother. No such finding was made, however, and the lower court concluded that in fact, although the children had been placed in the custody of the Children’s Bureau, no adjudication of dependency had been made.

      . Unlike the situation in E.H., appellant was present at the hearing when the lower court asked counsel for information regarding the jurisdiction question. The other cases cited by appellant in support of her argument that she was denied due process are not pertinent to the facts of this case, Shafer v. Goal, 312 Pa.Super. 399, 458 A.2d 1020, 1021 (1983), for example held that records could not be used in custody cases unless the author is present. The transfer of this case to Kentucky was designed to guard against just such a denial of due process.


author: WIEAND, Judge:

text:
    473 A.2d 606
    COMMONWEALTH of Pennsylvania v. Vincent F. EVANS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1983.
    Filed March 16, 1984.

      Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Vincent Evans was tried nonjury and was found guilty of recklessly endangering another person because of the manner in which he operated a motor vehicle in the City of Harrisburg on October 10, 1977. He was sentenced to pay a fine and serve a short term of imprisonment' in the Dauphin County Prison. On direct appeal, he contends (1) that the information was defective because it contained a rubber stamped facsimile of the district attorney’s signature, and (2) that his trial was not held within the time constraints of Pa.R.Crim.P. 1100.

The first issue raised by appellant is controlled by the decision of the Supreme Court in Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983). The Court there held that a rubber stamped facsimile of the district attorney’s signature was sufficient compliance with the requirement of Pa.R.Crim.P. 225(b) that an information be signed by the attorney for the Commonwealth. Therefore, we discuss only the second of appellant’s contentions.

Appellant was arrested and a criminal complaint was signed on October 10, 1977. The Rule 1100 run date was April 10, 1978. On November 4, 1977, after preliminary hearing, the case was returned to court and appellant was released on bail. The bail certificate did not include the date on which any subsequent court appearance was required. Appellant did not appear for formal arraignment on January 4, 1978, and a capias was issued for his arrest. It was served on June 16, 1981, more than three years later. Trial commenced on August 3, 1981, obviously well beyond the run date. Because no petitions for extension of time had ever been filed, appellant was entitled to have the criminal charge against him dismissed unless the time from January 4, 1978 to June 16, 1981 was excludable. He filed a pre-trial motion to dismiss, which the trial court denied after hearing.

The Commonwealth had the burden of proving that this time was excludable. See: Commonwealth v. Leib, 303 Pa.Super. 272, 276, 449 A.2d 684, 686 (1982); Commonwealth v. Iancovetti, 298 Pa.Super. 441, 444, 444 A.2d 1257, 1259 (1982); Commonwealth v. Goldwire, 279 Pa.Super. 451, 453, 421 A.2d 286, 287 (1980). In Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), the Supreme Court held that “a defendant on bail who fails to appear at a court proceeding, of which,he has been properly notified, is unavailable from the time of the proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.” Id., 481 Pa. at 356, 392 A.2d at 1331 (emphasis added). Proper notice is notice which is reasonably calculated to give actual notice. See: Commonwealth v. Snyder, 280 Pa.Super. 127, 132-133, 421 A.2d 438, 440-441 (1980). If the Commonwealth fails to prove proper notice, it must establish that it was unable to locate the defendant despite the exercise of due diligence. Commonwealth v. Snyder, supra, 280 Pa. Superior Ct. at 133, 421 A.2d at 441. See also: Commonwealth v. Minoske, 295 Pa.Super. 192, 204, 441 A.2d 414, 420 (1982).

“[I]n reviewing a hearing court’s ruling that the Commonwealth has met its burden, we shall consider only the evidence presented by the Commonwealth and so much evidence presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Leib, supra 303 Pa.Super. at 276-277, 449 A.2d at 686, quoting Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977). Accord: Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979); Commonwealth v. Dixon, 295 Pa.Super. 425, 428, 441 A.2d 1305, 1307 (1982). Although a hearing court’s findings will normally command great deference, such findings will be reversed on appeal if the findings are not supported by evidence. Commonwealth v. Hamlin, 503 Pa. 210, 215-16, 469 A.2d 137, 139 (1983) (plurality opinion); Commonwealth v. Hall, 475 Pa. 482, 486-487, 380 A.2d 1238, 1240-1241 (1977); In re Estate of Lohm, 440 Pa. 268, 274, 269 A.2d 451, 455 (1970); Jon M.W. v. Brenda K., 279 Pa.Super. 50, 55, 420 A.2d 738, 741 (1980); Commonwealth v. Dunklin, 219 Pa.Super. 189, 193, 280 A.2d 629, 631 (1971).

In the instant case, the Commonwealth offered no evidence. Appellant testified that he did not receive notice of arraignment on January 4, 1978. He said that he had been a continuous resident of Harrisburg and had been employed by the Polyclinic Hospital. His testimony was uncontradicted. The trial court nevertheless disregarded appellant’s testimony and relied upon an unsworn statement by the prosecuting attorney that “defendant was sent notice to appear for arraignment.” The court found as a fact not only that notice had been given, but also that it had been proper notice. This was error. There simply was no evidence to support the trial court’s finding. No witness testified that notice had been sent. The district attorney’s unsworn statement was inadequate to permit a finding that notice had been given. An unsworn statement by the prosecuting, attorney is not evidence and is insufficient to establish a fact which the Commonwealth is required to prove. See: Commonwealth v. Ehredt, supra 485 Pa. at 195, 401 A.2d at 360-361; Commonwealth v. Delpiano, 290 Pa.Super. 510, 515-516, 434 A.2d 1260, 1263 (1981); Commonwealth v. Thompson, 285 Pa.Super. 155, 156-157, 426 A.2d 1188, 1189-1190 (1981); Commonwealth v. McNeill, 274 Pa.Super. 257, 261-262, 418 A.2d 394, 396-397 (1980). Cf. Borough of Glenfield v. C. & E. Motors, Inc., 22 Pa.Cmwlth. 115, 118, 347 A.2d 732, 733 (1975). Moreover and in any event, the district attorney’s statement in this case was wholly inadequate to support a finding that proper notice had been given. The record is wholly silent regarding the nature of the notice or the manner in which it had allegedly been given.

The trial court, in denying appellant’s post trial motions, relied upon information recited by the Commonwealth in its brief, filed in the court below, to the effect that formal, written notice of the date of arraignment had been sent to appellant by prepaid letter, properly addressed. If the Commonwealth had offered evidence of these facts at the pre-trial hearing on appellant’s motion to dismiss, we would unhesitatingly agree that such evidence, if believed, would have been sufficient to give rise to a presumption that notice of the arraignment had been received by appellant. This evidence would have supported a finding of proper notice. In that event, the decision in Cohen would have been determinative. The fact is, however, that no such evidence was offered or received. An averment of fact appearing only in a Commonwealth brief, filed in the trial court in opposition to appellant’s post-verdict motion in arrest of judgment, was not an adequate substitute for evidence. See: Commonwealth v. Young, 456 Pa. 102, 114-115, 317 A.2d 258, 264 (1974) (only facts in record may be considered by appellate court); McAllonis v. Pryor, 301 Pa.Super. 473, 448 A.2d 5 (1982) (information in brief not evidence in record); Commonwealth v. Rini, 285 Pa.Super. 475, 481-483, 427 A.2d 1385, 1389-1390 (1981) (a court may not consider allegations in a brief which are not in the record); Commonwealth v. Doyle, 275 Pa.Super. 373, 390, 418 A.2d 1336, 1345 (1979) (a court may not accept as fact a statement that appears only in a party’s brief); Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 323-324, 404 A.2d 697, 701 (1978) (letter attached to brief not part of record); Solomon v. Corleto, 20 Pa.Cmwlth. 361, 366-367, 340 A.2d 920, 922-923 (1975) (information attached to briefs is not evidence). Moreover, the briefs filed post trial in the trial court and relied upon by that court were not made a part of the record on appeal. They are not before us. For these reasons, we are unable to accept the Commonwealth’s assertion that notice was mailed to appellant. The fact is, as the record unequivocally discloses, that the Commonwealth was given ample opportunity to offer evidence at the pre-trial hearing, but declined to do so. It offered no evidence whatsoever to prove that any notice of the arraignment had ever been given to appellant.

The trial court said that it disbelieved appellant’s testimony that he had received no notice of arraignment. The burden, however, was not on appellant to prove lack of notice; the burden, rather, was on the Commonwealth to prove that proper notice had been given. The fact that the trial court chose to disbelieve appellant’s testimony did not relieve the Commonwealth from its burden of proving proper notice. Unfortunately for its purposes, the Commonwealth failed to offer any evidence that such notice had been given. Similarly, the Commonwealth failed to prove that due diligence had been exercised in attempting to find appellant. Indeed, there was no evidence that any attempt whatsoever had been made to find appellant during the three years in which the case remained untried.

The Commonwealth has already had full opportunity to prove that this period was excludable. To remand for an additional hearing would be to allow the Commonwealth an impermissible “second bite.” Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980). Therefore, appellant must be discharged.

The judgment of sentence is reversed, and appellant is discharged.

      . The 180th day was April 8, 1978, a Saturday. The last day on which trial could properly commence, therefore, was Monday, April 10, 1978.


text:
    473 A.2d 610
    COMMONWEALTH of Pennsylvania v. Kenneth HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1983.
    Filed March 16, 1984.

      Joseph W. Bullen, III, Assistant Public Defender, Media, for appellant.
    Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   CIRILLO, Judge:

This is an appeal from the Judgment of Sentence dated November 30, 1981, in the Court of Common Pleas of Delaware County. On October 30, 1980, the appellant, Kenneth Harris, was convicted in a jury proceeding, of robbery and conspiracy. Post-trial motions were denied by order, dated November 20, 1981. Appellant was sentenced to a term of imprisonment of five to ten years on each conviction, which terms were to be served consecutively to any term then being served by him. Appellant filed a motion for reconsideration of sentence on December 10, 1981, contending that the sentence was unduly harsh, which motion was denied without a hearing, on December 14, 1981. This appeal followed.

On June 2, 1980, the appellant and co-defendant, Oliver Slacum, entered the Parkside Auto Parts Store in Parkside, Delaware County, Pennsylvania. Paul Nester, an employee, was the only other individual present in the store at that time. Harris requested a piece of equipment. While Nester was locating it in the catalogue on the counter, co-defendant Slacum went behind the counter and held a gun to Nester’s head. Then Slacum ordered Nester to lie down on the floor. After both unsuccessfully attempted to open the cash register, Slacum ordered Nester to get up and do it. Slacum then took approximately $25.00. He then demanded to know where the rest of the money was. Nester showed him the petty cash box which contained approximately $180.00. Slacum then tied Nester up. While Nester was being tied up, Slacum took from him a watch and gold chain.

Richard Umbrecht then entered the store. He observed that there was no one behind the counter, but a black man was standing by another entrance to the store. This man then asked Umbrecht about automobile paint. At that time, a person emerged from the back of the store, and asked Umbrecht if he could help him. When Umbrecht requested a certain part, he was told that he could not be helped at that time, but to come back in an hour. Subsequently, when Nester heard Slacum and Harris leave the store, he untied himself and called the police.

Nester gave the police a verbal description of both men. From this information, a composite sketch was prepared of Slacum. However, Nester was unable to identify either of these individuals from five books containing approximately 700 photographs.

Nester’s full time job was a position at Delaware County Prison as an auto-shop instructor. On July 17, 1980, he observed Harris inside the prison. He immediately recognized Harris, and mentioned this to another employee at the prison. However, he did not report this information to the police at that time. Then on July 23, 1980, he saw Slacum at the prison. The next day Nester contacted the police and informed them that he had seen the two men who had robbed him. Subsequently, on August 13,1980, Nester was shown two photographic arrays from which he selected pictures of Harris and Slacum.

On appeal, appellant raises several issues relating to the identification testimony. Initially, appellant argues that it was error for the trial judge to permit evidence of Mr. Nester’s photo identification made subsequent to the in-person identification of the appellant. The basis for this contention is that the evidence was not relevant and that it tends to mask the inconsistencies that existed in Nester’s identification. Evidence which tends to establish a material fact, or which tends to make a fact at issue more or less probable, is relevant. Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79 (1978); Commonwealth v. Minton, 288 Pa.Super. 381, 432 A.2d 212 (1981) (reargument denied). The admission or exclusion of evidence is a matter for the discretion of the trial court, and the trial court will only be reversed when a clear abuse of that discretion is shown. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981); Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978). Although identification testimony can be found by the court to be so weak and uncertain that a jury cannot be allowed to find the defendant guilty based on it, Commonwealth v. Paschall, 214 Pa.Super. 474, 257 A.2d 687 (1969).

In the instant matter, the judge did not abuse his discretion in admitting the evidence of Mr. Nester’s subsequent photo identification. The appellant was identified by the victim, in person, in the prison prior to trial and at trial. In addition, Mr. Nester’s identification at trial was extremely positive. Despite repeated attempts on the part of defense counsel to weaken his identification, he remained unshakable. Therefore, the trial judge did not err in admitting this evidence.

Appellant further asserts that the verdict was against the weight of the evidence in that when considered in its totality the identification testimony was insufficient to implicate appellant beyond a reasonable doubt. On the basis of the preceding discussion, this argument of appellant’s is totally without merit. It is also clear, from the jury’s decision that it found the testimony quite sufficient.

Appellant next contends that the trial judge erred in his refusal to charge the jury that Mr. Nester’s testimony should be considered with caution due to his initial misidentification of the defendant. First, we must point out that Mr. Nester never misidentified the appellant. He merely failed to pick him out of 700 pictures shown to him by police. Because of his inability to pick the appellant out at this time the appellant argues that the victim’s identification was weakened and therefore, he was entitled to this cautionary instruction.

The Pennsylvania Standard Criminal Jury Instruction Identification (No. 4:07) says that if the identification was weakened and others fail to identify the appellant as the actor, a doubt is cast on that evidence. Mr. Umbrecht, the man who came into the store while it was being robbed, failed to identify either of the individuals that were there from photos. In fact, he could not identify either of the individuals at trial. However, as stated before, Mr. Nester was quite positive in his testimony at trial and he had ample time to observe the two robbers during the time that they were in the store. In addition, the judge thoroughly instructed the jury on the factors to be considered in evaluating the identification. In Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), the leading case in Pennsylvania on identification, the Supreme Court stated:

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received -with caution-indeed the cases say that “ ‘his [positive] testimony as to identity may be treated as the statement of a fact’ ”...
On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the court should warn the jury that the testimony as to identity must be received with caution.

Id., 378 Pa. at 424, 106 A.2d at 826-27.

We have also reviewed the trial judge’s charge relating to the weight to be accorded Mr. Nester’s photo identification of the appellant, which was as follows:

Now, there was testimony in this case that Mr. Nester went through some books and ... that there were about a 130 to 140 photographs in each of those books and the defense has brought out that when he went through them he did not pick out any of the Defendants’ photographs that were in there. You certainly may consider that in your determination and you may consider the books as you went through them.
You may consider the circumstances of Mr. Nester’s seeing these individuals when he came upon them and you will recall his description of that, how he spotted them under those circumstances. There is also testimony there was a photographic array and these are the photographs that are in the file folder there that were admitted into evidence and there are a few photographs there, a smaller number of individuals there, and the testimony was that they were shown to Mr. Nester and that each of those instances he pointed out one of the Defendants from that array.
Now, that is a bit unusual the way it arises in this case because normally a witness is shown that array before he identifies the person____ [S]o that I point that out to you because I don’t know what the weight, it certainly wouldn’t have the same weight as if he had picked it out prior to the identification in the prison, ...

It is clear from the above that the trial judge properly pointed out to the jury the unusual nature of the subsequent photo identification of the appellant. Any further instructions were unnecessary.

Appellant’s final contention is that the sentence of the court of five to ten years each for the robbery and conspiracy convictions was impermissibly severe. The scope of appellate review of a sentencing decision is limited to sentences that exceed the statutorily prescribed limits or those that are so manifestly excessive as to constitute a constitutionally impermissible sentence. Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982); Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982).

Appellant was convicted of robbery which offense is graded as a felony of the first degree. He was also convicted of conspiracy. Conspiracy to commit robbery, a first degree felony, is graded as a felony of the second degree. The terms of imprisonment for these offenses is prescribed in 18 Pa.C.S.A. § 1103 as follows:

A person who has been convicted of a felony may be sentenced to imprisonment as follows:
(1) In the case of a felony of the first degree, for a term which shall be fixed by the court at not more than 20 years.
(2) In the case of a felony of the second degree, for a term which shall be fixed by the court at not more than ten years.

The sentences imposed by the trial judge did not exceed these statutory provisions.

Furthermore, in addressing the reasons given by the lower court for the sentence handed down, a recent en banc panel of this Court held:

In conclusion, we specifically reject the suggestion of cases such as Commonwealth v. Kraft, [294 Pa.Super. 599, 440 A.2d 627] supra, and Commonwealth v. Smith, [301 Pa.Super. 204, 447 A.2d 314] supra, that it is proper to reach a [Commonwealth v.] Riggins [474 Pa. 115, 377 A.2d 140] issue when that issue has not been raised specifically both before the trial court and before this Court. If the defendant fails to raise a Riggins issue specifically at both stages, the issue is waived. Furthermore, if, in the context of an excessive sentence claim, we can determine from the entire record before us, that the sentence imposed was not excessive and there was no abuse of discretion, as we have done in the instant case, the inquiry is at an end. We will not assess the adequacy of the reasons offered by the trial court in support of the sentence imposed, nor will we, in that context, remand for further elaboration by the trial court, even though the reasons, by themselves, may not be sufficiently detailed under Riggins and, if properly challenged, would prove insufficient to support the sentence.

Commonwealth v. Martin, 328 Pa.Super. — at —, 477 A.2d 555 at 562 (1984).

The appellant has not questioned the adequacy of the reasons given by the sentencing court, therefore, this issue has been waived.

The lower court gave the following reasons for the sentence it imposed:

In imposing this sentence I have taken into consideration the pre-sentence investigation record. I have taken into consideration the lengthy past record of the Defendant. I have taken into consideration his part in this offense, and based upon that, it is the Court’s feeling that there is no other disposition other than a lengthy prison sentence would be appropriate and it is for those reasons that I have imposed that sentence.

In view of these stated reasons, as well as the ample record in this matter which we have thoroughly studied, we find that the sentence was not excessive and that no abuse of discretion has been shown. See: Rooney, supra. Accordingly, we affirm the judgment of sentence of the court below.

Judgment of sentence affirmed.

      . The appellant was tried with his co-defendant Oliver Slacum.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1 eff. June 6, 1973. As amended 1976, June 24, P.L. 425, No. 102, § 1, imd. effective. 18 Pa.C.S.A. § 3701.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973. 18 Pa.C.S.A. § 903.

      . Appellant was also fined ten dollars for each conviction and $205.00 restitution to the victim. However, on appeal he is only challenging the severity of the prison sentence.

      . The record is unclear as to whether defendant’s motion for reconsideration of sentence was filed within 10 days after he was sentenced as required by Pa.R.Crim.Proc. 1410. Normally, a failure to do so results in a waiver of the right to move for modification. Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). However, in this case, appellant was not told on the record at the time of sentencing as required by Pa.R.Crim.Proc. 1405(c)(3) that he had only ten days in which to move for modification. In such circumstances, we will not find a waiver. Commonwealth v. Dozier, 294 Pa.Super. 249, 439 A.2d 1185 (1982).

      . 18 Pa.C.S.A. § 3701(b).

      . 18 Pa.C.S.A. § 905.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973.