author: HESTER, Judge:

text:
    465 A.2d 33
    CITY OF PHILADELPHIA v. Margaret TAYLOR and Rita Jackson. Appeal of Rita JACKSON.
    Superior Court of Pennsylvania.
    Argued March 24, 1983.
    Filed Aug. 26, 1983.

      David E. Shapiro, Philadelphia, for appellant.
    Henry Jacobson, Philadelphia, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

This is an appeal from the Order of December 17, 1979, which compelled appellant, Rita Jackson, to accept the sum of money tendered by appellee, Margaret Taylor, for the redemption of the .property situate at 2603-2617 Poplar Street, Philadelphia, Pennsylvania, which had been sold by the Sheriff for the non-payment of real estate taxes on April 3, 1978.

The facts of the case are as follows:

On December 2, 1974, a municipal lien for unpaid real estate taxes in the amount of eight hundred seventy-one dollars and forty-eight cents ($871.48) was recorded by the City of Philadelphia in the Prothonotary’s Office, as a lien against the property owned by appellee, Margaret Taylor, at 2603-2617 Poplar Street, Philadelphia. Thereafter, on April 3, 1978, the property was exposed for sale by the Sheriff of Philadelphia County and purchased by appellant. A deed by the Sheriff conveying the premises to appellant was duly acknowledged on April 10, 1978.

On March 12, 1979, appellee filed a Rule to Show Cause why she should not be permitted to redeem the property in question. Judge Gelfand, of the Court of Common Pleas of Philadelphia County, granted appellee’s Rule to Show Cause, and a hearing was set for May 7, 1979. Appellant was served with a copy of appellee’s Rule and was given notice of the hearing date.

On May 7, 1979, Judge Gelfand conducted the hearing, ex parte, due to appellant’s absence and appellee was given until July 7, 1979, in which to complete the acts necessary to redeem the property.

On July 5, 1979, appellee filed another Petition to Extend, requesting an additional twenty days in which to redeem the property. Appellant filed an Answer to the Petition, requesting the following relief: 1) that the Order of May 7, 1979, permitting appellee to redeem her property be rescinded; 2) denial of appellee’s request for extension of time; and 3) termination of appellee’s right of redemption.

On July 18, 1979, Judge Gelfand granted appellee’s Rule to Show Cause and scheduled a hearing for September 10, 1979, which was thereafter continued to December 3, 1979.

Following argument, the Honorable Stanley M. Green-berg granted appellee’s Petition to Extend and entered an Order granting appellee until December 27, 1979, to redeem the property.

The issue in the present case evolves from the language in 53 P.S. § 7293(a), which provides as follows:

§ 7293. Redemption

“(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may except as provided in subsection (c) of this section, redeem the same at any time within one year from the date of the acknowledgment of the sheriffs deed therefor, upon payment of the amount bid at such sale; the cost of drawing, acknowledging, and recording the sheriffs deed; the amount of all taxes and municipal claims, whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other income therefrom, and a sum equal to interest at the rate of ten per centum per annum thereon, from the time of each of such payments. If both owner and creditor desire to redeem, the owner shall have the right so to do only in case he pays the creditor’s claim in full. If more than one creditor desires to redeem, the one who was lowest in lien at the time of sale shall have the prior right, upon payment in full of the claim of the one higher in lien. Within the year, one who was lower in lien may redeem from one higher in lien who has already redeemed, and the owner may redeem from him; and so on throughout, in each case by paying the claim of the one whose right was higher; and one higher in lien may redeem from one lower in lien, unless his claim is paid; but in each case the right must be exercised within the year.
(b) Any person entitled to redeem may present his petition to the proper court, setting forth the facts, and his readiness to pay the redemption money; whereupon the court shall grant a rule to show cause why the purchaser should not reconvey to him the premises sold; and if, upon hearing, the court shall be satisfied of the facts, it shall make the rule absolute, and upo.n payment being made or tendered, shall enforce it by attachment.
■ (c) Uninhabited residential property sold to a city of the first class at a sale under a tax or a municipal claim may be redeemed within three months from the date of the acknowledgment of the sheriff’s deed therefor subject to compliance with the other requirements of this act with respect to redemption.”

Appellant, in the present appeal, raises the issue as to whether the one year redemption period in 53 P.S. § 7293 is mandatory or discretionary. If the redemption period is mandatory, then appellant contends that the lower court erred in granting extensions to July 7, 1979, and December 27, 1979, well after the April 10, 1979 expiration of the redemption deadline.

It is to be noted that this appears to be a question of first impression regarding the time restriction of 53 P.S. § 7293. Thus, in interpreting this statute, our legislature has set forth various guidelines for ascertaining its correct meaning. First, under 1 Pa.C.S.A. § 1928(c), this redemption statute is to be liberally construed so as to effect its object and to promote justice. Also, another relevant consideration in ascertaining the meaning is that “when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

In the present case, there is no question that the initial petition was timely filed since 53 P.S. § 7293(b) provides that the correct method of instituting a redemption proceeding is by petition. Here, appellee’s petition was filed on March 12, 1979, well before the April 10, 1979, statutory deadline. Therefore, we can not agree with appellant’s position that, under § 7293, all the acts of redemption must be completed within one year from the date of the acknowledgment of the sheriff’s deed. When a petition is filed and a rule to show cause is granted, a hearing is to be held as expeditiously as possible so as to determine whether the owner of the property sold at a sheriff’s sale has met the requirements of redemption. Thus, the court’s holding of a hearing on May 7, 1979, and the subsequent July 7, 1979, as the last day for tendering payment for redemption, was within the dictates of § 7293.

However, the grants of two additional extensions to July 17, 1979, and thereafter to December 27, 1979, raises a much more difficult question which due to the incompleteness of the record, we are unable to address. Section 7293 accords unto the owner a period of one year from the date of the acknowledgment of the Sheriffs deed to redeem the property.

The objective of the one year redemption is clear. The purchaser of the property would not be able to obtain a clear title if the one year limitation for redemption were not enforced. In the present case, the lower court cited to appellant’s alleged failure to supply the necessary financial information under 53 P.S. § 7293(a), thus preventing appellee from completing the acts necessary for redemption. See page 2 and 3 of Judge Greenberg’s opinion. If this is true, appellant cannot now object to the delay which she, herself caused. However, nothing appears of record to substantiate this allegation.

Therefore, we must remand to the court below with instructions to conduct a hearing in order to ascertain whether appellee was prevented from complying with the requirements of the Redemption Act by conduct of appellant or appellant’s counsel. Jurisdiction is retained.

POPOVICH, J., concurs in the result.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    465 A.2d 35
    COMMONWEALTH of Pennsylvania v. James SHERMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1981.
    Filed Aug. 26, 1983.
    Petition for Allowance of Appeal Denied Dec. 27, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and BECK, JJ.
   PER CURIAM:

Appellant, James Sherman, was found guilty by a jury of burglary, theft and receiving stolen property. Post-verdict motions were argued and denied, and appellant was sentenced from ten to twenty years incarceration on the burglary conviction; the other crimes merged for sentencing purposes.

Prior to trial, appellant sought to forego his right to a jury trial in favor of a bench trial pursuant to Pa.R.Crim.P. 1101 which provides:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record and shall be in the following form:
IN THE COURT OF COMMON PLEAS OF THE
COUNTY OF_CRIMINAL ACTION NO_OF
_ 19_ COMMONWEALTH OF PENNSYLVANIA
v.
WAIVER OF JURY TRIAL
AND NOW,-, 19_, comes the defendant and
pleads not guilty and with the consent of his attorney and the approval of the judge waives a jury trial and elects to be tried by a judge without a jury.
Defendant
Attorney for Defendant
Judge

The Commonwealth objected to this waiver and asserted its right to a jury trial pursuant to 42 Pa.C.S. § 5104(c) which states: “In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.” The lower court denied appellant’s Pa.R.Crim.P. 1101 motion for a bench trial and, in doing so, relied upon 42 Pa.C.S. § 5104(c). Appellant questioned on appeal the constitutionality of 42 Pa.C.S. § 5104(c), and we certified that issue to the Supreme Court for decision.

The Supreme Court, 500 Pa. 369, 460 A.2d 1074 (1982) remanded this matter to us for proceedings consistent with Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), in which the same constitutional question was certified by this Court. Sorrell held 42 Pa.C.S. § 5104(c) to be unconstitutional:

In enacting 42 Pa.C.S. § 5104(c), a statute inconsistent with an existing rule of criminal procedure, the Legislature exceeded its constitutional authority and obligation to promulgate rules of procedure to govern courts throughout the Commonwealth, 42 Pa.C.S. § 5104(c) must be deemed suspended pursuant to Pa. Const.Art. V. § 10(c) and declared unconstitutional.

Id., 500 Pa. at 361, 456 A.2d at 1329.

The trial court in the instant case treated 42 Pa.C.S. § 5104(c) as reposing in the Commonwealth an absolute right to trial by jury such that assertion of that right by the Commonwealth necessitated denial of appellant’s Pa.R. Crim.P. 1101 motion. In other words, absent the Commonwealth’s consent, appellant was not allowed to waive his jury trial. The Court stated: “If the Commonwealth allows you to have [a bench trial], you may have it.” Notes of Testimony (“N.T.”) 12/7/79 at 20. The Court also stated: “[U]nder the present law you cannot have anything other than a jury trial.” N.T. 12/7/79 at 17-18. Additionally, the Court noted in its opinion: “[U]nless and until the Supreme Court of Pennsylvania suspends 42 Pa.C.S. § 5104, this Court must enforce the Commonwealth’s right to trial by jury.” Lower court opinion at 5.

This Court has previously remanded in light of Sorrell. Commonwealth v. Maxwell, 312 Pa.Super. 557, 459 A.2d 362 (reargument denied May 25, 1983); Commonwealth v. Giaccio, 311 Pa.Super. 259, 457 A.2d 875 (1983) (reargument denied April 18, 1983). Citing Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978) and Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 (1976), Giaccio noted that Pa.R.Crim.P. 1101 does not require the lower court to accept a defendant’s waiver of his right to a jury trial. That decision is within the sound discretion of the lower court. In Giaccio, we stated:

We acknowledge that [Lee and Garrison] don’t go very far in defining the boundaries of the lower court’s discretion when it is asked to approve a defendant’s waiver of a jury trial.[] But in the absence of any provision in Rule 1101 defining these boundaries, we must proceed case-by-case.
We therefore reverse and remand for new trial, with instructions to the lower court that if appellant on re-trial again states his intention to waive a jury trial, the court should proceed under Rule 1101 to decide whether to approve the whiver, with the additional instruction that if the court decides to disapprove the waiver, it should state the reasons for its decision, so that on any further appeal we may decide whether it has acted within its discretion.

Id., 311 Pa.Super. at 263-64, 457 A.2d at 877.

We reverse judgment of sentence and remand for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . While the trial judge did note that he would not wish to hear the case non-jury because of his awareness of appellant’s prior record, N.T. 12/7/79 at 20, we find from the above-cited clear manifestations of his intent, that the trial judge predicated his denial of appellant’s motion for a waiver of jury trial upon 42 Pa.C.S. § 5104(c). Under Sorrell, that reliance upon Section 5104(c) constituted error, and we therefore reverse and remand for a new trial.

      . We noted in Giaccio: “In [Lee and Garrison] we upheld the refusal to give approval, saying that the defendant was ‘judge-shopping.’ ” Id., 311 Pa.Superior Ct. at 263, 457 A.2d at 876.

      . In light of our disposition, we need not address appellant’s other claims that evidence of other criminal activity was improperly admitted at trial and that evidence resulting from the allegedly illegal arrest should have been suppressed as should have allegedly illegal pre-trial identifications.


author: WIEAND, Judge: McEWEN, Judge,

text:
    465 A.2d 38
    Patricia J. RICCI v. Paul A. RICCI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1982.
    Filed Sept. 2, 1983.

      James C. Haggerty, Philadelphia, for appellant.
    Diana S. Donaldson, Philadelphia, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

In this equity action, exceptions to a decree nisi were dismissed, without considering the merits thereof, because the exceptant failed to file a brief within the time constraints of Montgomery County Rule of Civil Procedure 301(d). On appeal, it is argued that the court erred in denying a request for an extension of time within which to file the exceptant’s brief and that, in any event, the local rule is invalid because it conflicts with the Pennsylvania Rules of Civil Procedure. We reverse and remand for further proceedings.

The complaint in this equity action was filed by Patricia J. Ricci, who sought a decree awarding specific performance of a property settlement agreement against her former husband, Paul A. Ricci. After the pleadings had been closed, Paul filed a motion for summary judgment on the grounds that the agreement was illegal, in violation of public policy, and unenforceable as a matter of law. The motion for summary judgment was denied immediately prior to trial. After trial, the court made and filed findings of fact and conclusions of law, together with a decree nisi. Both parties filed exceptions. On August 6, 1980, Patricia praeciped all exceptions on the argument list and thereby triggered Montgomery County R.C.P. 301(d) which required the parties to file briefs in support of their respective exceptions within thirty days. Paul did not file his brief within the required time, and the court denied a request for an extension. On September 26, 1980, Paul’s exceptions were dismissed by an order which provided, in part, as follows: “Plaintiff having filed a praecipe to have both plaintiff’s and defendant's exceptions listed for argument and thirty (30) days having passed and defendant having failed to file briefs, defendant’s exceptions are, therefore, dismissed as required by M.C.R.C.P. 301(d).” (Emphasis supplied.) Paul appealed.

There can no longer be any doubt that a Court of Common Pleas has the right to promulgate local rules of procedure. See: 42 Pa.C.S.A. § 323. Local rules, however, must be consistent with and not in conflict with the Pennsylvania Rules of Civil Procedure. Gonzales v. Procaccio Brothers Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979), allocatur denied October 29, 1979.

In Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983), the Supreme Court considered Montgomery County R.C.P. 302(d), a local rule which provided for the automatic termination of an action for failure to file timely briefs in certain interlocutory matters. The Court held that “[a] rule which arbitrarily and automatically requires the termination of an action in favor of one party and against the other based upon a non-prejudicial procedural mis-step, without regard to the substantive merits and without regard to the reason for the slip, is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of Civil Procedure.” Id., 501 Pa. at 240, 460 A.2d at 1096. See also: DeAngelis v. Newman, 501 Pa. 144, 460 A.2d 730 (1983).

The Supreme Court’s reasoning applies with equal force to the Montgomery County rule which is in issue in the instant case. Moreover, Rule 301(d) is in conflict with Pa.R.C.P. 1519(b) which requires that “exceptions shall be heard by the court en banc, which shall sustain or dismiss them in whole or in part, and affirm, modify or change the decree nisi accordingly, or enter any other appropriate order.” This rule does not contemplate a local rule which requires mandatory and inflexible determinations of exceptions according to the dates of filing briefs and without regard for the merits or other considerations of equity and fairness. See and compare: Harley Davidson Motor Co., Inc. v. Hartman, 296 Pa.Super. 37, 442 A.2d 284 (1982).

In the instant case, the trial court dismissed Paul’s exceptions solely because his counsel had failed to file a brief within the time allowed therefore by Montgomery County R.C.P. 301(d). The record permits no other explanation; and the court’s order itself confirms that it was entered in reliance upon the local rule. This constituted the same strict application of a local filing rule, without regard for considerations of equity and fairness, which the Supreme Court condemned in Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, supra.

Reversed and remanded for proceedings consistent with this opinion.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

There can be no question but that the rationale for the decision of the Pennsylvania Supreme Court in Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983), with regard to Montgomery County Rule of Civil Procedure 302(d), is every bit as applicable to Montgomery County Rule of Civil Procedure 301(d). Certainly our courts must be slow to reject the cause of litigants in pro forma fashion since the failure of counsel to provide for technical compliance is a matter deserving of judicial review and of the exercise of judicial discretion. My study of the opinion of the hearing judge indicates, however, that the hearing judge did not proceed in the summary fashion prescribed by the Rule but, instead, considered the circumstances surrounding the delay as well as the reason for the failure of appellant to comply with the Rule before concluding that an appropriate sanction was to sustain the exceptions of appellee and to dismiss the exceptions of appellant. Nonetheless, as the majority notes, the order of the hearing judge specifically declares that the exceptions that had been filed by appellant “are, therefore, dismissed as required by M.C. R.C.P. 301(d).” We have, therefore, no alternative but to remand.

      . Montgomery County Rule of Civil Procedure 301(d) provides in pertinent part, as follows:
      "(d) Briefs required—In all cases, upon filing of a praecipe for argument, the following procedures with respect to briefs shall be followed:
      (1) The moving party or parties shall file briefs within 30 days of the date of filing of the praecipe ....
      (2) The responding party or parties, within 30 days of the filing of the moving party’s brief, shall likewise file four copies of his brief
      (3) If the briefs of either the moving party or responding party are not timely filed within the period above stated, unless the time shall be extended prior thereto by the court for good cause and reason shown, the court administrator shall notify the court, and the court shall, without further notice, mark the matter granted or dismissed, depending upon which party does not comply with the brief filing requirements of this rule
      This rule was amended on October 27, 1980, but the amended rule is not before us.

      . Because of appellant’s failure to file a timely brief in response to appellee’s brief, the court also sustained appellee’s exceptions and modified its adjudication in accordance therewith.

      . The trial court's opinion prepared in response to a petition for reconsideration suggests that "[appellant’s] attorneys defended this case without a thorough knowledge of the local rules and the diligence with which they are applied by this Court.”


author: McEWEN, Judge: HOFFMAN, Judge,

text:
    465 A.2d 40
    COMMONWEALTH of Pennsylvania v. Charles MAYFIELD, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 2, 1983.
    Filed Sept. 2, 1983.

      Larry D. Feldman, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

This is an appeal from a judgment of sentence imposed following a finding of guilt after a non-jury trial by the distinguished Philadelphia County Common Pleas Court Judge William Porter on charges of simple assault, aggravated assault, recklessly endangering another person, and possessing an instrument of crime. Appellant was sentenced to a term of imprisonment of from two to eight years for aggravated assault and a concurrent term of imprisonment of from two to five years for possessing an instrument of crime. Appellant now argues that trial counsel was ineffective for failing to obtain a continuance in order to obtain the presence of eyewitnesses to the offenses allegedly committed by appellant. We affirm.

This case arises out of an altercation between appellant and a street vendor who was conducting business at the corner of Broad Street and Girard Avenue in Philadelphia. Appellant approached the street vendor from behind, drew a pistol from a bag and fired several shots at the vendor. While the victim lay on the ground, appellant fired another shot into his back and then fled from the scene.

The assistant district attorney had during the trial been under the impression that the names and addresses of three witnesses known to the Commonwealth had already been supplied to trial counsel for appellant. When the prosecutor, at the conclusion of the presentation of the defense, realized that those witnesses had not been identified to trial counsel for appellant, counsel for the Commonwealth supplied that information and indicated a willingness to permit the defense to reopen its case. While the record does not reflect the content or nature of the discussion that then ensued between the prosecutor and trial counsel for appellant, the transcript does indicate that trial counsel did not proceed to move to reopen the defense so as to apply for a delay. Appellant now asserts that trial counsel was ineffective since he “neither attempted to reopen his case or continue it in order to obtain the presence and testimony of probably helpful witnesses.” (Brief of Appellant at 5) (emphasis supplied). Appellant makes no other reference to these witnesses except to state that “[t]heir testimony might have been of incalculable aid to the appellant.” (Brief of Appellant at 6) (emphasis supplied).

When we study a claim of ineffectiveness of counsel, we first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa.Super. 63, 73, 452 A.2d 1039, 1044 (1982). Our review of a claim that counsel was ineffective is governed by the standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

[Counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

Id., 427 Pa. at 604-05, 235 A.2d at 352-53. (emphasis in original).

A failure to attempt to produce material witnesses can be a sound basis for an ineffectiveness claim, Commonwealth v. Jennings, 489 Pa. 578, 414 A.2d 1042 (1980); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), and our appellate courts are not hesitant to remand appeals to the trial court for an evidentiary hearing to determine the grounds for the conduct of counsel when the reasons, if any, for the inaction cannot be determined from the record. Jennings, supra; Twiggs, supra. It might even seem that the remand directed by this court in Commonwealth v. Stafford, 307 Pa.Super. 278, 453 A.2d 351 (1982), is authority for the need to remand, since we there remanded for an evidentiary hearing despite the fact that there was “no record of the number or identity of witnesses the appellant wished to present, or of the content of their testimony.” Id., 307 Pa.Superior Ct. at 287, 453 A.2d at 355. However, a study of that decision reveals that the basis for the ineffectiveness claim was apparent to this court since trial counsel there had embarked upon the presentation of an alibi defense, had introduced testimony that the truck of appellant, which had allegedly been used in the crime, was elsewhere at the time of the crime, and had assembled witnesses to testify concerning the whereabouts of appellant but was precluded from the presentation of such testimony by reason of his failure to provide timely notice of the assertion of an alibi defense as required by Pa.R.Crim.P. 305(C)(1)(a), 42 Pa.C.S.A. Thus, while the witnesses whom Stafford would have had his trial counsel present were not identified, the nature of their testimony and the benefit to Stafford of such testimony was apparent. That scenario differs vastly from the instant case since the claim of ineffectiveness here is based only upon vague assertions that certain witnesses might have been helpful to appellant if these witnesses had appeared at the trial and does not (1) identify the witnesses or (2) indicate the witnesses had been interviewed and (3) would have been helpful or even (4) that they would have provided material evidence.

Our Supreme Court in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981), rejected a vague general claim of ineffectiveness that resembles the one raised in the instant case when it refused to remand a murder case for an evidentiary hearing since the appellant on direct appeal merely argued that trial counsel was ineffective in failing to gather affirmative evidence which would have justified the transfer of the appellant to juvenile court. The court therein stated the reasons for its decision not to remand for an evidentiary hearing:

Trial counsel’s failure to gather and marshall said evidence on appellant’s behalf could constitute ineffectiveness only if such evidence existed____ Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id,., 492 Pa. at 563, 424 A.2d at 1335. See also, Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983) (holding that in an appeal from an order denying a PCHA petition, abstract, unsupported allegations of the ineffectiveness of all prior counsel are rejected where appellant failed to state what was wrong with the stewardship of counsel and what prejudice resulted).

Judgment of sentence affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

Without an evidentiary hearing to explore trial counsel’s alleged failure to take reasonable steps to interview known eyewitnesses, we cannot conclude his representation of appellant was constitutionally effective. I therefore dissent.

“It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the cáse and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty.” Commonwealth v. White, 303 Pa.Superior Ct. 550, 553, 450 A.2d 63, 64 (1982), quoting ABA Standards Relating to the Defense Function, § 4.1. Although counsel may have a legitimate strategy for not calling eyewitnesses at trial, “there is no basis for the decision not to interview them nor attempt to do so.” Commonwealth v. Mabie, 467 Pa. 464, 475, 359 A.2d 369, 374 (1976). “In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.” Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975). Here, appellant testified he acted in self-defense. New counsel alleges the unheard-from eyewitnesses would be helpful to this defense. Nothing on the record indicates whether trial counsel ever attempted to learn if these identified eyewitnesses would corroborate appellant’s version, or why trial counsel so summarily dismissed their potential testimony. The petition thus raises a factual question of trial counsel’s effectiveness requiring an evidentiary hearing. I therefore dissent, and would remand.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 907.

      . Appellant had filed a Post Conviction Hearing Act petition alleging trial counsel's ineffectiveness for failing to perfect an appeal on his behalf. The PCHA court granted appellant the right to appeal from the judgment of sentence nunc pro tunc, and thus, the proceeding before the Supreme Court was a direct appeal.


author: MONTEMURO, Judge:

text:
    465 A.2d 43
    In re ADOPTION of A.M.B., D.A.B. and B.S.B., Jr., Minors. Appeal of M.W., Respondent and Natural Mother.
    Superior Court of Pennsylvania.
    Argued June 15, 1983.
    Filed Sept. 2, 1983.

      Joseph A. Lakowski, Pitts ton, for appellant.
    Richard Balnave, Wilkes-Barre, for participating party.
    Before CERCONE, President Judge, and McEWEN and MONTEMURO, JJ.
   MONTEMURO, Judge:

On December 23, 1981, the Court of Common Pleas of Luzerne County, per the Honorable Charles D. Lemmond, Jr., issued a decree terminating the parental rights of M.W. and B.S.B. as to their children A.M.B., D.A.B. and B.S.B., Jr. Exceptions to the decree were filed by the mother, M.W. On March 17, 1982, after consideration of the briefs of the parties, and oral argument, the court, per the Honorable Chester Muroski, dismissed the exceptions. Judge Muroski “specifically agree[d] with the Findings of Fact and Conclusions of Law” as set forth in the opinion of Judge Lemmond. M.W. Appeals from the order dismissing her exceptions.

The opinion by Judge Lemmond states that "... it is clear that the mother and father have failed to perform parental duties owed to their children for a period in excess of six months.” (Lower Court Op. at p. 8). Thus he found involuntary termination proper based upon 1 P.S. § 311(1).

At the time of the adjudication it was necessary only to prove “by a preponderance of the evidence” that the parents refused or failed to perform his or her parental duties. IN RE Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977); In re Adoption of McAhren, 460 Pa. 63, 331 A.2d 419 (1975).

One week after the trial court’s order dismissing the exceptions, the United States Supreme Court announced its decision in Santosky, et al v. Kramer, Commissioner, Ulster County Department of Social Services, 455 U.S. 745, 102 S.Ct., 1388, 71 L.Ed.2d 599 (1982), in which the Court held that the burden of proof required in involuntary termination of parental rights cases was “clear and convincing evidence.” Id. at 768, 102 S.Ct. at 1402, 71 L.Ed.2d at 616.

Recently, an en banc panel of this court in In re Adoption of M.E.T., 313 Pa.Super. 316, 318, 459 A.2d 1247, 1248 (1983) held:

[T]he higher burden of proof required by Santosky must be applied to all cases which had not been finally decided orí appeal at the time the Santosky opinion was filed, and that cases pending on appeal at the time Santosky was filed must be remanded to the trial court for further proceedings.

The court went on to establish the appropriate procedure on remand stating:

We do not ... feel that the lower court must, in all cases, hold new evidentiary hearings. Rather, we adopt the procedure advocated by the Appeals Court of Massachusetts in Custody of A Minor (No. 1), 13 Mass.App. 1088, 436 N.E.2d 172, app. den., 368 Mass. 1105, 438 N.E.2d 75 (1982) and Custody of A Minor (No. 3), 14 Mass.App. 1013, 441 N.E.2d 768 (1982). Thus, we hold that cases shall be remanded with a direction to the trial court that it determine, after hearing arguments of counsel, whether new evidentiary hearings are required. If the court is convinced that counsel would have tried the case differently had it known that a clear and convincing evidence standard would be applied, or if the court concludes that the evidence should be expanded and/or brought up to date, then it should schedule new evidentiary hearings. If, on the other hand, the court is convinced that new evidentiary hearings are not required, the court need only reconsider its prior findings in light of the clear and convincing standard and modify those findings as necessary. We feel that this procedure adequately protects the parents’ right to ensure that findings of parental unfitness are made on the basis of clear and convincing evidence.

Id., 313 Pa.Superior Ct. at 323, 459 A.2d at 1251.

Consequently, we must remand this case to the trial court for proceedings in accordance with In Re Adoption of M.E.T., Id.

Order Vacated. Case remanded for proceedings as directed herein. Jurisdiction is relinquished.

      . The December 23, decree was a determination of six petitions for involuntary termination of parental rights filed by the Luzerne County Children and Youth Services on December 3, 1980 pursuant to Sections 311, 312 and 313 of the Act of July 24, 1970, P.L. 629, No. 208, 1 P.S. § 101 et seq., hereinafter the Adoption Act of 1970.

      . Appellee’s contention that the trial court’s use of the word "clear” in its opinion at p. 8 meets the standards of Santosky. We are not persuaded by this argument. Cf. In Re Anderson, 317 Pa.Super. 490, 464 A.2d 428 (1983) (trial court’s finding that evidence was "clear, competent and compelling” was at least as stringent as the Santosky standard).


text:
    465 A.2d 644
    Wilhelmina DOVER, Appellant, v. PHILADELPHIA HOUSING AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1982.
    Filed July 22, 1983.
    Reargument Denied Oct. 3, 1983.

      Arthur E. Schmidt, Philadelphia, for appellant.
    Harold L. Frank, Philadelphia, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

Appellant, Wilhelmina Dover, is a tenant at Mantua Hall, a high-rise apartment building operated and maintained by the appellee, Philadelphia Housing Authority [PHA]. At various times during her tenancy Mrs. Dover complained to PHA about defects in her apartment that endangered the health and safety of herself and her minor children. Although Mrs. Dover gave PHA notice of these defects, PHA failed to repair them. Mrs. Dover withheld rent from PHA in the amount of $727.00.

On September 18, 1978, Mrs. Dover filed a grievance pursuant to a stipulation to arbitrate, requesting that repairs be made and that she be awarded an abatement of rent. Following a full hearing, the arbitrator, on March 20, 1979, entered the following award in Mrs. Dover’s favor. The appellant was awarded repairs of all outstanding defects in the apartment; an abatement of the back rent arrearages in the amount of $100.00; and a prospective abatement of future rent until the repairs were completed. In addition, the arbitrator ordered the Mantua Hall Tenants Council to pay to PHA $496.00 it was holding in escrow.

Approximately five months after delivery of the award PHA had not made the repairs ordered by the arbitrator and Mrs. Dover had not paid to PHA the arrearages of $727.00 less the $100.00 abatement in provision three of the award.

On August 3, 1979, Mrs. Dover filed with the Court of Common Pleas a petition to confirm the arbitration award pursuant to Section 9 of the Arbitration Act of 1927. On August 21, 1979, Mrs. Dover filed the petition with the Motion Court, and PHA filed an Answer with New Matter on the same date. PHA’s New Matter alleged, inter alia, that the proposed order included in Mrs. Dover’s petition omitted the provision ordering the payment of $496.00 to PHA by the Mantua Hall Tenants Council, and that the award of a future abatement of all rent was beyond the jurisdiction of the arbitrator, which was at law and did not extend to the granting of equitable relief. PHA also submitted a proposed order which omitted the provision granting a future abatement of rent to Mrs. Dover.

Mrs. Dover responded by filing preliminary objections in the form of a motion to strike new matter alleging that PHA’s proposed modification in its New Matter was barred by the three month statute of limitations for modifying or vacating awards as set forth in 5 P.S. § 173. On September 5. 1979, the lower court signed the order submitted by PHA modifying the award of the arbitrator. Mrs. Dover filed a timely appeal from this order.

The lower court found that the modification of the arbitrator’s award was justified by an implied consent of the parties because each submitted a proposed order at variance with the actual award of the arbitrator. The court opted for the order submitted by PHA because it “more nearly conformed to that which the arbitrator has [sic] originally directed ...” Lower Court Opinion at 2.

The appellant seeks to have the lower court’s order reversed and the arbitrator’s award confirmed in all respects on the basis that the modification was improper because it was ordered pursuant to a petition to confirm filed after the statutory period in which modifications are allowed.

The appellee counters with the arguments: that Mrs. Dover waived the statute of limitations for modification by submitting a proposed order which was at variance with the award of the arbitrator; that the lower court’s order properly recognized the limitation inherent in the Arbitration Act of 1927 that only awards which conform to a judgment in an action at law are enforceable; and that Mrs. Dover has not preserved the statute of limitations defense for appeal.

We conclude for reasons that will be explained at length infra that the order of the lower court was in error—although not in a manner entirely contemplated by the parties. The order granting equitable relief was beyond the jurisdiction of the court, and therefore, we must reverse.

The starting point of our analysis is a determination of the grant of authority to the arbitrator. The authority of an arbitrator is determined by the provisions of the agreement to arbitrate. City of Scranton v. Shoemaker, 59 Pa.Commw. 141, 428 A.2d 1048 (1981). Herein the agreement is the stipulation of the parties in Brown v. PHA, supra, which states:

4. The arbitrator’s jurisdiction does not extend to tort claims or to claims for personal property damage, whether arising in tort or contract. The arbitrator’s jurisdiction shall include, but not be limited to, rent abatement claims. (Emphasis added).

Thus, we find that the agreement providing for the arbitration procedure to be used in grievance cases expressly contemplated that the arbitrator’s jurisdiction should include the abatement of a tenant’s rents and consequently, the award as made was valid.

The second question, whether the lower court has the authority to enforce the equitable relief granted in the award must be answered in the negative. The only provision in the stipulation entered in Brown v. PHA, supra, which has any bearing on procedures subsequent to the arbitration states:

3. If either party should appeal an arbitrator’s award, such appeal shall be governed by the provisions of the Pennsylvania Arbitration Act of1927. A party contesting an arbitrator’s award shall have thirty (30) days to notify the other party of its intention of appealing, and sixty (60) days thereafter to perfect such appeal. (Emphasis added).

The parties herein apparently construed this provision to mean that all proceedings to modify, vacate or confirm the arbitration award, as well as the grounds therefor, must be in conformity with those set forth in the Arbitration Act of 1927, 5 P.S. 161, et seq. It would seem, however, that such a construction would negate the ability of the parties to obtain enforcement of one of the arbitrator’s expressly granted powers; i.e., to grant rent abatements.

Section 14 of the Act, 5 P.S. § 174, sets forth the manner in which arbitration awards are enforced:

... The arbitration shall be docketed in the prothonotary’s office as if it were an action at law in the prothonotary's office, with the moving party as plaintiff and the other parties as defendant or defendants.
The judgment so entered shall have the same force and effect, in all respects and be subject to all the provisions of law relating to a judgment in an action at law, and it may be enforced as such in accordance with existing law. (Emphasis added)

This provision has been construed by our Supreme Court as a limitation on the enforcement of arbitration awards. In Goldstein v. International Ladies Garment Workers Union, 328 Pa. 385, 393-94, 196 A. 43, 47-48 (1933), the court stated:

... the fact is ... that the act is not adaptable to controversies in which the relief sought is in the nature of a mandatory decree ...
Arbitration acts almost identical with that in Pennsylvania, or at least closely similar thereto, exist in practically all of the states, but so far as research discloses, only in Pennsylvania and Rhode Island statutes are the words “at law" added as a limitation to the effect of a judgment confirming the arbitration award; in most of the acts provision is made that awards shall have the effect not only of judgments in actions at law, but also of decrees in equity or orders in any form of action whatever. For some reason which may have seemed wise to the legislature, our statute was limited in the manner pointed out, and unless it is amended there does not exist in Pennsylvania any statutory provision for the enforcement of arbitration awards other than those which could be made the subject of judgments in actions at law. (footnotes omitted)

Thus, we are constrained to find that the lower court erred in confirming any aspect of the award which granted equitable relief. There is little doubt that provision one ordering the repairs to Mrs. Dover’s apartment is an order for specific performance, an equitable remedy and therefore not enforceable by the court. However, we feel the question of the nature of the prospective rent abatement— whether legal or equitable—warrants some discussion.

Prospective rent abatement by its nature is not susceptible to reduction to a judgment for ascertainable damages. The Restatement, Second, of Property (Landlord and Tenant), § 11.1, p. 358, Comment (6) sets forth different methods by which rent abatement can be accomplished including; (1) a defense to an action by a landlord to evict the tenant for failure to pay rent, (2) an action by the tenant to recover excess rent (rent stipulated in the lease) during the period in which he was entitled to an abatement, or (3) a declaratory judgment to establish the tenant’s right to rent abatement and the amount of the abatement. The first two methods seem to address themselves to abatement of past rent and thus, are susceptible to reduction to judgment. Teodori v. Werner, 490 Pa. 58, 66-67 n. 7, 415 A.2d 31, 34-35 n. 7 (1980); Pawco v. Bergman Knitting Mills, Inc., 283 Pa.Super. 443, 424 A.2d 891 (1980). However, the final method, declaratory judgment, is one amenable to either retrospective or prospective relief and seems akin to what the arbitrator in the instant case awarded.

We find that the provisions of the arbitration award granting prospective and mandatory relief are beyond the purview of Section 4 of the Arbitration Act of 1927, and thus, are not enforceable in a proceeding governed by that act. Thus, both the provision granting the prospective rent abatement and the provision requiring PHA to make repairs to Mrs. Dover’s apartment were not enforceable by an order of the court of common pleas enforcing the arbitration award.

The cases cited by Mrs. Dover in support of the proposition that mandatory awards are enforceable are inapposite since they deal with arbitration procedures in labor disputes. These cases adopt the decision of the United States Supreme Court in United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960) which expansively defined the role of an arbitrator in labor disputes, especially with regard to his authority to fashion remedies to meet a wide range of situations. Local 1594, United Transportation Union v. SEPTA, 28 Pa.Commw. 323, 368 A.2d 834 (1977); Teamsters Local Union No. 77 v. Pennsylvania Turnpike Commission, 17 Pa.Commw. 238, 331 A.2d 588 (1975). Additionally, there is no indication in either of the above cited cases that enforcement was sought through the Arbitration Act of 1927.

Having decided that the common pleas court lacked the statutory authority to enforce the arbitration award, we proceed to the question of the effect of PHA’s failure to file a petition to vacate or a petition to modify within the three month period prescribed by the Act.

In Emporium Area Joint School Authority v. Amundson Construction and Building Supply Co., 402 Pa. 81, 166 A.2d 269 (1961), the court reversed the order of the lower court modifying an arbitration award where the petition to modify or vacate the award was filed over five months after delivery of the arbitration award. The court ruled that a petition to vacate or modify an arbitration award must be filed within three months of the delivery of the award to the parties or it must be dismissed. However, we find the supreme court’s decision in Emporium Area Joint School Authority, supra, to be inapposite. In that case, the court found the three month statute of limitation to be a bar to modifying an award otherwise enforceable by the court; i.e., an award reducible to a judgment at law.

In the present case, the proposed modification of the award in the Answer and New Matter was an objection to the authority or jurisdiction of the court to enforce the award. When a court takes action beyond the power conferred on it by law (its jurisdiction), its action is a nullity, and objection to it cannot be waived by the defendant. Commonwealth v. Hall, 291 Pa. 341, 354, 140 A. 626, 631 (1928); Commonwealth v. Boerner, 281 Pa.Super. 505, 513 n. 6, 422 A.2d 583, 587 n. 6 (1981). Thus, we find no bar to PHA’s pleading of a jurisdictional defect by Answer and New Matter to Mrs. Dover’s petition to confirm.

Accordingly, we order that the order of the court of common pleas modifying the award of the arbitrator be vacated and we remand the case to the lower court for entry of an order in conformance with this opinion. We do not retain jurisdiction.

Vacate and remand.

      . A stipulation between the parties in Brown v. PHA, C.A. No. 72-2083 (E.D.Pa.1974), was entered on April 3, 1978 amending and clarifying a consent decree entered in that case. The stipulation established a grievance procedure whereby the parties would proceed to arbitration pursuant to the Pennsylvania Arbitration Act of 1927, 5 P.S. § 161, et seq. Brown was a class action and Mrs. Dover was apparently a member of the class.

      . I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the Arbitration Agreement entered into by the above-named Parties, and having been duly sworn and having heard the proofs and allegations of the Parties, AWARD, as follows:
      FINDINGS OF FACT
      1. Claimant leased a unit at 3500 Fairmount Avenue, Apt. 703 for herself and her one minor child from PHA in April, 1973. The present monthly rental is $52.00.
      2. The unit is located in Mantua Hall, an 18-story high rise building owned and operated by the Philadelphia Housing Authority.
      3. There is a leak from the soil pipe at the ceiling into the bathroom.
      4. There is falling plaster in the bathroom and rear bedroom.
      5. The sink stops up constantly and spigots run continuously.
      6. The pilot light on the stove is defective.
      7. Floor tile is worn and cracked in kitchen, living room and bedroom.
      8. There is an intermittent leak over the toilet.
      9. The heat and hot water are intermittent.
      10. There are arrearages of $727.00.
      AWARD
      1. Claimant is entitled and hereby awarded repairs to all outstanding defects listed in L & I reports of June, 1975, violation C4 of the November 26, 1975 report and all defects listed in the Building Inspection Report of January 10, 1979.
      2. Claimant is entitled and hereby awarded a monthly abatement until all repairs mentioned in paragraph 1 above are corrected.
      3. Claimant is entitled to a rent abatement of $100.00.
      It is hereby ordered that the Mantua Hall Tenants Council pay $496.00 to PHA.

      . We note that the arbitration in this case was governed by the Arbitration Act of 1927, Act of April 25, 1927, P.L. 381, No. 248, § 1 el seq., 5 P.S. § 161 et seq., and not the Uniform Arbitration Act, Act of October 5, 1960, P.L. 693, No. 142, 50(a), 42 Pa.C.S.A. § 7301 et seq. Thus, both the petition to confirm and the present appeal filed by Mrs. Dover must be judged under the standards applicable to the former act. Cf Maxton v. PHA, 308 Pa.Super. 444, 454 A.2d 618 (1982).

      . Pursuant to Local R.C.P. 140

      . Pursuant to Local R.C.P. 140

      . It is interesting to note that PHA did not object to provision one which mandated the repairs to be done to Mrs. Dover’s apartment. This provision clearly calls for specific performance, an equitable remedy.

      . Subsequently, the lower court dismissed Mrs. Dover’s Preliminary Objections. We note that the lower court’s action taken after Mrs. Dover filed her notice of appeal is contrary to PA.R.A.P. 1701, and is therefore void.

      . See footnote 1, supra.

      . The amendment foreseen by the supreme court was, in fact, enacted as part of the Uniform Arbitration Act. Section 16, 42 Pa.C.S.A. § 7316 states:
      Upon granting of an order of court confirming, modifying or correcting an award, a judgment or decree shall be entered in conformity with the order. The judgment or decree may be enforced as any other judgment or decree. Subject to general rules, costs of any application to the court and of the proceedings subsequent thereto, and disbursements may be imposed by the court, (emphasis added)

      . Federal test adopted for review of arbitrators awards appealed under Pa.R.J.A. No. 2001 (rescinded see 42 Pa.C.S.A. § 763(b)). Local 1594, United Transportation Union v. SEPTA, supra; Teamsters Local Union No. 77 v. Pennsylvania Turnpike Commission, supra.

      . 5 P.S. § 169.

      . 5 P.S. § 170.

      . 5 P.S. § 173.


author: VAN der VOORT, Judge: POPOVICH, Judge,

text:
    465 A.2d 650
    COMMONWEALTH of Pennsylvania v. Chester George FULTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1983.
    Filed July 22, 1983.
    Reargument Denied Oct. 4, 1983.
    Petition for Allowance of Appeal Denied May 8, 1984.

      Alexander H. Lindsay, Jr., Butler, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant’s original conviction for statutory rape and attempted homicide was reversed by this court in Commonwealth v. Fulton, 271 Pa.Superior Ct. 430, 413 A.2d 742 (1980); he was granted a new trial due to a defective voir dire of the jury. At a second trial, the appellant was found guilty of statutory rape and attempted homicide. His appeal raises seven contentions of error. We will discuss the seven contentions in the same order as addressed by appellant’s counsel. As we find no merit to such claims, we affirm.

I. Did the Court err in holding that the crime of statutory rape, a violation of 18 Pa.C.S. § 3122, is a lesser included offense of the crime of forcible rape, a violation of 18 Pa.C.S. § 3121?

The information filed in this case charged that appellant, in company with others, did “wilfully and unlawfully, knowingly and intentionally engage in sexual intercourse with one ... Strothers, age 13, by forcible compulsion or threat of same ...”, citing 18 Pa.C.S. § 3121, (forcible rape) but not citing specifically § 3122 (statutory rape). In his charge, at the end of the first trial in March 1978, Judge Dillon gave the jury the alternatives of returning one of three verdicts: guilty of rape; guilty of statutory rape; and not guilty. The jury returned the second verdict.

In the second trial, which took place in January 1981, with Judge Kiester presiding, the court limited the Commonwealth to the charge of statutory rape, and attempted murder, as to which there had also been a verdict of guilty in the first trial. Guilty verdicts were returned on both counts.

It is the appellant’s contention, relying upon the case of Commonwealth v. Walker, 468 Pa. 323, 332, 362 A.2d 227, 231 (1976) that (forcible) rape (§ 3121) and statutory rape (§ 3122) are two separate and distinct crimes, mutually exclusive, and that the information filed against this appellant charged a crime of forcible rape. Therefore, appellant contends the evidence submitted by the Commonwealth, to the extent it establishes statutory rape (presumably consensual) constitutes a fatal variance from the offense charged in the information (“by forcible compulsion or threat of same ... ”). Therefore, he believes the statutory rape charge should be dismissed.

Appellant misreads Walker, as requiring his discharge. Walker does demonstrate that forcible rape and statutory rape are two different offenses against the Commonwealth. The court found, that under the facts of that case, the two offenses were “mutually exclusive.” Walker could not be sentenced for both as there was only one criminal act accomplished. Appellant overlooks two important aspects of that decision. First, the prosecution was based on the 1966 version of 18 P.S. § 4721. Subsection (a) provided for prosecution for unlawful carnal knowledge against the will of the victim of any age, while (b) pertained only to consensual sexual relations with a female under the age of 16. The current enactments provide:

§ 3121. Rape

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is incapable of consent.
§ 3122 Statutory rape
A person who is 18 years of age or older commits statutory rape, a felony of the second degree, when he engages in sexual intercourse with another person not his spouse who is less than 14 years of age.

A close reading of § 3122 reveals that consent is not required for a statutory rape conviction. Unlike the preceding § 4721, intercourse by force or with consent is punishable under the current enactment. Therefore, an acquittal of forcible rape does not bar a conviction for statutory rape arising from the same incident.

This brings us to the second point which appellant overlooks in his analysis of Walker, 468 Pa. 323 at 333 n. 5, 362 A.2d 227 at 232 n. 5. Footnote number 5 reads:

Although convictions for the crimes of statutory rape and rape based on a single act of intercourse are mutually exclusive under 18 P.S. § 4721, we express no opinion concerning the right of the Commonwealth to charge a defendant in an information or indictment with both crimes in the alternative. Indeed, given the proof problems inherent in the law of rape, there may well be situations where it is necessary and proper to charge both crimes as alternatives.

The court thereby, explicitly refused to address the issue whether both crimes could be alleged when only one act was performed. Implicitly therefore, the court also did not determine whether statutory rape was a lesser included offense of rape and hence need not be specifically charged in a criminal information. This brings us to the focus of the problem. Appellant argues that since Walker distinguishes between the two crimes, the second jury is barred from finding that the victim consented since the first jury found she had not. Therefore, he claims, the Commonwealth should have charged him in a second count with consensual, but underage sexual intercourse.

The trial court however found that the information, even if “not artistic enough”, was adequate to charge appellant with statutory rape as it indicated the victim was “age 13.” In the alternative, the trial court found statutory rape a lesser included offense of rape. (Opinion, p. 12)

A purported variance between the indictment and the offense proved will not be fatal to the Commonwealth’s case unless it could mislead the' defendant at trial, involves an element of surprise prejudicial to the defendant’s efforts to prepare his defense, precludes the defendant from anticipating the prosecution’s proof, or otherwise impairs a substantial right of the defendant. Commonwealth of Pope, 455 Pa. 384, 317 A.2d 887 (1974). Generally stated, the requirement is that a defendant be given clear notice of the charges against him so that he can properly prepare a defense. Commonwealth v. Wolfe, 220 Pa.Superior Ct. 415, 289 A.2d 153 (1972).

Commonwealth v. O’Brien, 303 Pa.Superior Ct. 189, 191, 449 A.2d 642, 643 (1982). See also Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979); and Commonwealth v. Schomaker, 293 Pa.Superior Ct. 78, 437 A.2d 999 (1981). In the current appeal, we find that the purported variance is not fatal as appellant had clear notice of the charges.

The information charged that appellant had engaged in .sexual intercourse with a thirteen year old female. The fact that the Commonwealth stated its intent to prove in addition to statutory rape, also that such rape was unconsented to, could not have surprised the appellant. Appellant was not misled; he was apprised that he was accused of having sex with a thirteen year old victim. While it would have been preferable for the Commonwealth to have outlined the allegations under both sections 3121 and 3122, we do not find that retrial on § 3122 should be barred because of such oversight.

As we find that any variance between the information and the proof at trial is not fatal, we need not determine whether statutory rape is a lesser included offense of rape.

II. Did the Court err in denying counsel for the defendant the opportunity to cross-examine a Commonwealth witness concerning the character, motivation and bias of the witness, and more specifically, the substance of any agreement or understanding between the witness and the Commonwealth, whereby the witness would receive lenient treatment in exchange for his testimony?

III. Did the failure of the defendant’s trial counsel to cross-examine a key Commonwealth witness concerning any agreement between the witness and the prosecutor, whereby the witness would receive lenient treatment in return for his testimony, and that he had a prior felony conviction, constitute ineffective assistance of counsel by depriving defendant of his right to counsel as set forth in the Sixth Amendment of the Federal Constitution?

As the two complaints are inter-related, they will be addressed jointly.

Lang was a co-actor in the instant case. He pleaded guilty to statutory rape and eventually received a sentence of two to five years. He was called as a prosecution witness, and testified only with respect to two aspects of the case. The prosecuting attorney had previously advised the court and appellant’s counsel that Lang would be interrogated on only those two points, and suggested that cross-examination should be restricted to those two phases. After some discussion, Judge Kiester stated: “I believe his cross examination is restricted to those two things, that is the ruling. We will have to rule on the questions when they arise. I don’t know what his questions will be.” (N.T., p. 190)

Lang then testified that he had in his cottage a hatchet similar to (but not the same hatchet) as the Commonwealth’s Exhibit 29, which had been found in a creek nearby the scene of the crimes. He also stated that appellant, the victim, and another man named Harris had left his cottage together. Appellant returned within 5 to 10 minutes, and Harris within 30 minutes. The victim did not return. Appellant’s counsel limited his cross-examination to an affirmation that Exhibit 29 was not the witness’s hatchet.

We find no error in Judge Kiester’s preliminary ruling. The scope of cross-examination is within the discretion of the trial court and the court’s decision will not be reversed absent an abuse of discretion. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Green, 290 Pa.Superior Ct. 76, 84-5, 434 A.2d 137, 141 (1981) ; and Commonwealth v. Brinton, 275 Pa.Superior Ct. 304, 418 A.2d 734 (1980). Here the court simply indicated it would limit cross examination to the areas opened on direct examination. Such a ruling is a proper limitation of cross-examination. Commonwealth v. Ervin, 262 Pa.Superior Ct. 322, 396 A.2d 776 (1978). See also Commonwealth v. Lobel, 294 Pa.Superior Ct. 550, 440 A.2d 602 (1982) (defendant may not develop his own case by cross-examination.) Here the court reserved comment on any specific questions until they were raised on cross-examination. We find no abuse of the court’s discretion.

We recognize that a defendant has a right to cross-examine a witness on his or her possible biases. Commonwealth v. Dawson, 486 Pa. 321, 405 A.2d 1230 (1979); Commonwealth v. Sullivan, 485 Pa. 392, 402 A.2d 1019 (1979); and Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968). However as we have found that the trial court itself did not necessarily inhibit such, we must look to see if counsel’s failure in this regard can be deemed to have been ineffective assistance. See Commonwealth v. Baston, 242 Pa.Superior Ct. 98, 363 A.2d 1178 (1976). Appellant contends that his trial counsel was less than effective in not inquiring, of Lang, about his entry of a guilty plea.

An evaluation of counsel’s stewardship of his client’s case is always one of the most formidable and troublesome inquiries an appellate court encounters. For it would be a rare breed of litigator who, looking back upon his representation in a particular case, would be completely satisfied with his advocacy. It is precisely with these thoughts in mind that “our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-53 (1967) (emphasis original) (footnote omitted).

Bastón, 242 Pa.Superior Ct. 102, 363 A.2d 1178 (footnote omitted). In Bastón the court was faced with a similar challenge. After observing that the questioned testimony was “crucial” to the prosecution the court held:

We perceive this issue to require a four-part analysis of the record: (1) was there a “deal;” (2) was defense counsel aware of the deal, and, if he was not, was the record of such nature that counsel should have been aware of the deal; (3) could counsel, on cross-examination, have pursued the “deal;” and, (4) as is most critical in cases of this nature, was defense counsel’s cross-examination deficient when tested by Commonwealth ex rel. Washington v. Maroney, supra.

Id., 242 Pa.Superior Ct. 98 at 107, 363 A.2d 1178, 1183 (footnotes omitted.) We will follow the above four step analysis.

The witness had entered a guilty plea to statutory rape and was sentenced to two to five years. Whether this was pursuant to a “deal” is unclear from the record. However due to our analysis of the remaining factors we find it unnecessary to remand for a determination of whether a deal was entered. Defense counsel was clearly aware of the situation; and as we found above, counsel could have explored the situation. Thus we must determine whether counsel was effective. In this respect, the current case is distinguishable from Bastón.

The co-actor’s testimony in Bastón, supra, was critical to the case; but for such, Bastón could not be criminally linked to the crime. The situation in the current case is quite different. Not only could the victim link appellant to the crimes, but the investigating officers located him at the alleged scene of the crimes and within a very short time after the victim had escaped therefrom and sought assistance nearby. Also, the witness here, having been sentenced was not as amenable to a “deal” as the juvenile in Bastón, who was on juvenile probation. This was a second trial on the matter, Lang having been sentenced sometime before, it no longer could be assumed that he was acting under the expectation of a deal.

Of equal weight to this question is what effect the requested inquiry could have had. While appellant argues it would have impeached the witness, it could have also been very damaging to appellant’s case. Testimony of a co-actor to the effect that he or she had entered a plea to the same or related charges is objectionable and prejudicial as the jury could perceive that it reflects upon the defendant’s culpability. Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978).

The examination and cross-examination of witnesses is a matter in the first instance clearly within the province of trial counsel. Witherspoon, supra, and Commonwealth v. Norris, 305 Pa. Superior Ct. 206, 451 A.2d 494 (1982). In light of the limited content and value of the witness’s testimony on direct examination, we find that counsel could have reasonably concluded that enlightening the jury to the fact that a witness who was with the appellant at the pertinent time, had pleaded guilty to a serious offense arising from the same episode, could prejudice appellant more than benefit him. Counsel was not ineffective in this respect.

IV. Did the prosecuting attorney commit reversible error by attempting to create an impermissible adverse inference in the minds of the jurors regarding the defendant’s exercise of his Fifth Amendment rights at trial by the prosecutor’s persistent reference in his closing argument to the evidence against the defendant being rebutted and inadequately cross-examined?

V. Did the failure of the defendant’s trial counsel to object to improper remarks of the prosecuting attorney during his closing summation to the jury, constitute ineffective assistance of counsel, thereby depriving defendant of his right to counsel as set forth in the Sixth Amendment of the Federal Constitution?

Appellant complains of eight particular instances where he believes prosecuting counsel exceeded the permissible bounds of advocacy. (N.T., pp. 306, 307, 308, 309 and 312) All eight comments addressed the victim’s credibility. In four cases the district attorney noted that various parts of the victim’s testimony remained unrebutted; in the other four instances counsel commented on areas where the victim’s story had not been effectively damaged by cross-examination.

In his closing argument, defense counsel pointed out several inconsistencies in the victim’s story, as well as the negative results of various laboratory tests. Counsel also argued that the case rested on the victim’s testimony; the only issue the jury had to resolve was her credibility. (N.T., p. 302) Counsel argued that the victim was “the only individual in the whole Commonwealth’s case [who] knows what happened.” (Id. at 297).

A prosecuting attorney may properly respond to opposing counsel’s argument which questions the credibility of a witness. The Commonwealth may properly refer to the fact that the incriminating evidence was uncontradicted. Such will not necessarily be deemed to be a reference to a defendant’s failure to testify. Commonwealth v. Kjersgaard, 276 Pa.Superior Ct. 368, 375, 419 A.2d 502, 506 (1980); Commonwealth v. Ashmore, 266 Pa.Superior Ct. 181, 189, 403 A.2d 603, 606 (1979); and Commonwealth v. Kloch, 230 Pa.Superior Ct. 563, 589, 327 A.2d 375, 390 (1974).

In the current case we find that the Commonwealth’s closing argument was proper comment in rebuttal to that of the appellant. It went to the strength of the victim’s credibility and did not direct the jury’s attention to appellant’s failure to testify. Furthermore, appellant expressly informed the court that he did not want any instruction addressing a defendant’s right not to testify. (N.T., p. 315) As appellant requested to forego such curative instruction, which could have dissipated the harm he perceives, he cannot now complain of such omission. See Commonwealth v. Simons, 275 Pa.Superior Ct. 564, 419 A.2d 44 (1980). Finally, we note that only one of the eight complained of comments referred to a situation in which appellant was allegedly alone with the victim.

As we find that the closing argument was not beyond the limits of proper comment, counsel cannot be deemed ineffective in not objecting to such comment.

VI. Did the Court err in permitting the victim to make an in-court identification of the defendant after the victim had made an out-of-court identification of the defendant in violation of defendant’s right to counsel?

On November 11, 1977, about 10 days after the events with which appellant and others were charged and after appellant had been arrested, the victim was shown a group of thirty photographs of white males, including the appellant and his three companions. She identified appellant’s photograph. He now contends that her subsequent in-court identification should have been suppressed, because the “photo-lineup” was held without appellant’s counsel having been afforded an opportunity to participate in the lineup. Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970).

The lower court found that the in-court identification of appellant by the victim was not so “tainted” by the November 11, 1977 out-of-court photo identification as to render it inadmissible. Whiting, supra; Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); and Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) do hold that a photo lineup, after the accused has been arrested, is of such substantial importance that the accused is entitled to have counsel present. An out-of-court identification is “illegal” and may not itself be used as evidence. Furthermore, if the illegal out-of-court identification is a substantial factor in establishing a subsequent identification (in-court, or otherwise), the subsequent identification is “tainted” and may not be received in evidence.

However, as Judge Kiester points out in this present case, the .victim’s in-court identification came from a source independent of the post-arrest photo identification, specifically her extended exposure to appellant’s presence in the confines of a car, and the cottage and its environs for a period of a little less than 24 hours. Compare, Commonwealth v. Beach, 267 Pa.Superior Ct. 303, 406 A.2d 1052 (1979). An independent basis was demonstrated and the in-court identification was therefore proper.

VII. Did the Court err in denying the defendant’s request for a hearing on the mental competency of the victim and chief prosecution witness?

The second trial in this case began on January 26, 1981. The victim had been in a facility called Vision Quest since April 1980, “following several other unsuccessful placements and tragic events in her life.” A letter from a staff member of Vision Quest to the District Attorney’s Office stated that the victim was “extremely hostile and aggressive ... with severe feelings of rejection, depression and a marked inability to trust others”; that “she made a considerable amount of progress in school” and that “her appearance in court, an unfriendly and unsafe atmosphere, ... would be a serious setback to her progress____” (N.T., pp. 2-3)

When this letter was disclosed to Judge Kiester, defense counsel asked that the witness’s testimony be suppressed, for this and other reasons, and that the Court make “some type of determination” as to “whether the Court feels her testimony will be admissible for trial.”

Judge Kiester commented that nothing had been presented to him to show that the witness “is mentally incompetent and unable to testify as to the facts”, but only that “it might be harmful to [her] if ... called ... as a witness in this prosecution.” (N.T., p. 7)

It is for the trial judge to determine whether a witness is competent to testify. Such decision will not be overturned absent a clear abuse of the court’s discretion. Commonwealth v. Marshall, 249 Pa.Superior Ct. 333, 378 A.2d 322 (1977). Moreover, the trial court need not order an investigation of a witnesses’ competency unless he or she has some doubt of such after having observed the witness. Id. As to witnesses who are suspected of suffering with mental illness, his or her testimony is still competent unless he or she is unable to give a correct account of the matters at issue. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); Kakas v. Com. Dept, of Public Welfare, 65 Pa.Cmwlth Ct. 550, 442 A.2d 1243 (1982).

We find no reason to disagree with the trial court’s assessment of the witness’ ability to testify.

Judgment of sentence affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

The trial court erred in limiting defense counsel’s cross-examination of the prosecution’s “key” witness. The jury was entitled to know that Lang was an accomplice and the. existence of any promises of leniency which might have been extracted by Lang in exchange for his plea of guilty to a statutory rape charge. Because such evidence bears on a witness’s credibility, the refusal of the trial court to allow appellant an opportunity to conduct proper cross-examination constitutes reversible error. See Commonwealth v. Randall, 183 Pa.Super. 603, 615, 133 A.2d 276, 282 (1957).

In Randall, the trial court restricted defense counsel’s cross-examination of Homer Smickley, a prosecution witness. Smickley had been indicted on charges which arose out of the same set of circumstances as the charges which were launched against defendant Randall. However, when the cases were called for trial, the district attorney petitioned the trial court for leave to “withdraw” the indictment against Smickley, which was granted.

During the trial, Smickley admitted on direct examination that he was an inmate on a violation, and that he had entered a plea of guilty to a liquor violation in connection with Randall’s case. When defense counsel sought to elicit testimony from Smickley that another charge had been withdrawn, and to question him on the circumstances under which the charge had been withdrawn, the court sustained objections to the cross-examination. We said the following:

“Of course, if the witness is under indictment for the same crime, or for a crime growing out of, or closely related to, the very offense for which the defendant is being tried, so as to form a part of the same occurrence or transaction, it is proper for the jury to know it, as bearing on the witness’s interest in the immediate matter * * * ; and the jury are entitled to know it.” The questions and answers and comments of counsel in connection with the testimony of Smickley clearly portrayed to the jury the nature of Smickley’s connection with the cases under trial so that the jury could not have been under any misapprehension as to Smickley’s interest, possible bias or prejudice or that his testimony may have been given with expectation of immunity, clemency or leniency. Moreover, the jury was adequately instructed that it should be satisfied upon the point of the truthfulness of his testimony and “should carefully and clearly scrutinize his testimony, accept it with caution, not only because of any interest that Homer Smickley might have, but because Ms testimony is evidence from a corrupt source, in view of the fact that he was an accomplice and pleaded guilty to the charge.” (Emphasis added)

Similarly, defense counsel should have been allowed to elicit testimony on the nature of Lang’s connection “so that the jury could not have been under any misapprehension as to [Lang’s] interest, possible bias or prejudice that his testimony may have been given with expectation of immunity, clemency or leniency.” Id. In the case at bar, it was “the Defense position that once [the prosecutor] put [Lang] on the stand [the prosecutor] open[ed] him up to any type of cross-examination”. Id. In my view, this request should have been granted.

It is interesting to note that after the jury had retired to deliberate it submitted the following question to the court:

“May we have a copy of John Lang’s and Pauline’s [the victim’s] testimony? At least the part that describes the men as they left the cottage and at the scene of the stabbing. Also her original description of the four men. Signed William J. Held [the foreman]” (N.T. 334)

Although the trial court denied this request, there is no doubt in my mind that Lang’s testimony was crucial to the prosecution’s case, and, for this reason, the defense counsel should have been allowed an opportunity to cross-examine him. See Commonwealth v. Coades, 454 Pa. 448, 450, 311 A.2d 896, 897 (1973) (“If we permit a jury to infer that a co-indictee’s testimony is biased because he may receive favorable treatment, we cannot logically preclude the jury from drawing the same inference when the co-indictee may have already received favorable treatment.”) (Emphasis in original). Additionally, there was no instruction which might have cured the error, as was done in Randall. Hence, my dissent.

      . For a discussion of the lesser included offense doctrine see, Commonwealth v. Williams, 299 Pa.Superior Ct. 278, 281, 445 A.2d 753, 754 (1982) and Commonwealth v. Wise, 298 Pa.Superior Ct. 485, 444 A.2d 1287 (1982).

      . The third factor was made necessary by the particular circumstances of that case. Id. n. 14.

      . A reading of Lang's testimony, gives the impression that he helped the prosecution's case as little as possible (N.T., pp. 191-195).


author: WICKERSHAM, Judge:

text:
    465 A.2d 658
    John A. DISTLER, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN.
    Superior Court of Pennsylvania.
    Argued April 20, 1983.
    Filed Sept. 2, 1983.
    Petition for Allowance of Appeal Denied Jan. 18, 1984.

      Paul J. Duca, Philadelphia, for appellant.
    David M. McCormick, Philadelphia, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WICKERSHAM, Judge:

This case comes to us after appellant John Distler’s petition to compel the Pennsylvania Assigned Claims Plan to appoint an insurance company to handle his uninsured motorist claim was denied by the lower court. On December 18, 1981, John Distler filed a petition to compel the assignment of an insurance company to his uninsured motorist claim. The Pennsylvania Assigned Claims Plan (hereinafter Assigned Claims Plan) filed preliminary objections arguing that they had been improperly served.

After the Assigned Claims Plan was properly served, the lower court denied Distler’s petition to appoint an insurance company but granted Distler leave to file an amended petition setting forth facts which would require the Assigned Claims Plan to appoint an insurer. Distler filed an amended petition. The amended petition was denied and this appeal followed.

The record in this case is not fully developed because the case has not been heard on its merits. The pleadings state that on June 12, 1981, John Distler was struck by a motorist as Distler was driving his motorcycle. The motorist and Distler were both uninsured. Distler alleges that he was seriously injured in the accident.

Distler requested the Assigned Claims Plan to appoint an insurance company to process his uninsured motorist claim. The Plan refused to assign an insurance company until the Pennsylvania Supreme Court acted on a petition for rehearing in Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981). Distler pointed out that a rehearing was denied in Tubner and argued that under Tubner he was entitled to uninsured motorist benefits.

We note that Distler began this litigation by filing a petition seeking the appointment of an insurance company to handle his claim for uninsured motorist benefits. The recent case of Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 455 A.2d 710 (1983) makes it clear that an action for no-fault benefits should not be commenced by a petition. In this case Distler is not seeking no-fault basic loss benefits but rather uninsured motorist benefits; nevertheless the principles set forth in Jones, id., are equally applicable here. Accordingly, Distler’s claim was not properly presented. Jones, supra, also teaches us that beginning an action by petition is a waivable procedural defect. 309 Pa.Super. at 480, 455 A.2d at 711. Appellee Assigned Claims Plan did not object to Distler’s commencing his action by petition and the defect is therefore waived.

The Assigned Claims Plan’s waiver does not, however, save Distler’s claim. In Jones, supra, this court decided that to preserve issues for appellate review in a no-fault action commenced by petition, a party must file exceptions to the decision of the trial court and have these exceptions passed on by the trial court en banc. 309 Pa.Super. at 481, 455 A.2d at 713. Because of the confusion in this area of the law the Jones court ruled that the failure to file exceptions would be excused in no-fault cases now on appeal where the petition and rule defect was waived if the trial court entered a final order prior to the decision in Floczak v. Nationwide Mutual Insurance Co., 289 Pa.Super. 438, 433 A.2d 885 (1981). The lower court order appealed from here was entered on May 24, 1982, well after the decision in Floczak, id., and no exceptions were filed. The failure to file exceptions means no issues are preserved for our review.

Appeal quashed.

      . Distler phrases the issues in this appeal as follows:
      1. Whether, pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, the Pennsylvania Assigned Claims Plan is required to accept appellant’s claim for uninsured motorist benefits:
      2. Whether appellant, a motorcyclist, is entitled to recover uninsured motorist benefits through the Pennsylvania Assigned Claims Plan.
      Brief for Appellant at 3.

      . The lower court denied appellant’s petition to compel the Pennsylvania Assigned Claims Plan to appoint an insurance company to handle appellant’s claim for No-Fault Insurance benefits and Distler filed his notice of appeal that same day.