author: BROSKY, Judge:

text:
    477 A.2d 1382
    COMMONWEALTH of Pennsylvania v. Richard Lee HURLBERT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1983.
    Filed May 25, 1984.
    Petition for Allowance of Appeal Denied Oct. 17, 1984.

      William F. Cercone, Jr., Pittsburgh, for appellant.
    Timothy J. Lucas, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

Appellant Richard Hurlbert appeals from the judgment of sentence imposed upon him following his conviction by a jury of rape and criminal conspiracy.

On appeal Mr. Hurlbert argues: (1) that the trial court erred in refusing to give him access to records made at a rape crisis center and a hospital; (2) that he should have been granted a new trial because the Commonwealth failed to disclose an exculpatory statement; (3) that the trial court should have directed a verdict on the conspiracy charge; and (4) that his trial counsel rendered him ineffective assistance because he failed to introduce at trial or sentencing evidence of the psychological effects of using marijuana.

The facts of this case were summarized by us in the opinion we issued in appellant’s co-defendant’s appeal. In Commonwealth v. Hicks, — Pa.Super. —, — A.2d — (filed - 1984) we wrote:

[O]n the evening of February 18, 1981 the complainant was a patron at a lounge known as the Indian Head Inn in Waterford. She arrived at approximately 10:00 p.m. Miss Patterson knew a Martin Rice, whom she saw at the lounge and who introduced her to two of his friends, appellant and appellant’s co-defendant, Richard Hurlbert. Mr. Rice invited Miss Patterson- to join Hurlbert, appellant and him in Hurlbert’s van, where the group smoked a marijuana cigarette. The group returned to the van two more times that evening, accompanied the third time by two of Miss Patterson’s friends. One of those other women left the van after a few minutes, the other, Chris Johnson stayed for approximately ten minutes. Miss Johnson had accompanied the group comprised of Hurlbert, Rice, appellant and Miss Patterson on the second and third trips to the van on all of which occasions marijuana was smoked.
Miss Johnson testified that when she left the van on her last trip it was raining and she ran back to the lounge, but turned as she was running and saw appellant put his hands on Miss Patterson’s shoulders and suggest that she stay.
Miss Patterson did remain in the van smoking marijuana and in fact shared a marijuana cigarette with appellant by a means known as “shotgunning”. That is, one of the pair put the lit end of the cigarette in his or her mouth and the other inhaled from the other end. The couple also kissed and Miss Patterson indicated that she did not resist a kiss from Mr. Hicks.
Miss Patterson believed that Mr. Hurlbert, who was seated in the driver’s seat of the van, would drop her off at the door to the lounge. Instead, he drove away explaining that he was going to get cigarettes. The van passed the store where Miss Patterson had expected the cigarette purchase to be made apparently because it was closed. After a time the van was travelling on a road unfamiliar to Miss Patterson and she suggested that she should be taken back to the lounge where she was to meet friends. Instead Mr. Hurlbert continued to drive in territory unfamiliar to Miss Patterson. He eventually stopped the van. Mr. Hurlbert, then Mr. Rice, and then Mr. Hicks exited the van. Mr. Hurlbert returned and entered the rear of the van where Miss Patterson had been sitting with Mr. Hicks. Miss Patterson then testified:
And then he [Mr. Hurlbert] had his hands on. my shoulders and he was pushing me back down, and that’s when I kept asking him not to, and he said that if I didn’t, he would call the other two.
Miss Patterson then related that Mr. Hurlbert removed her slacks and underwear. When asked whether she resisted Mr. Hurlbert, Miss Patterson replied: “Enough to get beat up or something?” “Whenever he was pushing me back, I kept pushing forward and asking him not to, and then he said he was going to call the other guys and pushed me back down, and he took my clothes, and I told him that I had a bad stomach.”
After describing Mr. Hurlbert’s sexual assault upon her, Miss Patterson described her encounter with Mr. Hicks____
She said that while she and Mr. Hurlbert were alone in the van Mr. Rice and appellant tried to enter but were told by Mr. Hurlbert to get out. Mr. Rice and appellant then stood outside looking in the van windows. Eventually Mr. Hicks entered the van, removed his pants and had intercourse with Miss Patterson, who had been lying down since Mr. Hurlbert pushed her.
While she and Mr. Hicks were having intercourse, Mr. Hurlbert lay beside them. When Mr. Hicks got up Mr. Hurlbert again got on top of Miss Patterson and had intercourse with her.
When asked if Mr. Hicks, who remained in the van, said anything to her, Miss Patterson replied: “They asked me if I liked it.” She was then asked if she said anything to Hicks and Hurlbert and she said: “I said it wasn’t right.”
Ultimately Mr. Hicks, Mr. Hurlbert and Miss Patterson got out of the van. Miss Patterson spoke to Mr. Rice and asked him why he “let them do that” to her. The four entered the van and with Mr. Hurlbert driving, took Miss Patterson to the doctor’s office where she was employed. It was after midnight and the office was locked and dark. Miss Patterson let herself in and called Mr. and Mrs. Sterling, friends of hers who lived nearby. Miss Patterson talked on the telephone to Mrs. Sterling while waiting for Mr. Sterling to come for her. She did not turn on the lights, but sat behind her desk in the dark. She and Mr. Sterling arranged that he would flash the light of his car as a signal that it was he in the parking lot. Mr. Sterling took Miss Patterson to his home. He testified that her clothes were in disarray, her pants were half-snapped, her make-up was streaked, she was crying and as Mr. Sterling put it, “carrying on.”

Id. at —, — A.2d at — (footnote deleted).

We can readily dispose of Mr. Hurlbert’s contention that he is entitled to a new trial because the Commonwealth failed to disclose exculpatory evidence. The evidence to which appellant refers is a statement which Martin Rice supposedly made to the police and District Attorney. In an affidavit by Mr. Rice he states that he told the police and District Attorney that the sexual relations between Mr. Hurlbert and the complainant were consensual.

The trial court, however, conducted an evidentiary hearing to determine whether the Commonwealth had failed to disclose such a statement and it concluded that it did not believe Mr. Rice’s claim that the statement had been made to the police. The question was clearly one of credibility that was left to the fact finder. Commonwealth v. Henry, 323 Pa.Super. 260, 470 A.2d 581 (1983).

Nor do we find merit in appellant’s contention that a verdict in his favor should have been directed on the conspiracy charge. •

Conspiracy is defined at 18 Pa.C.S. § 903(a):

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

Appellant contends that there was no evidence of an agreement between Mr. Hicks, Mr. Rice and appellant to rape Miss Patterson. He contends that in this regard the present case is much like Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977). In that case, however, there was no evidence that appellant had engaged in sexual relations with the complainant. The court held that the defendant was entitled to a charge that mere presence and knowledge of the crime were not alone enough to convict him of conspiracy.

As our earlier recitation of the facts indicates, there was in this case evidence that appellant was not merely present at the scene of the rape and knowledgeable about it, but also participated in it.

An agreement to commit a criminal act can be proven circumstantially. Commonwealth v. Davenport, 307 Pa. Super. 102, 452 A.2d 1058 (1982). In Commonwealth v. Bossick, 305 Pa.Super. 196, 201, 451 A.2d 489, 491 (1982) we explained:

The evidence needed to prove a conspiracy must show more than a mere association, but a “conspiracy may be inferentially established by showing the relation, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt consideration has in fact been formed.” (citation omitted).

The evidence outlined earlier in this opinion was sufficient to support a finding of conspiracy.

We come next to appellant’s claim that he was denied the effective assistance of counsel at trial because his trial counsel did not introduce expert evidence of the effects of marijuana. He believes that counsel should have used such evidence to impeach Miss Patterson’s credibility.

The standard to be used in assessing counsel’s stewardship is well established. We must determine whether:

... 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 v. McCaskill, 321 Pa.Super. 266, 468 A.2d 472 (1983) citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967) (emphasis in original).

In his brief appellant cites as an example of the type of evidence that should have been used an article in which the author states that among the effects of marijuana can be a heightening of sexual desire and increased enjoyment of sex. Significantly, the quoted portion of the article begins with the statement, “The feelings a person experiences under the influence of marijuana depend in large measure upon the setting in which the drug is taken, the potency of the drug, and the user’s state of mind____”

We note initially that even the evidence which appellant suggests should have been used itself indicates that any statement about the effect of marijuana is speculative, since it can vary from person to person. Appellant cites no other example of the type of evidence which should have been used. It is only when the claim which was foregone was arguable merit that we must make an inquiry into the basis from the post-trial counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant has not shown us evidence the introduction of which would have offered a substantially greater potential for success than he achieved through the trial strategy he employed. We conclude that the foregone opportunity to introduce evidence like that quoted in appellant’s brief, did not deprive appellant of an issue of arguable merit.

In fact, we believe that use of such evidence (assuming arguendo its admissibility) might have actually hurt appellant’s case. While the cited material might suggest that Miss Patterson may have had heightened sexual interest, it equally well may have suggested the same of Mr. Hurlbert with whom she smoked marijuana and who denied having had sexual relations with her.

We note also that we find no support for appellant’s position in Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979) which dealt with evidence of a defendant’s state of mind.

We come finally to appellant’s claim that his counsel should have been given access to hospital records pertaining to Miss Patterson and to the counselors at the rape crisis center she visited.

Appellant filed with the lower court a motion for discovery seeking, inter alia, discovery of the admission form and appellant’s history when at St. Vincent’s Hospital, following the incident, if those reports were in the possession control or known to the District Attorney’s office. The lower court denied the discovery motion but did not indicate in its opinion the reason for the denial. The order denying the discovery motion did suggest that it was being denied because the items requested had either been given to appellant’s counsel or they were not in the District Attorney’s possession.

Nor did the trial court indicate the reason for its denial of appellant’s request, made by way of a motion for issuance of subpoena duces tecum, for the records of the rape crisis center.

We find that we are unable to review the propriety of the lower court’s rulings as to the hospital and crisis center files on the basis of the record before us.

As to the admission form and history taken at St. Vincent’s, it may be as is suggested in the court’s order of April 29, 1981, that those documents were not in the possession of the District Attorney. We note, however, that the hospital had been directed by order of February 24, 1981 to provide the District Attorney with all of Miss Patterson’s records regarding her treatment for rape. In any event, we are unaware of the trial court’s reason for denying the records to defense counsel.

Similarly, we cannot review the trial court’s decision as to the rape crisis center records.

In In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981) our Supreme Court refused to grant an absolute privilege to rape crisis center files. Instead, the court said that when the file is sought to determine the existence of prior inconsistent statements by the complainant, the trial court should make whatever inquiry is necessary to determine whether matters contained in the file are indeed “statements”. The review is to be conducted in camera.

It may well be that such a review was conducted in this case, but the record does not disclose whether it occurred. We cannot, therefore, review the trial court’s decision. See and compare Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983) in which the defendant sought all documents in the rape crisis center file. Although there was no record evidence of what occurred at the in camera hearing, we were able to address appellant’s claim that he was entitled to the documents because the issue had been briefed by both parties and discussed in the trial court opinion.

Because we are unable to determine whether the rape crisis center file contained statements by Miss Patterson that should have been made available to appellant, we must remand for further proceedings.

Our mandate on remand is essentially the same as that outlined in this court’s opinion in Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984) in which we wrote:

We direct the trial court to review the rape crisis center records in camera to determine whether they contain any statements made by Miss Patterson regarding the incident. If the court determines that there were no such statements, then it should reinstate the judgment of sentence. If the records do contain such statements they should be made available to appellant’s counsel, who should then be given an opportunity to argue to the court that the statements could have been used to discredit Miss Patterson’s testimony. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978). The Commonwealth should be permitted an opportunity to argue that the court’s failure to provide appellant’s counsel with the statements prior to trial was harmless error. If the court is not convinced that the statements were irrelevant or that any error was harmless, then it should grant appellant a new trial. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977). Following the court’s ruling, either party may file an appropriate appeal.
In order to preserve the parties’ rights to effective counsel and allow appellate review, the entire record reviewed by the court at its in camera proceeding should be preserved for appeal. This record may be sealed in order to protect its confidentiality. In addition, counsel should be permitted access to this record in order to argue the relevance of the material in accordance with this decision. Counsel, of course, are permitted access to this record for this purpose only and are otherwise bound by the confidential nature of the material in the record.

Additionally, the trial court is to determine whether appellant was entitled to the medical records he sought. Whether appellant is entitled to a new trial is to be determined in the manner outlined above.

Judgment of sentence is vacated and case remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

      . See also Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981) (Commonwealth may cross-examine witnesses as to drug use without introducing scientific evidence of its effects.)

      . Prior to January 1, 1978, a defendant who wanted the trial court to order discovery of the hospital records of the victim of rape, had to show exceptional circumstances or compelling reasons for such disclosure. See Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A.2d 134 (1974) in which our Supreme Court discussed former Pa.R.Crim.P. 310 which so limited a defendant’s discovery rights.
      The rules of Criminal Procedure relating to discovery were amended in June, 1977 and Pa.R.Crim.P. 305 was adopted, effective January 1, 1978. That rule expands a defendant’s discovery rights.
      Pa.R.Crim.P. 305B(1)(a) requires the Commonwealth to disclose any evidence favorable to the defendant.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    477 A.2d 1388
    In re ESTATE OF Catherine SOUPCOFF, Deceased. Appeal of Norman SOUPCOFF, Husband, of Catherine Soupcoff, Deceased, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1984.
    Filed June 22, 1984.

      Sheldon L. Keyser, Pittsburgh, for appellant.
    John P. Vetica, Jr., Pittsburgh, for participating party.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, Norman Soupcoff, seeks review of a January 25, 1982 Order of the Court of Common Pleas of Allegheny County which dismissed his exceptions to a Decree of Dissolution dated November 2, 1981. Mr. Soupcoff is the surviving spouse and the personal representative to the estate of Catherine Soupcoff. The decedent left all her jewelry to Appellant in her will. Appellant complains that the lower court erred in ruling that the contents of the decedent’s jewelry box should be awarded to the decedent’s mother, Mrs. Minnie Hartman. We agree that Mrs. Hartman should not have been awarded the contents of the jewelry box and therefore reverse the trial court’s determination.

On February 14, 1980, the day of Catherine Soupcoff’s death at her home in Pittsburgh, Mrs. Hartman journeyed from Kunkletown, Pennsylvania to Pittsburgh to visit Appellant and stay for the decedent’s funeral. She was accompanied on her trip by Leonard Borger,. her son-in-law and by Harriet Joan Borger, her daughter and the sister of the decedent. Mrs. Hártman returned to Kunkletown on February 17, 1980 the day following the funeral. Her daughter and son-in-law remained with Appellant until they departed for home on February 19, 1980.

The trial court made the following findings:

“Mrs. Borger and Norman [sic] Smith (Soupcoff’s daughter) on the morning of February 18 were in the Soupcoff bedroom sorting decedent’s clothes for division between them. Mrs. Borger’s share included a small mink stole. Mr. Soupcoff and Mr. Borger were in the next room, a living room. Mrs. Smith called Mr. Soupcoff into the bedroom and she and Mrs. Borger suggested that the decedent’s jewelry box and nursing cap and pin be given to Mrs. Hartman. Soupcoff responded it was all right because he could not wear the items and left the room. The next morning Soupcoff asked Mrs. Borger to return a gold charm bracelet from the box of jewelry which was packed with her share of decedent’s clothing in her car. She gave the bracelet back asking if he wanted anything else from the clothing and jewelry in the automobile. Soupcoff responded in the negative.
Mrs. Borger returned to Kunkletown with her husband February 19, 1980, but her mother “was very upset” so Mrs. Borger has retained possession of the jewelry box in her safe because Mrs. Hartman “just couldn’t accept it.” Mrs. Borger has used nothing from the box other than the diamond ring admittedly given her. Thereafter Mrs. Borger talked several times by telephone with Mr. Soupcoff and no mention was made of the box or its contents until March 26, 1980, and April 1, 1980, when Mr. Soupcoff or his attorney demanded the return of three items, a gold chain with gilded silver dollar pendants and two cultured pearl necklaces.
(Appellant’s Brief at 11, 12)

After returning to Kunkletown, Mrs. Borger never delivered the jewelry box to her mother. Mrs. Hartman, because her mother could not accept it. (R. at 35a-37a) Mrs. Borger candidly explained what happened to the jewelry box after she returned to Kunkletown.

“Q. And from that point, where did it go?
A. I took it home. It was to be given to my mother and my mother was very upset and I kept it in my possession until I would be able to give it to her because she was not—
Q. How long did you keep the box in your possession?
A. Well, I had the box because my mother just couldn’t accept it.
Q. Your mother could not accept it.
A. Right.
Q. I see.”
(R. at 35a)

On March 26, 1980, Mrs. Borger received a letter from Appellant which stated that she had no right to the items contained in the jewelry box. Shortly thereafter Appellant’s counsel wrote to both Mrs. Hartman and Mrs. Borger and demanded the return of the contents of the jewelry box.

Mrs. Borger did not return the contents of the jewelry box to Appellant, and the dispute over ownership of the jewelry was brought to the attention of the Orphans’ Court. On October 22, 1980 the court ordered that the jewelry at issue in Mrs. Borger’s possession be turned over to her counsel and that, pending the outcome of the case, the jewelry was to remain in the joint possession of Mrs. Borger’s attorney and counsel for Appellant.

Before addressing the merits of Appellant’s claim, we first must ascertain whether the Orphans’ Court had jurisdiction to determine the ownership of the jewelry in question. This is so because the decedent had left all her jewelry to Appellant, her husband, under paragraph THIRD of her will. The Orphans’ Court, by entertaining this issue, is not determining the proper legatee under the will but rather resolving a dispute between the admitted legatee and a subsequent alleged donee of the named legatee.

The jurisdiction of the Orphans’ Court is entirely statutory in origin. In re Bogan’s Estate, 394 Pa. 137, 145 A.2d 530 (1958). 20 Pa.C.S. § 711 dealing with the mandatory exercise of jurisdiction provides in pertinent part:

§ 711. Mandatory exercise of jurisdiction through orphans’ court division in general.
“Except as provided in section 712 of this code (relating to nonmandatory exercise of jurisdiction through orphans’ court division) and section 713 of this code (relating to special provisions for Philadelphia County), the jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division:
(17) Title to personal property. The adjudication of the title to personal property in the possession of the personal representative, or registered in the name of the decedent or his nominee, or alleged by the personal representative to have been in the possession of the decedent at the time of his death.

Since the instant case involves a question of title to certain items of jewelry that were in the possession of the decedent at the time of her death, we believe that the Orphans’ Court properly exercised jurisdiction. Moreover, if mandatory jurisdiction was not vested in the Orphans’ Court under 20 Pa.C.S. § 711(17), the trial court could have exercised jurisdiction under 20 Pa.C.S. § 712 which provides:

§ 712. Nonmandatory exercise of jurisdiction through orphans’ court division
The jurisdiction of the court of common pleas over the following may be exercised through either its orphans’ court division or other appropriate division:
(3) Other matters. — The disposition of any case where there are substantial questions concerning matters enumerated in section 711 (relating to mandatory exercise of jurisdiction through orphans’ court division in general) and also matters not enumerated in that section.

We turn now to a review of Appellant’s claim. In this appeal Appellant contends no gift of the contents of the jewelry box occurred because of the refusal of the intended donee to accept the gift. We agree.

In order for a valid gift to occur in Pennsylvania there must be donative intent, delivery, and acceptance. In re Estate of Sipe, 492 Pa. 125, 422 A.2d 826 (1980); Kreisl v. Kreisl, 415 Pa. 424, 204 A.2d 40 (1964). While acceptance is usually presumed where the gift is beneficial to the donee, the presumption of acceptance can be rebutted. Wagner v. Wagner, 466 Pa. 532, 537 n. 5, 353 A.2d 819, 821 n. 5 (1976). This presumption of acceptance is clearly and unequivocally rebutted in the instant case. Mrs. Borger testified that she never gave possession of the jewelry box to her mother, Mrs. Hartman, because her “mother just couldn’t accept it” (R. at 35a). Mrs. Borger’s testimony regarding Mrs. Hartman’s refusal to accept the jewelry box could have been rebutted by Mrs. Hartman if it were not correct since Mrs. Hartman was present in the courtroom during the August 13, 1981 hearing.

Under the facts found by the trial court, no gift of the jewelry box or its contents ever occurred. On February 19, 1980 when the jewelry box was taken by Mrs. Borger for her mother, Mrs. Hartman, only two of the three necessary elements of a completed gift were present; donative intent and delivery. The essential element of acceptance was lacking.

Because Mrs. Hartman could not accept the jewelry box and its contents, the gift was never completed. While Mrs. Hartman may have changed her mind when she later asserted her legal claim, that claim was not made until after revocation by Appellant. His demand for the return of the items in question in March of 1980 foreclosed the possibility of a subsequent acceptance by Mrs. Hartman. See 38 Am.Jur.2d Gifts § 34; Bunnell v. Iverson, 147 Colo. 552, 364 P.2d 385 (1961).

The trial court’s order of January 25,1982 is reversed and this matter is remanded for proceedings consistent with this opinion.

      . Exclusive of an oval cut diamond ring which Appellant gave to the decedent’s sister Harriet Joan Borger.


author: PER CURIAM:

text:
    477 A.2d 1391
    CHESTER HOUSING AUTHORITY v. Julius NICHOLAS, Appellant. CHESTER HOUSING AUTHORITY v. Irene BLACK, Appellant. CHESTER HOUSING AUTHORITY v. Michael COLLIER, Appellant.
    Superior Court of Pennsylvania..
    Argued March 20, 1984.
    Filed June 29, 1984.

      Julius Nicholas, in propria persona.
    Irene Black, in propria persona.
    Michael Collier, in propria persona.
    Ronald D. Ashby, Media, for appellee.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   PER CURIAM:

These are appeals from final orders of the Delaware County Court of Common Pleas.

Appellants raise two issues on appeal:

(1) Whether the lower court erred in denying a motion for continuance made by defense counsel when appellants were unable to appear for trial due to their involvement in an automobile accident; and (2) Whether the verdicts entered by the lower court were inconsistent with the evidence and testimony presented.

As this Court reverses the decision of the lower court denying the motion for continuance and finds that a continuance should have been granted, we do not find it necessary to consider the issue of inconsistent verdicts.

The relevant facts reveal that three of four defendants in cases consolidated for trial purposes were involved in an auto accident due to snow and icy road conditions on the way to court. A police officer at the scene called the trial judge’s chambers and provided information about the accident. He indicated damage to the vehicle had occurred but no personal injuries had been sustained. The trial was postponed until the 2:00 p.m. session. By 2:00 p.m., defense counsel had been in contact with defendant, Nicholas, who informed her the car was inoperable but that three defendants had accepted a ride to Crozer — Chester Hospital where defendant, Black, was treated for injuries. According to defendants, they were “shaken up” following the incident and unable to attain transportation to the courthouse due to road conditions. The person who drove them to the hospital did wait and take them home although he refused to drive as far as the courthouse.

The defense attorney requested a continuance to the next available court date which was denied. The trial judge then entered judgment against the three defendants unable to appear and ordered an abatement in the amount of rent demanded from the fourth defendant, who did appear.

As all parties involved agree, a continuance is discretionary and an inherent power of the court. Henley v. Com., State Civil Service Commission, 39 Pa.Commw.Ct. 286, 395 A.2d 330 (1978); Phillips-Farmer v. John Wanamaker of Philadelphia, 28 Pa.Commw.Ct. 600, 369 A.2d 1339 (1977); also see, Pa.R.C.P. 216(A), Grounds for Continuance.

Oral argument of the case was held in this court on March 20, 1984; appellants appeared pro se, appellee was not represented. After consideration of appellants’ arguments, the briefs and case law, this Court concludes the lower court abused its discretion in not granting a continuance under the circumstances. A continuance should have been granted pursuant to Pa.R.C.P. 216(A)(2) and appellants provided the opportunity to present evidence on their behalf.

The order and judgments of the court below are hereby vacated and the three cases are remanded for a new trial consistent with this opinion.

Jurisdiction is relinquished.

      . Appellants acted prudently in that they did make sure the court was notified of the accident and subsequently they reached counsel concerning the resulting delay necessitated by the need to seek medical attention. At oral argument, they told the Court of their predicament in being unable to reach the courthouse following their visit to the hospital and weré satisfied that once appellant, Nicholas, had spoken with their attorney, no further action on their part was necessary. Mr. Collier was with Mr. Nicholas when he spoke with the attorney and Ms. Black explained her daughter’s attempts and inability to reach the trial judge’s chambers.

      . Pa.RX.P. 216(A)(2). The following are grounds for continuance: Illness of counsel of record, a material witness, or a party____


text:
    478 A.2d 1
    Margaret ROBINSON, Administratrix of the Estate of James Miller, Deceased, Appellant, v. CITY OF PHILADELPHIA and Lawrence Strunk and Gus Dramis t/a Dramis Auto Parts.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1983.
    Filed May 18, 1984.
    Reargument Denied July 31, 1984.
    Petition for Allowance of Appeal Denied Nov. 20, 1984.

      George J. O’Neill, Philadelphia, for appellant.
    Sarah Makin, Philadelphia, for City of Philadelphia, appellee.
    Morton J. Sablosky, Philadelphia, for Strunk, appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from the judgment entered on March 19, 1982 denying the motion for a new trial by appellant Margaret Robinson, administratrix of the estate of James Miller, as to the appellee, City of Philadelphia. We affirm.

This appeal concerns a collision between the decedent Miller’s motorcycle and a truck driven by Lawrence Strunk, the City’s co-defendant in the trial court proceedings, which resulted in Miller’s death. The accident occurred on October 4, 1972 at the intersection of Umbria and LeMonte Streets in Philadelphia. Strunk was driving south on Umbria Street and was in the process of turning left onto LeMonte Street when Miller’s motorcycle, proceeding north on Umbria Street, collided with the left front fender of Strunk’s tow truck. There were no eyewitnesses to the accident; and Strunk testified that he did not see Miller at any time prior to their vehicles colliding.

The complaint alleged acts of negligence on the part of both Strunk and the City of Philadelphia. The plaintiff-appellant claimed Strunk’s negligent operation of his truck was a substantial factor in causing the accident. The theory for recovery against the City was that it was negligent in allowing a bump, which testimony indicated protruded 2% to 3 inches above the road surface, to exist. At trial, the plaintiff-appellant’s expert testified that the motorcycle’s contact with the truck was merely a “glancing blow” which caused the motorcycle to go slightly out of control. The motorcycle then crossed the bump, and, as a consequence, Miller lost control of it and crashed. Thus, the bump was presented as being a substantial factor in causing Miller’s death. The City presented rebutting evidence that the bump could not and did not contribute towards causing the accident. Both the City and Strunk argued that Miller’s operation of his motorcycle was negligent and caused the accident.

The jury answered special interrogatories submitted by the court and found:. (a) that the City of Philadelphia was not negligent, (b) that Strunk was negligent and that his negligence was a substantial factor in causing Miller’s death, and (c) that Miller was contributorily negligent and that his contributory negligence, also, was a substantial factor in causing his own death. The plaintiff-appellant filed motions for a new trial against both co-defendants. The trial court granted the motion for a new trial as to Strunk and denied the new trial motion as to the City of Philadelphia.

The scope of our review of an order granting or denying a new trial is well-defined. The test on appeal is whether the lower court committed a clear abuse of discretion or error of law which controlled the outcome of the case. If, upon reviewing the evidence, we find no such abuse or error, then we will not reverse the lower court’s ruling. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982). Mindful of this scope, we will review the appellant’s arguments for a new trial.

The appellant argues four major reasons why she should have been granted a new trial also with respect to the appellee, City of Philadelphia.

First, appellant argues that alleged improper remarks made by the appellee’s defense counsel during the opening and closing arguments, together with a prejudicial series of questions asked by co-defendant Strunk’s counsel, require granting a new trial. We disagree. All the alleged improper remarks raised by the appellant concern the appellant’s contributory negligence. None relate to the verdict returned in favor of the appellee. The jury clearly decided, as is evidenced through their answers to special interrogatories, that the appellee was not negligent. The finding of the appellant as contributorily negligent does not impact on the appellee’s culpability once the jury found the appellee did not breach the duty owed to the appellant. If the jury had returned a general verdict against the appellant, then the purported trial errors may have prejudiced appellant’s ease against the City by possibly influencing the jury to find the decedent was contributorily negligent despite the appellee’s own negligence. However, that scenario is not presently before us. Consequently, appellant’s allegations, even if true, would be harmless error as to the appellee.

For us to grant a new trial, the appellant must demonstrate how the alleged trial error caused an incorrect result. Nebel v. Mauk, 434 Pa. 315, 253 A.2d 249 (1969). The remarks by counsel must not only be shown to be erroneous but also to be harmful to the appellant’s case against the appellee before they constitute reversible error. Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965).

The appellee was free from all liability once the jury specifically found it to be not negligent. Since the appellant presents no claim in this issue contesting that finding, it becomes unnecessary to consider the various trial errors of .which the appellant complains. See Steele v. Peoples Natu ral Gas Company, 386 Pa. 439, 127 A.2d 96 (1956). Nothing in the record indicates that the jury verdict in favor of the appellee was affected by the alleged trial errors as to appellant’s contributory negligence. “A defendant whom the jury has exculpated should not be subject to a new trial unless there was trial error as to him. Sternberg v. Dixon, 411 Pa. 543, 192 A.2d 359 (1963), and Greco v. 7-Up Bottling Company of Pittsburgh, 401 Pa. 434, 165 A.2d 5 (1960).” Potenburg v. Varner, 284 Pa.Super. 19, 23, 424 A.2d 1370, 1372 (1981).

Second, appellant claims the trial court erred in excluding records and photographs from being. admitted into evidence documenting that the bump was repaired by the appellee a few days after the accident. The .trial court opinion filed March 10, 1982 adequately disposes of this issue in accurately stating the rule that evidence of post-accident repairs is inadmissible to prove negligence; and the appellant’s attempted use of it does not qualify under one of the recognized exceptions. (Trial Court opinion at 9-11.) Appellant presently argues that Pennsylvania should abandon this well-established evidentiary rule. Upon reviewing this position, we conclude it has no merit. The only permissible use of these photographs would be to document the existence of the bump. However, the appellee had stipulated to its existence at trial, and other evidence was previously admitted verifying it. Excluding evidence that would have only repeated evidence otherwise admitted is harmless error. Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981).

Third, appellant argues the trial court erred in overruling her objections and admitting into evidence certain testimony of John Comisky, appellee’s expert witness. Specifically, appellant argues there was a lack of foundation for the expert’s testimony that the “sight-line” available to the decedent would have allowed him to see what was developing at the intersection in which the accident occurred. Also, appellant argues there was an improper foundation for the expert to give his opinion as to the motorcycle’s speed prior to the collision. Finally, the appellant objects to the expert’s statement as being unwarranted and without foundation that upon impact the decedent vaulted over the tow truck’s hood and never crossed the bump in the road.

We consider appellant’s objections to the “sight-line” and speed of travel testimony to be infirm on the same basis as we dismissed the first issue raised. These alleged testimonial errors were addressed to decedent’s contributory negligence and not to the appellee’s lack of due care. The specific jury finding that the appellee was not negligent makes the admission of this testimony, if erroneous, harmless and of no consequence in our consideration of whether to grant a new trial as to the appellee, City of Philadelphia.

As to the expert’s testimony concerning the decedent vaulting over the truck’s hood, this testimony was addressed to the issue of proximate causation and not to the issue of the appellee’s lack of due care. We, therefore, find this testimony harmless, for the same reasons as stated above.

Fourth, appellant argues the trial judge erred in refusing to charge the jury as requested in her point for charge No. 2 and in submitting the issue of contributory negligence to the jury. We initially note the appellant’s point for charge No. 2 has not been included in the record. It is incumbent upon the appellant to request that the points for charge be transcribed and filed of record. The appellant has not met this duty. Where there has been no such request made, the claimed error in refusing counsel’s point for charge cannot be considered. Ward et al. v. Babbit, Inc., 270 Pa. 370, 113 A. 558 (1921); Mooney v. Kinder, 271 Pa. 485, 115 A. 826 (1922).

The briefs indicate that point for charge No. 2 concerns the presumption of due care exercised by a decedent for his own safety at the time of the accident. The sole function of the presumption is to place the burden of proving a decedent’s negligence on the party asserting that proposition. The presumption, standing alone, has no evidentiary value. Yandrich v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981). Even if this issue was properly preserved, the trial transcript indicates the trial judge properly instructed the jury regarding this presumption.

Finally, appellant proposes there was no evidence of negligence on the decedent’s part which would permit the trial judge to submit the issue of contributory negligence to the jury. The thrust of appellant’s argument is directed toward the quality of the evidence pertaining to this issue. If there is any evidence of contributory negligence, it would be an error not to charge the jury on the issue. “We have held that where there is any evidence which alone could justify an inference of a disputed fact, such dispute must go to the jury, no matter how strong or persuasive may be the countervailing proof.” McCullough v. Monroeville Home Ass’n., Etc., 270 Pa.Super. 428, 431, 411 A.2d 794, 795-96 (1979) (Emphasis in original) (Citations omitted). See also Hanlon v. Sorenson, 289 Pa.Super. 268, 433 A.2d 60 (1981).

For the foregoing reasons, we affirm the March 19, 1982 judgment.

      . No request for appellate review of this grant for a new trial has been made.

      . The trial court granted appellant’s motion for a new trial as to co-defendant Strunk based upon an impermissible opinion made by Mr. Comisky.

      . N.T., February 2, 1981, at 1141.


author: CERCONE, Judge: CAVANAUGH, Judge,

text:
    478 A.2d 5
    COMMONWEALTH of Pennsylvania v. Sam BALISTERI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 8, 1983.
    Filed May 18, 1984.
    Petition for Allowance of Appeal Denied Sept. 17, 1984.

      Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   CERCONE, Judge:

Appellant was convicted in a non-jury trial of two counts of involuntary deviate sexual intercourse; three counts of indecent assault and two counts of corruption of minors. No post-trial motions were filed and appellant was sentenced to a total term of incarceration of four (4) to twelve (12) years to be followed by a five (5) year period of probation. He was further ordered to pay restitution in the amount of $7500 for the psychological treatment and counseling of the two minor victims. Appellant was also directed, as a condition of probation, to provide one hundred (100) hours per year of community service.

On May 27, 1982, appellant represented by the Office of the Public Defender filed a notice of appeal. Pursuant to Pa.R.Crim.P., Rule 1925(b), the court directed appellant to file a concise statement of matters complained of on appeal. After appellant filed the requested statement, the trial court, in its opinion, found that appellant had failed to file post-trial motions or a motion to modify the sentence and therefore he had not preserved any issues for appeal. The court relied on Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Keysock, 236 Pa.Superior Ct. 474, 345 A.2d 767 (1975). On this appeal, appellant only pursues his claim that the sentence of restitution was illegal.

The illegality of a sentence of restitution is not a waivable issue and therefore, we may address appellant’s contention. Commonwealth v. Kerr, 298 Pa.Superior Ct. 257, 444 A.2d 758 (1982); Commonwealth v. Stouffer, 241 Pa.Superior Ct. 142, 359 A.2d 829 (1976). Appellant’s argument here is two-fold. First, he contends that while restitution is proper for personal injuries it is not appropriate for emotional or mental disturbances. Secondly, he contends that there was no evidence of record showing that his alleged conduct was responsible for the children’s psychological difficulties.

Restitution was imposed pursuant to 18 Pa.C.S.A. § 1106, which reads:

(a) General rule. — Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result to the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.

Subsection (h), the definitional section, reads in pertinent part:

“Personal injury.” Actual bodily harm, including pregnancy directly resulting from the crime.

The Commonwealth contends “actual bodily harm” should be construed broadly to include injury to the psyche. Appellant urges us to adopt a narrow interpretation for “actual bodily harm” limited to physical injuries.

The Restatement (Second) of Torts § 461 (1965) provides in pertinent part:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Comment “d” to that section states:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, “Outrageous!”

Pennsylvania has adopted § 46, thereby making the intentional infliction of mental distress an actionable wrong in this Commonwealth. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970); Banyas v. Lower Bucks Hospital, 293 Pa.Superior Ct. 122, 437 A.2d 1236 (1981); Beasley v. Freedman, 256 Pa.Superior Ct. 208, 389 A.2d 1087 (1978); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979). Under § 46, a party may recover for emotional distress “and if” bodily harm occurs, for such bodily harm. In other words bodily harm is not a prerequisite for recovering under the tort of intentional infliction of mental distress.

We held in Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Superior Ct. 377, 383, 368 A.2d 770 (1976) that: “It is apparent that the gravamen of this tort [intentional infliction of mental distress] is that the conduct complained of must be of and extreme or outrageous type.” (citation omitted). Quoted in Banyas, 293 Pa.Superior Ct. at 126, 437 A.2d at 1238; Mullen v. Sucho, 279 Pa.Superior Ct. 499, 504-05, 421 A.2d 310, 313 (1980). Here appellant was alleged to have had sexual contact with two young children and to have encouraged sexual activity between the children, over a four year period. We have no difficulty in finding that such conduct is “of an extreme or outrageous type”, as the legislature has seen fit to make it a serious criminal offense. Hence, appellant could be found civilly liable in tort for the children’s mental difficulties. The controlling question we must then decide here is whether the tort rule should be transferred to the criminal theory of restitution.

Appellant refers us to legislation from Iowa, I.C.A. § 907.12, subd. lb, and argues that since that state shares this Commonwealth’s goals pertaining to restitution, we should follow its lead. However, that statute explicitly provided for restitution “except ... damages for pain, suffering, mental anguish____”; our statute does not. Similarly in State v. Bush, 34 Wash.App. 121, 659 P.2d 1127 (1983), the Washington Court of Appeals denied recovery for mental anguish, pain and suffering or other intangible losses where the juvenile restitution statute explicitly excepted such from recovery. RCWA 13.40.020(17). The Pennsylvania statute is silent as to such damages.

Cases revealed to us by the Commonwealth and our own research demonstrate that several other jurisdictions have chosen to interpret their restitution statutes to include recovery for emotional and mental disturbances. In State v. Behrens, 204 Neb. 785, 285 N.W.2d 513 (1979), the Nebraska court interpreted its statute, R.R.S. 1943 § 29-2262(j), which empowered the court to impose restitution for “the loss or damage caused ...” as permitting a recovery for pain and suffering. The Oregon statute reviewed in State v. Sullivan, 24 Or.App. 99, 544 P.2d 616 (1976), ORS § 137.540(10), provided for restitution for “the damage or loss”, and was held to include an award for trauma. While State v. Morgan, 8 Wash.App. 189, 504 P.2d 1195 (1973), held that the Washington enactment, RCWA § 9.92.060, which provided for restitution to “any person ... who may have suffered loss or damages ...” included pain and suffering.

While the three jurisdictions referred to have statutes that are worded in more general terms than the Pennsylvania statute, we nonetheless agree with the result of their holdings. Section 1106 provides for payment for personal injury suffered; such term being defined as “actual bodily harm” and not “actual physical injury.” As the various tort cases demonstrate a person may suffer much more than just a physical injury to his or her body. The purpose of restitution is rehabilitation of the offender by impressing upon him or her the loss he or she has caused and that it is his or her responsibility to repair that loss as far as it is possible to do so. Commonwealth v. Wood, 300 Pa.Superior Ct. 463, 446 A.2d 948 (1982). Restitution should be encouraged as both an aid in assisting the defendant’s rehabilitation and as an aid in compensating the victim. Commonwealth v. Fuqua, 267 Pa.Superior Ct. 504, 407 A.2d 24 (1979).

Applying these principles to the facts of this case, damage to the emotional health of a child, can be as damaging, if not more so, than any physical injury. Appellant’s conduct has caused severe emotional harm to his young victims and he must bear the financial expense, as far as is feasible, for the alleviation of the mental anguish. Anything less would not comport with the purpose of restitution. Hence, today we hold that “actual bodily harm” includes actual emotional or mental disturbances for the purpose of imposing restitution.

The imposition of restitution, as is the case with other sentences, initially lies within the discretion of the sentencing court. Commonwealth v. Erb, 286 Pa.Superior Ct. 65, 428 A.2d 574 (1981). Since restitution is part of a criminal sentence, it must be supported by the record and the court must determine the loss or damages resulting from the defendant’s conduct; the amount of compensation the defendant can afford to pay; and how such amount should be paid. Commonwealth v. Galloway, 302 Pa.Superior Ct. 145, 448 A.2d 568 (1982); Commonwealth v. Wood, supra; Commonwealth v. Seminko, 297 Pa.Superior Ct. 418, 443 A.2d 1192 (1982); Commonwealth v. Fuqua, supra. An award for restitution should not be speculative or excessive. The general rule is that if the record does not support the order of restitution then such sentence should be vacated. Id.

Appellant challenges the casual relationship between his alleged conduct and the emotional disturbance of the young victims. To order a defendant to pay restitution, his or her criminal conduct must have caused the loss or injury being compensated for. Commonwealth v. Cooper, 319 Pa.Superior Ct. 351, 466 A.2d 195 (1983).

In the current case the sexual assaults occurred over a four year period. The sentencing court had before it various reports concerning the victims’ mental and emotional background. Defense counsel expressed his concern that such reports did not proportion the causation between appellant’s conduct and the other contributing factors. The court found “that although there may have been other factors resulting in the placement of the children ... that certainly Mr. Balisteri’s conduct was a contributing factor, although I gather ... that there may be other factors involved____” The court noted that the children’s environment may have contributed to their placement. “Nonetheless, [the court felt] Mr. Balisteri contributed to the placement in those programs, particularly in placement at Western Psychiatric Institute for the boy who had gone shortly after this.” (N.T. 4/28/83 pp. 10-11).

We find that we are unable at this point in time to resolve whether emotional trauma, caused at least in part by a defendant’s conduct, must be proportioned for purposes of restitution. The various reports relied upon by the court have not been made part of the record on appeal and without the benefit of expert testimony we are unable to review the award of restitution in this respect. While even defense counsel did not doubt that appellant’s conduct contributed to the children’s problems, he did request a more definitive proof of its extent. We find it necessary to remand to permit the court and the parties to inquire further into the proportional effect the various factors had upon the victims. C.f., Commonwealth v. Fuqua, supra (court failed to find on the record causal relationships, however evidence was clear, no need to remand.)

Additionally, the trial court’s order of restitution directs the payment of $2,500 for the care of the one victim and $5,000 for the other. We find error in this order in two respects. As noted above a court must determine the amount of the damages caused by the defendant, the amount of restitution that is able to be paid, and how it should be paid. Commonwealth v. Seminko, supra. Here the sentencing court had ordered and received a supplemental investigation concerning the amounts involved in the treatment of the juveniles. Such document was never made part of the record and hence we are unable to determine whether the amount of restitution was proper. The amount of damages should be made part of the record upon remand. See, Commonwealth v. Fuqua, supra 267 Pa.Super. at 510 n. 9, 407 A.2d at 27 n. 9.

Finally, we question the court’s directive, which could be interpreted as, requiring restitution be paid to the treating institutions. This court has recently limited the payment of restitution solely to the direct “victim”, thus, disproving payments to third parties who assume payment of the victims’ losses. Commonwealth v. Cooper, supra, 319 Pa.Superior Ct. at 357 n. 8, 466 A.2d at 198 n. 8; Commonwealth v. Galloway, supra. Therefore, upon remand, the court should direct payment be made to the minors’ legal guardian who is legally responsible for the victims’ debts.

Judgment of sentence is vacated and we remand for resentencing in light of this opinion. We do not retain jurisdiction.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent from the majority’s disposition in the instant appeal. Initially, I note my agreement with the philosophy espoused by the majority, that is to provide restitution to a criminal victim for emotional and psychological damage. I feel constrained, however, to conclude that such a result was not within the contemplation of the Legislature.

18 Pa.C.S. § 1106(h) is penal in nature and thereby is not subject to a broad or liberal interpretation. See Common wealth v. Clipper, 303 Pa.Super. 385, 449 A.2d 741 (1982); Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978); Commonwealth v. Cluck, 252 Pa.Super. 228, 381 A.2d 472 (1977); Statutory Construction Act, 1 Pa.C.S. § 1928. The rationale behind the rule of strict construction of a penal statute is not only to give notice to one that their contemplated action is unlawful, but also to supply notice of the penalties which may evolve from their conduct. Commonwealth v. Broughton, supra. The majority’s interpretation of 18 Pa.C.S. § 1106(h) would contravene the rationale of the above mentioned rule of construction. Furthermore, 18 Pa.C.S. § 1106(h) was not drafted with the same general terminology as those criminal restitution statutes found in jurisdictions relied upon by the majority, as such we are prevented from exercising our discretion in such a fashion as our colleagues in those jurisdictions.

I would, therefore, conclude that it is for the Legislature to expand this statutory provision. In the interim, the victims in this matter would appear to have an adequate remedy at civil law.

      . 18 Pa.C.S.A. § 3123.

      . Id. § 3126.

      . Id. § 6301.

      . Appellant had been previously represented by privately retained counsel.

      . After the appeal was taken, but before he filed his statement of issues, appellant filed a pro se PCHA petition. 42 Pa.C.S.A. § 9541 et seq. The court denied the petition without a hearing and without prejudice, finding that the appeal had divested it of jurisdiction to proceed on the petition. No question is raised here as to the correctness of this procedure.

      . One issue raised by appellant was trial counsel’s effectiveness. As to this claim, the trial court found that it was without jurisdiction, due to the taking of the appeal, to hold an evidentiary hearing thereon. Appellant does not renew such claim before this court.

      . We need not address whether physical injury must accompany the negligent infliction of mental distress in order for it to be recoverable. However, we do note that there appears to be some' inconsistency between dictum in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the holdings in Murphy v. Penn Fruit Co., 274 Pa.Superior Ct. 427, 418 A.2d 480 (1980) Vattimo v. Lower Bucks Hospital Inc., 59 Pa. Cmwlth.Ct. 1, 428 A.2d 765 (1981), and the results reached in Banyas, supra, and Hoffner v. Hodge, 47 Pa.Cmwlth.Ct. 277, 407 A.2d 940 (1979).

      . We do not here determine whether restitution may be properly awarded for general damages such as pain and suffering. Instead our holding is limited to a situation where an actor’s conduct precipitates a mental or emotional disturbance requiring actual treatment.

      . These two errors pertain to the legality of the sentence. We raise them sua sponte as we may when such errors go to the legality of the sentence. Commonwealth v. Ford, 315 Pa.Superior Ct. 281, 461 A.2d 1281 (1983).

      . The court ordered the probation office to determine at the time of probation, following incarceration, the appropriate method of payment. The "better practice” is for the court to establish the manner of payment, however in the current circumstances we can not find error in this respect. Compare Commonwealth v. Wood, supra.


author: WICKERSHAM, Judge:

text:
    478 A.2d 11
    Carl E. KEMBEL, Helga Kembel, Jerry D. Hassinger, Diane M. Hassinger, Paul C. Nace and Kathryn H. Nace, Appellants, v. Edwin D. SCHLEGEL, David L. Schlegel, Vera G. Schlegel and Hegins Valley Lines, a corporation.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed May 25, 1984.
    Petition for Allowance of Appeal Denied Sept. 18, 1984.

      Jordan D. Cunningham, Harrisburg, for appellants.
    Daniel L. Sullivan, Harrisburg, for appellees.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   WICKERSHAM, Judge:

Plaintiffs-appellants appeal from the order of the Court of Common Pleas of Dauphin County refusing to enjoin defendants-appellees from operating a transportation business on certain land owned by appellees. Appellants allege that appellees’ business violates restrictions in appellees’ deed, that it constitutes a nuisance, and that appellants have sustained monetary damage as a result of appellees’ business.

The trial court found that in 1950, appellees’ father, Raymond Schlegel, constructed a cement building on Lot 47 of the land in question, which he used as a garage to house buses and mail trucks. From that time to the present, this building has been used to park, maintain, and repair buses and trucks used by the Schlegels in their bus transportation and mail delivery business. In 1958, Raymond Schlegel and his wife acquired Lots 44, 45, and 46, which were and are used for the parking of buses, trucks, and automobiles of patrons and employees. In 1963, Raymond Schlegel formed a partnership with his sons, Edwin and David, known as Schlegel Transportation Company (the Company). In the same year, the Company acquired certain common carrier rights from the Pennsylvania Public Utility Commission. Between 1965 and 1970, a shelter for the housing of buses was constructed on the northern side of the cement block building previously constructed on Lot No. 47. This shelter partially extends onto Lots 44, 45, and 46. By 1972, the Company had acquired three (3) diesel powered vehicles. From June 1972 to the time of the hearings, the Company has owned between five (5) and eight (8) diesel powered vehicles. During 1979 and 1980, the Company instituted various commuter routes to and from the city of Harrisburg. Some of these services were requested by Dauphin County Human Services.

Appellants Carl and Helga Kembel acquired property near the site of the Schlegel Transportation Company in 1959 and 1960. They constructed a residence on this land in 1962. This land is not located within the same plan of lots as the lots upon which appellees’ business is conducted.

Appellants Jerry and Diane Hassinger acquired their residence, which is constructed on Lot 42 of the same plan of lots as appellees’ business, in 1972.

Appellants Paul and Kathryn Nace acquired their residence, which is constructed on Lot 41 of the same plan of lots as appellees’ business, in 1962.

The demands of appellees’ business, especially the common carrier concern, has required the Company to operate, repair, maintain, and prepare the motor vehicles during late evening and early morning hours, both on weekdays and weekends.

With the exception of periodic complaints from the [appellant] Carl Kembel concerning slight tire damage to the bank located on the western side of his property, and occasional complaints from Kembel concerning noise, the [appellees’] business has been conducted on Lots. Nos. 44, 45, [46] and 47 ... without interference from any [appellant] or other individual from 1950 as to Lot No. 47 and 1958 as to Lots. Nos. 44, 45 and 46, and no legal action or other legal proceeding has been instituted by any individual to limit or remove the [appellees’] business until the instant lawsuit was instituted.

Lower ct. op., 10-22-81, at 11.

On October 11, 1979, appellants filed this action in equity alleging that appellees had breached the restrictive covenants in their deed and seeking to enjoin appellees’ operations on the basis of an alleged nuisance. Appellants sought to enjoin appellees from conducting any type of business on any of the lots in question between the hours of 5:00 p.m. and 7:30 a.m. on weekdays, and at any time on weekends. Appellants also sought monetary damages. A number of hearings were held and on October 22, 1981, the Honorable Clarence C. Morrison issued an opinion and order denying appellants’ application for injunctive relief and monetary damages. Appellants filed exceptions to the opinion and order, and argument was held before the court en banc on May 26, 1982. The court en banc issued an order denying and dismissing appellants’ exceptions on September 28, 1982. This appeal timely followed.

Appellants state the first issue for our consideration as follows:

Did the lower court err in finding that ap[p]ellants were barred from seeking equitable relief of the court by the theory of laches.

Brief for Appellants at 3.

A review of the briefs submitted to this court indicates that both parties are under the impression that the lower court held that appellants’ entire cause of action was barred by the doctrine of laches. A thorough reading of the trial court opinion, however, establishes that the court held that only appellants’ claim concerning appellees alleged violation of restrictions in their deed was so barred. See Lower ct.op., 10-22-81, at 15-17. The trial court never mentioned laches in its discussion of appellants’ nuisance claim. We agree with the lower court that appellants’ claim that appellees violated restrictions in their deed is barred by the doctrine of laches.

In that part of its opinion dealing with the restrictive covenant, the trial court first held that the restrictive covenant referred to by appellants was a condition governing the type of building that could be erected, not the use to be made of the building. Therefore, the covenant could not be applied to restrict the type of business conducted on appellees’ lots. The trial court then went on to state that even if the restrictive covenant were applicable, appellants could not enforce it because they had acquiesced in the violation of the restriction. It is clear that any violation of the building restriction existed at least since the late 1960s when the shelter was built. This suit was not commenced until 1979. When an individual seeks to enjoin a violation of a restrictive covenant after an unreasonable delay, the claim is barred by the doctrine of laches. Meadow Run/Mountain Lake Park Ass’n v. Ragone, 24 Pa. D. & C.3d 18 (1982). Thus, appellants’ claim that appellees violated the restrictive covenant in their deed is barred by the doctrine of laches.

Appellants also ask us to consider the following issue:

Brief for Appellants at 6.

At the outset, we note that our court must accept the findings of the court below with respect to the credibility of the witnesses. Bigham v. Wenschhof 295 Pa.Super. 146, 149, 441 A.2d 391, 392 (1982). The trial judge evaluated the expert’s testimony in light of the total circumstances of the case and concluded that the evidence was insufficient to support the claimed loss of value. After a thorough review of the evidence, and particularly of the expert’s testimony, we conclude that the trial judge’s findings in this regard are supported by the record.

Appellants’ remaining issues deal with the lower court’s discussion of their nuisance claim:

Did the lower court err in applying improper legal standards to the facts in reaching its opinion regarding the presence of a nuisance and the abatement of the same.
Did the lower court err in its rendition of the standard of proof required to be presented by appellants concerning noise and its effects.
Did the lower court err in rendering an opinion concerning the nonexistence of a nuisance against the weight of evidence.

Brief for Appellants at 4, 5 and 7.

First, we believe that appellants’ complaint alleged a private nuisance and not a public nuisance as stated by the trial judge. Lower ct. op., 10-22-81, at 12. In Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954), the Pennsylvania Supreme Court adopted section 822 of the Restatement (Second) of Torts as the test to determine the existence of a private nuisance. That section provides as follows:

§ 822. General Rule
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

The Restatement defines the extent of the invasion necessary to incur liability as follows:

§ 821F. Significant Harm
There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.

The Comment to this section further explains the meaning of “significant harm:”

c. Significant harm. By significant harm is meant harm of importance, involving more than slight inconvenience or petty annoyance. The law does not concern itself with trifles, and therefore there must be a real and appreciable invasion of the plaintiffs interests before he can have an action for either a public or a private nuisance ____ [I]n the case of a private nuisance, there must be a real and appreciable interference with the plaintiffs use or enjoyment of his land before he can have a cause of action.
When [the invasion] involves only personal discomfort or annoyance, it is sometimes difficult to determine whether the invasion is significant. The standard for the determination of significant character is the standard of normal persons or property in the particular locality. If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant.

Thus, the standard to be applied instantly is whether or not the appellees’ business would cause “significant harm” to a person of “normal” or reasonable sensitivities.

In its opinion, the trial court stated:

While the defendants’ business may have aesthetical shortcomings, it is nonetheless, a legal business with respect to which the creation of some noise and interference to neighbors will be inevitable, but which is not inherently injurious to the health of the public____ The issue is not whether the business creates noise or odors but whether the noise or odors created are of an injurious level. The plaintiffs have presented no calculated readings to establish whether the noise or fumes are at a level that is environmentally unsafe or injurious to health, i.e., decibel readings of noise or readings of environmental pollution directly related to the business. A Court of equity must demand an extremely clear case of unquestionable injurious conduct or interference which has been unnecessarily created in the operation of an activity which is of little if any benefit to the general public.

Lower ct. op., 10-22-81, at 20.

It is clear that appellees’ actions need not be injurious to health in order to be classified as a nuisance. See Smith v. Alderson, 262 Pa.Super. 387, 389, 396 A.2d 808, 810 (1979) (a nuisance may be found where there is an “unreasonable, unwarrantable, or unlawful use by a person of his own property which causes injury, damage, hurt, inconvenience, annoyance or discomfort to one in the legitimate enjoyment of his reasonable rights of person or property.”) (emphasis added). We are satisfied that the trial court used the term “injurious” as the equivalent of “significantly harmful.”

We find that the facts as reiterated in the trial judge’s opinion are supported by the record. It is for the trier of fact to determine whether there was a significant invasion of appellants’ enjoyment of their property, and, if such an invasion existed, whether the invasion was unreasonable. We are certain that the trial court applied the proper legal standard i.e., was there an invasion of appellants’ enjoyment and use of their property such that it would cause “significant harm” to a “normal” or reasonable person. The trial court found no nuisance to exist and under the facts of this case, we agree.

Order affirmed.

      . We note that in 1975, Raymond Schlegel and his wife conveyed the land in question to Edwin, David, and Vera Schlegel as a gift and, at the same time, Raymond Schlegel conveyed his interest in Schlegel Transportation Company to his daughter, Vera, as a gift. From that time until the present, appellees, Edwin, David, and Vera Schlegel, have been the sole owners of the Schlegel Transportation Company and the lots in question.

      . We recognize that the opinion of the court en banc dated September 28, 1982 is not as clear on this point as the opinion of the trial court dated October 22, 1981. The opinion of the court en banc fails to clarify that the laches doctrine applies only to appellants' restrictive covenant claim. Nevertheless, we hold that the trial court was correct in finding that the restrictive covenant claim is barred by the doctrine of laches. Since the trial court did not apply the doctrine in reference to appellants’ other claims, neither will we discuss it further.

      . We recognize that the Moffat court actually adopted the version of § 822 that appeared in the first Restatement of Torts. The substantive differences between the two versions, however, are minimal. Thus, we will refer to Restatement (Second). See Hughes v. Emerald Mines Corp., 303 Pa.Super. 426, 433-34, 450 A.2d 1, 4-5, (1982).


author: HOFFMAN, Judge:

text:
    478 A.2d 16
    Margaret J. ADRIANCE v. Randy J. ADRIANCE and Vicki L. Adriance. Appeal of Randy J. ADRIANCE.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1984.
    Filed May 25, 1984.

      Warren R. Baldys, Jr., Williamsport, for appellant.
    Gerald W. Seevers, Williamsport, for appellees.
    Before SPAETH, President Judge, and BECK, and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant, Randy J. Adriance, contends that the lower court erred in (1) enforcing its previous decree awarding custody of the parties’ children to appellee, Margaret J. Adriance, and (2) refusing to recognize the Nevada custody decrees awarding custody to appellant, and the Maryland order recognizing the Nevada decree. We find that the lower court correctly resolved these issues under the Uniform Child Custody Jurisdiction Act (UCCJA), 42 Pa.C.S.A. § 5341 et seq., and, accordingly, affirm the lower court’s order.

Facts

The parties were married in June of 1972. On April 17, 1978, appellant left the family home in Lawrenceville, Pennsylvania, without warning or notice of his destination, and took with him the parties’ two children, who were then ages three and five years old. On May 8, 1978, appellee petitioned the lower court for custody of the children and on May 9, the court issued a rule to show cause why the relief sought in the petition should not be granted, returnable for a hearing on June 22, 1978. A copy of the petition was served by certified mail dated May 18, 1978, on appellant at his last known address in Denver, Colorado. At the June 22 hearing, appellant failed to appear and the lower court awarded custody of the children to appellee.

On June 19, 1978, appellant filed a divorce action in Elko County, Nevada, and service was effected on appellee on June 23. On August 1, 1978, the Nevada court granted the divorce and awarded custody of the children to appellant by default. On October 24, 1978, appellee moved to open the custody portion of the Nevada judgment and for a hearing. On November 10, 1978, the Nevada court granted the motion and held a hearing on January 22, 1978, at which time both parties presented evidence. On January 24, 1979, the Nevada court awarded custody to appellant and visitation to appellee for the month of July each year.

In July, 1979, appellee, exercising her visitation rights, picked up the children from their paternal grandparents’ home in Lawrenceville, Pennsylvania, and took them to Maryland, where she had moved. She did not return the children at the end of the month, believing the Pennsylvania custody decree to be valid in Maryland.

Appellant located appellee in Annapolis, Maryland, and petitioned the Maryland court for recognition and enforcement of the Nevada decree. Following a hearing on August 17, 1979, the Maryland court recognized and enforced the Nevada custody decree. Appellee was not notified of this hearing and, accordingly, failed to appear.

Appellant then took the children to Nevada and, on January 31, 1980, upon his affidavit and following a hearing, the Nevada court held appellee, who was absent, in contempt and amended its prior custody decree to restrict appellee’s July visitations to the paternal grandparents’ home under the supervision of either appellant or the grandparents.

In July, 1983, while the children were residing with their grandparents in Lawrenceville, Pennsylvania, pursuant to the amended Nevada decree, appellee petitioned the Pennsylvania lower court on July 25 for a writ of habeas corpus, challenging the legality of the grandparents’ and appellant’s custody, and requesting enforcement of the Pennsylvania June 28, 1978 order and nonrecognition of the Nevada decrees. The writ was issued and served on the paternal grandmother, who subsequently appeared before the lower court on July 26, 1983. The court ordered that the Tioga County Domestic Relations Department assume temporary custody of the children pending a hearing and forbade the removal of the children from Pennsylvania. On August 3, 1983, appellant appeared to object to the lower court’s subject matter jurisdiction, and on August 5, took the children to California in violation of the court order. On August 15, 1983, the lower court ruled that it could not hold an evidentiary hearing with respect to best interests because it lacked subject matter jurisdiction under the UCCJA. However, the lower court did enforce its prior custody decree of June 28, 1978, granting custody to appellee.

On August 23, 1983, appellee filed a criminal complaint against appellant in a Pennsylvania court, charging him with interference with custody of children, 18 Pa.C.S.A. § 2904, and extradition papers were issued. Appellant was arrested in Bakersfield, California, and imprisoned to await an extradition hearing. The children were placed in The Department of Welfare Shelter Home in California. Appellant has been released on bail and now awaits the extradition hearing in California. The children are in his custody in California.

On September 6, 1983, appellant filed the instant appeal from the August 15, 1983 order.

Jurisdiction

Section 5344(a) of the UCCJA provides that:

... — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;
(3) the child is physically present in this Commonwealth, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.

42 Pa.C.S.A. § 5344. “Home state” is defined as “[t]he 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[.]” Id. § 5343.

Here, the lower court properly determined on August 15, 1983, that it lacked subject matter jurisdiction under the UCCJA to hold an evidentiary hearing on the children’s best interests. Pennsylvania is no longer the “home state” of the children because they have been living in California for the past five years and appellee has been living in Maryland for several years. None of the parties now have a “significant connection” with Pennsylvania, nor is there available in Pennsylvania “substantial evidence concerning the present or future care, protection, training, and personal relationships of the [children].” Two other states involved in this dispute, California and Maryland, appear to have proper bases for UCCJA jurisdiction and have not declined such jurisdiction. There are no allegations of child abandonment, neglect or abuse.

However, we hold that the lower court also correctly determined that it did have jurisdiction to enforce its prior custody decree of June 28, 1978, pursuant to the habeas corpus action instituted by appellee on July 25, 1983. For a court to have jurisdiction in a habeas corpus proceeding for child custody, the children must either be physically present in the state, reside in the state, or be domiciled in the state. Wolf v. Weymers, 285 Pa. Superior Ct. 361, 365, 427 A.2d 678, 680 (1981); Coombs v. Coombs, 225 Pa. Superior Ct. 304, 307, 303 A.2d 498, 499 (1973). Cf. Brocker v. Brocker, 429 Pa. 513, 519, 241 A.2d 336, 338 (1968) (courts have inherent power to enforce their orders and decrees). See P. Hoff, Interstate Child Custody Disputes and Parental Kidnapping: Policy, Practice and Law 8-11 (1982) (“[I]n cases in which a party resorts to habeas corpus to enforce an already existing decree, UCCJA ... jurisdictional requirements need not be met for the court to grant the requested enforcement remedy.”), Here, the children were physically present in Pennsylvania when appellee petitioned the lower court for the writ of habeas corpus and the court assumed jurisdiction. They only left Pennsylvania because appellant took them to California in violation of the court order.

Because the UCCJA provisions are concerned with a court’s jurisdiction to make an initial or modified custody determination, they are relevant in determining the merits of this appeal.

Pennsylvania Decree

The first question is whether the lower court had jurisdiction when the initial Pennsylvania custody decree of June 28, 1978, was entered. We find that the Pennsylvania court had jurisdiction to make the initial custody decree by virtue of its being the children’s “home state”. See 42 Pa.C.S.A. § 5344(a)(1). The children resided with their parents in Lawrenceville, Pennsylvania, from the moment of their births until April 17, 1978, when appellant removed them from the Commonwealth. Appellee petitioned for custody in Pennsylvania on May 8, 1978, at which time no other state could claim UCCJA jurisdiction. Because the June 28, 1978, decree has never been modified, it is binding on the parties under § 5353 of the UCCJA. See 42 Pa.C. S.A. § 5353; Commonwealth ex rel. Zaubi v. Zaubi, 492 Pa. 183, 188-189, 423 A.2d 333, 336 (1980).

Nevada Decree

The next question is whether the Nevada custody decree of January 24, 1979, or its amended decree of January 31, 1980, can be recognized and enforced by the courts of this Commonwealth. Section 5354 of the UCCJA provides that:

The courts of this Commonwealth shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this sub-chapter or which was made under factual circumstances meeting the jurisdictional standards of this subchapter, so long as the decree has not been modified in accordance with jurisdictional standards substantially similar to those of this subchapter.

42 Pa.C.S.A. § 5354. At the time of the Nevada decree, Nevada had not enacted the UCCJA and its applicable jurisdictional requirements, i.e., six weeks residency and presence of the children, were not in substantial accordance with the UCCJA. Additionally, the factual circumstances surrounding the initial Nevada decree did not meet the jurisdictional standards of § 5344 of the UCCJA. Nevada was not a “home state” because the children had been there for less than six months when the Nevada court entered the initial default judgment and when appellee commenced proceedings for opening the default judgment. Further, at that time, appellee was still living in Pennsylvania and most of the substantial evidence relevant to custody was available in Pennsylvania. Moreover, we agree with the lower court’s statement that

the Nevada Court’s action frustrated the purposes of the UCCJA which are this Commonwealth’s policy to wit;
(1) It encouraged Randy’s [appellant’s] abduction of the children designed to obtain a custody award, whereas our policy is to discourage such abductions.
(2) It failed to facilitate enforcement of this State’s prior valid custody order, whereas our policy is to facilitate enforcement of valid orders.
(3) It failed to cooperate with this court to avoid jurisdictional competition, whereas our policy is to so cooperate.
(4) And it failed to assure litigation in the state where the family and child have the closest connections and significant evidence exists, whereas our policy is to strive for such assurances. Sec. 42 Pa.C.S. 5342.

(Lower Court Opinion at 7-8). The lower court also noted that the Nevada court failed to acknowledge the prior Pennsylvania decree or proceedings despite its awareness of them and did not decline jurisdiction. See Lower Court Opinion at 8. Accordingly, we cannot recognize and enforce the Nevada decree because it’s jurisdictional validity, if any, was limited to Nevada. It follows that the amended Nevada decree is also unenforceable.

Maryland Order

Because of our conclusion that the Nevada court lacked UCCJA jurisdiction to make a custody determination, we find that the Maryland order of August 17, 1979, recognizing and enforcing the Nevada decree as a decree of the State of Maryland, cannot be recognized and enforced by the courts of this Commonwealth. Appellee was never notified of the Maryland hearing and was not present or represented at such hearing. The question of Pennsylvania jurisdiction vis-a-vis Nevada jurisdiction was never addressed by the Maryland court. Moreover, the Maryland order relied on appellant’s petition which erroneously stated that the Nevada decree had been made under factual circumstances meeting the jurisdictional standards of the UCCJA, which Maryland had enacted.

Conclusion

Under these circumstances, we hold that the lower court properly (1) enforced the initial Pennsylvania decree awarding custody of the children to appellee and (2) refused to recognize the Nevada custody decrees and the Maryland order. Accordingly, we affirm the August 15, 1983 order of the court below.

Affirmed.

      . Because the return receipt for this certified copy was accepted and signed by appellant’s sister on May 24, 1978, we conclude that appellant received adequate notice of the petition and June 22, 1978 hearing.

      . Section 5353 of the UCCJA provides that:
      A custody decree rendered by a court of this Commonwealth which had jurisdiction under section 5344 (relating to jurisdiction) binds all parties who have been served in this Commonwealth or notified in accordance with section 5346 (relating to notice to persons outside this Commonwealth; submission to jurisdiction) or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to these parties the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made unless and until that determination is modified pursuant to law, including the provisions of this subchapter.
      42 Pa.C.S.A. § 5353.

      . We emphasize that the lower court merely enforced its prior custody decree and did not hold an evidentiary hearing on best interests because it lacked jurisdiction to do so under the UCCJA. Therefore, we believe that a full determination of the best interests of the children in the instant case should be commenced, as needed, in a state with proper UCCJA jurisdiction to modify the June 28, 1978 Pennsylvania decree, namely, California or Maryland.