text:
    439 A.2d 1183
    COMMONWEALTH of Pennsylvania v. Robert MAZUREK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 8, 1980.
    Filed Jan. 5, 1982.

      George A. Priestley, Philadelphia, for appellant.
    Andrew B. Cohn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

The question raised by this appeal is whether the court below erred in dismissing the defendant’s motion to quash the complaint in that this dismissal violated the defendant’s federal constitutional and state statutory rights not to be placed in double jeopardy?

This argument is without merit, but we will however, discuss the matter briefly. The defendant wrongly interprets 18 Pa.C.S.A. 110(l)(ii). It is apparent in the instant case that no one court had simultaneous jurisdiction to adjudicate both the summary and misdemeanor offenses of which the defendant is charged, i.e., Philadelphia Traffic Court and the Municipal Court. The matter has been adjudicated by this court in two recent cases: Commonwealth v. Masterson, 275 Pa. Superior Ct. 166, 418 A.2d 664 (1980) and Commonwealth v. Hanlin, 272 Pa. Superior Ct. 313, 415 A.2d 905 (1979).

On July 4, 1979, the defendant was involved, as the driver of an automobile, in a motor vehicle accident in the City of Philadelphia. One of the accident victims, a passenger in defendant’s car, died on July 13, 1979, as a result of her injuries. On July 17, 1979, a summons for a traffic code violations, 75 Pa.C.S.A. 1501 (driving a motor vehicle without an operator’s license), a summary offense, was issued for the defendant. At a hearing in Philadelphia Traffic Court on September 4, 1979, the defendant was convicted of that summary offense. Thereafter, on September 22, 1979, a complaint was filed charging the defendant with involuntary manslaughter, homicide by vehicle, and operating a motor vehicle while intoxicated, all misdemeanor offenses arising from the July 4, 1979 accident. Prior to his Municipal Court trial, the defendant filed a motion to dismiss these informations, alleging a violations of 18 Pa.C.S.A. 110. Following a hearing before the Honorable George J. Ivins the defendant’s motion was denied. The instant interlocutory appeal followed.

In Masterson, supra, President Judge Cercone writing for a unanimous panel concluded “[the] Municipal Court does not have jurisdiction of summary offense under the Motor Vehicle laws.” In that case, we held that the defendant’s discharge at a Philadelphia traffic court hearing on a charge of disregarding a red light in an incident in which the defendant ran broadside into a taxi cab did not constitute an “acquittal” within the meaning of Section 110 of the Crimes Code. This section specifies when prosecution is barred by former prosecution for different offenses. There was no single court in which the Commonwealth could have filed both the summary and misdemeanor charges.

In Hanlin, supra, it was held that where charges of operating a motor vehicle under the influence, a misdemean- or, and failure to produce a driver’s license, a summary offense, arose from one episode, discharge of the defendant on the summary offense did not require dismissal of misdemeanor since misdemeanor requires proof of separate elements not required by the summary charge and the evil or harm sought to be prevented by statute are substantially different.

Masterson, supra, and Hanlin, supra, clearly dispose of this appeal.

The appeal is quashed for the reasons set forth above and because it is clearly interlocutory and the case is remanded for trial.


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    439 A.2d 1185
    COMMONWEALTH of Pennsylvania, v. Tyrone DOZIER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Jan. 8, 1982.
    Petition for Allowance of Appeal Denied April 2, 1982.

      John P. Cotter, Philadelphia, for appellant.
    Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from judgment of sentence for rape. We have concluded that appellant was properly convicted, but that the judgment of sentence must be vacated and the case remanded for a hearing on appellant’s petition for reconsideration of the sentence.

Appellant was tried before a jury. The principal witness was the complainant, a seventeen year-old high school student, who testified as follows. At 11 p. m. on January 5, 1979, while she was on her way home from visiting a girlfriend, appellant, whom she knew slightly, offered her a ride the rest of the way. It was snowing, and she accepted. However, rather than taking her directly home, appellant told her that he needed to stop at his girlfriend’s house to explain why he would be late. When they arrived at the girlfriend’s house, appellant insisted that she go inside with him to meet his girlfriend. She did go inside, but the girlfriend was not there. After some conversation, appellant forced her to go to an upstairs bedroom, where he removed her clothes and had sexual intercourse with her. When she screamed in pain, appellant told her that the longer she screamed the longer it would take. After finishing, he insisted that she wash up and allowed her to dress. She managed to escape and ran to her father’s house, which was near by. The police were called and took her to a hospital, where she was examined, and a tampon, which she had been wearing and which had been forced deep into her body, was removed.

The victim’s father, the examining physician, two police officers, and appellant’s girlfriend also testified for the Commonwealth. Their testimony was consistent with that of the victim.

Appellant did not take the stand nor did he present any other witnesses on his behalf. His trial counsel told the jury that appellant was not denying that intercourse had taken place but that it was his position that it had been consensual. Counsel had vigorously cross-examined the victim, asking her why she did not try to leave the house as soon as she discovered that appellant’s girlfriend was not there, and emphasizing the lack of any signs of force on her body or damage to her clothing. He suggested to the jury that the victim claimed that she had been raped in order to explain to her mother why she was not home on time and why she needed to go to the hospital for removal of the tampon.

Appellant first argues that the testimony of the victim was not sufficient to establish that a forcible rape occurred. We have no difficulty in agreeing with the lower court that that issue was for the jury. Appellant, in effect, is asking us to find that the jury could not have properly believed the victim’s testimony. However, her testimony was not self-contradictory or so improbable that any verdict based on it could only be speculative. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976).

Appellant next argues, by new counsel, that his trial counsel was ineffective, in several different ways.

First, appellant claims that his waivers of his rights under Rule 1100 were invalid and that trial counsel was ineffective in failing to move for a dismissal of all of the charges at some point between the original run date and the start of trial. Pa.R.Crim.P. 1100(f). Appellant argues that the waivers were not intelligent and voluntary because the written waiver forms misstated the original run date. We are satisfied, however, that the misstatements were harmless clerical errors. The notes of testimony, which had not been transcribed when appellant’s brief was prepared but which are now part of the record, indicate that appellant was advised of his Rule 1100 rights and of the correct run date; that he executed the first of the two waiver forms because he had decided on the day jury selection was to begin that he wanted to be tried by a judge alone but no judge was available; and that he executed the second waiver form because later in the day he changed his mind and again wanted a jury trial but by then the jury panel had been dismissed. The new run date, agreed to at the afternoon hearing and reflected on the second waiver form, was only eleven days later than the date agreed to at the morning hearing. The clerical error on the waiver forms consisted of listing the new run dates on both the top part—where the old run dates should have been—and on the bottom part of the forms. We agree with the Commonwealth that this error does not invalidate waivers that the record clearly shows were otherwise proper, and that counsel was therefore not ineffective in failing to move for dismissal under Rule 1100(f).

Next, appellant claims that trial counsel was ineffective in not requesting the lower court to charge the jury that in order to find appellant guilty of rape it had to find beyond a reasonable doubt that the intercourse was not consensual. However, the court did tell the jury that it had to find “that the intercourse was accomplished through forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.” N.T. 12/14/79 at 286. If the jury found forcible compulsion, it could not find consent. The court’s instruction was taken directly from the Pennsylvania Proposed Standard Jury Instructions (§ 15.3121A). There is no right to have any particular form of instruction given; it is enough if the instruction clearly and accurately explains the relevant law. Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977); Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975).

Next, appellant claims that the prosecutor’s closing argument was so improper that it deprived him of a fair trial and that trial counsel was ineffective for failing to object.

In considering this claim we must view the allegedly objectionable remarks in the context of both the prosecutor’s and defense counsel’s closing arguments. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979). Not every intemperate or ill-advised statement by the prosecutor constitutes, by itself, grounds for a new trial. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Stolzfus, 462 Pa. 43, 337 A.2d 873 (1975). In addition, our cases recognize that the prosecutor must have reasonable latitude in presenting his arguments to the jury and in responding to the arguments of defense counsel. Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975).

The closing arguments of both defense counsel and the prosecutor have been transcribed. We have concluded that the prosecutor’s remarks were within permissible limits, and that trial counsel was therefore not ineffective in failing to object to them. We may explain this conclusion by giving some examples.

Appellant objects to the prosecutor’s use of the word “rapist,” citing Commonwealth v. Reynolds, 254 Pa. Superior Ct. 454, 386 A.2d 37 (1978). However, in Reynolds the defendant was being tried for simple assault but the prosecutor repeatedly referred to him and one of his witnesses as “robbers” and “rapists.” Here, appellant was being tried for rape, and the prosecutor’s use of the work “rapist” was in response to a rhetorical question asked by defense counsel.

Another example: Appellant claims that the prosecutor improperly stated his personal belief that the victim was telling the truth. Appellant’s trial counsel had vigorously attempted both by cross-examination and in his closing argument to discredit the victim’s story that the intercourse had been forcible rather than consensual. The prosecutor responded by pointing to ways the victim could have made her story of forcible compulsion stronger, and said that he considered her failure to do so evidence of her desire to tell the truth. Given the nature of the attack on the victim’s truthfulness, we do not believe that this was improper.

Appellant’s remaining claims of improper remarks by the prosecutor are similar and do not require separate discussion.

Appellant’s final claim that trial counsel was ineffective involves appellant’s sentence. Appellant’s postverdict motions were denied and he was sentenced on February 19, 1980. On March 4 he filed a pro se petition for reconsideration of his sentence. Although the petition was pro se, the order setting the hearing for March 19 listed the name of appellant’s trial counsel as attorney for the defendant and instructed him to appear on that date. Whether trial counsel ever actually received notice of the hearing is not clear from the record. What is clear is that counsel did not appear. The hearing began with this interchange between the court and appellant:

THE COURT: Now, Mr. Dozier, we have been trying to get hold of your lawyer, Mr. Booker, since about a quarter of three.
THE DEFENDANT: Yes, sir.
THE COURT: He is not here. We have this petition from you which you filed yourself.
THE DEFENDANT: Yes.
THE COURT: Asking me to reconsider the sentence. Now, what do you want to say?
THE DEFENDANT: Stand up here?
THE COURT: Yes. I think you ought to be sworn. N.T. 3/19/80 at 2.

Appellant was sworn and the hearing proceeded in the absence of his counsel. The court did not ask appellant if he wished to waive his right to counsel, nor did it engage in such a colloquy with appellant concerning his knowledge of his rights and the dangers of proceeding without counsel as could support such a waiver. Almost two months later trial counsel filed a statement of matters complained of on appeal, making no reference to the reconsideration of sentence proceeding although the filing of the petition for reconsideration and its denial by the lower court were both shown on the lower court’s docket. Appellant argues that he was entitled to counsel, and that trial counsel was ineffective in failing to object to the court’s having proceeded in the absence of counsel.

The Commonwealth argues that appellant is not entitled to any relief because his petition for reconsideration was filed too late—more than ten days—after he was sentenced. However, contrary to the requirements of Pa.R. Crim.P. 1405(c), appellant was not told on the record at the time of sentencing that he had only ten days in which to petition for reconsideration. In such circumstances we have declined to find a waiver of the right to petition for reconsideration. Commonwealth v. Walton, 289 Pa.Superior Ct. 411, 433 A.2d 517 (1981); Commonwealth v. Kittrell, 285 Pa.Superior Ct. 464, 427 A.2d 1380 (1981).

The Commonwealth also argues that the lower court had to proceed, even in the absence of counsel, because it was already the 29th day after sentencing and after the 30th day the court would lose its jurisdiction to reconsider the sentence. This argument is without merit. The court could— and under the circumstances, should—have vacated appellant’s sentence and rescheduled the hearing for a later time. Pa.R.Crim.P. 1410 Comment. At the later hearing the court could, as it saw fit, either reimpose the original sentence or impose a modified sentence.

Since sentencing is a critical stage of a criminal prosecution, appellant had a right to be represented by counsel at the reconsideration hearing. Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968). Trial counsel was therefore ineffective in failing to object to the lower court’s having proceeded in the absence of counsel, and appellant is entitled to another reconsideration of sentence hearing with counsel present. Any further appeal must be from the sentence imposed at that hearing, but on such an appeal only issues relating to the propriety of the sentence may be raised.

Judgment of sentence vacated and case remanded for reconsideration of sentence.

      . Appellant was also convicted on Bill on Information Number 591 February Term 1979 of simple assault. We cannot consider appellant’s arguments challenging that conviction, however, for appellant’s notice of appeal listed only Bill of Information Number 590 February Term 1979, on which he was convicted of rape.

      . The Commonwealth says that appellant failed to indicate where in the record the prosecutor’s allegedly objectionable remarks appear and that we should therefore not consider this aspect of his appeal. Brief for Appellee at 12 n. 13. Although appellant did fail to include specific references to the record in the argument section of his brief, contrary to Pa.R.A.P. 2119(c), he did include the references in his statement of the case, as required by Pa.R.A.P. 2117(a)(4), and he filed a reproduced record which included most of the relevant pages from the notes of testimony. It is certainly better practice to include the references at both places in the brief, as the rules require, but we shall not quash an appeal—or a part of one—when references to the record have been provided in at least one of the required places. This case can thus be distinguished from Commonwealth v. Rozanski, 289 Pa. Superior Ct. 531, 433 A.2d 1382 (1981), where we found waiver where the claim of prejudice was very general and we were provided no references to the record at al. Id., 289 Pa.Super. at 545-46, 433 A.2d at 1390.

      . Appellant’s petition for reconsideration of sentence—like his notice of appeal—listed only the bill of information number for the rape charge. However, the text of the petition recited that he had been convicted at that number of both rape and simple assault. At the reconsideration hearing the court, without objection from the Commonwealth, discussed both the rape sentence, which was eight to sixteen years, and the simple assault sentence, which was one to two years to run concurrently. The court took the position, which the Commonwealth did dispute, that the simple assault merged with the rape. N.T. 3/19/80 at 5-6. In fairness to appellant, on remand the lower court should reconsider its entire sentence, even though all of appellant’s other claims with regard to his assault conviction have been waived. See note 1 supra.


author: HESTER, Judge:

text:
    439 A.2d 1190
    Scott D. McCANN, Appellant, v. Nancy DOMIAN.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1981.
    Filed Jan. 8, 1982.

      Nikki Ann Tufano, Pittsburgh, for appellant.
    John A. Knorr, Pittsburgh, for appellee.
    Before SPAETH, HESTER and SHERTZ, JJ.
   HESTER, Judge:

Presently before the court is appellant-father’s appeal from the order of the lower court awarding general custody of the parties’ minor children (Carrie, born 8/2/73 and James, born 3/31/75) to the appellee-mother.

We affirm.

The relevant facts may be summarized as follows:

The appellant, Scott McCann and the appellee, Nancy Domian were married on January 11, 1973. Two children were born of the marriage: Carrie Lynn, born August 2, 1973 and James Scott, born March 31, 1975. A final separation between the parties occurred in July, 1976 and a decree in divorce issued on July 27, 1977. Pursuant to an agreement between the parties, the appellee/mother retained custody of the children with partial custody in the appellant/father. After the divorce, mother and children lived in a two bedroom apartment for approximately 6 months until January 1, 1978 at which time they moved in with the maternal grandparents, for financial reasons.

The appellant, Scott McCann, married his present wife, Kathleen, in August, 1977. One child has been born of this marriage, who was 2 years of age at the time of the hearing. Kathleen’s child of a prior marriage, age 4 at the time of the hearing, was also living with the McCanns.

In April, 1978 the appellee Nancy Domian, went to Florida for a short stay, leaving the children with their maternal grandparents, with whom they had been living. After exercising his normal weekend partial custody rights, the appellant/father failed to return possession of the children. In May, 1978, upon her return from Florida, the appellee and her father removed the children from the appellant’s yard where they had been playing. The extent to which force was used in this instance is a matter in dispute. A short time later, in June, 1978, Scott and Kathleen McCann attempted to forcibly remove the children from the appellee while they were attending a fair with their mother and aunt at a department store parking lot. Assistance was rendered by store personnel and the McCandless Township police. Prior to this incident, a custody hearing had been scheduled for June, 1978. At that time, a consent agreement was reached between the parties, granting custody to the mother with the father to exercise partial custody on alternating weekends and certain holidays. During this period the appellee/mother and the children continued to live with the maternal grandparents.

In October, 1978, the appellant’s parents sold their home in Pittsburgh somewhat unexpectedly with plans to relocate to the State of Florida. A review of the testimony reveals that the appellee suggested to the appellant that the children move to Florida with her parents for a few months, at which time she would join the children and her parents. Upon objection of the appellant and after meeting with Scott and Kathleen McCann, the appellee testified that she agreed to leave the children with their father for a period of a few months until she was financially stable or at the latest until June of 1979. The appellant and his wife, on the other hand, testified that the appellee stated she was uncertain as to when she would retrieve the children, that she wanted to pursue a career and might never want the children. The appellee did continue to see the children each weekend throughout this period, from Friday evening or Saturday morning until Sunday evening. Mrs. Domian was married to her present husband, Richard, in October, 1979.

The appellant/father filed the instant complaint for custody of the parties’ children and a brief hearing was held in June, 1979, after which an interim order issued, granting temporary custody to the father pending a final and more complete hearing in November, 1979. Said hearing was held on November 28, 1979 lasting one full day, after which the order granting custody to the mother was issued, said order being the subject of the instant appeal.

As this court in Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 at 783-4 (1979) so aptly stated.

It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa. Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra.

We have engaged in a comprehensive review of the record of the proceedings below and have made an independent judgment based upon a careful review of the evidence. We are satisfied that the relevant facts and circumstances have been explored.

Ms. Linda McCrady, a realtor who had viewed the homes of each of the parties, testified as to the general state of disrepair of the McCann home. The problems went beyond a lack of cleanliness and included such dangerous conditions as broken and crumbling cement on the front steps and paint chips on the floor. Mrs. Domian’s home, on the other hand, was described as clean and well-kept.

Neighbors testified as did Ms. McCrady to the indifference displayed by Mr. McCann towards his children. The weight of the evidence reveals that the appellant spent little time with the children and was not active in their care. The appellant himself did not testify to any activities in which he engages with the children. Moreover, he could not recall an incident wherein his young son was struck in the eye requiring an emergency trip to the hospital and stitches near the eye.

In conjunction with this lack of attention on the part of the appellant, there was evidence that the appellant does have somewhat of a problem with alcohol. Mr. McCann denied ever drinking to excess but did admit to consuming 2-3 beers several times a week. Further, both he and his present wife admitted that they frequently disagree about his drinking. Mrs. Domian testified to the excessive use of alcohol by Mr. McCann and this testimony was supported by neighbors as well as by Ms. McCrady, the realtor.

Additionally, there was evidence that Mr. McCann had been somewhat lax in his obligation to provide financial support for the children. At the time of the parties’ separation, Mr. McCann left the marital home, leaving his then wife and infant children with little or no money at hand. Even after an Order of Court issued for the support of the children, Mrs. Domian was compelled to seek and obtain a wage attachment after Mr. McCann failed to comply.

Finally, in marked contrast to the indifference which Mr. McCann’s actions reveal, the appellee, Mrs. Domian, testified that “those children mean everything in the world to me” (T. 126). Both Mr. and Mrs. Domian appear to have established a warm parental relationship with the children. Even Mr. McCann admitted that his ex-wife was a good mother (T. 57). When asked about her relationship with her children, Mrs. Domian testified:

“I love my children. They mean everything to me. They always have. After Scott [the appellant] left, me and the kids, we didn’t have anybody except for each other. I’ve raised them all their lives all by myself. Up until now, Scott never, ever shown any interest in those kids... (T. 143).

As stated above, even after the appellee voluntarily gave the children to the appellant on what appears to have been a temporary basis, she continued to spend every weekend with them and upon obtaining suitable living arrangements, attempted to regain possession of them on a full-time basis.

Accordingly, for all of the above reasons, we affirm.

SHERTZ, J., concurs in the result.

Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court.

      . The appealed from Order of Court provides in its entirety:
      “AND NOW, this 5th day of December, 1979, following a full hearing on November 28, 1979, with both parties present and their respective counsel, custody of the parties’ minor children, CARRIE (bom, August 2, 1973) and JAMES (bom, March 31, 1975), is awarded to their mother, NANCY DOMIAN, the defendant herein, under and subject to such partial custody arrangements as shall be agreed to between the parties.
      Absent such agreement, the father, SCOTT McCANN, shall have partial custody every other weekend from Friday evening at 5 P.M. until Sunday evening at 8 P.M. beginning Friday, December 21, 1979. In addition, the father shall have partial custody from 12 Noon until 8 P.M. on Christmas Day and on alternating national holidays from 5 P.M. the preceding evening until 8 P.M. the evening of said holiday beginning with January 1, 1980, Memorial Day and Labor Day, 1980, and the next year said holidays shall be Easter Sunday (if not part of his regular weekend), Fourth of July and Thanksgiving.
      THIS ORDER shall become effective at 5 P.M. on December 14, 1979.
      BY THE COURT
      /s/ Kaplan. J.”


author: WICKERSHAM, Judge:

text:
    439 A.2d 1193
    Margaret G. ROSE and A. Ray Rose, her husband, Kenneth Behrend and Mark B. Aronson, Appellants, v. H. Andrew WISSINGER, Robert S. Grigsby, John David Rhodes, Thomson, Rhodes & Grigsby, a partnership.
    Superior Court of Pennsylvania.
    Argued April 15, 1980.
    Filed Jan. 8, 1982.
    Petition for Allowance of Appeal Denied April 2, 1982.

      Kenneth W. Behrend, Pittsburgh, for appellants.
    John W. Jordan, IV, Pittsburgh, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

This appeal was taken from a lower court order sustaining appellees’ preliminary objections in the nature of a demurrer and dismissing appellants’ complaint. We agree with the Honorable Ralph H. Smith, Jr. of the Court of Common Pleas of Allegheny County that appellants did not set forth a cognizable theory in their complaint upon which they may seek recovery under the law of Pennsylvania, and we, accordingly, affirm the lower court order dismissing that complaint.

The relevant facts may be summarized as follows. While a patient at St. Francis General Hospital, Inc. (hereinafter Hospital), Margaret G. Rose, suffered a fracture of the left femur and a shortening of her left leg. Her husband, A. Ray Rose, and she retained the services of the law firm of Behrend and Aronson, the members of which included Attorneys Kenneth Behrend and Mark B. Aronson. Behrend and Aronson instituted suits against the Hospital and H. Andrew Wissinger, a physician, on behalf of Mr. and Mrs. Rose for the injury which Mrs. Rose had sustained in the Hospital.

The suit against H. Andrew Wissinger was commenced on July 7, 1976, by the filing of a praecipe for a writ of summons in trespass and assumpsit which was subsequently issued and served upon Wissinger. This action against Wis-singer was discontinued at the election of Mr. and Mrs. Rose without a complaint being filed.

On January 30, 1978, Wissinger filed a complaint in trespass at No. GD 78-2021, in which malicious use of process was alleged against Mr. and Mrs. Rose, and Kenneth Beh-rend and Mark Aronson, trading as Behrend and Aronson, a partnership. The basis of Wissinger’s complaint was that the defendants had filed the previous suit against him with malice and without probable cause, and that Wissinger was, therefore, entitled to punitive damages. Wissinger was represented by the law firm of Thomson, Rhodes & Grigsby, the members of which included Attorney Robert S. Grigsby, who later became a judge of the Court of Common Pleas of Allegheny County, and Attorney John David Rhodes. Wis-singer subsequently discontinued his action.

On January 29, 1979, Mr. and Mrs. Rose, Behrend and Aronson, all of whom are appellants herein, commenced the instant suit by writ of summons in trespass against Wissinger, Grigsby, Rhodes and the law firm of Thomson, Rhodes & Grigsby, a partnership, and against Employers Insurance of Wausau, a corporation. On March 26, 1979, the latter was dropped by consent of all parties from the records as a party defendant, and a complaint in trespass was filed against the remaining defendants, appellees herein. The subject matter of this complaint was the preparation, filing and service of the complaint at No. G. D. 78-2021 by appellees. We adopt the lower court’s summary of the contents of appellants’ complaint:

In the instant case, the complaint of Dr. Wissinger is incorporated into the plaintiffs’ complaints [sic] and made a part thereof (¶ 8). The Wissinger Complaint contains the following:
1. Identification of Dr. Wissinger as a physician (¶ 1);
2. Identification of Margaret G. Rose and A. Ray Rose as individuals residing in Fayette County (¶ 2);
3. The identification of Behrend and Aronson as attorneys practicing in Pittsburgh (¶ 3);
4. That Behrend and Aronson filed a praecipe against Dr. Wissinger at No. G. D. 76-14870 with the permission and consent of Margaret G. and A. Ray Rose (Is 4, 5, 6, 7 and 13) and that action was brought as a result of their advi[c]e;
5. That the Prothonotary issued a writ in accordance with the praecipe (¶ 8), that the writ was delivered to the Sheriff for service (¶ 9) and was subsequently served by the Sheriff on July 16, 1976 (110);
6. That on February 16, 1977, a praecipe to discontinue the action against Dr. Wissinger was filed by Behrend and Aronson (¶ 11) and this termination was without imposition of liability on the part of Dr. Wissinger (¶ 14);
7. That the filing of the praecipe against Dr. Wissinger on behalf of the Roses by Behrend and Aronson was without probable cause (¶ 12) and that it was done ‘with malice and without probable cause to believe that there could be [any] reasonable basis for recovery therein’; . . .
Plaintiffs contend that the instant complaint sets forth four separate theories which are recognized by the law and upon which it would be entitled to recover. These theories are:
1. Defamatory remarks made in a court filing, not protected by privilege;
2. Outrageous conduct causing emotional distress under Restatement of Torts 2d Sec. 46;
3. Conspiracy to commit defamation; and,
4. Conspiracy to commit outrageous conduct causing severe emotional distress.

Lower ct.op. at 2-3 (footnote omitted).

On April 2, 1979, appellees filed preliminary objections in the nature of a demurrer alleging that appellants’ complaint failed to state a cause of action. On June 21,1979, the lower court sustained appellees’ preliminary objections and dismissed appellants’ complaint. This appeal followed.

The standard for reviewing an order sustaining preliminary objections in the nature of a demurrer is set forth in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979):

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Id., 486 Pa. at 149-50, 404 A.2d at 673-74.

Appellants first contend that the language of the complaint at No. GD 78-2021 was defamatory in that it charged appellants with filing a lawsuit which was unjustified, without probable cause, and motivated by malice. We disagree.

The specific language of the complaint at No. GD 78-2021 which appellants allege to be false and defamatory is the following:

‘12. The action at No. GD 76-14870 filed by the Defendants Margaret G. Rose and A. Ray Rose, her husband, upon the advice and direction of the Defendants Kenneth Behrend and Mark B. Aronson, trading as Behrend and Aronson, a partnership, was filed without probable cause...
‘15. (A) He (H. Andrew Wissinger) has been unnecessarily subjected to Civil litigation. . .
(D) The Plaintiffs suffered an emotional distress as the consequence of the unjustified litigation;
(E) The Plaintiff is entitled to punitive damages resulting from the Defendants’ malicious use of process.’

Complaint, para. 22.

In Greenberg v. Aetna Insurance Company, 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366, the supreme court affirmed the lower court’s orders sustaining the defendants’ preliminary objections and dismissing the complaints in trespass for libel because they showed on their face that plaintiff had no cause of action. The libel action was based on statements made in the answers filed in an assumpsit action involving the same parties. The supreme court held that the statements in question were relevant, material and, if established, constituted a complete defense to the assumpsit action, and were, therefore, absolutely privileged. The court held further that even if those statements were made falsely or maliciously and without probable cause, an absolute bar to the libel action based on such statements still exists.

When alleged libelous or defamatory matters, or statements, or allegations and averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them. Moreover, if questioned or challenged by the opposite party, all reasonable doubts (if any) should be resolved in favor of relevancy and pertinency and materiality.
In Kemper v. Fort, 219 Pa. 85, 67 A. 991, supra, the Court analyzed and reviewed at great length the authorities in this field and in an able Opinion pertinently said (pages 93-94, 67 A. page 994):
‘All charges, all allegations and averments contained in regular pleadings addressed to and filed in a court of competent jurisdiction, which are pertinent and material to the redress or relief sought, whether legally sufficient to obtain it or not, are absolutely privileged. However false and malicious, they are not libelous. This privilege rests on public policy, which allows all suitors * * * to secure access to the tribunals of justice with whatever complaint, true or false, real or fictitious, they choose to present, provided only that it be such as the court whose jurisdiction is involved has power to entertain and adjudicate. . . .
Public policy requires this, even if at times the privilege of immunity for false and malicious averments in pleadings is abused. Justice can be administered only when parties are permitted to plead freely in the courts and to aver whatever ought to be known without fear, of consequences, if a material and pertinent averment should not be sustained. Wrong may at times be done to a defamed party, but it is damnum absque injuria. The inconvenience of the individual must yield to a rule for the good of the general public.

Id., 427 Pa. at 514-516, 235 A.2d 577-578 (footnote omitted).

Appellants contend that the principles enunciated by the supreme court in Greenberg do not protect appellees here, because the Court of Common Pleas of Allegheny County did not have “competent jurisdiction” over the suit at No. GD 78-2021 in which the alleged defamatory statements were made. Appellants do not argue that the court of common pleas did not have jurisdiction to hear an action for malicious use of process, the basis of the complaint at No. GD 78-2021, but rather appellants argue that the lower court lacked jurisdiction because this particular action was non-existent either in legal theory or fact and the statements in question were impertinent, irrelevant, and immaterial to any issue in a civil suit. We agree with appellees that appellants have applied an incorrect test for determining whether the court of common pleas had jurisdiction over the case at No. GD 78-2021.

The phrase ‘jurisdiction of the cause of action’ means ‘the competency of the particular court to determine controversies of the general class to which the case then presented for its consideration belongs.’ That the court may be unable to ultimately grant the relief sought does not determine the jurisdictional question. The question is not whether the plaintiff may recover, but whether the court has power to hear and determine that kind of controversy.

Goodrich-Amram 2d § 1017(b):7, at 52 (footnotes omitted). There can be no question that the courts of common pleas have original jurisdiction over actions for malicious use of process, see 42 Pa.C.S. 931(a), and that the allegations made in the complaint at No. GD 78-2021 were pertinent and material to the relief sought in that suit. See Blumenfeld v. R. M. Shoemaker Co., 286 Pa.Super. 540, 429 A.2d 654 (1981).

Appellants next contend on appeal that the conduct of appellees in filing the lawsuit at No. GD 78-2021, unfounded in fact or law, solely for its disruptive effect on the trial of an existing lawsuit constitutes outrageous conduct causing severe emotional distress. In their complaint, appellants alleged, inter alia, as follows:

17. Civil Action No. GD 78-2021 was intentionally or recklessly filed in complete disregard of the fact that Defendants knew, or should have known, that Plaintiffs Margaret G. Rose and A. Ray Rose, . . ., were peculiarly susceptible to severe, emotional distress by reason of the age and physical condition of both Plaintiffs, and mental condition of Mrs. Rose.
18. As a result of the extreme and outrageous conduct, Plaintiff Margaret G. Rose has suffered severe mental suffering, .... The actions of the Defendants . . . contributed to the fact that A. Ray Rose was unable to be in attendance and testify on behalf of his wife, . . ., during the Trial of their cause of action against St. Francis General Hospital, Inc., . . .; in addition, said course of conduct on the part of Defendants was a contributing factor to a severe and debilitating heart attack suffered by Plaintiff A. Ray Rose .... A. Ray Rose has also suffered mental anguish ....

Complaint, paras. 17, 18.

The essential elements of the tort of intentional infliction of mental distress are defined in Restatement of Torts, Second, § 46(1) (1965):

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.

Appellants rely on Comment f to section 46 which states in part: “The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.”

In Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976), it was alleged in a complaint in trespass and wrongful death that a law firm and a creditor had inflicted severe emotional distress, causing two deaths, by their statements that the decedents’ house was to be sold by execution upon a confessed judgment which may have been unenforceable. This court affirmed the lower court’s order sustaining preliminary objections to the complaint holding that a cause of action had not been established and that the defendants had done no more than state an intent to pursue their remedies for default on the debtors’ notes. The court stated as follows:

The comments to Section 46 provide a helpful guide in enumerating the elements of this tort. In Comment d to the section it is stated:
‘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.’ (Emphasis added.)
It is apparent that the gravamen of this tort is that the conduct complained of must be of an extreme or outrageous type. See Public Finance Corp. v. Davis, 36 Ill. App.3d 99, 343 N.E.2d 226 (1976). Viewed in relation to the above standards it is clear that the conduct complained of in this case is not so extreme and outrageous as to support an action for intentional infliction of mental distress.

Id., 244 Pa.Super. at 383, 368 A.2d at 773 (footnote omitted).

We conclude under Jones that appellants’ complaint here fails to state a cause of action for the tort of intentional infliction of mental distress. Appellants seek to distinguish the instant case from Jones on the ground that in Jones “the lawyers who were sued were at least making an effort to collect a recognized debt that was owed,” whereas in the case at No. GD 78-2021 “no cognizable legal rights were being pursued.” Brief for Appellants at 15. We find no merit in this distinction. In Jones, the court recognized that there may have been valid defenses to the threatened execution proceedings, and that the defendants in that case may have been aware that execution proceedings could not be completed absent a hearing, but the court concluded that the existence of such knowledge or such defenses did not elevate the statements at issue to the level of “extreme and outrageous conduct.” The court noted further that “it would be erroneous for this court to hold that a mistake as to the propriety of execution or its availability amounts to extreme or outrageous conduct.” Id., 244 Pa.Super. at 384 n.6, 368 A.2d at 774 n.6. In the same manner, the existence of valid defenses to the suit for malicious use of process at No. GD 78-2021, or a mistake as to the propriety of such suit or its availability, does not elevate appellees’ conduct in instituting that action to “extreme and outrageous conduct.”

We conclude that appellants’ complaint fails to set forth a cause of action for defamatory remarks made in a court filing, not protected by privilege, or a cause of action for outrageous conduct causing emotional distress under Restatement of Torts, Second, § 46(1) (1965). Inasmuch as we do not find any basis for the defamation or the outrageous conduct theories, there could not be any conspiracy to commit those acts. The lower court’s order sustaining ap-pellees’ preliminary objections in the nature of a demurrer and dismissing appellants’ complaint is hereby affirmed.

Order affirmed.

      . Appellants frame the issues on appeal as follows:

        I. Did the conduct of Appellees in filing a lawsuit, unfounded in fact or law, solely for its disruptive effect on the trial of an existing lawsuit constitute actionable, outrageous conduct?
      II. Is it defamatory to Party and Lawyer to charge them with filing a lawsuit that was unjustified, without probable cause, and motivated by such malice as to require punishment to deter them from similar conduct in the future?
      III. Are statements in a complaint entitled to be protected by privilege even though the complaint describes no cause of action and no cause of action exists in fact?
      Brief for Appellants at 2.


author: BECK, Judge:

text:
    439 A.2d 1199
    COMMONWEALTH of Pennsylvania v. David ARTIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 27, 1981.
    Filed Jan. 8, 1982.

      David A. Artis, Sr., Graterford, appellant, in pro. per.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and BECK, JJ.
   BECK, Judge:

On December 29, 1979, appellant engaged in a battle with John Wilson during which appellant stabbed Wilson once in the stomach with a kitchen knife. Appellant was arrested and incarcerated on April 17, 1980. On June 5, 1980, the District Attorney of Montgomery County lodged three Bills of Information against appellant, to wit:

No. 1243-80 Criminal Attempt - Murder
No. 1243.1-80 Simple Assault - two counts
Aggravated Assault two counts
No. 1243.2-80 Recklessly Endangering Another Person

All of the Bills of Information charged appellant with causing bodily injury to Wilson with a knife on December 29, 1979.

From June 12, 1980 up to and including November 10, 1980 appellant was represented by private counsel.

Trial by jury was held on October 16 and 17, 1980. The defense was justification. It was conceded that Wilson had initially attacked appellant, had been ejected from the house, and had resumed fighting with appellant when appellant later emerged from the house carrying a kitchen knife. Appellant contended that he had carried the knife because he feared Wilson, a larger and heavier man, and feared Wilson would injure him. Appellant contended that Wilson was at all times the aggressor. The Commonwealth contended that appellant had become the aggressor or, in any event, had used excessive and unnecessary force in using a knife against a man armed only with a stick or board.

The jury voted on a verdict sheet which listed each of the four charges separately, each followed by “Guilty” and “Not Guilty” blocks for the juror to enter his or her vote. The jury was not asked to find as a matter of fact whether or not the act by appellant was “committed in a fight or scuffle entered into by mutual consent.”

The jury found appellant guilty of Recklessly Endangering Another and of Simple Assault and Not Guilty of the other charges.

The Sentencing Hearing was held and sentence was imposed on November 10, 1980. The sentencing judge asked whether he had requested a pre-sentence report, and was told he had not. The District Attorney informed appellant that he would have to waive a pre-sentence report if he wanted sentencing to proceed, and appellant said he would waive it.

The sentencing judge listened to argument by defense counsel and the District Attorney, and listened to a statement by appellant. The sentencing judge then stated:

“On criminal action number 1283.2 of 1980 . . . defendant ... is sentenced to pay the cost of prosecution and undergo imprisonment for not less than nine months nor more than four years . . . . ”
“On criminal action number 1283.1, count two, of 1980, in lieu of sentence the defendant is released on probation for a period of four years in the custody of the County Probation Officer upon condition you pay the cost of prosecution. This sentence is to commence upon your being released on parole on this charge.”

The District Attorney then stated:

“I would like to point out that each one of these charges is a misdemeanor two; therefore, the maximum on each charge would be two years.”

The judge then stated:

“On the maximum, drop that down to two and make the 1283.1, count two, a two year consecutive sentence on probation.”

On the day of sentencing, appellant filed a pro se petition to Vacate and Reconsider Sentence. Three days later, appellant filed an Affidavit of Poverty seeking to proceed in forma pauperis. The court did not appoint counsel for appellant, and, on November 17, 1980, denied the pro se Petition to Vacate and Reconsider without hearing.

On this appeal, appellant challenges only the legality of his sentence. Appellant filed a pro se Notice of Appeal and was granted leave to proceed IFP on appeal. Appellant drafted his own brief and the matter was submitted without argument.

Appellant recites four grounds for finding his sentence illegal.

FAILURE TO APPOINT COUNSEL FOR POST SENTENCE MOTIONS

Appellant asserts that at the time he filed his pro se Petition for reconsideration of his sentence, “he requested counsel to assist him.” The record reflects no such direct request, but only a later request to proceed in forma pauper-is. The Pennsylvania Rules of Criminal Procedure do require that the court advise a defendant of his right to be represented by counsel in post-trial matters: Rule 1123(c)(1) and Rule 1405(c)(4). Appellant was so advised by the trial judge. The record reflects that appellant was represented at the sentencing hearing, on November 10, the day the pro se petition was filed, by private counsel. No petition to withdraw as counsel appears of record. Appellant thus was formally “represented by counsel” and the court was entitled to so believe. Appellant’s petition to proceed IFP was not filed until after the Petition for Reconsideration. The status of appellant’s legal representation was not clarified of record at any time. Therefore, while summary disposition of post trial motions without legal representation is clearly undesirable, we do not find error in the circumstances of this case.

RECITATION OF THE WRONG BILL OF INFORMATION

The criminal action numbers recited by the sentencing judge were not numbers under which appellant was charged. This error is clearly clerical and not substantive and did not result in confusion as to the offense and sentence intended. Furthermore, appellant never brought this error to the attention of the court for correction, and has therefore waived any right to object.

MULTIPLE PUNISHMENT FOR SINGLE OFFENSE

Appellant argues that the imposition of two sentences under the guise of two offenses, where only one act was the basis for charge and sentence, is unlawful and requires reversal. We agree. The doctrine of merger of offenses is well and firmly established in the Commonwealth. A defendant sentenced for one crime may not receive additional sentences for the same act under a different name. The question most frequently arises in the context of lesser and more serious offenses. This is because the prosecutors generally offer the jury a smorgasbord of offenses. Thus it was held in Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190 (1941) that where distinct crimes grew out of the same transaction, differing merely in degree, only one penalty could be imposed after conviction. See also Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1940). However, it is clear that the doctrine of merger would apply equally where defendant is convicted of more than one offense arising out of the same act even were they all equal in degree and none “lesser” or “greater.” In Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981), the Commonwealth attempted to argue that the doctrine would not apply to sentencing for several equal offenses. The Court held:

“[A] test for merger based upon offenses’ various classifications and their respective degrees within those classes has no basis in precedent or logic.” Id., 492 Pa. 422-23, 424 A.2d at 1263.

The test, the Court held, is whether any additional facts are required to prove a second offense once the first offense is established. See also Commonwealth v. Jackson, 271 Pa.Super. 131, 412 A.2d 610 (1979).

In holding that it was error to impose concurrent sentences for both theft by unlawful taking and retail theft in Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583, 589 (1980), the court stated:

“[B]oth convictions arose out of a single act of theft of the diamond ring. Once proof of the theft by unlawful taking was complete, so was proof of the retail theft, and vice-versa.”

Therefore, the two crimes merged for sentencing purposes.

In the instant case, there is no doubt that appellant was charged with committing but one act—that of a stabbing Wilson in the stomach—and the various charges had to do with the legal interpretation of that act. Therefore, he could be sentenced for but one offense.

The rule is that the defendant found guilty of several offenses for one act shall be sentenced for the greatest offense of which he is convicted. In the present instance, the sentencing judge, without examination of the statutes or circumstances, and on the word of the prosecutor alone, viewed the two offenses as both being misdemeanors of the second degree; and as being equally “serious” offenses.

Simple assault has been held to be a lesser offense than recklessly endangering another person for purposes of merger even in circumstances where there was no showing of factors tending to reduce the simple assault grading. In Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674, 676 (1980), the court held that the appellant had been improperly sentenced in that sentence was imposed for each of three offenses arising out of but one act. The court stated:

“Applying the doctrine of merger, we find that simple assault merges into . . . recklessly endangering another person. Simple assault is defined as conduct by which one ‘attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.’ 18 Pa.C.S. § 2701(a)(1). The elements of this offense are necessarily included in the crime of . . . reckless endangering another person, which is defined as conduct by which one ‘recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury,’ 18 Pa.C.S. § 2705.”

Furthermore, in the instant case, there were present factors which clearly tended to reduce the grade of the simple assault to a misdemeanor of the third grade. Therefore, appellant could be sentenced only on the conviction of recklessly endangering another person. The sentence imposed on this charge was a minimum of nine months and a maximum of two years from April 17, 1980.

FAILURE TO FOLLOW THE SENTENCING CODE

Although somewhat inartfully worded, this pro se appellant raises the issue of whether the sentencing judge observed the mandates of the Sentencing Code and Chapter 1400 of the Pennsylvania Rules of Criminal Procedure. We find that he did not.

Within the statutory mandates, the trial court is accorded broad discretion in the sentencing process. When exercised in accordance with the statutory guidelines, the discretion of the court will not be disturbed absent a showing of manifest abuse. See generally Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980); Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978) and Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976).

At the threshold, this court must be able to determine that the sentencing judge in fact exercised discretion: Commonwealth v. Kostka, supra; Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion). Following Kostka and Riggins, the Legislature amended the Sentencing Code at 42 Pa.C.S. § 9721(b) (and see Pa.R.Cr.P. 1405(b)) to require, as did those decisions, that the sentencing judge

“. . . make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.”

Nowhere in the transcript of sentencing hearing (or in his opinion) does the judge in the instant case reveal any reason, other than his belief that they are within permissible maximums, for the sentence imposed. Finally, there is no showing that the sentencing judge even considered, let alone gave weight to, the standards set forth at 42 Pa.C.S. § 9721 of the Sentencing Code or the factors mandated for consideration at 42 Pa.C.S. § 9722 through § 9725 of the Sentencing Code. Such failure to exercise discretion within the statutory mandates is reversible error.

DISPOSITION

The judgment of sentence for simple assault is set aside.

Were the only error on the record the failure to sentence in accordance with the doctrine of merger, the sentence for the remaining offense would normally be affirmed. However, in light of the record failure of the sentencing judge to exercise discretion in accordance with the applicable statutes and rules, we remand for resentencing on the charge of recklessly endangering another person, Criminal Information No. 1243.2 of 1980, in accordance with this opinion.

      . 18 Pa.C.S. § 270105). While Simple Assault carries a grading of Misdemeanor of the Second grade, a finding that the act upon which the charges are based was “committed in a fight or scuffle entered into by mutual consent” reduces the grading of the crime to a Misdemeanor of the Third Degree. This question of fact is clearly one for the jury.

      . After appellant’s successful Writ of Habeas Corpus challenging his transfer to State Prison without any sentence having been imposed.

      . See Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) holding that this is a violation of the constitutional prohibition against double jeopardy. “Where consecutive sentences are imposed at a single trial, double jeopardy prevents the court from exceeding its legislative authorization by imposing multiple punishments for the ‘same offense.’ ” id. 426 A.2d at 572 (citations omitted).

      . 18 Pa.C.S. § 2701 and see note 1, supra, and 18 Pa.C.S. § 2705.

      . In light of the reduced grade of the crime of simple assault where the act is found to have been committed in a fight entered into by mutual consent, this question should have been submitted to the jury under the circumstances of this case. Under the circumstances of this case, the jury clearly could have found Wilson to be the aggressor or to have at least consented to the fight.

      . See notes 1 and 5, supra.

        . 42 Pa.C.S. § 9701 et seq.


author: MONTEMURO, Judge:

text:
    439 A.2d 1203
    Janie V. WARMAN, Appellant v. Philip T. WARMAN. Philip T. WARMAN, Appellant v. Janie WALSH, Appellant
    at No. 1069,
    at No. 1120,
    at No. 1143.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1981.
    Filed Jan. 8, 1982.

      William Radcliffe, Uniontown, for appellant (at Nos. 1069 & 1143) and for appellee (at No. 1120).
    Ralph Warman, Uniontown, for appellant (at No. 1120) and for appellee (at Nos. 1069 & 1143).
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This child custody action was initiated by a Pennsylvania-resident father for custody of Philip, a nine-year-old son, whose primary residence has been with his California-resident mother since 1975.

The court below found that the exercise of jurisdiction in Pennsylvania would be improper, and it sustained respondent-mother’s (the appellee herein) objection to jurisdiction and dismissed petitioner-father’s (the appellant herein) habe-as corpus petition. We affirm.

HISTORY OF THE CASE

The parents in this action were divorced in 1972. In a Separation Agreement executed by the parties in connection with that divorce, custody of the child was dealt with at length in the following manner:

9. Should the wife secure an absolute divorce, the custody of the issue of the parties, Philip, born November 14,1970, is hereby given to wife except as hereinafter provided, and wife will maintain, educate, and support the said child out of the allowance hereinafter provided therefore.
10. Upon the removal of wife' from the household of husband with the custody of the child, Philip, husband will pay to wife for the care, maintenance, education and support of said child, the sum of forty (40) dollars per week payable weekly in advance. In addition, husband will maintain Blue Cross, Blue Shield, and major medical insurance coverage upon said child. The obligations set forth in this paragraph will terminate on the death of husband.
11. During the portions of the months of June, July and August not encompassed by the regular school year husband will have the custody, charge and care of the child, Philip . . .
12. The child, Philip, shall have the right to decide free of influence or persuasion by either of the parties hereto, the parent with whom he desires to reside after attaining the age of fourteen years, and on such decision the parent whom the child shall select shall thereupon have the right to the custody, care and charge of such child.
13. Should wife at any time relinquish to husband the custody rights set forth in paragraph nine above, whether such relinquishment is made pursuant to paragraph twelve or for any other reason, wife will have the rights now secured to husband in paragraph eleven.
14. This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania.

In 1975, the mother and son moved to California. Visitation to the father was liberal. Philip ordinarily left California the day after school ended and returned the day before the new fall term started. Additionally, Philip spent a number of holidays such as Christmas and Easter with his father. The child spent increasing amounts of time with his father over the years—nine weeks in 1977, twelve weeks in 1978 and sixteen weeks in 1979.

On May 15, 1980, the mother, in the California court, filed for reduction of the visitation previously agreed upon. She alleged that it would be in the best interests of the child to change the approximately three months summer visitation with the father to a single month, so as to allow the child to continue activities in his home area.

The Superior Court of California, County of Sonoma, at a hearing on June 6, 1980, at which both parents were represented in oral argument by counsel, ordered a modification of visitation. This order reduced the summer vacation visitation from three months to two months and set a date for Philip’s return to California for August 15, 1980.

On August 11, 1980, the father filed this custody proceeding in the Pennsylvania court. On the same date his lawyer wrote to the mother and informed her that the child would not be returned to California.

On August 15, 1980, the mother filed contempt proceedings in the California jurisdiction for the father’s failure to return the child, pursuant to the June 6, 1980, California order. A hearing was held on August 27,1980, in California, again with legal representation for both parents, and the California court ordered the child returned forthwith.

The mother flew to Pennsylvania immediately. The order of the California court was filed in Pennsylvania on August 28, 1980, the same day that the father filed a Petition to Strike or Open the California decree.

On the same date, accompanied by a Constable and having in her possession a copy of the California order, the mother picked up the child at school and returned to California.

A full hearing on custody was scheduled by the Pennsylvania court, but by order of September 9, 1980, a hearing was granted solely for the purpose of determining jurisdiction on the date of September 15,1980. By order of October 30, 1980, the Pennsylvania court held that proper exercise of jurisdiction lay with the California court, and the father’s action in this Commonwealth was dismissed. Father appealed.

ANALYSIS OF THE LAW

History of the Present Act

The present Pennsylvania statutory structure created to deal with problems of child custody consisted originally of two separate acts. The Uniform Child Custody Jurisdiction Act, June 30, 1977, P.L. 29, No. 20, Sec. 1, eff. July 1, 1977, 11 P.S. Sec. 2301-2325, was designed to provide measures for dealing with inter-state and international custody problems. The Commonwealth Child Custody Jurisdiction Act, April 28, 1978, P.L. 108, No. 47, eff. June 28, 1978, 11 P.S. Sec. 2401-2424, was by contrast, designed to handle child custody problems intra-state. The two acts have since been consolidated in Title 42 Pa.C.S.A. Sec. 5341-5366, 1980, Oct. 5, P.L. 693, No. 142, Sec. 201(a).

Much of the Pennsylvania Act follows the Uniform Law approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1968. Some thirty-eight states have adopted the law; however, it is not a “reciprocal” law and is in full operation in each state regardless of its enactment in other states. See Comment of Commissioners, 9 Uniform Laws Annotated, p. 114, West Publishing Co. 1979.

Construction and Purposes of the Act

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

It is easy to see that the existence of three quite different bases for jurisdiction, in an area of the law with the emotional impact of child custody, could prove to be a constant source of false hope to non-custodial parents. A loving parent has little problem in convincing himself or herself that the established custody is harmful, and that however evil disruption of children’s lives may be in general, that this case presents the exception, and that only good can result from snatching or retaining the child, or from persuading a new jurisdiction to accept a Petition for Custody.

Added to the parental viewpoint of the righteousness of a unilateral move to improve the child’s life, are the further puzzles of interpreting the child’s reaction to pressure by the two most important people in his world. Few children want to displease either parent, and the considerations that sway their election are often matters of little lifetime value. The five-year-old may choose the parent who gives presents; the eight-year-old may agree alternately with whichever parent is currently applying pressure; the thirteen-year-old may project the miseries endemic to that age on the parent he lives with and prefer an as-yet-unknown existence in the other parental home.

A parent’s earnest desire for his or her child and the child’s expressed wishes are, of course, factors, once the matter of jurisdiction has been settled. Too often, however, a parent is moved by his own desires and the obliging agreement of the child and simply takes the law into his or her own hands. The present scheme of the law has been carefully crafted in the hope of bringing order to a situation that has been chaotic in the past. Every effort has been made to implement an interlocking system which will avoid jurisdictional overlaps, assure fair results, and prevent undue disruption of young lives.

The general purposes of the act are strongly stated in Section 5342(a)(l)-(8). The list contains overlaps, and the important features boil down to a conviction that the instability that results from child-snatching and forum-shopping is harmful to children, and that the court system should not condone the unilateral decision of one parent in helping himself or herself by attaining the physical possession of the child and seeking the forum most likely to award permanent custody to that parent.

Section 5349, entitled “Jurisdiction Declined by Reason of Conduct” fleshes out the prohibitions against parental self-help.

(a) General Rule.—If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in conduct intending to benefit his position in a custody hearing, the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
(b) Restriction on modification of a foreign decree.—Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction unless the petitioner can show that conditions in the custodial household are physically or emotionally harmful to the child, the burden of proof being on the petitioner requesting the court to take jurisdiction.
(c) Costs and expenses.—Subject to general rules, in appropriate cases a court dismissing a petition under this section may charge the petitioner with necessary travel and other expenses, including attorney’s fees, incurred by other parties or their witnesses. (Emphasis Supplied)

There is a distinction made between the situation in which there is as yet no court decree and one in which a foreign decree exists: wrongful conduct in the first instance gives the court the right to decline jurisdiction “if just and proper”; in the latter situation the language is mandatory, and the court shall not exercise its jurisdiction. There is always however, the caveat that provides for overriding these considerations when the child is suffering physical or emotional harm.

Section 5343 is definitional and sets forth in pertinent part the following wording:

“Contestant.” An institution or an individual, including a parent, who claims a right to custody or visitation rights with respect to a child.
“Custody determination.” A court decision and court orders and instructions providing for the custody of a child, including visitation rights; the term does not include a decision relating to child support or any other monetary obligation of any person.
“Custody proceeding.” Includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.
“Decree” or “custody decree.” A custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.
“Initial decree.” The first custody decree concerning a particular child.
“Modification decree.” A custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court. “Physical custody.” Actual possession and control of a child.

Close examination of these definitions in relation to each other sheds light on the other sections of the Act.

A parent claiming custody rights or visitation rights is equally a “contestant.” We may infer, therefore, that visitation, equally with custody-proper, presents a “contest” which may be settled in a court proceeding.

A “custody determination” is specifically related to court action which produces a “decision” and “orders and instructions.” No ranking is made among these writings; again, we must infer that whatever the determination is labeled, it is to be accorded weight under the Act.

Definition of the phrase “custody proceeding” is oddly worded, and appears to address itself only to such court actions as might be doubtful of definition, as where custody is covered in one clause of a divorce decree, or where the paramount issue handled by the court was parental unfitness and a finding of dependency. The presupposition, of course, is that any hearing solely concerned with the physical possession and control of a child is so obviously a “custody proceeding” as not to need clarification.

The Act is not artfully drafted in the definitional section, but there is recognition of the fact that a court may combine or separate custodial matters in an almost infinite variety of ways. The intent is that all determinations covering the issue of the actual physical possession and control of a child are to be covered by this Act, whether they are linked to other matters in a single document or whether they stand alone. Other determinations, though closely associated with physical possession and control of a child, are not covered.

The term “initial decree”, therefore, can be an initial decree as to primary custody, an initial decree as to visitation, or, presumably, an initial decree as to dependency and the amount of custodial control appropriate to remedy parental neglect or ignorance. It may, of course, treat several of these subjects at once and be an “initial decree” as to all of them.

The “modification decree” is an order “modifying or replacing a prior decree.” We must note, however, that a decree can only “modify or replace” a prior decree concerning identical issues.

Thus, an initial finding of dependency, for instance, might be later in time than a divorce decree placing custody in one parent. Insofar as the later determination addressed the problem of physical possession of the child, it would be a “modification” of the initial decree; it would still be an “initial” finding of dependency. Similarly, if the first court decree addresses only the issue of visitation, it is an “initial decree” as to visitation, but cannot be said to “modify” a primary custody that has never been reduced to determination by a court.

As long as any of these determinations are exercised by a jurisdiction “substantially in conformity with this subchap-ter,” they are to be respected by the litigants and by our courts.

The three jurisdictional bases mentioned previously form the essential pattern of the act. Closer examination of Sec. 5344 is therefore necessary for any solution of a jurisdictional problem, and we will examine its provisions.

“Home State” Jurisdiction

The typical custody case starts in the separation of parents and the concomitant need to establish a home for the children of the marriage with one or the other of the natural parents. It is understandably rare for parents to seek a custody decree before separation, and where children reside together with both parents, the custody is equally established in both. In the normal progress of separation, one of two outcomes is usual: one parent leaves the marital home alone, in which case initial custody falls upon the parent who stays in the home; otherwise, the parent who departs from the home takes the children with him or her to a new residence, often a new jurisdiction, and assumes their custody-

The Act, therefore, places jurisdiction initially in the “home state” or “home county”, under Sec. 5344(a)(1) regardless of the actual physical whereabouts of the children.

(a) General Rule—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 ... and a parent . . . continues to live in this Commonwealth.

“Home state” is defined in Sec. 5343 of the Act as “the state in which the child immediately preceding the time involved lived with his parents . . . for at least six consecutive months ...”

The interaction of these two provisions results in the logical determination that neither parent can be “at fault” in initially taking or relinquishing custody of the child, even without court order. However, certain elements do become fixed: custody is in the parent with physical possession of the child; yet primary jurisdiction remains in the community the child recognizes as “home.”

This court has already confirmed the interlocking of these provisions in the case of In the Matter of D.L.S. and J.L.S., Appeal of K.A.S., 278 Pa.Super. 446, 420 A.2d 625 (1980). There, the mother took two children from their prior residence in Pennsylvania to Florida upon separation from their father. She claimed to have started a custody action in that state. The father filed an action in Pennsylvania only three weeks after the children were removed from the marital home; the lower court dismissed the mother’s preliminary objections to jurisdiction, and this court affirmed.

The Court emphatically found jurisdiction in Pennsylvania as the “home state” under the Act and also concluded that Florida could not exercise jurisdiction:

In light of the very brief presence in Florida of the children and one of the contestants—a mere three and one-half weeks—and the lack of any prior connections there, it is difficult to understand how a Florida court could properly exercise jurisdiction under the criteria of the Uniform Child Custody Jurisdiction Act. Id., 278 Pa.Super. 451, 420 A.2d at 627.

Once the initial period has run, however, the “home state” becomes the place in which the child has lived with the custodial parent “before commencement of the proceeding.” See supra. Sec. 5344(a)(1)(h).

Comments by the commissioners who drafted the Uniform Act confirm this view:

The main objective [of the wording identical with Sec. 5344(a)(1)(h) ] is to protect a parent who has been left by his spouse taking the child along. The provision makes clear that the stay-at-home parent, if he acts promptly, may start proceedings in his new state if he desires, without the necessity of attempting to base jurisdiction on paragraph (2) [The equivalent of Sec. 5344(a)(2)—the “Significant Contacts” provision discussed infra]. 9 Uniform Laws Annotated at 123 (Emphasis Supplied)

It is important to note that the Commissioners clearly give preference to “home state” jurisdiction; they acknowledge that in some instances “necessity” will make a contestant “attempt” to establish significant contacts as a base. This, however, is the alternative means.

“Significant Contacts” Jurisdiction

How then, do the provisions interact where the parent with initial custody moves back to a former, well-known community where the children already have formed “significant contacts”? A common variant of this pattern is the problem of the child who returns to visit the non-custodial parent in familiar surroundings after some months or years of primary custody elsewhere and is retained when the official visiting time ends. Still another variant is the outright child-snatch by a parent who returns a child to familiar surroundings. The latter two examples are further complicated by conduct on the part of non-custodial parent which may easily be “wrongful” under the act at Sec. 5349(a) or (b). See provisions set forth, supra.

The wording of Sec. 5344(a)(2) is essentially identical to that of the suggested wording in the Uniform Act, providing for jurisdiction when:

(2)(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.

Again, the comments by the drafters of the Uniform Act are enlightening:

Paragraph (2) perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in Section 1. [Equivalent to 42 Pa.C.S.A. 5342 (a)(l)~{8)] The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than proliferate it. Uniform Annotated Laws, supra at 124. (Emphasis supplied).

The Commissioners suggest as an example that the return of one parent and the children with consent of the other parent to a community which was formerly and recently the marital home might be grounds for Sec. 5344(a)(2) jurisdiction.

Parens Patriae Jurisdiction

The third source of jurisdiction, the parens patriae or “emergency” provision, is not applicable to the instant case, and we will not elaborate upon it at present. It is found at Sec. 5344(a)(3) of the Pennsylvania Act.

As to the group of three jurisdictional bases, the Commissioners’ comments also state:

This section [equivalent to Sec. 5344(a)(l)-(3) ] governs jurisdiction to make an initial decree as well as a modification decree. . . .Jurisdiction to modify an initial or modification decree of another state is subject to additional restrictions contained in Sections [5349] and [5355]. Id. at 125. (emphasis supplied).

Most importantly, the Commissioners state emphatically that:

While jurisdiction may exist in two states in these instances, it will not be exercised in both states. Id. at 124 (emphasis on original).

It is clear that both child-snatching and retention of a child after a legitimate visit and, indeed, “any” conduct a parent engages in which is intended “to benefit his position” in a custody hearing gives the court a legitimate reason to refuse to exercise possible jurisdiction where another forum is the “home” forum. This is true whether an “initial” decree exists or not.

The burden is on the petitioner who wants jurisdiction in a forum other than the “home”; the only justifications for a court’s assumption of the possible, but less favored, jurisdictions under the “significant contacts” or “emergency” provisions are justice and propriety under Sec. 5349(a) and physical or emotional harm under Sec. 5349(b). In light of the stated purposes of the Act, the Commissioners’ Comments, and prior case law, such as In the Matter of D.L.S. and J.L.S., Appeal of K.A.S., 278 Pa. Super. 446, 420 A.2d 625 (1980) and Zaubi v. Zaubi, 275 Pa. Super. 294, 418 A.2d 729 (1978) aff’d 492 Pa. 183, 423 A.2d 333 (1980), the burden on the petitioner who wishes to establish an alternative jurisdiction is very heavy indeed—especially if he or she approaches the matter with unclean hands.

Discussion of Law and Facts

The parties to this action are the typical contestants, the parents of the child. There is no question here of emergency jurisdiction; this is a well-adjusted, loved child who obviously thrives in both his Pennsylvania and California environments.

Originally, custody of this child was determined by written agreement of the parties to be with the mother, with liberal visitation for the father. Thus, at the time that the father decided to retain the child and to file for a custody determination in this Commonwealth, there was no “initial” determination outstanding as to that issue.

There was, however, an outstanding initial order of the California court changing the privately-agreed visitation schedule, and this interesting subsidiary problem deserves discussion. As seen above, a court’s “orders and instructions” as to visitation are a form of custody determination and are to be guided by the provisions of this Act.

However, where the only court decree extant is concerned purely with change of a privately-agreed visitation schedule, and where that determination has been made on brief oral argument of counsel, we must limit its application to its own terms. Such a decision by a court cannot be the means of establishing, as if on a decisional basis following full hearing on the best interests of the child, anything pertaining to primary custody. This would be permitting the tail to wag the dog.

As to the effect of the existence of such a decree on the issue of jurisdiction for custodial matters, we agree with the lower court that such an order, when issued by another court with a legitimate claim to jurisdiction, must be obeyed by the contestants. Even if the issue decided is a limited one, the obligation to adhere to those limits is clear.

In the interest of promoting the purposes of the Act, we would suggest that compliance with an order of another jurisdiction should not be permitted to prejudice the aggrieved parent’s future legal action in his or her preferred jurisdiction, even though non-compliance does have an effect under the terms of the Act. See Sec. 5349 set forth supra.

The stated purposes of the Act obviously are advanced by orderly procedure, and it is equally obvious that if a parent is held to be conceding jurisdiction by obeying any order of a foreign court, that parent will be tempted to defiance rather than compliance, to the detriment of the child.

In the instant case, a child accustomed to the orderly transfer to the custodial parent was subjected to just the disturbing events the Act is intended to curtail: school in a new place, the sudden appearance of the custodial parent with a foreign court order, departure from the Commonwealth without luggage or a chance to say farewells, and re-commencement of the school year in another state. And this does not begin to explore the pressure put on a nine-year-old to express a preference or to have to account for that preference.

The order of the court below in this instance took note of the existence of the California visitation determination, but did not permit the existence of an initial visitation decree to usurp its own right to consider its own jurisdiction as to primary custody of Philip. We agree that this was a proper weighing of the issue. The Pennsylvania court was free to consider its own powers apropos primary custody and a determination of the best interests of the child under the circumstances of a valid, established private custody agreement between parents, rather than as a court facing a simultaneous or prior court action of another jurisdiction.

A custody agreed upon by parents is, of course, never a final determination. Com. ex rel Veihdeffer v. Veihdeffer, 235 Pa. Super. 447, 344 A.2d 613 (1975). A child cannot be a piece of property to be disposed of in a Separation Agreement, In re Rosenthal v. Rosenthal, 103 Pa.Super. 27, 157 A. 342 (1931) although the courts do encourage sensible private solutions to custodial problems where possible.

Nevertheless, where a child has been in custody of one parent under favorable conditions, our case law indicates that a court should be reluctant to disturb the successful arrangement. Commonwealth ex rel Foster v. Foster, 225 Pa.Super. 436, 311 A.2d 663 (1973); Commonwealth ex rel Swanson v. Barry, 199 Pa.Super. 244, 184 A.2d 370 (1962).

As seen supra, the scheme of the present custody statute also strongly supports the status quo. This is one reason why the “home” jurisdiction is favored. Continuity of a reasonable and functional custody arrangement has proven value for a child’s growth; the fond hopes of the non-custodial parent that his or her home will supply an enriched environment do not have proven value.

The five years that Philip has spent in California in the primary custody of his mother unmistakably make California the appropriate forum for custody actions concerning this child.

The lower court quite properly found that the child had connections with both Pennsylvania and California and that “substantial evidence concerning his present or future care, protection, training, and personal relationships” could be found in both.

Having done that, the court below exercised just such judicial restraint as the Commissioners’ Comments envisioned when they stated that jurisdiction might “exist in two states but would not be exercised in both,” and that the purpose of Sec. 5344(a)(2) was to “limit jurisdiction rather than proliferate it.” See citations, supra.

The trial judge, having come to his decision to decline jurisdiction in Pennsylvania on an analysis of the wording of Sec. 5344 did not thereafter consider the wording of Sec. 5349; this was a matter within his discretion. This opinion, however, has discussed the prohibitions against parental self-help because they form an essential feature of the Act, even though the decision in this particular case may be, and has been, made on other grounds. It is important that future litigants should be aware that wrongful conduct “intending to benefit” a parent’s position in a custody battle may well be made a factor in the balance of the court determination.

CONCLUSION

The lower court has properly analyzed and applied the jurisdictional provisions of the Uniform Child Custody Jurisdiction Act, and the decision to decline jurisdiction in this Commonwealth is hereby affirmed.

CAVANAUGH and VAN der VOORT, JJ., concur in the result.

      . At one period when Philip’s school year was scheduled in an unusual manner, the vacation schedules were adjusted without apparent difficulty by his parents (R. 64a).

      . As noted above, the “home” jurisdiction not only keeps children in familiar circumstances, it also gives a parent who does not originally concede custody to a departing spouse, a grace period to redress the situation.