author: CAVANAUGH, Judge:

text:
    498 A.2d 902
    PHILADELPHIA MUSICAL ACADEMY and Pennsylvania Higher Educational Facilities Authority, Appellees, v. ACADEMY HOUSE, INC., Appellant. PHILADELPHIA MUSICAL ACADEMY and Pennsylvania Higher Educational Facilities Authority, v. ACADEMY HOUSE, INC. Appeal of PHILADELPHIA MUSICAL ACADEMY.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Sept. 13, 1985.

      David Berger, Philadelphia, for appellant (at 2399) and appellee (at 2499).
    Kell M. Damsgaard, Philadelphia, for appellant (at 2499) and appellee (at 2399).
    Before CAVANAUGH, CHULLO and HESTER, JJ.
   CAVANAUGH, Judge:

This case involves an appeal by the Philadelphia Musical Academy (PMA) and Pennsylvania Higher Educational Facilities Authority (PHEFA) from the entry of summary judgment in favor of the appellee, Academy House, Inc. Academy House, Inc. has filed a cross appeal at No. 2499 Philadelphia, 1984 from the order of Judge Stanley M. Greenberg dated December 8, 1982 granting the appellants an extension of time in which to file a certificate of readiness.

The basis of the litigation is an easement which was granted by deed of partition in 1850 to the owners of real property located at what is now known as 1423 Manning Street, Philadelphia, Pennsylvania. The real estate on Manning Street is a narrow piece of land seventeen feet wide by some eighty feet deep running in a north-south direction. The easement, which was also referred to as an “alley” in the proceedings, extended from the northwest corner of the Manning Street property due west for one hundred twenty-three feet and then due south for a distance of eighty feet to Manning Street. The L shaped easement was ten feet wide. The Manning Street property at one time was a stable and is now used as a dressing room for the Shubert Theatre which is also located on an adjacent parcel of land. The appellants have an interest in the Manning Street property referred to as parcel B and the adjacent property sometimes referred to in this opinion as parcel A. Parcel A, known as 250 South Broad Street, has a ninety foot frontage on Broad Street and a two hundred foot frontage on Manning Street. Collectively, parcels A and B are known as the Shubert Theatre although the building on parcel A is a large 7-story building housing the theater itself and offices. The small structure on parcel B has dressing rooms and is connected to parcel A by a door through the party wall.

The appellant’s neighbors immediately north of their property is the Academy of Music, which also fronts on Broad Street, and which has been located at its present site for more than one hundred years. At the present time, the property immediately west of parcel B is owned and occupied by the appellee, Academy House, Inc. The Academy House is a 37-story condominium building containing over five hundred residential units, rehearsal hall and several stores and offices. The property on which the Academy House condominium is located is west of the Academy of Music and the Shubert Theater and fronts on Locust Street, Manning Street and 15th Street and is irregular in shape. Title to the land on which the Academy House is constructed was obtained in 1973 and construction was commenced in that year.

PMA acquired title to the Shubert Theater in approximately 1974. In August of 1976, after the Academy House was substantially completed, the appellants commenced an action in equity against the appellee seeking to enjoin it from encroaching upon the appellants’ use of the alley. The appellants sought a “mandatory injunction ordering [Academy House, Inc.] to demolish that portion of its building which occupies [the] space defined by the said alley.” The appellants also sought other relief, including punitive damages in the amount of $5,000,000.00, compensatory damages and counsel fees.

Counsel for the appellants did not file a certificate of readiness by August 31, 1980, as required by a Supreme Court order of November 19, 1979, No. 161, E.D.Misc.1979, known as the 240 Day Rule. However, new counsel for the appellants filed a petition for extension of time within which to file a certificate of readiness, nunc pro tunc. On December 8, 1982 the court below denied the appellee’s motion for entry of a formal order of dismissal.

Depositions were taken below both before and after the order of December 8, 1982. The appellees filed a motion for summary judgment under Pa.R.C.P. 1035 which was granted by the court below. It is axiomatic that summary judgment will be entered only in a clear case. Hankin v. Mintz, 276 Pa.Super. 538, 419 A.2d 588 (1980). However, summary judgment may be granted where the pleadings, depositions, interrogatories and admissions on file show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Goodman v. Pate Construction, Inc., 305 Pa.Super. 147, 451 A.2d 464 (1982); Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa.Super. 341, 361 A.2d 676 (1976); Community Medical Services, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa.Super. 238, 437 A.2d 23 (1981). See also, Pa.R.C.P. 1035(b). In the instant case, the pleadings, depositions and affidavits reveal that there were no genuine issues as to any material fact. The complaint alleges that the original Deed of Partition recorded in Deed Book C.W.C. 64/30 “granted an easement for passage and watercourses over an L-shaped alley” and describing the direction and distances over which the alley ran from appellants’ property west and then south to Manning Street. There is no dispute as to the grant of the easement. Appellants’ Exhibit 2, which was a survey prepared on June 23, 1972, referred to a “former 10 ft. wide alley” and clearly delineates the alley or easement in question. It is also undisputed that the actual alley no longer exists as the Academy House now occupies the area where the alley was formerly located. It is uncontroverted that the appellants have an interest in the two parcels of real estate referred to as parcels A and B at 250 South Broad Street (parcel A) and 1423 Manning Street (parcel B). In 1970 John Merriam entered an Agreement of Sale to purchase the Shubert Theatre then owned by the Jujameyn Trust. In December, 1972, Mr. Merriam assigned his interest in the agreement to PMA which then acquired title from the trust. In 1974, PMA transferred formal title to PHEFA in exchange for cash and a lease on the property.

With respect to the appellee, it was incorporated in 1972 for the purpose of developing the Academy House property. In May, 1973, the property west of the Academy of Music and the Shubert Theater was acquired from the Academy of Music Foundation as the site for the future Academy House condominium. At the time of the purchase the property immediately west of the Academy of Music was a parking lot and immediately west of the Shubert Theater was a parking garage. The parking garage was connected to the parking lot by a concrete ramp which directly passed over what had been the 10 foot wide alley and would have completely blocked it if the alley had still been there. Immediately after the Academy House, Inc. obtained title to the site for its proposed condominium building, the parking garage on Manning Street was razed and the ground breaking ceremony occurred in June, 1973.

The controversy surrounding the easement did not first arise in these proceedings. On August 15, 1972, counsel for PMA wrote to counsel for the Academy House and stated that John Merriam had the premises at the northwest corner of Broad and Manning Street under an agreement of sale and stated that the agreement covered the Shubert Theater building and parcel B, referred to in the letter as property No. 78.

According to the enclosed data, it seems clear that the right to use the 10 foot alley which runs due west from the most northerly corner of property No. 78 and which then turns south at right angles connecting with Manning-Street, still pertains to property No. 78. We know of no deed or instrument of extinguishment.

The dispute concerning the easement was apparently not resolved and on October 9, 1973 counsel for PMA again wrote to counsel for Academy House and referred to the easement and the fact that no response had been received from his letter of August 15, 1972, more than a year earlier. The letter stated, inter alia:

While I trust that both of the above matters can be amicably adjusted, the importance of doing so before your construction proceeds further is obvious. Unless, therefore, I have heard from you within the next several days, we will proceed with whatever legal actions we deem appropriate. (Emphasis added)

On October 12, 1973 counsel for Academy House replied to the letter of October 9, 1973 stating:

With respect to your client’s claim of an easement over the former ten-foot wide, L-shaped alleyway, it is our understanding that Stephen J. Korn of your office was made thoroughly aware of the rejection of the claim by John Solomon, Esq., of the Montgomery, McCracken office as counsel for the Academy of Music Foundation prior to purchase by your clients of its property interests in the Shubert Theater.

Clearly, the owners of the alleged easement were aware of the claim of easement some time before they commenced the present action in equity which culminated in the entry of summary judgment.

The crucial issue before us is whether the easement for an alley created in 1850 was still in existence when Academy House, Inc. purchased the land in 1973 on which the Academy House condominium now stands. One of the key factors in determining this is whether there was any access from parcel B to the alley. The photographs of the west wall of parcel B taken before the construction of the Academy House building, indicate what appears to be a solid brick wall running north from Manning Street to the Academy of Music property. The uncontradicted testimony of several Academy of Music employees established that from at least 1947 until the Academy House was constructed there was never a door or window or any other means of ingress or egress along the west wall of the building on parcel B. Prior to the sale of the land for the construction of the Academy House, a passageway was built that ran parallel to the west wall of that part of the Shubert Theater existing on parcel B and extended from a small door in the southwest comer of the Academy of Music building to Manning Street. Prior to the sale of the land to Academy House, Inc., the property west of the Academy of Music on Locust Street was a parking lot and it was connected by an inclined concrete ramp to an indoor parking garage facing on Manning Street. The ramp was on an incline of some twelve inches and it declined from the open air parking lot into the garage. The ramp crossed over what had been part of the ten foot wide alley and it existed from prior to 1952 until construction of the Academy House. In addition, the alley was obstructed by the construction of a covered passageway that ran parallel to the west wall of the appellants’ property and its existence is noted on a survey prepared in 1972.

Mr. Merriam’s testimony does not contradict the testimony that the west wall of the appellants’ property had no openings whatsoever through which entry could be made to what had been an alley. He testified as follows:

Q. Now, on the west wall of the 2-story building, Parcel B—
A. Yes.
Q —was there any doorway?
A. (continued) on the west wall on the inside you would see where there was a doorway that had been papered over, in the northwest corner leading into the alleyway, and on the outside I couldn’t tell what was there because a very low passageway had been built up against the wall from the Academy.
BY MR. BROWN:
Q. That is from the Academy of Music toward Manning Street; is that right?
A. Over to an easement that they had acquired to go through the garage.
Q. Through the interior of the garage?
A. Yes. They obtained an easement for that. Now, then I could not see it at that time, the condition of the doorway leading out on the west end which you are asking about, but I saw it from the inside.
Q. When you say a “door,” I thought you said there was something that had been papered over that showed the outline?
A. It had the frame in it, and it is a door and had been there for 50 years.
Q. Was there any door handle?
A. No, because the door was closed from operation.
Q. Did you go out to the outside of the place where you saw the outline of the door inside and look at it from the west side?
A. I have already testified that I did.
Q. What was that surface? Was it brick, or was it some other material, or couldn’t you tell, the exterior surface of the place where you had seen an outline of a door inside?
A. I couldn’t see that, but I saw it later. It was brick. (Emphasis added.)

The attorney for Mr. Merriam testified concerning the brick wall on the west side of parcel B as follows:

Q. Did you see any door through Parcel B to the outside in the northwest?
A. At the northwest corner there was no existing door, but you could definitely see from the conformation of the coloration, or whatever, the cover was—I don’t remember whether it was brick or plaster, but you could tell that a door had existed there.
Q. Did you make any inquiry to anyone as to how long that door had been bricked up?
MR. SCHILDHORN: I don’t think it has been established that the door had been bricked up.
MR. BROWN: Well, I will use any words Mr. Korn wants to; that it had been filled in or otherwise eliminated.
A. I talked to Sam Schwartz. I believe Jujameyn, which is Mr. Merriam’s predecessor in title, took title in approximately 1967. They had not bricked up the door or closed it off, so it had to predate them. Other than that, I have not been successful in finding out when, that door was in fact bricked or closed up.
Q. Have you made any effort since that time to find out?
A. We talked to the Shubert Theater people, Schwartz and Benedict, and they had nothing in their files that would shed any light on that.

It is undisputed that there was no means of ingress or egress from the property at 1423 Manning Street along the west wall from at least 1947 on. While an easement for an alleyway was created by the Deed of Partition in 1850, it was subject to being extinguished by conduct on the part of the owner which is inconsistent with the use of the easement. Riefler & Sons v. Wayne Storage Water Power Co., 232 Pa. 282, 81 A. 300 (1911). Eagan v. Nagle, 378 Pa. 206, 106 A.2d 222 (1954) involved an easement over land created by deed. The easement was a forty foot roadway and Mr. Hall, the owner of the easement, placed a wire fence across the roadway containing a gate that was not on hinges but was wired firmly to two posts. He also piled a half railroad car of used bricks across the road. Trees and heavy shrubbery also blocked access to the road. Vehicles could not possibly enter or leave the property at that point and this continued for some eleven years. The Supreme Court held that the easement was abandoned and stated at 378 Pa. 212, 106 A.2d 225:

While mere nonuser will not constitute an abandonment of an easement established by deed, the law is clear that, if the owner of the easement by his own affirmative act renders its use impossible or obstructs it in a manner inconsistent with its further enjoyment, the easement will be deemed to have been abandoned. (Emphasis added.)

In Hatcher v. Chesner, 422 Pa. 138, 221 A.2d 305 (1966) the plaintiff and defendant were owners of bordering pieces of improved land. In 1894 the common owner of both properties created an easement by deed of a ten foot wide right of way over the land owned by the defendant in favor of the land owned by the plaintiff. A garage was built across the right of way which was eighteen feet long with double doors, approximately nine feet in width, on both ends. On one end, the doors, when opened, extended over the plaintiffs land. For the right of way to be usable, the double doors on both ends of the garage would have to be opened and the right of way would then extend through the garage for a distance of eighteen feet. A tree had been allowed to grow on the plaintiff’s property for thirty-five years in such proximity to the property that the garage doors could not be opened on the plaintiff’s land. Also a board was nailed across the doors on the plaintiff’s side which completely barred their use. The court held that the right of way had been abandoned since the owner or his predecessor in title had taken affirmative action which rendered use of the easement impossible. The court stated at 422 Pa. 143, 221 A.2d 308:

In the instant case, the plaintiff, or his predecessors in title by whose actions in relation to the property he is bound, planted or permitted a tree to grow on the land now owned by the plaintiff which obstructed use of the easement to a material extent. Further, the same parties placed, or permitted to be placed, a bar across the doors of the garage serving as the only entrance to the easement right of way. These acts, in our opinion, were not mere inaction, but rather affirmative acts on the part of the plaintiff and his predecessors in title, which were sufficiently inconsistent with further use of the easement to constitute an abandonment thereof and to bring the issue squarely within the rule of Eagen v. Nagle, supra.

In Ruffalo v. Walters, 465 Pa. 236, 348 A.2d 740 (1975) the Supreme Court found that the owner of a gristmill intended to abandon the easement for a millrace created by deed. The gristmill was torn down in 1948 some twenty-four years before the present owners of the easement attempted to reopen the millrace. A road had been built over the millrace and no water had run through it since the late nineteen thirties. The court held that there had been an intention to abandon the easement as the use of the easement was made impossible.

Mere non-user of an easement by its owner, no matter how long continued, does not manifest an intent to abandon the easement. Sabados v. Kiraly, 258 Pa.Super. 532, 393 A.2d 486 (1978). In the instant case we have much more than failure to use. There was an intentional bricking up and closure of the wall by the appellants’ predecessor in title of the only means of ingress or egress from the appellants’ property to the easement. For at least a twenty year period before the appellants obtained an interest in the Shubert Theatre properties, the wall had been solidly bricked in so that there was no access to the easement. Applying the law of abandonment of an easement, the court below properly found for the appellee as a matter of law.

The appellants argue that a state court may not invade private property rights without compensation and accordingly they allege that they could not be deprived of their rights in the easement. As we have noted, the easement was abandoned by the appellants’ predecessor in title long before they acquired any interest in the properties known as parcels A and B. The appellants were not misled in any way concerning the easement as it was clear to them, or should have been, when they acquired their interest in the real estate that there was no access to what had been an alley from the Manning Street property as a solid brick wall completely blocked any access.

We briefly consider the appellee’s cross appeals at 02499 of Philadelphia, 1984. The appellee argues that the court below erred in allowing the appellants to file a certificate of readiness nunc pro tunc. It is correct that the certificate was not timely filed but the Supreme Court rule which was in effect at the time the appellants filed their petition for allowance to file their certificate of readiness nunc pro tunc stated:

the court, with or without motion by any party, shall require that good cause be shown why the case should not be dismissed for want of prosecution____

The court within its discretion may grant an extension of time upon the showing of good cause and its decision will not be reversed in the absence of a manifest abuse of discretion. Johnson v. Keystone Insurance Co., 299 Pa.Super. 187, 445 A.2d 517 (1982); Drakes Mills Development Co. v. Northwest Pennsylvania Bank & Trust Co., 295 Pa.Super. 487, 441 A.2d 1338 (1982). We find no abuse of discretion in granting the appellants an extension of time in which to file their certificate of readiness.

Orders affirmed.

      . The Academy House, Inc. appealed to this court on December 22, 1982 from the order of Judge Greenberg, and on May 27, 1983 we quashed the appeal since it was from an interlocutory order.

      . An understanding of the complex history and configuration of this easement is best aided by a review of plot plans and older photographs taken of the scene. The entire easement is now covered by the thirty-seven story building known as the Academy House.

      . Pa.RX.P. 1035 provides in pertinent part:
      Rule 1035. Motion for Summary Judgment
      (a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.
      (b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.

      . The letter of October 9, 1973 also stated:
      On a different but equally urgent subject—in August of 1972, this office advised John Solomon of the claim of the owners of the Shubert Building to easement rights in a certain alley which runs westward from the western boundary of the Shubert Building across the premises now owned by the Academy House, Inc. and then southerly still through the Academy House premises into Manning Street.
      There were meetings between John Merriam, John Solomon and Stephen Korn (Mr. Merriam was then equitable owner of the Shubert Building under Agreement of Sale—which he assigned to the Philadelphia Musical Academy prior to settlement). Formal notice of the claim of easement was given in Stephen Korn’s letter of August 15, 1972 addressed to John Solomon, a copy of which was delivered to you, since it was our understanding that you then (as well as now) represented Academy House, Inc. and that the premises which were subject to the easement were then under Agreement of Sale between the Academy of Music (the owner) and Academy House, Inc. We have had no written response to that letter and in order to expedite your present reply, I am enclosing herewith copies of the above mentioned letter of August 15, 1972, together with copies of the enclosures which are mentioned in that letter.

      . The complaint in equity refers to the creation of the easement:
      10. In the original Deed of Partition of the common ground occupied by what is now each of 250 S. Broad and defendant’s property, recorded at Deed Book C.W.C. 64/30, the owner of the premises now contained within 250 S. Broad was granted an easement for passage and watercourses over an L-shaped alley beginning at the rear of 250 S. Broad and being ten feet wide and running westerly for one hundred twenty-two feet, eight inches, and then southerly for eighty feet, into Manning Street (hereinafter "the alley”); the said easement was carried in all subsequent deeds for 250 S. Broad.

      . Joseph E. Fleming, who had worked at the Academy of Music from 1947 to 1978, testified on deposition as follows:
      Q. During that period from 1947 to the construction of the Academy House, was there ever a door or a window or any other means of ingress or egress along the west wall of the Shubert Theater?
      A. Absolutely not.
      Q. Was there a reason why you would have noticed the existence of that door had there been one?
      A. Very definitely. Frequently the men would work in the Academy of Music and also in the Shubert Theater and that would have been the quickest way to get from the stage of the Academy to the stage of the Shubert. Had there been an entrance of any sort, it most certainly would have been used.

      . The court stated at 465 Pa. 238-39, 348 A.2d 740:
      In Pennsylvania, the law requires that there be showing of intent of the owner of the dominant tenement to abandon the easement, coupled with either (1) adverse possession by the owner of the servient tenement; or (2) affirmative acts by the owner of the easement that renders the use of the easement impossible; or (3) obstruction of the easement by the owner of the easement in a manner that is inconsistent with its further enjoyment. See Hatcher v. Chesner, 422 Pa. 138, 221 A.2d 305 (1966).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    498 A.2d 909
    Katherine Jean Quinn LAXTON, Appellant, v. Frank Aubrey LAXTON, Appellee. Katherine Jean Quinn LAXTON, Appellee, v. Frank Aubrey LAXTON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed Sept. 13, 1985.

      Joseph P. Caranci, Jr., Media, for appellant (at 480).
    Robert M. DiOrio, Media, for appellant (at 1617).

      Before WIEAND, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   WIEAND, Judge:

Where a wife has commenced an action for divorce based on indignities to her person and has obtained from the master a recommendation that she be divorced from her husband, may the court, acting on a petition by the husband, enter a decree of divorce despite the wife’s opposition? This is the principal issue in this case.

On August 12, 1977, the wife commenced an action in divorce in which she alleged that her husband had been guilty of a course of conduct constituting indignities to her person. After a hearing before a Master on April 20, 1978, the Master found the wife to be an innocent and injured spouse and recommended in a report filed June 20, 1978 that a decree in divorce be entered. Thereafter, the action lay dormant until April 29, 1982, when the wife sought and was granted permission to proceed under the Divorce Code of 1980. On May 6, 1982, she filed an amended complaint seeking equitable distribution, alimony, alimony pendente lite, attorney’s fees, costs, and expenses. The husband filed a counterclaim seeking ancillary economic relief and requesting, inter alia, that the court grant him a divorce. On January 6, 1983, the court entered an order in the divorce action which directed the husband to pay $125.00 per week to the wife as alimony pendente lite.

On October 3, 1983, husband filed a complaint seeking a divorce under § 201(c) or § 201(d) of the Divorce Code of 1980. On February 7, 1984, the court entertained four petitions filed by the husband which requested: (1) an amendment of the caption; (2) a bifurcation of the divorce from the economic issues; (3) injunctive relief; and (4) special relief. Testimony was taken on the bifurcation request; and at the conclusion thereof, the court indicated that it would grant the petition. The court became aware also that a Master had previously recommended in the wife’s earlier divorce action that a decree be entered. During a hearing the following day on the petitions for injunctive and special relief, the court stated, “I do mean that we will bifurcate and we will also direct here and now, as a follow of that, that the matter be referred to proceed to grant a final decree.” (N.T. 2-8-84, at 2). Later that day, an order was entered which decreed a divorce. The decree was entered without a finding of fault on the part of husband or wife. The wife appealed.

On May 17, 1984, the court found that the husband had failed to comply with the prior order directing him to pay alimony pendente lite. The arrearages, the court found, were in the amount of $1,125.00. The husband, therefore, was directed to remove $2,000.00 from an account at Iron Workers Federal and apply it on account of past and future payments of alimony pendente lite. The husband appealed from this order. Both appeals were consolidated for purposes of argument.

In an opinion filed July 24, 1984, the trial court stated its reasons for entering a decree in divorce. It recited the lengthy history of the divorce action and commented upon the wife’s dilatory tactics. Relying on the broad powers vested in the trial court pursuant to § 401(c), the court concluded that “we have the power to enter a final Decree in Divorce when equity and justice demand____ It is because of [the wife’s] deliberate inaction since June 20, 1978, that we entered a Final Decree.” Trial court opinion at 6-7.

“When reviewing an order granting a divorce, this Court bears the responsibility for making a de novo evaluation of the record; it must decide, independently of the trial court and the Master, whether a legal cause of action in divorce exists.” McBride v. McBride, 335 Pa.Super. 296, 298, 484 A.2d 141, 142 (1984). See also: Jones v. Jones, 311 Pa.Super. 407, 410-411, 457 A.2d 951, 952 (1983); Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980). Having reviewed the. record in this case, we are constrained to conclude that the trial court erred when it entered a decree in divorce.

The same issue was before this Court, albeit in a pre-Divorce Code context, in Mirarchi v. Mirarchi, 226 Pa.Super. 53, 311 A.2d 698 (1973). There a Master had recommended that the wife be awarded a divorce, but the wife, for no apparent reason, failed to take further action. The defendant husband then sought to have the divorce entered against himself. The trial court granted the divorce. This Court reversed. In so doing, the Superior Court held that the husband could not require the entry of a decree against the wishes of the innocent spouse, for the decision to pursue the divorce action to final decree, once recommended, belonged solely to the innocent and injured spouse. Id., 226 Pa.Superior Ct. at 56-58, 311 A.2d at 699-670.

The decision in Mirarchi is determinative of the issue in the instant case. The husband-defendant was not entitled to assume control of his wife’s action for a fault divorce and move it forward to a final decree where his wife, the injured and innocent plaintiff, was opposed to the entry of a divorce. She and she alone could exercise control over her own action for divorce. The Divorce Code of 1980, although permitting no-fault divorces, establishes the procedure by which such decrees are to be obtained. Those procedures were not followed here. They cannot be ignored or avoided under cover of Section 401(c), which grants broad discretion to a trial court to act to achieve equity and justice. The language of § 401(c) does not authorize a court to enter a divorce decree upon motion of a defendant spouse where a Master has previously recommended that the plaintiff spouse be granted a divorce on fault grounds. The court may not usurp the plaintiff’s prerogative to pursue or discontinue his or her action for a fault divorce.

Because the decree of divorce must be reversed and the action remanded for further proceedings, the order granting bifurcation is moot. Bifurcation is premised upon the granting of a divorce decree. Unless and until a valid decree in divorce has been entered, there can be no equitable distribution of marital property. See: Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985). See also: Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985).

The wife argues that the court erred by requiring the parties to account for all marital property. This was error, she argues, because almost a year earlier another judge of the same court had ordered the husband to account for certain enumerated property held in his name. The wife’s argument is without merit. The earlier order required the husband to account for specific rents and payments received, certain stock activity, and various bank transactions. The order entered on February 8, 1984 required both husband and wife to account for all marital property. Appellant’s argument that the second order was superfluous and redundant fails to acknowledge the court’s concern that both parties had dissipated or were dissipating the marital estate. Therefore, the court determined that it was necessary that both parties account for marital assets. This portion of the February 8th order was neither superfluous nor improper.

The husband argues in his appeal that the trial court lacked jurisdiction to order payment of arrearages which had accumulated on account of the order directing payment of alimony pendente lite at the rate of $125.00 per week. After finding that the husband was in arrears in the amount of $1,125.00, the court ordered him “to remove $2,000.00 from the account he has at Iron Workers Federal. Said sum should be forwarded to attorney for [the wife], to pay the current arrears and the balance shall be applied to future alimony.” Because the account at Iron Workers Federal was one of the marital assets frozen by the February 8th order and that order was the subject of an appeal to this Court, the husband argues, the trial court was without authority to order payment from that account. We disagree.

It is clear that the court had the authority to enforce its prior order for payment of alimony pendente lite. This authority was not impaired by an appeal from a separate order which, inter alia, had directed bifurcation of the divorce action and had entered a decree in divorce. See: Pa.R.A.P. 1701(b)(2). To give credence to the husband’s argument would be to pave the way for interminable delay and would render courts impotent to enforce ancillary orders whenever an appeal has been filed from a separate order in a divorce action. The court also possessed the authority to direct the use of frozen assets to satisfy an outstanding debt owed by the husband to the wife. The February 8th order had provided that “[t]he parties are restrained until further Order of this Court from transferring, withdrawing, removing, destroying, selling, cashing, surrendering, alienating or disposing of any marital property, whether titled in joint or individual names____” (emphasis added). That order did not preclude a further court order directing the husband to use assets to satisfy an obligation outstanding on a separate order for alimony pendente lite.

The decree in divorce is reversed and the divorce action is remanded for further proceedings. The order of May 17, 1984, which directs the payment of $2,000.00 on account of alimony pendente lite, is affirmed.

      . This action was commenced under the Divorce Law of May 2, 1929, P.L. 1237, § 1 et seq., as amended, 23 P.S. § 1 et seq. (repealed).

      . Act of April 2, 1980, P.L. 63, No. 26, § 101 et seq., 23 P.S. § 101 et seq.

      . The order entered by the trial court was as follows:
      1. The caption be amended to read:
      “KATHERINE JEAN QUINN LAXTON, a/k/a DOLLY LAXTON,
      a/k/a KATHERINE J. QUINN LAXTON
      - vs -
      FRANCIS AUBREY LAXTON, a/k/a FRANK A. LAXTON”
      2. The case is bifurcated pursuant to the Divorce Code of 1980.
      3. A Final Decree in Divorce shall be entered and the matter immediately listed pursuant to Local Rule before a Special Master for resolution of all ancillary issues, including equitable distribution.
      4. That the parties account for any and all marital property, whether titled in joint or individual names....
      5. The parties are restrained until further Order of this Court from transferring, withdrawing, removing, destroying, selling, cashing, surrendering, alienating or disposing of any marital property, whether titled in joint or individual names, including but not limited to the aforementioned.

      . Although we do not condone what the trial court determined to be deliberate, dilatory behavior on the part of the wife, we observe that the parties lived together for more than six of the eight years during which the wife’s action languished in the courts of Delaware County. If the wife did not choose to discontinue her action for divorce, her husband could have moved for a judgment of non pros because of her failure to prosecute the action. See: Esenwein v. Esenwein, 312 Pa. 77, 79, 167 A. 350, 350 (1933). Mirarchi v. Mirarchi, supra, 226 Pa.Super. at 58 n. 1, 311 A.2d at 700 n. 1.


author: WIEAND, Judge: SPAETH, President Judge,

text:
    498 A. 2d 913
    COMMONWEALTH of Pennsylvania, Appellee, v. Thomas T. NAUMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 14, 1985.
    Filed Sept. 13, 1985.

      Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

Thomas T. Nauman, the appellant, was tried by jury and was found guilty of rape and indecent assault. Post-trial motions were dismissed, and Nauman was sentenced for rape to a term of imprisonment for not less than ten nor more than twenty years. On direct appeal from the judgment of sentence, Nauman argues (1) that the trial court erred in allowing the jury to see photographs taken of the victim four days after the alleged rape; (2) that the trial court failed to state adequate reasons for imposing a sentence in excess of that recommended by the sentencing guidelines; and (3) that trial counsel rendered ineffective assistance (a) by failing to request an alibi instruction and (b) by failing to request a poll of the jury.

The admission of photographs is within the sound discretion of the trial court, and its ruling will not be reversed on appeal unless there has been an abuse of that discretion. Commonwealth v. Woodward, 483 Pa. 1, 6, 394 A.2d 508, 511 (1978); Commonwealth v. Fields, 317 Pa.Super. 387, 402, 464 A.2d 375, 383 (1983). See also: Commonwealth v. Garcia, 505 Pa. 304, 313, 479 A.2d 473, 478 (1984); Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 (1974); Commonwealth v. McClain, 325 Pa.Super. 29, 37, 472 A.2d 630, 634 (1984). “The mere fact ... that photographs were taken at a time different from that in question does not render them inadmissible if witnesses are able to verify them as substantial representations of the conditions as they existed at the time in question.” 29 Am.Jur.2d Evidence § 789 (1967). The rape in the instant case allegedly occurred on the evening of June 6, 1983. The photographs of the prosecuting witness were taken on June 10, 1983. There was evidence that her appearance on June 10, as depicted by the photographs, was the same as it was on the day following the alleged rape. This evidence was sufficient to establish the accuracy and relevancy of the photographs.

The relevancy of the photographs was not impaired because the defendant had given pre-trial notice that he intended to present an alibi defense. In the absence of an agreement regarding the facts—there was no agreement here—the Commonwealth was required to prove beyond a reasonable doubt each and every element of the offenses charged. It was not relieved of this burden merely because the defendant’s principal defense was that he was elsewhere at the time of the alleged offenses. The assertion of an alibi defense did not constitute an admission that the prosecuting witness had been forcibly compelled to participate in sexual intercourse. The photographs in this case were relevant to establish that forcible compulsion had been exercised by appellant to achieve sexual intercourse with the prosecuting witness. “Evidence is relevant if it tends to establish some fact material to the case or tends to make the fact at issue more or less probable.” Commonwealth v. Davenport, 462 Pa. 543, 555, 342 A.2d 67, 72 (1975). See also: Commonwealth v. Dennis, 313 Pa.Super. 415, 422, 460 A.2d 255, 258-259 (1983).

To understand the nature and significance of appellant’s alibi defense, reference to the facts is necessary. Thomas Nauman and Linda Frye were not strangers. They had been dating for more than a month and had frequently engaged in sexual intercourse. On some of these occasions, according to the evidence, they had engaged in games of bondage, during which Linda agreed to be bound and appellant, while Linda was tied up, engaged in sexual acts with her. During this period and on various occasions, appellant gave Linda money in varying amounts. On the evening of June 6, 1983, they met and talked. What happened thereafter varies according to whether one accepts the testimony of the appellant or the prosecuting witness.

At or about 10:00 o’clock p.m., according to Linda’s version, appellant drove her to Forging Field where they parked. At this time, she testified, appellant “grabbed me and got between me and the bucket seats and tied me up.” (N.T. 37). She said that when she screamed, appellant “would smack me in the head and pull my hair and tell me to shut up bitch____” (N.T. 37). She continued: “Then he pulled my pants down. We had sex.” After that, she said, “[h]e picked me up and then sat me in the seat. He then took a fishook and stuck [it] in my breasts and made me have oral sex.” (N.T. 40).

Appellant testified that on the evening of the alleged offenses he met Linda at a bar where they talked. She was angry with him, he said, because he had very little money and had not paid her for prior sexual favors. He left the bar before 10:00 o’clock, he said, and returned to his home where he asked his mother to lend him some money. His mother testified that he had come home about 9:45 o’clock and remained there until approximately 10:30. He had then announced that he was going out. She remonstrated with him because of the lateness of the hour, but appellant ignored his mother’s plea and went to another bar. He arrived home, he said, at 1:30 a.m. Appellant’s father confirmed that appellant had come home earlier in the evening. Although he had not seen his son, he testified that he had heard his voice. Appellant denied that the prosecuting witness had been in his car on the night of the alleged offense and denied having sexual relations with her that night.

Appellant’s trial counsel did not request a jury instruction explaining the defense of alibi; and the trial court said nothing to the jury about alibi. Indeed, the trial court did not make reference to any defense during its charge to the jury. At the conclusion of the court’s jury instructions, appellant’s counsel did not call this omission to the attention of the trial court. Counsel took no exceptions to the court’s instructions and, despite opportunity to do so, requested no additional instructions. Appellant argues that the failure to request an alibi instruction, after counsel had given notice of an alibi defense and had offered evidence of alibi, rendered counsel’s assistance ineffective.

“Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other' alternatives were more reasonable, employing a hindsight evaluation of the record.

Commonwealth v. Litzenberger, 333 Pa.Super. 471, 481, 482 A.2d 968, 973 (1984), quoting Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). “A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.” Commonwealth v. Garvin, 335 Pa.Super. 560, 566, 485 A.2d 36, 39 (1984).

The issue of whether trial counsel should be deemed ineffective for failing to request an alibi instruction after having introduced evidence of an alibi defense was recently before this Court in Commonwealth v. Brunner, 341 Pa. Super. 64, 491 A.2d 150 (1985). Recounting the importance of an alibi instruction, we said:

[w]here an alibi defense is presented, the trial court must instruct the jury that it should acquit if the alibi evidence, even if not wholly believed, raises a reasonable doubt as to the presence of the defendant at the scene of the crime at the time when the offense was committed. “[S]uch an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt.” Commonwealth v. Pounds, 490 Pa. 621, 633-634, 417 A.2d 597, 603 (1980). A failure to give a specific alibi instruction, where warranted, is error requiring a new trial. Commonwealth v. Pounds, supra; Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977). General instructions on the Commonwealth’s burden of proving each element of a crime beyond a reasonable doubt is not an adequate substitute for a specific alibi instruction. Commonwealth v. Pounds, supra 490 Pa. at 634, 417 A.2d at 603. Similarly, a general charge on assessing the credibility of witnesses will not suffice. Commonwealth v. Van Wright, supra 249 Pa.Super. at 458, 378 A.2d at 386.

Id., 341 Pa.Superior Ct. at 69-70, 491 A.2d at 152-153. An unexplained failure to request alibi instruction, after alibi evidence had been offered and received, was held in Brunner to be evidence of ineffective assistance. Moreover, “[w]hen the trial court failed to deliver the required instruction, counsel had a duty to request it to do so and, if the request was denied, to preserve the court’s error by an appropriate objection. To fail in this respect was so unreasonable that it must be equated with constitutionally ineffective assistance.” Id., 341 Pa.Superior Ct. at 70, 491 A.2d at 153.

The Commonwealth concedes that there is arguable merit in appellant’s claim of ineffective assistance and suggests that we remand for an evidentiary hearing to receive defense counsel’s explanation for the failure to request an alibi instruction. The Supreme Court, however, has directed that “[w]here the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted.” Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976) (footnote omitted). Where, as here, appellant’s counsel gave notice of an alibi defense and actually introduced evidence of alibi, there can be no reasonable basis for failing to request an alibi instruction. See: Commonwealth v. Brunner, supra. See also: Commonwealth v. Hoang Khai Tran, 307 Pa.Super. 489, 453 A.2d 993 (1982). There was nothing to lose and everything to gain by having the trial court explain to the jury that even if the jury did not wholly believe the alibi testimony it should nevertheless find appellant not guilty if it had a reasonable doubt about appellant’s presence at the time of the alleged offense. The failure to request such an instruction was ineffectiveness requiring a new trial.

Because of our decision to award a new trial, it is unnecessary to determine whether the sentence imposed by the trial court was excessive. The record discloses, however, that the court ignored the District Attorney’s request for a minimum sentence consistent with the aggravated minimum range recommended by the sentencing guidelines and, despite the absence of any prior criminal record, imposed upon appellant the maximum sentence allowed by law. Such a departure from the sentencing guidelines is proper only where adequate reasons are stated by the court.

Reversed and remanded for a new trial.

SPAETH, President Judge, files a concurring statement.

SPAETH, President Judge,

concurring:

I agree that the record on its face shows ineffectiveness of counsel and that a new trial is therefore required. I concur separately because I remain unpersuaded by this court’s opinion in Commonwealth v. Litzenberger, 333 Pa. Super. 471, 482 A.2d 968 (1984), and Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984). See my concurrence in Garvin, id., 335 Pa.Superior Ct. at 566, 485 A.2d at 39.

      . This was the second trial on these charges. A prior jury had found Nauman not guilty of involuntary deviate sexual intercourse, aggravated assault and unlawful restraint but had been unable to agree to a verdict on the charges of rape and indecent assault.

      . A suspended sentence was imposed by the court for indecent assault.

      . Appellant is represented on appeal by new counsel. Averments of ineffective assistance of trial counsel, therefore, are properly made on appeal, which is the first instance in which appellant is represented by counsel other than trial counsel. See: Commonwealth v. Johnson, 479 Pa. 60, 62 n. 3, 387 A.2d 834, 834 n. 3 (1978); Commonwealth v. Cimorose, 330 Pa.Super. 1, 7 n. 2, 478 A.2d 1318, 1321 n. 2 (1984).

      . We find no merit in appellant’s contention that trial counsel was ineffective for failing to poll the jury, for there was no reason to believe that the verdict was other than a unanimous decision by the jury. See: Commonwealth v. Johnson, 312 Pa.Super. 484, 459 A.2d 5 (1983).


text:
    498 A.2d 917
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert H. FOX, Appellee.
    Superior Court of Pennsylvania.
    Argued May 15, 1985.
    Filed Sept. 13, 1985.
    Petition for Allowance of Appeal Denied March 6, 1986.

      Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellant.
    Lorinda L. Hinch, Assistant Public Defender, Mercer, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

Robert Fox was tried by jury and was found guilty of an attempt to commit criminal trespass. The trial court granted a motion in arrest of judgment because it deemed the evidence insufficient to sustain the convictions. The Commonwealth appealed. We reverse.

A criminal trespass occurs when a person, knowing that he is not privileged to do so, breaks into a building. 18 Pa.C.S. § 3503(a)(1)(h). An attempt occurs when a person, with intent to commit a specific crime, does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. § 901.

Although the Commonwealth must establish each and every element of the offense charged beyond a reasonable doubt, it can rely in whole or in part on circumstantial evidence. Commonwealth v. Stanley, 453 Pa. 467, 468-469, 309 A.2d 408, 410 (1973); Commonwealth v. Carter, 329 Pa.Super. 490, 497, 478 A.2d 1286, 1288-1289 (1984). Nevertheless, a conviction must be based on more than conjecture or suspicion. Commonwealth v. Stores, 317 Pa.Super. 109, 117, 463 A.2d 1108, 1112 (1983); Commonwealth v. Larkins, 235 Pa.Super. 19, 21, 341 A.2d 204, 205 (1975). The test for sufficiency is whether, accepting as true, all the evidence and all the reasonable inferences deducible from the evidence upon which the trier of fact could have based the verdict, the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Rambo, 488 Pa. 334, 335-336, 412 A.2d 535, 536 (1980); Commonwealth v. Carpenter, 330 Pa.Super. 382, 384, 479 A.2d 603, 604 (1984); Commonwealth v. Woodbury, 329 Pa.Super. 34, 37, 477 A.2d 890, 891 (1984); Commonwealth v. Taraschi, 327 Pa.Super. 179, 185, 475 A.2d 744, 747 (1984). We consider the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976); Commonwealth v. Smith, 333 Pa.Super. 155, 157-8, 481 A.2d 1352, 1353 (1984).

The evidence in this case established that on February 23, 1984, Corporal Edward Holiga of the Hermitage Police Department was parked in a marked cruiser car directly south of and across the road from Donofrio’s Food Market. At approximately 11:15 p.m., Holiga was notified by radio of an alarm drop at Donofrio’s. Holiga immediately crossed the street and used his spotlight to examine the front doors at the main entrance of the food market. Finding nothing amiss, he drove into the parking area at the north side of the building. There he observed that a pane of glass had been broken out of one of the windows in a rear garage door. As Holiga started to exit from his car, Fox emerged from behind a rubber curtain adjacent to the garage door. Holding a sweater and a jacket over his arm, Fox jumped from the loading dock and headed toward Holiga. Holiga drew his revolver and told appellee to stop. Appellee continued walking until Holiga cocked his service revolver. At that point, Fox stopped, put down the sweater and jacket, and placed his hands on top of his head. He was then placed under arrest.

Mere presence at the scene of a crime, it has been held, is insufficient to sustain a verdict of guilty. Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983); Commonwealth v. Carter, supra 329 Pa.Super. at 498, 478 A.2d at 1290; Commonwealth v. Olds, 322 Pa.Super. 442, 447, 469 A.2d 1072, 1075 (1983). The additional element of concealment or flight, which is as consistent with fear as it is with guilt, does not convert mere presence into proof of guilt. Commonwealth v. Swift, 291 Pa.Super. 90, 93, 435 A.2d 234, 236 (1981); Commonwealth v. Beauford, 286 Pa.Super. 297, 300, 428 A.2d 1000, 1002 (1981). Thus, presence at the scene of the crime and flight or concealment, without more, do not establish guilt beyond a reasonable doubt. Commonwealth v. Goodman, 465 Pa. 367, 370, 350 A.2d 810, 811 (1976). However, when considered together with other circumstantial evidence, these facts may establish a sufficient basis for conviction. Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964); Commonwealth v. Wilson, 294 Pa.Super. 101, 104, 439 A.2d 770, 771 (1982); Commonwealth v. Cerzullo, 175 Pa.Super. 330, 337, 104 A.2d 179, 182 (1954).

The Commonwealth in the instant case producéd evidence that a silent alarm system had been set up in Donofrio’s Food Market via Westinghouse Security in Pittsburgh. At approximately 9:15 p.m., closing time, the doors in the building were checked by a stockboy and then rechecked at a panel adjacent to the front door. This showed that all the doors had been properly locked. Movement thereafter triggered an alarm wired to Westinghouse Security in Pittsburgh. Westinghouse immediately contacted the Hermitage Police.

On February 23, 1984, the silent alarm went off at 11:11 p.m. Corporal Holiga was notified of the alarm drop between 11:12 and 11:16 p.m. It took him less than one minute to get from his parked car across the street to the back door of Donofrio’s. There, less than five minutes after the alarm went off, appellee was apprehended at the broken window in the rear door of Donofrio’s when he emerged from his place of hiding behind a rubber curtain.

The Commonwealth’s evidence also showed that broken glass and a piece of steel had been found inside the store and beneath the broken window. After Fox had emerged from his place of concealment and confronted Holiga, he said that he had seen a guy in a black jacket crawl through the broken window. No one was found inside. The Commonwealth also showed that the window was too small for a normal, adult person to crawl through. Finally, no other person was observed near the building at the time when Holiga approached.

The totality of this evidence was sufficient to permit the trier of the facts, in this case a jury, to conclude beyond a reasonable doubt that Fox had attempted to break into the store. His attempt, however, had been foiled by the silent alarm and Corporal Holiga’s arrival immediately after the breaking of the glass in the window at the rear of the food market.

The order arresting judgment is reversed; the verdict of the jury is reinstated; and the case is remanded for further proceedings. Jurisdiction is not retained.

      . The same jury acquitted Fox of attempted burglary.


author: POPOVICH, Judge:

text:
    498 A.2d 919
    Robert C. ROHRER, Appellant, v. Loretta L. ROHRER.
    Superior Court of Pennsylvania.
    Submitted June 13, 1985.
    Filed Sept. 13, 1985.

      Arthur L. Gutkin, Philadelphia, for appellant.
    Bruce Goldenberg, Philadelphia, for appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which denied the petition to confirm custody which was filed by appellant-father, Robert C. Rohrer, against his former spouse, appellee-mother, Loretta L. Rohrer. We affirm.

The basic facts are undisputed and were set forth adequately by the trial court as follows:

The parties were married in St. Petersburg, Florida, on August 31, 1979. Two children were born during the marriage; Mya, on January 9, 1981, and Joshua, on March 15, 1983. The parties lived in St. Petersburg from the date of the marriage until May 7, 1984, when appellant left without notice and took the children with him to reside with his parents in Ardsley, Pennsylvania.

On May 29, 1984, appellee filed for divorce in Florida. Service was made on appellant shortly thereafter. However, appellant did not enter an appearance in the action. Pursuant to an order of the court in Florida, the marriage was dissolved and appellee was awarded custody on July 31, 1984.

On July 17, 1984, appellant filed the instant action to confirm custody. Appellee traveled from Florida to attend a hearing before a custody conciliator on September 12th. At that time, appellee also requested a hearing on the issue of jurisdiction. The trial court held a hearing that same day “since the issue of jurisdiction appeared to have merit” under the Uniform Child Custody Jurisdiction Act. See the Act of October 5, 1980, P.L. 693, No. 142, § 201(a), 42 Pa.C.S.A. § 5341, et seq. The trial court concluded that jurisdiction was vested in the courts in Florida and ordered the father to return the children to the mother’s custody in Florida. This appeal followed.

Appellant raises the following two issues: (1) whether the trial court erred in not requesting the appellee to file responsive pleadings and thereafter allow the appellant time for discovery as requested so that the court may determine properly all of the facts and circumstances surrounding the welfare of the children; and (2) whether the trial court erred in ruling that jurisdiction was proper in the state of Florida rather than in the Commonwealth of Pennsylvania and also in directing that the mother should be awarded custody of the children per the Florida court order. We must reject appellant’s contentions.

With respect to appellant’s contention that the court should have granted him time for discovery, Pa.R.C.P. 4001 provides for the following:

DEPOSITIONS AND DISCOVERY
Rule 4001. Scope. Definitions
(a)(1) The rules of this chapter apply to any civil action or proceeding at law or in equity brought in or appealed to any court which is subject to these rules including any action pursuant to the Eminent Code of 1964 or the Municipal Claims Act of 1923.
(2) These rules shall not apply to an action for divorce or for annulment of marriage, an action for support, or an action for custody of minor children except to the extent prescribed by the rules governing those actions____ (Emphasis added). Accord Pa.R.C.P. 1915.5(c) (In custody cases, “[tjhere shall be no discovery unless authorized by special order of court”.)

Additionally, the explanatory comments to Rule 4001 state:

The amendment excludes any automatic right to discovery in support proceedings. The vast majority of support proceedings involve wage earners of relatively modest means. The present intake and conference procedures and questionnaires to employers supply the basic discovery needed as to earnings. The parties are generally familiar with the extent of each other’s finances. Further discovery will not be needed in routine cases. To avoid the possibility of a defendant spouse using discovery as a tool for harassment, abuse and delay, the amendment requires leave of court in all support proceedings. This should be freely given where it is essential to a just disposition of the matter.
Proceedings for custody of minor children are subject to the same provision for leave of court. (Emphasis added)

Thus, it is clear that appellant is not entitled as of right to discovery in this action.

Appellant contends, however, that the trial court erred because “without responsive pleadings being filed by Appellee in the Court below, there is no way upon which issues can be framed by the appellant nor for this Court to make a proper determination.” Brief for Appellant at 9. We must disagree.

Under Section 5366 of the Uniform Child Custody Jurisdiction Act, “reasonable notice and opportunity to be heard shall be given to the contestants____” Additionally, when a “question of existence or exercise of jurisdiction” is raised, that case “shall be given calendar priority and handled expeditiously.” 42 Pa.C.S.A. § 5366.

Although a different rule states that “[a] party must raise any question of jurisdiction of the person or venue by preliminary objection filed within twenty days,” we find that the trial court’s waiver of this particular rule was not an abuse of discretion since the question of jurisdiction was a matter of importance which had priority. See Cynthia H. v. Milton M., 328 Pa.Super. 332, 337, 476 A.2d 1357, 1359 (1984) (“a lower court will not be reversed either for waiving or refusing to waive noncompliance with procedural rules in the absence of showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party.”) Additionally, appellant has failed to allege how he was prejudiced by the lack of responsive pleading other than to state in the abstract that “there is no way upon which issues can be framed by the appellant nor for this Court to make a proper determination.” Brief for Appellant at 9.

Finally, a review of the record establishes that appellant and appellee were able to present witnesses in order to ascertain whether jurisdiction existed in the courts in Pennsylvania.

Appellant next argues that jurisdiction was proper in the state of Pennsylvania and that the trial court erred in deciding that the Florida courts had jurisdiction of the case. We disagree.

Under the Uniform Child Custody Jurisdiction Act, the question of jurisdiction is based upon the following factors:

§ 5344. Jurisdiction
(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 or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in. this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;
(3) the child is physically present in this Commonwealth, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.
(b) Physical presence insufficient.—Except under subsection (a)(3) and (4), physical presence in this Commonwealth of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this Commonwealth to make a child custody determination.
(c) Physical presence unnecessary.—Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
42 Pa.C.S.A. § 5344.

Additionally, the “home state” has been defined in the following manner:

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

Briefly, these bases for jurisdiction have been characterized as “(1) ‘home state’ jurisdiction, (2) jurisdiction founded upon ‘significant contacts’ among the parties to the custody action and the locale in which the action has been brought, and (3) ‘parens patrie’ jurisdiction for those situations where a child is abandoned, abused or dependent. Warman v. Warman, 294 Pa.Super. 285, 293, 439 A.2d 1203, 1207 (1982).” Tettis v. Boyum, 317 Pa.Super. 8, 13-14, 463 A.2d 1056, 1059 (1983) (footnote omitted).

In the instant case, the trial court made the following conclusions:

As noted above Mr. Rohrer left the marital residence on May 7,1984 and filed his petition on July 17,1984, a mere ten weeks after arriving in Pennsylvania. Therefore, it is clear this court does not have “home state” jurisdiction.
As to the second basis for jurisdiction, the evidence shows unmistakably that jurisdiction based on “significant contacts” is also lacking. During the hearing Mr. Rohrer testified that he had not lived in this Commonwealth since 1978. He also stated that except for six weeks in 1982, when Mya visited with his parents, neither child has ever spent any time in this state.

Against this background, we must examine the record below.

During the evidentiary hearing, appellee’s attorney articulated the following position:

MR. GOLDENBERG: Your Honor, on the issue of jurisdiction, I have several points I want to make.
Basically the situation which is before Your Honor right now is the very reason why the Uniform Custody Jurisdiction Act was enacted; to prevent situations where the parent takes two of the children, goes halfway across the country and picks a county that has absolutely no contact at all with the children and the other parent has to go chasing across the country and litigate the issue in that county.
I would initially point out to Your Honor in Section 5342 some of the purposes of the Act.[] Subsection 3 is to assure the litigation concerning the custody of the child takes place in the state where the family and the children have the closest connection.
Neither one of these children had any connection with Montgomery County, Pennsylvania, until May 7th of this year when they were brought here.
Section 5342, Subsection 5, another purpose of the Act is to deter abductions and other unilateral removals of the children.
Well, that’s exactly what happened here.
Now, I would also, with reference to the contacts of the children, I would cite Your Honor to 5349 of the Act, jurisdiction declined by reason of conduct.[]
If the petitioner for a decree has wrongfully taken the children from another state, and has engaged in conduct intending to benefit his position, the Court may decline to exercise jurisdiction. And furthermore Subsection B, that the Court shall not exercise its jurisdiction to modify a decree of another state if the petitioner, without the consent of the person, has improperly removed the children from the physical custody.
I think what the petitioner is attempting to do here, Your Honor, is that there was a wrongful removal in May, and then from May until September saying now the children have contact. Because the children have been here for three or four months.
I think the way the Act is written, and I think the reason for the Act, is I don’t think the petitioner should be allowed to benefit by his wrongful conduct. To take the children to a state, let the children live there three or four months and say, now this state should decide the issue, because the children have been here, I think this situation is the very reason why the Act was enacted.
Mr. Rohrer[, appellant,] has every right to petition for custody, to modify the Custody Order, to vacate the Custody Order. The only question which I believe is before this Court is which Court should hear that petition.
Montgomery County, Pennsylvania, that has no real contact with the parties and the children, or Pinellis County, Florida, the county that entered the order, any witnesses in a custody hearing would necessarily be in that county, and that’s where the proceedings should take place.
And I think that under the Act this Court is obligated to enforce the Pinellis County Order, as if it was a Montgomery County Order, and suggest to the petitioner that any modification of that order be addressed to the Pinellis County Court. Thank you.
Evidentiary Hearing at 39-42.

At the conclusion of the hearing, the trial court stated that he agreed with appellee’s attorney that “this is the precise purpose of this Act, to avoid this kind of thing.” Id. at 50.

Under the law, a trial court need not exercise jurisdiction under the following circumstances:

(b) Restriction on modification of foreign decree.—Unless required in the interest of 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.
42 Pa.C.S.A. § 5349.

Because the record indicated that appellant removed the children without the consent of appellee who had been granted custody under Florida law, the trial court in Pennsylvania acted properly in not exercising jurisdiction in this case. Additionally, even appellant admitted at the hearing that appellee “took care of the children.” Evidentiary Hearing at 37. Thus, under these circumstances, appellant is not entitled to relief.

Appellant essentially contends that because significant contacts with the state of Pennsylvania existed, the case of Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983) controls the instant appeal.

In Tettis, two parties were married while both were in military forces. Two children, a daughter and son, were born to them. The parties were stationed in San Angelo, Texas in September of 1979. The wife left the family residence and established another residence in that city, and the husband received primary custody of the children. The wife visited them daily for over a year until she returned to her hometown in Elk County, Pennsylvania. The father had departed from Texas to live in California. One time, the father had delivered the children to the mother for two extended visits, once in 1981 and for four months in April, 1982. Before returning the children from their planned visit, the mother filed a custody petition under the Uniform Child Custody Jurisdiction Act.

This Court stated that “[t]his is not the first instance where this Court has been caught between two states with colorable reason to exercise jurisdiction.” 317 Pa.Super. at 19-20, 463 A.2d at 1062. However, we held that it was in the best interest of the children to exercise jurisdiction in Pennsylvania because of the following:

Although at the time of the filing of the action, Texas had continuous long-term connections to the children, that contact had come to an end. Regardless of appellant’s intentions to retain Texas as his permanent domicile, the fact remained that, at the conclusion of the children’s visit to appellee in July, 1982, they would have been sent to California to join appellant, who had already departed from Texas. Thus, the forum where the parties entered into the consensual divorce and custody decree would no longer be presently substantially connected with either the children or with appellant. In light of these facts, we affirm the decision of the trial judge that the best interests of the children mandated an assumption of jurisdiction herein.

Id., 317 Pa.Superior Ct. at 19-20, 463 A.2d at 1062. Additionally, we concluded that the children were not retained improperly after a visit with their mother.

However, in the instant appeal, the facts of Tettis are distinguishable. Neither of the parties in this case are active in the military forces and subject to frequent moves. Also, we note that but for the appellant’s actions in improperly retaining the children after a visit in Pennsylvania, the state of Florida would have substantial connections with the children. Accordingly, jurisdiction was declined properly by the trial court because the record showed that appellant’s actions in improperly retaining the children were incongruous with the express purpose of the Uniform Child Custody Jurisdiction Act. Under these circumstances, we must affirm the order of the trial court.

Order is affirmed.

      . Trial Court’s Opinion at pg. 2. We note that appellee has not filed a brief in the instant case with this Court.

      . Pa.R.C.P. 1915.5(a).

       Mr. Rohrer complains on appeal that he was prejudiced at the hearing because he was not given time to undertake discovery in order to establish the necessary contacts. However, by his own testimony it is clear that he could not have satisfied this basis for jurisdiction regardless of how much time he had been given.
      Trial Court Opinion. (Footnote included)

      . The third basis for jurisdiction is not at issue in this case.

      . Section 5342 reads as follows:
      § 5342. Purposes and construction of subchapter
      (a) Purposes.—The general purposes of this subchapter are to:
      (1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.
      (2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.
      (3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.
      (4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
      (5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.
      (6) Avoid relitigation of custody decisions of other states in this Commonwealth insofar as feasible.
      (7) Facilitate the enforcement of custody decrees of other states.
      (8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this Commonwealth and those of other states concerned with the same child.
      (b) Construction.—This subchapter shall be construed to promote the general purposes stated in this section.

      . See infra at pp. 478-480.


author: CERCONE, Judge:

text:
    498 A.2d 925
    COMMONWEALTH of Pennsylvania v. Monroe C. HATCHER, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Sept. 13, 1985.

      Arthur K. Dils, Harrisburg, for appellant.
    Howard P. Stewart, Assistant Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, CERCONE and LIPEZ, JJ.
   CERCONE, Judge:

Appellant was convicted of driving under the influence of alcohol (DUI). In this appeal from the judgment of sentence entered against appellant he raises the following issue: whether the Commonwealth violated Pa.R.Crim.P. 130(d) when it failed to establish a prima facie case against appellant at his preliminary hearing and subsequently refiled the charges, the filing of which was beyond the five day limit of Rule 130(d).

On September 8, 1983 appellant was arrested without a warrant for driving under the influence of alcohol; appellant was released from custody. A criminal complaint was issued on September 9, 1983, after which a preliminary hearing was held on October 27, 1983. The magistrate dismissed the charges against appellant for lack of a prima facie case when the arresting officer failed to identify appellant as the operator of the vehicle that she had stopped. Subsequently, on November 4,1983, the Commonwealth refiled D.U.I. charges, arising out of the same episode, against appellant. At the second preliminary hearing the case was held for court. On March 1, 1984 appellant filed a “Motion to Dismiss” on the grounds that his rearrest on November 4,1983 violated the above referred to Pa.R.Crim.P. 130. The motion was denied and at a bench trial appellant was found guilty of driving under the influence and sentenced to ninety days to twelve months incarceration.

The issue in this case is one of first impression for we are asked to decide whether the dismissal of charges at a preliminary hearing precludes rearrest and subsequent prosecution when the second arrest occurs after the five day period for filing charges pursuant to Rule 130(d) Pa.R. Crim.P. pertaining to arrest without warrant. We find that it does and reverse the lower court.

Recent decisions of our court have held that Rule 130(d) unequivocally establishes five days from the date of a defendant’s release as the time within which charges must be lodged against a defendant. The sanction for the Commonwealth’s violation of the five day deadline is dismissal of the charges unless the Commonwealth can show due diligence in the face of the violation. Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985); Commonwealth v. Press, 342 Pa.Super. 507, 493 A.2d 705 (1985). In Press and Revtai our court addressed a factual episode in which the defendant was arrested, charged with D.U.I. and released from custody. Subsequently, the Commonwealth filed a criminal complaint beyond the five day period of Rule 130 the consequences of which was the lower court’s dismissal of the charges. We affirmed in those two cases. In the case at bar the fact pattern differs in that the Commonwealth timely filed D.U.I. charges against appellant in accordance with Rule 130(d), which charges were dismissed and a second charge filed beyond the five day period in violation of the rule.

It is axiomatic that an accused may be rearrested and prosecuted despite the dismissal of charges at a preliminary hearing stage so long as the charge is brought within the statutory limitation period for a particular crime. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981); Commonwealth v. McClain, 325 Pa.Super. 29, 472 A.2d 630 (1984). Rigorous compliance with time limitations was confirmed in Commonwealth v. Matthews, 286 Pa.Super. 474, 429 A.2d 37 (1981), where our court reviewed the issue of whether, in the provision of the Vehicle Code which required the Commonwealth to institute charges within fifteen days of an alleged summary offense or within fifteen days after discovery of the commission of the offense or the identity of the offender, the time constraint is merely “directory” or whether it is mandatory. The court opined that:

We will require no less than strict adherence to the statutory time period within which summary proceedings must be commenced. With this in mind, we must reject the lower court’s argument that the fifteen day time period as promulgated by the legislature is “directory” only, and that the later subsection requiring that “in no event shall any proceedings be held or action taken pursuant to a summary offense under this title subsequent to two years after the commission of the offense” is mandatory. To so hold would render the fifteen-day language mere surplusage. This we refuse to do.

Id., 286 Pa.Superior Ct. at 478, 429 A.2d at 39.

We are aware that there are times when delay is inevitable thus excusing strict compliance with time limits. However, in situations where our courts allow reasonable delay, it is the Commonwealth which bears the burden of justifying the delay. Revtai, supra. See, Rule 1100(c), Pa.R.Crim.P., (Commonwealth must show due diligence in efforts to avoid delay in bringing defendant to trial); Rule 303, Pa.R.Crim.P., (Commonwealth must show cause for delay in arraignments); Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) (Unnecessary pre-arraignment delay). Commonwealth v. Matthews, supra, (delay of twenty-three days between accident and summons worked a fatal defect in the Commonwealth’s case); Commonwealth v. Larson, 299 Pa.Super. 252, 445 A.2d 550 (1982) (Commonwealth did not show diligence where officer was aware of identity of defendant and did not file within the statutory period for summary offenses).

In this appeal the Commonwealth, by its own dereliction, failed to establish a prima facie case against appellant at the first preliminary hearing when it did not offer testimony of the arresting officer identifying appellant as the person operating his car while under the influence of alcohol. Therefore, the Commonwealth did not meet its burden of justifying the delay which brought about the violation of Rule 130(d).

In view of the foregoing it is clear that Rule 130(d) requires strict compliance. A careful review of the record has not revealed any plausible explanation for the Commonwealth’s error in failing to establish a prima facie case against appellant at the first preliminary hearing. Our decision today again emphasizes an individual’s right to be free from unreasonable delays in the criminal process. We can foresee situations where the Commonwealth could repeatedly refile charges against a defendant if it erred in establishing its case at preliminary hearings. Rule 130(d) establishes a time limit within which the Commonwealth must file supportable charges in a D.U.I. case where the defendant is released from custody before the charges are filed.

Judgment of sentence reversed and appellant discharged.

      . Because of our disposition of this issue we need not address appellant’s remaining issues on appeal. The issues are: (1) whether the provision of 75 Pa.C.S.A. § 3731(a)(l-4) are constitutional; (2) whether the Commonwealth used proper procedure in introducing into evidence the results of appellant's breathalyzer test.

      . Rule 130. Procedure in Court Cases Initiated by Arrest Without Warrant
      (a) Except as provided in paragraphs (b) and (c), when a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendant and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.
      (b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
      (c) The Court of Common Pleas of any judicial district may elect, by local rule, to authorize a procedure whereby an arresting officer, when the officer deems it appropriate, may promptly release from custody a defendant who has been arrested without a warrant, rather than taking the defendant before the issuing authority, when the following conditions have been met:
      (1) the most serious offense charged is a misdemeanor of the second degree;
      (2) the defendant is a resident of the Commonwealth;
      (3) the defendant poses no threat of immediate physical harm to any other person or to himself or herself;
      (4) the arresting officer has reasonable grounds to believe that the defendant will appear as required; and
      (5) the defendant does not demand to be taken before an issuing authority.
      (d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.