text:
    February 4, 1983.
    456 A.2d 1083
    Commonwealth v. Bradley, Appellant.
    Petition for Allowance of Appeal Denied May 16, 1983.
    Submitted May 12, 1982.
    Stephen R. Lacheen, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before CERCONE, P.J., and CIRILLO and HOFFMAN, JJ.
   The order of the lower court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    456 A.2d 1083
    Commonwealth v. Caston, Appellant.
    Petition for Allowance of Appeal Granted Sept. 19, 1983.
    Argued February 23, 1982.
    David R. Eshelman, for appellant;
    George C. Yatron, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1083
    Commonwealth v. Chapman, Appellant.
    Submitted March 17, 1982.
    John A. Halley, for appellant;
    Robert Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of February 25, 1981 is affirmed.


text:
    456 A.2d 1084
    Commonwealth v. Gill, Appellant.
    Submitted December 16, 1981.
    Robert F. Pappano, Assistant Public Defender, for appellant;
    A. Sheldon Kovach, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1084
    Commonwealth v. Golson, Appellant.
    Petition for Allowance of Appeal Denied May 18, 1983.
    Submitted February 18, 1982.
    Richard J. Hodgson, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Order affirmed.


text:
    456 A.2d 1084
    Commonwealth v. Graham, Appellant.
    Submitted April 14, 1982.
    Richard D. Gearhart, for appellant;
    Thomas F. Morgan, District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1084
    Commonwealth v. Hamm, Appellant.
    Submitted June 3, 1981.
    G. Eugene Beéchwood, Jr., for appellant;
    James Freeman, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1085
    Commonwealth v. Kline, Appellant.

      Submitted March 10, 1982.
    Mervin A. Heller, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    456 A.2d 1085
    Commonwealth v. Knowles, Appellant.
    Submitted April 22, 1981.
    William R, Bernhart, for appellant; Charles M. Guthrie, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order affirmed.


text:
    456 A.2d 1085
    Commonwealth v. McConnell, Appellant.
    Submitted February 17, 1982.
    Eric L. Lilian, for appellant; Deborah Fox, Assistant District Attorney, for Commonwealth, appellee.

      Before CERCONE, P.J., and JOHNSON and MONTGOMERY, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    456 A.2d 1086
    Commonwealth v. Robinson, Jr., Appellant.
    Submitted March 17, 1982.
    Thomas P. Ruane, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    456 A.2d 1086
    Commonwealth v. Walls, Appellant.
    Submitted June 15, 1982.
    George W. Bills, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1086
    Fadale v. Pittsfield Const. Co., Appellant.
    Petition for Allowance of Appeal Denied June 3, 1983.
    Argued May 19, 1982.
    Eugene J. Brew, Jr., for appellant; Bernard J. Hessley, for appellees.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Judgment affirmed.

ROWLEY, J., filed a memorandum concurring opinion.

MONTEMURO, J., filed a memorandum dissenting opinion.


text:
    456 A.2d 1086
    Feyes v. Feyes, Appellant.
    Submitted October 12, 1982.
    Simon B. John, for appellant; Steve Peter Leskinen, for appellee.
    Before CERCONE, P.J., and WIEAND and BECK, JJ.
   Order affirmed.


text:
    456 A.2d 1087
    Yingling, Appellant v. Herndon.
    Petition for Allowance of Appeal Denied June 2, 1983.
    Argued October 13, 1982.
    James Cole, for appellant; Lee A. Montgomery, for appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    February 11, 1983.
    456 A.2d 1087
    Atlantic Equip. Leasing Co., Inc. v. Stoddard, Appellant.
    Argued December 15, 1981.
    Michael P. McIntyre, for appellant; Alan B. Ziegler, for appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.


text:
    456 A.2d 1087
    Commonwealth v. Anderson, Appellant.
    Petition for Allowance of Appeal Denied April 18, 1984.

      Submitted September 14, 1982.
    George Gershenfeld, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., and McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Leonard A. Ivanoski is affirmed.


text:
    456 A.2d 1088
    Commonwealth v. Anderson, Appellant.
    Argued October 12, 1982.
    Clifford J. Kirvan, for appellant; Joseph E. Altomare, for Commonwealth, appellee.
    Before CERCONE, P.J., and WIEAND and BECK, JJ.
   Case transferred to Commonwealth Court.


text:
    456 A.2d 1088
    Commonwealth v. Banks, Appellant.
    Petition for Allowance of Appeal Denied June 6, 1983.

      Submitted October 12, 1982.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., and WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1088
    Commonwealth v. Caporello, Appellant.
    Petition for Allowance of Appeal Denied Aug. 4, 1983.
    Submitted February 24, 1982.
    Alvin S. Ackerman, for appellant; Vram Nedurian, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Order affirmed.


text:
    456 A.2d 1088
    Commonwealth v. Clinton, Appellant.
    Submitted November 15, 1982.
    Thomas H.A. Gallagher, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    456 A.2d 1089
    Commonwealth v. Dade, Appellant.
    Petition for Allowance of Appeal Denied June 6, 1983.
    Submitted October 12, 1982.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., and WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1089
    Commonwealth v. Deemer, Appellant.
    Petitions for Allowance of Appeal Denied March 18 and June 22, 1983.
    Submitted May 12, 1982.
    Margaret H. Poswistilo, Assistant Public Defender, for appellant; James J. Narlesky, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE,' P.J., and CIRILLO and HOFFMAN, JJ.
   Judgment of sentence of the lower court is affirmed.


text:
    456 A.2d 1089
    Commonwealth v. Dickerson, Appellant.
    Argued December 7, 1981.
    Richard S. Packel, for appellant; Jean Marie Celia, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ. .
   Judgment of sentence affirmed.


text:
    456 A.2d 1090
    Commonwealth v. Edney, Jr., Appellant.
    Submitted September 8, 1982.
    Joseph H. O’Donnell, Jr., for appellant; Robert Levin, Assistant District Attorney, for Commonwealth, appellee.. ' '
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    456 A.2d 1090
    Commonwealth v. Harrison, Appellant.
    Submitted February 16, 1982.
    David Zwanetz, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1090
    Commonwealth v. Kapalka, Appellant.
    Submitted May 1, 1981.
    Duke George, Jr., for appellant; Albert Nichols, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., and BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1090
    Commonwealth v. Lutzick, Appellant.
    Submitted September 28, 1982.
    John F. Gibbons, for appellant; Richard W. Webb, District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   The judgment of sentence is affirmed.


text:
    456 A.2d 1091
    Commonwealth v. McClendon, Appellant.
    Submitted September 29, 1982.
    James J. Phelan, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   The judgment of sentence is affirmed.


text:
    456 A.2d 1091
    Commonwealth v. Murphy, Appellant.

      Submitted November 16, 1982.
    George Gershenfeld, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake, is affirmed. .


text:
    456 A.2d 1091
    Commonwealth v. Powell, Appellant.
    Submitted September 20, 1982.
    John Dale Kuhn, Public Defender, for appellant; Samuel E. Teeter, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH,. JJ.
   Order affirmed.


text:
    456 A.2d 1092
    Commonwealth v. Smith, Appellant.
    Submitted May 20, 1982.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before ROWLEY, CIRILLO and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1092
    Commonwealth v. Smith, Appellant.
    Petition for Allowance of Appeal Denied May 12, 1983.
    Argued September 21, 1981.
    John J. O’Brien, for appellant; David E. Fritchey, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1092
    Commonwealth, Appellant v. Smith.
    Argued September 15, 1982.
    William A. Helm, District Attorney, for Commonwealth, appellant; John B. Schaner, for appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    456 A.2d 1092
    Commonwealth v. Sullivan, Appellant.
    Petition for Allowance of Appeal Denied June, 21, 1983.
    Submitted June 3, 1982.
    Sidney E. Herold, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appelleé.
    Before HESTER, CIRILLO and JOHNSON, JJ..
   Order affirmed.


text:
    456 A.2d 1093
    Commonwealth v. Thompson, Appellant.
    Argued September 14, 1982.
    Joshua D. Lock, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MQNTEMURO, JJ.
   Judgment of sentence is affirmed.


text:
    456 A.2d 1093
    Cooper v. Byrne, Appellants.
    Petition for Allowance of Appeal Denied June 15, 1983.
    Argued October 19, 1982.
    Stephen G. Pollock, for appellants; Abraham J. Golden, for appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Judgment affirmed.


text:
    456 A.2d 1093
    Elko, et al. v. Univ. Sec. Consultants, et al. Appeal of Local 542 International Union of Operating Engineers AFL-CIO.
    Petition for Allowance of Appeal Denied May 31, 1983.
    Submitted December 15, 1981.
    Bruce S. Miller, for appellant; William P. Loftus, for Elko, et al., appellees; Donald Brobst, for Universal, appellees.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The judgment of learned Luzerne County Common Pleas Court Judge Bernard C. Brominski is affirmed.


text:
    456 A.2d 1094
    Erie Ins. Group, Appellant v. Ortwein, Jr., et al.
    Argued September 16, 1981.
    Charles J. Fonzone, for appellant; C. Collins Brown, for Ortwein, appellee; Michael P. Shay, for State Farm, appellee.
    Before CAVANAUGH, DiSALLE and WATKINS, JJ.

       DiSALLE, J. did not participate in the consideration or decision of this case.

   Affirmed.


text:
    456 A.2d 1094
    Gallagher, Appellant v. Sabatella.
    Argued February 16, 1982.
    Nicholas S. Mattise, for appellant; Chester Dudick, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Order affirmed.


text:
    456 A.2d 1094
    In Interest of D.C. Appeal of J.C.

      Argued October 18, 1982.
    J.C., appellant, in .propria persona; David M. McGlaughlin, for appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Judgment affirmed.


text:
    456 A.2d 1094
    Spayd, et al. v. Rigo, Inc., Appellant.
    Argued December 15, 1981.
    William G. Sherr, for appellant; John C. Tywalk, for appellees.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.


text:
    February 18, 1983.
    456 A.2d 1095
    Badger a/k/a Heikes, Appellant v. Badger.
    Argued January 7, 1981.
    Richard C. Snelbáker, for appellant; Robert C. Saidis, for appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.

       This decision was reached prior to the death of Judge Price.

   Order affirmed.


text:
    456 A.2d 1095
    Bowe, Jr., et ux. v. Torrens, Appellant.
    Petition for Allowance of Appeal Denied June 20, 1983.
    Argued November 18, 1981.
    Michael J. Pepe, Jr., for appellant; Stephen G. Yusem, for appellees.
    Before CAVANAUGH, McEWEN and MONTEMURO, JJ.
   The judgment of the learned Montgomery County Common Pleas. Court Judge Joseph H. Stanziani is affirmed.


text:
    456 A.2d 1095
    Carson, Jr., Appellant v. Zacchero.
    Petition for Allowance of Appeal Denied May 13, 1983.
    Argued April 12, 1982.
    Stephen J. Harris, for appellant; James E. Coyne, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The order of August 24, 1981 is affirmed.


text:
    456 A.2d 1095
    Commonwealth v. Bennett, Appellant.
    Submitted March 3, 1982.
    Anthony D. Miele, for appellant; Gailey C. Keller, District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1096
    Commonwealth v. Caswell, Appellant.
    Submitted April 7, 1982.
    John Joseph Cerra, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    458 A.2d 613
    Commonwealth v. Cilo, Appellant.
    Reargument Denied May 3, 1983.
    Petition for Allowance of Appeal Denied Sept. 20, 1983.

      Argued February 17, 1981.
    Stanley M. Shingles, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.

       This decision was reached prior to the death of Judge Price.

   Order affirmed.


text:
    456 A.2d 1096
    Commonwealth v. Clinton, Appellant.
    Submitted December 7, 1981.
    Thomas J. Munley, Assistant Public Defender, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and McEWEN, JJ.

       This case was reassigned to the above named panel on October 21, 1982.

   Judgment of sentence is affirmed.


text:
    456 A.2d 1096
    Commonwealth v. Davis a/k/a Dickey, Appellant.
    Submitted September 14, 1982.
    Marilyn C. Zilli, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1097
    Commonwealth v. DeKeyser, Appellant.
    Petition for Allowance of Appeal Denied May 16, 1983.
    Submitted March 1, 1982.
    Lawrence T. Phelan, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1097
    Commonwealth v. Henderson, Appellant.
    Argued April 13, 1982.
    Gary Robert Fine, for appellant; Alfred B. Bell, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   The judgment of sentence of May 1, 1981 is affirmed.


text:
    456 A.2d 1097
    Commonwealth v. Holmes, Appellant.
    Submitted May 25, 1982.
    Manuel Grife, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1097
    Commonwealth v. Jacobs, Appellant.
    Submitted February 16,1982.
    Jonathan DeYoung, for appellant; John T. Salvucci, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., JOHNSON and MONTGOMERY, JJ.
   The order of the lower court is affirmed.


text:
    456 A.2d 1098
    Commonwealth v. Keane, Appellant.
    Petition for Allowance of Appeal Denied Sept. 30, 1983.
    Argued October 6, 1981.
    William R. Lee, for appellant; Steven J. Bresset, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   The judgment of sentence of the learned and distinguished Pike County Common Pleas Court President Judge Harold A. Thomson, Jr., specially presiding in the Court of Common Pleas of Wayne County, is affirmed.


text:
    456 A.2d 1098
    Commonwealth, Appellant v. Lengyel.
    Submitted February 16, 1982.
    Eric Gavin Marttila, Assistant District Attorney, for Commonwealth, appellant; Susan Arnold Flynn, Assistant Public Defender, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   The order dated February 26, 1981 is affirmed.


text:
    456 A.2d 1098
    Commonwealth v. Nyahay, Appellant.
    Submitted May 19, 1982.
    Kenneth W. Johnson, for appellant; George B. Kaufman, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   The order is affirmed.


text:
    456 A.2d 1099
    Commonwealth v. Rasbach, Appellant.
    Argued April 12, 1982.
    Howard T. Gilfillan, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The judgment of sentence of October 9, 1979 is affirmed.


text:
    458 A.2d 613
    Commonwealth v. Schwartz, Appellant.
    Reargument Denied May 2, 1983.
    Petition for Allowance of Appeal Denied Aug. 31, 1983.

      Submitted February 18, 1982.
    Frank P. Murphy, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., JOHNSON and MONTGOMERY, JJ.
   The order of the lower court is affirmed.


text:
    456 A.2d 1099
    Commonwealth v. Scott, Appellant.
    Submitted October 18, 1982.
    Blaise H. Coco, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1099
    Commonwealth v. Shank, Appellant.
    Petition for Allowance of Appeal Denied Sept. 8, 1983.

      Argued March 8, 1982.
    Alan D. Lourie, Assistant Public Defender, for appellant; Joseph W. Carroll, III, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Order affirmed.


text:
    456 A.2d 1099
    Commonwealth v. Spiegel, Appellant.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.
    Submitted February 24, 1982.
    Alton G. Grube, for appellant; Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Order affirmed.

SPAETH, J. filed a memorandum concurring statement.


text:
    456 A.2d 1100
    Commonwealth v. Tarkenton, Appellant.
    Submitted October 18, 1982.
    Dennis H. Eisman, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1100
    Commonwealth v. Taylor, Appellant.
    Submitted January 5, 1982.
    John A. Goldstan, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., and SPAETH and CAVA-NAUGH, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    456 A.2d 1100
    Fox, Appellant v. Moore Business, et al.
    Argued February 9, 1982.
    James R. Fitzgerald, for appellant; James F. Manley, for Moore, appellee; Jean M. Simmonds, for Papercraft, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Judgment affirmed.

POPOVICH, J., concurred in the result.


text:
    456 A.2d 1101
    In The Interest of Caruso, a minor. Appeal of Barry A. Caruso.
    Argued December 9, 1981.
    Richard Hoffman, for appellant; Stephen B. Harris, Assistant District Attorney, for appellee; Patrick J. O’Conner, for amicus curiae.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Adjudication of delinquency affirmed.


text:
    456 A.2d 1101
    Mercante, Appellant v. Maleno.
    Petition for Allowance of Appeal Denied June 21, 1983.
    Argued November 18, 1981.
    Larry E. Coben, for appellant; Hugh M. Odza, for appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   The judgment of the learned Philadelphia County Common Pleas Court Judge Bernard J. Goodheart is affirmed.


text:
    February 25, 1983.
    456 A.2d 1101
    Calkins, Appellant v. Vermillion, Esq., etc.
    Argued December 9, 1981.
    Blythe H. Evans, Jr., for appellant; John M. Morganelli, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.

McEWEN, J., filed a memorandum dissenting opinion.


text:
    456 A.2d 1102
    Commonwealth v. Crump, Appellant.
    Petition for Allowance of Appeal Denied June 15, 1983.
    Submitted November 15, 1982.
    Michael A. DeFino, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1102
    Commonwealth v. Ellison, Appellant.
    Submitted November 18, 1981.
    Barry M. Miller, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.

HOFFMAN, J., dissented.


text:
    456 A.2d 1102
    Commonwealth v. Ford, Appellant.
    Petition for Allowance of Appeal Denied June 8, 1983.
    Submitted October 6, 1981.
    Louis Lipschitz, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    456 A.2d 1103
    Commonwealth v. Fortune, Appellant.
    Submitted May 5, 1982.
    Jack C. Younkin, for appellant; Donald B. Corriere, District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The order of the lower court is affirmed.


text:
    456 A.2d 1103
    Commonwealth v. Gilbert, Appellant.
    Submitted June 4, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    456 A.2d 1103
    Commonwealth v. Herminzek, Appellant.

      Submitted April 26, 1982.
    Timothy J. McCormick, for appellant; John Edward Blahovec, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1103
    Commonwealth v. Holmes, Appellant.
    Petition for Allowance of Appeal Denied May 20, 1983.
    Submitted May 19, 1982.
    John H. Corbett,'Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before ROWLEY, CIRILLO and VAN der VOORT, JJ.
   Judgment of sentence of the Court below is affirmed.


text:
    456 A.2d 1104
    Commonwealth v. Jackson, Appellant.
    Petition for Allowance of Appeal Denied June 21, 1983.

      Submitted February 23, 1982.
    Robert F. Pappano, Assistant Public Defender, for appellant; Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.

SPAETH, J., concurred in the result.


text:
    456 A.2d 1104
    Commonwealth v. Kelliher, Appellant.
    Petition for Allowance of Appeal Denied June 29, 1983.
    Argued December 13, 1982.
    Paul W. Kilgore, for appellant; William L. Thurston, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1104
    Commonwealth v. Nixon, Appellant.
    Submitted November 16, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1105
    Commonwealth v. Presley, Appellant.
    Submitted October 18, 1982.
    Joseph T. Kelley, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTEMURÓ, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1105
    Commonwealth v. Sheppard, Appellant.
    Submitted June 2,1982.
    George Gershenfeld, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1105
    Commonwealth v. Smith, Appellant.
    Submitted June 2, 1982.
    Elaine De-Masse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 1105
    Dresnin v. Dresnin, et al. Appeal of Patricia Dresnin.
    Argued April 23, 1982.
    Michael Goldman, for appellant; Barbara R. Vetri, for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.


text:
    456 A.2d 1106
    Motorola, Inc. v. Fuel Co., Appellant.

      Argued April 7, 1982.
    Dennis L. Friedman, for appellant; Robert Cherwony, for appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Order affirmed.


text:
    456 A.2d 1106
    Newbauer v. Taylor, Appellant.
    Argued April 21, 1982.
    Russell Taylor, M.D., submitted a brief on behalf of appellant, in propria persona; Marc Alan Krefetz, for appellee.
    Before' WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.


text:
    456 A.2d 1106
    Romaska, et al., Appellants v. Highland Township, et al.
    Argued May 24, 1982.
    Jerome Gamburg, for appellants; Alan R. Shaddinger, for appellees.

      Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    456 A.2d 1101
    Vossenberg, M.D. v. Plitt, Appellant.
    Argued November 16, 1982.
    Julia Beall Passyn, for appellant; William J. Brennan, for appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   Order affirmed.


author: POPOVICH, Judge:

text:
    456 A.2d 1383
    COMMONWEALTH of Pennsylvania v. Clayton Lee NELSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1982.
    Filed Feb. 18, 1983.
    Petition for Allowance of Appeal Denied June 3, 1983.

      Robert F. Pappano, Assistant Public Defender, Media, for appellant.
    Helen T. Kane, Assistant District Attorney Media, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

After a jury trial, appellant, Clayton Lee Nelson, was found guilty of Rape (18 Pa.C.S.A. § 3121), Involuntary Deviate Sexual Intercourse (18 Pa.C.S.A. § 3123), Burglary (18 Pa.C.S.A. § 3502) and Simple Assault (18 Pa.C.S.A. § 2701). Following the denial of post-trial motions, appellant was sentenced to a term of imprisonment of 3 to 11 years for Rape, 1 to 2 years for Involuntary Deviate Sexual Intercourse and 1 to 5 years for Burglary. Sentence was suspended for the Simple Assault conviction and all sentences were ordered to be served concurrently. This appeal followed. We affirm.

On appeal, appellant asserts that: 1) the trial court erred in not permitting him full access to the subpoenaed records of the rape crisis center; 2) the trial court erred in refusing to permit him to be asked whether the police had offered him a polygraph test; and 3) trial counsel was ineffective.

The evidence, viewed in the light most favorable to the verdict-winner, the Commonwealth here, Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975), consists of the following: At approximately 5:30 a.m. on the 21st of September, 1980, Ms. Cupelli was awakened by a “stirring” that sounded like breathing coming from the foot of her bed. Upon turning the light on, she saw a man on the floor beside her bed. He had his head down. When she asked who he was and what he wanted, “he turned his face to look at [her] and [she] recognized him immediately as Clay Nelson ____” (N.T. 43) Ms. Cupelli knew the intruder because he had lived in a duplex directly across from her apartment for the first six months of 1980, and she had occasion to speak to him about eight times during that period. At this point, when appellant moved toward Ms. Cupelli, she screamed. The appellant reacted by placing an arm lock around the victim’s neck, forcing her face into the pillow and turning out the light. The victim struggled for awhile, but her resistance waned when the assailant promised not to hurt her if she refrained from fighting, screaming or making noise. The victim complied, for she thought that if she resisted further she would be either strangled or suffocated.

During the ensuing hour, Nelson compelled the victim to submit to oral, anal and vaginal intercourse. When the ordeal was over, the victim phoned a friend to tell her that she had been raped, and that she knew the assailant. The friend advised her to consult the “Women Against Rape” center in Philadelphia. The victim did so and was told to seek treatment at a hospital that had a rape care unit. After the victim had located such a hospital, she contacted the police.

When the police arrived on the scene, the victim showed them the screen that had been pulled out from the living room window and a rolled up paint cloth that had been left on the floor next to her bed by the assailant. The victim also informed the authorities that the guilty party “was the person who used to live across the street ... in the duplex.” (N.T. 56) An examination of the duplex produced a piece of cloth from the porch and something in the door with a name on it. When the police asked the victim, “does Clayton Nelson sound familiar to you? [The victim] said that Clay did. The name Clay, that was the name.” Ibid. Thereafter, the police transported Ms. Cupelli to Bryn Mawr Hospital where she was treated for rape. Tests conducted upon the victim indicated the presence of sperm in her vagina and other signs consistent with the reported assault.

Based on the evidence secured, an investigation was undertaken leading to the arrest of the appellant on September 22, 1980.

Initially, appellant asserts that the lower court erred in refusing to permit the trial attorney to examine all of the records compiled on the case by the “Women Against Rape” center, since “[t]he interview with the alleged victim was taken under circumstances wherein there was no confidentiality involved.” (Appellant’s Brief at 5) Moreover, appellant urges “that the defense counsel rather than the Court knows best what statements of the witness would be helpful for cross examination relative to impeachment.” (Appellant’s Brief at 7) An examination of the facts, when aligned against the relevant case law, reveals the fallacy in both of the appellant’s averments.

Prior to trial, defense counsel served a subpoena upon “Women Against Rape” (WAR) to compel production of “all documents, memoranda, writings or reports pertaining to said rape incident” in their files. WAR, through its attorney, resisted compliance with the subpoena on the basis of the decision of In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981). In the midst of trial, the court, at an in camera proceeding, agreed to read to the defense only selected portions of WAR’s files marked “data forms”. To-wit:

“And under number 9 on Page 1 where it says marital status, the thing that is circled is single. For the marital status of course of the victim. On Page 3 under the heading victim—offender relationship, Number 17 is circled and it says injured more seriously. That’s what’s typed in. On Page 5 topic is hospital used and a line for a name to be written above it and Bryn Mawr is written above it. Number 63—Question Number 63 or item Number 63. That’s it. All right? Anything further? MR. LORD [Appellant’s trial counsel]: No, sir.” (N.T. 68)

After the disclosure in-chambers, the trial proceeded to its conclusion.

It is interesting to note that all parties concerned, including the lower court, make mention of the testimony of a WAR representative concerning the information gathering procedure that was utilized in preparing the report on Ms. Cupelli’s case. That is, according to the purported testimony given at an in-chambers inquiry, the WAR representative revealed that the “data form” was a compilation of information secured from the police, an interview conducted with the Assistant District Attorney, the victim and the representative and testimony from the preliminary hearing. {See Commonwealth’s Brief at 4; Appellant’s Brief at 6 and Lower Court Opinion at 8) This, appellant urges, impugns the “confidentiality” so necessary to insulate those “statements” made during the rape counseling session from disclosure. Thus, appellant vigorously argues that he was entitled to access to the entire file of the rape crisis center.

Except for the mention of such testimony in the briefs of both parties to the litigation. and in the lower court’s Opinion, there is an absence of any record evidence that the proceedings were actually transcribed and/or forwarded to this Court. Ordinarily, this deficiency would preclude this Court from reviewing the merits of the argument made, since a court may not consider facts outside the record. Commonwealth v. Young, 456 Pa. 102, 115 n. 15, 317 A.2d 258, 264 n. 15 (1974). Remarks made by counsel in a brief cannot be considered, inasmuch as they are not equated with evidence of record. See Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981).

However, in the interest of judicial economy, since the issue has been briefed by both sides and discussed by the lower court in its Opinion, we will address the matter. See Commonwealth v. Sudler, 496 Pa. 295, 301, 436 A.2d 1376, 1379 (1981); Commonwealth v. Jones, 300 Pa.Super. 338, 348 n. 3, 446 A.2d 644, 649 n. 3 (1982).

In the case of In the Matter of Pittsburgh Action Against Rape, supra, our Supreme Court considered the extent to which a court presiding over a rape trial may authorize counsel for the accused, seeking to impeach the credibility of the complainant, to inspect a rape crisis center file containing communications between the complainant and rape crisis center personnel. In the course of its decision, the Court refused to embrace a rule authorizing an absolute privilege for all communications between rape crisis personnel and persons seeking their assistance. Rather, the Court held that:

“[U]pon defense request a court should authorize defense inspection of only those statements of the complainant contained in the file which bear on the facts of the alleged offense. The court, however, must not permit defense inspection of statements of the complainant having no bearing on the facts of the alleged offense and relating instead only to the counselling services [the rape crisis center] provides. The trial court shall not permit defense review of any other aspect of the file.” 494 Pa. at 19, 428 A.2d at 127-128.

In an attempt to clarify the perimeters of what “statements” are accessible to the defense, and, who, in the first instance, is to make that decision, the Court went on to state:

“[0]nly ‘statements’ of the complainant, and not interpretations or recollections of the [rape crisis center] counsellor, are to be made available. Statements of the complainant include only notes that are verbatim accounts of the complainant’s declarations and notes that the complainant has approved as accurately reflecting what she said.
The trial court should make whatever inquiry is necessary to determine whether matters contained in the [rape crisis center] file are indeed ‘statements.’ The trial court’s inquiry must, of course, be conducted in camera.” 494 Pa. at 28, 428 A.2d at 132.

From the preceding language, as well as a reading of the entire Opinion, we conclude that the Supreme Court did not intend defense counsel, figuratively speaking, to be looking over the trial court’s shoulder when the determination is being made as to exactly what information is or is not a statement of the complainant. In other words, it is the trial court that is cloaked with the responsibility to decide what, if any, “statements reflecting counselling shall be withheld from defense inspection.” (Emphasis added) 494 Pa. at 29, 428 A.2d at 132.

Instantly, the trial court complied with the dictates of the Pittsburgh Action Against Rape case in conducting an in camera perusal of the complainant’s WAR file. Additionally, and more importantly, our review of the evidence substantiates the trial court’s ruling that it “revealed all information that was on the fact sheet [“data form”] that could be considered statements of the victim.” (Emphasis in original) (Lower Court Opinion at 8) As a result, we find no error to have been committed below.

Next, appellant contends that the trial court erred in not allowing him to answer the question of whether he had been asked by police to submit to a polygraph examination. It is to be observed that such inquiry, an objection to which was sustained by the trial court in favor of the Commonwealth, was initiated by defense counsel. It seems that appellant’s counsel elicited a positive response from the victim when he asked her, on cross-examination, whether the police had requested that she take a polygraph test. (N.T. 114) Given this admission, appellant is of the mind that the defense was entitled to negate the idea that he failed a similar test. Stated differently, appellant postulates that because “the question of polygraph [was] before the jury, the Court owed a duty to allow the defense to correct the imbalance, i.e. that the prosecutrix possibly passed a polygraph, that the appellant possibly failed.” (Appellant’s Brief at 9) We do not agree.

To start with, in view of the inherent unreliability of a polygraph examination, the Supreme Court of this Commonwealth has repeatedly held that any reference to such examinations which raises an inference concerning either the guilt or innocence of a defendant is inadmissible. Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972); Commonwealth v. Kemp, 270 Pa.Super. 7, 410 A.2d 870 (1979). Evidence of the results of such tests remain inadmissible even in the face of a knowing, voluntary and intelligent stipulation that they may be submitted into evidence. Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980). As correctly noted by the trial court:

“By doing this [—i.e., Defendant inquiring whether the police asked the victim to take a lie-detector test], the Defendant does not then have the right to counter by suggesting that the police officers did or did not offer the Defendant the same opportunity, or that he would have taken the test if offered.
The Defendant’s attorney having adopted the strategy of attempting to show that the police had some question as to the truth of the victim’s statements, the Defendant cannot complain that the Commonwealth’s objection to Defendant being asked if he was given an opportunity to take the test was sustained.” (Lower Court Opinion at 6)

Therefore, we find that the trial court properly sustained the Commonwealth’s objection to defense counsel’s question.

Lastly, appellant avers that trial counsel was ineffective for: 1) not making an opening statement; 2) asking him very few questions on direct examination; 3) filing a Notice of Alibi, but failing to produce the witnesses named therein; 4) never asking the victim if she wore corrective lenses; and 5) failing to file a pretrial motion to dismiss on the basis that the Informations were signed with the rubber-stamped signature of the District Attorney of Delaware County. None of the assertions of ineffectiveness was raised in the court below. However, this deficiency does not foreclose this Court from reviewing the merits of said claims since private trial counsel represented the accused during pre-trial, trial and post-trial proceedings. In fact, trial counsel filed post-trial motions, and it was not until an appeal had been perfected from the judgment of sentence that trial counsel withdrew from the case and a public defender was appointed. Consequently, this appeal being the first occasion on which appellant is represented by counsel other than the one whose stewardship is being questioned, we cannot fault him for failing to raise the issues sooner. Commonwealth v. Cooke, 288 Pa.Super. 205, 431 A.2d 360 (1981).

Before reaching the merits of the claims, we observe that “counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen had some reasonable basis designed to effectuate his client’s interests.” (Emphasis in original) Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). “Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we conclude that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.” Id., 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. In our opinion, such a conclusion is not justified in the case at bar.

The difficulty in this case, as in most cases where the claim of ineffectiveness of counsel is proffered on appeal, is that we have before us no record of any hearing at which is set forth trial counsel’s reasons for taking the steps later challenged. Nonetheless, the usual method of remanding to the lower court for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken, see Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), is not necessary here, for it is apparent from the record that the actions claimed to constitute ineffectiveness were in fact within the realm of trial strategy or tactics. Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608 (1973), cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973); Commonwealth v. Hudson, 455 Pa. 117, 314 A.2d 231 (1974).

The first issue raised by appellant under the rubric of ineffectiveness deals with trial counsel’s failure to present an opening statement to the jury, either following the prosecution’s opening statement or after the close of the Commonwealth’s case.

The purpose of an opening statement is to apprise the jury how the case is to develop, its background, and what will be attempted to be proved; but it is not evidence. 10A P.L.E. Criminal Law § 583 (1970). Also, under Pa.R. Crim.P. 1116(a), a presentation of opening remarks by defense counsel is directory, e.g., “... defendant or his attorney may ... make an opening statement to the jury[,]” and is not mandatory. As a result, the right may be waived as a matter of trial strategy. Cf Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976) (right to a summation by a defendant may be waived, and the decision whether or not to waive is a matter of trial strategy).

Instantly, the trial of the case was of short duration, two days, and the evidence was clear and simple. No one disputed the commission of the assault; the defense was merely that Clayton Lee Nelson did not commit the complained of offenses. Thus, the question was one of credibility. Accordingly, we fail to see how the absence of an opening statement by counsel so prejudiced the accused in the eyes of the jury that there is no alternative but to hold counsel ineffective and grant a new trial. Since appellant has failed to establish incompetency or the presence of exceptional circumstances, counsel’s strategic decision to forego an opening statement is binding on the appellant-client. See Commonwealth v. Gambrell, 450 Pa. 290, 301 A.2d 596 (1973). We find no reason to label trial counsel less than effective.

Appellant next alleges that trial counsel was ineffective for restricting the questions asked of him to whether he had committed the offenses or whether he had ever been in the victim’s apartment—the responses to both were in the negative. Appellant states that counsel should have developed the record regarding his whereabouts on the evening in question, as well as who may have been with him. Since it appears that this void was filled by appellant’s testimony on cross-examination, it would be incongruous to hold counsel inept for not presenting this information during the appellant’s direct examination. To elaborate, appellant testified to stopping at “II Primo’s,” a pizza place, and drinking there for an hour. Next, he recounted making his way to the Malvern Tavern and staying for half-an-hour before going to the Candlewick Diner in Malvern, Pa., for something to eat. Thereafter, at approximately 3:00 a.m., appellant remarked that he returned to his apartment and did not go out for the remaining part of the evening.

Thus, because the evidence to establish the same facts was introduced at trial on cross-examination of the accused, we find no reason to hold counsel ineffective for not presenting it, first, during appellant’s direct examination. Cf. Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981) (where appellant admitted knowledge of and association with co-conspirator, effect of erroneously admitted evidence of same facts by Commonwealth in its case-in-chief was neutralized). Also, because the scope of the examination and cross-examination of witnesses is clearly within the province of trial counsel, Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978), and given the particular facts of this case, we find appellant’s claim of ineffectiveness to be without merit.

The third prong of appellant’s ineffectiveness argument is framed, in his Brief, as follows: “Trial counsel filed a Notice of Alibi which contained the names of Joseph Darah and Chris Nelson as witnesses. These witnesses were never called to testify, even though the appellant’s defense was alibi.” (Appellant’s Brief at 11) Our review of the record does not support such an allegation.

Nonetheless, assuming arguendo that such witnesses did exist, we are not persuaded to find counsel ineffective, for it is clear that trial counsel’s failure to present a possible witness is not per se ineffectiveness on counsel’s part. Counsel need not call every person mentioned by a defendant. Commonwealth v. Robinson, 232 Pa.Super. 328, 334 A.2d 687 (1975). Moreover, the failure to call a possible witness will not be equated with a conclusion of ineffectiveness absent some positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977). Such is not the case instantly. As noted above, appellate counsel merely alleges that trial counsel failed to call two named witnesses. However, he “not only fails to indicate that the witnesses] w[ere] available to testify, [he] even neglects to mention what the nature of [their] testimony would be.” Commonwealth v. Ashley, 277 Pa.Super. 287, 292, 419 A.2d 775, 778 (1980); see also Commonwealth v. Oliver, 280 Pa.Super. 274, 277, 421 A.2d 719, 721 (1980).

In the case at bar, it is apparent that appellate counsel’s bare assertion that trial counsel erred in neglecting to call a number of alibi witnesses, “even though the appellant’s defense was alibi[,]” (Appellant’s Brief at 11), does not constitute sufficient facts to warrant any relief. Commonwealth v. Ashley, supra; Commonwealth v. Charleston, supra.

As for appellant’s protestation that trial counsel was ineffective for failing to question the victim as to whether she wore corrective lenses, we find this claim to be equally unpersuasive.

The victim observed her assailant in good lighting for some 25 seconds as he stood but a few feet from her person before the assault. Thus, the victim’s opportunity for identification was good; it was neither speculative nor weakened on cross-examination and remained positive. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); see also Commonwealth v. Tumminello, supra; Commonwealth v. Harrison, 290 Pa.Super. 389, 434 A.2d 808 (1981). Additionally, while it is true that the victim observed the culprit in the light for a brief period of time, the victim knew the appellant previously and was able to recognize him on sight as her neighbor. Furthermore, during and after the incident, appellant and the victim had spent a significant amount of time conversing; this enabled the prosecutrix to recognize the appellant’s voice from her previous contacts with him, and, consequently, identifying him as the guilty party.

Lastly, appellant alleges that trial counsel was ineffective for failing to file a pre-trial motion to dismiss on the basis that the Informations were signed with the rubber-stamped signature of the District Attorney of Delaware County (Frank T. Hazel).

Our reading of the four Criminal Informations reveals that, contrary to appellant’s protestation, each was signed by a “Robert C. Keller, ADA,” Attorney for the Commonwealth. We note that the Judicial Code provides that an Information may be signed by “any assistant district attorney whose authority to act for the district attorney ... is evidenced by a written designation executed by the district attorney ... and filed with the clerk of the courts.” 42 Pa.C.S.A. § 8931(i) (1982). In accordance therewith, we observe that appellant does not contest the representation in the Commonwealth’s Brief that the designation authorized by Section 893l(i) was complied with, “and is filed with the Clerk of Courts of Delaware County, Miscellaneous Docket Book A-34 at page 344.” (Commonwealth’s Brief at 15) Nor has appellant argued that the signature of the attorney for the Commonwealth is not that of Robert C. Keller, Assistant District Attorney of Delaware County, who signed the Informations as the District Attorney’s designee. See Commonwealth v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355 (1980). Moreover, this Court, in dealing with the rubber-stamp issue, has stated most recently that: “It is ... our belief that only a written indication, by the district attorney or his designee, that the charges contained in an information have been considered and approved satisfy the ‘signature’ requirement of Pa.R. Crim.P. 225(b).” (Emphasis added) Commonwealth v. Veneri, 306 Pa.Super. 396, 403, 452 A.2d 784, 787 (1982). This is what occurred in the case at bar. Therefore, in accordance with the ruling in Veneri, we find no merit to appellant’s ineffectiveness argument. In fact, having found no support for any of appellant’s contentions upon a review of the record and the case law, we deny appellant’s request for relief.

Judgment of sentence affirmed.

      . The victim demonstrated a positive and unwavering certainty in identifying the appellant as her assailant at the confrontation at trial. (N.T. 65-66) See Commonwealth v. Pifer, 284 Pa.Super. 170, 183, 425 A.2d 757, 762 (1981).

      . Assuming arguendo that such alibi witnesses did exist, there would appear to be a problematic value as to appellant’s defense. For example, appellant admitted, on cross-examination, to returning to his apartment on the evening in question "shortly after 3:00 o’clock” a.m., and not going back out that night. (N.T. 230) But, appellant made no mention of being in anyone’s company during the crucial time. Thus, given the victim’s accounting that the assaults occurred between 5:30 a.m. and 6:30 a.m., the purported alibi witnesses could not have exculpated appellant from the acts attributed to him by the victim. See Commonwealth v. Robinson, 232 Pa.Super. 328, 334 A.2d 687 (1975).

      . Although the appellant does not assail the sufficiency of the evidence on this appeal, we, nevertheless, have reviewed the trial transcript and find ample evidence to support the verdict. (See Lower Court Opinion at 8-9); Johnson Appeal, 445 Pa. 270, 284 A.2d 780 (1971); Commonwealth v. Richardson, 232 Pa.Super. 123, 334 A.2d 700 (1975); Commonwealth v. Ebert, 146 Pa.Super. 362, 22 A.2d 610 (1941).


author: CERCONE, President Judge: BECK, Judge,

text:
    457 A.2d 91
    Barry J. FRIDAY, Appellant, v. Angela D. FRIDAY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1981.
    Filed Jan. 21, 1983.
    Reargument Denied March 29, 1983.

      Mary Bell Hammerman, Philadelphia, for appellant.
    Philip B. Korb, Philadelphia, for appellee.
    Before CERCONE, President Judge, and McEWEN and BECK, JJ.
   CERCONE, President Judge:

Appellant, Barry J. Friday, takes this appeal from the order of the court in equity which granted summary judgment in favor of appellee, Angela D. Friday. Our review of the within matter convinces us that the equity court erred in granting summary judgment and we therefore reverse and remand.

Appellant-husband filed this complaint in equity asking for partition of real property which he claimed the parties held as tenants-in-common, and not by the entireties, owing to the parties’ recent divorce. Appellee-wife filed a counterclaim to quiet title and also asked the court to order appellant to execute and deliver a deed in recordable form, since appellee claimed to hold a validly delivered deed but one which was not recordable because it was not notarized. Appellant filed an answer to appellee’s counterclaim, denying the claim that appellee had made numerous requests for a new deed. Instead, appellant claimed that it was only through his inquiries that he learned that appellee wished to sell the property and donate the proceeds to the Hare Krishna Temple. Appellant further claimed that the parties, prior to their divorce, had entered into an agreement regarding the settlement of the property. Appellant alleged that the essence of this agreement was that the title in the real property would be transferred to appellee, who had custody of the parties’ two children, so that the children would have a home and that eventually the property itself or its proceeds would enure to the benefit of the children. It was further claimed that appellee attempted to inculcate the children, who up to that time were being raised as Catholics, into the Hare Krishna Temple, whereupon, in a prior proceeding, appellant filed a habeas corpus petition and was awarded custody of the children. Appellant stated that when the parties entered into this agreement, it was at no time contemplated that appellee would attempt to inculcate their children with another religion while they were being raised in the Catholic religion and were attending Catholic schools, or that appellee would transfer the property or its proceeds to the Hare Krishna Temple, which she was planning to join. Basically, appellant claimed that the transfer of the property to appellee was not an effective transfer because there was a failure of consideration. Appellee then filed a motion for summary judgment. Before this motion was ruled upon, appellant filed a petition to amend the caption to include the names of the parties’ two adolescent daughters. In due course, the equity court granted summary judgment for appellee and dismissed appellant’s petition to amend as moot in view of the court’s disposition of the case.

The general rule regarding summary judgments was reiterated by this Court in Petraglia v. American Motorists Ins. Co., 284 Pa.Superior Ct. 1, 3, 424 A.2d 1360, 1361 (1981), wherein we said:

Summary judgment “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 judgment as a matter of law.” Pa.R.Civ.P. 1035(b). Summary judgment can only be granted in the clearest of cases. See e.g., Schacter v. Albert, 212 Pa.Superior Ct. 58, 239 A.2d 841 (1968). Additionally, the evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party.

Applying the rule as set forth in the Petraglia case, we hold that the pleadings, etc., in the instant case do not show a lack of genuine issue of a material fact. Appellant claimed that the “deed” at issue was executed pursuant to an agreement between the parties which contemplated that the property was to be used to benefit the parties’ children. This allegation raises the question of whether a constructive trust should be held to exist. Although it is true that appellant did not specifically ask the equity court to impress a constructive trust, this is of no moment since a court of equity, once it assumes jurisdiction for one or more purposes, will retain jurisdiction for all purposes to give complete relief and to do justice between the parties; this may include an award of equitable relief not covered by the original prayer. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976); Cerami v. Dignazio, 283 Pa.Superior Ct. 424, 424 A.2d 881 (1980).

We have recently summarized the law regarding a constructive trust thusly:

The Supreme Court has said that a constructive trust “is not really a trust at all but rather an equitable remedy.” Buchanan v. Brentwood Federal Savings & Loan Ass’n, 457 Pa. 135, 151, 320 A.2d 117, 126 (1974); See also Kimball v. Barr Township, 249 Pa.Super. 420, 378 A.2d 366 (1977). As such, it “is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” Buchanan v. Brentwood Federal Savings & Loan Ass’n, supra, 457 Pa. at 152, 320 A.2d at 127. A constructive trust may arise “even though the acquisition of property was not wrongful and the defendant’s intention was not malign. Our courts focus not on intention, but on the result of unjust enrichment.” Kimball v. Barr Township, supra, 249 Pa.Super. at 425, 378 A.2d at 368. See also Roman Mosaic and Tile Co., Inc. v. Vollrath, 226 Pa.Super. 215, 218, 313 A.2d 305, 307 (1973); see generally Restatement of Restitution, §§ 160, 194 (1937).
Gee v. Eberle, 279 Pa.Superior Ct. 101, 112, 420 A.2d 1050, 1056 (1980).

Additionally, it should be noted that a constructive trust for realty can be based upon oral evidence because statutory law specifically exempts trusts arising by “implication or construction of law” from the Statute of Frauds. The Act of 1856, April 22, P.L. 532, § 4, 33 P.S. § 2 (1967); Truver v. Kennedy, 425 Pa. 294, 229 A.2d 468 (1967); Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966).

One respected treatise on the law of trusts has discussed the type of factual scenerio now before this Court and offered these comments:

If the theory of constructive trusts arising out of violation of confidential relations is that the trusted grantee is forbidden to acquire any selfish profit or benefit during his administration, and not hold all such benefits for the grantee, then where A, who is a confidential relation with B, conveys to B an oral trust for C, and B refuses to perform, the property should be returned by B to A and C should have no remedy. This would seem the sound result on principle. However, many cases afford relief to C in the' case supposed, where there has been no competing claim by A. This is doubtless on the theory that the confidential relation between A and B proves that B acquired the land by undue influence or fraud, and that since B by his wrongdoing has obtained from it property intended for C, the wrong is to C just as much as if C had been induced by B to convey land to B through such wrongful conduct.
Bogert, Trusts and Trustees § 496 (2nd ed. rev. 1978) (footnotes omitted).

It is apparent from this review of the law that the resolution of appellant’s complaint is not so free from doubt that it can be decided by summary judgment.

We, therefore, reverse the summary judgment and remand the instant case to the chancellor for a hearing, with a direction that the court should decide if the facts present a proper case for a constructive trust. We also direct that the chancellor consider on the merits appellant’s petition to amend the caption to include the names of the children, since the reversal of the summary judgment would mean that this petition is no longer moot.

Jurisdiction is relinquished.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting:

I agree with the majority that a discussion of constructive trusts is prompted by Appellant’s averment that he executed the deed in accordance with the parties’ separation agreement and in reliance upon Appellee’s oral promise to hold the land for the benefit of the parties’ children. Furthermore, I agree with the majority that once a court of equity assumes jurisdiction, it may fashion whatever relief is appropriate, including “equitable relief not covered by the original prayer.” Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 513, 351 A.2d 207, 213 (1976). Therefore, I conclude, as does the majority, (1) that the present case must be remanded to the chancellor for a hearing to determine whether a constructive trust exists and (2) that the possible existence of a constructive trust presents a genuine issue as to a material fact and thus requires the denial of summary judgment to Appellee.

However, having carefully studied the majority’s incisive opinion and being unable to anticipate the facts which may be adduced before the chancellor to prove or disprove the existence of a constructive trust, I respectfully make the following observations.

“ ‘ “[A] constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” ’” Truver v. Kennedy, 425 Pa. 294, 305, 229 A.2d 468, 474 (1967) (citations omitted); Denny v. Cavalieri, 297 Pa.Super.Ct. 129, 443 A.2d 333 (1982). Section 44(1) of the Restatement (Second) of Trusts (1959) enumerates three theories which support the existence of a constructive trust: “(a) the transfer was procured by fraud, duress, undue influence or mistake, (b) the transferee at the time of the transfer was in a confidential relation to the transferor, or (c) the transfer was made as security for an indebtedness of the transferor.” Moreland v. Metrovich, 249 Pa.Super.Ct. 88, 375 A.2d 772 (1977), allocatur denied.

Thus, on remand I would direct the chancellor to determine whether on the facts adduced at the remand hearing a constructive trust exists under either Section 44(l)(a) or Section 44(l)(b). In making this determination the chancellor cannot restrict his inquiry to whether a constructive trust results in this case from a confidential relation between the parties by presuming that the parties’ former marital status as husband and wife necessarily establishes a confidential relation.

The party asserting a confidential relation “must prove the relationship as a matter of fact.’’ Moreland, 249 Pa.Superior at 95, 375 A.2d at 775 (emphasis added). “[A] close family relationship [established by marriage or blood] ... does not per se justify recognition of a confidential relationship.” Id. Here, the record to date indicates that as an initial step in the dissolution of their marriage the parties entered into a separation agreement pursuant to which Appellant conveyed property to Appellee. Based upon the evidence presented at the remand hearing the chancellor shall then consider whether despite being on the verge of divorce at the time of the property conveyance, Appellant and Appellee were nevertheless operating in a confidential relationship with respect to each other or were, in fact, adversaries dealing with each other at arm’s length. See DePaul v. DePaul, 287 Pa.Super.Ct. 244, 429 A.2d 1192 (1981).

Since the chancellor’s scope of inquiry in this case is not limited by a presumption to a consideration of constructive trusts founded upon confidential relations, the chancellor shall also consider on remand whether the facts evidence a constructive trust based upon fraud or undue influence, i.e., whether Appellee “took unfair advantage of [Appellant] and fraudulently obtained his share of the property by means of ... misrepresentations [or undue influence].” Stauffer v. Stauffer, 465 Pa. 558, 573, 351 A.2d 236, 243-44 (1976); Subsection 44(l)(a) of the Restatement (Second) of Trusts (1959).

Because there remains a clear factual dispute as to the existence of either a confidential relation between the parties or fraud or undue influence, summary judgment must be denied, and the case must be remanded for an evidentiary hearing before the chancellor in light of Subsections 44(l)(a) and 44(l)(b) of the Restatement (Second) of Trusts.

      . Moreland v. Metrovich, 249 Pa.Super.Ct. 88, 375 A.2d 772 (1977), allocatur denied [sister conveyed property to her sister and brother-in-law]; Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976) [husband conveyed property to his wife]; Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966) [mother conveyed property to her sons].

      . “It is clear that a fraudulent intention at the time of a transaction can be inferred from the totality of the circumstances surrounding the transaction, including subsequent conduct....” Stauffer v. Stauffer, 465 Pa. 558, 574, 351 A.2d 236, 244 (1976); Denny v. Cavalieri, 297 Pa.Super. 129, 443 A.2d 333 (1982). Moreover, “there is no requirement that the subsequent conduct that will justify an inference of fraudulent intent be immediate.” Stauffer, 249 Pa.Superior at 575 n. 6, 351 A.2d at 244 n. 6.

      . Both subsection 44(l)(a) of the Restatement (Second) of Trusts (1959) and Section 166 of the Restatement of Restitution (1937) state that a constructive trust is appropriate where a transfer of property has been prompted by fraud, duress or undue influence.


author: WIEAND, Judge:

text:
    457 A.2d 95
    Carol TYLER v. INSURANCE COMPANY OF NORTH AMERICA and Auch Inter-Boro Transit Company. Appeal of INSURANCE COMPANY OF NORTH AMERICA.
    Superior Court of Pennsylvania.
    Argued March 3, 1982.
    Filed Jan. 21, 1983.
    Reargument Denied March 29, 1983.

      James C. Haggerty, Philadelphia, for appellant.
    Harvey Voron, Philadelphia, for Tyler, appellee.
    Jay L. Edelstein, Philadelphia, for Auch, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

When an uninsured passenger is struck by a motorcycle upon disembarking from a bus and before reaching the shoulder, is the insurance carrier for the bus company a proper source of basic loss benefits under Section 204 of the Pennsylvania No-fault Motor Vehicle Insurance Act? The trial court held that it was not a proper source and directed that basic loss benefits be paid by Insurance Company of North America (hereinafter I.N.A.), the designated carrier under the assigned claims plan. I.N.A. appealed. We reverse.

On June 1, 1980, Carol Tyler was a passenger on a bus owned by Auch Inter-Boro Transit Company (hereinafter Auch) which had been chartered to transport a gospel choir from Germantown High School in Philadelphia to the site of a concert in New Jersey. On the return trip, the bus driver was asked by a trip chaperone to stop and discharge several passengers at the intersection of Limekiln Pike and Cheltenham Avenue in Philadelphia. Carol Tyler was one of those passengers. As she stepped from the bus, which had stopped approximately five feet from the shoulder of the road, she was struck by a motorcycle which was passing the bus on the right side.

On the date of the accident, neither Carol Tyler nor any member of her household owned an automobile or had applicable no-fault insurance coverage. Auch’s no-fault insurance carrier denied responsibility for no-fault benefits on grounds that Carol Tyler had been a pedestrian at the time she was struck. I.N.A. was thereafter designated as the servicing insurance company under the assigned claims plan, but it, too, denied responsibility. The instant action followed. The trial court found that Carol Tyler had taken “three or four steps toward the nearest shoulder of the road” and concluded, therefore, that she was not alighting from the bus when struck but was, rather, a pedestrian.

That Carol Tyler was a “victim” entitled under Section 201 of the No-fault statute, 40 P.S. § 1009.201, to basic loss benefits is conceded. Clearly, she sustained injuries arising out of the “maintenance and use of a motor vehicle.” This phrase, by definition, includes “occupying, entering into, or alighting from” a motor vehicle. Pennsylvania No-fault Motor Vehicle Insurance Act of 1974, id. at § 103, 40 P.S. § 1009.103. Not only was Carol Tyler struck by a motorcycle, but at the time of the accident she was alighting from a bus, another motor vehicle. The present controversy concerns only the security applicable to pay the basic loss benefits which Carol Tyler is entitled to recover. Section 204 of the No-fault Act, 40 P.S. § 1009.204, establishes “categories and priorities as between insurers responsible for payment of benefits.” Schimmelbusch v. Royal-Globe Insurance Co., 247 Pa.Super. 28, 31, 371 A.2d 1021, 1023 (1977). This section, which in effect creates a hierarchy among potential sources of security (See: D. Shrager, The Pennsylvania No-fault Motor Vehicle Insurance Act, § 1:15.3, 1979), provides:

(a) Applicable security.—The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.

Pennsylvania No-fault Motor Vehicle Insurance Act of 1974, supra at § 204, 40 P.S. § 1009.204. In determining the applicable source of basic loss benefits under Section 204’s priority system, the pertinence of each subsection must be considered seriatim—that is, the applicability of each preceding subsection must be excluded before the next may be considered. The security provided by the assigned claims plan is applicable only as a last resort.

Instantly, the inapplicability of subsections (1) and (2) has been established beyond peradventure. Carol Tyler, the basic loss benefits applicant was, at the time of the accident, neither an employee in a vehicle provided by her employer nor an insured under any policy of insurance. Accordingly, we consider first the applicability of subsection (3). The applicability of the security established therein is dependent upon the status of Carol Tyler, the claimant. If she was an “occupant of a motor vehicle involved in an accident resulting in injury” the applicable security under subsection (3) was that derived from the bus from which she had stepped when she was struck by the motorcycle.

The term “occupant” is not defined by the No-fault Act. We are guided, therefore, by the’ Statutory Construction Act of 1972, 1 Pa.C.S. § 1501 et seq., and pertinent decisions in which the meaning of the term has been considered. The Statutory Construction Act provides that “[w]ords and phrases shall be construed ... according to their common and approved usage____” Id. at § 1903. See also: Dull v. Employers Mutual Casualty Co., 278 Pa.Super. 569, 571-572, 420 A.2d 688, 689 (1980). The Statutory Construction Act also directs that remedial legislation such as the No-fault Act “shall be liberally construed to effect [its] objects and to promote justice.” Id. at § 1928(c).

In general, it can be said that a person who is alighting from a vehicle is still an occupant thereof. He continues to “occupy” the motor vehicle until he severs all connection with it. That point of severance is reached when he becomes highway oriented as opposed to being vehicle oriented. Until then, the alighting passenger continues to be an occupant of the bus. Until such a person is on his or her own without reference to the bus, the person has not ceased to be a passenger or occupant. See and compare: Allstate Insurance Co. v. Flaumenbaum, 62 Misc.2d 32, 308 N.Y.S.2d 447 (1970) (a passenger who steps out of a taxi cab to pay his fare is still vehicle oriented); Government Employees Insurance Co. v. Keystone Insurance Co., 442 F.Supp. 1130 (E.D.Pa.1977) (a passenger who leaves a vehicle to engage in a fist fight is no longer vehicle oriented).

Applying a vehicle oriented versus highway oriented test to the facts of the instant case, we conclude that at the time of the accident Carol Tyler had not severed her relationship with the bus from which she was alighting. The bus company had a duty, not only to carry her safely, but to afford her an opportunity to alight safely. Homa v. Wilkes-Barre Transit Corp., 394 Pa. 309, 312, 147 A.2d 377, 378 (1959); Coyne v. Pittsburgh Railways Co., 393 Pa. 326, 329-330, 141 A.2d 830, 832-833 (1958); Stevens v. Reading Street Railway Co., 384 Pa. 390, 394-395, 121 A.2d 128, 131 (1956); Lyons et ux. v. Pittsburgh Railways Co., 301 Pa. 499, 501, 152 A. 687, 688 (1930). Where, as here, the bus had stopped five feet from the safety of the shoulder, Carol Tyler continued to be vehicle oriented until she reached the shoulder of the road.

Moreover, under the circumstances of this case, when they are reviewed in light of the definitional section of the No-fault Act and the Pennsylvania decisions, it cannot be questioned that the Auch bus was “a motor vehicle involved in an accident resulting in injury.” Under the provisions of Section 204(a)(4), 40 P.S. § 1009.204(a)(4), the security covering a motor vehicle involved in such an accident is made applicable before that of the designated assigned claims plan carrier. Thus, even if Carol Tyler were to be considered a non-occupant of the bus, the fact that the bus was involved in the accident would require that the security covering the bus be an applicable source of basic loss benefits before the assigned claims carrier could be ordered to respond.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, § 204, 40 P.S. § 1009.204.

      . The initial complaint named Auch Inter-Boro Transit Company as a defendant, but, by stipulation, its no-fault insurance carrier, Transit Casualty Company, was made a party defendant.

      . A motorcycle is a vehicle which must be registered under the Vehicle Code. See: 75 Pa.C.S. §§ 102, 1302. A motorcycle is, therefore, a "motor vehicle" within the meaning of the No-fault Act and is subject to the same insurance coverage requirements as are other vehicles. This is so even though under Section 103 of the Act, 40 P.S. § 1009.103, a motorcycle operator or passenger is not entitled to recover basic loss benefits.

      . It seems equally clear that the motorcycle was "involved” in the accident. However, the record does not disclose whether the motorcycle carried the mandated insurance coverage at the time of the accident; and, in any event, neither the owner of the motorcycle nor its insurance carrier has been made a party to the instant case.


author: PRICE, Judge:

text:
    457 A.2d 98
    COMMONWEALTH of Pennsylvania ex rel. Judith SCANLON, v. George SCANLON. Appeal of Judith SCANLON.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1981.
    Filed Feb. 18, 1983.

      Robert G. Rosen, Lansdale, for appellant.
    Dominick Lockwood, Easton, for appellee.
    Before PRICE , MONTEMURO and VAN der VOORT, JJ.

       Died Jan. 30, 1983. Decision was reached prior to the death of Judge Price.

   PRICE, Judge:

George Scanlon, appellee, filed a petition for modification from a support order entered on October 26, 1979. By the terms of the order, Mr. Scanlon was to pay $150.00 a week for the support of his two children and $25.00 a week to Judith Scanlon, appellant, for her support. On June 10, 1980, the Honorable Richard D. Grifo filed an order removing Mrs. Scanlon from the support order and lowering the amount of support for the children to $113.00 a week. Mrs. Scanlon appeals from the part of the order lowering the amount of support for the children.

The facts of the case are as follows. Mrs. Scanlon filed a Petition for Support against Mr. Scanlon on February 2, 1979 seeking support for herself and the parties’ two minor children. A hearing was held before the Domestic Relations Division of Northampton County on March 7, 1979. At the time of the hearing, Mr. Scanlon was employed as a center manager for United Parcel Service, his employer for the past ten years. His income was certified by his employer at a gross pay of $505.00 per week, with a net of $384.00 per week. No agreement was reached at this hearing and the matter was set to be listed for trial.

Negotiations between the parties continued and the trial date was postponed by agreement. As a result of these negotiations, Mr. Scanlon agreed to pay $175.00 a week, the amount recommended by the support office. This agreement was executed by the parties on September 18, 1979. The parties’ residence was sold the same day and Mrs. Scanlon and the two children moved to Lansdale, Montgomery County where Mrs. Scanlon grew up. On September 19, 1979, Mrs. Scanlon began her employment with McNeil Laboratories. On October 26, 1979 the Court below entered its order in support directly along the lines set forth in the agreement.

Mr. Scanlon testified that he signed the agreement (of September 18) and reviewed it with his attorney. (R. 76a). Specifically, the agreement provided that the sum of $175.00 a week would be paid by Mr. Scanlon until the divorce was completed. After the divorce, the sum would decrease to $150.00 a week as support for the two children. This order also provided that the amount ordered for the children was to remain in full force and effect for three years or until February 2, 1982, “regardless of any change in circumstances of either party.” (R. 44a).

Mr. Scanlon did not make the weekly payments as agreed. In fact, he only made one of the payments until the court issued an order attaching his wages on November 30, 1979. (R. 47a-49a). At the time of the entry of the Order of Attachment, and also at the time of the hearing on June 5, 1980, Mr. Scanlon was in arrears $1750.00.

No appeal was taken from the order of the court of October 26, 1979. However, in March of 1980, Mr. Scanlon filed a petition to reduce support. The basis for this petition was that the order of the court was too great and that Mrs. Scanlon was now working full time.

Pursuant to the Petition for Modification, a conference was held before the Domestic Relations Section on May 7, 1980. Mrs. Scanlon’s income was certified from her employer at $149.00 per week. Mr. Scanlon’s income had increased by $20.00 a week in gross, but for some reason his certified net income was not adjusted appropriately. The support officer made a new recommendation which Mrs. Scanlon rejected.

A hearing was held on June 5, 1980 before the Honorable Richard D. Grifo. After the support officer reported the findings of the support office to the Court, Mrs. Scanlon’s counsel moved that the court refuse to proceed with the Petition to Reduce Support until such time as the arrears had been cleared citing Commonwealth ex rel. Goodwin v. Goodwin, 413 Pa. 551, 198 A.2d 503 (1964). (R. 67a). The lower court refused the motion. (R. 70a). Mrs. Scanlon agreed that she should be removed from the support order and the hearing proceeded as to the issue of child support.

Mr. Scanlon’s direct testimony was very brief. (R. 70a). Basically he stated that he had expenses of $740 a month and that after support was deducted he was only clearing $620, and that he had no other income.

Under cross-examination, it was admitted by Mr. Scanlon that his present abode was with his girlfriend in a home that was mortgaged by his girlfriend and the girlfriend’s aunt. His girlfriend’s income was $270.00 a week net (R. 72a), and her aunt’s income was calculated at a gross of an hourly rate of $5.00 per hour and that she worked a forty hour week with some occasional overtime. Mr. Scanlon testified that he contributed $230.00 a month for living expenses of the household.

The employer’s certification of income showed stock received by Mr. Scanlon on March 31, 1980 of $3,112.00 gross for a net receipt of $2,378.00. (R. 54a). The value of the stock currently held in his name was approximately $5,300.00. (R. 92a).

Mr. Scanlon claimed that his expenses amounted to $925.00 per month. However on cross-examination he testified that of these claimed expenses he had never actually paid the amount listed for food and utilities, amounting to $350.00 a month (R. 86a). Mr. Scanlon made it clear that in the future he wished to contribute more money to his new household. (R. 85a-86a).

Mrs. Scanlon testified that Mr. Scanlon knew of her impending employment before he signed the agreement. (R. 93a). She began work the day after the house was sold as both parties had anticipated according to her uncontradicted testimony.

The lower court based its modification of the order on the fact that Mrs. Scanlon had begun to work full time. We cannot agree with the lower court’s conclusion that Mr. Scanlon proved a change in circumstances such as to warrant a reduction of the order.

We recognize that the role of an appellate court in support proceedings is limited; absent a clear abuse of discretion, we will defer to the order of the lower court. Commonwealth ex rel. Vona v. Stickley, 287 Pa.Superior Ct. 296, 430 A.2d 293 (1981). “A finding of abuse is not lightly made but only upon a showing of clear and convincing evidence.” Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Superior Ct. 359, 365, 421 A.2d 762, 765 (1980).

An abuse of discretion does not necessarily imply a willful abuse, but if, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error. Prescott v. Prescott, 284 Pa.Superior Ct. 430, 435, 426 A.2d 123, 126 (1981).

Commonwealth ex rel. Kistler v. Kistler, 291 Pa.Superior Ct. 51, 435 A.2d 214 (1981) clarified Commonwealth ex rel. Kistler v. Kistler, 303 Pa.Superior Ct. 45, 449 A.2d 69 (1982). (emphasis omitted).

When reviewing a petition for modification of a support order, the lower court must consider all pertinent facts and the court’s decision must be based upon facts appearing in the record which indicate that the movant did or did not meet his or her burden of proof as to changed circumstances. Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa.Superior Ct. 127, 130, 392 A.2d 717, 718 (1978). Appellant has the burden of proving by competent evidence that a material and substantial change of circumstances had occurred since the entry of the original support order. Commonwealth ex rel. Vona v. Stickley, supra; Commonwealth ex rel. Caswell v. Caswell, supra; Bell v. Bell, 228 Pa.Superior Ct. 280, 323 A.2d 267 (1974). A petition to modify an order of support is not a substitute for an appeal and cannot bring up for review matters adjudicated in making the prior order. Dunbar v. Dunbar, 291 Pa.Superior Ct. 224, 435 A.2d 879 (1981). Thus, although a court is free to disregard an agreement between the parties for support of the children, when the agreement adequately provides for the needs of the children and has been recently entered into under court approval, unless a change of circumstances can be shown, there is no justification for ignoring the agreement.

Of course, in any child support proceeding, the main concern is for the welfare of the child. Each parent has a duty which is “well nigh absolute” to support his or her minor children and each may have to make sacrifices in order to meet this burden.

We are unable to conclude that Mr. Scanlon has carried his burden of proof. His one paragraph of testimony along with that later elicited through cross-examination and redirect indicates no material or substantial change in his financial circumstances. Therefore his argument that the order was too great cannot be given any merit when his own proof established only that his income had increased slightly.

It is also uncontradicted but that Mr. Scanlon was aware that Mrs. Scanlon was to begin employment. Mrs. Scanlon testified as to this fact. (R. 93a-94a). The record also indicates that Mrs. Scanlon’s employment began before the original order was finally entered.

Our review of the record leads us to conclude that there was no change in circumstances such as to warrant a modification. Although the reduction of a support order is largely within the trial court’s discretion, there are no facts on the record to support the trial court’s finding of a change in circumstances. Therefore, we reverse the ruling of the lower court and hold that Mr. Scanlon’s petition to reduce be denied.

      . Mr. Scanlon was to appear before the court and enter into the agreed Order but he failed to do so. However, the order was entered by stipulation of counsel.

      . Mr. Scanlon's direct testimony consisted of the following:
      GEORGE F. SCANLON, sworn.
      DIRECT EXAMINATION BY [APPELLEE’S ATTORNEY]:
      Q. Will you just tell the Court what your financial problem is.

        A. O.K. Right now, here is a check stub, my most recent one. This is—let me see—this is the support on there. That’s what I’m bringing home. That’s my gross. I have $145 a week take-home. My expenses, your Honor, are, you know, at a minimum of $740 and I’m making $620. That’s $230 for rent and that’s all I have. I have no other income. That’s it in a nutshell.
      THE COURT: All right. Do you wish to cross examine, Mr. Rosen?
      [APPELLANT’S ATTORNEY]: Yes.
      These numbers do not coincide with the numbers on Mr. Scanlon’s expense sheet which listed his expenses at $925.00 a month. The trial judge found that Mr. Scanlon was bringing home $384.00 a week and it is this amount we will use in our computations. The only pay stub on record is not clear as to the amount or the length of time covered.

      . This number is taken from the expense sheet on file. (R. 112a). This number does not correspond with his brief testimony. However, as the numbers in his testimony do not match any of the numbers in the written records, we will disregard the oral figures.

      . In this case, it is questionable whether Mr. Scanlon’s petition should have been granted due to his failure to comply with the original support order. This court has held that under the rule of Commonwealth ex rel. Goodwin v. Goodwin, 413 Pa. 551, 198 A.2d 503 (1964), a party who flagrantly disobeys a support order may be denied a petition to reduce until such time as the arrearages are paid. See Regli v. Regli, 288 Pa.Superior Ct. 534, 432 A.2d 1000 (1981); Commonwealth ex rel. Zercher v. Bankert, 266 Pa.Superior Ct. 595, 405 A.2d 1266 (1979); Commonwealth ex rel. Colligan v. Kass, 225 Pa.Superior Ct. 299, 303 A.2d 225 (1973); Commonwealth ex rel. Beemer v. Beemer, 200 Pa.Superior Ct. 103, 188 A.2d 475 (1962). However, the mere existence of arrearages does not preclude a hearing on a petition to reduce. See Banks v. Banks, 275 Pa.Superior Ct. 439, 418 A.2d 1370 (1980); Commonwealth ex rel. Fusco v. Fusco, 247 Pa.Superior Ct. 413, 372 A.2d 893 (1977); Commonwealth ex rel. Rickert v. Rickert, 223 Pa.Superior Ct. 1, 296 A.2d 841 (1972). As long as there has been a good faith effort to comply with the order, the petition may be considered. See Fusco, supra. In this particular case, there is no evidence in the record concerning any effort of Mr. Scanlon to make the payments. Although the trial court considered the motion at the hearing, no mention of this matter was made in the opinion below. We are hesitant to reverse the trial judge on this issue without any evidence. Our disposition of the major issue in this case, i.e., should the petition have been granted, renders any decision as to this issue unnecessary. If we had reached a different result on the second issue, a remand would have been necessary due to the silence of the record on this particular issue except through Mrs. Scanlon’s argument.

      . See also Costello v. Le Noir, 462 Pa. 36, 337 A.2d 866 (1975); Commonwealth ex rel. Kistler v. Kistler, 291 Pa.Superior Ct. 51, 435 A.2d 214 (1981); Commonwealth ex rel. Magaziner v. Magaziner, 276 Pa.Superior Ct. 169, 419 A.2d 149 (1980); Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Superior Ct. 103, 380 A.2d 398 (1977).

      . See also Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Superior Ct. 572, 574, 407 A.2d 389, 390 (1979); Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Superior Ct. 390, 358 A.2d 102 (1976).

      . See also, Commonwealth ex rel. Hall v. Hall, 243 Pa.Superior Ct. 162, 163, 364 A.2d 500, 501 (1976); Bell v. Bell, 228 Pa.Superior Ct. 280, 283, 323 A.2d 267, 269 (1974); Commonwealth ex rel. Crane v. Rosenberger, 212 Pa.Superior Ct. 144, 147, 239 A.2d 810, 812 (1968).

      . See also Commonwealth ex rel. Delbaugh v. Delbaugh, supra; Commonwealth ex rel. Levy v. Levy, 240 Pa.Superior Ct. 168, 361 A.2d 781 (1976).

      . Commonwealth ex rel. Balph v. Balph, 210 Pa.Superior Ct. 244, 232 A.2d 76 (1967); Commonwealth ex rel. Snively v. Snively, 206 Pa.Superior Ct. 278, 212 A.2d 905 (1965).

      . See Kramer v. Kelly, 265 Pa.Superior Ct. 58, 401 A.2d 799 (1979). See also Dunbar v. Dunbar, 291 Pa.Superior Ct. 224, 435 A.2d 879 (1981); Commonwealth ex rel. Mickey v. Mickey, 220 Pa.Superior Ct. 39, 280 A.2d 417 (1971); Commonwealth ex rel. Snively v. Snively, 206 Pa.Superior Ct. 278, 212 A.2d 905 (1965).

      . We have little sympathy for Mr. Scanlon and his wishes to contribute more to his new household. His own'children should not suffer due to his new choice of lifestyle.

      . See Dunbar v. Dunbar, supra, in which we reversed on similar grounds. See also, Commonwealth ex rel. Kistler v. Kistler, supra; Brake v. Brake, 271 Pa.Superior Ct. 314, 413 A.2d 422 (1979); Commonwealth ex rel. Lyle v. Lyle, 248 Pa.Superior Ct. 458, 375 A.2d 187 (1977); Commonwealth ex rel. Levy v. Levy, 240 Pa.Superior Ct. 168, 361 A.2d 781 (1976); Commonwealth ex rel. Hall v. Hall, 243 Pa.Superior Ct. 162, 364 A.2d 500 (1976); Bell v. Bell, 228 Pa.Superior Ct. 280, 323 A.2d 267 (1974).

      . Neither party contested the part of the order concerning the $10.00 a week in arrearages to be paid; therefore, that part of the order may stand.