author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    626 A.2d 169
    Michael E. REIF, Appellant, v. Elaine M. REIF, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 5, 1993.
    Filed June 1, 1993.

      John A. Boccabella, Reading, for appellant.
    William R. Bernhart, Reading, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is Michael Reif s [Father’s] appeal from the Honorable Arthur E. Grim’s order directing Father to pay $82.00 per week plus an amount to be determined by the Domestic Relations Section of the Berks County Court of Common Pleas for the college expenses incurred by his daughter, Jennifer [“Daughter”]. The order was the result of the trial court’s determination that Daughter was not estranged from Father. We agree with the trial court’s conclusion that Father and Daughter are not “estranged” so as to relieve Father of his obligation to pay post-high school educational support and affirm its order.

Father and Elaine Reif [“Mother”] were married with two children, Daughter and Michael. Although the couple separated in 1981 and reconciled for a brief period in 1987, the couple finally split in 1988. At the time, Daughter was “turning seventeen.” N.T. 5/24/92 p. 5. Michael was several years older. Although Daughter lived with Mother while her parents were separated, Father testified that he maintained a steady relationship with her and visited her regularly. Id. at 14. Difficulty arose between Father and Daughter sometime in 1989, when Father attempted to explain to Daughter that he and Mother were going to divorce. Daughter testified that Father “made it pretty clear that he had a new family now and he really didn’t want any part of his own family.” Id. at 8. After several conciliatory phone calls between Father and Daughter in 1989, Father made no attempts to contact Daughter. Daughter graduated from high school in 1991 and entered East Stroudsburg University that fall. Father was not invited to Daughter’s graduation and did not participate in Daughter’s choice to continue her education. Father testified that he did not want to “harass” Daughter by making repeated attempts to reconcile when he knew that she would not accept his efforts.

Meanwhile, Father and Mother consented to a divorce and on March 7, 1991, the couple entered into a post-nuptial agreement [“the agreement”] which settled all property matters and claims against one another. Most pertinently, the parties contemplated Father’s potential obligation to pay for Daughter’s college expenses:

11. SUPPORT
[Father] will contribute to the post high-school education of [Daughter] in accordance with his obligation under the law of Pennsylvania and [Mother] will sign a [sic] necessary financial documents.

The agreement, ¶ 11.

As we noted above, Daughter enrolled as a full-time student at East Stroudsburg University. She attended the university in the fall of 1991 and spring of 1992, incurring $5,676.00 in tuition and room and board costs and approximately $642 for books and related expenses. All of these college expenses were incurred by Mother. On May 21, 1992, Mother filed a petition pursuant to 23 Pa.S.A. §§ 401 and 401.1, seeking enforcement of paragraph 11 of the agreement and reimbursement of Daughter’s college expenses. Father answered the petition claiming that he was relieved of any obligation under the contract because he was estranged from his daughter. On June 24, 1992, the trial court heard testimony, related above, regarding Father and Daughter’s relationship. On August 24, 1991, the trial court concluded that Father could not avail himself of the estrangement defense and was not relieved of his contractual obligation to pay Daughter’s educational support. The trial court also entered the following order:

AND NOW, August 24, 1992, after consideration of the record, hearing and argument, it is hereby ordered as follows:
1. The Domestic Relations Section is directed to determine the additional amount of support in excess of $82.00 per week which respondent/father owes his daughter, Jennifer L. Reif, for college related expenses at the conference on August 25, 1992, scheduled in the case of Jennifer Reif vs. Michael E. Reif docketed to 92-0226-00.

Trial court order 8/24/92. It is from this order that Father appeals.

Father raises two substantive arguments: (1) he claims that the trial court erred in finding that he and his daughter were not estranged; and (2) that since the recent Supreme Court case of Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), holds that Pennsylvania law does not recognize a parental obligation for post-high school support, paragraph 11 of his agreement, incorporating Pennsylvania law, should be interpreted to relieve his obligation to provide Daughter with educational support while she attends college. We disagree with both of these arguments.

We note initially that we are troubled with several aspects of the trial court’s order of 8/24/92. First, although the order specifies that Father is responsible for paying $82.00 per week plus an amount to be determined by the Domestic Relations Board, the record contains no indication of how the trial court arrived at this figure. Second, the trial court refers to a hearing in front of the Domestic Relations Board on August 25, 1992, regarding a separate action involving (presumably) the identical issues as those involved here. The record, however, contains no further indication regarding the nature (or even the existence) of this separate action, or whether the conference took place. Third, the order leaves father’s obligation beyond $82.00 per week unresolved pending the outcome of the Domestic Relations Board Conference. In this respect, the order appears to be interlocutory, since it lacks any finality regarding the amount of Father’s obligation and the effect that Father’s estrangement claim has on the amount of the obligation.

Since this case involves child support, however, we must resolve these peculiarities in such a way that will promote just and expedient resolution. Pennsylvania law consistently has held that while it abhors the “piecemeal litigation” resulting from interlocutory appeals of orders granting special relief in divorce cases, see Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), the “final order” requirement for appealability deserves more flexibility in cases involving child support:

[WJhile the adults can generally look to other sources of revenue to maintain themselves during litigation, the child is totally dependent on its parents for support; its needs are immediate and continuing, and in particular, any deficiency is likely to be recovered. We believe the child support Order requires review to protect the interests of the child, to avoid hardship, and to insure uninterrupted maintenance by its parents.

Ritter v. Ritter, 359 Pa.Super. 12, 17, 518 A.2d 319, 322 (1986).

In Ritter, this Court distinguished between orders of spousal and child support in the same trial court order, holding that while an order setting spousal support is interlocutory, an order setting child support is final and appealable. Id. See, Griffin v. Griffin, 384 Pa.Super. 210, 558 A.2d 86 (1989) (Although preliminary orders in a divorce action are interlocutory, particular order implicated child support, and was therefore final and appealable). The Griffin court added that “[i]n ascertaining whether an order is final and immediately appeal-able, we must consider not only the order’s technical effect, but also its practical ramifications.” Id. at 219, 558 A.2d at 91 (citing Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975)).

Although this case involves Father’s duty to provide post-high school educational support, which has, at best, been described as a “qualified duty,” Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989), alloc. denied, 524 Pa. 598, 568 A.2d 1248 (1989), expeditious consideration of the trial court order is warranted in light of Daughter’s immediate concerns. The trial court order concludes that father assumed a contractual obligation to provide support, a conclusion which Father disputes. If we were to hold that the order was interlocutory because the amount of the obligation is undetermined, a remand and further hearings in front of the Domestic Relations Board might well be superfluous if we agree with Father. On the other hand, if we disagree with Father, and hold that he did assume an obligation, Father, Daughter, and Mother will know, beyond dispute, where they should look for financial assistance and further proceedings will have more meaning than they would if Father’s duty is left unresolved. Again, it is important to note that Father is not contending that he is unable to pay an amount determined by the court, but only disputes whether he is obligated in the first place. Thus, insofar as the order conclusively determines that Father is under a contractual obligation to contribute toward Daughter’s education, the order is final and prompt review of Father’s claims is appropriate.

We will address Father’s second claim first, because it concerns the very heart of a parent’s duty, under the law of this Commonwealth, to provide post-education support for his or her children. Paragraph 11 of the post-nuptial agreement requires Father to provide post-high school support “in accordance with his obligation under the laws of Pennsylvania.” Thus, Father contends that since the recent Supreme Court case of Blue v. Blue, supra, proclaims that there is no parental duty to provide support beyond high school, Id., 532 Pa. at 529, 616 A.2d at 633, he is accordingly under no contractual obligation to provide Daughter with support. We disagree.

It is well established that a party may contractually assume a duty to support his or her child’s post-secondary education. Emrick v. Emrick, 445 Pa. 428, 284 A.2d 682 (1971). This is so, despite Blue’s holding that there is no legal duty to provide post-secondary educational support. Trunkwalter v. Trunkwalter, 421 Pa.Super. 308, 617 A.2d 1308 (1992). Since Father’s support obligation in this case is defined in the post-nuptial agreement, his duty is contractual, not legal. Schmucker v. Hanna, 377 Pa.Super. 301, 547 A.2d 379 (1988), alloc. denied, 522 Pa. 577, 559 A.2d 38 (1989). We must apply the law of contracts to interpret father’s duty and, of course, the intent of the parties will control. Id. at 303-306, 547 A.2d at 380-381.

We do not dispute Father’s contention that the agreement incorporates Pennsylvania law to define Father’s support obligation. Father’s interpretation of Blue’s impact on Pennsylvania support law, however, overlooks a rather important paragraph in the agreement:

16. LAW OF PENNSYLVANIA APPLICABLE
This agreement shall be construed in accordance with the Laws of the Commonwealth of Pennsylvania which are in effect as of the date of the the execution of this Agreement.

Agreement, ¶ 16. This provision, read together with paragraph 11, unambiguously demonstrates the parties’ intention that Father’s duty to provide support for Daughter’s post-secondary education would be defined by Pennsylvania law as it existed on March 9, 1991, the day Father and Mother executed the post-nuptial agreement. On that date, the state of Pennsylvania law regarding a parent’s duty to provide support after his children have graduated from high school is best found in Milne v. Milne, supra.

In Milne, this Court, en banc, reworked a previous body of caselaw which imposed a parental duty of post-high school support when the child demonstrated an ability and desire to pursue a college education and the parents were able to contribute to the education without undue hardship. Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963). The Milne court found that the Ulmer two-pronged inquiry was inflexible, and expanded the relevant inquiry to include an evaluation of the relationship between the non-custodial parent and the child seeking support. The court concluded that where the child has willfully estranged him or herself from the non-custodial parent, that parent is under no duty to provide post-secondary educational support. Id., 383 Pa.Super. at 199-200, 556 A.2d at 866. Thus, Milne requires a court to look at the familial circumstances, including the child’s ability and desire to attend college, the parents’ ability to contribute to the education without undue hardship, and whether the child has willfully estranged himself from the non-custodial parent to determine whether the parent has a duty to contribute to the college education of his or her child. Id.; Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989). Since Milne was the law at the time Father assumed his obligation to provide support under the agreement, it provides the standard by which Father’s duty should be determined.

Conversely, Blue was decided nearly a year after Father and Mother entered into their post-nuptial agreement. Applying Blue would therefore frustrate their intent. Paragraph 16 incorporates Pennsylvania law as it existed at the time of the agreement’s execution. This embodies the more general notion that a contract incorporates the laws that exist at the time the contract is made. First National Bank of Pennsylvania v. Flanagan, 515 Pa. 263, 528 A.2d 134 (1987); DePaul v. Kauffmann, 441 Pa. 386, 272 A.2d 500 (1971); see also 17 C.J.S. Contracts § 330 (“a contract will be construed according to the law of the state, as interpreted by its courts, at the time the contract was made, and not in accordance with subsequent decisions to the contrary”). The notion behind this general principle is that a change in the law should not change the substantive obligations of parties under contract. Flanagan, supra, 515 Pa. at 268-270, 528 A.2d at 137. Blue was not a part of Pennsylvania jurisprudence at the time the parties entered into their agreement contemplating Daughter’s support, and we will not apply it to this case.

Father also argues that the trial court erred in finding the estrangement defense inapplicable to relieve his obligation. He claims that the lower court incorrectly interpreted Bedford v. Bedford, supra. His argument rests on the assertion that the trial judge’s “timetable” approach to whether Father made a good-faith effort to maintain a relationship with daughter was incorrect. In addition, Father argues that the trial court’s inquiry into the Daughter’s motivation for not speaking with her parent, rather than the simple fact that Daughter did not speak with Father, was erroneous. We disagree.

Estrangement can operate to relieve or lessen a parent’s duty to pay support toward a college education when that parent has made a good-faith and concerted effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent’s outstretched hand. Bedford v. Bedford, 386 Pa.Super. 349, 357, 563 A.2d 102, 106 (1989). Whether estrangement has been proven is a factual determination that must be made by the trial court, and will not be disturbed absent an abuse of discretion. O’Connell v. O’Connell, 409 Pa.Super. 25, 597 A.2d 643 (1991). In Bedford, supra, the college-age son and his father had not spoken with each other since the son was eleven years old. Father stopped visiting his son after he concluded that his son’s negative attitude made visits “intolerable.” Id., 386 Pa.Super. at 357-358, 563 A.2d at 106. We found that both parties bore partial blame for the estrangement between them; the father for initially leaving the son, and the son for allowing the estrangement to continue. We therefore held that

because [son] cannot be faulted for unilaterally initiating the estrangement, this does not provide a basis for denying [son] support from his father for his college education. To conclude otherwise would be to reward father for neglecting his son. This we firmly refuse to do.

Id.

Likewise, in this case, the record indicates that both parties are not blameless for the estrangement. Father made relatively few attempts over a two-year period — he called Daughter several times and sent a Christmas gift — to rekindle a relationship with his daughter. Although Daughter sent the gifts back and never made an effort to contact Father, Father made no further effort to contact Daughter. The trial court evaluated Daughter’s motivation for not contacting father, describing it as hurt and confusion. This inquiry, contrary to what Father argues, is absolutely vital to determine if the child unilaterally severed the relationship. The trial court evaluated Daughter’s testimony and concluded, as did the court in Bedford, that Daughter was not solely responsible for initiating the estrangement, and decided that Father could not be completely relieved of his obligation to contribute to Daughter’s education. This is not an abuse of discretion.

The order is affirmed.

Dissenting statement by WIEAND, J.

WIEAND, Judge,

dissenting:

Although I must agree with my colleagues that the order entered by the trial court is unusual and in some respects unsupportable by the record, it seems clear to me that the order does not constitute a final determination of the dispute between the parties. For this reason I would quash the instant appeal. If the appeal is not quashed, appellant will most certainly have the right to a second review after the amount of the order has been determined finally. To permit piecemeal appeals does not serve the efficient use of judicial resources and, therefore, should not be allowed. See: Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985).

      . The only testimony regarding Michael’s age was given by Daughter, who claimed she thought Michael was twenty-six years old at the time of the hearing on the estrangement issue, in June 1992.

      . Mother also sought reimbursement for Daughter’s medical expenses which Father agreed to pay under the agreement. The. trial court granted the petition in this regard, and Father does not challenge this aspect of the trial court’s order. Thus, all further discussion regarding the events below will be limited to the educational support issue.

      . Compounding our lack of guidance in this matter is the appellee's decision to not file a brief. Although appellees cannot be punished in any way for not filing briefs in cases which are submitted to this Court without argument, see Pa.R.A.P. Rule 2188, Pa.C.S.A. (appellee may be excluded from oral argument if he or she does not file a brief), this omission certainly does not help a party's cause in cases that are either close or potentially complicated.

      . Milne recognized that the Ulmer two-prong test was already being modified to allow courts flexibility to consider other equitable factors in deciding to impose a legal duty of post-secondary support. Such factors included the college age child’s personal earnings and the reasonableness of the college education viewed in light of familial standards of living. Milne, supra, 383 Pa.Super. at 183-185, 556 A.2d at 858 (and collected cases). For our purposes, it is sufficient to identify Milne’s contribution to the existing law as providing the “estrangement defense.”

      . Mother and Daughter argued below that Father was not entitled to claim estrangement as relieving or lessening his duty to contribute to Daughter’s college education. They relied on Cook v. Covey, 415 Pa.Super. 353, 609 A.2d 560 (1992), which held that estrangement is only a consideration in cases of judicially imposed support obligations, not cases where a parent assumed the obligation contractually. We agree with the trial court that unlike the contract in Cook, where the husband "agreed to pay college expenses ... at a college agreed upon by husband,” Father’s contractual support obligation in this case was defined by the law of Pennsylvania at the time the contract was executed. This necessarily includes an inquiry into Father’s claim that the parties were estranged. Milne, supra.

      . Father also contends that the court erred by considering court-ordered reconciliation attempts between Father and Daughter in concluding that the parties were not estranged. Since we have already concluded that Father's obligation is not relieved because he is partly responsible for the "estrangement” from its inception, any reconciliatoty conduct is of no moment. In any event, the counselling sessions were not mandatory, and we find it laudable that the court made conciliatory avenues available to Father and Daughter.

      . Although it has not been made an issue in this case, in my judgment it is improper for a court to direct the Domestic Relations Officer to determine the amount of a support order where adverse proceedings have been heard by the court.


source: Caselaw Access Project

author: HESTER, Judge.

license: Public Domain

text:
    626 A.2d 176
    COMMONWEALTH of Pennsylvania v. Linda M. BUCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 9, 1993.
    Filed May 28, 1993.

      Jay Stillman, Asst. Public Defender, Williamsport, for appellant.
    Robert W. Ferrell, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   HESTER, Judge.

Linda M. Buck appeals from the judgment of sentence of fines imposed after she was found guilty of driving with a suspended license and without registration or insurance. As we conclude that appellant improperly was convicted based solely on a statement that she gave to police, we are constrained to vacate the judgment of sentence.

The evidence at appellant’s statutory appeal proceeding was as follows. Pennsylvania State Police Trooper Thomas A. Brelsford, the sole witness, testified as follows. On Friday October 25, 1991, he was called to investigate an incident in the Elimsport area of Lycoming County. He interviewed appellant as a possible witness. He asked her how she arrived at the area. When Officer Brelsford began to testify about appellant’s response to this question, defense counsel objected based upon the application of the corpus delicti rule. The Commonwealth informed the trial court that the corpus delicti rule was not applicable to summary offenses. The objection was overruled and Officer Brelsford was permitted to state that “[appellant] advised that she had driven to the general area. I asked her what time and she said between 9:00 and 9:30, the previous day____ She said she parked her car in Elimsport off Route 44, in a church in Elimsport.” Notes of Testimony, 5/4/92, at 6. At the time, appellant was not standing near her car. She had no keys in her hand, and no one testified that they observed her driving the car.

Trooper Brelsford subsequently was informed by another trooper that appellant’s driving privileges had been suspended. He performed a computer check on appellant’s name, and the check indicated that her license had been suspended. The officer then went to see if the car was parked where appellant had described. It was there, and Officer Brelsford discovered that the vehicle was not registered or insured. Citations were issued, appellant was found guilty by a magistrate of the summary offenses described above, and she appealed. This appeal followed the common pleas court’s decision, following the de novo hearing, that appellant was guilty of the charges.

Appellant contends that she was convicted improperly solely on the basis of her own statements, and the Commonwealth failed to establish the corpus delicti of the crimes at issue prior to introduction of the statements. We agree and vacate the judgment of sentence.

In this case, the trial court, relying upon Commonwealth v. Palmer, 265 Pa.Super. 462, 402 A.2d 530 (1979), held that the corpus delicti rule does not apply to summary convictions. This is erroneous. In Commonwealth v. Forman, 404 Pa.Super. 376, 590 A.2d 1282 (1991), we held that the corpus delicti rule, which prohibits criminal convictions based solely upon a defendant’s confession, applies to proceedings involving summary offenses.

The corpus delicti rule provides that “a criminal conviction may not stand merely on the out of court confession of one accused, and thus a case may not go to the fact finder where independent evidence does not suggest that a crime has occurred.” Commonwealth v. Edwards, 521 Pa. 134, 144, 555 A.2d 818, 823 (1989). The rule is grounded in the reluctance of our system to convict a person of a crime solely on the basis of his own statements. The rule does not require that the existence of a crime be proved beyond a reasonable doubt prior to admission of the confession but is satisfied where independent evidence, beyond the statement of the accused, suggests that a crime has occurred. Id.

In the present case, there was no independent evidence presented to suggest that the crimes were committed. Appellant was not standing close to her car; it was parked in a different location. No witness was presented who observed appellant driving. She was convicted solely on the basis of her statement, made during the course of a criminal investigation of a different incident, that she drove to the area the day prior to the incident.

The Commonwealth suggests that appellant’s statement is not subject to the corpus delicti rule under the analysis contained in Commonwealth v. Palmer, supra, because the statement was not an admission to each element of the crimes at issue. In Palmer we stated that an admission by a defendant that he drove a car was not a confession and was not subject to the corpus delicti rule because it was not an admission to the crime of driving while under the influence in that the defendant did not admit to driving and drinking. In the present case, like the defendant in Palmer, appellant admitted that she was driving but did not admit that her car was uninsured or unregistered. Thus, it was argued the holding in Palmer applies.

While Palmer does hold that a statement which does not constitute an admission to each element of the crime is not subject to the corpus delicti rule, it is clear that Palmer is incorrect under controlling Pennsylvania Supreme Court precedent decided after Palmer. In Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982), our Supreme Court clearly held that the corpus delicti rule applies to any “statement” made by the accused. Furthermore, the rule routinely is applied to any statement which is inculpatory in nature, and the statement need not be an admission to each element of the charged crime to be subject to it. E.g., Commonwealth v. Hogans, 400 Pa.Super. 606, 584 A.2d 347 (1990) (where defendant admitted that he drove a car but not that he was intoxicated, we analyzed whether the corpus delicti rule had been satisfied prior to admission of the statement).

Furthermore, Palmer clearly is distinguishable because in that case, the corpus delicti was established through independent evidence, and the defendant was not convicted solely on the basis of his own statement. In Palmer, police were called to an accident scene where they discovered a vehicle hanging off the roadway over an embankment. Two men were at the scene, and the defendant was observed staggering, fumbling for items, and with a strong odor of alcohol on his breath. He admitted to driving the car. Clearly, a corpus delicti was present in that case — there was independent evidence to suggest that the crime of driving while under the influence was committed based upon the unexplained single-car accident and the presence of defendant, who appeared intoxicated, next to the car.

In the present case, appellant was convicted of these crimes solely on the basis of her own vague statement. No one saw her driving the vehicle. There was not a shred of independent - evidence to demonstrate that appellant committed a crime other than her own statement, voluntarily offered to aid police in another criminal investigation, that she drove to the' area the previous day. Her convictions cannot' stand.

Judgment of sentence reversed and case remanded with directions to arrest judgment.


author: TAMILIA, Judge:

text:
    626 A.2d 178
    COMMONWEALTH of Pennsylvania v. John SMITH and Anthony Tolbert, Appellants.
    Superior Court of Pennsylvania.
    Argued April 1, 1993.
    Filed June 11, 1993.

      John R. Sobota, Wilkes-Barre, for appellants.
    Scott Gartley, Asst. Dist. Atty., Wilkes-Barre, for Com., appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

Appellants, John Smith and Anthony Tolbert, take this appeal from the Order of May 13, 1992 denying their post-verdict motion to dismiss the charge of third degree murder on double jeopardy and collateral estoppel grounds. Appellants were charged with criminal homicide, kidnapping and conspiracy, as a result of the beating death of Hector Maldanado. After three days of deliberations, the jury acquitted appellants of first degree murder, second decree murder, voluntary manslaughter, kidnapping and conspiracy. The jury deadlocked on the charge of third degree murder.

On appeal, appellants first argue retrial on a charge of third degree murder is barred by the double jeopardy clauses of the United States and Pennsylvania Constitutions. In this regard, appellants claim the Commonwealth’s prosecution is barred by the United States Supreme Court’s recent decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Recently, this Court has analyzed the double jeopardy test set forth in Grady and has stated:

To determine whether a prosecution is barred by double jeopardy, the first prong of the inquiry requires the application of the Blockburger [v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] test. Blockburger compares the statutory elements of the charged offenses to determine whether they are either identical or one is a lesser included offense of the other. If each statutory provision requires proof of an additional fact which the other does not, they are not the “same offense” under Blockburger and as such the prosecution survives the initial prong of the inquiry.
The second prong of the inquiry was established in Grady. Even if the offenses would pass muster under the Blockburger test, the Grady Court held that an additional requirement must be met to overcome a double jeopardy challenge. We must determine “[whether] the government, to establish an essential element of an offense charged in [a subsequent] prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, [495] U.S. at [520], 110 S.Ct. at 2093, 109 L.Ed.2d at 564 (emphasis added) [in Yingling].
Commonwealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169, 171 (1991) (footnote omitted).

Commonwealth v. Mitchell, 415 Pa.Super. 227, 229, 608 A.2d 1093, 1094 (1992). “This is not an ‘actual evidence’ or ‘same evidence’ test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.” Grady, supra, 495 U.S. 508 at 522, 110 S.Ct. at 2084, 109 L.Ed.2d at 564.

Applying the first prong of our double jeopardy analysis, the Blockburger test, we must determine the relationship of the charge of third degree murder to the other various degrees of murder. In Commonwealth v. Kemmerer, 526 Pa. 160, 584 A.2d 940 (1991), our Supreme Court recently found that “while homicide offenses may be lesser included offenses, their elements differ such that they cannot be deemed necessarily included.” Id. at 168, 584 A.2d at 944 (emphasis in original).

As previously stated, the central element of all homicides is the killing of another human being. See 18 Pa.C.S. § 2501. Beyond that similarity, the degrees of homicide differ from one another and from the types of manslaughter in quality, not just in degree, so that they cannot be said to be necessarily included in one another. The offenses of second-degree murder, third-degree murder, and voluntary manslaughter each require proof of a fact which need not be proven for the charges of first-degree murder or involuntary manslaughter, and vice versa. First degree murder, 18 Pa.C.S. § 2502(a), requires a finding of intent not necessary to establish second-degree murder, 18 Pa.C.S. § 2502(b), which is committed in the perpetration of a felony. Third degree murder includes “all other kinds of murder” and by its very definition excludes first and second-degree murder and both manslaughters, because it, like all murders, requires a finding of malice aforethought. Voluntary manslaughter, 18 Pa.C.S. 2503, requires proof of a sudden and intense passion resulting from serious provocation, or unreasonable belief that the killing is justified. Involuntary manslaughter, 18 Pa.C.S. § 2504, occurs when death results from the doing of a lawful or unlawful act in a reckless or grossly negligent manner. This recklessness or grossly negligent conduct distinguishes involuntary manslaughter from all other classifications of homicide because it negates the malice required for all the degrees of murder. None of these offenses must be proven to establish any of the others; in fact, each offense excludes any of the others from its definition.

Id. at 168-169, 584 A.2d at 944-945 (citations omitted).

In this case, then, it is clear the Commonwealth has satisfied the requirements of Blockburger and we turn to the second prong of our double jeopardy inquiry, the Grady prohibition against the Commonwealth, proving conduct that constitutes an offense for which appellants have already been prosecuted, to establish an essential element of an offense charged in a subsequent prosecution. We agree with the trial court that the second prong is satisfied because the Commonwealth here seeks to reprosecute after a hung jury rather than after an acquittal or a conviction on the charge of third degree murder. ‘When Grady addresses the issue of a defendant having already been prosecuted, it must be read and interpreted in the context of a defendant being either acquitted or convicted.” (Slip Op., Cappellini, J., 5/13/92, p. 7.) Therefore, this claim is without merit.

Appellants’ second claim is that reprosecution on the charge of third degree murder is barred by the doctrine of collateral estoppel. This claim is also without merit.

“The doctrine of collateral estoppel prevents relitigation between parties of an issue where that issue has been previously decided by a competent legal forum. The doctrine is applicable to criminal prosecutions as well as to civil matters.” Commonwealth v. Wallace, 411 Pa.Super. 576, 581, 602 A.2d 345, 348 (1992). The doctrine, “which is part of the concept of double jeopardy, requires that where an ultimate fact has been necessarily established in favor of a defendant in a former prosecution, the issue may not be re-litigated in any subsequent proceeding against the defendant.” Commonwealth v. Wharton, 406 Pa.Super. 430, 432, 594 A.2d 696, 697 (1991) (emphasis in original) (citations omitted). As a general rule, however, reprosecution is not barred by principles of double jeopardy or collateral estoppel after a jury has been discharged because of an inability to reach a verdict. Commonwealth v. Hickson, 402 Pa.Super. 53, 586 A.2d 393 (1990).

In Commonwealth v. Harris, 400 Pa.Super. 12, 582 A.2d 1319 (1990), we discussed the doctrine of collateral estoppel in criminal prosecutions as codified in Pennsylvania in the Crimes Code at 18 Pa.C.S. §§ 109-110:

This section of the Crimes Code “applies only to successive prosecutions, not to the distinct problem of retrial following a deadlocked jury.” Section 110 “applies only where the prosecution is attempting to bring charges to trial on a new offense which follows á previous trial for the same conduct.” It was designed to limit successive prosecutions where all charges arising out of the same criminal transaction could have been brought in a single prosecution. Instantly, the Commonwealth complied with Section 110 by bringing all charges against appellant in a single proceeding. A retrial ... because of a deadlocked jury, therefore, is not precluded.

Id. at 23-25, 582 A.2d at 1325 (citations omitted).

We find reprosecution of appellants on the charge of third degree murder, where the jury deadlocked on this charge in the original prosecution, is not barred by double jeopardy, collateral estoppel or any provision of the Crimes Code.

Order affirmed.

      . 18 Pa.C.S. § 2501.

      . Id., § 2901(a)(3).

      . Id., § 903(a)(1).

      . U.S.C.A. Const.Amend. V.

      . Pa. Const, art. I, § 10.

      . In Commonwealth v. Kemmerer, 526 Pa. 160, 584 A.2d 940 (1991), the defendant was charged with criminal homicide, robbery and theft and was found not guilty of first degree murder and involuntary manslaughter. The jury was deadlocked on the charges of second degree murder, third degree murder and voluntary manslaughter. The defendant based his argument that the Commonwealth was barred from reprosecuting on Pa.R.Crim.P. 1120, Verdicts, section (d), rather than on double jeopardy grounds, so the Supreme Court’s decision is not based on Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).


author: HUDOCK, Judge: TAMILIA, Judge,

text:
    626 A.2d 181
    COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth D. ROSENBERGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1993.
    Filed June 14, 1993.

      James J. Panchik, Kittanning, for appellant.
    Bradley K. Hellein, Asst. Dist. Atty., Kittanning, for Com., appellee.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   This is an appeal from the judgments of sentence imposed upon Appellant after he was convicted, in a de novo trial, of two counts of driving while under suspension, DUI-related. Timely filed post-verdict motions were denied, and Appellant was sentenced to ninety days of incarceration and a $1,000 fine on each offense. These sentences were to run consecutively. A motion to modify sentence was denied as untimely, and a motion to reconsider that motion was denied. This direct appeal followed. We reverse.

At issue in the present appeal is whether Appellant can be convicted of violating section 1543(b) when a DUI-related suspension has expired, but, due to subsequent non-DUI-related suspensions, Appellant’s right to seek a license remained suspended. Under these circumstances, we find that section 1543(b) sanctions are unavailable.

The facts of this case are somewhat unique; while Appellant has a driving record containing a long list of violations, he has never been a licensed driver. Without discussing the entire driving record and violations, it is sufficient for present purposes to note that, due to a DUI conviction, Appellant’s right to apply for a driver’s license was suspended for one year, effective May 19, 1987, and ending May 19, 1988. Thereafter, Appellant did not seek to acquire a driver’s license. In 1989, Appellant received two more citations for licensing violations. These citations resulted in the suspension of Appellant’s right to apply for a driver’s license for an additional one-and-one-half years, effective February 22, 1990. Thereafter, Appellant’s right to apply for a driver’s license was suspended for five years, under the habitual offender provision, 75 Pa.C.S. § 1542, effective August 22, 1991. On August 13,1990, Appellant’s right to apply for a driver’s license was again suspended for an additional two years, pursuant to section 1542(e), effective August 22,1996. Finally, and at issue in the present case, are the two citations issued for section 1543(b) violations.

At issue is the proper interpretation of section 1543 of the Vehicle Code. This section reads, in pertinent part:

§ 1543. Driving while operating privilege is suspended or revoked
(a) Offense defined. — Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.
(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S. § 1543(a) & (b) (Emphasis added). The trial court read these two subsections together and found that the language emphasized above in subsection (a) applied equally to subsection (b). Thus, the trial court reasoned that, because Appellant’s right to apply for a license has never been restored, the 1987 DUI-related suspension continues indefinitely. In support of this interpretation, the trial court cites Commonwealth v. McCrosson, 392 Pa.Super. 261, 572 A.2d 791 (1990), wherein a panel of this Court held that whether a non-DUI related suspension had expired was immaterial to a subsequent section 1543(a) conviction where the license had not yet been restored to the driver. The Commonwealth concurs with this reasoning. Appellant counters that the subsections are two distinct provisions, that only subsection (a) was amended to include the “before the operating privilege has been restored” language, and, therefore, because the DUI-related suspension had expired and Appellant was serving a non-DUI related suspension at the time he was issued the two citations in the instant case, he can only be given section 1543(a) sanctions. Upon review, we find the reasoning of the trial court to be in error and its reliance on McCrosson to be misplaced.

In McCrosson, McCrosson was the driver of an automobile that was involved in an accident on August 5, 1988. While the accident was being investigated by the state police, McCrosson, upon request, was unable to produce a driver’s license. It was later discovered that her operating privileges had been revoked for a period of six months, effective May 19,1987, and had not been restored. McCrosson was then cited for a violation of section 1543(a). After conviction in a trial de novo, McCrosson appealed claiming that, because her prior suspension had expired, she could not have committed the violation charged. In rejecting this argument, a panel of this Court stated that, although this claim would be a valid argument under a reading of the former section 1543(a), the statute had been amended prior to the issuance of her citation to make it an offense to operate a vehicle at any time prior to the restoration of the driver’s operating privilege. Because there was no evidence that McCrosson’s privileges had been restored, this Court affirmed the judgment of sentence.

While our decision in McCrosson is supported by a plain reading of section 1543(a), the language of that subsection has no application to a section 1543(b) violation. Because section 1543(b) is penal in nature, it must be strictly construed. Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990) (citing Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978)). Thus, the trial court’s conclusion, “the same language of § 1543(a) applies with equal force to the facts of this case[,]” is in error. Trial Court Memorandum, 11/7/91 at p. 3. While Appellant’s right to seek a driver’s license remains suspended, case law supports a conclusion that Appellant is not subject to section 1543(b) penalties after the expiration of his DUI-related' suspension. Thus, as Appellant was issued citations while his right to apply for a driver’s license was suspended, non-DUI-related, he could only be convicted under section 1543(a).

In Commonwealth v. Taylor, supra, as a condition of his acceptance into an ARD program, Taylor’s license was suspended for a period of three months, effective June 4, 1987. Because Taylor had previously been convicted for other Vehicle Code violations, his license was suspended for five years pursuant to section 1542(a) of the Vehicle Code, effective September 4, 1987. On March 12, 1988, Appellant was stopped and charged with a violation of section 1543(b). In finding that Taylor could not be convicted of a section 1543(b) violation, a panel of this Court reasoned:

A brief logical sketch of the relevant law and facts of this case indicates that [Taylor] was wrongly convicted of violating 75 Pa.C.S.A. § 1543(b). First, it is conceded by the trial court, and is also readily apparent, that [Taylor’s] license was expressly suspended as a condition of acceptance of ARD, for violation of section 3731, the key phraseology under subsection (b), for a period of three months beginning on June 4, 1987____ [W]hen contemplated to some degree, it becomes equally clear that the suspension relevant to subsection (b) was for three months only and that the five year suspension handed [Taylor] was not a condition of acceptance of the ARD but merely a result of such acceptance, {plus the presence of two prior traffic convictions). Nothing in [Taylor’s] ARD program was conditioned upon such a suspension. Rather the five year suspension was issued because [Taylor’s] acceptance of ARD constituted a third traffic offense under the terms of the habitual offenders statute and was collateral to the ARD proceedings altogether.
It is further conceded that [Taylor] was not caught driving during the three months following June 4, 1987, the period which could reasonably be considered to be a suspension as a condition of acceptance of the ARD. Thus, it is really rather elementary that [Taylor] was not caught driving while under suspension as a condition of acceptance of ARD and therefore falls outside of the provisions of 75 Pa.C.S.A. § 1543(b), although as he was caught driving while under suspension, within the provisions of 75 Pa. C.S.A. § 1543(a).

Id. 390 Pa.Super. at 574-75, 568 A.2d at 1321-22 (emphasis in original).

In the present case, because of a violation of section 3731, Appellant’s right to apply for a driver’s license was suspended for one year, effective May 19, 1987. Between this time and May 19, 1988, the date this suspension expired, Appellant was not stopped for driving while under suspension. Indeed, Appellant’s driving record reveals that his next violation occurred on May 12, 1989, when he was cited under section 1501 (drivers must be licensed). Thus, according to the rationale of Taylor, Appellant was only exposed to section 1543(b) penalties during this time period. The trial court attempts to distinguish Taylor by stating that Appellant was not given the DUI-related suspension as a condition of ARD. We find this to be a distinction without a difference. As stated in Taylor:

All three of the suspensions listed in [section 1543(b) ] are directly tied to the violation of the DUI or DUI related offense in that they are penalties for the commission of the offense, or, alternatively, are handed down as part of a rehabilitative program.

Commonwealth v. Taylor, at 576, 568 A.2d at 1323. Because Appellant was stopped while he was under a non-DUI-related suspension, he cannot be convicted under section 1543(b).

Judgments of sentence are vacated.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting.

I respectfully dissent. I believe the majority falls into error in determining that 75 Pa.C.S. § 1543(b) does not apply because the trial court attempted to apply that section to a suspension unrelated to driving under the influence (DUI). That reasoning would certainly apply if the DUI suspension had been extinguished and the only effective suspensions were those unrelated to DUI. However, in dealing with an unlicensed driver, who never acquires a license and who initially received a suspension for DUI, it cannot be held that his DUI suspension was ever fulfilled or extinguished since he never applied for a driver’s license nor sent an acknowledgement of suspension to the Department of Transportation. There is no indication in the record that appellant notified the department by acknowledgement of suspension or revocation as required by 75 Pa.C.S. § 1541, Period of revocation or suspension of operating privileges:

(a) Commencement of period. — The period of revocation or suspension of the operating privilege shall commence as provided for in section 1540 (relating to surrender of license). No credit toward the revocation or suspension shall be earned until the driver’s license is surrendered to the department, the court or the district attorney, as the case may be. A nonresident licensed driver or an unlicensed driver shall submit an acknowledgment of suspension or revocation to the department in lieu of a driver’s license.

Id., § 1541(a) (emphasis added). As to the date the suspension for DUI became effective, 75 Pa.C.S. § 1540, Surrender of license, provides:

(a) Conviction of offense. — Upon a conviction by a court of competent jurisdiction for any offense which calls for mandatory suspension in accordance with section 1532 (relating to revocation or suspension of operating privilege), the court or the district attorney shall require the surrender of any driver’s license then held by the defendant and shall forward the driver’s license together with a record of the conviction to the department. The suspension or revocation shall be effective upon a date determined by the court or district attorney or upon the date of surrender of the license to the court or district attorney, whichever shall first occur.

Id., § 1540(a) (emphasis added).

Following the legislative rationale behind these statutes, it becomes evident that an unlicensed driver who is convicted begins revocation status upon a date determined by the court or upon surrender of the license to the court or district attorney, whichever comes first. Since there was no license to surrender in this case, the date of conviction on the DUI case, which was May 19, 1987, is the date the suspension began.

However, while the date of commencement of revocation is determined in accordance with section 1540, it must be measured against the provisions in section 1541 to determine its expiration date. Since no credit is earned toward the suspension period until acknowledgement of suspension is submitted to the department, the DUI suspension continues until those requirements are fulfilled. The subsequent offenses do not have any bearing on the continuance of the DUI suspension. Under this rationale, the trial court was correct in determining that despite the lapse of time which should have exhausted the period of DUI suspension, that period was never tolled because of failure of appellant to comply with section 1541(a). The court was correct in applying section 1543(a) to the non-DUI violations and section 1543(b) to violations while under suspension for DUI. Any other interpretation of this section would render meaningless the provisions of section 1541. It is absolutely clear that the legislature intended non-licensed drivers to submit as fully to the control of the department as is required by licensed drivers by submitting an acknowledgement of suspension in lieu of surrendering a driver’s license. The penalty for failure to do so is to extend the suspension period until submission to the department’s control has been accomplished. The legislative scheme is designed mindful of the multitude of drivers on our highways and the need to have a simple but precise manner of determining the status of all drivers, licensed or unlicensed, who have committed a violation resulting in suspension, placing the responsibility on the driver to assure that the information is provided to the department. The majority asserts Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990), is controlling as it holds a sentence of five years suspension may not be attributed to a DUI offense when the DUI portion of the offense had been extinguished. Taylor is not controlling because the DUI penalty assessed was for ARD to be served in a period of three months. Upon completion of three months ARD, the DUI aspect of the sentence was completed where the additional five-year suspension was assessed in accordance with the habitual offenders statute. Here, in light of the discussion above, the record is clear that the DUI suspension had never been fulfilled or extinguished, hence the application of section 1543(b).

I agree with the majority that Commonwealth v. McCrosson, 392 Pa.Super. 261, 572 A.2d 791 (1990), is not precisely on point, although it can be deduced from the holding in that case that no section of the Motor Vehicle Code may be ignored in ascertaining the legislative scheme to control the licensing and use of automobiles.

As to the claim of ineffectiveness for failing to raise the issue of consecutive sentences, this is a non-issue. While the offense was a single offense, under the Vehicle Code it resulted in two violations, each with a penalty. This follows without question as driving without a license is a separate offense from driving while under suspension. Failure to punish both gives the wrongdoer a free ride under one or the other. Whether the sentences should be imposed concurrently or consecutively is purely within the discretion of the trial judge. Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988).

For the above reasons, I would affirm the Orders and judgments of sentence of the trial court.

      . 75 Pa.C.S. § 1543(b). While the de novo trial focused on a citation issued on April 14, 1991, it appears that a citation issued on July 17, • 1990, was also before the court.

      . The Commonwealth urged this construction of section 1543 at trial. In a brief argument in its appellate brief, the Commonwealth asserts that, by statutory construction and analogy to McCrosson, supra, "it is clear the Lower Court did not err and the Lower Court’s decision [should be] affirmed.” Commonwealth Brief at p. 2.
      In an equally brief and cursory argument, the Commonwealth claims that Appellant did not acknowledge his DUI-related suspension with PennDot, and, according to 75 Pa.C.S. § 1541, he has received no credit toward that suspension. Thus, argues the Commonwealth, he was properly convicted of Section 1543(b) violations. This assertion was not made by the Commonwealth in the trial court, Appellant did not have the opportunity to counter this claim by presenting evidence to the contrary, and the trial court did not have the benefit of this assertion when considering its verdict. Under these circumstances, we decline to address this claim by the Commonwealth. See generally, Pa.R.A.P. 302(a). Finally, the dissent’s statement that the trial court relied on § 1541(a) in reaching its decision is unsupported by the record.

      . Appellant’s driving record actually reflects a section 1543 violation occurring on November 6, 1989, and resulting in a conviction on December 11, 1989, and a suspension for one year. The previous section 1501 violation noted above occurred on May 12, 1989, but Appellant was not convicted until January 30, 1990.

      . We note that the present facts are different from those presented in Commonwealth v. Nuno, 385 Pa.Super. 6, 559 A.2d 949 (1989), wherein a panel of this Court held that a defendant is properly convicted of a section 1543(b) violation when his or her driving record reflects a DUI-related suspension that has not begun to run because an earlier non-DUI-related suspension had yet to expire. Our holding is consistent with the statement in Nuno that a defendant would be subject to the penalties of section 1543(b) until the end of the DUI-related suspension or revocation. See also Commonwealth v. Ryan, 383 Pa.Super. 370, 556 A.2d 1377 (1989) (there is nothing in the law which provides a license suspension can be suspended to allow for the running of another license suspension and then recommenced; unrelated license suspensions are to run consecutively).
      In light of our disposition of Appellant’s first issue, we need not address the remaining issue as to whether Appellant’s previous counsel was ineffective for failing to timely file a motion to modify sentence. Even if we were to address this issue we would find it to be meritless. Contrary to the statement by the dissent, Appellant's convictions arose from two separate incidents rather than a single incident. See, footnote 1, infra. The trial court clearly acted within its discretion by imposing consecutive sentences for the two separate incidents.

      . We also note that, had Appellant been charged and convicted under section 1543(a), this would represent second or subsequent licensing violations, and Appellant could have been sentenced pursuant to 75 Pa.C.S. § 6503. Appellant can be sentenced under this section even though he was not charged with a Section 6503 violation. Commonwealth v. Soboleski, 421 Pa.Super. 311, 617 A.2d 1309 (1992). Pursuant to section 6503, Appellant could have been sentenced to pay a fine of not less than $200 nor more than $1,000, or imprisonment for no more than six months, or both.

      . 75 Pa.C.S. § 1543(b) provides:
      (b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.


author: POPOVICH, Judge:

text:
    626 A.2d 187
    TODAY’S EXPRESS, INC., Mach 1 Personnel, Inc., t/d/b/a Delta Investments, a Pennsylvania General Partnership, Appellants, v. David M. BARKAN and Gloria Barkan, His Wife, Herbert R. Tauberg and Madelain N. Tauberg, His Wife, and Howard Hanna Company, Appellees.
    Superior Court of Pennsylvania.
    Argued April 14, 1998.
    Filed June 24, 1993.

      Dennis J. Kusturiss, Pittsburgh, for appellants.
    Sheldon L. Keyser, Pittsburgh, for Barkan, appellees.
    Bradley S. Tupi, Pittsburgh, for Tauberg, appellees.
    Anthony Sanchez, Pittsburgh, for Howard Hanna, appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order granting a motion for summary judgment against the Plaintiffs/Appellants, Today’s Express, Inc., Mach I Personnel, Inc., t/d/b/a Delta Investments. We affirm.

The standard for assessing the grant of a motion for summary judgment is clear; to-wit:

In reviewing an entry of summary judgment, this Court may disturb the order of the trial court only where there has been an error of law. This Court applies the same standard as the trial court, affirming a grant of summary judgment only 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.” In deciding whether summary judgment should have been granted, this Court must examine the record in the light most favorable to the non-moving party.

Jenkins v. Bolla, 411 Pa.Super. 119, 600 A.2d 1293, 1295 (1992) (Citations omitted).

Additionally, the barring effect of the statute of limitations, being a question of law, is properly decided in the context of a motion for summary judgment. Northampton County Area Community College v. Dow Chemical, 389 Pa.Super. 11, 566 A.2d 591, 595 (1989).

The facts, viewed in a light most favorable to the non-moving party, indicate that John J. Ghaznavi entered into an agreement with the Defendants/Appellees, David M. Barkan, Gloria Barkan, Herbert R. Tauberg and Madelain N. Tauberg, to purchase a 7-story apartment building (hereinafter referred to as “Lincoln House”); Paragraph 19 of which read:

19. Inspection of Property: It is hereby understood between the parties hereto that the Property has been inspected by Buyer or his agent, that the same is being purchased solely in reliance upon such inspection and that there have not been and are no representations or warranties, expressed or implied, with respect to the physical condition of the Property, made by Seller or Broker except those provided in this Agreement or those set forth in this paragraph: See paragraph 4 of Addendum.
4. Seller warrants and represents that roof and gutters are in good condition and free of leaks and heating, plumbing and electrical systems are in good operating condition, and all will continue to be in said condition on the closing date. Within thirty days after execution hereof, Buyer shall have the right to inspect the property to determine that all units are in the same general condition as those units which have been inspected, and that the conditon [sic] of the building, roof and gutters, and heating, plumbing and electrical systems is satisfactory to Buyer. Buyer may require that any matters revealed by the inspection be repaired prior to closing, unless Buyer fails to complete the inspection within said thirty day period. In the event the cost of correcting any matters revealed by the inspection exceeds Twenty Thousand ($20,000) Dollars, Seller shall have the option of correcting such matters or terminating this Agreement. [Emphasis added]

Prior to the closing, Ghaznavi assigned his rights to the Plaintiffs, who were the recipients of the property by deed dated April 2, 1985. Thereafter, the Plaintiffs “discovered” asbestos on the property and, as a consequence, filed a Pi-count complaint (grounded in fraud and negligence) on August 28,1990, averring that the Defendants knew or had reason to know, by the exercise of due diligence and ordinary care, of the asbestos content of the property, that the Plaintiffs purchased the property without knowledge of the asbestos, and that the Defendants had an affirmative duty to disclose the presence of the carcinogen. The failure to act accordingly by the Defendants, asserted the Plaintiffs, constituted fraud in inducing the buyers to purchase and negligence in failing to disclose property contaminated with asbestos.

Numerous pleadings, answers to interrogatories and depositions preceded the Defendants’ presentment of a motion for summary judgment, wherein it was alleged that the Agreement of Sale and Addendum afforded the Plaintiffs the right and the opportunity to inspect the property before the closing. In fact, it was claimed, an inspection of the property was conducted, a report of which was sent by Ghaznavi’s attorney to the sellers’ attorney pointing out a number of problems. However, none mentioned the presence of asbestos materials on site. Paragraphs 6, 7 & 9.

It was David Gutowski, president of Delta Investments, who “discovered” the asbestos in Lincoln House in December of 1988: It was “open and obvious” in the ceiling of the below-ground garage of the building. Paragraph 15; Gutowski’s Deposition, p. 99 (Exhibit # 1).

Of interest to this Court is the remark by the Plaintiffs, appearing in their brief filed in opposition to the Defendants’ motion, that: “The facts as related by the Defendants in their Motion are undisputed.” An attempt to ameliorate this crucial remark was made in the body of the brief and reads:

John Ghaznavi, a naturalized citizen who was born and raised in Iran, testified on pages 96 and 97 of his deposition taken March 13, 1992, that prior to this matter arising, he had never even heard of the word asbestos. On page[s] 138 and 139, Mr. Ghaznavi testified that prior to 1988-89 he had no idea that asbestos in a building could be a problem.

In light of the aforesaid, the Plaintiffs aver that, despite the fact that the asbestos was not concealed but obvious and open to anyone using the garage facilities, the lack of “some awareness that the condition [wa]s a problem or a potential problem” exonerated them from any duty to exercise due diligence in discovering the asbestos prior to the expiration of the statute of limitations. We disagree.

As a matter of general rule, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period. Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations ...; even though a person may not discover his injury until it is too late to take advantage of the appropriate remedy, this is incident to a law arbitrarily making legal remedies contingent on mere lapse of time. Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute.
The “discovery rule” is such an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.’
The salient point giving rise to the equitable application of the exception of the discovery rule is the inability, despite the exercise of diligence by the plaintiff, to know of the injury. A court presented with an assertion of applicability of the “discovery 'rule” must, before applying the exception of the rule, address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.

Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983) (Emphasis added).

In the case at bar, the Appellants had the means by which to discover the presence of asbestos during the first examination of the property in anticipation of the purchase as early as December of 1984. Thus, the Appellants’ attempt to dismiss the exposed nature of the asbestos on the basis that neither Ghaznavi nor they were “knowledgeable” of the potential damaging effect of the friable material, or that either one was aware of the existence of public concern over removal of asbestos from commercial property, at the time the 1984 Agreement of Sale and Addendum were executed or the Deed transferring title in February of 1985, is unavailing.

The standard by which one’s efforts to learn of a cause of action, so as to forestall the running of a statute of limitations, is measured by the inability, despite the exercise of diligence, to determine the injury or its cause, not upon a retrospective view of whether the facts were actually ascertained within the period. Pocono, supra.

In applying the Pocoreo-standard sub judice, we note that the Plaintiffs’ answer to the Defendant-Howard Hanna’s request for the production of documents contains an Environmental Protection Agency (EPA) paper captioned: Guidance for Controlling Asbestos-Containing Materials in Buildings, which was published in June of 1985. Contained therein is reference to asbestos being considered a problem as early as 1985 by the federal government:

SUMMARY OF GUIDANCE
INTRODUCTION
Airborne asbestos contamination in buildings is a significant environmental problem. Various diseases have been linked with industrial exposure to airborne asbestos, and the extensive use of asbestos products in buildings has raised concerns about exposure to asbestos in nonindustrial settings. Surveys conducted by the Environmental Protection Agency (EPA) estimate that asbestos containing materials can be found in approximately 31,000 schools and 733,000 other public and commercial buildings in this country.
The presence of asbestos in a building does not mean that the health of building occupants is necessarily endangered. As long as asbestos-containing material (ACM) remains in good condition and is not disturbed, exposure is unlikely. When building maintenance, repair, renovation or other activities disturb ACM, or if it is damaged, asbestos fibers are released creating a potential hazard to building occupants. Although not required to do so by federal law, the prudent building owner will take steps to limit building occupants’ exposure to airborne asbestos____
CHAPTER 1. BACKGROUND ON EXPOSURE TO ASBESTOS INSIDE BUILDINGS
Construction materials containing asbestos have been used extensively in schools and other buildings. The concern about exposure to asbestos in these buildings is based on evidence linking various respiratory diseases with occupational exposure in the shipbuilding, mining, milling, and fabricating industries. The presence of asbestos in a building does not mean that the health of building occupants is endangered. If asbestos-containing (ACM) remains in good condition and is unlikely to be disturbed, exposure will be negligible. However, when ACM is damaged or disturbed — for example, by maintenance or repairs conducted without proper controls — asbestos fibers are released. These fibers can create a potential hazard for building occupants.
1.3 Diseases Associated with Exposure to Asbestos
Much of what is known about asbestos-related diseases comes from studying workers in the various asbestos industries. Exposure to levels of airborne asbestos typical of the asbestos workplace prior to 1972 has been linked with a debilitating lung disease called asbestosis; a rare cancer of the chest and abdominal lining called mesothelioma; and cancers of the lung, esophagus, stomach, colon, and other organs. In 1972 federal exposure standards were imposed. The relationship between exposure level and health risk is complex. The potential for disease appears to be related to the physical and chemical characteristics of asbestos fibers as well as to the concentration of fibers in the air. Data on asbestos workers indicate that the risks of asbestosis, lung cancer, and mesothelioma decrease in direct proportion to a decrease in total asbestos dose. Because there is no direct information on health risks from exposure to asbestos in buildings with ACM, the risks are estimated by extrapolation from studies of asbestos industry workers (Nicholson 1984, NRC 1984, The Royal Commission of Ontario 1984). The estimates indicate that only a small proportion of people exposed to low levels of asbestos will develop asbestos-related diseases. However, combining smoking with occupational exposure to asbestos increases the lung cancer rate above the rate due to either smoking or asbestos exposure only. Also, asbestos exposure in children is of special concern: since they have a greater remaining lifespan than adults, their lifetime risk of developing mesothelioma is greater. Avoiding unnecessary exposure to asbestos is prudent.

Pages S-l, 1-1 and 1-2 (Emphasis added).

Interestingly, in the “Reference” portion of the EPA report appears twenty-three (23) source-materials used in the preparation of the study, all but two pre-date the 1985 purchase of the Lincoln House.

Albeit neither Ghaznavi nor the Plaintiffs may have had the expertise to detect visually the presence of asbestos or lacked knowledge regarding the deleterious effects of the material in its sedentary state (as was the case here), this does not insulate the Appellants from exercising due diligence to ascertain, if possible, what problems may have existed with the purchase (“structurally”) of the commercial realty.

Instantly, as with a medical malpractice suit, the Appellants needed expert advice and counsel to assist them in traversing the recently chartered asbestos-field waters and its application to the commercial realty industry. See Pocono, supra; 1985 EPA Report, supra; Defendants’ Supplemental Pretrial Statement containing as a “report” Francis W. Weir, Ph.D.’s letter of April 20, 1992.

Accordingly, with regard to the aspect of promptness, the essential facts necessary to uncover asbestos were not “impossible” to identify with the exercise of due diligence. See Bickell v. Stein, 291 Pa.Super. 145, 435 A.2d 610, 613 (1981). This translates into hiring a professional to aid in discovering the presence of a cause of action.

Here, as in Pocono and Bickell, the Plaintiffs had the ability (by hiring professionals knowledgeable in the field of inquiry, as they did in December of 1988,) to ascertain the cause of action and to institute suit within the 2-year statute of limitations (42 Pa.C.A.S. § 5524(7)). The Appellants, having failed to act timely — 5 years after the purchase — are barred by the statute of limitations from pursuing their suit.

Order affirmed.

WIEAND, J., concurs in the result.

      . The real estate agent for the sellers/Defendants was co-Defendant Howard Hanna Company.

      . The suit was commenced by praecipe for writ of summons dated May 8, 1990.

      . This period is the date “inspection” of the property was performed at Ghaznavi's direction by Kelly-Rielly Associates, real estate appraisers and consultants who were members (or candidates) of the American Institute of Realtors. In particular, William W. Rielly was certified under the American Institute of Real Estate Appraiser’s continuing education program.

      Nonetheless, in itemizing the "Construction Details” of the Lincoln House, which included a description of the interior walls and ceilings of the building, no mention was made of that the fireproof insulation was composed of asbestos.

      . There appears to be no concensus, at least from our examination of the limited documents of record, that undisturbed asbestos is harmful to one’s health. See 1985 EPA Report, reproduced in part supra; Defendants’ Supplemental Pretrial Statement containing as a “report” Francis W. Weir, Ph.D.’s letter of April 20, 1992.


author: HOFFMAN, Judge.

text:
    626 A.2d 571
    Robert J. TRIFFIN, Appellant, v. Henry H. JANSSEN and Rapp, White, Janssen & German, Ltd. and Robert A. Griffiths and Continental Bank and Stephen D. Chopnick and Kania, Linder, Lasak & Feeney.
    Superior Court of Pennsylvania.
    Argued March 9, 1993.
    Filed May 19, 1993.

      Robert J. Triffin, appellant, pro se.
    Walter Weir, Jr., Philadelphia, for appellees.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is a pro se appeal from an order granting appellees’, Continental Bank and Stephen D. Chopnick, motion for summary judgment and thereby dismissing appellant’s, Robert Triffin, second amended complaint as brought against appellees. Appellant presents the following questions for our review:

(1) Whether, the trial court failed to ascertain that [appellant] set forth a viable and prima facia cause of action for the intentional interference with performance of a contract by a third person?
(2) Whether, the trial [court] abused its discretion and misapplied the controlling law of [sic] when it granted summary judgment in favor of the appellees without any evidence in support of the contested material averments contained in [appellant’s] complaint?
(3) Whether, the trial court prejudicially erred when it determined that consequential economic damages are not recoverable in an action for intentional interference with performance of contract by a third person where such damages are not occasioned by personal injury?
(4) Whether, the trial court prejudicially erred when it determined that “notice” is an element of a viable cause of action for intentional interference with performance of contract by third person?

Appellant’s Brief at 3. For the reasons set forth below, we affirm.

In 1985, appellant retained Henry Janssen, Esquire, to represent him in an action brought against Continental Bank for $84,908.00 in compensatory damages which appellant alleged had been improperly charged against his checking account. Continental filed a counterclaim for $74,648.40 alleging that appellant fraudulently obtained funds from the bank in a check kiting scheme.

On August 12,1987, appellant sent Janssen a letter advising him that his services were no longer required and requesting Janssen to file a withdrawal of appearance. Janssen responded in a letter dated August 13, 1987 where he provided that as Bob Griffiths, attorney for Continental, objected to Janssen’s withdrawal, a petition under Pa.R.Civ.P. 1012(b) would have to be prepared and filed with the trial court before withdrawal would be proper. Janssen then requested appellant to indicate whether appellant still wanted him to prepare a petition for withdrawal.

Appellant sent a letter to Janssen dated August 17, 1987 wherein he stated that Janssen no longer had the authority to represent him. However, appellant did not discuss how the 1012(b) petition would be handled. By letter dated August 20, 1987, Janssen reiterated that in order for him to properly withdraw as counsel of record, the terms of 1012(b) had to be complied with. Appellant, however, failed to respond to Janssen’s August 20 letter and neither appellant nor Janssen ever filed a petition for Janssen’s withdrawal. Accordingly, Janssen remained appellant’s counsel of record.

The procedural history of the underlying Continental litigation is as follows. After appellant’s initial complaint and Continental’s counterclaim, a deposition of appellant was scheduled for August 5, 1987. Appellant failed to appear for the deposition and was warned by the trial court that if he continued to do so, he would be sanctioned. A subsequent deposition was scheduled for November 24, 1987 and, without requesting a continuance, appellant again failed to make an appearance. As a result, the trial court entered an order directing appellant to pay Continental’s attorney fees of $150.00. Appellant was then served with a copy of the order and notice of deposition for March 11, 1988. Appellant failed to appear at the March 11th deposition and also failed to pay the $150.00 in counsel fees. As a result, on April 22,1988, the trial court entered an order dismissing appellant’s original complaint with prejudice and precluding appellant from entering evidence in defense of Continental’s counterclaim.

Appellant filed an appeal to the Superior Court and on October 27, 1988, the trial court’s order was affirmed. A trial on Continental’s counterclaim against appellant was scheduled for November 1, 1989. On October 25, 1989, counsel for Continental sent written notice of the trial date to both Janssen and appellant. Neither Janssen nor appellant appeared before the trial court on November 1, 1989. Subsequently, trial proceeded ex parte and judgment was entered in favor of Continental and against appellant in the amount of $74,648.08 for the overdraft of appellant’s account plus $25,-283.93 for the loss of Continental’s use of its funds.

Appellant then filed a pro se motion to strike the judgment entered. On March 6, 1991, the trial court denied appellant’s motion in light of the fact that appellant and his counsel were given notice of the trial date and, because of the sanctions imposed upon appellant, he could not have testified or introduced evidence in his defense. Appellant appealed the trial court’s order to the Superior Court, which affirmed the lower court’s order. Appellant sought allocatur from the Pennsylvania Supreme Court which was also denied.

On January 8, 1992, appellant filed a multi-count complaint against various parties including appellees, Continental Bank and Stephen Chopnick. Regarding his claim against appellees, appellant alleged that they intentionally interfered with a contractual relationship. Specifically, appellant contended that appellees wrongfully and intentionally harmed appellant by preventing Henry Janssen from withdrawing as appellant’s counsel in the underlying litigation. Appellees filed a motion for summary judgment which was granted by the trial court on July 24, 1992. This timely appeal followed.

Appellant first contends that the trial court erred in failing to find that appellant set forth a prima facia cause of action against appellees for intentional interference with performance of a contract by a third person. We disagree.

We preliminarily note that while this court is willing to liberally construe materials filed by a pro se litigant, appellant’s pro se status does not entitle him to any particular advantage for lack of legal training. O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434, 567 A.2d 680, 682 (1989). The standard applied in reviewing a trial court’s order granting summary judgment is as follows:

A motion for summary judgment may properly be granted when 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. Summary judgment may be entered only in cases that are clear and free from doubt. Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Moreover, in summary judgment proceedings, the court’s function is not to determine the facts, but only to determine if a material issue of fact exists. Thus, an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion.

Kaller’s, Inc. v. John J. Spencer Roofing, Inc., 388 Pa.Super. 361, 364, 565 A.2d 794, 795-96 (1989) (citations omitted); see also Pa.R.Civ.P. 1035(b). .

The four elements of a cause of action for intentional interference with contractual relations are as follows: (1) the existence of a contractual relationship; (2) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship; (3) the absence of a privilege or justification for such interference; and (4) damages resulting from the defendant’s conduct. Neish v. Beaver Newspapers, Inc., 398 Pa.Super. 588, 599, 581 A.2d 619, 625 (1990), allocatur denied, 527 Pa. 648, 593 A.2d 421 (1991).

Appellees contend that as appellant has failed to establish that their alleged conduct was neither privileged nor justified, summary judgment was properly granted. In determining whether a particular course of conduct is improper for the purposes of setting forth a cause of action for intentional interference with contractual relations, we must look to § 767 of the Restatement (Second) of Torts which provides as follows:

In determining whether an actor’s conduct in intentionally interfering with an existing contract or a prospective contractual relation is improper or not, consideration is given to the following factors:
(a) The nature of the actor’s conduct,
(b) The actor’s motive,
(c) The interests of the other with which the actor’s conduct interferes,
(d) The interests sought to be advanced by the actor,
(e) The proximity or remoteness of the actor’s conduct to the interference and
(f) The relations between the parties.

Restatement (Second) of Torts § 767 (1982). See Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 430, 393 A.2d 1175, 1184 (1978). In addition, Comment b to section 767 provides:

The issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. The decision therefore depends upon a judgment and choice of values in each situation. This Section states the important factors to be weighed against each other and balanced in arriving at a judgment; but it does not exhaust the list of possible factors.

Id.

For the following reasons, we find, as a matter of law, that appellees’ refusal to consent to Janssen’s withdrawal as appellant’s attorney was not improper.

First, appellees’ alleged conduct was not unlawful, it did not violate any standards of professional conduct and it involved no deceit or misrepresentation. Moreover, appellant does not contend that appellees’ actions were motivated by any ill-will or malcontent towards appellant. We agree with appellant that “ ‘[t]he relationship between a lawyer and his client is a serious, vital and solemn one. No third person may interfere with the relationship any more than he may with propriety intervene between a doctor and his patient.’ ” Joseph D. Shein, P.C. v. Myers, 394 Pa.Super. 549, 556, 576 A.2d 985, 988 (1990) (quoting Richette v. Solomon, 410 Pa. 6, 8-9, 187 A.2d 910, 912 (1963)). Nonetheless, where a party petitions for the withdrawal of counsel and a new attorney does not simultaneously enter his appearance, the opposing party has a legitimate basis for making an objection. See Pa.R.Civ.P. 1012(b) (the withdrawal of counsel without the simultaneous entry of a new attorney could serve to delay the underlying proceedings). Any “interference” with the attorney-client relationship resulting from the opposing party’s objection is a necessary element of our adversarial system.

Furthermore, appellant has not sufficiently shown how appellees’ conduct resulted in Janssen’s failure to withdraw as appellant’s counsel. Whether Janssen was entitled to withdraw as appellant’s counsel was within the sole discretion of the trial court. See Pa.R.Civ.P. 1012(b); C.E. Williams Co. v. Henry B. Pancoast Co., 412 Pa. 166, 170, 194 A.2d 189, 191 (1963). At most, appellees’ conduct could have influenced the trial court’s determination of whether Janssen’s withdrawal was appropriate. Moreover, as appellant never filed a 1012(b) petition as suggested by Janssen, the trial court never had an opportunity to grant Janssen leave to withdraw.

After carefully reviewing the record in the light most favorable to appellant, we find that appellant has failed to set forth a prima facia cause of action for intentional interference with contractual relations. Accordingly, we affirm the trial court’s order granting appellees’ motion for summary judgment.

Order affirmed.

      . Prior to proceeding ex parte, the trial judge telephoned Janssen who informed him that appellant had given him specific instructions not to appear before the trial court.

      . Stephen Chopnick was Continental’s in house counsel at the time of the underlying litigation.

      . While some jurisdictions consider a justification for a defendant’s interference to be an affirmative defense, Pennsylvania courts require the plaintiff, as part of his prima facia case, to show that the defendant’s conduct was not justified. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208-09 n. 7, 412 A.2d 466, 471 n. 7 (1979); Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Div., 281 Pa.Super. 560, 587 n. 15, 422 A.2d 611, 625 n. 15 (1980).

      . The courts of this Commonwealth have traditionally applied the Restatement (Second) of Torts in reviewing claims of intentional interference with contractual relations. See Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971); Allied Sec., Inc. v. Security Unlimited, Inc., 265 Pa.Super. 297, 401 A.2d 1219 (1979); Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979). See also Green v. Interstate United Management Serv. Corp., 748 F.2d 827 (3rd Cir.1984).

      . Pa.RXiv.P. 1012(b) provides:
      (b) an attorney’s appearance for a party may not be withdrawn without leave of court unless another attorney has entered or simultaneously enters an appearance for the party and the change of attorneys does not delay any stage of the litigation.

        Id.

      . Because of our disposition of appellant’s first claim, we need not address the other issues raised.