author: MONTEMURO, Judge:

text:
    444 A.2d 742
    Margaret Lesmeister URBAN, Appellant, v. Edmund J. URBAN.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1982.
    Filed April 16, 1982.
    Petition for Allowance of Appeal Denied Sept. 16,1982.

      Roland J. Christy, Spring House, for appellant.
    Martin J. King, New Hope, for appellee.

      Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant takes this appeal from the Order of the lower court entered on June 5, 1981, directing the appellee to pay $595 per month towards the support of his wife (appellant hereinafter) and his two minor children, Gregory and Andrea, allocated $210.00 per month per child and $175 per month for appellant.

Appellant argues that the support order entered by the lower court constituted an abuse of discretion. We agree and for the following reasons we reverse and remand for a rehearing.

In deciding this case, we are guided by the following rules of law which set forth our scope of review and which we reviewed in Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Super. 390, 358 A.2d 102 (1976):

The appellate review of support orders is very narrowly defined and upon appellate review, we will not, and indeed should not, interfere with the lower court’s determination absent a very clear abuse of discretion. Commonwealth ex rel. Sosiak v. Sosiak, 177 Pa.Super. 116, 111 A.2d 157 (1955).
It is not for us to decide whether we would have made a similar order, or in fact, any order at all, but merely to determine whether the trial court is chargeable with abuse of discretion. Commonwealth ex rel. Groff v. Groff, 173 Pa.Super. 535, 98 A.2d 449 (1953). As our court stated in Irwin Borough Annexation Case (No. 1), 165 Pa.Super. 119, 133, 67 A.2d 757, 764 (1949):
An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused. Mielcuszny v. Rosol, 317 Pa. 91, 93, 176 A. 236. “When the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.” In re Garrett’s Estate, 335 Pa. 287, 292, 6 A.2d 858, 860.

Appellant and appellee were married on June 27, 1970. Two children were born of this marriage: Gregory was born March 5, 1975 and Andrea was born November 4, 1978. The parties separated on December 25, 1978 and the children continued to reside with appellant. Shortly after the separation appellee moved from Pennsylvania to San Jose, California and in January, 1979 the appellant filed a petition for support in Bucks County, Pennsylvania, under the Revised Uniform Reciprocal Enforcement of Support Act, 42 Pa.C. S.A. § 6741 et seq.; 1976, July 9, P.L. 586, No. 142, Sec. 2, eff. June 27, 1978. In June or July of 1979, the court in California entered an unallocated order of $600 per month for appellant and the two children.

On October 2, 1980, appellant filed the present support petitions in the Court of Common Pleas of Bucks County, Commonwealth of Pennsylvania and. therein she requested the sum of $1025 per month for herself and her two children.

The parties appeared for a pre-hearing conference before a domestic relations officer of the Domestic Relations Section in Bucks County Court of Common Pleas in February of 1981 and they each submitted financial data statements. Since the parties could not reach an agreement, the matter was referred for a hearing before a Judge of the Common Pleas Court of Bucks County.

The financial data which was submitted by the parties to the domestic relations officer at the pre-hearing conference does not appear as part of this record; thus, our review, limited as it is, has been made extremely difficult.

We do know that appellant was unemployed at the time of the court hearing and had been unemployed since January of 1975. As already indicated, the parties’ first child, Gregory, was born March 5, 1975. Their second child, Andrea, was born November 4, 1978 and so at the time of the court hearing, Gregory was a little over 6 years old and Andrea was a little over 2V2 years old.

Appellant testified that she taught in a parochial elementary school from September, 1969 through January, 1975 (N.T. 10). ■ Although appellant did not testify as to her earning as a teacher, appellee testified that she earned approximately $5800 per year.

Appellant’s testimony with reference to her expenses indicated that she was paying $380 per month rent for a townhouse owned by her parents. (N.T. 5, 12). After making several adjustments to the list of expenses she had presented at the pre-hearing conference on February 20, 1981 (N.T. 5), she testified that her total monthly expenses had risen from $1074 to $1124. (N.T. 10).

Appellee is 33 years of age and at the time of the pre-hearing conference, he resided at 4405 Norwalk Drive, San Jose, California. He is employed by Johnson and Johnson Dental Products Company, a division of the Johnson and Johnson Company.

Appellee’s testimony with reference to his present income is confusing and uncorroborated by documentation. The only documentary evidence pertaining to his income was his 1979 United States Individual Tax Return Form 1040, which was introduced into evidence by appellant. (Exhibit P-1, N.T. 59a).

That tax return for 1979 showed total earnings from wages of $43,736, less a “moving expense adjustment” of $2,563, and an adjusted gross income of $41,173. However, appellee testified that his actual salary in 1979 was only $26,500; the difference, he said, between $43,736, which he represented as total wages, and his actual salary, constituted relocation expenses paid by his company for his move from New Jersey to California. He testified further that the difference of $17,236, his company’s expense, was money he never saw, but which he nevertheless had to report as income and pay the tax thereon. (N.T. 20) His present move from California back to New Jersey will result in a relocation cost to his company of approximately $20,000 to $25,000; again, he says he will never see any of that money but will nevertheless be required to report it as income and pay the tax thereon. (N.T. 22, 23)

Appellee testified, again without any supporting documentation, that his salary in 1980 was $31,750 and that his new salary beginning in June, 1981, will be $36,000. (N.T. 21)

We find it incredible that appellee would report as income and pay a tax on his company's relocation expense of $17,236 in 1979 and $20,000 to $25,000 in 1981 without ever seeing any of the money. His increase in salary for the new position is $4,250—yet he will have to pay U. S. Income Tax on $20,000 to $25,000; cash which he will never see. His employer, we are asked to believe, pays these relocation expenses, over and above those that appellee pays; but to whom and for what? At the very least, the lower court should have requested proof of these employer payments.

Even if this were all as appellee says it is, we would still reverse for reasons which follow.

In fixing the amount of the order entered, the lower court found that appellant had an earning capacity of $5,800. Appellant is unemployed, has not worked since 1975, and has two small children at. home, ages 6 and 2V2 years.

With characteristic wisdom the citizens of the Commonwealth adopted their own version of an Equal Rights Amendment. The Amendment, adopted May 18, 1971, provides as follows:

“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

Before passing the Equal Rights Amendment, it had long been held that the “primary” duty of support for minor children was firmly fixed with the father. Commonwealth ex rel. Bortz v. Norris, 184 Pa. Super. 594, 135 A.2d 771 (1957); Commonwealth ex rel. Silverman v. Silverman, 180 Pa.Super. 94, 117 A.2d 801 (1955). This was so even though our courts recognized that the separate earnings of the mother could be considered in setting the amount of the support order against a father. Commonwealth ex rel. Borrow v. Borrow, 199 Pa.Super. 592, 185 A.2d 605 (1962); Commonwealth ex rel. Yeats v. Yeats, 168 Pa.Super. 550, 79 A.2d 793 (1951).

The “primary duty” of the father concept was laid to rest in the landmark decision of Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). The court said:

“Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability.”

In another landmark case decided by this court, White v. White, 226 Pa.Super. 499, 313 A.2d 776 (1973) we held that:

“. . . a wife’s ‘earning capacity’ may be a material factor on arriving at a reasonable support order.”

The unanswered question was whether the court had to consider the mother’s earning capacity where there were minor children at home.

In Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977), appellant had a support order for her three minor children in the amount of $45 per week. The parties were separated when the order was entered. Later, following a divorce and when appellee’s income increased from $14,000 to $19,255, she filed a petition to increase. When her petition to increase was heard, the children were 10, 8 and 4 years of age. At the conclusion of the hearing, the lower court ordered appellee to pay $75 per week for support of the three children. Appellant took an appeal to this court and the issue presented for consideration was the lower court’s view that:

[petitioner, in addition to supporting herself, also had a responsibility to contribute toward the support and maintenance of her children. She has worked in the past as a secretary and a nurse, and although she is living with her parents, she presented no evidence of her inability to obtain or seek employment.

When questioned about her unemployed status, appellant in Wasiolek responded as follows:

A. I can’t find any work with three children, because I have to be there when they go to school and be there when they come home.
Q. Why do you have to be there when they go to school?
A. Someone has to make their breakfast and get them ready for school, and get their books together, and see they are properly dressed and that they make the bus on time.
Q. What time do they go to school?
A. Between 8 and 8:30.
Q. Do you go pick them up?
A. They are within walking distance of the bus, but I have to be in the house when they come home.
Q. Why?

A. Because there wouldn’t be anyone to care for them. The court reversed and remanded holding that:

We believe that the lower court in the instant case abused its discretion when it held, in effect, that appellant had to secure employment. It is no longer the law that a mother is presumed more fit to care for a child than a father. Commonwealth ex rel. Spiggs v. Carson, supra [470 Pa. 290, 368 A.2d 635]; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977). Thus, a court must base its custody on sexually-neutral grounds. Once custody of a very young child is awarded, the custodial parent, father or mother, must decide whether the child’s welfare is better served by the parent’s presence in the home or by the parent’s full-time employment. Hence, permitting the nurturing parent to remain at home until a child matures does not run afoul of the E.R.A.—our holding is based on sexually neutral considerations and on the best interests of the child. Of course, a court is not strictly bound by the nurturing parent’s assertion that the best interest of the child is served by the parent’s presence in the home. It is for the court to determine the child’s best interest. But the court must balance several factors before it can expect the nurturing parent to seek employment. Among those factors are the age and maturity of the child; the availability and adequacy of others who might assist the custodian-parent; the adequacy of available financial resources if the custodian-parent does remain in the home. We underscore that, while not dispositive, the custodian-parent’s perception that the welfare of the child is served by having a parent at home is to be accorded significant weight in the court’s calculation of its support order. Conway v. Dana does not require that a court be insensitive to the reality of a non-working parent’s contribution to the welfare of a child. Our Supreme Court did not intend to create a per se rule that the custodian parent was obliged to work in all cases.

In the case before us the appellee’s responses when questioned about her unemployed status were as follows:

Q. When did you decide to return to school as opposed to going back to work?
A. I returned to school in September, 1979-80.
Q. And if you desired to do so, you would as well used that time to earn money; it that correct?
A. Not really. I have no way to take care of the children. I can’t pay a sitter.
Q. Well the children aren’t going with you to school, are they?
A. I’m sorry, I don’t understand.
Q. You made arrangements so that you can pursue your educational activities for the children?
A. Right, yes.
Q. You could have made similar arrangements for the children to return to work, could you not?
A. For four hours a week, yes. This is what I was going to school. (N.T. 16-17)

In holding, in effect, that appellant with two minor children aged 6 and 2V2 years had to return to work, the lower court committed error.

Finally, at page 5 of its opinion, the lower court said: Husband suggested revisions in his list of monthly expenses which appeared to result in an increase of $200.50, from $2379.09 to $2579.59. These expenses do include husband, his paramour and her two children, for whom husband has no legal liability. However, husband is planning to marry this woman as soon as his divorce is finalized. A divorce decree was entered several days after the hearing. In addition husband owes attorney’s fees of $9800 incurred in litigation over custody and the divorce proceeding.

First, there is nothing in the record before us to substantiate that appellee’s monthly expenses were $2379.09. The appellee testified only as to changes in his projected monthly expenses as set forth on his financial data statement submitted at the pre-hearing conference and our analysis of his testimony indicates that his monthly expenses would be reduced rather than increased.

Secondly, appellee testified that the list of expenses he submitted included his paramour and her two children. Even though the lower court recognized this and deducted $80 per month for lunches for his paramour’s two children, we have no way of knowing what other expense items included his paramour and her two children or in what amount. We fail to understand the emphasis the lower court places upon the appellant and appellee being divorced several days after the hearing. Indeed, at the very beginning of the hearing in this matter, the lower court was advised that appellant and appellee had entered into a consent to divorce which was filed of record and which was in transit between the Domestic Relations Division and the Judge’s chambers. (N.T. 2) If this was true, and it obviously was, we fail to understand why the court awarded appellant $175 per month, an award which would have to be vacated several days after the hearing when the decree was entered. In our view the $175 per month so awarded to appellant should more properly have been considered as additional available income to appellee and in fairness should at least have been so considered in making an award for the two children.

Finally, there is nothing in the record to support the lower court’s statement that appellee owed his attorney $9800 in fees incurred over custody and divorce proceedings. But even if this were so, appellant must also have had counsel fees, yet there was no mention of her fees by the lower court. Perhaps appellant was represented by community agency counsel and was not incurring counsel fees; however, we have no way of knowing if this was so.

Appellee’s largest monthly expense was $1140 for mortgage payment, which also includes taxes and insurance. He testified that he planned to buy a home in Plainsboro, New Jersey for the price of $95,400, where he would reside with his paramour and her two children. (N.T. 23, 24)

Appellee also offered the following testimony with reference to his proposed purchase of this new home under construction:

Q. Does you new job require either as an explicit written term of your position or as a matter of understanding, any difference in entertaining or other functions which technically are not on-the-job related?
A. Yes, it will. There’s an informal portion of my position which requires contact with people whom I’ll be serving in my capacity with Johnson and Johnson, and that will be in the form of entertainment socially at my home. That has an impact on my employability in the future. Again, an unwritten kind of impact, but certainly an impact. Very informal impact, I should say. (N.T. 25)

From this testimony, the lower court found that his employer expected him to undertake certain social obligations requiring him to acquire an appropriate home. The lower court further stated,

“We also took into consideration the high cost of suburban housing in northern New Jersey and the current high mortgage rates.” Slip Opinion at 5.

There is nothing in the record to suggest that appellee could not just as well comply with the informal understanding he had with his employer in a home which would keep his monthly expenses within the limit of his available monthly income. In any event his need to entertain at home must be balanced against the needs of his two minor children who live with appellee in a townhouse where the monthly rent is $380 per month.

For all of the foregoing reasons, we vacate the order of the lower court and remand for further proceedings consistent with this opinion.

CAVANAUGH, J., concurs in the result.

      . The record indicates that appellee had a conference with a domestic relations officer in California and that appellee suggested the amount of $600 per month. (N.T. 45, 46) It would appear that the amount of $600 was accepted by the domestic relations hearing officer and entered as an Order of the California Coart. The record does not indicate what amount appellant had requested in her reciprocal petition but it is clear that she acquiesced on said order.

      . We note that appellant’s petition filed in Bucks County was originally captioned “Petition to Increase Support Order.” Sometime later the words “to Increase” were scratched out and the word “for” was substituted. The word “Order” was also scratched out; consequently, the Petition as corrected, read “Petition for Support.”
      Although the reciprocal Order of $600 per month was still in effect and even though appellant asked that the sum be increased to $1025 per month, both parties agreed that any order entered in Bucks County would supercede the order entered in California and that the California order would be vacated (N.T. 49). We will therefore treat this appeal as being taken from an Order in a Petition for Support rather than from an Order in a Petition to Modify an Existing Order.

      . The lower court erroneously made a finding that appellant and her two children resided in a duplex owned by wife’s parents (Emphasis supplied). However, no testimony was presented that appellant had any income at all and the only finding the court made in this regard was that appellant had an earning capacity of $5800. Therefore the finding, though in error, was harmless. (Emphasis supplied) Slip Opinion 2, 5.

      . Appellant attached Form 3903, “Moving Expense Adjustment.” to his Form 1040 and he listed thereon his own out of pocket money expenses for transportation in moving household goods and personal effects; travel, meals and lodging in moving to his new residence; pre-move travel, meals and lodging in searching for a new residence and temporary living expenses in his new location. On these expenses which appellant claimed totalled $6200., the government allowed him a deduction of $2563. (Exhibit P—1, N.T. 61a)

      . In 1980 appellant received a bonus of $2,000 and shares of company stock worth approximately $750; however, he testified that he’s not sure what his bonus will be for 1981, if any. (N.T. 22) The lower court, quite properly, did not include the possibility of a bonus in his income. This court has repeatedly stated the rule that surmise and conjecture cannot take the place of evidence. Haimowitz v. Haimowitz, 221 Pa.Super. 364, 292 A.2d 502 (1972); Commonwealth ex rel. Shumelman v. Shumelman, 209 Pa.Super. 87, 223 A.2d 897 (1966).

      . We note that the “Moving Expense Adjustment” Form 3903 makes provision at Line 12 for the employee to set forth the reimbursements and allowances received for the relocation with the exception of amounts included in the employees W-2 Form. Here appellee indicated he received no reimbursement and we can only assume that it was included in appelee’s W-2 Form which unfortunately is not part of this record; however, the W-2 Form is supposed to reflect income the employee has received from his employer. (Exhibit P-1, N.T. 61a)

      . Pa.Const. Art. I, § 28.

      . Footnote 7 to the Opinion of the White court sets out certain relevant factors which the trial court should consider in determining whether an unemployed woman has any earning capacity whatsoever. Such things as: the age and health of the woman; prior work experience and skills; duration of any period of unemployment; and, the existence of minor children in the household; have all been considered as factors which must be taken into account in determining the ability of a woman to seek gainful employment.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    444 A.2d 748
    COMMONWEALTH of Pennsylvania v. Booker T. FAIRLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1981.
    Filed April 16, 1982.

      William G. Brown, Assistant Public Defender, West Chester, for appellant.
    Robert P. Brendzá, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

Following a jury trial, appellant, Booker T. Fairley, was found guilty of driving under the influence of alcohol. Post-verdict motions were denied and a one year period of probation was imposed. This direct appeal followed. We affirm.

On appeal, appellant raises two issues: (1) whether his right to a speedy trial under Pa.R.Crim.P. 1100 was violated; and (2) whether the evidence was sufficient to support his conviction.

The facts pertinent to appellant’s Rule 1100 claim are as follows:

On June 30, 1978, a criminal complaint was filed against appellant charging him with driving under the influence of alcohol. The 180 day period in which trial was to commence under Pa.R.Crim.P. 1100 would have expired on December 27, 1978. On November 27, 1978, one month prior to the expiration of the 180 day period, the prosecution petitioned the court for an extension of time in which to commence trial, asserting the trial court’s inability to schedule appellant’s trial within the period as the basis of its request. Following a hearing on the petition, the court below granted the Commonwealth’s application and entered an order extending the commencement of trial to March 26, 1979. Appellant was tried on March 21, 1979, and found guilty.

Appellant now contends that because the lower court erred in granting the Commonwealth’s extension petition, his right to a speedy trial was violated. We disagree.

To begin with, our Supreme Court has stated that a petition to extend the time for commencement of trial under Pa.R.Crim.P. 1100(c) may be granted:

“only upon a record showing: (1) the ‘due diligence’ of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.” Commonwealth v. Mayfield, 469 Pa. 214, 221-22, 364 A.2d 1345, 1349-50 (1976).

In the present case, the record reveals that the Commonwealth’s timely petition to extend was occasioned by the court’s inability to schedule appellant’s trial within the prescribed period. After a hearing on February 14, 1979, the lower court found that despite due diligence by the prosecuting authorities, the overcrowded court docket precluded the Commonwealth from bringing appellant to trial within 180 days. The Court Administrator testified that the Commonwealth was confronted with an administrative policy whereby, due to the backlog of cases and despite any exercise of due diligence, a low priority listing for trial was assigned to all Driving Under the Influence cases. Accordingly, only 3 to 4 percent of these cases could be reached within 180 days.

In Commonwealth v. Shelton, 469 Pa. 8, 18, 364 A.2d 694, 699 (1976), our Supreme Court held that an extension of time under Rule 1100(c) “may be justifiably granted . . . [in] [situations where the Commonwealth is prepared to commence trial prior to the expiration of the mandatory period but the court because of scheduling difficulties or the like is unavailable.” See Commonwealth v. Royer, 256 Pa.Super. 361, 389 A.2d 1165 (1978) (extension of time proper where trial could not be commenced because of an overcrowded court docket).

Accordingly, we conclude that the lower court properly granted the Commonwealth’s petition to extend because the delay in the instant case was attributable to an overcrowded court docket and could not be avoided despite due diligence by the Commonwealth.

Appellant also contends that the lower court’s failure to dispose of the Commonwealth’s petition to extend prior to the expiration of the prescribed 180 day period warrants his discharge. We disagree.

Instantly, the record reveals that the Commonwealth filed a timely petition to extend one month prior to the expiration of the run date. The lower court, however, acted upon the petition 79 days after it was filed and 49 days following the expiration of the run date.

Although our court has recognized that a ruling on a timely petition to extend the commencement of trial may occur after the run date, we have disapproved of such a practice because of the risks involved. As this court has stated:

“ ‘[t]he risk is obvious: if the court denied the extension after the period has run, the Commonwealth is prevented from bringing the accused to trial. If the petition is denied promptly, the Commonwealth may nonetheless be able to try the accused within the period. Because we conclude that the extension was properly granted and because the court’s inaction engendered no additional delay, ..., we do not need to address the issue further.’ ” Commonwealth v. Metzger, 249 Pa.Super. 107, 110, n.2, 375 A.2d 781, 783 n.2 (1977) (quoting Commonwealth v. Mancuso, 247 Pa.Super. 245, 250 n.3, 372 A.2d 444, 446 n.3 (1977)).

To begin with, the rule does not delimit a time period in which the petition must be acted upon by the court. However, we have examined speedy trial claims under Rule 1100 where the court delayed a hearing until after the period had run and commented that “[w]e can . . . imagine situations in which prejudice to the defendant would result from such a practice.” Commonwealth v. Metzger, 249 Pa.Super. at 110 n.2, 375 A.2d at 783 n.2. Thus, in order to prevent the risk of prejudice,

“ ‘the lower court should make every effort to dispose of the Commonwealth’s petition prior to the expiration of the prescribed period. Any delay past this period must be limited and will possibly be subject to explanation. Such procedure is mandated by the necessity that all concerned be aware of the status of the case. To require otherwise is unfair to the court, the accused, and the people.’ ” Commonwealth v. Simon, 283 Pa.Super. 203, 206, 423 A.2d 1060, 1061 (1981) (quoting Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976)).

While the record in the instant case does not disclose why the Commonwealth’s petition was scheduled to be heard seven weeks after the run date, appellant does not allege, nor does the record reveal that he was prejudiced by the court’s action. Therefore, under these circumstances, this Court need not inquire further into the reasons for the delay.

Next, appellant argues that the evidence was insufficient to sustain his conviction. We cannot agree.

With respect to this contention we must “[view] all of the evidence ... in the light most favorable to the Commonwealth[, draw] all reasonable inferences therefrom, [and determine whether] it [is] sufficient to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. . . . While the Commonwealth does not have to establish guilt to a mathematical certainty and may . . . rely wholly on circumstantial evidence, a conviction may not be based on mere conjecture or surmise.” Commonwealth v. Arizini, 277 Pa.Super. 27, 36-7, 419 A.2d 643, 648 (1980) (citations omitted).

Under the foregoing standard, the evidence establishes the following:

On June 30, 1978, Officer Alvero Cordone of the Pennsylvania State Police arrested appellant and charged him with driving under the influence of an intoxicating liquor. Officer Cordone testified that on the day in question, he was called to the scene of the accident shortly after its occurrence. Upon his arrival, he observed “a Plymouth sedan . . . in a ditch, just off of a curve,” and the operator of the vehicle, later identified as appellant, standing beside the car. (N.T. 3/21/79, p. 20). Cordone testified that appellant had a strong odor of alcohol on his breath, his eyes were bloodshot, and he had difficulty standing. Based upon these observations, Officer Cordone concluded that appellant was intoxicated and incapable of operating a motor vehicle. Officer Cordone informed appellant of his rights and transferred him to the Avondale State Police Barracks. Appellant then consented to a breathalyzer test which revealed that the amount of alcohol by weight in appellant’s blood was .19 percent.

Daniel Mast, a resident of the area, testified that he heard the crash and arrived at the scene of the accident within fifteen seconds. Upon his arrival, he observed a Plymouth sedan in a ditch with one occupant, later identified as appellant, positioned on the driver’s side of the vehicle. Mr. Mast observed appellant throw a bottle of alcohol down on a rock, causing it to break. Appellant had several lacerations on his face, his speech was slurred, there was an odor of alcohol on his breath, and, he “almost went onto the road ... in the way of an on-coming car” before Officer Cordone arrived. (N.T. 3/21/79, p. 38).

In his defense, appellant testified that on the day of the accident he was driving to a car dealership to have his car inspected in preparation for a scheduled trip to Florida. On his way to the dealership, an oncoming automobile crossed over the center of the highway into appellant’s lane of traffic. In an attempt to avoid the oncoming car, appellant swerved off the road and drove into a ditch. Because he was experiencing pain from bumping his head on the windshield and was worried about the accident, he took a drink of whiskey from a bottle in his car, then threw the bottle away. Appellant also testified that he had consumed two beers that morning.

It is now alleged that the evidence was insufficient to sustain the conviction for two reasons. First, appellant argues that the results of the breathalyzer test should be disregarded as evidence of his intoxication because the Commonwealth failed to establish the time or the date that the test was administered. Second, appellant argues that because he imbibed alcohol immediately after the accident, there was no evidence establishing that he was under the influence of alcohol at the time the accident occurred.

Instantly, however, we only can address appellant’s second contention because appellant has waived his right to challenge the admissibility of the breathalyzer test.

As to whether the Commonwealth presented sufficient evidence to sustain the conviction, we recognize that in finding appellant guilty of (1) operating a-motor vehicle, (2) while under the influence of alcohol, 75 Pa.C.S.A. § 3731; Commonwealth v. Arizini, supra, it was within the province of the jury to believe “all, part, or none of the evidence.” Commonwealth v. Arms, 489 Pa. 35, 38, 413 A.2d 684, 686 (1980).

Here, we first have the testimony of two witnesses who, based on their observation of the odor of alcohol on appellant’s breath, his bloodshot eyes, slurred speech, and difficulty in walking, opined that appellant was intoxicated. See Commonwealth v. Reynolds, 256 Pa.Super. 259, 267, 389 A.2d 1113, 1119 (1978) (intoxication is a matter of common observation and lay people are permitted to tender their opinion on the issue). Second, the breathalyzer test administered to appellant revealed a blood alcohol content of .19 percent. In this connection, we note that the trial judge properly instructed the jury that pursuant to 75 Pa.C.S.A. § 1547, there existed a noncompulsory presumption that anyone with an alcohol by weight content of .10 percent or more was under the influence of alcohol. Third, the mere occurrence of appellant’s accident could be used to draw the inference that appellant was driving under the influence of liquor since his loss of control of the vehicle could corroborate other evidence tending to show that his senses were impaired. See Commonwealth v. Arizini, supra. Finally, because the jurors were aware of appellant’s contention that he swerved into the ditch to avoid an oncoming car and imbibed alcohol after the accident, they were required to decide whether appellant’s accounting was credible. Commonwealth v. Borris, 247 Pa.Super. 260, 372 A.2d 451 (1977). Here, it is apparent that the jury chose not to accord any weight to appellant’s testimony and we see no reason to disturb its finding. See Commonwealth v. Arms, supra.

From a review of all the evidence, we are satisfied that the jury could find, beyond a reasonable doubt, that appellant was operating a motor vehicle while under the influence of alcohol. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3731 (1977).

      . Pa.R.Crim.P. 1100(a)(2) requires: “[t]rial in a court case in which a written complaint is filed against the defendant after June 30, 1974 [to] commence no later than one hundred eighty (180) days from the date on which the complaint is filed.” For purposes of this appeal, we cite the applicable provisions of Pa.R.Crim.P. 1100 as they appeared prior to the Rule’s amendment on October 22, 1981.

      . Section c, Pa.R.Crim.P. 1100 states:
      At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . See Commonwealth v. Miller, 270 Pa.Super. 178, 181 n.4, 411 A.2d 238, 239 n.4 (1979) (rev’d on other grounds) (disposition of extension petition 117 days after run date does not violate speedy trial rights); Commonwealth v. Metzger, 249 Pa.Super. 107, 110 n.2, 375 A.2d 781, 783 n.2 (1977) (extension hearing held 16 days subsequent to expiration of run date permissible under Pa.R.Crim.P. 1100(c)); Commonwealth v. Lane, 245 Pa.Super. 146, 369 A.2d 335 (1976) (hearing during term of court immediately following term during which petition was presented is proper). But see Commonwealth v. Prillerman, 260 Pa.Super. 211, 393 A.2d 1228 (1978) (holding extension petition in abeyance for seven months clearly constitutes a violation of right to speedy trial).

      . Appellant’s allegation that the breathalyzer test is an impermissible consideration in sustaining his conviction, raised for the first time in his brief before this court, is waived. Our rules of criminal procedure clearly provide that unless otherwise permitted by the trial court, only those grounds raised in pre-trial proceedings or at trial may be considered in motions for a new trial and in arrest of judgment. Pa.R.Crim.P. 1123. Accordingly, appellant’s failure to object at the time the evidence was offered constitutes an abandonment of this claim. See Commonwealth v. Benson, 280 Pa.Super. 20, 30, 421 A.2d 383, 388 (1980).
      Additionally, we note that while it may be unrealistic to expect appellant to have objected to the introduction of this evidence at trial since he chose not to be represented by counsel, his failure to include this allegation in his post-verdict motions, prepared with the assistance of counsel, constitutes a waiver of his right to appellate review of this issue. Pa.R.Crim.P. 1123; Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).


author: POPOVICH, Judge: SPAETH, Judge,

text:
    444 A.2d 753
    Michael KLEIN, Appellant, v. Mark RAYSINGER, 600 Corp. t/a Neptune Inn, Michael Gilligan and Mr. and Mrs. William T. Gilligan.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed April 16, 1982.
    Petition for Allowance of Appeal Granted June 29, 1982.
    Joseph P. Ryan and John Paul Curran, Philadelphia, for appellant.

      John O’Rourke, Norristown, for appellees.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

Appellant, Michael Klein, filed a personal injury action in tort against appellee, Mark Raysinger, and others as a result of an automobile accident. Preliminary objections in the form of a demurrer were filed and sustained. This appeal followed. We affirm.

The facts which are undisputed are as follows:

On or about May 8, 1978, appellant was operating a motor vehicle on the Pennsylvania Turnpike which was struck in the rear by a vehicle which was driven by appellee. Prior to the collision and prior to being a patron of the Neptune Inn, Mark Raysinger was served beer and alcoholic beverages at the home of appellees, Mr. and Mrs. William T. Gilligan, by their son, Michael Gilligan. Appellant alleged that Mark Raysinger was visibly intoxicated at the time he was served at the Gilligan home. Appellees, Michael and Mr. and Mrs. Gilligan, filed preliminary objections to appellant’s complaint because, according to appellees, the complaint did not present a cognizable legal cause of action as to them. The trial court agreed and sustained their preliminary objections.

In this appeal, appellant contends that “the evolution of public awareness of that deadly combination [, an intoxicated driver and an automobile,] should dictate a revolution by the Courts of the traditional concepts of tort liability for the destruction occasioned by the indiscriminate consumption of alcoholic beverages.” Brief for Appellant at 2. We decline appellant’s invitation to overrule the law in this area.

The controlling case in this jurisdiction is Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973). In Manning, appellant, Clair Manning, was a passenger in an automobile driven by Russell Walters when an automobile accident occurred. In his complaint, appellant alleged that appellees, John Andy and Frank, individually and trading as J & F Rubber Company, had served intoxicating liquors at a company party to Walters while he was visibly intoxicated. The trial court:

“held that no cause of action was stated under any theory and specifically held that § 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, Art. IV, § 493(1), as amended, 47 P.S. 4—493(1), which defines certain unlawful conduct, does not impose civil liability upon appellees.

At the present time, Manning is still good law. Additionally, no compelling circumstances have arisen which warrant rejecting the principle enunciated in Manning and imposing liability on “nonlicensed persons . . . who furnish intoxicants for no remuneration.” Id. 454 Pa. at 239, 310 A.2d at 76. Thus, it is clear from the facts of the instant case, that appellant’s cause of action must fail.

SPAETH, J., files concurring statement.

SPAETH, Judge,

concurring:

I do not reach the question whether non-licensed persons are liable for furnishing intoxicants to others without compensation, for even on appellant’s theory, no cause of action is pleaded. It is not alleged that Michael Gilligan knew or should have known that Mark Raysinger was going to drive an automobile.

      . The record shows that appellant filed a five count complaint asserting causes of action against the driver, Mark Raysinger, the owners of the Neptune Inn, Michael Gilligan, and Mr. and Mrs. William Gilligan. The Gilligan Family filed the instant preliminary objections, which were granted, and which formed the basis of the instant appeal. Consequently, the complaint was dismissed as to the Gilligans only.

       The section in relevant part provides:
      “It shall be unlawful ... for any licensee or the board, or any employe, servant or agent of such licensee or the board or any other person, to sell, furnish or give any liquor ... or to permit any liquor ... to be sold, furnished or given, to any person visibly intoxicated

        Manning v. Andy, 454 Pa. at 239, 310 A.2d at 76 (Footnote in original).
      On appeal, the Superior Court affirmed per curiam. Manning v. Andy, 218 Pa.Super. 902, 279 A.2d 267 (1971). The Supreme Court granted allocatur and affirmed. Manning v. Andy, supra. In an opinion, the Supreme Court said the following:
      “[o]nly licensed persons engaged in the sale of intoxicants have been held to be civily liable to injured parties. Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964). Appellant asks us to impose civil liability on nonlicensed persons like appellees, who furnish intoxicants for no remuneration. We decline to do so. While appellant’s proposal may have merit, we feel that a decision of this monumental nature is best left to the legislature.” Id. 454 Pa. at 239, 310 A.2d at 76.

      . For edification purposes, we note that even though under the view-expressed in Justice Pomeroy’s concurring opinion, appellant’s complaint in tort would appear to be a cognizable one, since the complaint filed in Manning was not framed, like appellants, in ordinary tort law but was couched in the statutory language of the criminal Liquor Code, our result in the instant case remains unchanged. The majority in Manning v. Andy, supra, rejected unconditionally the principle of imposing civil liability on nonlicensed persons. Accordingly, because Manning commanded a four vote majority, it represents the view of our Supreme Court.


author: WATKINS, Judge:

text:
    444 A.2d 755
    CENTRAL PENNSYLVANIA SAVINGS ASSOCIATION, Appellant, v. CARPENTERS OF PENNSYLVANIA, INC. CENTRAL PENNSYLVANIA SAVINGS ASSOCIATION v. CARPENTERS OF PENNSYLVANIA, INC. Appeal of COMMONWEALTH NATIONAL BANK.
    Superior Court of Pennsylvania.
    Argued March 5, 1980.
    Filed April 16, 1982.
    Petition for Allowance of Appeal Granted July 19, 1982.

      Patrick T. Ryan and Kathleen Lynch, Philadelphia, for Central Pennsylvania, appellant (at No. 115) and appellee (at No. 125).
    Robert C. Spitzer, Harrisburg, for Commonwealth Nat. Bank, appellant (at No. 125) and for participating party (at No. 115).

      Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Dauphin County, and involves a dispute between two banking institutions as to the priority of their respective liens against real estate and the distribution of the proceeds of a sheriff’s sale.

On November 30, 1973, Central Pennsylvania Savings Association (CPSA) agreed to lend the sum of $1,289,500.00 to Carpenters of Pennsylvania, Inc. (Carpenters) in order to enable it to construct fifty (50) low-income residential units on a tract of land in the Borough of Steelton, Dauphin County. At closing the loan amount was reduced to $1,221,-500.00 and it was secured by a construction mortgage recorded against the tract of land on December 3, 1973. CPSA subsequently advanced a total of $1,211,103.87 to Carpenters pursuant to the construction mortgage.

The Commonwealth National Bank (CNB) also made a loan to Carpenters for the purpose of constructing twenty-eight (28) residential dwellings on a separate, but neighboring, tract of land. When Carpenters defaulted on the loan, CNB entered judgment against it in the amount of $778,-411.13 on November 6, 1974.

On January 6, 1976 CPSA confessed judgment against Carpenters in the amount of $817,010.19 pursuant to the mortgage and note dated November 30, 1973. CPSA then issued a writ of execution and directed the Sheriff of Dauphin County to sell the real estate on which the fifty (50) residential units were to be constructed at Sheriff’s Sale. At the Sheriff’s Sale, CPSA bid $812,000. However, CNB initiated a deficiency judgment proceeding prior to the sale and the court ruled that the CNB judgment should be credited in the amount of $178,656.10. After the Sheriff’s Sale the Sheriff’s Schedule of Distribution was prepared which indicated that the proceeds of the sale would be distributed entirely to CPSA based upon its mortgage which was recorded on December 3, 1973 and which, therefore, predated the CNB judgment which was dated November 6, 1974. CNB filed exceptions to the Sheriff’s distribution schedule asserting that its judgment of $178,656.10 had priority over the CPSA lien to the extent of the sum of $161,312.33 because CPSA’s lien had been in default and its advances after November 6, 1974 under the construction mortgage were voluntary. CNB’s exceptions were then subject to lengthy hearings before the court below. On January 25, 1979 the court below ruled in favor of CNB and sustained its exceptions to the Sheriff’s Schedule of Distribution. The court then ordered the Sheriff to pay CNB the sum of $149,220.23 with interest out of the proceeds of the Sheriff’s Sale. CPSA then appealed the court’s ruling. CNB then filed a cross appeal arguing that the court below erred in crediting CPSA with $11,000 of interest advances thereby reducing the amount ultimately due it from the Sheriff’s Sale by that amount. CNB also argues that CPSA’s appeal should be quashed as untimely because, instead of taking an appeal to this court within thirty (30) days of the January 25,1979 ruling, CPSA filed “exceptions” to said ruling which were dismissed on May 29, 1979. CPSA then appealed from the “Final Order” of the court below dated May 29, 1979.

With respect to CNB’s assertion to the effect that CPSA’s appeal was untimely and should, therefore, be dismissed the court below stated as follows:

“The Commonwealth National Bank did challenge the procedure which was followed in the instant situation. Commonwealth National Bank contended the verdict rendered January 25, 1979 constituted a “Final Order” as to which Central Pennsylvania Savings Association can seek relief only by an appeal. It bases its position on Pennsylvania Rule of Civil Procedure 3136 which governs the disposition of a sheriff’s schedule of distribution. The Rule provides in subsection (g) that the proceeds of sale may be paid into Court to await distribution or the Court may order the sheriff to invest the fund pending final disposition of the exceptions or “an appeal therefrom.” This argument by the Bank has not been accepted. Rule 1038 of the Rules of Civil Procedure, which is applicable to actions at law tried without a jury, clearly provides the authority to file exceptions to a Court’s decision following a trial without a jury. In addition, Rule 9.13 of the Rules for the Court of Common Pleas for Dauphin County recognizes that in actions at law or in equity, exceptions may be taken. Although Pennsylvania Rule of Civil Procedure 31-36(g) implies a right to appeal from the final disposition of the exceptions to the sheriff’s schedule of distribution, that right lies only from a final order sustaining or dismissing the exceptions to the sheriff’s schedule and unless authorized by statute, an appeal from an interlocutory order is premature and must be quashed. Since Central Pennsylvania Savings Association filed its exceptions timely after the Court’s decision, a final judgment could not be entered prior to argument and disposition of the exceptions. Thus, it is concluded that the exceptions of Central Pennsylvania Savings Association to the Court’s “Memorandum and Verdict” including findings of fact and conclusions of law were properly before the Court for argument and disposition by the Court en banc. See also 2 Goodrich Amram 2d 1038(b) :1 and 1038(e):2.”

We agree with the analysis of the court below with respect to this issue and will not quash the appeal.

The ultimate issue in the instant case is whether the CNB judgment takes priority over advances made by CPSA the mortgagee, under its construction money mortgage.

The court below found as a fact that:

“6. CPSA acknowledges that as of May, 1975, it was aware of the judgment of CNB and made advances thereafter of $20,393.42; but a meeting between officers of the institutions disclosed actual knowledge by CPSA in February of 1975.”

The court also found the CPSA retained control over a “loan in process account” into which the CPSA loan money was deposited to be “drawn against” as construction proceeded in accordance with the terms of the advance money mortgage contract “and that Carpenters paid interest only on the loan amounts after draws were made for payments to contractors and other vendors from that account”. The court further found that CPSA was required to make advances to Carpenters “only as per the terms set forth in the loan documentation which included the advance money mortgage contract” and that it advanced $167,213.33 to Carpenters subsequent to the date of CNB’s judgment (November 6, 1974).

It has been held that: “A creditor making non-obligatory future advances stands in the same position as one who is dealing with the debtor for the first time and, therefore, his lack of knowledge of a prior judgment does not give him priority over proceeds of a Sheriff’s sale.” Ter-Hoven v. Kerns, 2 Pa. 96 (1845). It is only when the advance money mortgagee is contractually obligated to make the advances that the lien relates back to the date of the mortgage. Housing Mortgage Corporation v. Allied Construction Co., 374 Pa. 312, 97 A.2d 802 (1953).

Thus, if CPSA was obligated to make the advances, they take priority from the date of CPSA’s mortgage and are not subject to CNB’s intervening judgment. The court below concluded that some of CPSA’s advances were non-obligatory because of Carpenters’ inability to pay interest, taxes, and insurance premiums when due and because of Carpenter’s failure to produce a viable marketing program pursuant to the loan contract. However, this reasoning ignores the fact that all the loan money was immediately transferred by CPSA into Carpenters’ escrow account at the bank at the time of the closing on the loan (November 30, 1973). Although Carpenters’ paid no interest on money until it was actually advanced in the course of construction and received no interest on the escrow account, the fact remains that the full $1,221,500 was transferred to the escrow account by CPSA a year prior to the time that CNB entered its judgment. Advances were indeed made from this account after November 6, 1974 (the date of CNB’s judgment) but all the money had been advanced to that account before that date. Thus, we find that the transfer of the money into the escrow account was more than a mere “bookkeeping device” as held by the court below. The transfer of said funds created an obligation on CPSA’s part to commit those funds to Carpenters as per the contractual agreement and Carpenters did not default on its obligation until July 1, 1975 when interest payments became two months in arrears. Insofar as Carpenter’s lack of a marketing program is concerned it must be noted that lack of such a program was not an event of default under any of the loan documents. Likewise we agree with CPSA’s argument to the effect that the lack of an inadequate marketing plan obviously increase as the project approaches completion. Thus, we do not accept CNB’s position to the effect that a default existed on November 6, 1974. As pointed out by CPSA such a holding would in effect mandate that a mortgagee should be legally obligated to foreclose on a mortgagor at the first sign of financial weakness. Important policy considerations militate against such a holding. Lendors should not be penalized for taking a co-operative approach to the financial difficulties of their debtors. Nor should they be discouraged from approving construction money mortgages which would indeed be the case if the decision and reasoning of the court below were correct. In Trustees of C.I. Mortgage v. Stagg of Huntington, Inc., 247 Pa.Superior Ct. 336, 372 A.2d 854 (1977), reversed on other grounds, 484 Pa. 464, 399 A.2d 386 (1979), we set forth two reasons for according preference over a prior construction mortgage to an intervening lien: actual notice to the senior lien (The Mortgagee) and the voluntary nature of the advances. In the instant case CNB did not give actual notice of its judgment of CPSA on November 6, 1974. The earliest date upon which it gave notice of the lien to CPSA was in February of 1975. Yet CNB knew of CPSA’s loan to Carpenters. Under these circumstances it is logical to place the greater burden upon CNB, the junior lienholder, since CPSA’s mortgage was recorded almost a year prior to CNB’s judgment and CNB, therefore, had notice of CPSA’s senior lien.

We hold that the court below erred when it found that CPSA’s advances were non-obligatory. We also hold that CNB, the junior lienholder, had the duty to provide actual notice to CPSA, the senior lienholder, of its junior lien before said lien could take priority of CPSA’s mortgage.

Thus, we reverse that portion of the lower court’s order directing the Sheriff to pay CNB the sum of $149,220.32 and remand the matter to the court below for proceedings consistent with this opinion.

      . To the extent that this reasoning is inconsistent with Ter-Hoven v. Kerns, supra, we believe that the instant holding reflects the more desirable and modem view with regard to the responsibilities of various lienholders toward each other.


author: WIEAND, Judge:

text:
    444 A.2d 758
    COMMONWEALTH of Pennsylvania Thomas Harry KERR, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1981.
    Decided April 16, 1982.

      Robert G. Kochems, Public Defender, Mercer, for appellant.
    Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   WIEAND, Judge:

This is an appeal from a judgment of sentence imposed following entry of a plea of guilty to theft by unlawful taking. Thomas Harry Kerr, the appellant, contends that because the victim was insured and received compensation from his insurer for the loss sustained, appellant could not properly be directed, as a part of his sentence, to make restitution. We disagree and affirm the judgment of sentence.

The Commonwealth contends that the issue of restitution has been waived by appellant’s failure to file a motion to “modify” his sentence in accordance with Pa.R.Crim.P. 1410. Appellant’s contention, however, is that the sentence imposed by the trial court is unauthorized and illegal. An illegal sentence cannot be waived. Commonwealth v. Walker, 468 Pa. 323, 330, 362 A.2d 227, 230 (1976); Commonwealth v. Brazzle, 272 Pa.Superior Ct. 438, 442, 416 A.2d 536, 539 (1979); Commonwealth v. Albertson, 269 Pa.Superior Ct. 505, 510 n.7, 410 A.2d 815, 817 n.7 (1979); Commonwealth v. Young, 256 Pa.Superior Ct. 392, 394, 389 A.2d 1180, 1181 (1978); Commonwealth v. Stouffer, 241 Pa.Superior Ct. 142, 146 n.2, 359 A.2d 829, 831 n.2 (1976). But cf. Commonwealth v. Lauer, 265 Pa.Superior Ct. 542, 402 A.2d 678 (1979). Thus, we are required to consider the merits of appellant’s argument.

“In Pennsylvania restitution can be imposed either as a condition of probation or as a direct sentence.” Commonwealth v. Erb, 286 Pa.Superior Ct. 65, 73, 428 A.2d 574, 578 (1981) quoting Commonwealth v. Fuqua, 267 Pa.Superior Ct. 504, 509, 407 A.2d 24, 26 (1979). Authority for ordering restitution as a direct sentence is contained in Section 9721(c) of the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, § 1, as amended, 42 Pa.C.S.A. § 9721, which provides:

(c) Restitution.—In addition to the alternatives set forth in subsection (a) of this section the court may order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained.

Authority to order restitution as a sentence is also conferred by Section 1106 of the Crimes Code, Act of June 18, 1976, P.L. 394, No. 86, § 1, as amended, Act of April 28, 1978, P.L. 202, No. 53, § 7(5), 18 Pa.C.S.A. § 1106, which provides:

§ 1106. Restitution for injuries or property
(a) General rule.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
(b) Condition of probation or parole.—Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, his compliance with such order may be made a condition of such probation or parole.

Appellant and one Walter Gramsky removed $2,683.67 from the safe of appellant’s employer, after having broken a window in the place of business and having drilled a hole in the safe to divert suspicion from appellant. The loss and damages caused were in the total amount of $3,271.68. It was this amount for which appellant was directed to make restitution. Appellant contends that the victim’s only loss was $600.00 because all amounts in excess thereof were covered by insurance. He argues that restitution in excess of $600.00 is in reality a payment to an insurance company. Inasmuch as the insurer was not the victim of his crime, he argues, the order of restitution was improper. We reject this argument for several reasons.

In the first place, appellant’s argument misconstrues the purpose and intent of the statutes authorizing restitution. “As a sentence, or a condition of sentence, imposed following a criminal conviction, an order of restitution is not an award of damages. While the order aids the victim, its true purpose, and the reason for its imposition, is the rehabilitative goal it serves by impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.” Commonwealth v. Erb, supra, 286 Pa.Super. at 77-79, 428 A.2d 574, 580-581 (1981) quoting Commonwealth v. Fuqua, supra, 267 Pa.Super. at 508, 407 A.2d at 26 (citations omitted) (emphasis supplied).

Appellant’s second argument that the insurance proceeds paid to his victim reduced the victim’s actual compensable loss to $600.00 is also without merit. The injury sustained by the victim as a direct result of appellant’s criminal conduct was $3,271.68. Appellant cannot be heard to complain that because his victim had the foresight to purchase a contract of insurance, appellant’s criminal conduct only caused an injury in the amount of $600.00. The courts of Illinois have addressed this argument; and we find their reasoning persuasive. “According to defendant, the victim was Bloomfield, and his ‘actual out of pocket loss’ was $518.45, or the value of the stolen guns less the money he received from his insurance company. . . . Bloomfield’s ‘actual out of pocket loss’ was the value of the stolen guns. The fact that he had a contract of insurance which reimbursed him for part of such loss does not decrease the amount of the loss. Our view is supported by the analogous collateral source rule of damages in tort.” People v. Wilson, 87 Ill.App.3d 544, 549, 42 Ill.Dec. 500, 504, 408 N.E.2d 1209, 1213 (1980). See also: People v. Knowles, 92 Ill.App.3d 537, 538, 47 Ill.Dec. 206, 208, 414 N.E.2d 1322, 1324 (1980); People v. Abraham, 89 Ill.App.3d 786, 787, 45 Ill.Dec. 9, 10, 412 N.E.2d 45, 46 (1980); In Interest of F.D., 89 Ill.App.3d 223, 230, 44 Ill.Dec. 834, 840, 411 N.E.2d 1200, 1206 (1980). The principle supporting the collateral source rule is “ ‘the judicial refusal to credit to the benefit of the wrongdoer money or services received in reparation of the injury caused which emanate from sources other than the wrongdoer.’ ” Feeley v. United States, 337 F.2d 924, 926 (3rd Cir. 1964) quoting Maxwell, The Collateral Source Rule in the American Law of Damages, 46 Minn.L.Rev. 669, 670-671 (1962). This principle is equally applicable where a criminal defendant’s conduct has caused an injury which is partially or totally compensable under a contract of insurance.

Finally, there is no merit in appellant’s argument that the insurance company’s right of subrogation transforms the sentence into an order directing payment to one who was not the victim of the crime. Appellant has no standing to question contractual or subrogation rights which govern disposition of moneys paid via restitution to the victim. As the court of a sister state observed in State v. Rose, 45 Or.App. 879, 881, 609 P.2d 875, 876 (1980), “[t]he owner of the stolen vehicle is the ‘victim’ and restitution will be paid to him. The fact that the owner may be contractually bound to pass on the payments to his insurer does not alter the validity of the order; ‘[t]he reparation statute is a rehabilitative tool of the criminal law; its applicability should not be affected by the happenstance of whether the owner carries insurance.’ ”

The judgment of sentence is affirmed.

JOHNSON, J., concurs in the result.

      . The judgment of sentence reads as follows:

        AND NOW, on this 2nd day of January, 1981, it is the sentence of this Court that the Defendant pay the costs and be imprisoned in the Northwest Regional Jail for a period of not less than six (6) months nor more than twenty-three months and pay restitution in the amount of Three Thousand Two Hundred Seventy-One Dollars and Sixty-Eight Cents ($3,271.68).

      . Formerly 18 Pa.C.S.A. § 1321(c).


author: BECK, Judge: WIEAND, Judge,

text:
    444 A.2d 1166
    Nicholas F. VALERIO v. Sylvia VALERIO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 31, 1981.
    Filed Feb. 5, 1982.
    Reargument Denied May 12, 1982.

      Douglas W. Reed, Pittsburgh, for appellant.
    Richard F. Welsh, Pittsburgh, for appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

This is an appeal from Decree entered December 17, 1980, after hearing on appellant-wife’s exceptions to the Master’s report, finding that appellant-wife committed wilful and malicious desertion, and was absent from the habitation of the injured and innocent spouse, without reasonable cause, for and during the term and space of two years. The decree divorced the parties from the bonds of matrimony.

Appellant-wife asserts on appeal that:

(1) Appellee-husband is precluded from claiming that he had sufficient cause to leave the marital residence since this has already been litigated and determined against him; and
(2) The evidence presented by appellee-husband is insufficient under the law to establish either wilful and malicious desertion by appellant-wife or that appellee-husband is an innocent and injured spouse. We find that appellant-wife prevails on both grounds.

The complaint in the instant action at No. 0429 July 1978 filed by appellee-husband herein recited that the prior actions in divorce filed by appellee-husband were:

“An action filed at 3946, July of 1974, in the Court of Common Pleas of Allegheny County, Family Division, June 26, 1974. Order of Court withdrawing action in divorce filed December 1,1974, and an action filed at 0263, October Term, of 1976, wherein the divorce on the grounds of indignities were denied.”

In fact, the record reveals that No. 0263, October Term, of 1976 (hereinafter referred to as the 1976 action) asserted both indignities and desertion as grounds. The following facts with regard to the procedural posture of the grounds asserted were found in the 1976 action by the honorable court en banc which heard exceptions to that Master’s report filed by appellee-husband herein:

“A side bar conference was held off the record after which the plaintiff moved to amend his complaint to strike the grounds of desertion and elected to proceed on indignities only.”

On exceptions, appellee-husband then claimed that the Master had required him to elect to proceed on either the grounds of indignities to the person or desertion. The court found no such requirement on the record, but reviewed the record with regard to both asserted grounds due to appelleehusband’s assertion that he did not, in fact, wish to abandon the claim of desertion. The court held:

“After a careful independent review of the whole record, this court is convinced that, if the plaintiff had in fact been put to an election, such ruling would be harmless error.
“We are therefore satisfied by the record that the defendant has not indulged in a course of conduct which warrants a decree in divorce on the grounds of indignities to the person, nor did the defendant desert the plaintiff and thus the plaintiff is not entitled to the granting of a divorce from the bonds of matrimony.”

Appellee-husband has not appealed from the order entered in the 1976 action, nor does he claim any error in that decree. He simply asserts that the former action related to indignities only and is irrelevant to the instant action.

We find that in the 1976 action, adjudication of which was entered March 12, 1978, Judges Brosky and Narick specifically found that appellee-husband had engaged in a course of conduct which would have justified appellant-wife in leaving the marital abode. This finding was made after appellee-husband sought to assert his claim of desertion in that action after having abandoned the claim before the master. Even if, due to the confused procedural posture of the claim of desertion in that action, we do not treat it as a final ruling on the ultimate issue, nonetheless the findings of fact cannot be ignored. Those findings are unchallenged by appellee-husband.

However, in the instant case even if this court looks at the testimony by appellee-husband as totally true, what appellee-husband has testified to is his own desertion of appellant-wife.

While this court must give full consideration to the Master’s specific findings as to credibility, as well stated in Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980):

“In a divorce case it is the responsibility of this court to make a de novo evaluation of the record of the proceedings and to decide independently of the master and the lower court whether a legal cause of action in divorce exists. Steinke v. Steinke, 238 Pa.Super. 74, 357 A.2d 674 (1975). The master’s recommendation is advisory only.”

See Nacrelli v. Nacrelli, 288 Pa. 1, 136 A. 228 (1927).

A review of the entire record in this action, including the findings of fact included in the record of this action made in the related 1976 action and those made December 11,1980 in opinion by Kaplan, J., reveals the following:

“On Labor Day, 1963, the defendant [appellant-wife] had an operation to remove a brain tumor.”
“After her operation, testimony showed that the plaintiff [appellee-husband] took virtually no interest in his wife’s physical or mental well-being. Rather, he spent little time with his wife and son, eventually started to see another woman, and finally left his wife eight months after her brain tumor was removed.”

Appellee-husband testified that in May of 1964, he and his wife argued, and the following occurred:

“I think I was in the kitchen. We had a phone in the bedroom. She went to the bedroom and she came out. She said: ‘My dad wants to talk to you.’ I said: ‘For what reason.’ She said: T told him what happened.’ I said: ‘Well, it is none of his business.’ She said: ‘Well, he wants to talk to you. He is going to knock some sense in your head.’ ”

Appellee-husband testified that he did “get on the phone” with appellant-wife’s father and has no idea whether her father came to the home because:

“[W]hen I hung up, I left.”

Appellee-husband testified that he did “visit” with his wife at what had been their marital abode, but that the reason he did not return to live with her was:

“Well, because first of all in trying to get back with my wife, there was no way that I would have any kind of a life with her unless I would try to, you know, try to make her understand that it was for her and I was trying to get together; but every time we tried, she would just keep arguing with me; and I just didn’t feel I wanted to go through that at that time.”

As stated by this court in Melli v. Melli, 253 Pa.Super. 286, 384 A.2d 1347, 1349 (1978), citing Zorn v. Zorn, 382 Pa. 319, 114 A.2d 907 (1955) constructive desertion is made out when:

“The innocent spouse [shows] that he or she was wilfully or maliciously put out of the common home by force or justifiable fear of immediate bodily harm . . . . ”

While the conversation described by appellee-husband, even if taken as unjustified, might cause appellee-husband to absent himself for an hour or so while tempers cooled simply to avoid argument, it is very far from constituting an immediate threat of harm of any kind. Furthermore, the conduct by appellee-husband found as a fact by Judges Brosky and Narick clearly did justify appellant-wife in seeking comfort from her family and in asking her family to intercede for her to try to talk appellee-husband into changing his conduct. It is clear that appellee-husband deserted appellant-wife without justification and further, by his own admission, refused to move back into the marital abode. In this light, the later purported attempts at reconciliation become irrelevant. While they might, if appellant-wife’s testimony is totally ignored, rise to a defense to an action by appellant-wife for divorce, the case does not come to us in this posture. A deserted party is “not required to seek a reconciliation.” Yohey v. Yohey, 205 Pa.Super. 329, 208 A.2d 902, 905 (1965) and see Chasman v. Chasman, 161 Pa.Super. 77, 81, 53 A.2d 876 (1947) (“Libellant [deserted party] had no duty to invite her back or to attempt reconciliation.”)

Finally, under our duty of de novo review of the record, we note that the appellee-husband’s testimony is replete with inconsistencies and is not credible on its face. In light of this, and in light of prior findings of fact based upon the testimony by independent witnesses, we find that the testimony by appellant-wife that she did, and does, wish to resume marital life with appellee-husband if he will divest himself of other women and if he will discontinue subjecting her to conduct no spouse need put up with, should be given full credit.

In this case, appellee-husband has failed to show that he was wilfully and maliciously deserted without reasonable cause.

The decree of the lower court is therefore reversed, appellee-husband’s request for divorce from the bonds of matrimony is denied, and a decree is entered for appellant-wife in this action.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. My review of the record discloses that appellee did establish by competent evidence that appellant was guilty of desertion; and therefore, I would affirm the decree of divorce entered by the trial court.

The evidence in the instant case is conflicting. The parties were married on May 12, 1962, and lived together until May 27,1964. At the time of the hearing before the Master, they had been living separate and apart for more than fifteen years. Their separation was precipitated by an argument, at the conclusion of which appellant-wife’s father threatened by telephone to come over and “knock some sense” into appellee-husband’s head. Immediately thereafter, appellee left the marital home. He testified that following his departure he made repeated attempts to reconcile, and on at least one occasion had made arrangements to lease an apartment so that his wife could rejoin him and they would be able to cohabit as husband and wife. He testified that all of his requests for reconciliation were rejected by his wife. Although this testimony was contradicted by appellant, the Master found appellee’s testimony more credible. The Master, therefore, recommended, and the court found, that appellee was entitled to a divorce on the grounds of desertion.

On appeal, it is the duty of an appellate court “to make an independent study of the record and to determine whether a legal cause of action for divorce exists.” Schrock v. Schrock, 241 Pa.Superior Ct. 53, 57, 359 A.2d 435, 437 (1976). Although an appellate court is not bound by the Master’s findings, where the issue is one of credibility the Master’s findings should be given the fullest consideration, as he or she had the opportunity to hear and observe the witnesses. Where the ultimate decision rests on disputed testimony, the Master’s determination is particularly persuasive. Gehris v. Gehris, 233 Pa.Superior Ct. 144, 148, 334 A.2d 753, 755 (1975).

Desertion has been statutorily defined as the “willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for and during the term and space of two years . . . . ” Act of May 2, 1929, P.L.1237, § 10, 23 P.S. § 10(d). Where one spouse is ejected by force or compelled to leave the marital home because of a threat of force and a reasonable apprehension that such force will be employed, constructive desertion has been established. The force or threat thereof may be imposed by the spouse or by a relative of the spouse. See 1 Freedman, Law of Marriage and Divorce in Pennsylvania, § 243 (2d ed. 1957). Constructive desertion has long been recognized as a form of desertion and thus grounds for divorce in Pennsylvania. See: Melli v. Melli, 253 Pa.Superior Ct. 286, 384 A.2d 1347 (1978); Heimovitz v. Heimovitz, 161 Pa.Superior Ct. 522, 55 A.2d 575 (1947); Reiter v. Reiter, 159 Pa.Superior Ct. 344, 48 A.2d 66 (1946). Desertion can also be established by proof of the rejection of a bona fide offer to resume the marital relationship. This is so regardless of whether the separation had been consensual or the result of one spouse’s desertion. See: Freedman, supra, §§ 237, 240.

I find it unnecessary to decide whether appellant-wife was guilty of constructive desertion by compelling appellee to leave the marital home on May 27, 1964, following a quarrel and the threat by appellant’s father to knock some sense into appellee’s head. It may well be that this did not constitute ejectment by force or the threat of force sufficient to require appellee to abandon the common home. See: Scanga v. Scanga, 167 Pa.Superior Ct. 133, 74 A.2d 723 (1950); Heimovitz v. Heimovitz, supra; Reiter v. Reiter, supra; Barnes v. Barnes, 21 D. & C. 101 (C.P.Cumberland Co. 1934). It does not follow, however, that appellee’s departure from the marital home following the quarrel and threats was without cause so as to make him a deserting spouse. See: Reiter v. Reiter, supra.

Moreover, and in any event, if appellant rejected good faith efforts to reconcile initiated by appellee thereafter, she became a deserting spouse. The Master recommended, and the trial court found, that within two years after separation appellee made repeated, good faith offers to reconcile and resume the marital relationship with appellant. I am unable to agree with the majority that those attempts to reconcile are irrelevant. On the contrary, when appellant refused to return and live with her husband in response to his good faith offers to reconcile, appellant became the deserter. Whelan v. Whelan, 183 Pa. 293, 38 A. 625 (1897); Hardie v. Hardie, 162 Pa. 227, 29 A. 886 (1894); Bauder’s Appeal, 115 Pa. 480, 10 A. 41 (1887); Grove’s Appeal, 37 Pa. 443 (1861); Laterza v. Laterza, 124 Pa.Superior Ct. 103, 188 A. 89 (1936); Walsh v. Walsh, 117 Pa.Superior Ct. 579, 178 A. 399 (1935); Ward v. Ward, 117 Pa.Superior Ct. 125, 177 A. 515 (1935); McDermott v. McDermott, 113 Pa.Superior Ct. 255, 173 A. 746 (1934); McDonald v. McDonald, 108 Pa.Superior Ct. 80, 164 A. 830 (1933); Weisbrod v. Weisbrod, 103 Pa.Superior Ct. 267, 156 A. 542 (1931); Kurniker v. Kurniker, 94 Pa.Superior Ct. 257 (1928); Kelly v. Kelly, 51 Pa.Superior Ct. 603 (1912). After two years, that desertion ripened into a valid ground for divorce. Bauder’s Appeal, supra; Barnes v. Barnes, supra.

The majority also implies that the instant action may be barred by a prior action in which appellee was denied a divorce on the grounds of indignities. However, my examination of the record in the instant case discloses that the defense of res judicata and/or collateral estoppel was not raised in the proceedings before the Master, was not the subject of appellant’s exceptions to the Master’s report, was not considered in the opinion of the court below, and has not been preserved as a “question involved” in the instant appeal. These potential defenses, therefore, have been waived. They raise complex issues which have not been argued by the parties and which I find it unnecessary to decide.

The parties have been separated for more than 17 years. Their marriage has been irretrievably broken. I would acknowledge legally what the parties have achieved in fact and affirm the decree of divorce.

      . This action was brought under Act of May 2, 1929, P.L.1237, 23 P.S. § 10(d) and is governed by that act as interpreted by the appellate courts of the Commonwealth.

      . Opinion by Judge Narick, March 12, 1978, p. 3.

      . This court is totally reliant upon the judge of the lower court as to the content of the Master’s report since the said report is not included in the record to this court and cannot be located after the efforts of the Prothonotary of this court.

      . Master’s report in 1976 action. That report found that “it is your Master’s opinion that the testimony of the plaintiff was not credible while that of the defendant was frank and responsive for the most part. Defendant’s testimony was corroborated by witnesses .... ”

      . - Master’s report in 1976 action.

      . Hearing of February 6, 1979, 10-11, and 13.

      . The parties did not make application to proceed under the new Divorce Code of 1980, and the provisions of that law were not considered by the court below.


author: BECK, Judge:

text:
    444 A.2d 1170
    COMMONWEALTH of Pennsylvania v. Barbara Jean MYERS. Appeal of DEPARTMENT OF REVENUE.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1981.
    Filed Feb. 5, 1982.
    Reargument Denied May 18, 1982.
    Petition for Allowance of Appeal Denied Sept. 14, 1982.

      Christos A. Katsaounis, Harrisburg, for appellant.
    Barbara Orsburn Stump, York, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

On April 21, 1979, pursuant to a search warrant, the police searched the residence of Barbara Jean Myers and her husband, and found and seized quantities of marijuana stored throughout the premises. At the same time, they searched Ms. Myers’ pocketbook, and found and seized three thousand, seven hundred and ninety dollars ($3790.) in cash. Ms. Myers was arrested and charged with possession of a controlled substance with intent to deliver, and with conspiracy to possess a controlled substance with intent to deliver. Ms. Myers was not charged with sale or delivery of a controlled substance. The money seized from Ms. Myers was placed in the custody of the District Attorney of Adams County. On pretrial motions, Ms. Myers sought return of the money, and this was refused on the grounds that it was to be used as evidence at trial.

On October 10, 1979, the Pennsylvania Department of Revenue filed a tax lien against Ms. Myers and her husband in the amount of $311,389.01 for taxes owed. Pursuant to the tax lien, the Department of Revenue prepared a Writ of Execution and obtained service of the Writ on the District Attorney of Adams County, seeking to attach the $3790. in his custody.

Apparently, the District Attorney neither delivered up the fund to the Department of Revenue in response to the Writ nor did he notify the Department of Revenue of his refusal to do so. It appears that he simply ignored the Writ of Execution, continuing to hold the money for possible use as evidence.

On November 1, 1979, following trial by jury, Ms. Myers was found guilty of the criminal charges filed against her. The money was not introduced as evidence at trial. With her omnibus post-verdict motions, she filed a Motion under Pa.R.Crim.P. 324 for Return of Property, seeking return to her of the money seized by the police. On March 31, 1980, the motion was denied on the grounds, as will be further discussed below, that the fund represented derivative contraband and was therefore forfeited to the state. The judge deferred specific determination of the disposition to be made of the fund until sentencing.

On November 12, 1980, more than a year after the end of the criminal trial, sentencing hearing was held and sentence imposed. As a part of her sentence on the criminal charges, the court imposed a fine of $5000, and directed that “the sum of $3790. presently in the possession of the Commonwealth be first applied to the costs of this proceeding and thereafter shall be applied to the fine imposed in this matter.” Although the record reflects that the parties were aware of the tax lien filed by appellant Department of Revenue, the court was not made aware of the writ served upon the District Attorney, and no notice either of denial of the Rule 324 Motion or of the confiscation of the money by fine was directed to be given to the Department of Revenue. Actual notice of this disposition was given to the Department of Revenue by a copy of the order of sentence forwarded by the District Attorney to the Assistant Attorney General by letter dated November 26, 1980. The appellant admits receipt of notice “on or about November 26, 1980.”

Twenty one days later, on December 17, 1980, the Department of Revenue filed a Motion to Amend the Order of Sentence, seeking deletion of the portion which directed that the money be applied as costs and fine and seeking payment over to Department of Revenue of the $3790. The court denied this motion on March 3, 1981, and the Department of Revenue filed notice of this appeal on March 9, 1981. The Department of Revenue founds its appeal on the lower court’s denial on March 3, 1981 of its Motion to Amend the Order of Sentence. The Department of Revenue bases its claim to the money on the tax lien and Writ of Execution served on the District Attorney of Adams County, asserting this to be a claim “prior” to that of Adams County based upon confiscation and distribution as costs and fine.

JURISDICTION AND STANDING

In its opinion, the lower court found that the Department of Revenue had standing to seek amendment of the sentence as it related to funds claimed by it, but held that the Department of Revenue was barred from asserting its claim for failure to seek modification of the sentencing order beyond the 10 days permitted in Pa.R.Crim.P. 1410 for seeking modification of sentence.

We agree that the Department of Revenue has standing in this matter. The interest asserted by the Department is directly related to the fund which was disposed of in the sentencing order and it has an immediate pecuniary interest in the disposition of the fund which was finally adjudicated in connection with the sentencing order. Under the principles enunciated in Atlee Estate, 406 Pa. 528, 532, 178 A.2d 722, 724 (1961), citing Lansdowne Borough Board of Adjust ment Appeal, 313 Pa. 523, 525, 170 A. 807, 868 (1934), standing is established.

As well stated by the appellant in its brief, upon the filing of the tax lien, appellant “becomes in a sense a co-owner with the taxpayer, Ms. Myers, of the personal property of the taxpayer to the extent of the lien.”. See e.g. Sager v. Burgess, 350 F.Supp. 1310, 1312 (E.D.Pa.1972); Simpson v. Thomas, 271 F.2d 450, 452 (4th Cir. 1959). Thus, appellant had the same rights as did the taxpayer to assert claim to the fund.

The question remains however, as to whether appellant Department of Revenue timely asserted its claims, by the filing of its motion within 21 days of knowledge of disposition of the fund.

Under the present facts, the notice to the taxpayer cannot be imputed to the Department of Revenue, and the period in which appellant was required to file its motion or to appeal cannot be measured from the date on which the taxpayer received notice either of the determination of possessory rights to the fund (March 31, 1980, denial of post verdict motion) or of disposition of the fund (Nov. 12, 1980, order of sentence). Cf. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) holding that due process requires that adjudication of a property right be preceded by notice and an opportunity to be heard. However, once actual notice was received by the appellant, it was required to pursue the procedures available to it to be heard with reasonable diligence.

Although appellant framed his petition as a Motion to Amend the Order of Sentence, appellant sought extraordinary relief not covered by the Rules of Criminal Procedure. Appellant clearly had a right to petition the lower court for relief, and that right must be held to have continued for a reasonable period of time. We cannot say that 21 days was an unreasonable delay in asserting such rights, particularly in view of the very novelty of the situation appellant was faced with. The lower court therefore had jurisdiction of the issue and we have jurisdiction to determine this appeal.

POSSESSORY RIGHT OF THE TAXPAYER

[5] Leaving aside for the moment, the question of the effect of service of a writ of execution on the District Attorney as custodian of the money seized on arrest, we must first determine the possessory right of the taxpayer on the date the writ was served. It is clear that the possessory rights of the Department of Revenue could rise no higher than those of the taxpayer. If Ms. Myers had no possessory right on October 29, 1979, the date the writ was served, then there was nothing for the Department of Revenue to attach.

In determination of Ms. Myers’ motion under Pa.R. Crim.P. 324, and pursuant to the provisions of Rule 324(b), the lower court ruled that the $3790. in cash was “derivative contraband.” If that was its character on the date the court made its determination, March 31, 1980, then that was its character on April 21, 1979 when the fund was seized. The determination by the court must attach nunc pro tunc to the date of seizure. “Contraband,” by its very term, is not that to which possession may attach, contraband being that which it is illegal to possess. Thus, if the court’s determination was correct, the taxpayer, Ms. Myers, had no possessory right to the money at any time after April 21, 1979 and neither the lien filed October 10, 1979 nor the Writ of Execution served October 29, 1979 could relate to the fund. The lower court, however, was in error in its determination of the character of the fund.

In making its determination, the lower court relied upon Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1977). The court properly held that if the property sought to be returned was “directly derived from” or “directly traceable to” the sale of a contraband substance, it was “derivative contraband.” The evidence relied upon for making the determination, by agreement between the Commonwealth and Ms. Myers, was the trial record. The trial record, and the jury verdict, related solely to possession by the taxpayer of marijuana with the intention of delivering it. No evidence was presented of any sale of marijuana or of anything else, and no attempt was made by the Commonwealth to show any specific transaction.

In its opinion, the lower court states as its sole basis for determining the cash to be “derivative contraband” that:

Defendant’s version of the source of the money appears to be unreasonable.
It would seem much more reasonable to infer that the money was directly derived from the sale of marijuana.

The court’s reliance upon Commonwealth v. Landy, supra was misplaced. Landy did hold that, under the narrow circumstance of that case, money could be found to be “derivative contraband” subject to forfeiture or confiscation as a fine under Rule 324(b). However, that case was far from holding that any money found in the possession of one who is also in illegal possession of contraband substances is “derivative contraband” unless the possessor comes forward with proof of the source of the money. On the contrary, Landy held that the Commonwealth had the burden of proof “by a preponderence of the evidence” that the money was “directly derived from and directly traceable to the sale of a contraband substance.” Id., 240 Pa.Super. at 470, 362 A.2d at 1005. In that case, the specific money held to be derivative contraband and subject to forfeiture was proven to have been received in return for specific delivery of a controlled substance in a specific transaction directly observed by the police. Once the Commonwealth had met that burden of proof, the court held that it did not have the further burden of proving that there had been no other money in the pocket into which the specific money was placed prior to that money being placed there. To have held otherwise would clearly have placed an impossible burden on the Commonwealth. In the instant case, however, the court placed no burden of proof whatsoever on the Commonwealth. On the contrary, the court created its own “inference” that the money derived from an illegal sale based upon the fact that it was in the possession of one who was also in the possession of marijuana. Due process permits no such inference. The fund here in question, therefore, was improperly held to be derivative contraband, but was rather the property of the taxpayer.

We therefore hold that the taxpayer had a possessory right to the fund in question on October 29, 1980, the date appellant obtained service of its Writ of Execution.

THE EFFECT OF THE WRIT OF EXECUTION

The lower court, although ruling that the Motion by appellant should be dismissed for failure timely to assert the claim, further ruled that the money was in custodia legis at the time of service of the Writ of Execution on the District Attorney of Adams County on October 29, 1979. The court ruled that as such it was not subject to attachment by the Department of Revenue pursuant to its tax lien. We agree.

Money which is held by the Commonwealth as the result of seizure pursuant to search warrant, or in connection with an arrest, is property which is subject to the order of court and is clearly in custodia legis and not subject to attachment or garnishment. Weicht v. Automobile Banking Corporation, 354 Pa. 433, 47 A.2d 705, 706 (1946). “The reason for the immunity of property in custodia legis is that to permit attachment or execution thereon by others would require a public officer to appear and defend a multitude of actions regarding the right to possession and would cause confusion and delay in the execution of legal process.” Ibid. This rationale is clearly applicable to the circumstances of the present case. The fact that the particular lienor which sought execution was the Department of Revenue does not alter the fact that a dispute between owner and creditor or between competing creditors has no place in the course of a criminal prosecution. The District Attorney was not free to dispose of the money, nor was the fund being held solely for disposition to the tax creditor, but was held for the specific purpose of presentation as evidence and for later determination of disposition by the court. Therefore, no matter how valid the claim of the Department of Revenue, asserted pursuant to its validly entered tax lien, it was without power to attach the property during the period it was in custodia legis.

We therefore hold that, although Ms. Myers had a possessory right in the fund in question, while the property was in custodia legis and prior to an order of court directing disposition of the money to Ms. Myers, the Department of Revenue was powerless to attach the fund and its Writ of Execution therefore attached nothing. The fund has now been paid toward costs and fine of Ms. Myers, subject only to a determination of her appeal of the underlying conviction.

The appeal of the Commonwealth of Pennsylvania Department of Revenue is therefore denied, and the order of the lower court refusing to release the money to appellant is affirmed.

McEWEN, J., concurs in the result.

      . The ten day limit of Pa.R.Crim.P. 1410, in which a’ defendant can petition for modification of sentence, does not apply inasmuch as the Rule itself is inapplicable to one in the unusual position of appellant.

      . Appellant’s brief refers the court to the Forfeiture Act under the Controlled Substance, etc., Act, 35 Pa.C.S. § 780-128, as the act “under which forfeiture is sought,” and analyzes its terms for a determination of title to the money at various points. § 780-128 is inapplicable. That statute is most specific in enumerating the property which is subject to forfeiture, and nowhere does the act provide in any way for the forfeiture of money, nor was any Petition for Forfeiture under said Act ever filed in this case. The only provision of Pennsylvania law under which the court in this instance could refuse to restore the property to Ms. Myers is Pa.R.Crim.P. 324(b), which reads, in relevant part, as follows:
      .. . the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.

      . See e.g. Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 543, 201 A.2d 427, 429 (1964); U. S. v. Jeffers, 342 U.S. 48, 53, 72
        S.Ct. 93, 96, 96 L.Ed. 59, 65 (1951) (there is a property right in contraband sufficient to support a motion to suppress, but no possessory right); 6 Am.Jur.2d, Search and Seizure § 102, (contraband is not subject to attachment); contraband is “property which it is unlawful ... to possess” Webster’s Third New International Dictionary, G.&C. Merriam Co. (1977).

      . The lower court’s opinion reflects that defendant taxpayer was not actually examined as to the “source” of the money, but simply made the statement that she had no bank or safe place to keep the money.

      . The lower court did recognize that the Commonwealth had the burden of proof by a preponderence of the evidence, but failed to require any evidence at all of any sale, let alone any evidence that the money was directly derived from and directly traceable to such sale.

      . Weicht v. Automobile Banking Corporation, supra, establishes that where money is being held by the court or its agent solely for distribution, without necessity for court ruling or further action, as for example where funds resulting from a Sheriffs Sale are held during the process of distribution, the money is not in custodia legis and immune to attachment. Where, however, as in this instance, the money is held for a purpose other than mere distribution, and must await further order of court before final disposition, it is in the custody of the court and is immune to execution or attachment.