author: CIRILLO, Judge:

text:
    599 A.2d 1348
    Brenda NUHFER v. Joseph T. NUHFER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 20, 1991.
    Filed Dec. 4, 1991.

      John D. Petruso, Meadville, for appellant.
    Coyle B. Jones, Jamestown, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Crawford County. We are presented with an issue which has yet to be addressed in this Commonwealth: does marital property include an interest in a winning lottery ticket if that ticket was purchased prior to the parties’ separation but, because of rival claims to the ticket and the winnings, ownership in the ticket between the rival claimants was not finally determined until after the separation?

Appellant Joseph T. Nuhfer (Joseph) and appellee Brenda Nuhfer (Brenda) were married on September 27, 1986. They separated on September 9, 1989 and were divorced on January 9, 1990.

On February 3, 1989, seven months prior to the parties’ separation, Joseph participated in an office lottery pool. On February 6, 1989, one of Joseph’s co-workers filed the winning ticket with the Pennsylvania Lottery Bureau, claiming ownership of the winning ticket. This co-worker evidently maintained that she had purchased the winning ticket with her own funds, and not those of the office lottery pool.

Joseph and several of his co-workers filed suit in the Court of Common Pleas of Crawford County in June, 1989, claiming an ownership interest in the winning lottery ticket. Discovery continued through February of 1990. In March of 1990 the lottery case reached a settlement, the terms of which, by agreement of the parties to that action, remain confidential.

Although we are not privy to the terms of the settlement agreement, we must assume that Joseph has an ownership interest in the winning lottery ticket. Otherwise, the issue of whether that interest is marital property would not be before us. The question we must decide is at what point in time did that ownership interest accrue — when the lottery ticket was purchased, which occurred prior to the final separation, or at the time the lottery case was settled, which occurred after the final separation?

Section 401(e) of the Divorce Code defines marital property as “all property acquired by either party during the marriage ...” 23 P.S. § 401(e). Marital property includes the increase in value, prior to the date of separation, of any nonmarital property acquired prior to the marriage or by gift, bequest, devise or descent. 23 P.S. § 401(e)(1), (3). Marital property does not include the increase in value, prior to separation, of

[a]ny payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

23 P.S. § 401(e)(8) (emphasis added). This section of the Divorce Code was added by the 1988 amendments, and has clarified the law as stated in Hurley v. Hurley, 342 Pa.Super. 156, 492 A.2d 439 (1985). In Hurley, a panel of this court held that for purposes of determining whether the proceeds of a personal injury cause of action, which arose prior to separation, were marital property, the court must look to the time the proceeds were received. Id., 342 Pa.Superior Ct. at 161-62, 492 A.2d at 442. The 1988 amendment has discarded the time of liquidation as the determinative factor. We must now look to the time the cause of action accrued. 23 P.S. § 401(e)(8).

In Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987), this court held that the time a spouse actually receives an asset is not controlling as to whether the asset is marital property. Rather, the crucial time is when the right to receive the asset actually accrued. Id., 360 Pa.Superior Ct. at 109, 519 A.2d at 1016.

[I]t matters not when a spouse receives property, but whether the right to receive such property accrues during the marriage. To the extent that a property right “accrues” or “arises” during the marriage, then the spouses expect they will enjoy the property when they receive it.

LaBuda v. LaBuda, 349 Pa.Super. 524, 533, 503 A.2d 971, 976 (1986). The 1988 amendments to the Divorce Code reflect a legislative endorsement of the law as stated in LaBuda and Diamond —the asset is characterized as marital property or non-marital property based on the time the cause of action accrued.

A cause of action is the state of facts which entitle a person to “seek a judicial remedy in his behalf.” Black’s Law Dictionary (5th ed., 1979). Here, Joseph’s cause of action accrued when he contributed to the purchase price of the ticket, despite the fact that the settlement was reached and the claim was liquidated after the parties’ divorced. Joseph’s financial participation in the office lottery pool is the state of facts which entitled him to seek judicial relief with respect to his claim of ownership in the winning lottery ticket. Thus, the cause of action accrued on February 3, 1989, prior to the parties’ separation, and the payment received as a result of the settlement of that claim is marital property subject to equitable distribution between the parties. 23 P.S. § 401(e)(8). See also 23 P.S. § 401(d).

The trial court’s order including the settlement proceeds as marital property subject to equitable distribution is affirmed.

WIEAND, J., concurs in the result.

      . Title 23 of Purdon's Statutes, as enacted by Act 1980, April 2, P.L. 63, No. 26, § 101 et seq. effective in 90 days, was amended by Act 1990, Dec. 19, P.L. 1240, No. 206, effective in 90 days. The text has been consolidated at 23 Pa.C.S. § 3101 et seq. and is entitled Domestic Relations. Part IV is entitled the Divorce Code, 1990, Dec. 19, P.L. 1240, No. 206, § 2, effective in 90 days. In this case the complaint in divorce was filed on September 21, 1989, and therefore the 1980 Divorce Code, 23 P.S. § 101 et seq., as amended in 1988, Act of 1988, February 12, P.L. 66, No. 13, is applicable. We note, however, that the 1990 amendments have not substantively affected the disposition of property rights after termination of the marriage.

      . See 23 Pa.C.S. § 3501(a).

      . See 23 Pa.C.S. § 3501(a)(8).

      . Act of 1988, February 12, P.L. 66, No. 13.

      . We recognize the academic argument that the cause of action accrued on February 6, 1989, the date the winning lottery ticket was drawn, rather than February 3, 1989, the date Joseph contributed to the purchase price of the ticket. Both events, of course, were necessary to the accrual of Joseph's cause of action.

      . Section 401(d) of the Divorce Code sets forth the various factors the court shall consider in making an order of equitable distribution of the marital property. The text of that section has been reenacted at 23 Pa.C.S. § 3502(a).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    599 A.2d 1350
    COMMONWEALTH of Pennsylvania, Appellant, v. James Melvin SMITH.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1991.
    Filed Dec. 5, 1991.

      Paula Aigner, Asst. Dist. Atty., Hollidaysburg, for Com., appellant.
    Terry W. Despoy, Altoona, for appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

The Commonwealth appeals from the February 28, 1991 Order of the trial court excluding from trial scientific evidence pertaining to the results of DNA testing.

On April 19, 1990, appellee was charged with rape, statutory rape and corruption of minors. The crimes were allegedly perpetrated against the eight year old step-daughter of the appellee. At a preliminary hearing on June 29, 1990, the district attorney’s office learned that seminal fluid was identified on the dress of the victim. Although DNA testing was supposed to be initiated at that time, it was not until the first week of October, 1990, the district attorney’s office became aware that blood samples from the appellee, required for DNA testing, had not been obtained. The blood samples used in the testing, however, were not taken until January 15, 1991. On February 25, 1991, about one week before the trial was to begin, the Commonwealth advised defense counsel they intended to use at trial a summarized preliminary report of the DNA test results. When the district attorney’s office received the preliminary report, they immediately electronically transmitted a copy of the report to appellee’s counsel. The Commonwealth did not have the full report at the time of the suppression hearing. On February 27, 1991, appellee filed a pretrial motion seeking suppression of the DNA evidence, or in the alternative, the grant of a continuance and appointment of an expert to analyze the DNA results. The trial court granted appellee’s suppression motion, finding the Commonwealth clearly violated the mandatory disclosure requirements of Pa.R.Crim.P. 305 B. The trial court also stated the Commonwealth’s appeal was not proper because the notice of appeal did not contain a good faith certification that the exclusion of the DNA report terminated or substantially handicapped the prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

The Commonwealth argues and we agree the trial court improperly suppressed the DNA report based upon an erroneous application of Rule 305 B. The record is insufficient to support the accusations made by the trial court of deliberate delay on the part of the Commonwealth. Additionally, suppressing the DNA evidence would substantially interfere with the Commonwealth’s attempts to prosecute appellee, since, if the child was found to be incompetent to testify, the suppressed evidence would be the only evidence linking appellee to the crime.

The Commonwealth’s appeal of a suppression Order is proper as an appeal from a final Order when the Commonwealth certifies in good faith that the suppression Order terminates or substantially handicaps its prosecution. Dugger, supra. As noted above, the trial court held this appeal to be improper in that the notice of appeal did not contain such a good faith certification.

There is no explicit requirement in Dugger or its progeny that the certification be made specifically in the notice of appeal. In Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991), this Court stated: “The Commonwealth, in its brief to us, asserts that the grant of the motion to suppress effectively terminates its prosecution of the defendant. As such, this case is properly before us for review.” Id., 401 Pa.Superior Ct. at 581 n. 1, 585 A.2d at 1079 n. 1 (citations omitted). In Commonwealth v. Martin-son, 368 Pa.Super. 130, 533 A.2d 750 (1987), we stated: “[a]n order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution.” Id., 401 Pa.Superior Ct. at 133 n. 1, 533 A.2d at 751 n. 1 (citation omitted). Based upon the record and the fact the only other evidence linking appellee to the crime is the testimony of the victim, who could be deemed incompetent to testify, the Commonwealth properly set forth in its brief to us a good faith certification that suppression of the DNA evidence would terminate or substantially handicap its prosecution.

Next, we must determine if the trial court properly suppressed the DNA report under Rule 305 B. Our standard of review on appeal from a suppression ruling is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Lopez, 525 Pa. 185, 579 A.2d 854 (1990).

As soon as the Commonwealth came into possession of the DNA test results, it complied with the mandates of Rule 305 B (see footnote 1). The trial court erred in holding the Commonwealth violated Rule 305 B just because it may not have been very diligent in obtaining appellee’s blood sample for use in the DNA testing. If the trial court had been correct in holding the Commonwealth violated Rule 305 B, the proper remedy under Rule 305 E, Remedy, would have been to grant appellee’s motion for a continuance to allow time for the final DNA report to be prepared and subsequently examined by appellee’s experts.

The appellee cites Commonwealth v. Leach, 50 Pa. D. & C. 3d 234 (1988), in support of his position the trial court properly suppressed the DNA test results. In Leach, the record revealed the Commonwealth had been aware of the existence of the evidence in question for nearly a year prior to trial but deliberately withheld it from the defense. However, in the present matter, the Commonwealth received the evidence only a few days prior to trial and immediately notified appellee after receiving the report. Even though the Commonwealth was aware almost nine months before trial that there were grounds to do DNA testing, this knowledge cannot be considered evidence. The results of the test, moreover, could have exculpated appellee in which case suppression could have had dire consequences for appellee.

Appellee cites Commonwealth v. Bennett, 320 Pa.Super. 150, 466 A.2d 1362 (1983), Commonwealth v. Hadfield, 344 Pa.Super. 470, 496 A.2d 1201 (1985), and Commonwealth v. McCutcheon, 339 Pa.Super. 8, 488 A.2d 281 (1985), in support of his argument the Commonwealth’s negligent handling of this case should not be overlooked because this Court has in the past condemned the type of actions or inactions of the Commonwealth which lead to confusion and mismanagement of a given case. In all three of these cases, the Court addressed whether the Commonwealth acted with due diligence in bringing the case to trial pursuant to Pa.R.Crim.P. 1100. Without addressing the facts of these cases, which are nonetheless distinguishable, we find the cases unpersuasive because we are reviewing the trial court’s suppression ruling under Rule 305 B and not Rule 1100.

For these reasons we reverse the trial court’s suppression Order and remand the case for trial, noting appellee should be given time and the opportunity to have an expert examine the report prior to trial.

Order reversed; case remanded in accordance with this Opinion.

Jurisdiction relinquished.

      . RULE 305. PRETRIAL DISCOVERY AND INSPECTION
      B. Disclosure by the Commonwealth.
      (1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
      (e) results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examination of the defendant, which are within the possession or control of the attorney for the Commonwealth.


text:
    599 A.2d 1353
    COMMONWEALTH of Pennsylvania v. Sue B. CRAFTON, Appellant.
    Superior Court of Pennsylvania.
    Oct. 24, 1991.


author: WIEAND, Judge:

text:
    600 A.2d 198
    COMMONWEALTH of Pennsylvania v. Alfonso Purcell BRAXTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1991.
    Filed Nov. 19, 1991.
    Reargument Denied Jan. 6, 1992.
    James R. Wilson, Asst. Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

On July 13, 1990, Alfonso Purcell Braxton entered a plea of guilty to three counts of robbery and three counts of criminal conspiracy. He was sentenced on October 2, 1990 to serve consecutive terms of imprisonment for not less than five (5) years nor more than twenty (20) years on each of the three counts of robbery. Thereafter, a pro se motion to withdraw the plea of guilty was filed by Braxton and denied by the trial court. On direct appeal from the judgment of sentence, Braxton asserts that his guilty plea was unknowingly entered because he was not informed by the court that consecutive sentences could be imposed. He argues further that guilty plea counsel was constitutionally ineffective for failing to correct the defective plea colloquy or to seek withdrawal of the plea. Finding no merit in this contention, we affirm the judgment of sentence.

The standard to be employed in evaluating claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). See also: Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). “Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986). Additionally, “[alllegations of ineffectiveness of counsel in connection with a guilty plea will provide a basis [for] relief only if ineffectiveness caused an involuntary or unknowing plea.” Commonwealth v. Owens, 321 Pa.Super. 122, 130, 467 A.2d 1159, 1163 (1983). See also: Commonwealth v. Chumley, 482 Pa. 626, 641, 394 A.2d 497, 504 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979); Commonwealth v. West, 336 Pa.Super. 180, 185-186, 485 A.2d 490, 493 (1984).

Instantly, appellant’s claim of ineffectiveness is premised upon counsel’s allowing him to enter a plea of guilty in which he had not been informed by the court, prior to entering the plea, that consecutive sentences could be imposed. In order to ascertain the underlying merit of this claim, we must determine whether it was necessary, in order to ensure that appellant’s plea was knowingly and voluntarily entered, that he be informed of the possibility of consecutive sentences.

The procedures to be followed in accepting a defendant’s plea of guilty have been described by the Superior Court in the following manner:

Pursuant to Pa.R.Crim.P. 319(a), a trial judge “shall not accept [a guilty plea] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.” Regarding the entry of a guilty plea, it has been said:
Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understanding^ tendered. See: Pa.R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understandingly tendered. A guilty plea colloquy must include inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986).
Commonwealth v. Cole, 387 Pa.Super. 328, 335-336, 564 A.2d 203, 206-207 (1989). See also: Commonwealth v. Alston, 387 Pa.Super. 393, 397, 564 A.2d 235, 237 (1989); Commonwealth v. Cortino, 387 Pa.Super. 210, 215-216, 563 A.2d 1259, 1261-1262 (1989).

Commonwealth v. McClendon, 403 Pa.Super. 467, 471-72, 589 A.2d 706, 708 (1991) (en banc). See also: Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). With respect to the mandatory inquiry into a defendant’s awareness of the permissible range of sentences, it has been said that:

[T]he decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.

Commonwealth v. Kulp, 476 Pa. 358, 361, 382 A.2d 1209, 1211 (1978). See also: Commonwealth v. Glaze, 366 Pa.Super. 517, 522-523, 531 A.2d 796, 799 (1987); Commonwealth v. Schreiber, 319 Pa.Super. 367, 373, 466 A.2d 203, 206 (1983).

In the instant case, appellant completed an extensive written plea colloquy in which he acknowledged that he had discussed with counsel, and was fully aware of, the permissible range of sentences for each of the charged offenses. Appellant also indicated that he had been given adequate opportunity to consult with counsel and was satisfied with counsel’s representation. At the guilty plea hearing, moreover, the court orally supplemented the written colloquy by specifically informing appellant of the elements of and maximum sentences for each of the charged offenses. Thereafter, appellant told the court that he understood the charges against him. In light of these circumstances, it seems clear that appellant was fully aware of the possible sentences which he faced for each offense to which he pleaded guilty. See: Commonwealth v. Moore, 365 Pa.Super. 65, 72-74, 528 A.2d 1364, 1367-1368 (1987).

Despite having been informed of the maximum sentence possible for each offense, appellant asserts that his plea was involuntary because he was not also told that consecutive sentences could be imposed for each offense. We disagree. In Commonwealth v. Harris, 311 Pa.Super. 216, 457 A.2d 572 (1983), the defendant pleaded guilty to numerous offenses and was given consecutive sentences with respect to two offenses, probation on two other offenses, and a suspended sentence for the remaining offenses. Following the denial of a motion to withdraw his guilty plea, the defendant argued on appeal that the guilty plea colloquy had been defective because he had not been told specifically that consecutive sentences might be imposed. In rejecting this argument, the Superior Court reasoned as follows:

Of course, a defendant must be told the range of sentences that could be imposed for the offenses charged. See Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978).
The comment to Pa.Rule of Crim.Proc. 319 states as one of the requirements of a guilty plea colloquy that the defendant be asked questions to elicit that he is “aware of the permissible range of sentences and/or fines for the offenses charged.”
Appellant was clearly told the possible sentence range for each sentence. He knew that he could receive the maximum sentence for each offense. In fact, however, he received suspended sentences on several charges, probationary sentences on others and was sentenced to only two terms of imprisonment.
Appellant has failed to meet the burden of demonstrating manifest injustice in the denial of his motion to withdraw his guilty plea. To grant the motion based only on his assertion that he did not know that his sentences might be imposed consecutively, it seems to us, would permit him to use the withdrawal as a sentence-testing device. See [Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982) ].

Commonwealth v. Harris, supra 311 Pa.Super. at 220, 457 A.2d at 574.

The instant case is indistinguishable from Commonwealth v. Harris, supra. Here, as in Harris, appellant had been informed of the maximum sentence he faced on each charge to which he pleaded guilty. The requirement that he be made aware of the permissible range of sentences was thereby fulfilled. The fact that appellant was not specifically told that several sentences could be made to run consecutively did not render the plea colloquy defective or supply a basis for withdrawing the guilty plea.

The decisions in Commonwealth v. Fay, 294 Pa.Super. 332, 439 A.2d 1227 (1982) and Commonwealth v. Guyton, 331 Pa.Super. 231, 480 A.2d 330 (1984), upon which appellant relies, are inapposite. In Fay, the defendant had entered a plea of guilty to a charge of robbery while he was already serving a federal prison sentence for bank robbery. After receiving a sentence for robbery which was made consecutive to his federal sentence, the defendant filed a PCHA petition alleging that the guilty plea colloquy had been defective because he had not been aware that his state sentence could be made to run consecutively with the federal sentence. The Superior Court agreed and held that a defendant who had entered a guilty plea should be advised that the sentence imposed could be made to run consecutively to a sentence which he was already serving. Fay, however, is distinguishable from both Harris and the instant case. Instantly, appellant was not sentenced consecutively to any sentence which he was already serving when he entered his guilty plea. Rather, appellant was sentenced only for offenses to which he was then entering pleas of guilty, and he was fully aware of the maximum sentences he faced for each of those offenses.

Similarly, the decision in Commonwealth v. Guyton, supra, is not controlling of the instant case. There the defendant had entered a guilty plea to a charge of simple assault and had been told that in exchange for pleading guilty he would receive a sentence no greater than six months to two years in prison, which would run consecutively to any sentence already being served. When the defendant inquired as to the meaning of the term consecutive, no explanation was provided. On appeal, the Superior Court held that the guilty plea had not been knowingly entered under the circumstances. In the instant case, however, appellant at no time demonstrated any doubt as to his understanding of the guilty plea. He was fully informed of the possible sentences which he could be given for each offense and affirmatively indicated his understanding thereof. On these facts it is the decision in Commonwealth v. Harris, supra, and not the decisions in Fay and Guyton, which is controlling.

We conclude, therefore, that appellant’s plea of guilty was knowingly and intelligently entered. As such, there was no basis for guilty plea counsel to object to the plea colloquy or seek to withdraw the plea merely because appellant was not told on the record that consecutive sentences could be imposed for the offenses to which he was entering a plea of guilty.

The judgment of sentence is affirmed.

      . No further penalty was imposed for the three counts of conspiracy to which Braxton also pleaded guilty.

      . Both appellant’s guilty plea counsel and his current appellate counsel are members of the same public defender’s office. As a general rule, a public defender may not argue the ineffectiveness of another member of the same public defender’s office. See: Commonwealth v. Fetzner, 372 Pa.Super. 469, 473, 539 A.2d 890, 892 (1988). In the instant case, however, a conclusive determination as to counsel’s effectiveness can be made from the record. Therefore, it is not necessary to remand this case for the appointment of new counsel unaffiliated with the public defender’s office. See: Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986).

      . Appellant has not alleged that he was unaware of the fact that consecutive sentences could be imposed. He asserts only that he was not told of this possibility during the guilty plea colloquy.


author: HOFFMAN, Judge:

text:
    600 A.2d 201
    COMMONWEALTH of Pennsylvania v. Raymond TANNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1991.
    Filed Dec. 6, 1991.

      S. Sanford Kantz, New Castle, for appellant.
    Annette M. Hutchison, Asst. Dist. Atty., New Castle, for Com., appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered on April 17, 1991, denying appellant post-conviction relief. On appeal, appellant contends that he is entitled to relief under the Post Conviction Relief Act (PCRA). Appellant, Raymond Tanner, raises the following issues:

A. Was appellant denied a stenographer and transcript of the preliminary hearing and the failure of his trial counsel to request a transcript or a remand of the case for a preliminary hearing with transcript deemed ineffective assistance of counsel.
B. Was trial counsel ineffective in failing to cross examine the mother of the alleged victim on material inconsistent statements at preliminary hearing of which he was unaware because of lack of a proper transcript and which prejudiced the truth finding process and result of trial.
C. Was trial counsel ineffective in failing to properly prepare for trial by not availing himself with the opportunity to obtain information at the preliminary hearing, thereby prejudicing the result of trial and appellant.
D. Trial counsel’s representation was ineffective by failing to call witnesses, subpoena and present records, medical reports and police records to contradict the testimony of the victim’s mother, Cheryl Booher, in order to prove a lack of evidence of sexual abuse.
E. After discovered evidence not available at trial demonstrates that the alleged victim lied in his testimony of appellant’s sexual abuse out of fear for his stepfather.
F. After discovered evidence not available at trial of victim’s mother’s statement, “How does it feel to have been set up?” is material in establishing that appellant did not commit the offenses of which he was convicted and requires a new trial.
G. Jurors were prejudiced and influenced in their decision by adverse comments concerning defendant spoken by the tipstaff and court personnel outside the courtroom and heard by the jurors.
H. Defendant was not given the opportunity to read or comment on his pre-sentence report when he was under psychiatric care and medical data relative to his mental condition should have been excluded in the report.
I. Appellant’s case was not brought to trial within the time limits required for a speedy trial in violation of rule 1100 Pa. R.C.P.
J. Appellant’s subsequent counsel after taking an appeal to the Superior Court failed to advise him of his right to take an appeal to the Pennsylvania Supreme Court as appellant desired to appeal. Further, the grounds asserted in his appeal did not include errors asserted herein which occurred at trial, including ineffective assistance of his prior counsel and thereby ineffective assistance of appellate counsel.

Appellant’s Brief at 4-6.

On June 26, 1987, appellant was charged with seven counts of involuntary deviate sexual intercourse and seven counts of rape of his son. A preliminary hearing was held on July 81, 1987, at which time appellant was represented by the public defender’s office. Thereafter, and just prior to trial, appellant retained private counsel to represent him. A jury trial was conducted and appellant was convicted on all seven counts of involuntary deviate sexual intercourse, but not of rape. Post-trial motions were filed and denied by the court on August 23, 1988. Appellant was sentenced on September 8, 1988 to a term of incarceration of not-less-than-fifteen-years-nor-more-than-thirty-years on all seven counts.

On October 6, 1988 appellant’s private attorney was permitted to withdraw and the public defender’s office was reappointed to represent him. On November 3, 1988, the public defender’s office filed a direct appeal to this court which was denied. None of the grounds presented in this petition were raised on direct appeal. Thereafter, a new attorney was appointed and a post-conviction petition was filed and denied by the court without a hearing pursuant to Rule 1507 Pa. R.C.P. This timely appeal followed.

The statute governing appellant’s claims is the amended 42 Pa.C.S.A. § 9543(a), which lists four factors a petitioner must plead and prove before becoming eligible for relief. It provides in pertinent part:

(a) General Rule — To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
(1) That the person has been convicted of a crime under the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.

(3) That the allegation of error has not been previously litigated and one of the following applies:

(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.

42 Pa.C.S.A. § 9543(a).

Appellant’s first four claims allege trial counsel ineffectiveness. Turning to Sections 9543(a)(2) and 9543(a)(3), it is clear that appellant’s claims are cognizable and have not been previously litigated, but they have been waived. “Ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represents the defendant.” Commonwealth v. Hamilton, 376 Pa.Super. 404, 546 A.2d 90 (1988) (quoting Commonwealth v. Hubbard, 472 Pa. 259, 277 n. 6, 372 A.2d 687, 695 n. 6 (1977)).

Here, appellant had an opportunity to raise his ineffective assistance of trial counsel claims in his direct appeal to this court, but he did not. Because appellant failed to raise these claims at the first opportunity, he has failed to preserve them for PCRA review. However, a finding of waiver alone does not bar recovery if any of the other conditions of Section 9543(a)(3) are met. Here, we find that none of the other conditions are met. We do not find that appellant's allegation of error has resulted in the conviction or affirmance of an innocent individual. Appellant offers no evidence that would meet the requirements of this condition.

We next consider appellant’s contentions regarding after-discovered evidence and jury prejudice. Although we find these claims to be cognizable under the PCRA and they have not been previously litigated, they have been waived. Appellant had an opportunity to litigate these claims on direct appeal, but did not. Furthermore, we find that appellant offers no evidence that would meet any of the other conditions set out in Section 9543(a)(3).

Appellant next claims that he is entitled to relief because he was not given an opportunity to read or comment on his pre-sentence report. We find that this claim is not cognizable under Section 9543(a)(2). The PCRA limits the types of claims that are cognizable. Thus, the petitioner must “plead and prove by a preponderance of the evidence” that the conviction or sentence resulted from one or more of eight specified circumstances. See 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii). Appellant has made no attempt to conform his argument to this requirement of the PCRA and we find that appellant’s claim does not appear to be cognizable under any of the eight categories of cognizable claims. We also find this claim to be waived. Appellant had an opportunity to raise this claim on direct appeal, but did not. Furthermore, we find that none of the other conditions of Section 9543(a)(3) are met.

Appellant further contends that his case was not brought to trial within the time limits required for a speedy trial, which is in violation of Rule 1100 of Pa.R.Crim.P. We note that this claim is not cognizable under any of the eight categories of the PCRA. See Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989). Although this issue has not been previously litigated, we find that it has been waived. The issue could have been raised on direct appeal, but it was not. Furthermore, it does not meet any of the other conditions of Section 9543(a)(3).

Lastly, appellant contends that his appellate counsel was ineffective for failing to advise him of his right to take an appeal to our Supreme Court and for failing to bring forth claims of trial counsel ineffectiveness on appeal. We begin by noting that these issues have not been previously litigated and are not waived. As this appeal is the first stage of the proceedings at which post-trial counsel is no longer representing appellant, allegations of his ineffectiveness are properly raised in this PCRA petition.

Initially, an appeal to our Supreme Court is not a matter of right. See Pa.R.A.P. Rule 1114 (review of a final order of the Superior Court is not a matter of right, but of sound judicial discretion); see also Commonwealth v. Gilbert, 407 Pa.Super. 491, 595 A.2d 1254, 1257 (1991). Moreover, a claim of counsel’s failure to inform appellant of his right to seek discretionary review by the Supreme Court is not cognizable under Section 9543(a)(2). The only PCRA category under which this claim could arguably be brought is Section 9543(a)(2)(h), which governs “ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” We have interpreted this to mean that an ineffectiveness claim brought under the PCRA must raise a question of whether an “innocent individual” has been convicted. See Commonwealth v. Perlman, 392 Pa.Super. 1, 5, 572 A.2d 2, 4 (1990). We have held that the language in the PCRA referring to ineffectiveness claims constitutes “a substantial restriction on the grounds for post-conviction collateral relief in Pennsylvania.” Commonwealth v. Thomas, 396 Pa.Super 92, 98, 578 A.2d 422, 425 (1990) (comparing PCRA provision to broader language in predecessor Post Conviction Hearing Act).

We find that appellant’s allegation that his appellate counsel was ineffective for failing to inform him of his “right” to appeal to our Supreme Court does not raise an issue bearing upon his ultimate guilt or innocence. Appellant does not explain how the truth-determining process was undermined, nor does he allege that appellate counsel’s actions prevented a reliable determination of guilt or innocence. Thus, this claim is not cognizable under the PCRA.

In addition, appellant contends that appellate counsel was ineffective for failing to assert on direct appeal that trial counsel was ineffective. Where, as here, appellant asserts that appellate counsel was ineffective for failure to raise an issue as to trial counsel’s ineffectiveness,

the threshold question is whether the allegations of trial counsel’s ineffectiveness, would have been frivolous. If so, we need engage no further in exploration of the basis of post-conviction counsel’s omission. Commonwealth v. Hubbard, 472 Pa. 259, 281, 372 A.2d 687, 697 (1977).

We must look at the four allegations of trial counsel ineffectiveness and “determine if the the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). If we find that trial counsel had a reasonable basis for his allegedly ineffective action or inaction then any claim on direct appeal that trial counsel had been ineffective would have been frivolous. We turn then to the four allegations of ineffective assistance of trial counsel which appellant now presents on this appeal.

(a) & (b) Appellant contends that trial counsel did not receive a transcript of the preliminary hearing nor did he request one. We note that there is a factual dispute as to this issue. The Commonwealth claims that trial counsel did receive a copy of the transcript of the preliminary hearing. We find that even if trial counsel did not have a transcript and did not request one this omission does not rise to ineffective assistance of counsel.

Appellant contends that because trial counsel did not have the transcript he was not able to properly cross-examine the victim’s mother. Appellant alleges that inconsistencies in the witness’ testimony would have been revealed, but does not articulate what those inconsistencies were and how they would have changed the verdict. Appellant has not shown how the omissions of trial counsel would have had any chance of succeeding. Appellate counsel was, on this record, not shown to have been unreasonable in refraining from certain questions on cross-examination.

(c) Appellant contends that trial counsel was ineffective in failing to properly prepare for trial by not availing himself with the opportunity to obtain information at the preliminary hearing. We find this claim to be identical to appellant's first two claims and thus reject it for the same reasons.

(d) Appellant contends that trial counsel’s representation was ineffective by failing to call witnesses, subpoena records and present medical reports to contradict testimony of the victim’s mother. Here again appellant makes no attempt to explain how if these actions were undertaken there would have been a chance of success. Appellant does not tell us what records should have been brought forward, nor does he tell us which witnesses. Most importantly, he does not explain how they would have changed the verdict or how he was prejudiced. Thus, appellate counsel was, on this record, not shown to have been unreasonable in refraining from calling certain witnesses and bringing forth certain records.

Because the omissions of trial counsel were not shown to have any chance of succeeding, appellate counsel had no reasonable grounds upon which to assert trial counsel ineffectiveness upon appeal. Appellate claims as to trial counsel ineffectiveness on these grounds would have been frivolous. Therefore, the claim that appellate counsel was ineffective is devoid of merit. Appellate counsel cannot be found to be ineffective for failing to raise meritless claims. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Accordingly, we affirm the order of the trial court dismissing appellant’s claim for for post-conviction relief.

Order affirmed.

      . 42 Pa.C.S.A. §§ 9541-9546.

      . We note that appellant burdens this court with eleven claims comprising three pages and sixty-three lines. This is well in excess of Pa.R.A.P. 2116’s single-page, fifteen-line limit. Although we strongly disapprove of such a blatant disregard of appellate rules, in the interest of justice, we will nevertheless consider all of appellant's claims.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 3121.


text:
    600 A.2d 207
    JACK REES NURSING AND REHABILITATION SERVICES, a Corporation, Appellee, v. Richard G. HERSPERGER, individually and t/d/b/a/ H.S.S. Vending Distributors, Appellants.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1991.
    Filed Dec. 11, 1991.

      John J. Kubanda, Coraopolis, for appellants.
    James W. Manolis, New Castle, for appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

This is an appeal from an order holding the appellant, Richard G. Hersperger, t/d/b/a H.S.S. Vending Distributors, in civil contempt for failing to comply with two consent decrees and requiring him to pay monetary damages to the injured party in order to purge the contempt. After careful review, we affirm.

In May, 1985, the Jack Rees Nursing and Rehabilitation Services (Rees) agreed to lease, for thirty-six (36) months at a rental of $628.78 per month, certain vending machines from Hersperger. It was agreed by the parties that Hersperger would sell to Rees the products for the vending machines. The lease agreement further provided that “if machine sales do not make lease payment H.S.S. Vending [Hersperger] will make the balance with product credit.”

On September 12, 1986, Rees filed a complaint in equity to obtain Hersperger’s specific performance of the contractual obligation to provide product credit for the difference between monthly lease payments and gross profits from sales. Before the matter came to trial, the parties reached an agreement which was entered as a consent decree on February 17, 1987. This decree provided, in pertinent part, as follows:

1. Richard S. Hersperger, individually and trading and doing business as H.S.S. Vending Distributors (hereinafter “Defendants”, shall reimburse Jack Rees Nursing and Rehabilitation Services (hereinafter “Plaintiff), as hereinafter set forth for the total amount by which Plaintiffs lease payments have exceeded its gross profits from the vending machines in question for the period from May, 1985 to February, 1987. This amount shall be computed as the total of: (a) $4,539.99, representing the difference between lease payments and gross profits for the period of May, 1985 through January 20, 1987; and (b) the difference between the February, 1987 lease payment and the gross profits from January 21, 1987 through February 20, 1987.....
2. The aforesaid reimbursement shall not be made in cash, but rather shall be made in the form of “product credit” as follows: (a) during the last week of each accounting period (which shall run from the 21st day of one month to the 20th day of the next successive month or otherwise, as the parties may from time to time agree, in writing,) the Plaintiff shall requisition from the defendants the products which it intends to vend through the leased vending machines. Defendants shall, in turn, supply such products to Plaintiff at no charge to Plaintiff. Within seven (7) days of the conclusion of each accounting period, Plaintiff shall furnish to Defendants, on forms supplied and/or approved by Defendants, an accounting of the total sales, based on the retail sales price of the items sold, of all items vended by said leased vending machines, as well as a statement of the lease payment made for said month. In the event the total sales exceeds the lease payment amount for that accounting period, the difference between the two figures shall be applied as a credit reducing the total amount due as computed in Paragraph 1, above. In the event the lease payment exceeds the total sales for that accounting period, the difference shall be treated as a debit amount, increasing the total amount due as computed in Paragraph 1, above. (Emphasis added)

In July, 1987, Rees filed a petition to hold Hersperger in contempt for failing to supply products free of charge as directed by the court’s decree. This was again resolved by the entry of a second consent decree on August 21, 1987. Therein Hersperger agreed to

1. immediately supply goods to the Plaintiff in a manner and an amount deemed appropriate by Plaintiffs (sic), to be used in the vending machines as required by the Consent Decree;
2. provide Plaintiff with order forms for the purpose of ordering products from Defendant; a list of products available to Plaintiff from Defendant for purposes of filling vending machines and the retail prices that should be charged for the same;
3. to pay the Plaintiff damages in the sum of $250 per proceeding, in addition to any other remedy ordered by the Court in the event the Plaintiff initiates contempt proceedings against the Defendant in the future and Defendant is found by the Court to have been in contempt of the Court Order;
4. in recognition of the fact that institution of the aforementioned contempt proceedings has resulted in legal fees and costs incurred by the Plaintiff, Defendant agrees to provide Plaintiff with an additional $400 credit toward the purchase of vending machine products in addition to any amounts set forth in the above recited Decree;
5. to perform its obligations in any and all other respects as set forth in the Consent Decree dated February 17, 1987; (Emphasis Added)

On August 25, 1988, Rees once again petitioned the court to hold Hersperger in contempt. Following hearings on November 30, 1988, May 9 and May 19, 1988, the court found Hersperger in contempt for failing to provide vending products in compliance with its decree. On June 19, 1989, the court ordered Hersperger to pay to Rees the sum of $9,994.09 to purge the contempt. In response to Hersperger’s post-trial motions, the court concluded that it had erred in computing the amount owed to Rees and, on September 19, 1990, entered a modified order reducing the amount to $5,454.10. However, on September 18, 1990, in response to Rees’ motion for reconsideration, the trial court again modified its order to reinstate the amount payable as originally determined, i.e., $9,994.09. Hersperger appealed from the court’s order of September 18, 1990. He contends that it was error to order the payment of a monetary sum to enforce the consent decree which had limited reimbursement to product credits.

The general rule is that “each court is the exclusive judge of contempt against its process, and on appeal its action will be reversed only when a plain abuse of discretion occurs.” Fatemi v. Fatemi, 371 Pa.Super. 101, 113, 537 A.2d 840, 846 (1988), citing Neshaminy Water Resources Auth. v. Del-Aware Unlimited, Inc., 332 Pa.Super. 461, 469, 481 A.2d 879, 883 (1984). In Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969), the Pennsylvania Supreme Court stated:

The Courts have always possessed the inherent power to enforce their Orders and Decrees by imposing penalties and sanctions for failure to obey or comply therewith. Commonwealth ex rel. Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270; Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669; Michaelson v. United States, 266 U.S. 42 [45 S.Ct. 18, 69 L.Ed. 162]; Green v. United States, 356 U.S. 165 [78 S.Ct. 632, 2 L.Ed.2d 672]; United States v. United Mine Workers of America, 330 U.S. 258 [67 S.Ct. 677, 91 L.Ed. 884]; Commonwealth ex rel. v. Perkins, 124 Pa. 36, 16 Atl. 525; Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 114 Pa.Superior Ct. 7, 174 Atl. 11; Commonwealth v. Sheasley, 102 Pa.Superior Ct. 384, 157 Atl. 27.... [I]t is clear that a Court can for present or past acts of misbehaviour amounting to civil contempt impose an unconditional compensatory fine and/or a conditional fine and imprisonment, and such fine may be payable to the United States or to the Commonwealth or to the county or to the individual who was injured. United States v. United Mine Workers of America, 330 U.S. [258, 67 S.Ct. 677] supra; McComb v. Jacksonville Paper Co., 336 U.S. 187 [69 S.Ct. 497, 93 L.Ed. 599]; Gompers v. Buck’s Stove & Range Co., 221 U.S. 418 [31 S.Ct. 492, 55 L.Ed. 797]; Commonwealth ex rel. Beghian v. Beghian, 408 Pa. [408, 184 A.2d 270] supra; Parker v. United States, 126 F.2d 370.
In Parker v. United States, the Court said (page 380): “It is well settled, however, that the court may, in a proceeding for civil contempt, impose the remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damages he may have sustained by reason of the contumacious conduct of the offender. Gompers v. Buck’s Stove & Range Co., 1911, 221 U.S. 418, 448, 449, 31 S.Ct. 492 [500, 501] 55 L.Ed. 797, 34 L.R.A., N.S., 874; Lamb v. Cramer, 1932, 285 U.S. 217, 220, 221, 52 S.Ct. 315 [316] 76 L.Ed. 715; Merchants’ Stock & Grain Co. v. Board of Trade, 8 Cir., 1912, 201 F. 20, 30; Delaware, L. & W. R. Co. v. Frank, 2 Cir.1916, 230 F. 988; American Graphophone Co. v. Walcutt, C.C.S.D.N.Y. 1898, 86 F. 468; Kreplik v. Couch Patents Co., 1 Cir., 1911, 190 F. 565, 569; Raymor Ballroom Co. v. Buck, 1 Cir.1940, 110 F.2d 207, 211; Aerovox Corp. v. Concourse Electric Co., 2 Cir. 1937, 90 F.2d 615, 617; Lineker v. Dillon, D.C.N.D. Cal.1921, 275 F. 460, 470, 476.” ... Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained. Gompers v. Buck’s Stove & Range Co., supra, at 448, 449 [31 S.Ct. at 500, 501]. Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy.

Brocker v. Brocker, supra, 429 Pa. at 519-521, 241 A.2d at 338-339. See also: Ewing v. Oliver Realty, Inc., 305 Pa.Super. 486, 451 A.2d 751 (1982).

“A consent decree, although negotiated by the parties, is a judicial act which is enforceable via the court’s contempt power.” Hopkinson v. Hopkinson, 323 Pa.Super. 404, 411, 470 A.2d 981, 985 (1984), overruled on other grounds, Sonder v. Sonder, 378 Pa.Super. 474, 506, 549 A.2d 155, 171 (1988); Usery v. Chef Italia, 540 F.Supp. 587 (E.D.Pa.1982). See also: Delaware Valley Citizens’ Council v. Commw. of Pa., 533 F.Supp. 869 (E.D.Pa.1982), aff'd, 678 F.2d 470 (3d Cir.1982). See also: Baran v. Baran, 166 Pa.Super. 532, 536, 72 A.2d 623, 625 (1950). The measure of a court’s power in civil contempt proceedings is determined according to the need for full remedial relief. McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S.Ct. 497, 500, 93 L.Ed. 599 (1949). See also: 7A P.L.E. Contempt § 52, citing Rouse Philadelphia Inc. v. Ad Hoc ’78, 274 Pa.Super. 54, 72, 417 A.2d 1248, 1258 (1979), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1988). In the instant case, when appellant was adjudged to be in civil contempt for failing to perform its obligations under the consent decree, the trial court had the power to impose sanctions in an amount which would afford appellee complete remedial relief.

The consent decree in this case had established a formula by which the court could accurately compute the monetary value of appellant’s unfulfilled obligation. The trial court’s computation was properly made on the basis of that formula. The court did not abuse its discretion by imposing civil contempt sanctions calculated to provide appellee with the cash value of appellant’s unperformed obligations.

The order of the trial court is affirmed.

      . This amount reflects the sum of $4,539.99 due under the first consent decree plus $4,804.10 due for the period of February, 1987 to April, 1988, plus an additional $650.00 pursuant to paragraphs 3 and 4 of the second consent decree.


author: BECK, Judge: ROWLEY, Presiding Judge,

text:
    600 A.2d 210
    Marytheresa WILSON, Appellant v. SCHOOL DISTRICT OF PHILADELPHIA and City of Philadelphia.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1991.
    Filed Dec. 11, 1991.

      Carole Kafrissen, Philadelphia, for appellant.
    Andrew S. Ross, Philadelphia, for School Dist. of Philadelphia, appellee.
    Michael F. Coates, Asst. City Sol., Philadelphia, for City of Philadelphia, appellee.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   BECK, Judge:

This is an appeal from a final order of the court of common pleas granting the preliminary objections of appellee, the School District of Philadelphia, to the complaint filed against it by appellant, Marytheresa Wilson, and dismissing the complaint as to the school district only. Since this appeal is within the jurisdiction of the Commonwealth Court, we order that the appeal be transferred to that court.

Appellant alleges that she fell when walking along a sidewalk adjacent to property owned by the School District of Philadelphia. The street along which the sidewalk ran is owned by the City of Philadelphia. Appellant brought suit for recovery of damages resulting from her personal injuries against both the school district and the city. The school district filed preliminary objections asserting, inter alia, its immunity from suit as a “local agency” within the protection of the governmental immunity sections of the Judicial Code. 42 Pa.C.S.A. § 8541 (1982). The trial court granted the preliminary objections, finding that the school district was immune. Appellant filed this timely appeal.

Neither party has objected to our jurisdiction over this appeal and we could, therefore, exercise jurisdiction pursuant to 42 Pa.C.S.A. § 704(a) and Pa.R.A.P. 741(a). Nevertheless, we retain the power and, indeed, the responsibility to determine whether retention of jurisdiction in this case is appropriate or, alternatively, whether the matter should be transferred to the Commonwealth Court. Lara, Inc. v. Dorney Park Coaster Co., Inc., 369 Pa.Super. 27, 534 A.2d 1062 (1987). See also Pa.R.A.P. 741, 751. Under the circumstances of this case, we find that jurisdiction is properly vested in the Commonwealth Court under 42 Pa. C.S.A. § 762(a)(7) and that transfer is appropriate. Section 762(a)(7) provides:

(a) General rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(7) Immunity waiver matters. — Matters conducted pursuant to Subchapter C of Chapter 85 (relating to actions against local parties).

The reference in sub-section (7) to “Subchapter C of Chapter 85” is a reference to the governmental immunity sections of the Judicial Code found at 42 Pa.C.S.A. § 8541 et seq. (1982). Those sections provide, in pertinent part:

§ 8541. Governmental immunity generally Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. § 8542. Exceptions to governmental immunity
(a) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
(7) Sidewalks. — A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable.

Id. at §§ 8541 & 8542.

In construing these statutes in Brady Contracting Co. v. West Manchester Twp. Sewer Auth., 338 Pa.Super. 144, 487 A.2d 894 (1985), after transfer, 97 Pa.Commw. 31, 508 A.2d 1287 (1986), appeal denied, 514 Pa. 649, 524 A.2d 495 (1987), a panel of this court stated that “[a] plain reading of subsection 762(a)(7) [42 Pa.C.S.A. § 762(a)(7)] reveals that the legislature has vested exclusive appellate jurisdiction in the Commonwealth Court with regard to any tort actions brought against a local agency, which is defined as any government unit other than the Commonwealth government.” Id., 338 Pa.Superior Ct. at 148, 487 A.2d at 897. Accord Bacon v. Tucker, 128 Pa.Commw. 575, 564 A.2d 276 (1989). The Brady panel also opined that the “obvious legislative intent in granting such exclusive appellate jurisdiction to the Commonwealth Court is to ensure a uniform interpretation and application of the provisions of the Political Subdivision Tort Claims Act [42 Pa.C.S.A. § 8541 et seq.].” Id. 338 Pa.Super. at 148, 487 A.2d at 897. See generally General Equipment Manufacturers v. Westfield Ins. Co., 405 Pa.Super. 550, 592 A.2d 1349 (1991).

Here, appellant seeks recovery for personal injuries against a school district, which has been repeatedly found to be within the protections of the governmental immunity statute. See Coco Bros., Inc. v. The Board of Public Education of the School District of Pittsburgh, 383 Pa.Super. 29, 556 A.2d 412 (1989) (school district is political subdivision); Wilson v. Miladin, 123 Pa.Commw. 405, 553 A.2d 535 (1989); Singer v. School District of Philadelphia, 99 Pa.Commw. 553, 513 A.2d 1108 (1986); Auerbach v. Council Rock School District, 74 Pa.Commw. 507, 459 A.2d 1376 (1983). Moreover, in this case appellant seeks to impose liability on the school district by arguing that all of the conditions set forth in subsections (a)(1) and (a)(2) of section 8542, supra, are met and that the exception to governmental immunity found in subsection (b)(7) (relating to sidewalks), supra, is applicable to this case. The trial court applied the provisions of the Act to find the school district immune from liability and dismissed appellant’s complaint against the school district on that ground. Therefore, this is clearly a “matter conducted pursuant to Sub-chapter C of Chapter 85.”

Having concluded that this matter is within the Commonwealth Court’s jurisdiction, it is within our discretion to determine whether transfer to that court is appropriate. In making this determination, we conduct a case-by-case analysis. We may retain jurisdiction if such action would serve the interests of judicial economy, but should transfer the matter if to do so would serve other interests, such as avoiding the establishment of possibly conflicting lines of authority. See Lara, Inc. v. Dorney Park Coaster Co., Inc., 369 Pa.Super. 27, 534 A.2d 1062, 1066 (1987), and authorities cited therein.

Applying these considerations here, we determine that the wiser course is to transfer the matter to Commonwealth Court. Here, both defendants are governmental units and the only issue presented on appeal relates to the proper scope and application of exception (7) to the immunity of the school district, found in 42 Pa.C.S.A. § 8542(b)(7), quoted above. The proper scope of governmental immunity from tort liability and of the exceptions thereto, specifically including exception (7), are subjects that have frequently been addressed by the Commonwealth Court and as to which that court has peculiar expertise. See, e.g., Giosa v. School District of Philadelphia, 127 Pa.Commw. 537, 562 A.2d 411 (1989), appeal denied, 525 Pa. 629, 578 A.2d 416 (1990). Thus, we find that transfer of this case to the Commonwealth Court will best serve to promote the legislative intent underlying the grant of exclusive jurisdiction over this type of appeal to that court. See Brady, supra. See also Lara, Inc., supra, (“we should be most cautious in assuming jurisdiction over matters that properly belong before the Commonwealth Court.”).

Appeal transferred to Commonwealth Court.

ROWLEY, P.J., files a dissenting statement.

ROWLEY, Presiding Judge,

dissenting.

I respectfully dissent. While I agree that the Commonwealth Court had jurisdiction in this case, I would nevertheless decide the case on the merits, and affirm.

      . 42 Pa.C.S.A. § 704(a) states:
      Waiver of objections to jurisdiction
      (a) General rule. — The failure of an appellee to file an objection to the jurisdiction of an appellate court within such time as may be specified by general rule, shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this title, or of any general rule adopted pursuant to section 503 (relating to reassignment of matters), vesting jurisdiction of such appeal in another appellate court.
      Pa.R.A.P. 741(a) implements Section 704(a) by providing:
      (a) General Rule. The failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the last day under these rules for the filing of the record shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of law vesting jurisdiction of such appeal in another appellate court.
      Of course, the rule of section 704(a) does not apply where the order on appeal is not final or otherwise immediately appealable or where the appeal is untimely. See 42 Pa.C.S.A. § 704(b); Pa.R.A.P. 741(b). This case involves a timely appeal from a final order.


author: KELLY, Judge:

text:
    600 A.2d 213
    PENNWEST FARM CREDIT, ACA, Appellee, v. Gary J. HARE and Judith A. Hare. Appeal of Judith A. HARE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1991.
    Filed Dec. 12, 1991.

      Donald E. Williams, New Castle, for appellant.
    John W. Hodge, New Castle, for appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether a party praeciping for the entry of a default judgment on a complaint in mortgage foreclosure for a mortgage of less than fifty thousand dollars must comply with the notice requirements to the defaulting party set forth in Pa.R.C.P. 237.1 before the default judgment may be entered. We are further called upon to determine whether Pa.R.C.P. 2959, which requires that grounds for relief, whether to strike off a judgment entered by confession or open a judgment entered by confession, must be stated in a single petition, is applicable to a default judgment entered on a complaint in mortgage foreclosure. We affirm in part and reverse in part.

The relevant facts and procedural history are as follows. The appellant and her former husband, Gary J. Hare, purchased a modular home from Factory Homes Outlet. The appellant and her former husband arranged financing for this purchase through the Farm Credit Bank of Baltimore. The thirty-two thousand, five hundred dollar mortgage was duly recorded on September 12, 1988. The mortgage was subsequently assigned to the appellee, PennWest Farm Credit, ACA. The appellant and her former husband failed to make their full monthly payment on January 1, 1990, and thereafter ceased making any payments to the appellee.

On March 21, 1990, the appellee sent the appellant a notice of default and intention to foreclose on the mortgage pursuant to 41 Pa.S.A. § 403. On September 13, 1990, almost six months later, the appellee filed its complaint in mortgage foreclosure. Both the appellant and her former husband were served with the complaint. The complaint was left unanswered and a default judgment was entered in favor of the appellee on October 25, 1990 for thirty-nine thousand, nine hundred and eight-five dollars and three cents, plus costs.

On December 27, 1990, the appellant filed a petition to strike off the judgment entered upon default. In her petition, the appellant alleged that the appellee failed to give her ten days notice as required by Pa.R.C.P. 237.1(a) before praeciping for the entry of default judgment. The trial court granted the appellant a stay, which prevented the appellee from executing upon the default judgment, and scheduled argument on the petition for February 15, 1991. On January 29, 1991, the appellant subsequently filed a petition to strike and/or open the judgment entered upon default and an answer to the complaint in mortgage foreclosure with a counterclaim. Following legal argument, the trial court dismissed both the appellant’s petition to strike off the judgment entered upon default and her petition to strike and/or open judgment entered upon default. The trial court also ordered the stay dissolved. This timely appeal followed.

On appeal, the appellant raises two issues for our review.

1. WHETHER THE PLAINTIFF IS REQUIRED TO COMPLY WITH PA. RULE OF CIVIL PROCEDURE NO. 237.1(a) WHEN THE PLAINTIFF ELECTS TO PROCEED IN AN ACTION IN MORTGAGE FORECLOSURE IN LIEU OF ENTERING A JUDGMENT BY CONFESSION?
2. WHETHER A MORTGAGOR IN A PETITION TO STRIKE A JUDGMENT BY DEFAULT IS REQUIRED TO SET FORTH IN SAID PETITION ALL GROUNDS FOR THE OPENING OF A JUDGMENT IN THE ONE PETITION?

(Appellant’s Brief at V).

The appellant’s first contention on appeal is that the trial court erred in finding that Pa.R.C.P. 237.1 does not apply when the mortgagee elects to proceed through a complaint in mortgage foreclosure in lieu of a judgment by confession. The appellant argues that the appellee was compelled to proceed in accordance with Pa.R.C.P. 237.1(a), which requires that the defaulting party receive notice of the default at least ten days before the non-defaulting party praecipes for the entry of the default judgment. The appellant asserts that because she did not receive proper notice pursuant to Pa.R.C.P. 237.1(a), the entry of the default judgment was invalid on its face, and the trial court’s dismissal of her petition to strike the default judgment was in error.

A petition to strike a judgment will be granted only for defects appearing on the face of the record. Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 599, 511 A.2d 761, 762 (1986); Fierst v. Com. Land Title Ins. Co., 369 Pa.Super. 355, 360, 535 A.2d 196, 198 (1987). Generally, if the record affirmatively shows a failure to comply with Pa.R.C.P. 237.1, the record is defective and will not support the entry of a default judgment. Fierst v. Com. Land Title Ins. Co., supra, 535 A.2d at 198-199; Fountainville Historical Farm v. Bucks County, 340 Pa.Super. 412, 490 A.2d 845 (1985). However, Pa.R.C.P. 237.1(b) states that the rule does not apply to any action subject to the provisions of 41 Pa.S.A. § 101 et seq., which is applicable to all residential mortgages under $50,-000.00. See Continental Bank v. Rapp, 336 Pa.Super. 160, 485 A.2d 480 (1984).

Instantly, the appellant’s residential mortgage was for thirty-two thousand five hundred dollars, thus bringing the praecipe for default judgment on the complaint in mortgage foreclosure within the ambit of 41 Pa.S.A. § 101 et seq. The appellee complied with the notice provisions set forth in 41 Pa.S.A. § 403 when it notified the appellant on March 21, 1990 of its intention to foreclose on the mortgage. Accordingly, the trial court correctly held that the Pa.R.C.P. 237.1 notice requirement before praeciping for the entry of default judgment was inapplicable in the instant case and properly denied the appellant’s petition to strike the default judgment.

The appellant, in her second issue, contends that the trial court erred in dismissing her subsequently filed petition to strike and/or open the judgment entered upon default pursuant to Pa.R.C.P. 2959(a). The appellant argues that because Pa.R.C.P. 2959(a), which holds that all grounds for relief, whether to strike off a judgment entered by default or to open a judgment entered by default, must be stated in a single petition, is only applicable to relief from a judgment by confession, the trial court erred in applying Pa.R.C.P. 2959(a) to the appellant’s January 29, 1991 petition to strike and/or open the judgment entered by default. The appellant asserts that, as her subsequently filed January 29,1991 petition to strike and/or open the judgment entered upon default sets forth an explanation and an equitable reason for her failure to file a timely answer and an assertion that she has a meritorious defense to the complaint in mortgage foreclosure, the trial court should have opened the default judgment.

In order to address the appellant’s second issue on appeal, we must first examine whether the trial court properly applied Pa.R.C.P. 2959(a) to the appellant’s second petition to strike and/or open the default judgment. Our review of Chapter 29 of the Pennsylvania Rules of Civil Procedure indicates that all of the rules in this chapter, including Pa.R.C.P. 2959(a) are only applicable in cases involving a judgment by confession, and may not be applied in an action of mortgage foreclosure. See Pa.R.C.P. 2981. The instant case involves a default judgment entered upon a complaint in mortgage foreclosure. Accordingly, the trial court erred in applying Pa.R.C.P. 2959(a) to the appellant’s subsequent petition to strike and/or open the judgment entered upon default.

Next, we must determine whether the trial court’s denial of the appellant’s initial petition to strike the judgment entered upon default, filed on December 27, 1990, precludes our review of her January 29, 1991 petition to strike and/or open the judgment entered upon default. A petition to strike off a default judgment and a petition to open a default judgment are two distinct remedies which are not generally interchangeable. Advance Bldg. Services v. F & M Schaeffer Brewing Co., 252 Pa.Super. 579, 384 A.2d 931 (1978); Matlock v. Lipare, 243 Pa.Super. 167, 364 A.2d 503 (1976). A petition to strike off a default judgment operates as a demurrer to the record and will only be granted for defects appearing on the face of the record, while an application to open the default judgment is appropriate where the alleged irregularity is a matter outside the record and where evidence relating to the cause of action must be introduced to support the application. Matlock v. Lipare, supra, 243 Pa.Superior Ct. at 169-170, 364 A.2d at 504; Goldberg v. Altman, 190 Pa.Super. 495, 154 A.2d 279 (1959); 12 Pa.Std.Prac. Relief from Judgments § 71.3. The denial of a motion to strike is not generally a bar to a subsequent petition to open, as both concern separate issues: judgments are stricken only for irregularity on the record, and once regularly entered, judgments can only be opened upon equitable principles. Estate of Levy by Levy v. CNA Ins. Co., 338 Pa.Super. 191, 487 A.2d 919 (1985).

Instantly, the trial court’s proper denial of the petition to strike the default judgment should not have precluded its review of the portion of the appellant’s subsequently filed January 29, 1991 petition, which requested opening of the default judgment, because the opening of the default judgment goes to the equitable powers of the trial court and concerns matters outside the record. Therefore, the trial court must review the portion of the January 29, 1991 petition requesting the opening of the default judgment to determine whether the appellant has raised sufficient equitable grounds to warrant the opening of the default judgment. Accordingly, we affirm the portion of the trial court’s order denying the petitions to strike. However, we reverse the portion of the trial court’s order refusing to review the appellant’s request to open the default judgment, and remand this case to the trial court for proceedings consistent with this opinion.

Affirmed in part and reversed in part.

Jurisdiction relinquished.

WIEAND, J., concurs in the result.

      . Judith A. Hare and Gary J. Hare were divorced on December 19, 1989. Mr. Hare has not filed any responsive pleading to the complaint in mortgage foreclosure or participated in any aspect of this appeal.

      . Pa.R.C.P. 237.1 Notice of Praecipe for Entry of Default Judgment
      (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice of agreement shall be attached to the praecipe.
      (b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

      . 41 Pa.S.A. § 403 Notice of Intention to Foreclose
      (a) Before any residential mortgage lender may accelerate the maturity of any residential mortgage obligation, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the residential mortgage debtor for such residential mortgage obligation, such person shall give the residential mortgage debtor notice of such intention at least thirty days in advance as provided in this section.
      (b) Notice of intention to take action as specified in subsection (a) of this section shall be in writing, sent to the residential mortgage debtor by registered or certified mail at his last known address and, if different, at the residence which is the subject of the residential mortgage.
      (c) The written notice shall clearly and conspicuously state:
      (1) The particular obligation or real estate security interest;
      (2) The nature of the default claimed;
      (3) The right of the debtor to cure the default as provided in section 404 of this act and exactly what performance including what sum of money, if any, must be tendered to cure the default;
      (4) The time within which the debtor must cure the default;
      (5) The method or methods by which the debtor’s ownership or possession of the real estate may be terminated; and
      (6) The right of the debtor, if any, to transfer the real estate to another person subject to the security interest or to refinance the obligation and of the transferee’s right, if any, to cure the default.
      (d) The notice of intention to foreclose provided in this section shall not be required where the residential mortgage debtor, has abandoned or voluntarily surrendered the property which is the subject of a residential mortgage.

      . Pa.R.C.P. 2981 Definitions. Conformity to Civil Action
      (a) As used in this chapter
      “Act" means Act No. 6 of 1974, approved January 30, 1974, 41 P.S. § 101 et seq. or Act No. 7, approved October 28, 1966 (Special Session No. 1), as amended by the Act of March 25, 1982, No. 68, 69 P.S. § 1101 et seq.

      “Action” means an action required by the Act as a prerequisite to the issuance of execution upon certain judgments entered by confession. It shall not include an action of mortgage foreclosure.


text:
    600 A.2d 218
    Gary WARREN, Appellee, v. Kathleen J. RICKABAUGH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1991.
    Filed Dec. 12, 1991.

      Joan Carey, Carlisle, for appellant.
    Gary G. Warren, pro se.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Cumberland County continuing the parents’ shared legal custody of their children, Jessica Warren (born March 9, 1981) and Joshua Warren (born August 30, 1982) and transferring primary, physical custody from the mother to the father. We affirm in part and remand in part.

Kathleen J. Rickabaugh (“mother”) and Gary Warren (“father”) divorced in 1985. This is the sixth custody order regarding their two children that has been entered since their divorce. In order to understand the issues before this court it is necessary to first review the factual background of the six custody orders as it reflects a deterioration in the parent’s ability to amicably resolve issues regarding their children.

The first order was entered on September 3, 1986 and granted shared legal custody to the mother and father with primary physical custody to the mother and liberal temporary physical custody to the father.

The second order, entered on June 16, 1988, continued primary physical custody with the mother with temporary physical custody to the father. After the father relocated to Florida it became necessary for the trial court to specify the time periods when the children could visit him. This included eight weeks in the summer, a portion of the children’s Christmas vacation, and the children’s spring vacation. The trial court also arranged a schedule so that the father could speak to his children by telephone.

The third order was entered on August 28, 1989 in response to the father’s petition for modification of custody. The order extended the father’s temporary physical custody in the summer. The order also forbade either parent from harassing the other, and directed both parents to cooperate in making arrangements to permit the father to exercise his temporary physical custody rights. In addition, the order specified a schedule for telephone contact between the father and the children and permitted the children to take unaccompanied flights to Florida to visit him if there was no change of airplanes during the flight.

In response to the mother’s threats to interfere with the father’s temporary physical custody the trial court entered a fourth interim order on August 2, 1990. The court permitted the father to return the children to their mother at a later date. At the hearing prior to the fourth order the father also sought primary custody of the children. The trial court heard testimony from several witnesses in regard to his request. Police officers in the mother’s community testified that they had been summoned to her home on several occasions in response to domestic disputes between herself and her fourth husband, Gerald Rickabaugh (“Rickabaugh”). Nevertheless, primary custody remained with the mother.

As a result of the father’s continuing difficulty in telephoning and making travel arrangements with his children the court entered a fifth order on August 27, 1990 again detailing a schedule for telephone contact and travel arrangements. Less than a year later another order was entered by the trial court.

In February of 1991 the mother and children moved out of the marital home and into a women’s shelter as a result of the escalating disputes between the mother and Rickabaugh. During most of their two week stay at the shelter the father was unable to locate his children. The mother and children then moved into an apartment on the Middle-town campus of The Pennsylvania State University. This change of residence forced the children to change schools in the middle of the academic year. Consequently, the father again petitioned for primary custody.

In the sixth custody order, the order before us on appeal, the court continued the shared legal custody of the children, but transferred primary physical custody to the father and temporary physical custody to the mother. In short, the father now has the same custody schedule as the mother did under the previous order. Also, the trial court made special arrangements to enable the children to complete this school year in Pennsylvania. In response to the new custody arrangement, the mother filed this timely appeal.

The mother presents two issues for our review: (1) whether the trial court erred in changing primary physical custody from their mother to their father; and (2) whether the court abused its discretion by unduly burdening the mother’s visitation rights by requiring her to pay half of the children’s travel expenses.

In custody disputes the controlling question and paramount concern of the court is the best interests of the child; all other considerations are deemed subordinate to the child’s physical, intellectual, moral, and spiritual well-being. Gerber v. Gerber, 337 Pa.Super. 580, 487 A.2d 413 (1985). In Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), the Pennsylvania Supreme Court set forth the appropriate standard of appellate review in custody cases:

[A]n appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it. However ... this broader power of review was never intended to mean that an appellate court is free to nullify the factfinding function of the hearing judge ... [but, instead, the appellate court is to remain] within the proper bounds of its review and [base a decision] upon its own independent deductions and inferences from the facts as found by the hearing judge.

Id., 505 A.2d at 236, 478 A.2d at 805-06 (citation omitted); see also Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988) (an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s legal conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings); Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987) (a broad or searching appellate review is proper and necessary in custody matters to insure that the focus of the trial court is the best interests of the child).

With respect to the transfer of primary custody to the father, our review of the record reveals that the trial court’s decision was the result of a careful analysis of the law and the facts of this case. The trial court determined that the best interests of the children at this time lie primarily in providing a stable environment for them. The children, Jessica and Joshua, are at an age when continued disruptions at home and at school will only create serious problems. We are satisfied, as was the trial court, that the children will have a more stable environment living with their father for he has been a consistently positive force in their lives. We conclude that the trial court’s findings regarding the awarding of custody to the father are supported by competent evidence. Schwarcz v. Schwarcz, 378 Pa.Super. 170, 548 A.2d 556 (1988).

In its opinion the trial court did not address the mother’s second issue, the division of the travel expenses of the children pursuant to the custody order. Consequently, we are unable to review the issue. The trial court must “... provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for its ultimate decision.” Id., 378 Pa.Superior Ct. at 190, 548 A.2d at 566 (quoting Cady v. Weber, 317 Pa.Super. 481, 464 A.2d 423 (1983)). See Pa. R.C.P. No. 1915.10 — Explanatory Note — 1981. Therefore, we remand this portion of the order to the trial court so it may place its rationale for dividing the travel expenses on the record for our review.

Order affirmed in part, and remanded in part. Jurisdiction retained.

      . The order of the trial court stated that the mother shall have temporary physical custody of the children on the following schedule:
      (a) From [March 26, 1991] until the first Saturday after the children are out of school for the current school year.
      (b) From Saturday, August 3, 1991, until Sunday, August 18, 1991.
      (c) From December 27th each year to the last day of the children’s Christmas vacation.
      (d) At such other times as the parties may agree. Rickabaugh shall be allowed to be with the children when she is in the area in which Warren lives. She may notify Warren by phone or letter when such circumstances will occur. When mother exercises temporary physical custody under this subparagraph, she shall be allowed to have children at all times when they are not in school.
      (e) For a period during each summer school vacation period starting with the summer of 1992, commencing on the second Saturday after the children are out of school and ending nine weeks later. For one full week after this period has started and before it ends, father shall have the option of having the children if he is on vacation. Father shall advise mother of his vacation dates at the start of each summer period. If father does not exercise this option, mother shall return the children to him eight weeks after she receives them.
      (4) When father has the children, he shall have them available in his home each Wednesday at 9:00 p.m., at which time mother may call for a phone conversation lasting, at her option, up to one-half hour. During the time the children are with the mother, she shall have the children available each Wednesday at 9:00 p.m. for a similar call by the father. If a parent is not going to be home for these scheduled phone calls, that parent shall call the other parent at least one day before the scheduled phone call and allow the children to talk to the other parent at that time.
      (5) Father shall arrange and pay for transportation to take the children to his home in Florida at the end of the current school year. He shall split the cost of transportation of the children coming to Pennsylvania at any other time they come here pursuant to the terms of this court order.

      (emphasis added).