author: BROSKY, Judge:

text:
    527 A.2d 1055
    COMMONWEALTH of Pennsylvania v. Jason MYSNYK, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1987.
    Filed June 29, 1987.

      Jack E. Grayer, Bethlehem, for appellant.
    Paul Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.

      Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal is from the judgment of sentence entered on July 9, 1986. Appellant was convicted in a bench trial of theft by unlawful taking. Appellant now contends: (1) that the sentence imposed below is violative of double jeopardy, and hence unlawful; and (2) that the sentencing court abused its discretion in imposing a sentence within the aggravated range of the sentencing guidelines. Upon consideration of the arguments raised, we now affirm the judgment of sentence.

Appellant was arrested on February 11, 1986, for siphoning gasoline from a flatbed truck. At the time of the arrest, appellant was on parole and probation from two previous theft convictions. Appellant pled guilty to the current offense in the July 1,1986 bench trial before Judge Connelly, and was sentenced on July 9, 1986, to six (6) to twelve (12) months confinement, which was to run- concurrently to the sentence of probation imposed in 1984 on the conviction at bill of information No. 297.

On July 18, 1986, a hearing was held before President Judge Pfadt, who had sentenced appellant on the 1984 convictions. Judge Pfadt revoked appellant’s parole for No. 296, and ordered that he serve the remainder of the original sentence of confinement. With respect to No. 297, Judge Pfadt revoked the order of probation, and sentenced appellant to a six (6) to twelve (12) month period of confinement, to run consecutively to the remaining confinement time on the sentence for No. 296.

Appellant’s initial contention is that the revocation of parole and probation for the 1984 convictions illegally increased the 1986 sentence of confinement he was given by Judge Connelly, thereby violating his constitutional protection from double jeopardy. We disagree.

Appellant places reliance upon Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971). In Silverman, the Pennsylvania Supreme Court was faced with an unusual scenario, in which a trial judge, following the imposition of the defendant’s sentence, had “second thoughts” about its leniency, and called the defendant into court once again to increase the sentence. Our Supreme Court determined this to be violative of double jeopardy, and based its rationale upon the landmark United States Supreme Court case of Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873). However, the U.S. Supreme Court abandoned the reading given Lange by the Silverman Court, in the later decision U.S. v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). In DiFrancesco, the U.S. Supreme Court undertook a thorough analysis of the English common law approach to the double jeopardy principle, as well as of relevant decisions of the Court subsequent to Lange, and came to the conclusion that “a sentence does not have the qualities of constitutional finality that attend an acquittal ... ”, DiFrancesco, 101 S.Ct., at p. 436. Upon so concluding, the Court continued to state the following with respect to the applicability of the double jeopardy clause to sentencing increases:

The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be. Congress has established many types of criminal sanctions under which the defendant is unaware of the precise extent of his punishment for significant periods of time, or even for life, yet these sanctions have not been considered to be violative of the Clause. Thus, there is no double jeopardy protection against revocation of probation and the imposition of imprisonment, (citation omitted). There are other situations where probation may be revoked and sentence of imprisonment imposed, (citations omitted). While these criminal sanctions do not involve the increase of a final sentence, and while the defendant is aware at the original sentencing that a term of imprisonment later may be imposed, the situation before us is different in no critical respect. Respondent was similarly aware that a dangerous special offender sentence is subject to increase on appeal.
His legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is- placed on parole or probation that is later revoked.
The guarantee against multiple punishment that has evolved in the holdings of this Court plainly is not involved in this case. As Ex parte Lange demonstrates, a defendant may not receive a greater sentence than the legislature has authorized. No double jeopardy problem would have been presented in Ex parte Lange if Congress has provided that the offense there was pun ishable by both fine and imprisonment, even though that is multiple punishment____ DiFrancesco, 101 S.Ct. at pp. 437, 438. (Emphasis supplied).

Following DiFrancesco, our own Court was confronted with a double jeopardy challenge in the case of Commonwealth v. Gonzales, 350 Pa.Super. 373, 504 A.2d 886 (1986). In Gonzales, the defendant had been convicted of third degree murder, and had already begun to serve a three (3) to twelve (12) year sentence, when the trial court sua sponte reconvened, and resentenced defendant to an increased five (5) to twelve (12) year sentence, pursuant to the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712. In reaching its decision that the resentencing was not barred by double jeopardy, our Court noted the following:

DiFrancesco advances two basic tenets. First, the Double Jeopardy Clause bars multiple punishment, i.e. punishment in excess of that permitted by law. United States v. DiFrancesco, supra, 449 U.S. at 139, 101 S.Ct. at 438, 66 L.Ed.2d at 347. Second, that clause respects the defendant’s “legitimate expectations” regarding the length of his sentence. Id. at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346.
We find that the principles set forth in DiFrancesco apply here and so reject appellant’s double jeopardy claim. Appellant was not “punished in excess of that permitted by law” when he was sentenced correctly for the first time in compliance with section 9712 on October 7, 1983. Nor did appellant have a legitimate expectation of receiving his initial sentence for three reasons: the first of these being the general lack of finality accorded to sentences; the second being the statutory right afforded the sentencing judge to modify a sentence within thirty days of imposition; and finally, appellant’s awareness that the Mandatory Minimum Sentencing Act and its relevant appeal provisions could be applied in this case.
“The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” United States v. DiFrancesco, supra at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346. Gonzales, supra, 504 A.2d at pp. 889, 890 (Emphasis supplied).

Turning now to the instant matter, we find that the criteria for evaluating double jeopardy claims set forth in DiFrancesco, and applied by this Court in Gonzales, operate to defeat appellant’s challenge.

Clearly, appellant was resentenced within the statutory limits. The periods of confinement to which appellant was resentenced by Judge Pfadt are periods to which appellant could have originally been sentenced in 1984. See 18 Pa. C.S. § 3903(b), for misdemeanor gradings; 204 Pa.Code § 303.9, reprinted following 42 Pa.C.S. § 9721, for guideline ranges.

Moreover, appellant cannot claim that he had a “legitimate expectation” that probation and parole would not be revoked, despite the ten-day delay between the original sentencing hearing and the second hearing. A defendant who violates the conditions of his parole and/or probation, is placed in the same position that he was in at the time of the original conviction. The sentencing court has the statutory authority to resentence a defendant to a term of total confinement as punishment for the violations, and such punishment will not constitute a “second punishment” for the same offense. See 42 Pa.C.S. § 9721(a), § 9771(b) and (c); also see Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982) and Commonwealth v. Hunter, 321 Pa.Super. 333, 468 A.2d 505 (1983).

As such, we now hold that the increase in appellant’s sentence was not violative of double jeopardy.

Appellant’s second contention pertains to the period of confinement imposed by Judge Connelly at the July 9 sentencing. Appellant contends that the imposition of a sentence in the aggravated guideline range for theft by unlawful taking, was manifestly excessive. We are unable to reach the merits of appellant’s second contention.

A challenge to a sentence as “manifestly excessive” clearly attacks a discretionary aspect of the sentence imposed. Where a purely discretionary aspect of a sentence is being challenged, a separate statement, demonstrating that a “substantial question” is posed by the aspect under attack, must be included in an appellant’s brief before this Court may address the merits of the sentencing question posed. Pa.R.A.P. 2119(f); see also Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Appellant has not provided this Court with the separate statement required by the appellate rules and the recent Tuladziecki decision. Hence, we may not reach the merits of appellant’s excessiveness challenge.

Judgment of sentence affirmed.

      . Appellant did not raise this issue in his motion to modify sentence filed on July 18, 1986. This is because appellant's parole and probation on two previous convictions, Nos. 296 and 297, were not revoked until the hearing of July 28, 1986, before President Judge Pfadt. Normally, where a sentencing judge expressly grants reconsideration of the original sentence, in response to a motion to modify, within the thirty-day appeal period, and modifies the sentence, an appeal must be taken from the new judgment of sentence, and a new motion to modify filed, in order to preserve any challenge to the modified séntence. See Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342, 1345-46 (1984); see also Commonwealth v. Broadie, 339 Pa.Super. 394, 489 A.2d 218, 220 (1985). However, the original sentence in the instant case was not expressly modified by the sentencing judge, Judge Connelly, but increased by the revocation of parole by President Judge Pfadt, thereby creating some procedural confusion. As a rule, we might be inclined to yet quash pursuant to Gordon and Broadie. However, the challenge to the increase in sentence, in alleging a double jeopardy violation through later revocation of parole and probation, raises an issue of sentence legality, which can never be waived, see Commonwealth v. Bossche, 324 Pa.Super. 1, 471 A.2d 93, 95 (1984). As such, we shall be considering the merits of the double jeopardy challenge.

      . The notice of appeal states that this appeal is from the judgment of sentence on July 7, 1986. As there were no proceedings on July 7, we presume this to be a typographical error, which we may excuse under Pa.R.A.P. 105(a).

      . At the time of the 1984 convictions on bills No. 296 and 297, appellant was sentenced to serve eleven and one-half (IIV2) to twenty-three (23) months confinement on No. 296, with a three year probationary period for No. 297 to commence at the end of his confinement at No. 296. Appellant was paroled at No. 296 after serving the 111/2 month minimum, and began to serve his probation for No. 297 upon his release.

      . The Act was already in effect at the time of Gonzales’ initial sentencing.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    527 A.2d 1058
    In re ESTATE OF Frank M. CORACE, Deceased. Appeal of Mary K. GRAESER also known as Mary Corace.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Decided June 22, 1987.

      Ralph C. Christensen, Washington, for appellant.
    Bruce E. Dice, Oakmont, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from the grant of a petition to vacate the appellant’s election against the decedent’s will. We affirm.

Two issues are presented for our review: (1) whether the appellant was competent to testify about the creation of her status as a surviving spouse; and (2) whether the appellant had established a common law marriage with the decedent before his death.

The trial court found that in September 1977, the decedent, Frank Corace, hired then 17 year-old appellant/claimant, Mary Graeser, to work in his business. The decedent had met the claimant approximately one year earlier when he was about 65 years of age. Later in 1977, decedent purchased a late model luxury car for claimant. In the spring of 1978, Eleanor Corace, whom decedent was married to at the time, committed suicide. In June 1979, claimant moved into the decedent’s home.

In November 1980, decedent prepared his last will and testament designating his three grandchildren as sole beneficiaries. Two of these grandchildren were named as executors. Decedent and claimant continued to reside together, with the exception of one short interval, from June 1979 until decedent’s death in March 1985. In September 1985, claimant filed a notice of election against the decedent’s will based on her assertion that she was the decedent’s widow. In response, the executors of the decedent’s estate filed a petition to vacate the election. Claimant appeals the trial court’s grant of the petition to vacate her election. The trial court found that claimant did not establish that she was the common law wife of the decedent.

I

We first discuss the claimant’s competency to testify about her alleged common law marriage with the decedent. Section 2209 of Title 20 provides that “[a] person who is or claims to be the surviving spouse shall be a competent witness as to all matters pertinent to his rights under this chapter [relating to the elective share of a surviving spouse] other than the creation of his status as a surviving spouse” 20 Pa. C.S. § 2209 (emphasis added). That is, a person who seeks to obtain an elective share of the estate of a deceased spouse is statutorily prohibited from testifying about the creation of one’s status as a surviving spouse. This statute applies to this case because the central issue here is whether the claimant seeking an elective share of the decedent’s estate has established her alleged status as a surviving spouse pursuant to an alleged common law marriage.

The Pennsylvania Supreme Court in the case of In re Estate of Stauffer, 504 Pa. 626, 476 A.2d 354 (1984), considered this same issue. Stauffer, however, was based on the law as it existed before the enactment of the present version of § 2209. Stauffer is nonetheless illustrative for the purpose of analyzing the theory behind § 2209.

In Stauffer, as here, the claimant filed an election to take against the will of the decedent on the basis that she was the wife of the decedent pursuant to a common law marriage. At trial, counsel for the decedent’s estate objected to the claimant’s testimony, due to the Dead Man’s Act. The Supreme Court agreed and stated that the purpose of the Dead Man’s Act, 42 Pa. C.S. § 5930, is “ "to prevent the injustice that might flow from permitting the surviving party to a transaction with a decedent, which the latter’s representative would be in no position to refute.’ ” 504 Pa. at 630, 476 A.2d at 356 (quoting Estate of Kofsky, 487 Pa. 473, 476, 409 A.2d 1358, 1359 (1979)) (citation omitted). The claimant in Stauffer argued that she was competent to testify based on an exception to the Dead Man’s Act which permits those who would otherwise be incompetent to testify under the Act, to proffer testimony regarding the intent of the testator.

Our Supreme Court rejected this argument and ruled that before the claimant could come within the exception to the limitations imposed by the Act, she had to overcome the hurdle of establishing her status as a common law wife. Id. 504 Pa. at 631, 476 A.2d at 357. The Stauffer Court reasoned, moreover, that the claimant’s attempt to overcome that hurdle must be accomplished without resort to any exception to the Act because at that time the claimant is not yet within the scope of the Act. Id., 504 Pa. at 631-32, 476 A.2d at 357. The Court added that a common law marriage is a civil contract, and permitting testimony by the claimant regarding that contractual relationship between herself and the decedent would clearly be proscribed by the Dead Man’s Act.

The Stauffer Court held that the claimant was not completely precluded from establishing her status as a common law wife, but, rather, was barred from using her own testimony as supportive evidence for that position. Id., 504 Pa. at 632, 476 A.2d at 357 (citing Wagner Estate 398 Pa. 531, 536, 159 A.2d 495, 498 (I960)).

Section 2209 can be said to have codified the principles enunciated in Stauffer. Indeed, the Court noted that the current version of § 2209 would have rendered moot the issues considered in Stauffer. Id. 504 Pa. at 632 n. 3. Nevertheless, our discussion of Stauffer increases the perspicuity and buttresses the validity of our conclusion that § 2209 applies to the case before us and precludes the claimant from using her own testimony to establish the creation of her status as a surviving common law spouse of the decedent. Thus, the trial court correctly excluded such testimony by the claimant.

As our Supreme Court recognized in Stauffer, however, this conclusion does not prohibit the claimant from attempting to establish her marital relationship with the decedent based on other evidence. This leads us to the last issue in this case.

II

The claimant argues that she established a common law marriage with the decedent before his death. We disagree.

The Pennsylvania Supreme Court has recognized that while this Commonwealth tolerates common law marriage, the same is not encouraged. Stauffer, 504 Pa. at 629, 476 A.2d at 356. See Steadman v. Turner, 357 Pa.Super. 361, 362, 516 A.2d 21, 22 (1986). Furthermore, Stauffer observed that because common law marriage is a fruitful source of perjury and fraud, “ ‘the law imposes a heavy burden on one who grounds his or her claim on an allegation of common law marriage. This is especially so where one of the parties is dead and the claim, so grounded, is to share in the distribution of the estate.’ ” Stauffer, 504 Pa. at 630, 476 A.2d at 356 (quoting Estate of Gavula, 490 Pa. 535, 540-41, 417 A.2d 168, 171 (1980)).

As with other civil contracts, all that is necessary to establish the existence of a common law marriage is “proof of an agreement to enter into the legal relationship of marriage at the present time.” 504 Pa. at 632, 476 A.2d at 356 (citing Gavula, 490 Pa. at 540, 417 A.2d at 171). An inference of marriage may be drawn from the circumstantial evidence of constant cohabitation and a general reputation of marriage. In re Estate of Kovalchick, 345 Pa.Super. 229, 233-34, 498 A.2d 374, 376-77 (1985) (citing Gavula, 490 Pa. at 540 n. 7, 417 A.2d at 171 n. 7). This inference fails, however, upon proof that no marriage existed. Kovalchick, 345 Pa.Super. at 235, 498 A.2d at 377 (citing Pierce v. Pierce, 355 Pa. 175, 179, 49 A.2d 346, 348 (1946); In re Cummings Estate, 330 Pa.Super. 255, 263, 479 A.2d 537, 542 (1984)).

The applicable appellate standard of review does not permit us to reverse the trial court’s finding that there was no common law marriage, unless we detect an abuse of discretion or an error of law. Kovalchick, 345 Pa.Super. at 233, 498 A.2d at 376 (citing Cummings, 330 Pa.Super at 261, 479 A.2d at 541). See Steadman v. Turner, 357 Pa.Super. 361, 362, 516 A.2d 21, 22 (1986). We find no abuse of discretion and no error of law in the trial court’s finding that the claimant did not intend to form a common law marriage with the decedent prior to his death, and that there was insufficient evidence to establish that claimant and decedent had a general reputation within the community as a married couple.

The record indicates that the decedent did not place his property in joint title with the claimant even though several substantial purchases were made after their cohabitation had commenced. Nor did they file joint tax returns. A final representative incident that supports the trial court’s finding is that the claimant did not describe herself as the decedent’s wife when she brought the decedent to the hospital immediately before his death. Rather, a relative of the decedent had to be called to sign certain hospital documents. The claimant did not hold herself out as the decedent’s wife immediately prior to his death. Therefore, she should not expect to be categorized as his wife, after his death.

Affirmed.

      . 20 Pa. C.S. § 2209 addresses the competency of a surviving spouse to testify regarding marital status. This statute is discussed in Part I of our opinion.

      . The official comment to § 2209 indicates that the current version of the statute is the result of an amendment which was enacted in response to case law which suggested that the prior version of the statute could have been interpreted to allow a person asserting the status of a surviving common law spouse to testify concerning statements of the decedent which would establish an alleged marriage.


text:
    528 A.2d 155
    Isaac JOHNSON, Appellant, v. MOBIL OIL CORPORATION and D.G. Hotsenpiller.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1986.
    Filed May 8, 1987.
    Reargument Denied July 21, 1987.

      John L. Lachall, West Chester, for appellant.
    Michael K. Tillery, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and ROWLEY, and BECK, JJ.
   CIRILLO, President Judge:

Isaac Johnson filed a three count complaint in the Court of Common Pleas, Chester County, against Mobil Oil Corporation (Mobil) and D.G. Hotsenpiller (Hotsenpiller), an employee of Mobil. This is an appeal from an order granting summary judgment and partial summary judgment against appellant on Counts I and II, and from dismissal of Count III for lack of subject matter jurisdiction based on the Federal Petroleum Marketing Practices Act (PMPA), 15 U.S.C. §§ 2801-2806.

In July, 1981, appellee Mobil Oil was solicited by appellant Johnson to become an independent dealer-operator for Mobil Oil. Mobil urged him to sign a trial franchise agreement, a special type of lease created under the PMPA, which would run for a period of one year. Mr. Johnson claims that he was assured by appellee’s agents that if he increased gallonage to 50,000 and otherwise performed his duties, his lease would be renewed for at least three years. One month later, he was again assured that if he performed satisfactorily his agreement would be renewed for three additional years. In response to his questions as to whether Mobil would in fact exercise its right to non-renewal, Mr. Johnson was told by Mobil representatives that “there was a one year lease with provisions for continuing the three years,” and that “[i]f you do a good job, you know, you’re in. We don’t throw people out who are doing a good job.”

Appellant also asserts that he was told by Mobil’s representatives that the underlying lease gave Mobil a right of first refusal in the event the owner decided to sell, and that Mobil would exercise this right if given the opportunity. However, appellant contends that he was not notified nor could he have discovered that: (1) the lease between Mobil and Mr. Pilotti contained a provision whereby either party could terminate upon one year’s notice; (2) Mobil knew Mr. Pilotti was attempting to sell the property; (3) Mobil had refused Mr. Pilotti’s offer of sale three months earlier; (4) Mobil had been notified of an offer by Exxon to purchase the property and (5) Mobil had already decided not to exercise their option to buy before executing the agreement with appellant.

Mr. Johnson executed what was purportedly a trial franchise agreement with Mobil on August 18, 1981 for a period of one year. At that time he was told that a third party, Mr. Pilotti, owned the property where the service station was located and that Mobil’s lease with Mr. Pilotti (the underlying lease) would not expire until May 31, 1986. Appellant claims his agreement with Mobil confirmed the May 31, 1986 expiration date. Based on the representations, Mr. Johnson claims he was promised a certain future as a Mobil dealer.

On March 24, 1982, appellant was notified of the nonre-newal of his trial franchise agreement and that his lease would expire as of August 28, 1982. The reason given for the termination was the expiration of Mobil’s underlying lease as of September 30, 1982. Both parties agree that appellant increased sales and performed his other duties in an exceptional way.

Count I of appellant’s complaint alleged that Mobil breached the trial franchise agreement. Count II alleged that both appellees fraudulently induced appellant to enter into the agreement.

Appellant claims he was the victim of fraud and misrepresentation in that he was induced to sign an agreement which misstated the expiration date of the underlying lease as May 31, 1986, rather than September of 1982. The trial court granted summary judgment in favor of Mobil on these state law claims, finding them to be preempted by the PMPA. Count III alleged that appellees violated the PMPA by failing to renew the franchise agreement. The trial court dismissed Count III for lack of subject matter jurisdiction, holding that Congress vested exclusive jurisdiction in the federal courts over claims brought under the PMPA. This appeal followed.

Mr. Johnson raises two issues on appeal: (1) did the trial court err when it concluded that his state law claims are preempted by federal law — namely the Petroleum Marketing Practices Act — and when it further concluded that these claims must be presented under the Petroleum Marketing Practices Act rather than under the pure state law counts of his complaint; and (2) did the trial court err when it concluded that Count III of the complaint must be dismissed for lack of subject-matter jurisdiction because the United States Congress intended that the jurisdiction of claims brought under the Petroleum Marketing Practices Act rests exclusively with the federal courts.

I

Mobil filed a motion for summary judgment averring that all of Mr. Johnson’s state law claims as set forth in Counts I and II were preempted by the specific provisions of the PMPA. The motion was granted. As a result, the hearing judge never reached the merits of the state law issues.

The PMPA is a complex piece of legislation which was enacted in 1978 in recognitition of the disparity of bargaining power between franchisor and franchisee in the motor fuel industry. The Act was intended by Congress to protect independent gasoline marketers who lacked the bargaining position to override distributor decisions to discontinue franchise agreements. In addition, the Act was intended to provide a uniform set of rules. See Bellmore v. Mobil Oil Corp., 524 F.Supp. 850 (D.Conn.1981); Munno v. Amoco Oil Corp., 488 F.Supp. 1114 (D.Conn.1980); Marini v. Atlantic Richfield Co., 475 F.Supp. 142 (D.N.J.1979).

“Title I of the PMPA prohibits termination or nonrenewal of any franchise relationship except on the basis of specifically enumerated grounds and upon compliance with certain notification requirements.” Esso Standard Oil Co. v. Dep’t of Consumer Affairs, 793 F.2d 431, 432 (1st Cir. 1986); 15 U.S.C. §§ 2802-2804. The PMPA defines “franchise relationship” as “the respective motor fuel marketing or distribution obligations and responsibilities of a franchisor and a franchisee which result from the marketing of motor fuel under a franchise.” 15 U.S.C. § 2801(2). There is no dispute that a franchise relationship was created between appellant and Mobil. However, Mr. Johnson contends that his suit does not involve termination and nonre-newal of a franchise relationship. He contends it deals only with the common law claims of fraud and misrepresentation. Specifically, he asserts that he was fraudulently induced to enter into the agreement and that Mobil breached the agreement by not telling him that Mobil’s lease on the property would expire in 1982, and not in 1986 as he was told. He claims that his cause of action is based upon fraud and misrepresentation which occurred prior to the nonrenewal.

The doctrine of preemption springs from the simple mandate that the “Constitution, and the Laws of the United States ... shall be the Supreme Law of the Land____” U.S. Const, art. VI, cl.2. Chief Justice Marshall first stated the doctrine in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824):

The nullity of any act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the state legislatures as do not transcend their powers, but though enacted in the execution of acknowledged state powers, interfere with, or are contrary to, the laws of Congress, in pursuance of the Constitution, or some treaty made under the authority of the United States. In every case, the act of Congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.

22 U.S. (9 Wheat.) at 210-11.

It is well settled that federal law can preempt state law in two ways. Congress can intend to occupy the entire field so there would be no applicable state law on the subject, Exxon Corp. v. Georgia Ass’n of Petroleum Retailers, 484 F.Supp. 1008, 1017 (N.D.Ga.1979), or state law may, in fact, conflict with federal law. Such conflict occurs where compliance with both federal and state regulation is a physical impossibility, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 132-43, 83 S.Ct. 1210, 1210-17, 10 L.Ed.2d 248 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).

Most of the cases interpreting the scope of the PMPA’s preemptive effect deal with the termination and nonrenewal of continuing or long-term leases under § 2802 of the Act. Section 2806, defining the relationship of statutory provisions to state and local law, has been interpreted by courts as mandating a broad preemption of any claim related to termination or nonrenewal of petroleum franchises. Bellmore v. Mobil Oil Corporation, 783 F.2d 300, 304, (2d Cir.1986); Continental Enterprises Inc. v. American Oil Co., 628 F.Supp. 126 (W.D.Mo.1986) Graeber v. Mobil Oil Corp., 614 F.Supp. 268 (D.N.J.1985); Huth v. B.P. Oil, Inc., 555 F.Supp. 191 (D.Md.1983). Section 2806 provides that no state or local law may be adopted, enforced or continued in effect unless such law is the same as the applicable provision of the PMPA. Most of the cases examining the relationship of the Act to state law interpret § 2806 as preempting state law only where it is inconsistent with the PMPA. See Bellmore, supra; Clark v. Mobil Oil Corp., 496 F.Supp. 132 (E.D.Mo.1980); Brach v. Amoco Oil Co., 570 F.Supp. 1437 (N.D.Ill.1983); DiNapoli v. Exxon Corp., 549 F.Supp. 449 (D.N.J.1982).

With respect to termination and nonrenewal claims, the court in Continental Enterprises stated:

Clearly, the Act is the exclusive remedy for these claims. It is true that the Act was designed with the protection of the franchisee in mind, but the protection is not without a price, namely, adherence to ... § 2806(a)____ Plaintiff cites Clark v. Mobil Oil Corp., ... for its contention that the Act simply preempts state common law remedies which would bar termination by the franchisor. This limitation of the scope of the Act is not found in the statute or its legislative history; in fact, the provision in § 2805 for actual and punitive damages as well as equitable relief appears to provide the relief sought by plaintiff.

628 F.Supp. at 129. In Huth v. B.P. Oil, Inc., 555 F.Supp. 191 (D.Md.1983), the court states that legislative history supports the conclusion that § 2806 applies to generalized statutes and common law doctrines. Because of the “need ‘to establish uniform guidelines regarding the franchise relationship,’ ... [conflicting applications of a common law rule ... disrupt the ‘uniform guidelines’ of the PMPA just as much as a specific state regulatory statute would.” Id. at 194 (citing S.Rep.No. 731, 95th Cong., 2nd Sess. 19 (1978) reprinted in 1978 U.S.Code Cong. & Ad.News 873, 877).

Other courts have found that the Act “neither expressly nor impliedly preempts all state law relating to any aspect of the termination or nonrenewal of petroleum franchises. Rather, these courts have held that it preempts only state statutes as to grounds for, procedures for, and notification requirements with respect to termination or nonrenewal.” Bellmore v. Mobil Oil Corp., 783 F.2d at 304. See Esso Standard Oil Co. v. Dep’t of Consumer Affairs, 793 F.2d at 434, (stating that although the “primary objective of the PMPA was to protect franchisees from arbitrary and discriminatory terminations ... there is no doubt that Congress was also concerned with retaining some flexibility for franchisors.”).

With regard to trial franchise agreements, we know of no Pennsylvania cases dealing with this type of suit under the PMPA. However, in Amoco Oil v. Burns, 496 Pa. 336, 437 A.2d 381 (1981), which dealt with a nonrenewal controversy in a continuing lease, the Pennsylvania Supreme Court observed that the PMPA “will supersede and preempt any state statute covering the same subject matter in cases after its effective date, June 19,1978. 15 U.S.C. § 2806(a).” Id., 496 Pa. at 496 n. 16, 137 A.2d at 384 n. 16.

Section 2802 of the PMPA provides in relevant part: (b)(2) For purposes of this subsection, the following are grounds for termination of a franchise or nonrenewal of a franchise relationship:
(C) The occurrence of an event which is relevant to the franchise relationship and as a result of which termination of the franchise or nonrenewal of the franchise relationship is reasonable____
(c) As used in subsection (b)(2)(C) of this section, the term “an event which is relevant to the franchise relationship and as a result of which termination of the franchise or nonrenewal of the franchise relationship is reasonable” includes events such as—
(4) loss of the franchisor’s right to grant possession of the leased marketing premises through expiration of an underlying lease, if the franchisee was notified in writing, prior to the commencement of the term of the then existing franchise—
(A) of the duration of the underlying lease, and
(B) of the fact that such underlying lease might expire and not be renewed during the term of such francise (in the case of termination) or at the end of such term (in the case of nonrenewal).

15 U.S.C. § 2802(b)(2)(C), (c)(4) (emphasis added).

In the instant case, Mobil’s lease with Mr. Pilotti terminated, and, as a result, Mobil was unable to grant possession of the premises to appellant. The PMPA expressly makes loss of a franchisor’s right to grant possession of the leased premises a “reasonable” ground for nonrenewal. See 15 U.S.C. § 2802(b)(2)(C) and (c)(4). See also Ricco v. Shell Oil Company, 180 N.J.Super. 399, 434 A.2d 1151 (1981) (loss of right to grant possession through expiration of underlying lease is event deemed to be reasonable and not arbitrary or discriminatory within purview of PMPA, where franchisor gave notice to franchisee of expiration date of underlying lease).

We note, however, that the foregoing statutory nonre-newal provisions do not apply to “trial franchises.” See 15 U.S.C. § 2803. Thus, the strict notice requirements of § 2802, which protect franchisees from arbitrary and discriminatory termination or nonrenewal, would not apply here if, in fact, a trial franchise was created.

Both parties here refer to the agreement in question as a “Trial Franchise Agreement.” In order to create a trial francise under the PMPA, the following requirements must be met: (1) the agreement must be entered into on or after June 19, 1978; (2) the franchisee must not previously have been a party to a franchise with the franchisor; (3) the initial term of the agreement must be for a period of not more than one year; and (4) the agreement must be in writing. Moreover, the agreement must “clearly and conspicuously” state: (1) that it is a trial franchise; (2) the duration of the agreement; (3) that the franchisor may fail to renew the franchise at the conclusion of the initial term by notification pursuant to § 2804; and (4) that the provisions of § 2802 are not applicable to such a trial franchise.

As stated above, in failing to renew a “trial franchise,” the franchisor need not comply with the provisions of § 2802. Instead, “the franchisor may fail to renew the franchise relationship at the conclusion of the initial term stated in the franchise by notifying the franchisee, in accordance with the provisions of section 2804 ... of the franchisor’s intention not to renew the franchise relationship.” 15 U.S.C. § 2803(b)(l)(D)(iii). However, § 2804 is relevant only if a “trial franchise” was created.

The case of Wojciechowski v. Amoco Oil Co., 483 F.Supp. 109 (D.Wis.1980) is instructive. In Wojciechowski, plaintiff met with an Amoco representative, Mr. Bond, to discuss the possibility of becoming a franchisee. At the meeting, Mr. Bond told plaintiff that the law required Amoco to treat plaintiff as a “trial franchise.” Plaintiff objected to this, but was advised that if he did not agree to a trial franchise, he would not be granted a franchise. To mollify him, Mr. Bond advised plaintiff that the franchise would be renewed if plaintiff performed adequately. Upon such representations, plaintiff entered into an agreement on January 28, 1979, which on its face created a “trial franchise.”

On September 6, 1979, plaintiff received from Amoco a notice of nonrenewal. The notice failed to give reason for nonrenewal, and was therefore defective. See 15 U.S.C. § 2804(c). The court granted plaintiff equitable relief, and, in effect, deprived defendant of the right to treat plaintiff as a “trial franchise.” Amoco was thus made to comply with the requirements of § 2802 before the nonrenewal could take effect. The court recognized that defendant lost its right to rely on a claim of “trial franchise” because of a mere technical violation. However, in reaching this result, the court considered certain misrepresentations which induced the plaintiff to enter into the “trial franchise.” The court held that if a franchisor intentionally misleads a franchisee into signing a “trial franchise,” the benefits of § 2803(b)(1) are lost and a “trial franchise” is not created.

We agree with this reasoning. We find that state law is preempted by the PMPA only to the extent that it is inconsistent with the PMPA. Appellant’s claims of fraud and misrepresentation are neither covered by nor inconsistent with the PMPA.

If the agreement between Mr. Johnson and Mobil was the result of fraud and misrepresentation, Mobil is estopped from claiming that the agreement was a “trial franchise.” If in fact a “trial franchise” was not created, Mobil must comply with the requirements of § 2802. If Mobil has not complied with § 2802, appellant’s remedies are set forth in § 2805. If the franchise relationship between Mobil and appellant is determined to be a “trial franchise,” there does not appear to be any question that Mobil has complied with the notification provisions of § 2804. We remand to the trial court for a determination of these issues.

II

There is no controlling case law in Pennsylvania on the issue of whether federal courts have exclusive jurisdiction over actions brought under the PMPA. The trial court, in dismissing Count III for lack of jurisdiction, relied on Rustom v. Atlantic Richfield Co., 618 F.Supp. 210 (C.D.Cal. 1985). In Rustom, the court observed that although “there is a presumption that a state court has concurrent jurisdiction over actions arising under a federal statute ... that presumption may be rebutted ‘by unmistakable implication from legislative history, or by a clear incompatibility between state court jurisdiction and federal interests/ ” Id. at 212 (quoting Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981)).

The Rustom court analyzed the legislative history of the PMPA and concluded that Congress intended to give federal courts exclusive jurisdiction over actions brought under the PMPA. In its analysis, the court points out that both the Senate and House Reports refer only to the maintenance of an action under the PMPA in federal court: “ ‘The provisions of Title I are enforceable by private civil action in U.S. District Court/ S.Rep. No. 95-731, 95th Cong., 2d Sess. 16, reprinted in 1978 U.S.Code Cong. & Ad.News 873, 874; H.R.Rep. No. 95-161, 95th Cong., 1st Sess. 14.” 618 F.Supp at 212. The court further notes that there is a “conspicuous absence” of any reference to the bringing of PMPA actions in state court. Id. To further support its conclusion, the Rustom court notes that the PMPA incorporates standards under the Federal Rules of Civil Procedure for the award of damages and for the issuance of preliminary injunctions.

Appellant relies on Ted’s Tire Service, Inc. v. Chevron U.S.A., Inc., 470 F.Supp. 163 (D.Conn.1979), arguing that § 2805(a) states only that “the franchisee may maintain a civil action ... [and] such actions may be brought in the District Court of the United States,” but not that it must be brought in federal court. See also Berg v. Watson, 417 F.Supp. 806, 808 n. 1 (S.D.N.Y.1976) (holding that state courts have concurrent jurisdiction under the Labor-Management Reporting and Disclosure Act of 1959 (the “LMRDA”), 29 U.S.C. § 411, although the Act provides that a suit may be brought in federal court).

The general principle of state-court jurisdiction over cases arising under federal law is straightforward: state courts may assume subject-matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state-court adjudication. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981); Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). In considering the propriety of state-court jurisdiction over any particular federal claim, we begin with the presumption that state courts enjoy concurrent jurisdiction. See California v. Arizona, 440 U.S. 59, 66-67, 99 S.Ct. 919, 923-24, 59 L.Ed.2d 144 (1979). The presumption is rebutted where Congress has either implicitly or explicitly confined jurisdiction to the federal courts. Gulf Offshore Co., 453 U.S. at 477, 101 S.Ct. at 2875.

In Dowd, the issue was whether a federal statute, the Labor Management Relations Act of 1947, divested a state court of jurisdiction. Section 301(a) of the statute provided that “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States ... without respect to the amount in controversy____” The Court found that this language “simply gives the federal district courts jurisdiction over suits for violation of certain specified types of contracts ... [it] does not state nor even suggest that such jurisdiction shall be exclusive. It provides that suits of the kind described ‘may’ be brought in the federal district courts, not that they must be.” Dowd, 368 U.S. at 506, 82 S.Ct. at 522.

Nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. The doctrine of state concurrent jurisdiction is embedded in our judicial history. As early as The Federalist No. 82, Alexander Hamilton wrote:

“[T]he State Courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future Acts of the National Legislature, they will, of course, take cognizance of the causes to which those Acts may give birth.”

The Federalist No. 82, at 493 (A. Hamilton) (C. Rossiter ed. 1961).

The First Congress apparently agreed. In the Judiciary Act of September 24, 1789, Congress was careful to delineate jurisdiction among courts established by the Act, and, as Justice Bradley noted in Claflin v. Houseman, 93 U.S. (3 Otto) 130, 139, 23 L.Ed. 833 (1876): “[there was] a constant exercise of the authority to include or exclude the State courts ... it was assumed, in our early judicial history, that the State courts retained their usual jurisdiction concurrently with the Federal courts invested with jurisdiction in like cases.”

Concurrent jurisdiction has been a common phenomenon in our judicial history. See Dowd, supra; Galveston, H & S.A.R. Co. v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516 (1912); Claflin, supra. In a more recent case, Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981), the Supreme Court, in ruling that federal courts do not have exclusive jurisdiction over personal injury and indemnity cases arising under the Outer Continental Shelf Lands Act (43 U.S.C. §§ 1331 et seq.), acknowledged the presumption of concurrent jurisdiction. The Court noted that this presumption is premised on the relation between the states and the federal government within our federal system. Justice Powell, speaking for the Court, went on to reiterate that “[i]t is black letter law ... that the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action.” 453 U.S. at 479, 101 S.Ct. at 2875 (citing U.S. v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936)).

We see no reason for precluding a state from adjudicating a contractual claim arising under the PMPA, especially where, as here, we deal with a clear dictate of federal law. As noted above, the presumption of concurrent jurisdiction can be rebutted by explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests. The PMPA does not expressly limit jurisdiction to federal courts, and we find no clear indication of exclusive jurisdiction in the legislative history. Finally, we perceive no incompatibility between state-court jurisdiction and promoting Congress’ intent to protect the needs of both franchisees and franchisors, to remedy disparity in bargaining power and to prevent arbitrary or discriminatory termination or non-renewal. For the foregoing reasons, we find that a state court enjoys concurrent jurisdiction over claims brought under the PMPA. See Ricco v. Shell Oil Co., 180 N.J.Super. 399, 434 A.2d 1151 (1981); Munno v. Amoco Oil Co., 488 F.Supp. 1114 (D.C.Conn.1980).

Summary judgment as to Counts I and II is reversed. Order dismissing Count III for lack of jurisdiction reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Partial summary judgment was granted as to defendant Hotsenpil-ler. Apparently, grant of this motion was uncontested and is not before us on appeal.

      . The PMPA is described in the legislative reports as a “single uniform set of rules governing the grounds for termination and nonrenewal of motor fuel marketing franchises and the notice which franchisors must provide franchisees prior to termination of a franchise or nonrenewal of a franchise relationship.” Bellmore v. Mobil Oil Corporation, 783 F.2d 300, 305 (2d Cir.1986) (emphasis added)(quoting S.Rep. No. 731, 95th Cong., 2d Sess. 19, reprinted in 1978 ILS.Code Cong. & Ad.News 873, 877).

      . 15 U.S.C. § 2803 covers trial franchise agreements and defines them as follows:
      b) Definitions. For purposes of this section—
      (1) The term "trial franchise” means any franchise—
      (A) which is entered into on or after the date of enactment of this Act [enacted June 19, 1978];
      (B) the franchisee of which has not previously been a party to a franchise with the franchisor;
      (C) the initial term of which is for a period of not more than 1 year; and
      (D) which is in writing and states clearly and conspicuously—
      (1) that the franchise is a trial franchise;
      (ii) the duration of the initial term of the franchise;
      (iii) that the franchisor may fail to renew the franchise relationship at the conclusion of the initial term stated in the franchise by notifying the franchisee, in accordance with the provisions of section 104 [15 U.S.C. § 2804], of the franchisor’s intention not to renew the franchise relationship; and
      (iv) that the provisions of section 102 [15 U.S.C. § 2802], limiting the right of a franchisor to fail to renew a franchise relationship, are not applicable to such trial franchise.
      (2) The term "trial franchise" does not include any unexpired period of any term of any franchise (other than a trial franchise, as defined by paragraph (1)) which was transferred or assigned by a franchisee to the extent authorized by the provisions of the franchise or any applicable provision of State law which permits such transfer or assignment, without regard to any provision of the franchise.

      . A timely appeal had originally been filed after the dismissal of Counts I and II. However, we agree with appellant in this case, who properly withdrew the initial appeal, that the appeal properly lies with the dismissal of Count III.

        . 15 U.S.C. § 2806 provides in part:
      § 2806. Relationship of statutory provision to State and local laws
      (a) To the extent that any provision of this title applies to the termination (or the furnishing of notification with respect thereto) of any franchise, or to the nonrenewal (or the furnishing of notification with respect thereto) of any franchise relationship, no State or any political subdivision thereof may adopt, enforce, or continue in effect any provision of any law or regulation (including any remedy or penalty applicable to any violation thereof) with respect to termination (or the furnishing of notification with respect thereto) of any such franchise or to the nonrenewal (or the furnishing of notification with respect thereto) of any such franchise relationship unless such provision of such law or regulation is the same as the applicable provision of this title.

      . The court in Huth also observed that,
      § 2806 expressly covers remedies as well as rights; the Maryland limitations statute provides franchisees with a remedy for wrongful termination which is not "the same as" the civil action which 15 U.S.C. § 2805(a) both creates and circumscribes. Both the legislative history and numerous District Court decisions confirm that Congress specifically intended to preempt conflicting state laws dealing with the termination of franchise relationships. S.Rep.No. 731, 95th Cong., 2nd Sess. 42, reprinted in 1978 U.S.Code Cong. & Ad.News 873, 901; Lyons v. Mobil Oil Corp., 526 F.Supp. 961, 962 (D.Conn.1981); Gaspar v. Chevron Oil Co., 490 F.Supp. 971, 973 (D.NJ.1980)(stating in dicta that "[t]he Act is the exclusive remedy available to the franchisee”)____
      Plaintiffs might argue that § 2806 only preempts state statutes expressly regulating the petroleum franchisor-franchisee relationship and does not address generalized statutes and common law doctrines being specifically applied to such a relationship. However, the relevant legislative history points to an opposite conclusion. The segment of the Senate Committee Report specifically discussing the contours of § 2806 explained in some detail why § 2806 would not always preempt "state-granted rights of assignability." S.Rep. No. 731, 95th Cong., 2nd Sess. 42-43, reprinted in 1978 U.S.Code Cong. & Ad.News 873, 901. The law of assignment is a traditional area of the common law of contracts; the fact that the Committee felt constrained to explain the ramifications of § 2806 for one set of common law rights implies that Congress contemplated coverage of generalized state laws when appropriate.

      (Footnotes omitted) (emphasis added).

      . The court in Bellmore in a footnote refers to Brach v. Amoco Oil Co., 677 F.2d 1213, 1221 (7th Cir.1982) "where the court recognized the remedial nature of the PMPA, and noted that 'the Act must be given a liberal construction consistent with its overriding purpose to protect franchisees.”’ Bellmore v. Mobil Oil Corp., 783 F.2d at 304 n. 3.

      . In a recent case concerning a franchisor-franchisee relationship of more than one year, Loos & Dilworth v. Quaker State Oil Refining, 347 Pa.Super. 477, 500 A.2d 1155 (1985), the court confined itself to the issue on appeal, an erroneous jury instruction. Subject matter jurisdiction was never an issue in this case. See Loos & Dilworth v. Quaker State Oil Refining Corp., 44 Bucks County L.Rep. 7, 9 (Ct.C.P. 1984).

      . The pertinent part of section 2803 provides:
      § 2803. Trial and Interim franchises
      (a) Nonapplicability of statutory nonrenewal provisions. The provisions of section 102 [15 U.S.C.A. § 2802] shall not apply to the nonrenewal of any franchise relationship—
      (1) under a trial franchise; or
      (2) under an interim franchise.

      . § 2804. Notification of termination or nonrenewal of franchise relationship
      General requirements applicable to franchisor
      (a) Prior to termination of any franchise or nonrenewal of any franchise relationship, the franchisor shall furnish notification of such termination or such nonrenewal to the franchisee who is a party to such franchise or such franchise relationship—
      (1) in the manner described in subsection (c) of this section; and
      (2) except as provided in subsection (b) of this section, not less than 90 days prior to the date on which such termination or nonrenewal takes effect.
      Additional requirements applicable to franchisor
      (b) (1) In circumstances in which it would not be reasonable for the franchisor to furnish notification, not less than 90 days prior to the date on which termination or nonrenewal takes effect, as required by subsection (a)(2) of this section—
      (A) such franchisor shall furnish notification to the franchisee affected thereby on the earliest date on which furnishing of such notification is reasonably practicable; and
      (B) in the case of leased marketing premises, such franchisor—
      (i) may not establish a new franchise relationship with respect to such premises before the expiration of the 30-day period which begins—
      (I) on the date notification was posted or personally delivered, or
      (II) if later, on the date on which such termination or nonrenewal takes effect; and
      (ii) may, if permitted to do so by the franchise agreement, repossess such premises and, in circumstances under which it would be reasonable to do so, operate such premises through employees or agents.
      (2) In the case of any termination of any franchise or any nonre-newal of any franchise relationship pursuant to the provisions of section 2802(b)(2)(E) of this title or section 2803(c)(2) of this title, the franchisor shall—
      (A) furnish notification to the franchisee not less than 180 days prior to the date on which such termination or nonrenewal takes effect; and
      (B) promptly provide a copy of such notification, together with a plan describing the schedule and conditions under which the franchisor will withdraw from the marketing of motor fuel through retail outlets in the relevant geographic area, to the Governor of each State which contains a portion of such area.
      Maimer and form of notification
      (c) Notification under this section—
      (1) shall be in writing;
      (2) shall be posted by certified mail or personally delivered to the franchisee; and
      (3) shall contain—

        (A) a statement of intention to terminate the franchise or not to renew the franchise relationship, together with the reasons therefore;
      (B) the date on which such termination or nonrenewal takes effect; and
      (C) the summary statement prepared under subsection (d) of this section.
      Preparation, publication, etc., of statutory summaries
      (D) (1) Not later than 30 days after June 19, 1978, the Secretary of Energy shall prepare and publish in the Federal Register a simple and concise summary of the provisions of this subchapter, including a statement of the respective responsibilities of, and the remedies and relief available to, any franchisor and franchisee under this subchapter.
      (2) In the case of summaries required to be furnished under the provisions of section 2802(B)(2)(D) of this title or subsection (c)(3)(C) of this section before the date of publication of such summary in the Federal Register, such summary may be furnished not later than 5 days after it is so published rather than at the time required under such provisions.

      . 15 U.S.C. § 2805 provides in part:
      § 2805. Enforcement provisions
      (a) Maintenance of civil action by franchisee against franchisor; jurisdiction and venue; time for commencement of action. If a
      franchisor fails to comply with the requirements of section 102 or 103 [15 U.S.C. §§ 2802 or 2803], the franchisee may maintain a civil action against such franchisor. Such action may be brought, without regard to the amount in controversy, in the district court of the United States in any judicial district in which the principal place of business of such franchisor is located or in which such franchisee is doing business, except that no such action may be maintained unless commenced within 1 year after the later of—
      (1) the date of termination of the franchise or nonrenewal of the franchise relationship; or
      (2) the date the franchisor fails to comply with the requirements of section 102 or 103 [15 U.S.C. §§ 2802 or 2803].


author: ROWLEY, Judge:

text:
    528 A.2d 165
    UNITED STATES STEEL AND CARNEGIE PENSION FUND, a Corporation v. Betty DECATUR and Darryl Decatur, individuals, Appellants.
    Superior Court of Pennsylvania.
    Argued Dee. 3, 1986.
    Filed May 26, 1987.
    Reargument Denied July 31, 1987.

      Robert G. Delgreco, Jr., Pittsburgh, for appellant.
    James T. Carney, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is a direct appeal from a partial judgment on the pleadings entered in favor of United States Steel and Carnegie Pension Fund [plaintiff]. After having considered the matter under the applicable standard of review, see Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 514 A.2d 576 (1986), we affirm.

In 1940, Joseph Rikvalsky retired from his employment with United States Steel Corporation and qualified for a pension payable by plaintiff. In 1967, Mr. Rikvalsky died. The defendants, who are Mr. Rikvalsky’s daughter and grandson, continued to accept the decedent’s pension checks, signing his name thereto, then endorsing them and cashing or depositing them to their own use. Defendants continued this practice until 1983.

Plaintiff filed a civil action in two counts. In the first count, an action “for monies had and received,” the foregoing facts are alleged. To these allegations, however, the defendants declined to answer invoking their Fifth Amendment right against self-incrimination. In New Matter, the defendants raised the statute of limitations as a bar to recovery of any amounts prior to 1979. See 42 Pa.C.S. § 5525(4). Plaintiff filed an answer to defendant’s New Matter.

On appeal the defendants raise two issues, both of which have been discussed and decided by the trial court. The trial court, relying on City of Philadelphia v. Kenny, 28 Pa.Commonw. 531, 369 A.2d 1343 (1977), cert. den., 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281 (1978), held that the defendants’ assertion of their privilege against self-incrimination, along with other matters contained in the pleadings, warranted an adverse inference against them that supported the grant of the judgment on the pleadings.

Defendants first argue that the trial court erred in drawing a negative inference from the assertion of their Fifth Amendment right against self-incrimination when it ruled on plaintiff’s motion for judgment on the pleadings. Defendants claim that the negative inference should not be drawn in this civil action because “serious criminal implications are clearly recognizable.” Appellants’ brief at 10. They point to the possibility that they could be subject to criminal prosecution for various theft offenses based on the events that are alleged in plaintiff’s complaixlt.

This issue was decided against defendants in Kenny. In that case, the City of Philadelphia filed complaints in as-sumpsit against several taxpayers alleging that they had not paid the wage tax for the years set forth in the complaints. The City demanded payment of the delinquent taxes plus interest and penalties. In their answers, the taxpayers responded to certain allegations in the City’s complaints by asserting their Fifth Amendment right against self-incrimination. After the pleadings were closed, the City moved for judgment on the pleadings in several of the cases. The trial court granted the relief sought. On appeal, the Commonwealth Court found that the actions were completely civil in nature and that the taxpayers had a reasonable apprehension that they could be subjected to quasi-criminal proceedings for their failure to file the required tax returns. Based on this reasonable apprehension of prosecution, the Court found that the taxpayers could assert the privilege in the action. The Court, however, went on to adopt the rule that, “while a defendant in a civil case may invoke the privilege and it may not be used against him in any way in a subsequent criminal prosecution, the court in the civil case may draw any adverse inference which is reasonable from the assertion of the privilege.” Id. at 540-541, 369 A.2d at 1349 (emphasis in original; citations omitted). The Court went on to find that a reasonable inference to be drawn from the taxpayers’ assertion of the privilege was that a truthful response would fail to deny the City’s allegations; that the allegations were admitted by the failure to deny them; and, that “the assertion of the privilege leaves no unresolved questions of fact which would render judgment on the pleadings ... inappropriate.” Id. at 541-542, 369 A.2d at 1349 (emphasis in original). Hence, we find no error in the trial court’s decision to draw an adverse inference from defendants’ assertion of their right against self-incrimination.

As an alternative ground for relief, defendants also argue in their first issue that the negative inference to be drawn from the assertion of their right against self-incrimination must be reasonable and that the inference drawn by the court presently was not reasonable. Specifically, defendants argue that it is unreasonable to infer from their assertion of the right against self-incrimination that both defendants consistently converted the checks from 1967 to 1983. We have reviewed the record and have accorded due consideration to the argument advanced by defendants. Judge Zeleznik, in his opinion in support of the judgment, has adequately discussed and properly disposed of the issue.

In their second issue, defendants argue that the trial court could not properly grant judgment on the pleadings because their assertion of the statute of limitations presents an unresolved question of fact and law. The trial court found that defendants were estopped from raising the affirmative defense by their concealment of the fact of Mr. Rikvalsky’s death for some 16 years. The defendants in their New Matter aver in paragraph 16 that plaintiff “knew or should have known of” Mr. Rikvalsky’s death. Although plaintiff agrees with defendants that in ruling on its motion for judgment on the pleadings the trial court was limited to considering plaintiff’s complaint and defendants’ answer, see Luria Steel & Trading Corp. v. Dittig, 414 Pa. 197, 199 A.2d 465 (1964), plaintiff submits that “the admitted or non-responded to allegations of the complaint ...” justified the trial court’s conclusion. Plaintiff’s brief at 10-11. We agree.

Plaintiff, in paragraph 8 of its complaint, averred that defendants received the pension checks payable to the decedent and converted the monies received to their own accounts. To this averment, defendants asserted their right against self-incrimination. As we have previously concluded, this assertion constitutes an admission. Faced with these pleadings, we find no error in the trial court’s conclusion that the defendants’ “conduct of affixing the pensioner’s name on his checks for sixteen years caused the plaintiff to relax its vigilance and deviate from its right of inquiry, estopping the defendants from invoking the bar of the statute.” Trial court’s op. at 9. See Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (1983) (elements of equitable estoppel are inducement and justifiable reliance).

Judgment affirmed.

      . The trial court expressly granted reconsideration of its decision to enter judgment on the pleadings when, in response to defendants’ motion to reconsider, it entered an order which stated in part that "the allowance of this Motion for Reconsideration shall act as a supersedeas and toll the time limitations for appeal as set forth in Pa.R.A.P. 1701, et seq." By expressly granting reconsideration, the appeal period was tolled. See Pa.R.A.P. 1701; Dillon by Dillon v. National Railroad Corp., 345 Pa.Super. 126, 497 A.2d 1336 (1985). When the trial court reaffirmed the judgment, defendants properly filed the present appeal. We also note that counts one and two of plaintiffs complaint allege separate causes of action. Thus, the appeal from the order granting judgment on the first count only is properly before us. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

      . Although this pleading does not appear in the reproduced record, it is in the original record as certified to us.

      . Defendants also note that when an action is criminal in nature, despite its designation as civil, that no adverse inference may be drawn. This point affords defendants no relief since the present action is purely civil in nature. See Allen v. Illinois, — U.S. —, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986) [U.S. Supreme Court rejects claim that a proceeding under the Illinois Sexually Dangerous Persons Act was criminal within the meaning of the Fifth Amendment’s guarantee against compulsory self-incrimination since the Act did not "promote either of 'the traditional aims of punishment — retribution and deterrence.’ ” Id. 106 S.Ct. at 2992 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644 (1963) ]; City of Philadelphia v. Kenny, supra.

      . Defendants also argue that the negative inference should not be available at the pleading stage. We need not consider this argument since Kenny has already disposed of it.


author: POPOVICH, Judge: MONTGOMERY, J.,

text:
    528 A.2d 168
    COMMONWEALTH of Pennsylvania v. Alexander J. BOGDEN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1987.
    Filed June 5, 1987.
    Reargument Denied July 27, 1987.

      David F. Pollock, Waynesburg, for appellant.
    Charles J. Morris, District Attorney, Waynesburg, for Com., appellee.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence for driving under the influence of alcohol by the appellant, Alexander J. Bogden. We affirm.

On June 13, 1986, a jury found the appellant guilty of driving while intoxicated but not guilty of homicide by vehicle. No post-verdict motions were filed.

On June 24,1986, the appellant was sentenced to one year less one day to two years less two days and fined $2,500. The next day, a Motion for Reconsideration of Sentence was filed and a hearing was conducted as a result thereof on July 1, 1986. Counsel for the appellant orally argued that (1) the sentence imposed exceeded the sentencing guidelines, (2) no pre-sentence report was ordered as required in first offense cases, as well as the absence of a contemporaneous statement as to the court’s reasons for deviating from the Sentencing Guidelines, and (3) the fine was issued without inquiry into the appellant’s ability to pay.

The appellant testified at the modification hearing concerning his age (60 years old), work history (coal miner for twenty-two years) and marital status (divorced). He also remarked about refraining from drinking and driving since the accident and regretting the loss of a life because of his actions.

Imprisonment at his age, offered the appellant, would impinge upon his ability to secure employment on his release from jail.

At the completion of the hearing, the court continued the appellant’s bond and ordered a pre-sentence report to be prepared by the Greene County Probation Office.

On September 8,1986, a second hearing on the appellant’s Motion for Reconsideration of Sentence was held. Counsel for the appellant argued for the imposition of a sentence of probation in lieu of the one to two years imprisonment previously handed down.

The court, in consideration of the appellant’s Motion, vacated its June 24, 1986 order imposing sentence and “resentenced” the appellant. In doing so, the court examined the appellant’s financial circumstances in deciding to reinstate the $2,500 fine. Likewise, the court re-imposed the identical term of imprisonment as had been issued earlier.

Prior to the completion of the hearing, the appellant was advised of his rights to take exceptions to the sentence by filing a motion to that effect within ten days, and that an adverse ruling would have to be appealed within thirty days thereof to Superior Court.

No motion to modify the sentence was filed because of counsel’s belief that:

... procedurally we no longer have the option of filing exceptions to this order since this is the order of sentence handed down in response to our first set of exceptions; therefore, the time has now begun to run for Mr. Bogden to decide whether or not to appeal.

To effectuate what transpired at the hearing, an order was issued on September 8, 1986 by the court vacating its June 24, 1986 sentence and imposing an identical sentence, but this time it was done with the benefit of a pre-sentence report. Also, an opinion in support of the sentence was filed on September 9 which responded to the allegations of impropriety as to the sentence. This was followed by a memorandum opinion by the same court supplementing its earlier opinion. This timely appeal followed.

In the appellant’s “Statement Of The Questions Involved” appears the following:

A. WAS THE SENTENCE WITHIN THE SENTENCING GUIDELINES? — No.
B. WAS A CONTEMPORANEOUS WRITTEN STATEMENT FILED WHICH GAVE THE REASONS WHY THE SENTENCE EXCEEDED THE SENTENCING GUIDELINES? — No.
C. WAS ANY IMPERMISSIBLE FACTOR RELIED UPON IN PART OR IN WHOLE IN HANDING DOWN THE SENTENCE? — Yes.
D. WAS A SENTENCE OF TOTAL CONFINEMENT INCONSISTENT WITH THE FACTORS ENUMERATED IN 18 PA. C.S.A. § 1325 AND THEREFORE IN VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS? — Yes.
E. WAS THE FINE IMPOSED EXCESSIVE UNDER 42 PA. C.S.A. § 9725(b) AND WHEN COMPARED TO PRIOR SENTENCES IN THE SAME JURISDICTION. —Yes.

(Appellant’s Brief at 4)

Before addressing the merits of the appellant’s complaints, we must determine, as is our right and obligation, whether this Court has jurisdiction to hear the appeal, and we do so despite no objection from any of the parties involved. See Commonwealth v. Dorman, 272 Pa.Super. 149, 414 A.2d 713 (1979).

It is well-settled in this Commonwealth that a Court of Common Pleas retains jurisdiction over a case, in the absence of an appeal being taken, for a period of thirty days after the order in question has been entered. See 42 Pa.C.S. § 5505. This has been interpreted to mean that a sentencing court has only thirty days from the imposition of sentence within which to act to modify the sentence. See Commonwealth v. Thomas, 301 Pa.Super. 333, 447 A.2d 994 (1982); Comment to Pa.R.Crim.P. 1410. The failure of the sentencing court to act within the thirty-day appeal period will normally result in the loss of jurisdiction to modify sentence and is exemplified by the remarks of this Court in Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982), wherein we responded, for the sake of argument, to the timeliness of an appeal taken from the denial of a motion to modify sentence heard beyond the thirty-day period following the imposition of sentence where the sentence was not vacated prior to the expiration of the stated time period. We wrote:

It cannot be discounted that the lower court did not vacate the prior judgment of sentence, either in connection with granting the motion for modification or in order to have additional time within which to consider the motion. Such procedure would have had the same effect as an express order granting reconsideration under Pa.R. App.P. 1701. See Comment to Pa.R.Crim.P. 1410. Hence, the 30-day period for appeal ran continuously. Commonwealth v. Wilkinson, 260 Pa.Super. 77, 79, 393 A.2d 1020, 1021 (1978). As a result, the sentencing court had only 30 days from the imposition of sentence within which to act to modify the sentence. See Comment to Pa.R.Crim.P. 1410; see also 42 Pa.C.S.A. § 5505 (Pamphlet, 1980); Pa.R.App.P. 1701. Consequently, the lower court did not have jurisdiction over the case so as to conduct a hearing (on July 7, 1981) regarding the merits of appellant’s motion for modification of sentence some four and one-half (4-V2) months after the Motion was filed (on February 20, 1981). Ibid.

298 Pa.Super. at 55 & n. 2, 444 A.2d at 172 & n. 2 (Emphasis in original).

Instantly, albeit a motion to modify and a hearing thereon all occurred in a timely fashion following the imposition of sentence on June 24, 1986, the court below neglected to vacate the sentence when it granted the motion to modify. This would normally be jurisdictionally fatal. See Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1984). However, the particular facts of this case counsel against quashing the appellant’s appeal on the ground of untimeliness.

In explaining, we observe that at the outset of the June 24, 1986 sentencing proceeding, the court advised the appellant:

You have a right, after this sentencing today, to take exceptions to the sentence by filing those exceptions in this Court within ten (10) days of sentencing. If after the Court disposes of those exceptions to your detriment, you then have SO days to take an appeal to the Superi- or Court of Pennsylvania.

(Sentencing Hearing at page 2) (Emphasis added)

The appellant did as he was told in that he did not take an appeal until “after the Court dispose[d]” of his motion to modify, even though disposition of the motion did not occur until (September 8, 1986) more than two and one-half months following the imposition of sentence (on June 24, 1986).

It is obvious that the court below misinformed the appellant in not advising him that an appeal had to be taken within thirty days of the entry of sentence. See Pa.R. Crim.P. 1405(c)(1). Accordingly, we cannot fault the appellant for failing to act timely under our Rules of Appellate Procedure. See Pa.R.App.P. 903(a). Thus, the appeal will not be quashed for being untimely since it was perfected within thirty days of the court’s vacation of the original sentence on September 8, 1986. See Thomas, supra.

An additional hurdle which we must clear prior to responding to the appellant’s complaints relates to a determination of whether the issues raised have been preserved for appellate review.

It will be recalled that counsel for the appellant filed a motion to modify with regard to the initial sentence. Nonetheless, he was of the opinion that this procedure did not have to be followed a second time when the first sentence was vacated at the September 8, 1986 reconsideration hearing and a new (although identical) sentence was issued. This is erroneous.

As this Court held in Commonwealth v. Broadie, 339 Pa.Super. 394, 399, 489 A.2d 218, 220 (1985):

... Pa.R.Crim.P. 1410 requires that a motion to modify sentence be filed with the sentencing court within ten days after imposition of the modified sentence in order to preserve any sentencing issues.

This did not transpire below. Therefore, the failure to file a second motion to modify subsequent to the September 8 proceeding waives all sentencing issues by the appellant, except for those involving the legality of the sentence. Id.

With the preceding in mind, we conclude that all issues are waived for not being properly preserved for appellate review.

In Point A, the appellant questions whether “the sentence [was] within the sentencing guidelines[.]”

Because the offense for which the appellant was convicted (i.e., driving under the influence of alcohol) is labelled a misdemeanor of the second degree, the potential sentence which could have been imposed, given the appellant’s first-offender status, ranged from a minimum of not less than 48 consecutive hours to not more than two years in prison. See 75 Pa.C.S. § 3731(e)(l)(i) (Supp.1986) and 18 Pa.C.S. § 1104(2). Thus, the sentence of one year less one day to two years less two days issued by the court below is legislatively permitted. Accordingly, the legality of the sentence is not implicated nor raised in the appellant’s first issue (or, for that matter, in any of the remaining issues) sought to be reviewed.

Therefore, the appellant’s initial claim relates to the discretionary aspects of the sentence, and, as such, is controlled by 42 Pa.C.S. § 9781(b)’s requirement that a “substantial question” must appear as to the sentence not being appropriate under the Sentencing Code to warrant its review by an appellate court.

Our Supreme Court has spoken on the rigors of appellate briefing as a condition precedent to securing assessment of the merits of an assault on the discretionary aspects of a sentence in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

In Tuladziecki, it was the Commonwealth which appealed a five-year probation for a drug conviction on the grounds that it was outside the Sentencing Guidelines and unreasonable. Superior Court agreed, reversed and remanded for re-sentencing. The defendant’s appeal to the Supreme Court was granted to examine the manner in which the Commonwealth secured Superior Court review of the defendant’s sentence.

The end result was the Supreme Court’s conclusion that the Commonwealth’s failure to set forth in its brief to Superior Court a “concise statement of the reasons relied upon for allowance of appeal” was at odds with the applicable Rules of Appellate Procedure (i.e., Rules 2116(b), 2119(f), 902 and accompanying Note) governing appeals from the discretionary aspects of a sentence.

Such rules of procedure, wrote the Tuladziecki Court, are to “be followed precisely” and cannot be circumvented by assessing “the argument on the merits of the issue to justify post hoc a determination that a substantial question exists.” 513 Pa. at 513, 522 A.2d at 19.

Albeit the Commonwealth was not instructed to show the existence of a “substantial question” that the sentence imposed was inappropriate in any particular section of its brief, nonetheless, the Tuladziecki Court cautioned that this criterion had to be satisfied “at some point” in accordance with 42 Pa.C.S. § 9781(b) to invoke Superior Court’s jurisdiction. We have interpreted this to mean that it would be advisable to have the “substantial question” demonstrated immediately preceding the argument on the merits. See Commonwealth v. Hawthorne, 364 Pa.Super. 125, 134, 527 A.2d 559, 563 (1987), wherein we wrote on this exact subject:

The Majority in Tuladziecki would appear to require the party (be it the Commonwealth or a defendant) appealing the discretionary aspects of a sentence to set forth “at some point” in his brief (preferably, immediately preceding the argument on the merits) reasons (“statement”) why an appeal should be granted. This is consistent with the treatment by the Rules of Appellate Procedure of one’s Notice of Appeal as a “petition for allowance of appeal” under the Sentencing Code (see Note to Pa.R.App.P. 902 and 42 Pa.C.S. § 9781(b)), which, in effect, defers the formal submission of a petition for allowance of appeal until the briefing stage. Tuladziecki, supra.
Once at the briefing stage, given Tuladziecki’s view that a “Notice” is the equivalent of a “Petition”, we deem it advisable to look to Pa.R.App.P. 1115 for some direction as to the form and content one’s brief should take in perfecting an appeal from the discretionary aspects of a sentence. For example, Pa.R.App.P. 1115 requires that the petitioner list various items of information, one of which is a “concise statement of the reasons relied upon for allowance of an appeal.” Rule 1115(a)(5). The order in which it is to be included in the petition (which, instantly, would be one’s brief) is recommended, insofar as practicable, to be in the sequence which appears in the Rule. This has been interpreted by the Supreme Court as requiring the presentment and examination of such a statement of reasons “at some point” in this procedural maze, but always “prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence[.]” 513 Pa. at 513, 522 A.2d at 19.
There can be no substitution for this “concise statement of reasons” by referring to the argument section of one’s brief, as appears to have occurred by the Superior Court panel in Tuladziecki and made mention of by Justice Larsen in footnote 2 of his dissent. To do so, according to the Majority in Tuladziecki, would be to permit an appellate court “to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists.” 513 Pa. at 513, 522 A.2d at 19. Thus, an assessment of the merits of the issue(s) must be preceded by a demonstration by the appellant that a “substantial question” exists in the case on appeal.

At bar, the appellant, as in Tuladziecki (there it was the Commonwealth; here it is a defendant), not only failed to articulate any reasons raising a “substantial question” regarding the discretionary aspects of the sentence, but he did not even make any effort to do so. This deficiency, the presence of which can be raised sua sponte given the jurisdictional predicate involved (see Hawthorne, supra), cannot be overlooked under the mandate of our Supreme Court in Tuladziecki, supra.

Accordingly, because of the shortcomings in Bogden’s brief in regard to the “substantial question” criterion needed to be satisfied prior to our review of any claim associated therewith, the sentencing allegation in Point A is held not to be preserved for our review. Alternatively, the appellant’s failure to challenge (and establish) the impropriety of the sentence in Point A renders the matter waived since it should have been (and was not) raised in a motion to modify following the vacation of the June 24, 1986 sentence and the imposition of a new one on September 8, 1986. See Broa-die, supra.

The remaining issues are equally not subject to review because they do not question the legality of the sentence and, as such, are waived for not having been raised initially before the court below in a second motion to modify following the vacation of the sentence on September 8, 1986 and the imposition of a new (but identical) sentence by order of even date. See Broadie, supra.

Judgment of sentence affirmed.

MONTGOMERY, J.,

concurs in the result.

      . We note that pursuant to Pa.R.App.P. 1701, unlike Pa.R.Crim.P. 1410, the lower court’s granting of a reconsideration motion tolls the appeal period, in addition to rendering inoperative a notice of appeal filed concerning the order for which reconsideration has been granted. See Penjerdel Refrigeration Corp., Inc. v. R.A.C.S., Inc., [296] Pa.Super. [62], 442 A.2d 296 (1982).
      In order to cause a notice of appeal from a judgment of sentence to be rendered inoperative under Rule 1410, the lower court, which also considers a motion to modify the sentence, is required to vacate the sentence within thirty days of the date judgment is entered. Otherwise, the lower court loses jurisdiction over the matter. See Comment to Pa.R.Crim.P. 1410.

      . The illegality of sentence is not a waivable matter and may be considered by the appellate courts of this Commonwealth sua sponte. See Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985); Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985); Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985); Commonwealth v. Vazquez, 328 Pa.Super. 86, 476 A.2d 466 (1984); Commonwealth v. Watts, 319 Pa.Super. 137, 465 A.2d 1267 (1983); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); Commonwealth v. Roach, 307 Pa.Super. 506, 453 A.2d 1001 (1982); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982); Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89 (1982); Commonwealth v. Thomas, 291 Pa.Super. 263, 435 A.2d 901 (1981); Commonwealth v. Welch, 291 Pa.Super. 1, 435 A.2d 189 (1981); Commonwealth v. Schilling, 288 Pa.Super. 359, 431 A.2d 1088 (1981); Commonwealth v. Usher, 246 Pa.Super. 602, 371 A.2d 995 (1977).

      . In particular, as to the appellant’s waiver of his argument for not raising it below in regard to Point B see Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Parente, 294 Pa.Super. 446, 440 A.2d 549 (1982); Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980); Commonwealth v. Morris, 273 Pa.Super. 477, 417 A.2d 748 (1979), rev'd on other grounds, 492 Pa. 565, 424 A.2d 1336 (1981). As for Point C see Commonwealth v. Shoemaker, 462 Pa. 342, 341 A.2d 111 (1975); Commonwealth v. Garrison, 292 Pa.Super. 326, 437 A.2d 407 (1981); Commonwealth v. Graves, 275 Pa.Super. 557, 419 A.2d 41 (1980); Commonwealth v. Fields, 251 Pa.Super. 287, 380 A.2d 491 (1977). On Point D see Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1978); Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975). Lastly, as for Point E see Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984).