text:
    567 A.2d 709
    COMMONWEALTH of Pennsylvania v. Ronald WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 25, 1989.
    Filed Dec. 11, 1989.

      Clayton S. Morrow, McKeesport, for appellant.
    Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Com., appellee.
    Before BROSKY, WIEAND and MELINSON, JJ.
   WIEAND, Judge:

Ronald Williams was found guilty by a jury of theft and criminal conspiracy in connection with the taking of a wallet from a woman while she was boarding a bus outside Kaufman’s Department Store in downtown Pittsburgh. A female accomplice who was with Williams fled the scene and has neither been apprehended nor identified. Following the verdict, defense counsel filed a post-trial motion alleging that the evidence was insufficient to support the verdict. While this was pending, Williams filed pro se a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. § 9541 et seq., repealed by the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., effective April 13, 1988, but this was dismissed by the trial court as premature. After the post-trial motion had been argued, it was also dismissed by the trial court, and Williams was then sentenced to serve concurrent terms of imprisonment for not less than two and one-half (2V2) years nor more than five (5) years. A motion to modify sentence was denied, and appeals were filed pro se by Williams and also by his attorney. While his case was on appeal, Williams filed pro se another PCHA petition. He then discontinued the consolidated appeal which was pending in the Superior Court. New counsel was thereafter appointed to represent Williams in the PCHA proceedings, and counsel caused an amended petition to be filed. Following an evidentiary hearing, however, post conviction relief was denied. Williams appealed. He argues: (1) the evidence was insufficient to support the verdict; (2) the trial court erred when it refused to strike the testimony of the Commonwealth’s expert witness; (3) the trial court erroneously sentenced him for a misdemeanor of the first degree and incorrectly computed the offense gravity score therefor; and (4) trial counsel rendered assistance which was constitutionally ineffective. We find no merit in these contentions and affirm the order denying post conviction relief.

Appellant’s challenge to the sufficiency of the evidence was not properly raised in this collateral attack on his conviction. The issue had been raised in a post-trial motion and had been decided adversely to appellant by the trial court. Although appellant filed a direct appeal in the Superior Court, he caused the appeal to be discontinued before the same could be argued and decided. The PCHA court found this to be a voluntary act. The issue regarding the sufficiency of the evidence, therefore, was finally litigated and could not be renewed in a collateral proceeding under the Post Conviction Hearing Act. See: 42 Pa.C.S. §§ 9543(4) and 9544(a)(1), now repealed. See also: Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974); Commonwealth v. DeSantis, 234 Pa.Super. 67, 335 A.2d 761 (1975). An issue has been finally litigated if “[i]t has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling.” 42 Pa.C.S. § 9544(a)(1), now repealed.

Appellant argues that he did not voluntarily discontinue his direct appeal because his decision to discontinue the appeal was prompted by a belief that a PCHA petition would receive faster consideration than a direct appeal to the Superior Court. The record discloses, however, that appellant had been fully and correctly informed regarding his appellate rights. Indeed, the record is clear that he even disregarded the advice of trial counsel in discontinuing his appeal. Appellant, even though represented by counsel, insisted on filing numerous pro se motions and petitions. After he rejected the advice of the trial court and of his own counsel and discontinued his direct appeal, he will not be heard to say that he didn’t understand the consequences of his act.

At trial, Detective Normand Leonard of the Pittsburgh Police Department was called by the Commonwealth to testify as an expert witness concerning the general methods by which pickpockets operate. After the Commonwealth had rested its case, defense counsel complained that the Commonwealth had failed to disclose the existence of the expert witness during pre-trial discovery in violation of the mandatory discovery requirements of Pa.R.Crim.P. 305 B(l)(e). Because the Commonwealth had not discussed Leonard’s testimony with him until the morning of trial, the court held that there had not been a willful violation of the discovery rule. Nevertheless, the court offered to grant a continuance to the defense in order to prepare adequately to cross-examine the expert witness. The offer of a continuance was declined. The trial court then rejected a defense motion to strike the testimony.

At first blush, it appears that this issue was waived by appellant when he failed to assert it in post-trial motions. Because appellant contends that his trial counsel was ineffective for failing to raise the issue post-trial, however, we will consider it on its merits. Nevertheless, appellant is not entitled to relief. Even if we were to assume that the Commonwealth violated the rules of discovery, it was within the discretion of the trial court to fashion a remedy for a discovery violation. See: Commonwealth v. Gordon, 364 Pa.Super. 521, 540, 528 A.2d 631, 641 (1987). See also: Commonwealth v. Palmer, 319 Pa.Super. 56, 58, 465 A.2d 1050, 1052 (1983); Commonwealth v. Johnson, 310 Pa.Super. 385, 395, 456 A.2d 988, 993 (1983). Pa.R.Crim.P. 305 E provides that:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

Instantly, the trial court offered to grant a continuance and appellant declined the offer. The trial court, under these circumstances, did not err when it refused to strike the expert testimony from the record. The proposed continuance was an adequate remedy.

Trial counsel will not be deemed ineffective for declining to accept the trial court’s offer of a continuance. Appellant does not assert that there was additional information available or that additional time would have enabled counsel to pursue a different or additional line of inquiry during cross-examination of the witness. Thus, appellant has been unable to demonstrate in what manner a continuance would have aided his defense. “Counsel will not be found ineffective in a vacuum, and we will not consider claims of ineffectiveness without some showing of a factual predicate upon which counsel’s assistance may be evaluated.” Commonwealth v. Thomas, 372 Pa.Super. 349, 364, 539 A.2d 829, 837 (1988). See also: Commonwealth v. Silo, 509 Pa. 406, 411, 502 A.2d 173, 176 (1985); Commonwealth v. Pettus, 492 Pa. 558, 563-564, 424 A.2d 1332, 1335 (1981).

For similar reasons we reject appellant’s general averment that trial counsel was ineffective for failing to call appellant to testify at trial. Appellant possessed a prior criminal record, including other pickpocketing offenses; and, therefore, there was good reason for not calling appellant. If he had testified, the Commonwealth would have been able to introduce his prior record of offenses crimen falsi. In any event, it does not appear that trial counsel prevented appellant from testifying against his wishes. In the absence thereof, trial counsel will not be deemed constitutionally ineffective.

The Commonwealth’s evidence showed that the victim had been carrying her wallet in an open-ended tote bag as she was waiting to get on the bus. The victim testified that when she wanted to get on the bus, her path was blocked by appellant’s female companion. When the companion stepped aside to let the victim get on the bus, appellant called to his companion and told her to get off the bus. After the bus began moving, the victim realized that her wallet had been taken. Therefore, she got off at the next stop and was able to find appellant and his companion. She confronted them and accused them of taking her wallet. The female companion fled, but appellant was apprehended by a plainclothes policeman who arrived on the scene. Neither the wallet nor its contents, which the victim said was fifteen ($15) dollars, was recovered.

Theft offenses are graded in the following manner:

3903. Grading of theft offenses
(a) Felony of the third degree.- — Theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.
(b) Other grades. — Theft not within subsection (a) of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was fifty dollars ($50) or more but less than two hundred dollars ($200) the offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than fifty dollars ($50) the offense constitutes a misdemeanor of the third degree.

18 Pa.C.S. § 3903(a) and (b). Although theft offenses are graded primarily by the value of the property stolen, several types of theft are graded according to the circumstances of the offense irrespective of the value of the property taken. One of these is a theft of property from the person of another. The Comment to section 223.1(2) of the Model Penal Code, from which § 3903 of the Crimes Code was derived, observes that a substantial number of states, including Pennsylvania, “provide for heightened penalties whenever the theft is from a person.” Model Penal Code § 223.1(2), Comment at p. 149 and n. 59. The reason for imposing a higher penalty for such a theft, irrespective of the value of the property taken, is that such a theft involves “special potentialities for physical violence or alarm associated with the taking____” Id. at p. 148. In Pennsylvania, therefore, when a theft involves the taking of property, which has a value of less than $2,000, from the person of another, the offense is a misdemeanor of the first degree.

Instantly, appellant argues that the wallet was not taken from the person of the victim and that, since the value of the property stolen was only fifteen ($15) dollars, the theft should have been graded as a misdemeanor of the third degree under 18 Pa.C.S. § 3903(b)(2). Such an offense, he observes, carries a maximum sentence of one year in prison. This argument, however, overlooks that the wallet was removed from the tote bag which the victim was carrying on her person. As such, the wallet also was taken from the person of the victim. The theft, therefore, was properly graded as a misdemeanor of the first degree, and appellant was properly sentenced.

The order denying post conviction relief is affirmed.

      . A demurrer was sustained by the trial court to a charge of robbery.

      . At trial and on direct appeal, Williams was represented by attorneys from the Public Defender’s Office.

      . Although the amended PCHA petition was filed after the effective date of the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq., effective April 13, 1988, our analysis will proceed under the provisions of the PCHA, for these proceedings were initiated under that Act. We observe, however, that the same result would be achieved under the provisions of the new Act.

      . We also reject appellant’s contention that trial counsel was ineffective for failing to allege specifically in the trial court the reasons why the evidence was insufficient. The record discloses that counsel argued the substantive issue and that the trial court considered and rejected the argument on its merits. Counsel was not ineffective in failing to state specifically the alleged deficiency in the Commonwealth’s evidence.

      . It is possible to infer from the trial record that appellant did not want to testify. See p. 53 of trial transcript.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    567 A.2d 713
    COMMONWEALTH of Pennsylvania v. Michael C. ALESSI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1989.
    Filed Dec. 12, 1989.

      David G. Ridge, Erie, for appellant.
    Douglas J. Wright, Asst. Dist. Atty., Girard, for Com., appellee.
    Before WIEAND, DEL SOLE and MELINSON, JJ.
   DEL SOLE, Judge:

Michael C. Alessi, Appellant, was convicted of driving while his operating privilege was suspended or revoked (75 Pa.C.S.A. § 1543). He appeals raising two issues. We have determined that both issues are meritless and affirm the trial court’s judgment of sentence. .

On September 18, 1986, Alessi, while operating a motor vehicle, was stopped by a police officer. The officer ran a check on Alessi’s operator’s license and found it to be under suspension. The officer issued a citation which was filed with the District Justice on September 18, 1986. On September 23, 1986, the officer received formal verification of the license suspension from the Bureau of Motor vehicles, specifying the nature of the suspension. The District Justice issued the summons on October 23, 1986. Alessi moved to quash the citation as time-barred by the 30-day statute of limitations found in 42 Pa.C.S.A. § 5553(a). The trial court denied this motion.

Alessi’s first issue is whether the trial court erred in refusing to quash his citation because the proceedings were not commenced within thirty days from the date of the offense. 42 Pa.C.S.A. § 5553(a) provides as follows:

... [Proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within thirty days after the commission of the alleged offense or within thirty days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter.

The real question here is what must be done to “commence” a proceeding for a Title 75 summary offense. In Commonwealth v. Larson, 299 Pa.Super. 252, 445 A.2d 550 (1982), this court determined that “[p]roper procedure would have been for ... [the officer] to institute proceedings within 30 days of ... [the] offense, and immediately apply to Harrisburg for a certified copy of appellant’s operating record.” 299 Pa.Super at 255, n. 2, 445 A.2d 550. In the present case, the officer filed the citation with the District Justice, applied for Alessi’s operating record and received formal notification of Alessi’s license suspension within five days of the incident. Under Larson, the officer instituted proceedings well within the 30 day limit.

Pa.R.Cr.P. 60 gives this guidance:

When it is not feasible to issue the citation to the defendant or when evidence is discovered after the issuance of a citation that gives rise to additional summary charges against the defendant resulting from the same incident, a law enforcement officer shall institute a criminal proceeding in a summary case by filing a citation with the proper issuing authority.

For the purposes of 42 Pa.C.S.A. § 5553(a), we hold that once the investigating officer has filed the citation with the issuing authority, proceedings have commenced and the statute of limitations is tolled. The length of time used by the issuing authority in forwarding the summons to the defendant is immaterial to the statute.

Alessi’s second issue is whether he was entitled to a de novo hearing before the trial court, after his appeal from the District Justice. Alessi claims that a hearing may have had an effect on the trial court’s ruling by providing additional testimony and examination of witnesses. This claim is meritless.

At Alessi’s sentencing in front of the trial court, he and the Commonwealth stipulated to the “facts of the allegations” and requested the trial court to make its finding based on the stipulation and the transcript of the proceedings before the District Justice. The trial court docket indicates that “after [a] hearing, Michael Alessi, is adjudged guilty____” The record does not reveal that he was precluded from presenting evidence at this hearing. Having had the opportunity to present any relevant evidence to the trial court, Alessi elected to rely upon the stipulation of facts. Specifically, Alessi stipulated that he had received a notice of suspension from the Commonwealth and that he was stopped while driving his vehicle under this suspension. Given these circumstances, we believe that Alessi has had his trial de novo.

Judgment of sentence affirmed.


author: HESTER, Judge:

text:
    567 A.2d 715
    In re ESTATE OF Jelester McDANIELS, Sr., Deceased. Appeal of Corene Ford McDANIELS, Widow.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed Dec. 15, 1989.

      Paul M. Goltz, Pittsburgh, for appellant.
    Arnold H. Cantor, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   HESTER, Judge:

This appeal concerns the waiver of post-mortem spousal rights pursuant to an agreement dated September 3, 1976, by and between Jelester McDaniels, Sr. and Corene McDaniels, appellant. We affirm the orphans’ court determination that appellant validly and intentionally waived her right to elect to take against Jelester’s will insofar as the will governs disposition of Jelester’s real estate.

Jelester died testate on January 15, 1988, and letters testamentary were granted to Jelester McDaniels, Jr. on March 10, 1988, pursuant to the probate of a document dated March 11, 1983, as the last will and testament of the decedent. The will devises and bequeaths all of the decedent’s property to his son, Jelester, Jr., appellee. On April 28, 1988, appellant filed an election to take against the will as decedent’s surviving widow. Appellee, in his capacity as executor of the estate, filed a petition to vacate the notice of the election on the grounds that by agreement dated September 3, 1976, appellant relinquished her right to elect to take against the will. A hearing before the orphans’ court was held on September 14, 1988, and the original agreement was admitted into evidence.

The agreement provides as follows. The parties were married on June 16, 1974, and subsequently experienced differences regarding their separately-owned real estate. In the agreement, they wanted to . settle and determine for “all time” their mutual property rights and “all other claims or rights” which may have arisen by virtue of their marriage regarding said real estate. In consideration of the mutual relinquishment of the rights of the other to the separate real property of each party, the parties agreed to release and relinquish to the other “any and all rights of dower, curtesy, homestead, or inheritance, as well as any other right or rights that he or she may now or hereafter have in the other parties [sic] real property by reason of the marriage relationship, during the other parties [sic] lifetime or after his or her death.”

At the hearing, it was established that the agreement was drafted at appellant’s insistence and by her attorney at a time when she was selling real estate owned in her name alone. It also was established that the parties were separated when the agreement was signed, that they subsequently reconciled, separated again, and reconciled again, and that appellant was living with decedent at the time of his death.

On February 22, 1989, the orphans’ court struck appellant’s election to take against the will insofar as decedent’s real estate was involved. It rejected appellant’s argument that the agreement was a separation agreement which was abrogated by the subsequent reconciliation between appellant and the decedent. The court ruled that it was clear from the record and the deposition of the lawyer who drafted the agreement that the sole purpose of the agreement was to enable appellant to sell her separate real estate. The court rejected the contention that the agreement was a separation agreement since the preamble contained nothing addressing the separation or a divorce and since the agreement dealt solely with settlement of marital rights in individually-owned real property. The court determined that the agreement was a post-nuptial agreement, that it was not abrogated by the parties’ subsequent reconciliation, and that appellant’s reliance upon In re Estate of Wagner, 398 Pa. 531, 159 A.2d 495 (1960), was misplaced.

On April 7, 1989, the court en banc denied appellant’s exceptions to the order. This timely appeal followed. On appeal, appellant raises one argument in support of her claim that the agreement is invalid. Her contention is that the agreement was a separation agreement, which was abrogated by the reconciliation of the parties. We reject this as grounds for avoiding the agreement.

Initially, we must examine our standard of review of the decisions of the orphans’ court:

[O]n appeal we are bound by the chancellor’s findings of fact, particularly if approved by the court en banc, to the same extent as we would be bound by the factual determinations of a jury. The test in either case is whether the findings are adequately supported by the record. The chancellor’s findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated, because he has had the opportunity to hear them and to observe their demeanor on the stand.

Charles v. Henry, 460 Pa. 673, 334 A.2d 289 (1975). Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236, 240 (1976).

The agreement is clear. Appellant relinquished any right to or interest in the decedent’s real estate. The agreement states that the parties read and understood it. The agreement does not mention separation, and the facts support the orphans’ court determination that it was not entered into as the result of the parties’ separation or to settle problems resulting from the separation. Instead, the agreement was drafted to enable appellant to sell her separate real property and receive the proceeds of that sale, to the exclusion of the decedent. To achieve that end, appellant relinquished commenserate rights to decedent’s real property, including the right to receive any of decedent’s property in the event he predeceased her. The agreement was designed to enable appellant to deal with her separate property freely and therefore was characterized correctly by the orphans’ court as a post-nuptial agreement. See In re Ray’s Estate, 304 Pa. 421, 156 A. 64 (1931). Parenthetically, we note that in the provisions relating to relinquishment of the rights at issue, all the typing is capitalized.

The supreme court, in one of the cases relied upon by appellant, clearly states that although a separation agreement “may be annulled by a reconciliation and a resumption ... of the marital relation, this in every case is a question of intention,” which is to be determined from the parties’ statements, conduct and all the surrounding circumstances. Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779, 781 (1946) (emphasis added).

Instantly, appellant received the benefit that she wanted from the agreement. The orphans’ court determined that there was no indication that the agreement was to be ineffective upon reconciliation. We will not reverse the determination of the orphans’ court. Accordingly, appellant has waived her right to receive any of the real estate in decedent’s estate.

Order affirmed.

      1. The estate consists of personal property of nominal value and of real property worth approximately $22,000.00.

      . The lawyer’s deposition was admitted into evidence at the hearing.


author: CIRILLO, President Judge.

text:
    567 A.2d 717
    Frank SYNO v. Marie D. SYNO, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 24, 1989.
    Filed Dec. 19, 1989.

      Kimberly D. Borland, Wilkes-Barre, for appellant.
    Ronald P. Sweeda, Wilkes-Barre, for appellee.
    Before CIRILLO, President Judge, and KELLY and CERCONE, JJ.
   CIRILLO, President Judge.

This is an appeal from an order entered in the Court of Common Pleas of Luzerne County. Frank Syno, appellee, filed a divorce action against his wife, appellant Marie Syno. In her answer and new matter, Marie Syno asserted that her husband had been adjudicated incompetent five months before he instituted the divorce action and was, therefore, incapable of bringing the action. In his reply to new matter, Frank Syno denied the adjudication of incompetency, and further averred that he was competent and capable of bringing the divorce action. A master was appointed and a hearing was held. Despite Marie Syno’s continuing objection to Frank Syno’s competency, the master allowed the husband to testify. Thereafter, Marie Syno filed a petition to stay the proceedings pending her application for the appointment of a guardian or guardian ad litem. This application was denied on February 6, 1987. The wife’s application to the court to compel Frank Syno to undergo a psychiatric examination was also denied. On February 11, 1987, five days after the wife’s motion for appointment of a guardian was denied, the wife petitioned for alimony, equitable distribution, counsel fees, and costs.

A second hearing before the master was held on October 27, 1987. On December 10, 1987, Frank Syno filed a petition for bifurcation before Judge Brominski. Judge Brominski determined that bifurcation could not be ordered until a report and recommendation had been issued from the master. Three months later, on March 17, 1988, the master filed a report and recommended a decree in divorce be granted. Marie Syno filed exceptions to the report and recommendation. Following briefing and oral argument, Judge Capellini dismissed the exceptions; the court refrained from entering an order concerning the divorce pending the ruling on the bifurcation petition. Judge Capellini’s order reads:

NOW, this 22[nd] day of November, 1988, ... it is hereby ORDERED, ADJUDGED and DECREED that the Defendant’s Exceptions to the Report and Recommendation of the Special Master are DENIED and DISMISSED.

Appellant appeals from this order.

An order dismissing exceptions to a master’s report and recommendation is not a final order. Therefore, we quash this appeal. See Reed v. Reed, 354 Pa.Super. 284, 289, 511 A.2d 874, 877 (1986) (“An order dismissing exceptions to a Master’s Report but not entering a final decree of equitable distribution is not a final order”); Hammond v. Hammond, 301 Pa.Super. 439, 447 A.2d 1047 (1982) (where no divorce decree has been entered, an appeal from an order dismissing exceptions to master’s report was quashed as interlocutory). See also Pa.R.A.P. 341. In his opinion accompanying the order, Judge Capellini states that the order simply denies Marie Syno’s exceptions; “the property issues [remain] outstanding pending Judge Brominski’s ruling on [Frank Syno’s] Petition for Bifurcation.”

Despite our decision to quash this appeal, we point out the following procedural irregularity. It is not clear to this court why the bifurcation petition remained outstanding as of November 22, 1988, the date Judge Capellini denied the exceptions to the master’s report. Judge Brominski held the bifurcation petition in abeyance pending a report and recommendation by the master. The master’s report was filed on March 17, 1988.

Section 401(b.l) of the Divorce Code provides:

In the event that the court is unable for any reason to determine and dispose of the matters provided for in subsection (b) [pertaining to property rights, alimony, and related matters] within thirty (30) days after the master’s report has been filed, it may enter a decree of divorce or annulment____

23 P.S. § 401(b.l) (emphasis added). The eight month period between the date the master’s report was filed and the date the exceptions were denied was more than sufficient time to dispose of a bifurcation petition. More importantly, we see no reason to hold up entry of the divorce decree in this situation, especially where the court is specifically authorized to enter a divorce decree within thirty days of the date the master’s report is filed if disposition of related claims is held up ‘for any reason.” 23 P.S. § 401(b.l) (emphasis added).

A court may not enter a final order disposing of economic or property claims prior to the entry of a divorce decree because the settlement of these claims “is merely a part of the trial court’s broader power to terminate the marriage. Equitable distribution is an incident of divorce, not marriage.” Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986). A decree of divorce is a prerequisite to obtaining other relief allowed by the Divorce Code. Verdile v. Verdile, 370 Pa.Super. 475, 536 A.2d 1364 (1988); Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987). See also Fried v. Fried, 509 Pa. 89, 96, 501 A.2d 211, 215 (1985) (appeal from award of interim counsel fees and costs held interlocutory; the grant or denial of interim relief does not result in “irreparable loss,” and allowing appeals therefrom would result in “piecemeal determinations and the consequent protraction of litigation”). However, the converse is not necessarily true. See 23 P.S. § 401(b.l); Pa.R.C.P. 1920.52(c). A court may enter a final decree in divorce and dispose of ancillary matters at a later date. The legislature’s clear intent is to permit the entry of a divorce decree while collateral matters remain pending, thus allowing “the parties to quickly begin the task of restructuring their lives[,] ... so that the marriage and each party’s personal life are not held hostage to economic demands.” Wolk v. Wolk, 318 Pa.Super. 311, 315-16, 464 A.2d 1359, 1360-61 (1983); see also 23 P.S. § 102(a)(1), (3) and (4). The unexplained delay in this case serves only to thwart the purpose of the Divorce Code.

Appeal quashed.

      . The parties do not dispute that the Honorable Chester Muroski of Luzerne County determined that Frank Syno was incapable of managing his property and therefore appointed The First Bank of Greater Pittston as guardian of his estate; the court did not appoint a guardian for the person of Frank Syno.

      . Bifurcation is the process of separating the trial of the issue of marital status from ancillary issues, such as equitable distribution, alimony, etc. See 23 P.S. § 401(b.l).


author: ROWLEY, Judge:

text:
    567 A.2d 719
    UNION NATIONAL BANK OF LITTLE ROCK, Assignee of Union Modern Mortgage Corporation, Assignee of Three Rivers Mortgage Corporation v. Darrell COBBS and Dian M. Cobbs. Appeal of Darrell COBBS.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1989.
    Filed Dec. 18, 1989.

      Daniel L. Haller, Aliquippa, for appellant.
    Rodney Permigiani, Pittsburgh, for appellee.
    Before ROWLEY, MELINSON and HOFFMAN, JJ.
   ROWLEY, Judge:

This is an appeal by Darrell Cobbs from a summary judgment in favor of appellee, Union National Bank of Little Rock (Bank), in a mortgage foreclosure action. The only issue raised on appeal is whether or not the Bank’s failure to comply with the mortgage servicing provisions contained in the Lenders Handbook [VA Pamphlet 26-7 (Revised)] can be raised as an equitable defense in a mortgage foreclosure action. We reverse the summary judgment and hold that such a failure may be asserted as an equitable defense.

The present action was commenced to foreclose a federally insured Veterans Administration (VA) mortgage which admittedly was in default. In new matter filed in response to the mortgage foreclosure complaint, appellant asserted that the Bank had commenced foreclosure proceedings without ascertaining the reason for the default, offering a forbearance plan, or recasting the mortgage. Appellant also asserted in new matter that a VA mortgagee who does not service a mortgage in accordance with the VA Lenders Handbook is barred on equitable grounds from foreclosing.

The trial court granted the Bank’s motion for summary judgment on the basis that the Bank had no legally enforceable duty to comply with the VA Lenders Handbook. The trial court, however, did not address the issue, raised both in the trial court and in the instant appeal from the summary judgment, of whether despite the absence of a legal duty to comply with the VA Lenders Handbook’s servicing provisions, the court may exercise its equitable powers and preclude the foreclosure of a mortgage where the servicing provisions have not been complied with.

Before proceeding to evaluate the merits of this appeal, we deem it necessary to emphasize the nature of the decision that we are called upon to review. In ruling upon a motion for summary judgment, “[i]t is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.” Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 288, 515 A.2d 980, 981 (1986). The court deciding the motion must examine the record in the light most favorable to the nonmoving party and must resolve any doubt against the moving party. Id., 357 Pa.Superior Ct. at 288-89, 515 A.2d at 981. Only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” may summary judgment properly be granted. Pa.R.C.P. 1035(b), quoted in Washington Federal v. Stein, supra. In the present case, the trial court has concluded that there is no issue of fact to be tried. Whether that decision is correct is the question that we are asked to resolve.

Appellant contends that there remains a genuine issue of material fact: Has the Bank fulfilled its “equitable obligation” to service the mortgage? In an affidavit filed in response to the Bank’s motion for summary judgment, appellant averred that in an attempt to discuss his mortgage problem, he called the 800 number provided by his lender and was told that the person with whom he was speaking would get back to him after talking to someone in the credit department, but that she never did; that he called the lender again and was told that he would be sent a questionnaire concerning his problem, but that he never received the questionnaire; and that no one from the mortgage company suggested a lower payment plan to help him until he found full-time employment. By thus failing to make itself aware of the reasons for and the extent of his financial problems, appellant asserts, the Bank violated the spirit and intent of the VA Lenders Handbook.

The servicing procedures that holders of VA-insured mortgages are expected to follow are described in the Lenders Handbook as follows:

The VA does not prescribe in detail the manner in which loans should be serviced. However, holders are expected to follow or to require their servicing agents to follow accepted standards of loan, servicing____ Good judgment must be exercised in each case, according to the particular facts and circumstances. In almost every case, this must be accomplished by direct contact (i.e., telephone conversation or personal visit) with the borrower, so that the reasons for the default can be discussed frankly and the possible alternatives for curing the default can be explored thoroughly____ [I]t is not expected that holders will institute action to terminate loans until every reasonable effort has been made to arrive at some solution which would permit the borrower to retain his or her home.

VA Lenders Handbook, Part I, Section F.l.c. The Handbook further states that mortgage holders are encouraged “to extend all reasonable forbearance in the event a borrower becomes unable to meet the terms of a loan” (Part I, Section F.l.b), that mortgage holders are given “broad discretion in extending or recasting the terms of repayment in order to cure a default” (Part I, Section F.l.b), and that in hopeless situations, in order that “every effort ... be made to minimize the ultimate loss of all parties concerned,” borrowers “should be urged to sell their property in order to realize any equity and to avoid termination of loans” (Part I, Section F.l.d). Appellant does not contend that the Bank has failed to satisfy the requirements of state law, and he concedes that the VA Lenders Handbook does not have the force and effect of law. Nevertheless, he contends that the Handbook creates an equitable obligation, not met in the present case, to service VA loans in the manner described therein.

Although an action of mortgage foreclosure is an action at law in Pennsylvania, equitable relief is nevertheless available in such an action if it can be granted consistently with principles of law. Fleet Real Estate Funding Corp. v. Smith, 366 Pa.Super. 116, 124 n. 3, 530 A.2d 919, 923 n. 3 (1987). The appellant in Fleet, who was admittedly in default on a mortgage insured by the Federal Housing Administration (FHA), contended on appeal that the trial court erred in entering summary judgment against her without considering the mortgage holder’s alleged failure to service her mortgage in accordance with applicable regulations and guidelines issued by the Department of Housing and Urban Development (HUD). The guidelines were contained in HUD Handbook 4330.1 on Administration of Insured Home Mortgages. This Court, citing Brown v. Lynn, 385 F.Supp. 986 (N.D.Ill.1974) (Brown I), and Brown v. Lynn, 392 F.Supp. 559 (N.D.Ill.1975) (Brown II), concluded that a mortgagee was not required by federal law to comply with the regulations and Handbook provisions before foreclosing on an FHA-insured mortgage. Nevertheless, this Court noted, the court in Brown II, concerned with “quick” foreclosures, had observed “that its decision did not limit state or federal foreclosure courts ‘from exercising their equity powers by refusing to grant foreclosures where mortgagees have flagrantly disregarded the forbearance provisions of the HUD Handbook.’ ” Fleet Real Estate v. Smith, 366 Pa.Super. at 123, 530 A.2d at 923 (quoting Brown II, 392 F.Supp. at 562). This Court held, therefore, that a mortgagor could raise the mortgagee’s deviation from compliance with the forbearance provisions of the HUD Handbook and regulations as an equitable defense to foreclosure. Id., 366 Pa.Superior Ct. at 124, 530 A.2d at 923. Noting that appellant had submitted a “Declaration” stating that at no time since her default began had the mortgage company offered to help her prevent foreclosure, the Court concluded that since material facts concerning the mortgagee’s servicing of the mortgage were in dispute, summary judgment was inappropriate. Id., 366 Pa.Superior Ct. at 125 & n. 4, 530 A.2d at 924 & n. 4. In this appeal appellant contends that although Fleet involved an FHA-insured rather than a VA-insured mortgage, it did not otherwise differ from the present case in any material respect and its holding should therefore control the outcome of this appeal.

The Bank contends that the distinctions between VA and FHA mortgages are far more significant than appellant acknowledges. First, the protections granted by the Pennsylvania Homeowner’s Emergency Assistance Act (Act 91), Act of December 23, 1983, P.L. 385, as amended, 35 P.S. §§ 1680.401c-1680.410c, to mortgagors who encounter temporary financial difficulties are available to persons having VA-insured mortgages but not to those having FHA-insured mortgages. This statutory distinction, in the Bank’s view, argues against the extension of the Fleet holding to VA mortgagors, as they have already been afforded statutory protection which renders reliance upon the provisions of the VA Lenders Handbook unnecessary. Second, the Bank argues that while the language of the VA regulations, as well as of the Lenders Handbook and the federal statute governing veterans’ benefits, is clearly permissive with regard to servicing requirements, the comparable HUD regulations are in many respects mandatory. For that reason, the Bank contends, the holding in Fleet should not be extended to the present case. Because the provisions of the Lenders Handbook do not establish mandatory servicing duties for lenders, the Bank concludes, a lender’s failure to comply with those provisions does not create a remedy or defense on behalf of the borrower.

In our view, neither of these distinctions serves to bar the extension of the Fleet holding to an appeal from a summary judgment involving a VA-insured rather than an FHA-insured loan. This Court’s holding in Fleet was not based upon the allegedly mandatory nature of the language of the FHA Handbook and regulations, but upon the fact that the guidelines in the Handbook were “ ‘sensible, equitable standards of conduct, consistent with, and issued in furtherance of, the national housing goals.’ ” 366 Pa.Super. at 124, 530 A.2d at 923 (quoting Brown II, 392 F.Supp. at 563). Therefore, the allegedly less mandatory language of the VA Lenders Handbook does not require a different result in the case before us.

As to the second distinction proffered by the Bank, we note that a motion for summary judgment should be granted only in the clearest of cases, Kotwasinski v. Rasner, 436 Pa. 32, 41, 258 A.2d 865, 869 (1969). Therefore, we decline to say that because VA borrowers are afforded one set of protections by the Homeowner’s Emergency Assistance Act, they are not also entitled to whatever additional protection, if any, may be afforded by the provisions of the VA Lenders Handbook. Appellant has not asserted that the Bank has failed to comply with the mandates of the Homeowner’s Emergency Assistance Act, and that fact should be taken into account by the trial court in determining whether equity would require the Bank to follow the servicing provisions set forth in the VA Lenders Handbook before foreclosing upon appellant’s mortgage.

In evaluating the arguments raised by the Bank, we have considered the case law cited in support of those arguments. The cited cases do not, however, persuade us to adopt the Bank’s position. In U.S. v. Harvey, 659 F.2d 62 (5th Cir.1981), the Fifth Circuit Court of Appeals held that the servicing provisions of the VA loan servicing manual did not create a right in the mortgagor that can be enforced in defense to a foreclosure action or in an action to enjoin foreclosure. That the Court’s holding was limited to the availability of a legal remedy, however, is apparent from the Court’s recognition that appellants had raised the VA’s noncompliance with the manual as an equitable defense and that this “unclean hands” argument was without merit, inasmuch as the VA had in fact properly serviced the loans in the manner contemplated by the manual. Id. at 64 n. 4 & 66 n. 8.

In Rank v. Nimmo, 677 F.2d 692 (9th Cir.1982), cert. denied, 459 U.S. 907, 103 S.Ct. 210, 74 L.Ed.2d 168 (1982), which involved an action to set aside a foreclosure that had already occurred, the Ninth Circuit Court of Appeals, considering the same VA Lenders Handbook that is at issue in the present case, held that the Handbook had not been intended to have the force and effect of law and therefore did not create a legally enforceable duty on the part of the VA to take all reasonable measures to avoid foreclosure. Id. at 698. The Court, which was not presented with the issue raised herein, emphasized that mortgage foreclosure has traditionally been the province of state courts and state law. Id. at 697.

Fitzgerald v. Cleland, 498 F.Supp. 341 (D.Me.1980), vacated on other grounds, 650 F.2d 360 (1st Cir.1981), and Gatter v. Cleland, 512 F.Supp. 207 (E.D.Pa.1981), cited by the Bank for the holding that the Lenders Manual is a non-enforceable policy pronouncement, do not address the equitable claim that is involved in this appeal. Finally, this Court’s decision in Federal National Mortgage Association v. Greene, 231 Pa.Super. 760, 331 A.2d 513 (1974), alloc, denied, cited by the Bank for the proposition that the VA regulations and Handbook do not require forbearance but are merely evidence of a non-binding policy of the Veterans Administration, does not state such a holding, but is instead simply a per curiam affirmance of a judgment.

In support of its argument, the Bank also cites the following provision of 38 C.F.R. § 36.4315, which concerns the acceptance of partial payments remitted by a defaulting borrower:

(b)(3) A failure by the [mortgage] holder to comply with the provisions of this paragraph may result in a partial or total loss of guaranty or insurance pursuant to § 36.4325(b), but such failure shall not constitute a defense to any legal action to terminate the loan.

38 C.F.R. § 36.4315(b)(3). This very specific provision of the Code of Federal Regulations does not resolve the issue raised in this appeal, namely, whether the Bank’s failure to comply with the servicing provisions of the Lenders Handbook can be raised as an equitable defense.

As noted earlier, our sole task in this appeal is to determine whether there is an issue of fact to be tried. Appellant’s affidavit recounts the Bank’s failure to follow throúgh on the contacts initiated by appellant in an effort to find a solution to his repayment problems. Appellant contends that the Bank, by its inaction, failed to comply with the servicing provisions of the VA Lenders Handbook and is therefore barred on equitable grounds from foreclosing on his mortgage. On the facts of this case, and for the reasons set forth herein, we hold that appellant may raise the Bank’s failure to comply with the servicing provisions of the VA Lenders Handbook as an equitable defense in the Bank’s mortgage foreclosure action. Whether the Bank properly serviced appellant’s mortgage therefore remains as a genuine issue of material fact which renders improper the award of summary judgment by the trial court. In evaluating the adequacy of the Bank’s actions, the significance to be given to the servicing provisions of the VA Lenders Handbook, in light of the protections afforded VA borrowers under state law and the Bank’s undisputed compliance with state law, is for the trial court to determine. We do not hold that the claim raised by appellant constitutes an effective equitable defense, but only that appellant must be allowed to raise the claim as an equitable defense. With that understanding, we reverse the summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.

Summary judgment reversed. Case remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Although the instant mortgage foreclosure action was also brought against Dian Cobbs, the wife of Darrell Cobbs, the Cobbs were separated at the commencement of the action, and Dian Cobbs has not participated in any of the proceedings in this case.

      . This manual is apparently similar but not identical to the one at issue in the present case.

      . The only affidavit filed by the Bank is that of Charles W. Utley, Vice President of the Bank, who avers that "[a]t no time since December 1, 1987 have the mortgagors tendered money sufficient to satisfy all arrearages and reinstate their account to a current status."