author: CAVANAUGH, Judge:

text:
    526 A.2d 1216
    Frank J. VALVANO and Pamela B. Valvano, His Wife, Appellees, v. Joseph E. GALARDI and Kaye L. Galardi, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1987.
    Filed June 4, 1987.

      A. Richard Caputo, Wilkes-Barre, for appellants.
    William J. Oliver, Scranton, for appellees.
    Before CAVANAUGH, OLSZEWSKI and MONTEMURO, JJ.
   CAVANAUGH, Judge:

The issue in this case is whether the statute of frauds bars specific performance of a written agreement to grant a right of way over land deeded to the appellants pursuant to the agreement.

The appellees, Frank J. Valvano and Pamela B. Valvano, owned approximately 30 acres of land in Glenburn Township, Lackawanna County. They decided to sell approximately 10 acres fronting on Gravel Pond Road and the appellants, Joseph E. Galardi and Kaye L. Galardi, were interested in purchasing the land. The Galardi’s retained a real estate broker who prepared an agreement of sale which referred to “Special Clauses,” see attached Exhibit “A”. The agreement of sale was signed by the Galardis. The agreement was rejected by the Valvanos whose attorney then prepared an “Amendment to Agreement of Sale” which was signed by Mr. and Mrs. Valvano and Mr. Galardi. It was not signed by Kaye L. Galardi. The amendment contained the following terms, inter alia:

3. Sellers hereby grant to Buyers the option to purchase adjoining lands of Sellers (approximately 20 acres) for the additional sum of $17,000.00. This option shall remain in force and effect for a period of two (2) years from the date of closing, providing that the mortgage hereinabove referred to is not in default. If at any time payments under the mortgage are in default for a period of sixty (60) days or if the mortgage is otherwise in default in accordance with the provisions thereof, then the option herein granted shall terminate.
4. Buyers hereby grant unto Sellers a right of way for access from Gravel Pond Road to the optioned premises in the rear thereof which shall extend from Buyers’ driveway to the said premises and shall be twenty (20) feet in width. The actual location of this right of way shall be as Buyers may designate providing the same provides reasonable access. No roadway shall be visibly opened as long as the above mentioned option remains in force and this grant shall terminate in the event that the option herein granted is exercised.

The amendment was part of the agreement of sale and set forth the purchase price, the manner of payment, provisions concerning a purchase money mortgage which the sellers were granting to the buyers, and the legal descriptions of the lands to be conveyed under the agreement of sale and the lands subject to the option referred to in paragraph 3 above. Although the amendment was not signed by Mrs. Galardi it provided a signature line for Mrs. Galardi with her name typewritten underneath the line.

The property described in the amendment to the agreement of sale referred to as “lands to be conveyed under agreement of sale” were conveyed to the buyers who executed a mortgage in favor of the appellees which was duly recorded in the Office for the Recorder of Deeds in Lackawanna County.

The buyers did not exercise their option to purchase the land subject to the option within two years from the date of settlement. The appellees thereupon sought to find other buyers for this parcel of land which consisted of approximately 20 acres. The parcel is landlocked with no means of ingress or egress except for the right of way described in paragraph 4 in the amendment of the agreement of sale. The Valvanos entered into an agreement of sale for the parcel of land that had been covered by the option with Joseph R. Shea, which was subject to a right of way for access from Gravel Pond Road to the property as set forth in the Valvano-Galardi amendment to the agreement. However, the Galardis refused entry on their land by surveyors to determine the exact location of the right of way. As a consequence, the agreement between the Valvanos and Mr. Shea terminated.

Subsequently, Mr. and Mrs. Valvano commenced an action in equity seeking specific performance of the agreement to grant a right of way and petitioning the court to “designate specifically a right of way for reasonable access, twenty (20) feet in width and extending from Gravel Pond Road to the optioned premises which shall extend from Defendants’ driveway to the said premises ...” Other relief was also sought. A hearing was held before Munley, J. who entered a decree nisi directing the appellants to provide a right of way for reasonable ingress and egress as provided for in the amendment to the agreement of sale. Damages were also entered in favor of the appellees in the amount of $456.90. Appellants’ exceptions to the decree nisi were dismissed, and they have appealed from the final decree.

The first issue for our determination is whether the amendment to the agreement of sale was unenforceable because of the Statute of Frauds which provides in part ...

no leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents, thereto lawfully authorized by writing, or by act and operation of law.

Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 Pa.C.S. § 1

The amendment to the agreement of sale, although signed by Mr. Galardi, was not signed by his wife. Nevertheless, there was sufficient performance by the grantors of the agreement as set forth in the amendment to make its terms enforceable, notwithstanding the absence of complete compliance with the Statute of Frauds. The amendment set forth a legal description of the land conveyed which was not specifically described in the agreement of sale. Also, the agreement of sale called for a “mortgage to seller” in the amount of $80,000.00 and the amendment called for “a purchase money mortgage in the amount of $78,000.00.” In fact, the purchase money mortgage signed by Joseph Galardi and Kaye Galardi was in the amount of $78,000.00. Other terms of the purchase money mortgage which was signed by both appellants, were identical with the amendment to the agreement of sale with respect to the terms of the mortgage, interest rates and monthly payments.

In the case before us, we have a written contract consisting of two parts, the printed agreement of sale and the “Amendment to Agreement of Sale of Real Estate”. The fact that the agreement was evidenced by two documents does not raise the bar of the Statute of Frauds. The Statute of Frauds requirement of a written memorandum may be satisfied by more than one writing involving a single transaction. Target Sportswear, Inc. v. Clearfield Foundation, 327 Pa.Super. 1, 474 A.2d 1142 (1984). The amendment refers to the agreement of September 30, 1981. The purchase money mortgage which was based on the amendment to the agreement of sale was dated December 8, 1981. It was signed by both Mr. and Mrs. Galardi and it contained the identical mortgage terms and legal description of the property as appeared in the amendment to the agreement of sale. Mrs. Galardi testified that she did not see the amendment to the agreement of sale until November, 1983. However, she was aware that the price was $98,000.00 and she took advantage of the provisions of the amendment of the agreement of sale which had reduced the purchase price. Both sellers signed the amendment to the agreement of sale as did Mr. Galardi. Mr. Valvano testified that the purchase price was reduced from $100,000.00 to $98,000.00 and gave the following explanation.

A. In the basic agreement we had no provisions for right-of-way going into the land, that we did not want to leave the land blocked. And Joe and I had an agreement where I would pay him $2,000 for the right-of-way, which I then reduced the selling price from 100 to 98,000, to pay for the right-of-way back into the other 20 acres of land.

The testimony also established that prior to the expiration of the two year option, Mr. Valvano conferred with Mr. Galardi in September or October, 1983 as to whether he and his wife wanted to exercise their option to purchase, which expired in December, 1983. He was told that they had not made up their minds. Sometime later Mr. Valvano met with Mr. and Mrs. Galardi who offered to exercise the option for $10,000.00 rather than $17,000.00 and Mr. Valvano would not agree to this.

The appellants herein took possession of the land conveyed to them in accordance with a written agreement of sale signed by all the parties to the transaction, except Mrs. Galardi. The purchasers considered exercising the option that was in the amendment but decided not to because they considered the price to be too high. Having decided not to exercise the option, they now seek to vitiate the right-of-way that was granted in the amendment to the agreement of sale on the basis that there was a failure to comply with the Statute of Frauds. The Statute of Frauds is to be used as a shield and not as a sword as it was designed to prevent fraud. Fannin v. Cratly, 331 Pa.Super. 326, 480 A.2d 1056 (1984). It does not make void contracts relating to land which fail to comply with the Statute of Frauds. Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946). The purpose of the Statute of Frauds is to avoid the opportunity for fraud and perjury likely to arise from oral conveyances of estates in land. Holland Furnace Company v. Keystone Dehydrating Company, 151 Pa.Super. 495, 30 A.2d 872 (1943).

In the instant case, the purposes of the Statute of Frauds would not be thwarted by giving effect to the right-of-way provisions in the agreement. They were an integral part of the option agreement which covered landlocked real estate. The right of way had no real existence during the option period and only came into being for all practical purposes in the event that the Galardis failed to exercise their option to purchase.

In order to prevent the Statute of Frauds from being used as a sword by one not needing its protection, the law has developed the doctrine of part performance. The doctrine is set forth in Briggs v. Sackett, 275 Pa.Super. 13, 16, 418 A.2d 586, 588 (1980):

Where, however, the party seeking to enforce the conveyance has partially performed the contract, so as to render recission inquitable and unjust, the contract may be outside the operation of the statute.

In the instant case, the sellers fully performed their obligations under the contract which were (1) to convey the land to the buyers and (2) to give the buyers an option for two years to purchase an additional 20 acres of land which were landlocked. The buyers, having received full performance of the obligations owed to them, will not be permitted to raise the Statute of Frauds as a defense against the performance of their obligations, which included the grant of an easement in the event that they did not exercise their option. “Specific evidence that would make recission of an oral contract inequitable and unjust, will take the contract out of the Statute of Frauds ...” Eastgate Enterprise, Inc. v. Bank and Trust Company of Old York Road, 236 Pa.Super. 503, 506, 345 A.2d 279, 280 (1975). See also Brojack Estate, 321 Pa.Super. 154, 467 A.2d 1175 (1983). The appellant also contends on appeal for the first time that even if the Statute of Frauds is not a bar to enforcement of the agreement to grant a right of way, that its enforcement is prevented by the doctrine of merger. The appellant did not raise this issue in the court below and it is therefore waived on appeal. Pa.R.A.P. 302(a). See also Heinsdorf v. Johns-Manville Corp., 352 Pa.Super. 429, 508 A.2d 334 (1986).

The appellants state as their third question involved:

3. Whether the doctrine of merger applies in this case and acts to merge a prior agreement of sale of real estate into the executed deed thereby precluding any further action on the prior agreement.
The trial court answered this question in the negative.

In actuality the court did not answer the question at all, as it was not presented. The adjudication and decree nisi did not consider the doctrine of merger, and the appellants’ exceptions did not allude to the issue.

Order affirmed.

      . The purchase money mortgage provided that the principal amount of the indebtedness in the amount of $78,000.00 was:
      payable as follows: $30,000.00 payable within one (1) year from the date hereof, together with interest thereon computed at the rate of twelve (12%) per cent per annum from the date hereof until the date of payment. The balance of forty-eight thousand dollars ($48,-000.00) shall be paid within fifteen (15) years from the date hereof in equal monthly installments of five hundred seventy-six dollars and thirty-seven cents ($576.37). The first monthly installment shall be due on the 8th day of January, 1982 and similar monthly payments on the 8th day of each and every month thereafter. All payments shall be applied first to interest at the rate of twelve (12%) per cent per annum and the balance in reduction of principal.
      These terms are almost identical with the provisions in the amendment to the agreement of sale.

      . Even if the issue of merger had not been waived, we would find that the provisions of the agreement of sale granting a right of way were not merged in the deed. The doctrine of merger provides that as a general rule an agreement of sale merges into the deed and no recovery may be had based upon an earlier agreement. Stoever v. Gowen, 280 Pa. 424, 124 A. 684 (1924). Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972). The merger rule does not apply where the expressed intention of the parties is to the contrary. Carsek Corp. v. Stephen Schifter, Inc., 431 Pa. 550, 246 A.2d 365 (1968). An agreement of sale is not merged as to matters not to be consummated by the deed issued pursuant to it and which are collateral to the deed. Rappaport v. Savitz, 208 Pa.Super. 175, 220 A.2d 401 (1966). The easement referred to in the amendment to the agreement of sale was not to be visibly opened during the option period and the actual boundaries were to be determined by the buyers in the future. It was the intention of the parties that the right of way not even be delineated during the option period since the buyers would not need a right of way over their own land if they exercised the option. The agreement provided that "The actual location of this right of way shall be as Buyers may designate providing the same provides reasonable access. No roadway shall be visibly opened as long as the abovementioned option remains in force and this grant shall terminate in the event that the option herein granted is exercised." A corollary to the doctrine of merger is that the delivery of the deed does not foreclose matters set forth in the agreement which are collateral to the deed.
        Elderkin v. Gaster, supra. In the instant case, there was no need to refer to the easement in the deed to the buyers as for all practical puproses it would not come into fruition if the buyers exercised their option. Having failed to exercise this option, they may not now deny the existence of the easement.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    526 A.2d 1221
    Jean M. RINCK, Appellee, v. George W. RINCK, II, Appellant.
    Superior Court of Pennsylvania.
    Argued April 2, 1987.
    Filed June 5, 1987.

      Albert Momjian, Philadelphia, for appellant.
    Thomas C. Clark, Middleburg, for appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

On November 6, 1980, George W. Rinck and Jean M. Rinck, husband and wife, entered into a property settlement agreement. Their agreement was incorporated into a final divorce decree entered on February 17, 1981. The agreement contained, inter alia, the following provision:

Defendant George W. Rinck, II, shall pay Plaintiff, Jean M. Rinck, permanent alimony from date hereof continuously, during and throughout her lifetime so long as she does not remarry, one-third of his gross monthly income. Gross income of Defendant shall be considered any assets or sums received by him from any source whatsoever, excluding income from Defendant’s Social Security retirement benefits and benefits from retirement plans and annuities. Defendant’s gross income shall be verified annually on or before March 15th of the following year by certified finincial [sic] report prepared by a certified public accountant at Defendant’s expense. The Court shall retain continuing jurisdiction of the matter in order to enforce this order.

It is this provision which has given rise to the instant dispute.

George Rinck, a medical doctor, is employed on the staff of Evangelical Community Hospital in Lewisburg. At the time of the divorce, he also conducted a part-time, general medical practice in Middleburg. On the advice of his accountant, he incorporated his medical practice on September 26, 1988. Prior to formation of a professional corporation, husband’s gross income was approximately $30,000.00 per year and his alimony obligation was approximately $10,-000.00. After incorporation, he determined his own salary and elected to withdraw from the corporation, as salary, the sum of $11,000.00 per year. Thereafter, husband reduced the amount paid to his former wife to $3,663.00 per year.

Wife filed a “petition for contempt” in which she alleged that her former husband had willfully refused to comply with the alimony provisions of the divorce decree. Following a hearing on December 2, 1985, the court declined to find Dr. Rinck in contempt of court, but clarified the divorce decree by ordering that future alimony payments be determined in accordance with the annual gross income derived by his professional corporation. On appeal, Dr. Rinck argues that the trial court abused its discretion by (1) piercing the corporate veil, and (2) defining his gross income to include the gross income of his wholly owned professional corporation, rather than the salary which he is paid by the corporation.

The parties’ agreement which was incorporated into the final divorce decree requires appellant to pay alimony in the amount of “one-third of his gross monthly income.” Gross income is defined by the agreement as “any assets or sums received by [appellant] from any source whatsoever, excluding income from ... social security retirement benefits and benefits from retirement plans and annuities.” For the three years preceding formation of the professional corporation, appellant’s annual income was approximately $30,-000.00. Following the formation of his professional corporation, appellant determined unilaterally that the income from the practice of his profession would be paid to the corporation and he would receive an annual salary of $11,-000.00. The decision to form a professional corporation was recommended by appellant’s accountant. The accountant conceded, and the trial court found as fact, that the recommendation had been induced, at least in part, by a desire to reduce the amount of alimony payments which Dr. Rinck was required to pay to his former wife. In this manner, appellant attempted to subvert the court decree which required that he pay as alimony one-third of his gross income.

The trial court held that appellant would not be permitted to evade the agreed order by the expedient of forming a professional corporation to receive the income generated by his medical practice. We perceive no error in this decision. Although for most purposes a corporation is deemed an entity distinct from the individual stockholder(s), the fiction of a separate legal identity will be disregarded where incorporation is resorted to for the purpose of avoiding an existing obligation of the incorporator. 18 Am. Jur.2d Corporations § 51. See: Commonwealth ex rel. Maier v. Maier, 274 Pa.Super. 580, 418 A.2d 558 (1980) (where husband is sole owner of corporation and determines his own salary, the corporate veil will be pierced and corporate income will be considered in determining husband’s earning capacity); Commonwealth ex rel. Gutzeit v. Gutzeit, 200 Pa.Super. 401, 189 A.2d 324 (1963) (in determining supporting spouse’s earning capacity, court may consider not only salary paid by wholly owned corporation, but all perquisites provided by corporation). See also: DeMasi v. Demasi, (J. 32022/86; filed March 23, 1987); Pacella v. Pacella, 342 Pa.Super. 178, 492 A.2d 707 (1985). Accord: Bellaire Securities Corp. v. Brown, 124 Fla. 47, 87, 168 So. 625, 633 (1936) (“the law is well settled that the organization of a corporation for the purpose of evading an existing personal liability on the part of those who become its stockholders will not be allowed to achieve that purpose, for in such case the courts will ‘pierce the veil of the corporation fiction’ and hold the stockholders ... to their personal liability....”).

Appellant argues that the corporate veil cannot be pierced unless the court makes a specific finding that he used his professional corporation to commit fraud, illegality or wrongdoing. This is a statement frequently made in the decided cases. See: 8A P.L.E. Corporations § 3. Appellant’s reliance on this general language, however, fails to acknowledge the scope of the rule which permits the separate corporate entity to be disregarded whenever it is necessary to avoid injustice. Where, as here, a corporation has been formed to escape an existing legal obligation, the corporate entity will be ignored. The trial court did not err when it held that appellant was required to pay as alimony, pursuant to an agreed court order, one-third of the gross income received by a professional corporation formed by appellant after the court order had been entered.

Order affirmed.


author: TAMILIA, Judge:

text:
    526 A.2d 1223
    Harold R. SMOTKIN, Individually and t/d/b/a The Hub Store and The Hub Store, Inc. v. MANHATTAN-WARD, INC., Appellant. Harold R. SMOTKIN, Individually and t/d/b/a the Hub Store and the Hub Store, Inc., Appellant, v. MANHATTAN-WARD, INC.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed June 10, 1987.

      Alan H. Bernstein and Max Goldman, Philadelphia, for appellant (at 247).
    John C. Uhler, York, for Smotkin, appellant (at 251).
    Joanne C. Betlem, York, for the Hub Store, appellant (at 251).
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This case involves an attempt by Harold R. Smotkin, individually, doing business as the Hub Store and the Hub Store, Inc., to enjoin Manhattan-Ward, Inc. from using the name “Hub” for their clothing stores in the York County area.

The procedural aspects of this case form the basis for our determination that a remand is necessary to allow the lower court to rule on the exceptions filed by both parties. We, therefore, will review the various stages of this litigation as it has transpired.

A complaint was filed in June of 1982 together with a motion for a preliminary injunction. Manhattan-Ward sought to remove the action to federal court but it was ultimately remanded to the state court with a hearing on the preliminary injunction held in June of 1983. On March 6, 1984, the court issued what it titled a Decree Nisi ordering Manhattan-Ward to discontinue using the name “The Hub” and enjoining future use of the name in the York county area. The Decree also stated that unless exceptions are filed as required by Pa.R.C.P. 1518, the decree shall be entered as a Final Decree. Exceptions were filed but without ruling upon them, the court entered a second Order on March 20, 1984, calling for the issuance of a preliminary injunction upon the filing of a $50,000 bond and restricting advertising activities of Manhattan-Ward. Again, the court added that if exceptions were not filed, the Decree would become final. On March 21, 1984, a third Order was issued, revoking the prior Decree Nisi of March 6, 1984 and the Order of March 20, 1984 in recognition of procedural defects.

The March 21, 1984 Order decreed that pending a final hearing, a preliminary injunction be issued upon the filing of a bond. No mention was made of exceptions in this Order and Manhattan-Ward subsequently appealed. (No. 00126 Harrisburg, 1984).

On March 30, 1984, a petition for rule and adjudication of contempt was filed and the court subsequently entered an Order requiring Manhattan-Ward to stop advertising. Hearings were held in 1984 and on March 24, 1986, the court issued an Adjudication and Final Decree which ordered Manhattan-Ward to permanently discontinue use of the name “The Hub” in connection with their store in the York County Shopping Center and in conjunction with any other men’s retail clothing business within 15 miles of the City of York. Compensatory damages were also awarded.

Both parties filed exceptions to this decree but the court did not rule on the exceptions. Both parties then filed appeals to this Court which are presently before us.

We think based on the procedural history detailed above that the filing of post-trial motions to the Order of March 24, 1986 was appropriate and the lower court should have addressed the exceptions filed by the parties.

Matters involving injunctions are distinct in certain ways in the procedural steps which are followed. A preliminary injunction such as that sought in the initial complaint is designed as a temporary remedy granted until that time when the parties dispute can be completely resolved. Consolidated Coal Co. v. District 5 United Mine Workers of America, 336 Pa.Super. 354, 485 A.2d 1118 (1984). The purpose behind issuing the injunction is to preserve the status quo, as it exists or previously existed before the acts complained of, preventing irreparable injury or gross injustice. Naus & Newlyn, Inc. v. Mason, 295 Pa.Super. 208, 441 A.2d 422 (1982) North Penn Gas Co. v. Mahosky, 250 Pa.Super. 366, 378 A.2d 980 (1977).

The Order of March 21, 1984 issued a preliminary injunction pending a final hearing. This Order was immediately appealable at that time, through application of Pa.R.A.P. 311(a)(4) which provides in pertinent part:

Rule 311. Interlocutory Appeals as of Right
(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(4) Injunctions. An order granting continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.

After the preliminary injunction was entered the court properly proceeded to hold hearings in Order to finally resolve the underlying issue. The proceedings at this point should then conform to normal equity practice which calls for the court to make an adjudication, issue a Decree Nisi, and notice to be provided by the prothonotary. Pa.R.C.P. 1517. Post-trial relief is then governed by Pa.R.C.P. 227.1 which requires the filing of a written motion for post-trial relief. After ruling upon these motions a Final Decree is then to be entered.

The court in the present case erred in terming the Order of March 24, 1986 a Final Decree and in failing to address the issues raised by the parties exceptions to that Order. The recent case of Bolus v. Ryder Truck Rental, Inc., 358 Pa.Super. 387, 517 A.2d 995 (1986) is instructive on the propriety of this court addressing issues raised in matters involving injunctions.

The court in Bolus was faced with an appeal from a Decree Nisi vacating a preliminary injunction. The parties had filed post-trial motions which had not been decided when the appeal was filed. It was held that Pa.R.A.P. 311(a)(4) provided for an appeal as of right from such an Order but it also stated that the rule;

[Pjermits us to review only that portion of the decree which disolved or vacated the preliminary injunction and therefore refused to maintain the status quo pending final adjudication in the trial court____ Review is limited to a determination of whether there were any reasonable grounds for the action of the trial court.

Bolus, 358 Pa.Superior Ct. at 389-90, 517 A.2d at 996.

In discussing the resolution of the post-trial motions, the court noted;

... the plaintiff appellants have filed a motion for post-trial relief pursuant to Pa.R.C.P. 227.1 and a final decree will not be entered until that motion for post-trial relief has been determined by the trial court. Until a final decree has been entered, the trial court’s adjudication will not be ready for final review in this Court. See Humphreys v. Cain, 84 Pa.Commw. 222, 474 A.2d 353 (1984).

Id.

In the present case, the matters raised on appeal do not center simply on the propriety of entering an injunction to maintain the status quo but rather focus on the underlying issues which gave rise to the dispute. The right to use of the trademark; the awarding of punitive and compensatory damages; entitlement to counsel fees and expert fees are all issues raised on appeal. Because such issues are raised we think that the decree appealed from should not be viewed as one continuing an injunction but rather as a Decree Nisi preceding a Final Decree. As such the lower court must first rule on the post-trial motions as stated in Bolus, supra before the issues are ripe for appellate review. See also Walley v. Iraca, 360 Pa.Super. 436, 520 A.2d 886 (1987). This case is remanded to the trial court to allow it to rule on the exceptions and enter a Final Decree. Appeal may then be properly taken from that Decree.

Decree remanded for action in accordance with this Opinion. In the interim there is no reason to disturb that portion of the trial court’s Decree which enjoins Manhattan-Ward, Inc. from doing business as “The Hub” in and around York County. See: Bolus v. Ryder Truck Rental, Inc., 358 Pa.Super. 387, 517 A.2d 995 (1986).

Jurisdiction relinquished.

      . A praecipe for discontinuance was filed on May 6, 1986.


author: MONTEMURO, Judge:

text:
    526 A.2d 1226
    Suzanne Elizabeth VANAMAN, Appellee, v. Jeffrey Allan COWGILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 2, 1987.
    Filed June 12, 1987.

      Jeffrey A. Cowgill, in propria persona.
    Sandra L. Elias, Deputy District Attorney, Media, for appellee.

      Before DEL SOLE, MONTEMURO and ROBERTS, JJ.

      This decision was rendered prior to the death of Justice Roberts.

   MONTEMURO, Judge:

This is an appeal from an Order denying appellant the right of visitation with the parties’ minor child. The parties were married in 1975, and the child who is the subject of these proceedings was born in that year. The parties divorced in 1978. Appellant has been incarcerated since 1980, having been convicted of rape and simple assault-menace; at the time of these proceedings he was serving a six to twelve year term of imprisonment.

In 1982, appellee filed a petition for custody of the child, along with a rule to show cause. Appellant neither appeared personally nor through counsel at the hearing on the rule, which was held ex parte, and concluded with the issuance of the order which underlies this appeal.

Appellant has presented us with two issues, both of which are in effect claims that he has a constitutional right to be present and to present evidence at any proceeding which affects his status as a parent. The corollary is that this right was violated when the Order denying visitation was entered despite appellant’s non-attendance at the hearing.

The trial court bottomed its action on appellant’s failure to explain or excuse the absence of counsel, or to request a continuance of the hearing after having received proper and sufficient notice of its impending occurrence. Citing Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977), the court found that despite the nature of the case at bar, that is domestic relations, and the equitable considerations involved, “equity does not demand that the court allow Respondent to effectively ignore notice of a scheduled custody proceeding.” (Trial court Op. at 3).

This principle, while perfectly sound in regard to persons at liberty to protect their own interests, requires considerable revision in the context of this and similar cases. The fact of appellant’s incarceration places an obligation on the court to safeguard his due process rights, a responsibility here ignored.

Although we have uncovered neither procedural rule nor appellate authority which speaks directly to this issue, lower courts have in the past concluded that not only notice of a (civil) hearing is due an imprisoned person, but also specific advisement of his right to attend. See, Jones v. Jones, 1 Pa.D. & C.3d 401 (1974) (citing cases). The court in Jones prescribed a method of implementing exercise of this right based on the issuance of a writ of habeas corpus ad testificandum. This use of the writ is based on the definition given it in Commonwealth ex rel. Fraley v. Rotan, 82 Pa.Super. 172 (1923) as equivalent, in dealing with persons in custody, to a subpoena. The steps listed in Jones, although composed in reference to a divorce hearing, are equally applicable here: where the respondent/defendant in an action is incarcerated, notice must contain, as well as the usual particulars of the hearing, the statement that respondent/defendant may, if he wishes to attend, request the court by means of a habeas petition and writ to make arrangements for transportation to and presence at the hearing. Such request must be made within 10 days prior to the scheduled date.

In custody and visitation cases, the paramount concern is the best interests of the child. Bucci v. Bucci, 351 Pa.Super. 457, 506 A.2d 438 (1986). A determination of where those interests lie can only be made on the basis of a reasonably complete record, and the “hearing judge must by his opinion give the reviewing court the benefit of a thorough analysis of that record.” In re Long, 313 Pa.Super. 47, 52, 459 A.2d 403, 405 (1983).

At the hearing on appellee’s petition, no evidence was taken once appellant’s absence became known to the court. In effect, no record exists. The reasons given for the decision to deny visitation are “[T]he serious moral deficiencies in [appellant’s] character as indicated by his current incarceration for rape which is a particularly disgusting felony. Respondent’s criminal record, the type of offense and his apparent disregard for legal process are sufficient reasons for denying him visitation with the child.” Trial court Op. at 4.

Visitation has been denied where the parents’ mental or moral deficiencies pose a threat to the child, Hughes v. Hughes, 316 Pa.Super. 505, 463 A.2d 478 (1983); Long, supra; Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 133 (1978), and appellant may well be unable to sustain his burden of demonstrating that it lies in the child’s best interest that he be allowed access. However, this is a matter of proof to be demonstrated by means of evidence, testimonial and otherwise, at a hearing, not presumed.

In situations such as the one before us, not only are the rights of the prisoner/respondent vulnerable to infringement, but those of the child as well since a determination of the child’s best interests must have its basis in information. Appellant’s rights were clearly ignored; whether his child’s have been violated as well remains yet to be seen.

Order reversed and case remanded for proceedings consistent with this Opinion. Jurisdiction is relinquished.

DEL SOLE, J., notes his dissent.

      . The order also granted appellee custody of the child. This provision is not before us, having been for obvious reasons unappealed.

      . Appellant’s notice of appeal was timely. Through an administrative error below, however, the case was not transmitted to this court until four years later.

      . Appended to appellant’s brief is substantial correspondence attesting to his fruitless efforts to obtain representation. These letters are dehors the record and may not affect our conclusion; we do, however, note their existence.

      . We note that the record contains an unsigned show cause Order, which, properly, contains directions for a writ of habeas corpus to be issued upon the warden of Graterford Prison to produce appellant for the hearing. The Order actually entered contained nothing even remotely similar.

      . This case presents an anomalous procedural posture in that appellant had filed a petition for visitation in the Court of Common Pleas in Delaware County prior to the filing of the instant petition in Montgomery County. A hearing on the first petition was scheduled for October 14, 1982, but never held. Appellant’s averment of these facts was ignored by the trial judge herein. However, since appellant does not complain of this on appeal, we find that any possible objection to venue has been waived.


text:
    527 A.2d 109
    Franklin BORNMAN, Harrisburg Housing Authority, Appellee, v. Eloise GORDON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1987.
    Filed April 30, 1987.
    Reargument Denied July 10, 1987.

      Geoffrey M. Biringer, Harrisburg, for appellant.
    Melville G.M. Walwyn, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

This is an appeal from an order refusing to set aside a sheriffs sale of personalty which had been levied upon and sold in satisfaction of a judgment for rent. Appellant, the tenant, contends that the sale should have been set aside for the following reasons: (1) the landlord misled the tenant regarding the amount necessary to dissolve the levy; (2) the price obtained at the sale was inadequate; and (3) the tenant failed to receive notice of the levy or sale. We find no merit in these contentions and, for the reasons which follow, affirm the trial court’s order denying relief.

Winston Richards was the owner of premises 1819 Zarker Street, Harrisburg. The premises were leased pursuant to the Harrisburg Housing Authority’s section eight housing program, with the Authority acting as agent for the owner. Eloise Gordon was the tenant of 1819 Zarker Street. When she failed to pay rent, the Housing Authority instituted eviction proceedings and obtained judgments for possession and for past due rent in the amount of $357.04. Gordon was evicted on December 2 and 3, 1985, and her furniture and personal property were inventoried and stored in facilities provided by the Housing Authority at the Jackson-Lick Apartments. On February 13,1986, the Sheriff of Dauphin County levied upon Gordon’s furniture and personal property pursuant to a writ of execution issued to enforce the judgment for rent. A copy of the writ of execution was sent to Gordon at 1819 Zarker Street, her last known address. The evidence showed that she had failed to notify the Housing Authority of a new address and had failed also to file a change of address with the Postal Service. Gordon testified that she did not receive a copy of the writ. On February 18 and 19, 1986, Gordon’s property was moved to 1934 Zarker Street, a building owned by Winston Richards, because renovation work was about to begin at the Jackson-Lick Apartment. The sheriff’s sale was scheduled for March 3, 1986, at 1934 Zarker Street, and notice thereof was again mailed to Gordon at her last known address. The trial court found that the sheriff had posted notice of the sale at 1934 Zarker Street and also at the Housing Authority’s storage facility, where the levy had initially been made.

Gordon did not attend the sheriff’s sale, and her property was sold to Winston Richards for $55, the amount of the sheriff’s costs. Richards took possession of the goods following the sale. Two weeks later, on March 17, 1986, Gordon filed “Exceptions to Sheriff’s Sale Pursuant to Pa.R.C.P. No. 3136.” The trial court elected to treat her “exceptions” as a petition to set aside the sale under Pa.R. C.P. 3132, and an evidentiary hearing was held thereon. Following hearing, the petition was denied.

The authority for setting aside a sheriff’s sale is contained in Pa.R.C.P. 3132, which provides:

RULE 3132. SETTING ASIDE SALE
Upon petition of any party in interest before delivery of the personal property or of the sheriff’s deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

A petition to set aside a sheriff’s sale is based on equitable principles and is addressed to the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion. Fidelity Bank v. Pierson, 437 Pa. 541, 542, 264 A.2d 682, 683 (1970); Philadelphia National Bank v. New Ideas Enterprises, Inc., 424 Pa. 284, 285, 227 A.2d 873, 874 (1967); Dearnley v. Survetnick, 360 Pa. 572, 573, 63 A.2d 66, 67 (1949); Marine Bank v. Huhta, 279 Pa.Super. 130, 133, 420 A.2d 1066, 1067 (1980). As a general rule, the burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant, and the application to set aside a sheriff’s sale may be refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence. 13 Std.Pa.Prac.2d § 76:75. See: McKee v. Kerr, 192 Pa. 164, 43 A. 953 (1899); Charles v. Smith, 29 Pa.Super. 594 (1905).

Gordon contends that she was misled by representatives of the Housing Authority regarding the amount necessary to satisfy the judgment and reclaim her personalty. The record is clear, however, that Gordon made no effort to pay the rent owed or to satisfy the judgment which had been entered against her. Moreover, the evidence showed that the amount claimed to be due and owing by the Housing Authority was $1,336. This included, in addition to rent owed, legal costs, costs of making the inventory, and costs of removing her personalty at the time of her eviction. Although payment of this amount was not necessary to satisfy the judgment for rent, the record is clear that the Housing Authority was looking to be reimbursed for its expenses and that payment of this amount was necessary if Gordon were to satisfy her indebtedness to the landlord. The fact that representatives of the Housing Authority told Gordon that she owed in excess of one thousand dollars was not a basis on which the sheriffs sale could have been set aside.

Gross inadequacy of price may be a reason for setting aside a sheriffs sale. Capozzi v. Antonoplos, 414 Pa. 565, 570, 201 A.2d 420, 422 (1964); Hettler v. Shephard, 326 Pa. 165, 167, 191 A. 581, 582 (1937). See also: Scott v. Adal Corp., 276 Pa.Super. 459, 463, 419 A.2d 548, 551 (1980). Absent evidence of the actual or estimated value of the property sold, however, a determination of gross inadequacy cannot be made. See: Continental Bank v. Frank, 343 Pa Super. 477, 485, 495 A.2d 565, 568-569 (1985); J.B. Van Sciver Co. v. Smith, 328 Pa.Super. 487, 490, 477 A.2d 550, 552 (1984).

In the instant case, Gordon failed to offer any evidence whatsoever regarding the value of the goods sold by the sheriff. Therefore, we cannot say that the trial court erred in refusing to set aside the sale for gross inadequacy of price.

Finally, Gordon contends that she did not receive notice of the levy or sale. The property was levied upon while it was in storage at the Jackson-Lick Apartments. Notice was mailed to Gordon at the demised premises, which constituted her last known address. This was consistent with Pa.R.C.P. 3108(b), which requires that, upon levy, “the sheriff shall mail a copy of the writ to the execution defendant at his last known address.” The rule does not require either the sheriff or the plaintiff to conduct a search to determine the whereabouts of the execution defendant; it is enough that a copy of the writ be sent to his or her last known address. Thus, in the instant case, where the trial court found that neither the plaintiff nor the sheriff knew where Gordon was living following her eviction, it was enough that a copy of the writ was sent to her last known address.

Notice of a sale is intended to advertise the sale and insure the presence of bidders. See: 9 Goodrich-Amram 2d § 3128(a):l. Pa.R.C.P. 3128(a) provides that

(a) Notice of sale of personal property shall be given by the sheriff at least six (6) days prior to sale by handbills posted at the sheriffs office, the place of sale and the place of levy, if different from the place of sale.

In this case, the goods were levied upon while they were in storage at the Housing Authority’s facility and were sold at 1934 Zarker Street. Gordon concedes that notice of the sale was properly posted at the sheriff’s office and at 1934 Zarker Street, the place of sale. The trial court found that notice of the sale had also been posted at the Jackson-Lick Apartments, where the levy had been made. On appeal, Gordon contends that the evidence does not support this finding by the trial court.

Our review of the record discloses that the evidentiary support for the trial court’s finding is equivocal at best. Catherine Walt, the sheriff’s real estate deputy, testified on one occasion that notice had been posted at the Jackson-Lick Apartments. On another occasion, she testified that notice of the sale had been posted at 1934 Zarker Street and not at the Jackson-Lick Apartments. The latter testimony was consistent with the sheriffs return, which recited that the notice of sale had been posted at 1934 Zarker Street.

The notice provisions of Pa.R.C.P. 3128(a), however, are intended to “create circumstances which will lead to an 'open' sale, one which is well attended and designed to realize the highest sum possible.” 9 Goodrich-Amram 2d § 3128(a):l. They are not designed to give additional notice to the judgment debtor that the levy will culminate in a sheriffs sale. The burden of showing inadequate notice resulting in prejudice is upon the person who seeks to set aside the sale. Absent evidence that the sale price was inadequate, a court will be reluctant to find prejudice sufficient to require another sale.

Here, the appellant-tenant failed to show that it was necessary to set aside the sale to avoid prejudice. That she was indebted for rent and costs in excess of four hundred ($400) dollars is clear and is not denied. Her furniture and personal property were purchased at sheriffs sale by the landlord. The evidence does not suggest, even by implication, that the personal property sold by the sheriff had a value in excess of the judgment and costs of sale. Under these circumstances, we cannot say that it was an abuse of discretion for the trial court to deny a request for a new sale after the property had been delivered to the purchaser. Gordon knew that her property was being held for nonpayment of rent and did nothing to reclaim it or preserve it. Her inactivity until after the sale had been held and the personal property had been delivered to the purchaser did not recommend that the sale be set aside, and a new one held. This was peculiarly so where, as here, there was no reason to believe that a resale would produce proceeds in excess of the judgment and costs to be satisfied thereby.

Order affirmed.

      . Gordon's exceptions, which contained a request to set aside the sheriffs sale, were filed after the personalty had been delivered to the purchaser by the sheriff. The requirement that a petition to set aside a sheriffs sale be filed before personal property is delivered to the purchaser cannot be avoided by mislabelling the petition as exceptions. For a sheriff to reassemble for resale the personalty sold at sheriffs sale after it has been delivered to the purchaser would in most cases be like trying to put Humpty-Dumpty together again. This issue, however, has not been raised by the parties and was not considered by the trial court. Therefore, we have not rested our decision on this defect in appellant’s procedure.

      . The Housing Authority has billed the owner for these costs.

      . Although an examination of the sheriffs list of goods levied upon suggests that they probably had a value in excess of fifty-five dollars, several items of property were set aside under the exemption laws, and it is not certain that the remaining goods actually sold had a value in excess of the rent owed.

      . This testimony appears as follows:
      Q Now, where were those sale bills posted?
      A Jackson-Lick Apartments.
      Q Anywhere else?
      A No.

      . This testimony was as follows:
      Q Is there any indication in your file, Ms. Walt, that Eloise Gordon actually received notice of the sale?
      A Just that we posted the premises at 1934 Zarker Street.
      Q Jackson-Lick was not posted with the notice of sale, is that correct?
      A Right.


author: OLSZEWSKI, Judge:

text:
    527 A.2d 113
    COMMONWEALTH of Pennsylvania v. Steven W. BRACHBILL, Appellant. COMMONWEALTH of Pennsylvania v. Darrell R. MUSSER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed June 4, 1987.
    Petition for Allowance of Appeal Granted Oct. 27,1987.

      Joseph M. Devecka, State College, for appellants.
    Ross H. Cooper, Assistant District Attorney, Bellefont, for Com.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

These are consolidated appeals from judgments of sentence. After a jury trial appellant Darrell Musser was convicted of intimidation of witness or victim, 18 Pa.Cons. Stat.Ann.Sec. 4952. Both Musser and appellant Steven Brachbill were convicted of criminal conspiracy, 18 Pa.Cons. Stat.Ann.Sec. 903. Appellants now raise numerous issues which will be discussed seriatim. Finding no error, we affirm.

Musser and Brachbill were employed as correction officers at the Centre County Prison. The victim, Robert L. Riggleman, was incarcerated at the prison and served as a prison trustee. Riggleman had befriended the correction officers as evidenced by testimony that they often engaged in “horseplay.”

Four days prior to Riggleman’s release, several incidents occurred at the prison which form the basis of the Commonwealth’s case. In summary, appellants, at various times: restrained Riggleman while rubbing Ben Gay ointment onto his genitals; handcuffed and shackled Riggleman, placed a bag over his head, and wrote over his face and body with a marker pen; marked a barber pole stripe on his penis and wrote on his buttocks; shaved a patch of Riggleman’s hair near his genitals; forcibly administered an unprescribed enema; and closely shaved his head.

After his release from prison, Riggleman reported these incidents to the Pennsylvania State Police and an investigation was commenced. Subsequently, appellants contacted Riggleman by telephone. During the conversation Riggleman lied and advised appellants that he had not contacted the police. Appellants told Riggleman to remain silent and to “report” to them every day or every other day. (R.R. 121a.) Thereafter, appellants telephoned Riggleman “quite a few times.” (R.R. 122a.) On August 23,1984, Riggleman contacted Corporal Hoffmaster of the State Police and that evening Riggleman returned appellants’ call from police barracks. Corporal Hoffmaster overheard that conversation by listening on an extension telephone.

The next day Riggleman unexpectedly saw Musser at a yard sale. Musser expressed fear of losing his job because of what had happened at the prison. Musser offered to purchase clothing for Riggleman and his family and to take the latter out for dinner. Before parting, Musser gave Riggleman seven dollars “for the phone calls.” (R.R. 127a.)

I.

Appellants first contend the court erred in instructing the jury on the charge of intimidating a witness or victim, 18 Pa.Cons.Stat.Ann.Sec. 4952. That section provides:

Sec. 4952. Intimidation of witnesses or victims
(a) Offense defined. — A person commits an offense if, with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to:
(1) Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning any information, document or thing relating to the commission of a crime.
(2) Give any false or misleading information or testimony relating to the commission of any crime to any law enforcement officer, prosecuting official or judge.
(3) Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge.
(4) Give any false or misleading information or testimony or refrain from giving any testimony, information, document or thing, relating to the commission of a crime, to an attorney representing a criminal defendant.
(5) Elude, evade or ignore any request to appear or legal process summoning him to appear to testify or supply evidence.
(6) Absent himself from any proceeding or investigation to which he has been legally summoned.
(b) Grading. — The offense is a felony of the third degree if:
(1) The actor employs force, violence or deception, or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge, to any other person.
(2) The actor offers any pecuniary or other benefit to the witness or victim or, with the requisite intent or knowledge, to any other person.
(3) The actor’s conduct is in furtherance of a conspiracy to intimidate a witness or victim.
(4) The actor solicits another to or accepts or agrees to accept any pecuniary or other benefit to intimidate a witness or victim.
(5) The actor has suffered any prior conviction for any violation of this title or any predecessor law hereto, or has been convicted, under any Federal statute or statute of any other state, of an act which would be a violation of this title if committed in this State.
Otherwise the offense is a misdemeanor of the second degree. 1980, Dec. 4, P.L. 1097, No. 187, Sec. 4, effective in 60 days.

18 Pa.Cons.Stat.Ann.Sec. 4952.

In instructing the jury as to the offense of intimidation, the court noted the necessary elements and then stated:

The common and everyday definition of intimidation is to compel or deter by use of threats. However, one person can be guilty of committing the crime of intimidation without actually threatening the victim. So while your common everyday knowledge of what intimidation means may include that someone has to be threatened, it is not true for the crime to be made out beyond a reasonable doubt that you must find that there was an actual threat to use force.

(R.R. 213a-214a). Appellants contend the jury should have been instructed that intimidation means to compel or deter conduct by threat. Specifically, appellant claims that a necessary element of the offense of intimidation is the presence of a threat by a defendant and that the jury should have been so charged. We do not agree for several reasons.

First, the statute’s basic purpose suggests that it was designed to punish any knowing or intentional conduct designed to obstruct justice. The word “threat” is found nowhere in the definition of the offense, 18 Pa.Cons.Stat. Ann.Sec. 4952(a). Quite rightly, the legislature intended that the statute was to be read broadly so as to include conduct likely to cause public harm.

Second, our interpretation conforms to the statutory directives of Section 4952. Under subsection (b), the offense of intimidation is graded as a misdemeanor unless one of five different circumstances are present. In particular, subsection (b)(1) provides that where the defendant uses “force, violence or deception, or threatens to employ force or violence,” the offense is elevated to a felony. 18 Pa. Cons.Stat.Ann.Sec. 4952(b)(1). In our view, the legislature intended to punish any intimidating behavior, whether or not a threat forms the basis of that behavior. Where, however, the intimidating behavior is by threat of force or violence, the punishment is more severe.

Third, the dictionary definition of “intimidate” is not restricted by the word “threat.” In general, intimidation is any “(u)nlawful coercion; extortion; duress (or) putting in fear.” Black’s Law Dictionary, 5th ed. at 737 (1979). Webster's Ninth New Collegiate Dictionary at 634 (1984) defines “intimidate” as “to compel or deter by or as if by threat.” (emphasis added). Certainly, the use of a threat is, quite frequently, the common means of intimidation. Still, the legal and common definitions of intimidation invoke a notion of conduct which is directed toward affecting future behavior whether or not a threat is part of that conduct.

Fourth, our decision has some basis in case law. In Commonwealth v. Fontana, 490 Pa. 7, 415 A.2d 4 (1980), the defendant made no actual threat to the witness in attempting to deter the latter from testifying. Nevertheless, the Supreme Court upheld the conviction for tampering. Obviously, proof of an actual threat was not a prerequisite to a conviction. We believe the same rule holds true here.

In sum, our interpretation seems better to carry out the legislature’s intent in enacting this statute without unduly restricting its application. At the same time, that interpretation is consistent with dictionary definitions of intimidation which we accept as the legal and common usage, and with case law. For these reasons, we conclude that the definition of initimidation found in Section 4952(a) does not contain an element of threatening conduct. Having determined that a threat is not an element of the offense of intimidation, the court was not required to so instruct the jury.

II.

Appellant Musser also claims that the evidence was insufficient to support a conviction for the offense of intimidation of a witness or victim. In this regard, Musser contends there was no evidence of a threat made to the victim. Having already determined that proof of a threat is not a necessary element of the charge of intimidation, supra, Part I, we reject appellant’s claim.

III.

In the third issue, appellant Musser offers another argument in support of his claim that the evidence was insufficient to support a conviction for the offense of intimidation. Appellant starts with the premise that the offense of intimidation requires conduct by the defendant which deters the victim from taking action. In this case, Riggleman misrepresented to Musser that the authorities would not be informed. Musser argues that because he believed Riggleman’s lies (Riggleman had already contacted the police), he could not have had the requisite intent to deter Riggleman from informing the authorities. Although appellant’s initial premise is correct, he reaches an incorrect conclusion. According to his argument, the inquiry is into his subjective state of mind; if Musser did not believe that Riggleman had decided to talk to the police, no intimidation could take place. Appellant’s theory has no support in the law.

In order to convict the defendant of intimidation, the evidence must have shown beyond reasonable doubt that the defendant: (1) intimidated or attempted to intimidate the victim into refraining, informing or reporting information regarding a crime, to the authorities and, (2) that the defendant did so with the intent or knowledge that the conduct would obstruct, impede, impair, interfere or prevent the administration of criminal justice. 18 Pa.Cons.Stat.Ann. Sec. 4952(a). There is no requirement in Section 4952 that the defendant believe he was deterring the victim’s free will. Rather, Section 4952 requires proof that the defendant intended to intimidate the victim. That is, the proof must show that the defendant acted or engaged in conduct: (1) with the “conscious object to engage in conduct of that nature or to cause such a result,” 18 Pa.Cons.Stat.Ann.Sec. 302(b)(1); or (2) with the awareness “that it is practically certain that the conduct will cause such a result,” 18 Pa.Cons.Stat.Ann.Sec. 302(b)(2). The focus of the inquiry is upon the conduct and statements of the defendant; most often, it is only through the defendant’s acts and statements and the reasonable inferences therefrom, that guilt may be confirmed.

Nor are we persuaded by appellant’s reliance on a prior decision by this Court in which the relevance of appellant’s intent was at issue. In Commonwealth v. Patterson, 257 Pa.Super. 206, 390 A.2d 784 (1978), the Commonwealth argued that the defendant had given a promotion and raise to a witness in order to secure favorable testimony in a subsequent trial. In concluding that the evidence was insufficient to support a charge of intent to influence a witness, the Court stated:

The fact that ... (the witness) himself perceived the raise, when it was given, as intended to insure his favorable testimony was not sufficient to prove appellant’s intent.

Id., 257 Pa.Super. at 216-217, 390 A.2d 790. Patterson is not at odds with our discussion today. In that case the only evidence in support of the Commonwealth’s case was the fact that the witness had been given a raise prior to trial; although other explanations justifying the raise were equally plausible, the only proffered explanation was the witness’s own statement. Id., 257 Pa.Super. at 216, 390 A.2d at 790. In the segment cited by appellant, the Court was emphasizing the lack of objective evidence tending to prove the defendant’s intent. Such is not the case here. Appellant’s claim that he did not intend to deter Riggleman from any course of action rings hollow given that Musser repeatedly contacted the victim once he began to feel the pressure of an investigation. Appellant gave Riggleman money to pay for the telephone calls and offered to get him clothing and to take his family out to dinner. During the first phone call, Riggleman was told to make a near daily report on his activities. When Musser approached Riggleman at the yard sale he told the latter to “keep it the way we’ve been keeping it.” (R.R. 126a.) From the testimony regarding appellant’s statements and conduct, the jury could have reasonably inferred that appellant intended or knew that his conduct would “obstruct, impede, impair, prevent or interfere with the administation of criminal justice.” 18 Pa.Cons.Stat.Ann.Sec. 4952(a).

IV.

In the next issue, both defendants claim a new trial must be granted because the court erred in instructing the jury to consider “whether the defendant or defendants, either or both of them, offered any pecuniary, monetary, financial or other benefit to Mr. Riggleman.” (R.R. 215a). The challenged instruction was virtually a verbatim recitation of one of the special enhancement factors of Section 4952(b) which elevates the grading of intimidation from a misdemeanor to a felony. Appellants argue that the issuance of the charge was error because there was no evidence a pecuniary benefit was offered to Riggleman in order to intimidate him. We disagree.

Implicit in appellant’s argument is a challenge to the propriety of issuing an instruction based upon the evidence presented. The duty of the trial court is to “frame the legal issues for the jury and instruct the jury on the applicable law.” Commonwealth v. Leonhard, 336 Pa.Super. 90, 95, 485 A.2d 444, 446 (1984). See generally Commonwealth v. Ford-Bey, 504 Pa. 284, 472 A.2d 1062, 1064-1065 (1984). The court’s determination of the applicable law depends, in part, on the circumstances of the case, the facts in evidence and the line of argument pursued by counsel in addressing the jury. After reviewing the record, we are satisfied the charge was relevant and correctly stated the applicable law.

Further, we are satisfied that there was no error in instructing the jury to consider whether appellants offered Riggleman any pecuniary benefit. Again, this was an accurate restatement of the special enhancement provision, 18 Pa.Cons.Stat.Ann.Sec. 4952(b)(2). Moreover, our review of the record indicates that the trial court instructed the jury to consider “any pecuniary, monetary, financial or other benefit ” which may have been offered. (R.R. 215a) (Emphasis added.) This, too, accurately reflects the enhancement provision. The statute does not require proof that only a pecuniary benefit was offered; the offer of any other benefit may suffice. Given Riggleman’s testimony regarding appellants’ offer of money to pay for the phone calls, the offer to obtain clothing and the offer to take Riggleman’s family out to dinner, the jury was properly instructed on the grading enhancement provision.

Y.

Appellants next contend there was insufficient evidence to convict them of criminal conspiracy to intimidate. Specifically, appellants claim the jury must have found that Musser’s intimidating conduct formed the basis of the conviction for intimidation. Arguing that the evidence was insufficient to support the intimidation conviction, appellants contend the evidence was also insufficient to support the conviction of conspiracy. Consequently, appellants maintain that the judgments of sentence for conspiracy must be arrested or, alternatively, that the conspiracy counts must be reduced to a misdemeanor or a new trial order.

Because we have already concluded that the evidence was sufficient to support the intimidation conviction, supra, Part III, the basis of appellant’s argument is undermined and we need proceed no further. Nonetheless, because appellants generally challenge the sufficiency of the evidence supporting the conspiracy convictions, we are compelled to review that evidence.

A conviction of criminal conspiracy does not merge into the offense which was the object of the conspiracy. Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976). A conviction of conspiracy may stand provided the evidence shows beyond doubt that appellants: (1) entered an agreement to do an unlawful act, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the conspiracy. 18 Pa.Cons.Stat.Ann.Sec. 903. An agreement may be inferred from the acts and circumstances of the parties. Commonwealth v. Dumas, 299 Pa.Super. 335, 343, 445 A.2d 782, 786 (1982).

With these legal principles in mind and upon a review of the record in a light favorable to the Commonwealth, the evidence was sufficient to support the convictions for conspiracy to intimidate. In part, the evidence showed that shortly after Riggleman’s release from prison and after having contacted the police, appellants made repeated telephone calls to him requesting that he report frequently to them and telling him to “give us a call,” and “we would like to see you.” (R.R. 41a-42a, 121a.) Appellants told Riggleman to make collect phone calls to them. (R.R. 125a.) In speaking with Riggleman, Brachbill stated, “You know we did it. We know we did it. Let’s keep it that way.” (R.R. 124a.) From these statements, and from the other statements and acts of appellants, the jury could have inferred that both appellants had entered into an agreement to prevent Riggleman from cooperating in the police investigation.

VI.

Finally, appellants argue that a new trial must be granted because the trial court improperly admitted into evidence the testimony of Corporal Jan Hoffmaster, the state police officer who monitored a telephone conversation between Riggleman and Brachbill.

On August 23, 1984, Brachbill telephoned the home of Riggleman’s parents, seeking to speak with Riggleman, who was not there at that time. Later that same day Riggleman learned of the telephone call. He notified Corporal Hoffmaster of the Pennsylvania State Police who suggested that Riggleman return Brachbill’s call from the state police barracks. Riggleman agreed and when he returned the call, Corporal Hoffmaster listened to the conversation on a telephone extension. Hoffmaster testified as to the conversation between Riggleman and Brachbill. Appellants maintain that the testimony should have been suppressed as a violation of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.Cons.Stat.Ann.Sec. 5703(1)-(3) and Sec. 5704(2)(ii) (the “Act”).

Section 5703 of the Act is a broad and general prohibition against the interception, disclosure and use of wire or oral communications:

Sec. 5703. Interception, disclosure or use of wire or oral communications
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
(1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication;
(2) willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or
(3) willfully uses or endeavors to use the contents of any wire or oral communications, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire or oral communication.
18 Pa.Cons.Stat.Ann.Sec. 5703. Section 5702 defines the operative words of Section 5703 as follows:
“Intercept.” Aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device.
“Oral communication.” Any oral communications uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.
“Wire communications.” Any communication made in whole or in part through the use of facilities for the transmission of communications by wire, cable or other like connection between the point of origin and the point of reception furnished or operated by a telephone, telegraph or radio company for hire as a communication common carrier.

18 Pa.Cons.Stat.Ann.Sec. 5702.

In view of these definitions and the mandate of Section 5703, it would appear that the act of eavesdropping on an extension telephone is violative of Section 5703. A panel of this Court has, however, decided otherwise. In Commonwealth v. Hammond, 308 Pa.Super. 139, 454 A.2d 60 (1982), the victim’s sister testified as to a telephone conversation between the victim and the defendant. The witness listened to the conversation on a telephone extension without the consent of the defendant or the victim. Id., 308 Pa.Super. at 142-143, 454 A.2d at 61. In upholding the admissibility of the witness’s testimony the Court stated:

At 18 Pa.C.S.A.Sec. 5702, an intercepting device is defined as

“(a)ny device or apparatus ... that can be used to intercept a wire or oral communication other than:
(1) any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a communication common carrier in the ordinary course of its business, or purchased by any person, and being used by the subscriber, user, or person in the ordinary course of its business ...” (Emphasis added)

This definition makes it clear that a telephone extension is not to be categorized as an intercepting device.

If a telephone is not an intercepting device under the present Act, it then follows that the use of the instrument in the manner employed by (the witness) does not constitute an interception.

Id,., 308 Pa.Super. at 144, 454 A.2d at 62 (emphasis added). Under the rule and logic of Hammond, the use of the telephone extension by Corporal Hoffmaster was not an “interception” in violation of the Act. Quite predictably, appellants ask us to overrule Hammond. This we cannot do as a panel of this Court cannot overrule a prior panel decision.

We are troubled, however, by the fact that this case, unlike Hammond, involves the use of a telephone extension by a police officer, albeit with the consent of one party, the victim. Surely, the “telephone extension” exception was not meant to be a loophole in the protections afforded by the Act, Section 5703. Nevertheless we are constrained to follow the provisions of our wiretap act and the decision in Hammond.

Appellants argue, however, that the conversation was heard contrary to the Act and draw our attention to Section 5704 which provides in part:

Sec. 5704. Exceptions to prohibition on interception and disclosure of communications
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communication; or (ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

18 Pa.Cons.Stat.Ann.See. 5704(2). It is not questioned that Corporal Hoffmaster was not a “party to the communication” pursuant to subsection 2(i). Further, it is clear that the officer failed to receive prior approval for an interception pursuant to subsection 2(ii).

Although on first impression it appears that the “telephone extension” exception is inconsistent with the provisions of Section 5704(2), we conclude that it is not. Section 5704(2) permits a law enforcement officer to make an interception under the circumstances stated therein. Since, pursuant to Hammond, the use of a telephone extension furnished and used in the ordinary course of business is not an interception within the meaning of the Act, Section 5704(2) has no application. If a police officer were to use another means to overhear a telephone conversation or to use an extension telephone which does not come within the definition of “Intercepting device,” Section 5702, then Section 5704(2) would apply.

In concluding that the conduct of the police officer in overhearing the conversation by extension telephone was proper in view of Hammond and was not proscribed by the Act, the evidence was properly admitted into evidence.

Judgments affirmed.

      . The trial court examined in detail the incidents at the prison giving rise to numerous charges against appellants. Appellants were acquitted, however, of those charges. We think it is necessary to review only the facts pertinent to the convictions at issue in this appeal.

      . Appellants’ claim was adequately preserved at trial and was raised in post-verdict motions.

      . Fontana was decided under the predecessor statute to Section 4952 which provided:
      (a) Offense defined. — A person commits an offense if, believing than an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or informant to;

        (1) testify or inform falsely;
      (2) withhold any testimony, information, document or thing except on advice of counsel;
      (3) elude legal process summoning him to testify or supply evidence; and
      (4) absent himself from any proceeding or investigation to which he has been legally summoned.
      (b) Grading. — The offense is a felony of the third degree; if the actor employs force, deception, threat or offer of pecuniary benefit. Otherwise it is a misdemeanor of the second degree.
      18 Pa.Cons.Stat.Ann.Sec. 4907, repealed by, 18 Pa.Cons.Stat.Ann.Sec. 4952. In our view, threatening conduct is not an element under either provision; it is simply too tenuous to presume the legislature intended to make such a substantial change merely by changing the operative word from “induce" to "intimidate."

      . Appellants’ issue was raised at trial and adequately preserved in a post-verdict motion for a new trial.

      . In order to appreciate the significance of appellants’ argument, it is necessary to examine the jury verdicts. Musser was found guilty of intimidation, a felony of the third degree given that the jury returned special verdicts of guilty on two special enhancement factors: the offer of a pecuniary or other benefit, 18 Pa.Cons.Stat.Ann.Sec. 4952(b)(2); and, the conduct was in furtherance of a conspiracy, 18 Pa.Cons.Stat.Sec. 4952(b)(3). Both Musser and Brachbill were found guilty of criminal conspiracy, a felony of the third degree. The jury was not instructed on the vicarious liability of a co-conspirator for crimes committed as the result of a conspiracy. Because both were convicted of conspiracy, a felony, and because the only felony charge brought against them was intimidation, appellants argue that if the evidence was insufficient to support the verdict on the intimidation charge, the conviction for conspiracy to intimidate must also fall.

      . The “telephone extension” exception is the subject of much discussion among the courts. See generally, J. Carr, The Law of Electronic Surveillance, Section 3.2(d)(1) (2d ed. 1986); Miller, "Permissible Surveillance Under State Communications Interception Statute by Person Other than State or Local Law Enforcement Officer or One Acting in Concert with Officer,” 24 A.L.R.4th 1208 (1986) and cases cited therein.