author: CERCONE, Judge:

text:
    652 A.2d 912
    Drucilla E. TAYLOR, Executrix of the Last Will and Testament of George R. Hixon, v. Lois E. VERNON, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1994.
    Filed Jan. 5, 1995.

      David K. Fonner, Somerset, for appellant.
    William R. Nalitz, Waynesburg, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the final decree entered in the Court of Common Pleas of Greene County, dated May 5, 1994, after the trial court ordered the defendant/appellant to reconvey certain property to the estate of her deceased father. We reverse.

The facts of this case are not in dispute. Decedent, George R. Hixon, had four children, including appellant, Lois Vernon and appellee, Drucilla Taylor. The decedent executed a will on November 9, 1989 which named Taylor as the sole residual beneficiary and executrix of the estate. The decedent specifically disavowed his three, other children, including appellant, Lois Vernon.

On March 25, 1992, the decedent executed a power of attorney naming Taylor as his attorney-in-fact. He revoked the power of attorney approximately one month later.

On May 5, 1992, the decedent requested his attorney, David Hook, to prepare a power of attorney appointing appellant as his attorney-in-fact. On that same date, he directed Hook to prepare a deed transferring the property he held in his name at R.D. # 1, Jefferson, Pennsylvania, to himself and appellant as joint tenants with right of survivorship. On May 26, 1992, the decedent executed the power of attorney which named appellant as the attorney-in-fact. The writing contains the following pertinent language:

KNOW ALL MEN BY THESE PRESENTS, that I, GEORGE R. HIXON, residing at R.D. #1, Jefferson, Pennsylvania, do hereby nominate, constitute, and appoint Lois E. Vernon, residing at R.D. # 1, Jefferson, Pennsylvania, my true and lawful attorney-in-fact, for me and in my name, place and stead, and for my use and benefit:
For me and in my name, to make, seal, and deliver, bargain, contract, agree for, purchase, receive, and take lands, tenements, hereditaments, and accept the possession of all lands, and all deeds and other assurances, in the law therefor, and to lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate lands, tenements, and hereditaments upon such terms and conditions and under such covenants as she shall think fit;
GIVING AND GRANTING unto my said attorney-in fact full power and authority to do and perform every act necessary, requisite, or proper to be done in and about the premises as fully as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney shall lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall not be affected by the disability of the principal subsequent to the execution thereof.

The decedent signed his name at the end of the document and had it notarized.

On approximately June 10 of the same year, the decedent’s health deteriorated and he was hospitalized. By June 18, Hook had drafted the deed to the R.D. # 1 property. Appellant signed the document for her father as grantor and as joint grantee pursuant to. the power of attorney, and also signed in her own name as joint grantee. The deed cited “no consideration” for the conveyance. Attorney Hooks testified at trial that the decedent directed him to draft a deed because appellant had agreed to care for him for the rest of his life. The decedent died on July 1, 1992. Because he had been hospitalized from the time of the conveyance until the time of his death, appellant never cared for him in his home at R.D. #1.

Taylor, in her capacity as executrix of her father’s estate, filed the underlying suit in equity on January 25,1993, seeking to set aside the conveyance to appellant. She argued that appellant had no authority to convey property as a gift. A non-jury trial was held on December 10, 1993. On February 17, 1994, the trial judge ordered appellant to convey the property to the decedent’s estate. Appellant filed post-verdict motions which the trial court denied, thereby finalizing the decree nisi. Specifically, the trial judge found that (1) appellant had no authority under the power of attorney to make gifts of property because no express power to make gifts was included in the document pursuant to 20 Pa.C.S.A. § 5602; (2) there was no consideration for the conveyance; and (3) the transaction was void because appellant maintained a confidential relationship with the decedent. The following timely appeal ensued.

Appellant raises five issues for our review:

1. Did the trial court err in holding that there was insufficient evidence to show valid consideration for the deed exchanged between Lois Vernon and the Appellee’s decedent, George R. Hixon?
2. Did the trial court err in finding that Lois Vernon did not have the authority under the Power of Attorney granted her by George R. Hixon to execute a deed in his behalf conveying his real estate to himself and Lois Vernon as joint tenants with right of survivorship?
3. Did the trial court err in finding that the transaction between George R. Hixon and Lois E. Vernon failed due to the confidential relationship between the two as father and daughter, even if there is a finding of valid consideration?
4. Did the trial court err in failing to give proper weight to the testimony of Mr. Hixon’s attorney, David Hook, Esquire, with regard to the fact that the deed from Mr. Hixon to Lois Vernon and himself as joint tenants with right of survivorship was drafted according to Mr. Hixon’s request and instructions?
5. Did the trial court err in sustaining objections to testimony offered at trial by Ensil Miller and Randy Hixon, which testimony would have presented further evidence of consideration for the deed and Mr. Hixon’s intentions in this transaction with Lois E. Vernon?

We shall consider appellant’s second claim, concerning whether she had the power to make gifts, first. Should we decide that the power of attorney which the decedent granted to appellant authorized her to make gifts of property, the question of whether the transfer was made for valid consideration would be rendered moot.

Appellant argues that under the recent Pennsylvania Supreme Court decision in Estate of Reifsneider, 531 Pa. 19, 610 A.2d 958 (1992), the power of attorney need not contain express or similar language, found in 20 Pa.C.S.A. § 5602, conferring the power to make gifts so long as the principal — in this case George Hixon — intended the attorney-in-fact to have that power. Section 5602 of the Probate, Estate and Fiduciaries Code provides:

§ 5602. Form of Power of Attorney
(a) Specification of powers. — A principal may, by inclusion of the language quoted in any of the following paragraphs or by inclusion of other language showing a similar intent on the part of the principal, empower his attorney-in-fact to do any or all of the following, each of which is defined in section 5603 (relating to implementation of power of attorney):
* * # * * *
(1) Either:
(i) “to make gifts”; or
(ii) “to make limited gifts.”

20 Pa.C.S.A. § 5602. In Estate of Reifsneider, the decedent’s wife gave her daughters from a previous marriage power of attorney to conduct her affairs. When the decedent died, the daughters, acting pursuant to the power of attorney, filed a notice of spousal election to take against the decedent’s will, and sought to approve the filing under 20 Pa.C.S.A. § 5603(d). The Estate of the decedent contested the election arguing that the power of attorney did not authorize the filing of an election against the will in express or similar language as required under section 5602 of the Probate, Estates and Fiduciaries Code. The trial court held that because the power to file an election against the estate was not expressly included in the power of attorney in accordance with section 5602, the daughters were not authorized to make the election. This Court affirmed and the Supreme Court granted a petition for allowance of appeal.

An overwhelming majority of the Supreme Court reversed the trial court, holding that the General Assembly’s codification of power of attorney principles of law was not mandatory and did not supersede well-established common law principles. Relying on the provisions of section 5602(a), that any of the powers may be delegated “by the inclusion of the language quoted ... or by inclusion of other language showing a similar intent,” the Supreme Court reasoned:

[W]e do not think it necessary for the legislature to alter the law when it chooses to enter a field theretofore occupied by the common law. The reduction to statutory law of precepts already established in case law is in itself a legitimate legislative purpose. Second, the statute can be given meaningful application without resorting to the restrictive interpretation of the court below. Simply put, general language can “show a similar intent on the part of the principal” to empower the attorney-in-fact to do one or more of the listed things if the general language, according to its common usage, would be understood as encompassing such power or powers. Often, the very purpose of using broad language is to avoid the limiting effects of specific language to address all aspects of a class of activity without the need to anticipate and identify each individually. And when an attorney-in-fact performs one of the activities listed in § 5602(a) under authority of general language, section 5603 provides the definitions and limitations that circumscribe his activity.

Estate of Reifsneider, 531 Pa. at 26, 610 A.2d at 962 (emphasis in original).

Because the power of attorney from Mrs. Reifsneider to her daughters included general language authorizing the daughters to commence any legal proceedings touching any matter in which she might be involved in any way as they in their sole discretion saw fit, the court found that Mrs. Reifsneider intended to authorize the attorneys-in-fact to make an election to take against her husband’s will. Id. at 26-27, 610 A.2d at 962.

More recently the Supreme Court, in a per curiam decision which relied upon the decision in Reifsneider, reversed this Court’s memorandum decision in Brenner v. Manmiller, 389 Pa.Super. 644, 560 A.2d 822 (1989) (No. 2767 Philadelphia 1987, filed March 3, 1989), rev’d, 531 Pa. 209, 611 A.2d 1199 (1992). In Brenner, the decedent, who had been hospitalized, moved in with his grandson and his grandson’s wife, Brenda Manmiller. He subsequently executed a power of attorney appointing Mrs. Manmiller as his attorney-in-fact. The power of attorney provided, in pertinent part:

To make disbursements of monies belonging to me, in such a manner, at such times and for such purposes as my said attorney may, in her sole unrestricted discretion and judgment, deem best for my benefit and welfare and further for the maintenance, storage, upkeep and repair of any real or personal property owned by me.
:Jc :{? sj:
In addition to all of the powers of my attorney hereinbefore stated, I empower my attorney to exercise all of the powers including the broadest set forth in section 5602(a) of the Probate, Estates and Fiduciaries Code, as amended.

Pursuant to the power of attorney, Mrs. Manmiller began to conduct the decedent’s affairs. At one point, she closed one of the decedent’s savings accounts and transferred the proceeds totalling $32,310.47 into her personal account. Upon the death of the decedent, certain beneficiaries filed an action in equity to recoup the amount which Mrs. Manmiller had transferred into her account.

A panel of this Court found that powers of attorney are required to contain the express language of section 5602 or language similar to the wording in section 5602, in order to vest the authority to make gifts. The panel deemed the power of attorney executed to be insufficient to vest the authority to makes gifts. Op. at 914-915. Without explanation, the Supreme Court reversed, citing only to its decision in Estate of Reifsneider. The only conclusion we can garner from the Supreme Court’s reversal is that the power of attorney sufficiently authorized Mrs. Manmiller to make gifts.

In the case at hand, the trial judge ruled that the power of attorney did not authorize Lois Vernon to make a gift of property to herself. He reasoned that appellant engaged in self-dealing by conveying the parcel of land to her father and herself as joint tenants. He also found that the language of the instant power of attorney only allowed appellant to act for Mr. Hixon’s use and benefit. He concluded that the transaction did not result in any benefit to Mr. Hixon. In light of the Supreme Court’s reversal in Brenner v. Mamniller, however, we cannot agree. Arguably, Mrs. Manmiller, too, engaged in self-dealing by transferring to herself a substantial sum of money from her principal’s savings account. Nonetheless, the Supreme Court found her actions were proper under the power of attorney executed. We also note that power of attorney in Brenner similarly required the attorney-in-fact to act for the principal’s “benefit and welfare.” The Supreme Court seemingly found the recitation of this language to be of no import in determining whether the power to make gifts exists. Therefore, the inquiry into whether a power of attorney confers a benefit on the principal without conferring a benefit on the attorney-in fact is irrelevant. Rather, this case turns upon whether the principal intended to empower the attorney-in-fact to make the gift at issue. Estate of Reifsneider, supra.

The power of attorney which Hixon executed authorized appellant to “convey ... lands, tenements, and hereditaments upon such terms and conditions and under such covenants as she shall think fit.” The document does not limit the types of conveyances or the purposes for which conveyances can be made. Instead, the document allows the attorney-in-fact to makes conveyances as she sees fit. Further, the concluding paragraph of the power of attorney accords the attorney-in fact “full power and authority to do and perform every act necessary, requisite, or proper to be done in and about the premises as fully as [Hixon] might or could do if personally present.” Although the power of attorney utilizes general language, we find that it sufficiently .evidences the principal’s intent to allow appellant to make gifts consisting of property conveyances. We arrive at this conclusion because the power authorized her to use her discretion in deciding how to conduct her father’s affairs. Having determined that Mrs. Vernon had the authority to make gifts under the power of attorney, we need not consider her other claims of error. Appellant had full authority to gift the property to herself and the decedent under the terms of the power of attorney.

Decree nisi is reversed. Case is remanded for entry of a final decree in favor of appellant. Jurisdiction is relinquished.

      . In her brief, appellant characterizes the final order in this case as the order which disposed of her post-trial motions. Generally in an action at equity, an appeal may only be taken from entry of the decree nisi entered as a final decree. See Pa.R.Civ.P. Rule 227.4(l)(c). The trial judge in the instant case made the following order:
      AND NOW, this 7th day qf March, 1994, it is ORDERED and DIRECTED that the Court’s Order of February 17, 1994, is in the nature of a decree nisi. The Defendant having filed exceptions to that Order, it is not a final, appealable order until such time as this Court enters an appropriate order disposing of those exceptions.
      Order of March 7, 1994. Accordingly, we shall deem this appeal from the entry of the decree nisi, which was final on May 5, 1994, despite appellant’s characterization of the appeal as one from the order denying post-trial motions.

      . Taylor's status as sole beneficiary was contingent on the decedent's wife having predeceased him. Mrs. Hixon did, in fact, die before Mr. Hixon.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    652 A.2d 916
    CLAIRTON CORPORATION, Appellant v. CHICAGO TITLE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1994.
    Filed Jan. 3, 1995.

      John M. Studeny, Pittsburgh, for appellant.
    Edward B. Friedman, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Clairton Corporation appeals from the judgment entered in the Court of Common Pleas of Allegheny County on April 6, 1994, after a nonjury trial resulted in, inter alia, the rejection of a claim premised upon a title insurance policy which had been issued by Chicago Title Insurance Company (“Chicago Title”). For the reasons set forth below, we affirm.

The facts and procedural history of this case may be summarized as follows. On October 25, 1956, John S. Roth and his wife, Ruth, agreed to lease Elmer J. Jonnet, Jr., nearly two and one-half acres of land along the William Penn Highway in the Borough of Monroeville (“the property”). The lease, which eventually was recorded in the office of the Allegheny County Recorder of Deeds, encompassed a term of twenty years. At Jonnet’s option, it could be renewed for two additional twenty-year periods. Furthermore, while the lease granted Jonnet the right to erect buildings and other structures upon the property, it provided that ownership of all such improvements, along with the fixtures contained therein, would vest in the Roths at the time of termination.

In the years that followed the execution of the lease, the Roths died, and Jonnet, in conjunction with others, erected a ten-story office building on the property. The interest of the Roths passed to Dorothy LaBossiere, the successor trustee under the will of Mr. Roth. In her capacity as trustee, LaBossiere instituted several actions against Jonnet.

On May 28, 1981, while the lease was still in effect, Joe Noris transferred a $332,923 judgment against Jonnet from San Diego, California to Allegheny County, where it was indexed and docketed in the office of the Prothonotary of Allegheny County at number GD81-14312. Eight months later, on January 27, 1982, LaBossiere agreed to settle her actions against Jonnet by selling him the property for $510,000 secured by a purchase money mortgage note and mortgage. On February 1, 1982, after Jonnet obtained equitable title to the property through the settlement agreement, Noris filed a praecipe for the reissuance of a writ of execution against him. The writ subsequently was reissued and service effectuated.

On February 26, 1982, Jonnet transferred his rights under the settlement agreement to appellant That same day, with Jonnet acting as surety on its purchase money mortgage, appellant bought the property. In connection with that transaction, LaBossiere assigned Jonnet’s lease to appellant. Appellant and Jonnet then terminated it.

One week after the purchase, Chicago Title issued appellant a title insurance policy in the amount of $510,000. Although that policy specifically excluded from coverage matters relating to the assignment and termination of Jonnet’s lease, it contained no exception for the Noris judgment. On February 21, 1984, upon the praecipe of Noris, the writ of execution against Jonnet was reissued. On that same day, naming both Jonnet and appellant, Noris.filed a lis pendens against the property.

In late 1985, Noris instituted equity proceedings against Jonnet and appellant by filing a praecipe for a writ of summons. On October 25, 1985, following the effectuation of service, Noris filed a complaint, which asserted that Jonnet had formed appellant on February 24, 1982, for the purpose of acquiring the property and that both the conveyance of equitable title and the termination of the lease amounted to efforts to defraud Jonnet’s creditors. Consequently, Noris requested that the trial court, inter alia, declare Jonnet’s conveyance of his equitable title fraudulent, pierce appellant’s corporate veil, and impress a trust upon the property.

In April 1988, shortly before the scheduled trial, Noris’s counsel informed appellant that he believed that the 1981 judgment lien against Jonnet had attached to Jonnet’s equitable interest in the property upon the reissuance of the writ of execution in 1982. After investigating that claim, counsel for appellant informed Chicago Title of the claim’s existence and requested Chicago Title to indicate whether it would provide appellant with a defense. On May 13, 1988, three days before Chicago Title received that notification, appellant and Noris entered into a stipulation which settled the equity action. In that stipulation, neither party admitted the efficacy of the Noris judgment lien against the property. However, in an effort to induce Noris to forebear from executing upon it, appellant agreed to pay him $295,000, a sum substantially less than the actual amount of the judgment. Chicago Title subsequently informed appellant that the payment to Noris was not covered under the title insurance policy and thus, declined to provide reimbursement.

On May 16, 1990, appellant instituted proceedings against Chicago Title by writ of summons. Appellant subsequently filed a complaint, which requested the reimbursement of losses resulting from the payment to Noris. After Chicago Title filed extensive preliminary objections to the complaint, appellant amended it. Although Chicago Title again responded with preliminary objections, they proved unsuccessful. Appellant eventually amended the complaint a second time to demand damages of $337,575 plus interest. On April 29, 1991, Chicago Title filed an answer and new matter to the amended complaint, which denied liability and raised numerous defenses. The action then proceeded toward trial.

On May 10, 1993, the trial court found in favor of Chicago Title on appellant’s complaint and dismissed the various claims raised by Chicago Title in its answer and new matter. Shortly thereafter, appellant filed a motion for post-trial relief. In that motion, appellant alleged, among other things, that the trial court erred in failing to find that a judgment lien had attached to Jonnet’s interests under both the ground lease and the LaBossiere settlement agreement and that it remained effective on the date of the Noris stipulation. Chicago Title subsequently filed a motion requesting permission to move for post-trial relief nunc pro tunc. Attached to Chicago Title’s request was a document which set forth the issues that it wished to raise. On March 29, 1994, without expressly ruling upon Chicago Title’s nunc pro tunc request, the trial court denied both parties post-trial relief. Judgment was entered eight days later upon the praecipe of appellant. This timely appeal followed.

Raising a purely legal claim, appellant asserts that the trial court’s verdict in favor of Chicago Title must fail since the property was encumbered by a lien at the time of the Noris stipulation. Specifically, appellant contends that the Noris judgment resulted in a lien on the property in two distinct ways. First, appellant alleges that a lien attached to Jonnet’s leasehold. Second, appellant avers that a lien attached to Jonnet’s equitable interest in the property following the reissuance of the writ of execution in 1982. Appellant argues that the lien on Jonnet’s equitable interest became effective against the legal title when Jonnet assigned that interest to appellant, and appellant purchased the property from LaBossiere.

Preliminarily, we note:

Judgment liens are a product of centuries of statutes which authorize a judgment creditor to seize and sell the land of debtors at a judicial sale to satisfy their debts out of the proceeds of the sale. The judgment represents a binding judicial determination of the rights and duties between the parties, and establishes their debtor-creditor relationship for all the world to notice when the judgment is recorded in a Prothonotary’s Office. When entered of record, the judgment also operates as a lien upon all real property of the debtor in that county. 42 Pa.C.S. Sections 4303(a)(b), 1722(b) and 2737(3).

In re Upset Sale, 505 Pa. 327, 334, 479 A.2d 940, 943 (1984). Moreover, the lien affects even the equitable and beneficial interests of the debtor. Id.; see also Parnes v. Hibbs, 191 Pa.Super. 56, 155 A.2d 426 (1959). “The existence of a judgment lien prevents a debtor from encumbering or conveying any property he might own in such a way as to divest the effect of the judgment, while also preventing later lienholders from satisfying their debt without first paying the earlier lien.” In re Upset Sale, supra, 505 Pa. at 334-35, 479 A.2d at 943-44. Finally, we note that a judgment lien against the equitable interest of a debtor will also affect his legal interest when he obtains legal title. Richter v. Selin, 8 Serg. & Rawle 425 (1822). Keeping these principles in mind, we address the components of appellant’s claim.

Appellant alleges that a lien attached to Jonnet’s interest under the lease when Noris transferred his judgment to Allegheny County in 1981. We disagree. It long has been clear that a lease for years constitutes an item of personalty rather than an estate in realty and thus, is not subject to a judgment lien. See Shaeffer v. Baeringer, 346 Pa. 32, 29 A.2d 697 (1943).

Appellant attempts to overcome our conclusion by relying upon Ely v. Beaumont, 5 Serg. & Rawle 124 (1819). However, our review of Ely reveals that it provides no support for appellant’s position. In that case, the lessee possessed authority under the lease to erect structures upon the land, the right to which he would retain. The Supreme Court of Pennsylvania determined that the lessee’s exercise of his privilege resulted in the acquisition of an interest in the premises other than the mere chattel interest of a leasehold. The Court found that a lien properly could attach to that interest.

In the present case, the lease granted Jonnet the right to erect buildings and other structures upon the property. However, it did not permit Jonnet to retain any interest in such a structure beyond the term of the leasehold. Rather, the lease specifically provided that legal title to all erected structures, along with the fixtures contained therein, would vest in the lessors at the termination of the lease. Thus, even though Jonnet erected a structure on the property, he, unlike the lessee in Ely, possessed no interest greater than a mere leasehold.

We now turn to the second aspect of appellant’s claim. As mentioned previously, a lien may attach to an equitable interest in property, and it cannot be divested by a conveyance by the debtor. Moreover, a lien on an equitable interest in property attaches to legal title upon a purchase of the property by the equitable titleholder. Consequently, the determination of whether a lien attached to Jonnet’s equitable interest in the property is of critical importance.

In this Commonwealth, when legal title has not been conveyed, the equitable interest of a purchaser under an installment land contract is subject to a lien to the extent of the purchase money actually paid. See Wilson v. Stoxe, 10 Watts 434 (1840); Purviance v. Lemon, 16 Serg. & Rawle 292 (1827); Auwerter v. Mathiot, 9 Serg. & Rawle 397 (1823). In the present case, Jonnet unquestionably possessed an equitable interest in the property under an installment land contract. However, the record demonstrates that Jonnet never attempted to exercise his rights under that contract, but rather assigned them to appellant. Thus, Jonnet never paid any purchase money to LaBossiere and no lien attached to his equitable interest. As no lien attached to Jonnet’s interest, none passed with its assignment to appellant or impacted upon the legal title when appellant completed the purchase from LaBossiere.

Appellant contends that the present case, unlike Wilson, Purviance', and Lemon, involved both a closing and the resulting merger of the legal and equitable titles. Consequently, it argues that those cases are distinguishable. We disagree. While the present case involved a completed purchase, the party which completed that purchase was not the original judgment-debtor vendee, Jonnet. Accordingly, since the judgment lien initially could attach only to the interest of the judgment-debtor, appellant’s contention provides no basis for distinguishing the cases in question.

Appellant also contends that Jonnet satisfied the purchase money requirement by agreeing to the termination of his favorable lease. Even if we assumed that the purchase money requirement could be satisfied by consideration other than the payment of money, appellant’s claim would entitle it to no relief. Our review of the record reveals no indication that Jonnet agreed to relinquish his lease in connection with the LaBossiere settlement agreement. Indeed, the settlement agreement contains no mention of that subject. Furthermore, the record establishes that Jonnet agreed to the termination after appellant completed the purchase and LaBossiere assigned the lease to it. Therefore, the lease termination could not have constituted consideration relating to the settlement agreement and will not support the attachment of a lien to Jonnet’s equitable interest.

We now address appellant’s assertion that the trial court properly dismissed Chicago Title’s affirmative defenses. Specifically, appellant contends that since the evidence presented at trial was conflicting, the trial court’s decision in that matter should be affirmed. See Appellant’s brief at 20.

It long has been clear that unless the right of appeal is enlarged by statute, only parties aggrieved from appealable orders may appeal therefrom. See Pa.R.A.P. 501. Moreover, the phrase “appealable order” includes within its scope judgments entered upon the praecipe of a party. See Pa.R.A.P. 301. Finally, we note:

To be “aggrieved” a party must have been adversely affected by the decision from which the appeal is ... taken. In re Appeal of Estate of Achey, 86 Pa.Cmwlth. 385, 392-393, 484 A.2d 874, 878 (1984), aff'd., 509 Pa. 163, 501 A.2d 249 (1985) (per curiam); In re Controller’s Report, Year 1972, of Lackawanna County, 37 Pa.Cmwlth. 580, 589, 390 A.2d 1368, 1372 (1978). See also: In the Matter of Harrison Square, Inc., 263 Pa.Super. 324, 327, 397 A.2d 1230, 1231-1232 (1979); Prior v. Borough of Eddystone, 30 Pa.Cmwlth. 536, 538 n. 1, 374 A.2d 981, 982 n. 1 (1977). Generally, a prevailing party is not “aggrieved,” and, therefore does not have standing to appeal an order which has been entered in his or her favor. See: In re Appeal of Estate of Achey, supra, 86 Pa.Cmwlth. at 394, 484 A.2d at 879; Burchanowski v. County of Lycoming, 32 Pa.Cmwlth. 207, 210, 378 A.2d 1025, 1027 (1977).

Green by Green v. SEPTA, 380 Pa.Super. 268, 271, 551 A.2d 578, 579 (1988).

Instantly, appellant has appealed from the judgment entered upon its praecipe following the conclusion of a bench trial and the disposition of post-verdict motions. Thus, the present appeal unquestionably was taken from an appealable order. However, as the claim raised by appellant concerns a matter which was decided in its favor by the trial court, appellant was not aggrieved by the portion of the verdict in question and has no standing to assert any issue regarding its propriety. Thus, we need not address this claim further.

Judgment affirmed.

      . Appellant asserts that Chicago Title “appeared to admit at trial that there was a lien against” Jonnet’s interest under the lease. See Appellant’s brief at 17. However, appellant points to no specific portion of the record where such an implied admission may be found. Moreover, our thorough examination of the record reveals no indication that Chicago Title ever admitted that any lien actually attached to Jonnet's leasehold interest. At most, we have been able to discover that Chicago Title presented evidence indicating that any lien which might have attached to the leasehold terminated with it.

      . Even if we assumed that a lien had attached to either Jonnet’s leasehold or his equitable interest, it would not have been in effect in 1988 when the Noris stipulation was signed. When a party acquires property bound by a judgment lien, thereby becoming a terre tenant, the judgment creditor must file a writ of revival within five years of the date on which the original judgment was indexed to enforce the lien against him. See Ricci v. Cuisine Management Services, Inc., 423 Pa.Super. 371, 621 A.2d 163 (1993). Moreover, in order for revival to be effective against the land of a terre tenant, the terre tenant must be made a party to the proceedings. Id.

      In the present case, neither party disputes that the 1981 judgment against Jonnet was revived by the reissuance of a writ of execution against him on February 1, 1982. Rather, the parties’ arguments on the matter concern whether the judgment later was revived within the requisite five-year period so that it was in effect on the date of the Noris stipulation. Appellant contends that the reissuance of the writ of execution in 1984 effected that revival. We disagree. Our review of the record reveals that the 1984 revival proceedings were commenced solely against Jonnet. As appellant, the terre tenant, was not joined as a party to the proceedings, that revival was inadequate to bind the property. Accordingly, we find that any lien against the property would have expired in 1987, prior to the Noris stipulation.
      Our conclusion in this regard is unaffected by the fact that the record demonstrates that Noris filed a lis pendens against the property in 1984 which named both appellant and Jonnet. A lis pendens is the jurisdiction, power, or control which a court acquires over property involved in an action until a final judgment is rendered with respect to it. See Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146, 554 A.2d 989 (1989). A lis pendens merely notifies third parties that any interest which may be acquired in the property pending the litigation is subject to the result of the action. Id. Listing property as lis pendens is inadequate to create a lien and has no application as between the parties to the action themselves. See Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955). Accordingly, it cannot be utilized to revive a judgment lien.


author: CIRILLO, Judge:

text:
    652 A.2d 922
    COMMONWEALTH of Pennsylvania, v. Michael A. STEPP, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1994.
    Filed Jan. 6, 1995.
    John P. Boileau, Lock Haven, for appellant.

      Merritt E. McKnight, Dist. Atty., Lock Haven, for Com., appellee.
    Before ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
   CIRILLO, Judge:

Michael A. Stepp appeals from a judgment of sentence entered in the Court of Common Pleas of Clinton County. We affirm.

On the morning of January 8, 1991, Dale Heck left his mobile home and locked the doors. When Mr. Heck returned home between 12:30 P.M. and 1:00 P.M. that afternoon, he noticed that the front door was open and that the front door knob had been pried off. Mr. Heck proceeded to reach inside the doorway of the mobile home to retrieve his shotgun. He then entered his home, which was already occupied by Defendant Stepp. At that moment, Mr. Heck heard the sound of breaking glass from the rear of the mobile home as Stepp attempted to exit the structure. Stepp was chased and captured by Mr. Heck and later arrested by the police.

Stepp was convicted in a jury trial of burglary, criminal trespass, and criminal attempt (theft), after which he filed post-verdict motions. Following the denial of post-verdict motions, Stepp was sentenced by the Honorable Carson V. Brown. Judge Brown, using an offense gravity score of seven and a prior record score of six, sentenced Stepp for the burglary conviction within the maximum level of the standard range to a term of sixty-four to one hundred twenty-eight months imprisonment. On appeal, Stepp raises one issue for our review:

Whether the proper offense gravity score for the offense of burglary (18 Pa.C.S.A. § 3502) should be a 6 as opposed to a 7, where the structure burglarized is adapted for overnight accommodation and where there is no person present at the time of entry although a person does arrive after the Defendant entered the structure?

Under 42 Pa.C.S.A. § 9721 (204 Pa.Code § 303.8(d)), the Pennsylvania Commission on Sentencing promulgated sentencing guidelines which subcategorize the crime of burglary and its offense gravity scores as follows:

18 Pa. Statutory Offense C.S.A. § Offense Title Classification Gravity Score
3502 Burglary of a structure FI 7 adapted for overnight accommodation in which at the time of the offense any person is present.
3502 Burglary of a structure FI 6 adapted for overnight accommodation in which at the time of the offense no person is present.

42 Pa.C.S.A. § 9721 (204 Pa.Code § 303.8(d)) (emphasis added).

An offense gravity score of seven is used for the burglary of a structure in which “at the time of the offense any person is present” within the structure. In this case, no one was present at the moment Stepp entered the structure and the technical offense of burglary took place. Stepp argues that an gravity offense score of six should have been used since “at the time of the offense no person [was] present.”

In this case, however, the homeowner did return to his residence while the defendant was still present inside the structure. In our judgment, a technical application of the definition of burglary misses the purpose and spirit which underlie the different gravity offense scores. In Commonwealth v. Dickison, 334 Pa.Super. 549, 483 A.2d 874 (1984), this' court reasoned:

The different gravity scores for burglaries committed of structures where persons are present and structures where persons are not present is premised upon the likelihood of greater mischief in the former situation. If a burglary is committed while the structure is occupied, the potential for additional and more serious offenses is always present. Even if no further crime is committed, the presence of the victims and the potential for harm to them suggest an offense possessing gravity greater than when no person is present.

Dickison, 334 Pa.Super. at 552-53, 483 A.2d at 875. These concerns were reiterated by this court in Commonwealth v. Jackson, 401 Pa.Super. 426, 585 A.2d 533 (1991).

In Jackson, we held that a porch attached to a residential dwelling is part of the “structure” for purposes of determining the offense gravity score for a burglary sentence. Jackson, 401 Pa.Super. at 430, 585 A.2d at 535. In that case, the victim was seated on her back porch while the defendant burglarized her home. The victim was unaware of the crime until the police returned to the scene and informed her that they witnessed the defendant exit the front door of her house. We held that, even though the victim was unaware of the defendant’s presence in her home, this was a case where the likelihood of greater mischief was present and that the trial court correctly used an offense gravity score of seven when it applied the sentencing guidelines. We stated:

While the victim was sitting on the back porch of her home appellant entered the front. We would not hear appellant complain if the victim was in an upstairs bedroom while the burglary took place even if the victim did not encounter him. While in this case she was unaware of appellant in her home, the likelihood that she would hear a noise and investigate was quite substantial. Likewise, the possibility that appellant would be startled by a noise at the front of the house and exit the back was present. The possibility of the latter happening poses an even greater threat here than in the situation where the victim was on an upper floor of the dwelling.

Id. at 429-30, 585 A.2d at 535.

The same rationale which is applied in Dickison and Jackson concerning “the likelihood of greater mischief’ is applicable to a case such as the present one where the victim returns home only to find the sanctity and security of his home shattered by an intruder. The danger of harm to a person is the same whether that person confronts the burglar upon reentry into his home or whether he comes downstairs and finds the burglar in his living room. While it may be true that some burglars are more “professional” than others and plan their criminal activity so that the occupants are most likely absent when the burglar puts his plan into motion, many burglars simply choose to burglarize a structure which appears unoccupied. In either situation, it does not advance the interests of justice to “reward” the burglar with a lower offense gravity score simply because he was lucky at the moment he entered the then unoccupied structure. A potentially violent encounter exists whenever a person discovers an intruder inside his home.

For these reasons, we hold that, under 42 Pa.C.S.A. § 9721 (204 Pa.Code § 303.8(d)), burglary of a structure adapted for overnight accommodation “in which at the time of the offense any person is present” includes burglaries where someone enters the structure while the perpetrator is still inside the structure. This is the proper approach as “the likelihood for greater mischief' and violence is equally present both when a person returns to their residence and discovers an intrúder and when a person already within the home discovers an intruder.

This approach is consistent with the Sentencing Guidelines. The 1988 commentary by the Commission on Sentencing provides in part:

The burglary subcategories were designed to differentiate crimes with different potential for injury and impact on the life of the victim. Burglaries ‘of a structure adapted for overnight accommodation’ include homes, hotels, motels, camp structures, house trailers, etc. ... Burglaries ‘in which at the time of the offense any person is present’ include burglaries where the defendant did not know when he entered the structure that someone was present, and burglaries where someone such as a returning resident or a policeman enters the structure when the defendant is still inside.

Pa.C.Sent.3d p. 66 (August 1, 1988) (emphasis added).

Judgment of sentence affirmed.

      . Although Stepp’s trial counsel filed a Motion to Modify Sentence, he failed to challenge the offense gravity score. The motion was denied. Stepp’s trial counsel then filed an appeal to this court on October 3, 1992, but again did not challenge the offense gravity score calculation/determination. This court affirmed the judgment of the trial court. Commonwealth v. Stepp, 430 Pa.Super. 651, 630 A.2d 465 (1993). Stepp then filed a Petition for Allocatur to the Pennsylvania Supreme Court, which was denied.

        On January 24, 1994, Stepp filed a pro se petition for Post-Conviction Collateral Relief in which he alleged ineffective assistance of counsel and requested that the court appoint him an attorney. After receiving leave to file an amended petition, Stepp's court-appointed attorney filed an Amended Petition for Post-Conviction Collateral Relief. In that petition, Stepp claimed that his trial counsel was ineffective for failing to challenge the judgment of sentence by arguing that the burglary sentence was based on an incorrect offense gravity score of seven, as opposed to six.
      Following a hearing, the Honorable J. Michael Williamson found that Stepp’s trial counsel was ineffective and granted Stepp the right to file a direct appeal nunc pro tunc to this court limited to a challenge to the legality of the sentence. This appeal followed.

      . This court has recently held: ”[W]here the issue on appeal is the improper calculation of a prior record score or an offense gravity score, a direct appeal lies because these are legal questions.... Therefore, we will address the merits of Appellant’s sentencing issues.” Commonwealth v. Johnson, 421 Pa.Super. 433, 440, 618 A.2d 415, 419 (1992). Consequently, we will address the merits of Stepp's challenge to the legality of his sentence.

      . Burglary is defined in 18 Pa.C.S.A. § 3502 of the Crimes Code as follows:
      (a) Offense defined. — A person is guilty of burglaiy if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
      (emphasis added).

      . This case is a perfect example of the violent encounter which can occur upon the return of the homeowner. The defendant in this case was able to leave the structure through the rear of the mobile home, and no one was injured. Although Mr. Heck successfully captured the defendant and turned him over to police once they arrived at the scene, the situation could have very easily resulted in the loss of someone's life.

      . Our legislature amended 18 Pa.C.S.A. § 3502 on December 19, 1990. The amendment provides:
      (c) Grading.—

        (1) Except as provided in paragraph (2), burglary is a felony of the first degree.
      (2) If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry, burglary is a felony of the second degree.
      As amended 1990, Dec. 19, P.L. 1196, No. 201, § 1, effective July 1, 1991.
      This amendment, according to its language, clearly applies only to structures "not adapted for overnight accommodation.” (emphasis added). Accordingly, the qualifying language “present at the time of entry” only applies to that category of structures not adapted for overnight accommodation. It appears that the legislature recognized that the security which is associated with one’s home is not similarly associated with structures not adapted for overnight accommodation, i.e., a department store. Indeed, if the legislature chose to place the same limiting language on those structures which are adapted for overnight accommodation, it could have easily done so.


author: HOFFMAN, Judge:

text:
    652 A.2d 925
    COMMONWEALTH of Pennsylvania v. Martin J. RAGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1994.
    Filed Jan. 20, 1995.

      Kim W. Riester, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before HUDOCK, SAYLOR and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence entered September 27, 1993 for driving under the influence of alcohol, pursuant to 75 Pa.C.S. § 3731(a)(1) and speeding. Appellant, Martin J. Ragan, presents the following issues for our review:

1. Whether appellant was denied a fair trial when the learned lower court failed to exclude testimony relating to the results of “performance” or “field sobriety” tests because:
A. The court’s ruling that the police officer was offering lay, as opposed to expert testimony was erroneous.
B. The test results were unreliable and have not gained requisite acceptance in the scientific community.
C. The test were not performed by qualified, trained personnel.
D. The tests were not administered properly.
E. The tests were compelled in violation of the appellant’s constitutional rights.
2. The conviction for driving under the influence of alcohol must be reversed because the explained odor of alcohol due to the ingestion of 45% alcohol contained in a mouth deodorizer, coupled with a mere speeding violation without any evidence of unsafe or erratic driving, and perceived inadequacies in the performance or field sobriety tests is insufficient, as a matter of law.

Appellant’s Brief at 5. For the reasons set forth below, we affirm.

On March 1, 1990, at approximately 1:14 a.m., Sergeant Robert Williams, of the Upper St. Clair Police Department, observed appellant driving in an erratic manner on Gilkeson Road in Mt. Lebanon Township at a high rate of speed. The sergeant followed appellant, in an unmarked police car, for approximately five miles, during which time appellant accelerated from 45 to 66 miles an hour in the 40 mile an hour zone. Sergeant Williams thereafter, activated the police car lights in an attempt to pull appellant over. When appellant did not stop, Sergeant Williams radioed for assistance. With the help of an officer in a marked police car, appellant was eventually stopped, when the two cars formed a roadblock. Upon approaching appellant, the officers detected the odor of alcohol on appellant’s breath. Appellant was asked to exit his car and the officers administered three field sobriety tests: “one leg stand,” “finger to nose” and “walking in a straight line”. At the conclusion of the field sobriety tests, appellant was taken to the police station, where a breathalyzer test was conducted. Appellant was subsequently arrested and charged with driving under the influence of alcohol to a degree which rendered him incapable of safe driving; driving under the influence of alcohol 0.1%; and speeding.

On June 27, 1993, appellant filed omnibus pre-trial motions seeking, in part, to suppress evidence obtained from the field sobriety tests and the breathalyzer. The Commonwealth agreed not to present evidence of the breathalyzer results and appellant’s remaining pre-trial motions were denied. Following a bench trial on March 8, 1993, appellant was convicted of driving under the influence of alcohol to a degree which rendered him incapable of safe driving and speeding. Appellant was sentenced to thirty (30) days to twelve (12) months imprisonment, ordered to pay the costs of prosecution and fines totalling five hundred and thirty-five dollars ($535.00) and required to attend a driving school. Post-verdict motions were filed and denied. This timely appeal followed.

First, appellant contends that the trial court erred in admitting the results of the field sobriety tests as the Commonwealth had failed to demonstrate that the tests had attained scientific reliability for proving intoxication. In supporting his argument, appellant refers this court to its recent decisions in Apollo and Miller. See Commonwealth v. Apollo, 412 Pa.Super. 453, 603 A.2d 1023 (1992), appeal denied 531 Pa. 650, 613 A.2d 556 (1992); Commonwealth v. Miller, 367 Pa.Super. 359, 532 A.2d 1186 (1987).

In Apollo, this court held that the results of the “horizontal gaze nystagmus” (HGN) field sobriety test were inadmissible to prove intoxication. Apollo, 412 Pa.Super. 453, 603 A.2d 1023. In excluding the results of the HGN test, the Apollo court accepted the position previously enunciated in Miller, that the results of the HGN test constituted scientific evidence. The court stated that the results of the HGN test were based on the theory that the consumption of alcohol results in a type of gaze nystagmus detectable by the HGN test. Id. See also Miller, 367 Pa.Super. 359, 532 A.2d 1186. As the Commonwealth had failed to demonstrate that the underlying theory of the HGN test had attained the general acceptance of scientists knowledgeable in the area of intoxication, the results of the HGN test were held inadmissible. Apollo, 412 Pa.Super. 453, 603 A.2d 1023 (1992). See also Miller, 367 Pa.Super. 359, 532 A.2d 1186 (the admissibility of scientific evidence is contingent upon a demonstration that the evidence has attained the general acceptance of its validity by scientists active in the field).

Here, the Commonwealth proffered into evidence, appellant’s arrest report, containing the results of appellant’s performance on the “one leg stand”, “finger to nose” and “walking in a straight line” field sobriety tests. The Commonwealth, however, did not present expert testimony attesting to the general acceptance by the scientific community of these three field sobriety tests for proving intoxication. Appellant therefore concludes that as in Apollo and Miller, the instant field sobriety test results are inadmissible.

The three sobriety tests, which we here review, are grounded in theories which link an individual’s lack of coordination and loss of concentration, with intoxication. This interrelationship is also recognized in what is generally accepted as the common indicia of intoxication, within the understanding and experience of ordinary people. See Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993), appeal denied 537 Pa. 638, 644 A.2d 161 (1994), cert. denied Bowser v. Pennsylvania, — U.S.-, 115 S.Ct. 186, 130 L.Ed.2d 120 (1994). In fact, non-expert testimony is admissible to prove intoxication where such testimony is based upon the witness’ observation of the defendant’s acts and speech and where the witness can opine as to whether the defendant was drunk. Id.

In the instant case, the contents of the arrest report detailed appellant’s performance of the field sobriety tests. The evidence revealed that appellant was unable to follow simple instructions or to walk upright without stumbling, swaying or seeking support. Unlike the evidence provided by the HGN test in Apollo and Miller, appellant’s performance of the field sobriety tests is reflective of the ordinary signs of intoxication discernable by a layperson. Therefore, the evidence of appellant’s performance of the field sobriety tests were properly admitted at trial. Moreover, as Sergeant Williams observed appellant’s actions, he could render an opinion as to whether appellant, was intoxicated. Commonwealth v. Neiswonger, 338 Pa.Super. 625, 488 A.2d 68 (1985) (officer may render opinion as to a defendant’s state of intoxication).

Next, appellant argues that evidence derived from the field sobriety tests should have been excluded at trial as violative of appellant’s Fourth and Fifth Amendment rights. We address these claims in seriatim.

Initially, appellant contends that the results of the field sobriety tests constituted physical evidence compelled in violation of the Fourth Amendment.

An officer may conduct a lawful traffic stop if he reasonably believes that a provision of the Motor Vehicle Code has been violated. 75 Pa.C.S. § 6308. Commonwealth v. McElroy, 428 Pa.Super. 69, 630 A.2d 35 (1993). Here, Sergeant Williams stopped appellant for driving 60 miles an hour in a 40 mile an hour zone. 75 Pa.C.S. § 3362. The smell of alcohol on appellant’s breath, alerted the officers that appellant may have been driving while intoxicated.

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer may stop and briefly detain an individual in order to conduct a limited investigation if the officer has a reasonable suspicion, based on specific and articulable facts that criminal activity is afoot. Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998 (1989). As Sergeant Williams had good reason to believe that appellant was intoxicated, he was justified in asking appellant to perform the sobriety tests. See Commonwealth v. Hamme, 400 Pa.Super. 537, 583 A.2d 1245 (1990); Toanone, 381 Pa.Super. 336, 553 A.2d 998. Therefore, the field sobriety tests were not conducted in violation of appellant’s Fourth Amendment rights.

Appellant also argues that evidence of his slurred speech was procured in violation of his Fifth Amendment rights. Specifically, appellant argues that his statement to the officers that he understood their instructions constituted a constitutionally protected “communication”.

The Fifth Amendment of the United States Constitution and Article 1, Section 9, of the Pennsylvania Constitution, “protect an accused from being compelled to testify against himself or otherwise provide the state with incriminating evidence of a testimonial or communicative nature.” See Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966); Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987), appeal denied 520 Pa. 581, 549 A.2d 914 (1988). Evidence of speech derived from field sobriety tests, may be afforded protection under the Fifth Amendment, where such evidence is determined to be testimonial or communicative, incriminating and coerced by police conduct. Commonwealth v. Monahan, 378 Pa.Super. 623, 549 A.2d 231 (1988), appeal denied 522 Pa. 574, 559 A.2d 36 (1989). Moreover, where, as here, a defendant, stopped under suspicion of driving under the influence, responds to a police inquiry concerning the defendant’s understanding of field sobriety tests, evidence of the content or manner of the defendant’s speech is inadmissible at trial, absent a waiver of the protections afforded under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Conway, 368 Pa.Super. 488, 534 A.2d 541. As appellant did not waive his Miranda rights, evidence of the manner of his response to the officers should have been excluded at trial.

Here, however, appellant has failed to demonstrate that Sergeant Williams’ conclusion that appellant’s speech was slurred derived from the officer’s questions concerning the field sobriety tests. In fact, Sergeant Williams had other opportunities to observe appellant’s manner of speech. Specifically, appellant spoke to the sergeant concerning what should be done with appellant’s car while he was at to the police station. Commonwealth v. Ramin, 390 Pa.Super. 591, 568 A.2d 1329 (1990) (voluntary statements are not barred by the Fifth Amendment). Sergeant Williams also gathered certain biographical information from appellant. Id. (“[questions which seek nonincriminating biographical data do not amount to ‘police interrogation’ ”). As appellant has failed to prove that his communications with the sergeant during the field sobriety tests were the sole source of the sergeant’s observation of his speech, we must deny appellant his requested relief.

Next, appellant contends that the odor of alcohol smelt by the officers when they stopped appellant was due to appellant ingestion of a mouth deodorizer.

Here, the officers detected the odor of alcohol on appellant’s breath shortly after they had stopped appellant. Sometime thereafter, as appellant was being transported to the police station, he was observed sucking a breathdrop. However, there was no evidence that at any time prior to that, appellant had a breathdrop in his mouth. Moreover, there is no evidence that the breathdrop contained alcohol. As appellant presented no evidence, at trial, of the source of the odor of alcohol, at the time he was stopped by the officers, the evidence is sufficient to demonstrate that the odor was due to appellant’s state of intoxication. Commonwealth v. Weis, 416 Pa.Super. 623, 611 A.2d 1218 (1992) (Commonwealth is not required to disprove all possible defense theories before instituting criminal charges).

Appellant also challenges the sufficiency of the evidence to support a conviction for driving under the influence of alcohol to a degree which rendered him incapable of safe driving, pursuant to 75 Pa.C.S. § 3731(a)(1).

We note that in order to sustain an conviction under 75 Pa.C.S. § 3731(a)(1), the Commonwealth must prove that: (1) the defendant was operating a motor vehicle; (2) the defendant was intoxicated; and (3) as a result of the alcohol consumed the defendant was incapable of safe driving. See Weis, 416 Pa.Super. 623, 611 A.2d 1218. Moreover, in reviewing a sufficiency of the evidence claim, the test is:

whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988) (citations omitted), cert. denied Hardcastle v. Pennsylvania, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990).

Here, the evidence demonstrated that appellant was the only person in car when it was stopped for speeding. Commonwealth v. Price, 416 Pa.Super. 23, 610 A.2d 488 (1992) (Commonwealth must prove that the defendant was driving). Sergeant Williams also testified that appellant’s breath smelt of alcohol and his eyes were glassy. Further, appellant had difficulty walking and tended to sway and stumble and was unable to stand without holding, onto his car for support. Appellant was also unable to follow simple instructions. Moreover, appellant’s speeding and his inability to drive within the road lanes led Sergeant Williams to conclude that appellant’s intoxication rendered him incapable of safe driving. Neiswonger, 338 Pa.Super. 625, 488 A.2d 68 (officer may render opinion as to a defendant’s state of intoxication as well as his ability to drive safely). Therefore, the evidence is sufficient to demonstrate that appellant was driving under the influence of alcohol which rendered him incapable of safe driving. See also Hamme, 400 Pa.Super. 537, 583 A.2d 1245. Accordingly, we affirm judgment of sentence.

Affirmed.

      . 75 Pa.C.S. § 3731(a)(1).

      . 75 Pa.C.S. § 3731(a)(4).

      . 75 Pa.C.S. § 3362.

      . Scientific evidence consists of "evidence that draws its convincing force from some principle of science, mathematics or the like.” Miller, 367 Pa.Super. 359, 532 A.2d 1186.

      . As we have concluded that in administering the field sobriety tests, Sergeant Williams was able to elicit ordinary signs of intoxication and as we have examined appellant's performance of the tests rather than the results of those tests, i.e. whether appellant "passed” or "failed”, we need not review appellant’s claims that the tests were not properly administered or that Sergeant Williams who had been a police officer for sixteen years, was unqualified to administer the tests.

      . We note, that there is no exception under 75 Pa.C.S. § 3731 for intoxication resulting from ingestion of alcohol-based breathdrops.

      . The source of the odor of alcohol is irrelevant for the purpose of suppression of evidence. It is sufficient that the odor itself gave the officers reason to believe that appellant was intoxicated. Hamme, 400 Pa.Super. 537, 583 A.2d 1245.


author: OLSZEWSKI, Judge: JOHNSON, Judge,

text:
    652 A.2d 930
    Joseph D. FLANAGAN, Appellant, v. FIDELITY BANK, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1994.
    Filed Jan. 20, 1995.

      Robert J. Kerns, Lansdale, for appellant.
    Alan J. Josel, Public Defender, Norristown, for appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   OLSZEWSKI, Judge:

In June 1968, Joseph Flanagan purchased a $9,900 certificate of deposit from Fidelity Bank. This two-year CD paid five percent interest. Flanagan was soon called for a tour of duty in Vietnam, and gave the CD to his father for safekeeping. Flanagan returned in 1971, but forgot about the CD. The Bank never sent Flanagan anything regarding the CD: no notice of maturity, no tax forms, no inquiry as to why Flanagan had not yet redeemed it.

In January of 1990, Flanagan found the CD and brought it to Fidelity Bank for redemption. The Bank had no records of the 1968 purchase, and refused payment. The Bank later sent a letter to Flanagan confirming that the funds were not escheated to the Commonwealth.

Flanagan sued the Bank for payment. After a brief bench trial in 1993, the trial court found for the bank, but then changed its mind and granted judgment notwithstanding the verdict for Flanagan. The court determined that Flanagan had carried his burden of proof, the CD was a valid instrument, and the Bank would have to honor it. This decision has not been appealed. Rather, the question before us concerns the trial court’s valuation of the CD.

The trial court found that the only evidence before it was the CD itself, and its value would be determined by its terms. Trial court opinion 7/1/94 at 3-4. The terms of the CD are stated on the face of the certificate. See R.R. at 8a (photocopy of the CD). The CD states:

This Certificate is not transferable or assignable except on the books of the Bank. Bank will pay on the maturity date or on any three (3) month anniversary of the date of issue the principal amount shown above, together with interest for each full three (3) month period from the date of issue at the rate of five percent (5%) per annum, compounded daily. If not surrendered at maturity, this Certificate shall be renewed at its principal amount and accrued interest for similar successive periods unless Bank shall have mailed to payee notice that it will not be renewed thirty (30) days or more prior to maturity. No interest will accrue after final maturity....

Id.; opinion at 3.

The trial court decided that under these terms, the present value of the CD was its $9,900 principal plus five percent interest for two years. The court awarded prejudgment interest at the legal rate of six percent from the date Flanagan attempted to redeem the CD (January of 1990), but the court held that no interest accumulated between 1970 and 1990. Flanagan appeals this part of the trial court’s decision.

The trial court reached this conclusion by interpreting the CD’s contractual language. The court stated:

The terms of the certificate do not specify what interest rate -will apply when the certificate is renewed. The first part of the afore-mentioned terms specifically provides that a five (5%) percent interest rate is to be applied for each three month period from the date of issue until the maturity date. Once the maturity date passes without the certificate being presented for payment, the certificate was to renew. However, unlike the above provision, this portion of the terms does not state a specific interest rate. The statement “[tjhis Certificate shall be renewed at its principal amount and accrued interest for similar successive periods” tells the holder at what amount the principal will be worth. It does not indicate the interest rate. Since no applicable interest rate was assigned under the terms of the certificate, and no evidence was presented at trial about the relevant interest rates for the time period at issue, no interest could be awarded by the Court and the failure to do so for the period of 1970 until 1990 was not in error.

Opinion at 4.

The interpretation of a contract is a question of law, so our review is plenary. Meeting House Lane, Ltd. v. Melso, 427 Pa.Super. 118, 628 A.2d 854 (1993). The CD is not a particularly well-drafted instrument, and reasonable people might differ over the meaning some of its terms. We think the trial court’s interpretation is untenable, however, because it ignores the plain and accepted meaning of the word “renew.”

The trial court acknowledged that if not redeemed in 1970, the CD would not sit dormant without earning interest, but would “renew.” “To ‘renew’ a contract means to begin again or continue in force the old contract.” Black’s Law Dictionary, 5th ed. The old contract (that is, the CD itself) paid five percent interest per year, compounded daily and posted quarterly. By using the term “renew,” the CD does indicate the applicable interest rate: the originally stated rate of five percent. We see no reason to consider prevailing market rates, or read in a rate of zero percent, as the trial court did.

Not only is this the plain and obvious interpretation, but it best comports with the rest of the contract. In 1968, the Bank was willing to pay five percent on a two-year CD. If interest rates went up, the Bank would be delighted to keep paying the low rate of five percent for however long the CD holder would accept it. If interest rates went down, the Bank could call the CD by giving notice that it would no longer renew it. That, presumably, is when the CD would reach final maturity, and no further interest would accrue.

Here, the Bank never called the CD or escheated the money to the Commonwealth, but continued to enjoy the use of Flanagan’s $10,941.11. Doubtless the Bank was able to make more than $18,000 on this principal between 1970 and 1990 by employing sound banking practices and making prudent loans. To deny Flanagan the time value of his investment would thus not only be arbitrary and contrary to the plain language of the CD, it would unjustly enrich the Bank as well. We therefore vacate the trial court’s order and remand with instructions that Flanagan be awarded the full value of his CD, plus prejudgment interest from the date Flanagan presented it.

Vacated and remanded; jurisdiction relinquished.

Concurring and dissenting opinion by JOHNSON, J.

JOHNSON, Judge,

concurring and dissenting.

Following a trial without a jury, the Honorable Albert R. Subers rendered a verdict for the defendant, Fidelity Bank (the bank), on an action in assumpsit to recover upon a growth certificate of deposit (CD) issued by the bank to Joseph D. Flanagan in 1968. After consideration of post-trial memoranda and oral argument, Judge Subers entered judgment notwithstanding the verdict and awarded Flanagan the sum of $9,900, the face amount of the CD. The court also awarded five percent interest for the two-year period from June 6,1968 to June 6, 1970, and six percent interest from January 1, 1990, the date when Flanagan first made demand for payment on the CD.

The bank has not appealed that award. Flanagan appeals, limiting his appeal to his contention that Judge Subers erred in failing to award five percent interest beyond a two-year period in accordance with the terms of the CD dated June 6, 1968.

When Flanagan purchased the CD, he resided with his parents. Shortly thereafter, Flanagan was called for a tour of duty in Vietnam, and he left the CD with his father. Flanagan did not return from Vietnam until 1971. His parents’ address in June of 1968 appears on the face of the CD. Although the CD includes a box in the upper left corner for the insertion of the depositor’s social security or tax identification number, this box was not filled in at the time of issuance of the CD in 1968.

I cannot join in my colleague’s assertions that the bank never sent Flanagan notice regarding the CD. Judge Subers did not find this to be a fact, and the notes of testimony do not support such an assertion. It can be concluded from the uncontradicted testimony of Flanagan that his parents abandoned their residence at the address recorded on the face of the CD no later than June 1969, when they moved to Florida. Any notice regarding the bank’s intent not to renew the CD would have been mailed to the address shown on the CD, an address from which the Flanagans removed themselves fully one year before the CD would have matured in June, 1970. There was no direct testimony from Flanagan’s parents, who were not called as witnesses. The parties stipulated that the bank had no records concerning this particular CD. There was no direct evidence to support my colleague’s conclusion that the bank never sent notice to its depositor.

In terms of the narrow issue preserved for appeal, the question of notice may well be considered immaterial. We are called upon to decide only whether Flanagan is entitled to receive five percent interest from June 6, 1970, to January 1, 1990.

As a starting point, we should determine if the CD provides any guidance in deciding this question. Pursuant to the terms of the CD, it matured on June 6, 1970. If not redeemed at that time, absent any notice to the contrary from the bank, the CD would renew. The CD contained the following language:

If not surrendered at maturity, this Certificate shall be renewed at its principal amount and accrued interest for similar successive periods unless Bank shall have mailed to Payee notice that it will not be renewed thirty days or more prior to maturity. No interest will accrue after final maturity.

My colleagues, in considering this language, assert, without citation to any authority:

By using the term “renew”, the CD does indicate the applicable interest rate: the originally stated rate of five percent. We see no reason to consider prevailing market rates, or read in a rate of zero percent, as the trial court did.
Not only is this the plain and obvious interpretation, but it best comports with the rest of the contract....
____ To deny Flanagan the time value of his investment would thus not only be arbitrary and contrary to the plain language of the CD, it would unjustly enrich the Bank as well.

Majority opinion at 520-521.

Unlike the majority, I find this interpretation of the CD to be neither plain nor obvious. While the instrument declares in the simplest of terms that “no interest will accrue after final maturity,” the term “final maturity” is not defined in the instrument and, in my judgment, would escape rational definition if the analysis remains confined to the written agreement before us. I do not believe any conclusion is possible as to the “final maturity” date or the rate of interest to be applied.

Moreover, this appeal involves the interpretation of a form of CD utilized by a Pennsylvania bank in the late 1960’s. There is nothing in the record to suggest that the poorly-worded declaration on the front of this CD remains in use by the successor-in-interest to the bank on this appeal, or by any other financial institutions. Therefore, I cannot believe that our interpretation of the word “renewed,” as the majority declares, involves a legal issue of continuing public interest. On the contrary, I fear that our attempt to construe language on an outdated instrument might well have adverse implications for current mercantile practice.

Flanagan cites only to Ballentine’s Law Dictionary, Third Edition, in support of his argument that he is entitled to five percent interest throughout the period of non-presentation of the CD for payment. Brief for Appellant at 13-14. The majority cites only to Black’s Law Dictionary, Fifth Edition, on the same issue. Majority slip opinion at 920. This paucity of authority suggests, also, that disposition of this appeal without attempting to establish new law might well be in order.

Where the bank has not challenged the underlying award of the principal sum found due on the CD, I would limit myself to an analysis based upon equitable principles, much as the majority has suggested in its alternative analysis. It is unlikely that fair-minded people within the banking community could find fault with a conclusion that Flanagan should not be denied the time value of his investment, given the fact that the bank has had the use of his funds — or at a minimum is unable to establish non-use of Flanagan’s funds — over the entire period from June 1968 until January 1990. Since equity would dictate that the depositor should not be made to bear the loss against a commercial entity possessing the resources to soundly administer funds held by it in a fiduciary capacity, I concur in my colleagues’ conclusion to remand this matter for the award of five percent interest over the entire period the CD remained in the bank’s possession prior to demand. I am unable to join and must dissent from, so much of the majority opinion as finds a basis in contract law and the interpretation of the language of the CD to support the remand.

      . My colleague, Judge Johnson, hypothesizes that the Bank might have sent notice of maturity to Flanagan's parents, who in turn might not have received it because they moved to Florida in 1969. Of course, if the Bank had sent any such notice and retained some record of it, then this appeal would probably not be before us. The Bank failed to prove that it sent notice and created this unusual situation by destroying its own records before twenty years had passed. We must now view the evidence in the light most favorable to the de facto verdict winner, and accept Flanagan’s contention that the Bank never sent him any notice of maturity.

      . Pennsylvania caselaw presumes that debts more than twenty years old have been paid, rebuttable only by clear and convincing evidence which must consist of more than the instrument sued upon itself. See Rosenbaum v. Newhoff, 396 Pa. 500, 152 A.2d 763 (1959). The trial court originally reasoned that twenty years had passed since Flanagan purchased the CD, so the presumption would operate against him. Flanagan pointed out at post-trial motions that the CD was not redeemable until June of 1970, and he took it to the Bank in January of 1990. The trial court apparently agreed with Flanagan that the debt was less than twenty years old, so the Bank had to prove payment, which it could not do. The court thus found for Flanagan.

      . For instance, it is not perfectly clear when the CD reaches "final maturity.”

      . This is what the CD would have been worth on its maturity date of June 6, 1970.

      . $10,941.11 earning 5% interest compounded daily for 7,123 days (which is 19 years and 6 months from June 6, 1970) would become $29,007.15. The difference of $18,066.04 is the amount at stake in this appeal.


author: HOFFMAN, Judge.

text:
    652 A.2d 935
    Robert E. VOLAND and Rae Voland, His Wife v. James R. GRAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 25, 1994.
    Filed Jan. 20, 1995.

      Joseph E. Buckley, Jr., Brookville, for appellant.
    David M. Speer, Clarion, for appellees.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge.

This case arises from a lease purchase agreement whereby appellant, James R. Gray, agreed to lease an International truck, from appellees, Robert E. and Rae Voland. Appellees filed a complaint, alleging breach of contract. After a hearing, District Justice Heasley entered judgment against appellant in the amount of $8,080.50 on October 29,1993. Appellant filed a timely notice of appeal and praeciped the Prothonotary to enter a rule to file a complaint. Notice of appeal was personally served on appellees on December 6, 1993 and served on District Justice Heasley by letter dated November 30, 1993. However, appellant failed to file, with the prothonotary, proof of service upon appellees within ten (10) days after filing the notice of appeal, as required by Pa.R.C.P.D.J. 1005B. Based on this omission, appellees filed a praecipe to strike appeal, which was signed by a deputy prothonotary on December 23, 1993. On December 29, 1993, a certificate of service was filed by appellant’s counsel with the prothonotary and the next day appellant filed a petition to reinstate appeal.

Following a March 10, 1994 hearing, the Honorable Paul B. Greiner, of the Court of Common Pleas of Clarion County, found that appellant’s failure to comply with Rule 1005B was “ ‘inadvertent error’ and insufficient to show good cause.” Accordingly, he denied appellant’s petition to reinstate appeal in the March 11, 1994 order. This timely appeal followed.

Appellant argues that the court below committed an error of law in denying the petition to reinstate appeal. For the following reasons, we agree.

Where an appeal has been stricken based on failure to comply with Rule 1005B, the court of common pleas may reinstate the appeal upon a showing of good cause. Pa. R.C.P.D.J. 1006. Even though the determination of whether good cause has been demonstrated is within the trial court’s discretion, Slaughter v. Allied Heating, 431 Pa.Super. 348, 351, 636 A.2d 1121, 1123 (citing Anderson v. Centennial Homes, Inc., 406 Pa.Super 513, 517, 594 A.2d 737, 739 (1991)), we have reinstated appeals where we have held the trial court erroneously found good cause was lacking. See Delverme v. Pavlinsky, 405 Pa.Super. 443, 592 A.2d 746 (1991) and Katsantonis v. Freels, 277 Pa.Super 294, 419 A.2d 778 (1980).

With these standards in mind, we turn to the case before us. Here, appellees and the district court received timely notice of appellant’s appeal. However, appellant filed the proof of service approximately twenty (20) days late. In his petition to reinstate appeal, appellant explains:

The Green Card evidencing the fact of actual service upon the Plaintiff[s]/Appellee[s] was not filed with the Prothonotary’s office within the ten (10) day requirement of Rule 1005(b) because it was not received by our office in time to comply with the rule.

Petition to reinstate appeal, p. 2. We note, however, explanatory note to Pa.R.C.P.D.J. 1005 provides:

As to subdivision B, there is no return receipt requirement for service by certified or registered mail and consequently no such receipt need be filed with the prothonotary, although if service is by certified or registered mail the sender’s receipt must be attached to the proof of service.

Pa.R.C.P.D.J. 1005 (emphasis added).

In the instant case, it is clear that appellant misinterpreted the dictates of Pa.R.C.P.D.J. 1005. Appellant believed that the sender’s receipt was in fact the return receipt. Although appellant did not technically comply with Pa.R.C.P.D.J. 1005B, his misreading of the comment was a legitimate excuse, and therefore we find that he did make a good faith attempt to comply with the rule. Moreover, we note appellee suffered no prejudice. Consequently, the order dismissing the petition to reinstate the appeal is vacated and the appeal is reinstated. See also Slaughter v. Allied Heating, 431 Pa.Super. 348, 636 A.2d 1121 (1993) (petition to reinstate appeal denied where nothing in the record indicated that appellee and the district justice received timely notice of appeal, but court explained “the mere failure to file the proofs of service in a timely manner will be disregarded where it is clear that the opposing party has received notice of the appeal and that the purpose of the rules has been satisfied.”); Delverme v. Pavlinsky, 405 Pa.Super. 443, 447-48, 592 A.2d 746, 748 (1991) (where appellant made a good faith attempt to comply with the Pa. R.C.P.D.J. and in the absence of prejudice to appellee, the appeal was reinstated); Anderson v. Centennial Homes, Inc., 406 Pa.Super. 513, 594 A.2d 737 (1991) (trial court’s order denying appellant’s motion to reinstate appeal affirmed where appellants provided no reasons for their omission); Quarato v. Facelifters, Ltd., 305 Pa.Super. 536, 451 A.2d 777 (1982) (dismissal of appeal due to technical noncompliance with Pa. R.C.P.D.J. 1005B was vacated); and Katsantonis v. Freels, 277 Pa.Super 294, 419 A.2d 778 (1980) (court construed Rule 1005B liberally and reinstated appeal).

Order reversed and appeal reinstated.

      . Rule 1005 provides:
      The appellant shall file with the prothonotary proof of service of copies of his notice of appeal, and proof of service of a rule upon the appellee to file a complaint, if required to request such by Rule 1004B, within ten (10) days after filing the notice of appeal.
      Pa.R.C.P.D.J. 1005B.