text:
    441 A.2d 1288
    Roger E. BUCHANAN and Dorothy Buchanan, et al. v. CENTURY FEDERAL SAVINGS & LOAN ASSOCIATION, et al. Appeal of MT. LEBANON FEDERAL SAVINGS & LOAN ASSOCIATION. Appeal of Roger E. BUCHANAN and Dorothy Buchanan, et al.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1981.
    Filed Feb. 19, 1982.

      See also, 295 Pa.Super. 384,441 A.2d 1285.
    Michael P. Malakoff, Pittsburgh, for appellants (at No. 145) and for appellees (at No. 237).
    Joan Feldman, Pittsburgh, for appellant (at No. 237) and for appellee (at No. 145).
    Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

This appeal arises from the interpretation of a settlement agreement which settled an action by classes of mortgagors against several mortgagee banks in both the federal and state courts. The agreement was executed by all parties on January 22, 1976. By its terms, the settlement agreement was subject to, and contingent upon, court approval in both the state and federal actions. The hearing judge found as a fact that it was normal to, and the parties did in fact, contemplate that court approval would take a lengthy period of time. Final court approval was forthcoming on April 19, 1979.

The portion of the agreement giving rise to the controversy necessitating a court ruling from which this appeal is taken reads as follows:

§ 3.03. Beginning on the date of final approval of this Agreement, but retroactive to January 1, 1976, the Defendants either:
(a) Shall pay at least two (2) percent interest per annum to their Residential Mortgagors on sums paid to a particular Defendant equivalent to one-twelfth the annual hazard insurance premiums, annual real estate taxes and/or assessments or other charges;
(b) Shall credit such advance payments against the principal balances on such mortgage loans; or
(c) Shall grant, by writing separate from the mortgage and bond or note, such mortgagors the option either of paying their annual hazard insurance premiums, annual real estate taxes and/or assessments or other charges themselves, or of making such payments equivalent to one-twelfth of such amounts each month to Defendants, in which case, no interest need be paid by Defendants on such payments.
If interest is to be paid by a Defendant under Subsection (a) herein, it shall be calculated in a manner no less favorable to Plaintiffs than 2 percent simple interest, on the average of the month-end escrow balances, paid or credited annually.
* * * * * *

Prior to January 22, 1976, language contained in the Mortgage Applications utilized by appellant Mt. Lebanon offered the prospective mortgagor the option of maintaining an escrow with Mt. Lebanon or paying insurance, taxes, etc. directly.

Following final court approval of the settlement, in November, 1979, Mt. Lebanon sent a letter to its mortgagors which stated, in relevant part:

“[W]e enclose herewith an agreement which is to be executed by the borrowers .. . advising [Mt. Lebanon] whether you wish to pay your own taxes and insurance premiums or whether you wish to pay them through [Mt. Lebanon] without any interest to you .... Your failure to [return the agreement] will be considered your authorization to continue your escrow account with no payment of interest.
“The total funds in your tax and insurance escrow . . . will either be applied to the principal balance of your mortgage or refunded to you if you elect to pay your own taxes, when we receive the enclosed agreement.”

On January 7, 1981, the class representatives filed a Motion to Enforce Settlement Agreement with regard to Mt. Lebanon, alleging that Mt. Lebanon had selected the option under Section 3.03(c) in 1979 but had failed to apply it retroactively by failure to pay escrowing mortgagors two percent (2%) interest per annum on escrows held during the period January 1, 1976 to the date it offered its mortgagors an option as to escrow. The motion requested that the court order Mt. Lebanon to pay two percent (2%) interest on such escrows held during the period January 1, 1976 to April 19, 1979 and other relief.

On January 23, 1981 Judge Silvestri entered an order which granted such relief in part and denied it in part. The order further required Mt. Lebanon to resubmit an election of options to all of its mortgagors effective November 1, 1979 in terms consistent with the Settlement Agreement. These cross-appeals followed.

In a related appeal, No. 837 Pittsburgh, 1980, Appeal of Equibank in the same action, this court has this date determined that payment of two percent (2%) per annum based upon monthly escrow balances is the means, within the intention of the agreement, whereby mortgagors escrowing funds were to be accorded retroactivity in the option to discontinue such escrows. Pursuant to the Agreement, therefore, Mt. Lebanon would owe such interest to its es-crowing mortgagors on balances held during the period January 1, 1976 to the date it granted the option set forth in Section 3.03(c) of the Agreement, that date being determined below to vary with the facts, but being no earlier than November 1, 1979.

The trial judge in the instant case held that the language contained in Mortgage Applications utilized by Mt. Lebanon prior to the settlement constituted sufficient compliance to meet the requirements of the retroactivity provision. The trial judge held that the language contained in the letter sent by Mt. Lebanon November 1, 1979 did not meet the requirements of the Settlement Agreement at Section 3.03(c). Accordingly, Judge Silvestri ruled that no interest need be paid for the period January 22, 1976 to November 1, 1979, (from which mortgagors appeal) but that interest was required to be paid to escrowing mortgagors for the period November 1, 1979 to such date as Mt. Lebanon resubmitted the option in appropriate terms (from which Mt. Lebanon appeals).

The parties’ briefs reflect general agreement as to the facts and as to the applicable law. Citing the same cases, all agree as do we that the principles of contract construction are applicable to interpretation of this settlement agreement: United States v. I.T.T. Continental Baking Co., 420 U.S. 223, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975); Florida Educational Association v. Atkinson, 481 F.2d 662 (5th Cir. 1973).

“If the language of the contract is unambiguous and susceptible of only one interpretation, a court will determine the parties’ intention on the basis of the clear wording of the contract. If the language of the contract is ambiguous and susceptible of two interpretations, then the court will adopt the interpretation which under all circumstances, ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.”

O’Farrell v. Steel City Piping Co., 266 Pa.Super. 219, 403 A.2d 1319, 1324 (1978). As pointed out in the related Appeal of Equibank, the language of the Settlement Agreement herein is ambiguous as to the means for according retroactivity in the case of those lenders selecting the Section 3.03(c) means of performing their obligations. The means of exercising the option, however, was set forth in clear and unambiguous language in the “Second Amendment to Settlement Agreement” executed by the parties subsequent to January 1, 1976 and approved as part of the Settlement Agreement. The relevant amendment language is as follows:

“The exercise of such option by the mortgagor shall be by a written signed statement electing one or the other method of payment, which statement shall not be given to the lender until after the lender has issued a written commitment to make the loan that does not contain any requirement of such monthly payments.... [Promptly after an election by a mortgagor to make such annual payments himself the lender shall remit to the mortgagor the balance then held in his escrow account .... In any case where an election to continue monthly payments has not been mailed to or received by the lender within thirty (30) days after furnishing [election form and return envelope], the lender shall promptly remit to any mortgagor not in default the balance then held in his escrow account.”

It is therefore clear that at any time during the period January 1, 1976 to date during which Mt. Lebanon offered its mortgagors an election in the terms above described, it would be in compliance with the agreement and therefore not liable for payment of any interest.

MORTGAGORS WHO ESCROWED PAYMENTS WITH MT. LEBANON FROM JANUARY 1, 1976 to NOVEMBER 1, 1979

Under the facts as set forth in Affidavits of Mt. Lebanon and taken as true since they are undisputed by the class representatives, those mortgagors who did in fact escrow payments with Mt. Lebanon prior to the sending of the November 1, 1979 letter, and from as early as February, 1973, did so based upon the “option” expressly set forth in the Mortgage Application set forth above at note 2. Thus, such mortgagors would have had to have either committed themselves to escrowing payments prior to the issuance of a mortgage commitment, thus resulting in a commitment to make the loan that did contain a requirement of monthly escrow payments, or else would have remained silent as to an election, which under the terms of the Settlement Agreement should have resulted in no escrow being collected. The parties herein were settling lawsuits which challenged the means of escrow collection and had the conduct of Mt. Lebanon in utilizing such language in its Mortgage Applications been undisputedly in accordance with the result to be achieved by the Settlement Agreement, it could readily have executed a separate Settlement Agreement approving such means of offering its mortgagors an election. Furthermore, any ruling that the Mortgage Application language satisfied the terms of Section 3.03(c) would, in effect, discharge Mt. Lebanon from any obligation whatsoever under the Settlement Agreement. The intention of the parties demonstrated by the agreement was that 2% interest be paid to all escrowees until written option in the form set forth in the agreement was executed or until escrow was terminated. We therefore reverse the ruling of the lower court as to the period January 1,1976 to November 1,1979 and hold that, as to those mortgagors actually escrowing funds with Mt. Lebanon during that period, Mt. Lebanon was not in compliance with the terms of the Settlement Agreement, and did not perform retroactively as required by Section 3.03.

MORTGAGORS WHO ESCROWED PAYMENTS WITH MT. LEBANON FROM NOVEMBER 1, 1979

The lower court held that the November 1, 1979 letter sent by Mt. Lebanon to its mortgagors did not comply with the requirements of the Settlement Agreement in that escrow requirements were continued as to those mortgagors who did not return an election form. We agree and further note that the letter does not state that escrow balances will be promptly remitted to any mortgagor electing not to escrow, as required by the Settlement Agreement. However, the requirement by the lower court that election forms in terms complying with the Settlement Agreement be resubmitted to all mortgagors, whether or not they have maintained an escrow account, is extending a remedy beyond the scope of the default. The intention of the Settlement Agreement was to extend a remedy to those maintaining escrow accounts with the defendant lending institutions within the limits agreed to by the lending institutions in order to settle litigation. Those not maintaining escrow accounts would cease to be members of the class to whom a remedy need be extended. The plaintiff class consisted only of those who “established or maintained” escrow accounts in connection with their mortgage.

SUMMARY

Under the terms of the Settlement Agreement, the defendant lending institutions, including Mt. Lebanon, were to perform their obligations under that agreement on the date court approval became final, being 30 days after April 19, 1979, no appeal having been filed. Under the terms of Section 3.03, performance under that section is required retroactively to January 1, 1976. As of November 1, 1979, Mt. Lebanon had not performed its obligation in any manner. Mt. Lebanon has represented that at all relevant times its intention was to select the Section 3.03(c) option to give its mortgagors a right of election to discontinue escrow payments and balances in accordance with the Settlement Agreement. Accordingly, as of May 19, 1979, Mt. Lebanon owed its mortgagors of record from January 1, 1976 a two percent per annum payment on the monthly balances in escrow accounts and the delivery of an election form in the terms set forth in the Second Amendment to Settlement Agreement. Thirty days after May 19, 1979, Mt. Lebanon owed all those mortgagors who did not return election forms a prompt remittance of balances in escrow accounts and termination of collection of escrow payments. Therefore, from June 18, 1979 Mt. Lebanon has been in default under the terms of the Settlement Agreement and is subject to six percent (6%) interest payable on the two percent (2%) interest owed and payable on all escrow balances which were the result of the failure of a mortgagor to make an election either to escrow payments or to discontinue escrow payments. As to those mortgagors who have returned an executed election, from and after November 1,1979, interest at the legal rate on such escrow balances is due only to the date upon which Mt. Lebanon complied with such election. Mt. Lebanon is required to submit a form for election in the terms set forth in the settlement agreement to all mortgagors (including all those who were mortgagors on May 19, 1979 or thereafter whether or not such mortgagors are presently under any existing mortgage with Mt. Lebanon) who have not made a written election after November 1, 1979.

The order of the lower court is reversed and the case is remanded for the granting of relief in accordance with this opinion.

WIEAND, J., files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting:

During the period prior to court approval of the settlement agreement, Mt. Lebanon Federal Savings and Loan Association gave each mortgagor whose indebtedness did not exceed 80% of the appraised value of the residence pledged as security the choice of maintaining an escrow deposit for real estate taxes and insurance premiums or of paying such taxes and insurance premiums themselves. I agree with the trial judge’s opinion that this practice was consistent with the option contained in Section 3.03(c) of the settlement agreement. Therefore, I would not require Mt. Lebanon to pay interest on funds which mortgagors had knowingly and voluntarily elected to pay in escrow to Mt. Lebanon during the pendency of proceedings to obtain court approval of the settlement agreement. It follows that I must respectfully dissent from that portion of the opinion of a majority of this Court which directs Mt. Lebanon to pay interest on such escrowed amounts at the rate of 2% per month.

I agree with the majority that Mt. Lebanon failed to comply strictly with the mandate of the settlement agreement following court approval thereof. Therefore, it was properly ordered to proceed as set forth in the agreement to return escrow deposits and pay interest thereon at the- rate of 6% per annum unless mortgagors had directed otherwise in writing. The effect of the court’s order, however, should be limited to those mortgagors whose escrow accounts were continued by the bank without prior, express, written authorization to do so from the mortgagors.

      . Although the original class included all mortgagors, appellees herein represent only a class of mortgagors whose mortgage loans do not exceed eighty percent (80%) of the appraised value of the mortgaged premises. Therefore, the term “mortgagors” as used hereinafter refers only to such mortgagors, and this appeal and opinion do not relate in any way to mortgagors whose mortgages exceed eighty percent (80%) of the appraised value.

      . On October 20, 1978, this court remanded the case to the lower court for approval of settlement: Buchanan v. Century Federal Savings & Loan Association, 259 Pa.Super. 37, 393 A.2d 704 (1978). Final approval was then dependent upon approval of the settlement in the companion action in the federal court, Stavrides v. Mellon Bank, N. A., Civil Action No. 72-242 in the United States District Court for the Western District of Pennsylvania.

      . At the bottom of the second, and signature, page of its form headed “Application for Loan,” the following language appears:
      It is understood and agreed that Fire and Extended Coverage or Homeowners Coverage Insurance will be maintained on the mortgaged premises in an amount at least equal to the amount of the mortgage so long as the loan is in force. I further understand and agree that the total monthly payments shall ... (A) include a monthly pro-ration of the estimated costs of real estate taxes, any assessments and insurance premiums to be deposited in a non-interest bearing account or ... (B) shall not include an escrow account, and that I will assume the responsibility for the payment of taxes and insurance when they become due, and submit receipts to the Association. I have initialled my choice of methods and understand the procedure.
      The affidavits submitted by Mt. Lebanon do not supply information as to what percentage of these forms were actually initialled by the prospective mortgagor.

      . Section 1.02 Settlement Agreement.


source: Caselaw Access Project

author: JOHNSON, Judge: POPOVICH, Judge,

license: Public Domain

text:
    441 A.2d 1293
    COMMONWEALTH of Pennsylvania v. Lewis K. BAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Feb. 19, 1982.
    Petition for Allowance of Appeal Denied June 4, 1982.

      Alan Ellis, State College, for appellant.
    C. Joseph Rehkamp, District Attorney, New Bloomfield, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from the Order of Forfeiture dated February 14, 1980, denying Appellant’s Application for Return of Property.

The issue involves whether the lower court erred in determining that the sum of one thousand two hundred fifty dollars ($1,250) seized from Appellant’s bedroom was, in fact, contraband and therefore not returnable.

Appellant was arrested on May 8, 1979, and charged with a total of twenty-two counts. On May 21, 1979, Appellant assigned all rights in the said monies to his attorney. On August 27, 1979, Appellant pled guilty to fourteen counts of unlawful delivery and two counts of possession with intent to deliver a controlled substance, three counts of criminal conspiracy and two counts of criminal attempt.

At a hearing on January 17, 1980, pursuant to Appellant’s Application for Return of Property, it was stipulated that:

(1) monies were found in a suitcase containing various illegal drugs, (2) that a State Trooper would testify that he observed Appellant place the proceeds of drug sales in a pouch at various times, which then was placed in the suitcase, (3) that these proceeds were not necessarily those particular monies, and (4) that Appellant stated, after his arrest, that the monies were “front money”, advanced to Appellant in order to purchase drugs.

Rule 324, Pa.R.Crim.P., states:

Rule 324. Motion for Return of Property
(a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
(b) The judge hearing such motion shall receive evidence on any issue or fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(c) A motion to suppress evidence under Rule 323 may be joined with a motion under this rule.

Before the merits of the instant case can be discussed, we must determine the effect of appellant’s assignment of his rights in the monies to his attorney. Assignment is defined as “[a] transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein.” Black’s Law Dictionary (5th ed. 1979). Accord, Melnick v. Pennsylvania Co. For Banking and Trusts, 180 Pa.Super.Ct. 441, 119 A.2d 825 (1956).

The record clearly indicates that Appellant assigned any rights he may have had in the monies to his attorney in consideration of legal fees.

Since Appellant no longer has any rights in the monies, by virtue of the transfer, he cannot seek return of the property. Cf. Pa.R.C.P. 2002; Wilcox v. Regester, 417 Pa. 475, 207 A.2d 817 (1965).

The order dated February 14, 1980 is affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent. The appeal should be dismissed because appellant has no standing to recover monies assigned to his attorney under our rules of criminal procedure. See Mobil Oil Corp. v. Northwestern Agency, Inc., 490 Pa. 68, 415 A.2d 36 (1980). The majority affirms the order of the court below despite its conclusion that appellant “cannot seek return of the property.” Slip Opinion at 1295. The court below, however, resolved the case on the merits. Although the majority does not say so explicitly, the effect of its decision is to deny appellant standing to prosecute the instant appeal. Such a posture by the majority is inconsistent with its affirmance- of the order entered by the court below. Hence, because this writer is of the view that the appropriate mandate would be for this Court to quash the appeal since appellant has no appealable interest, I cannot join the majority. See Wheatcroft v. Auritt, 226 Pa.Super. 118, 128, 312 A.2d 441, 447 (1973).

      . Appellant has also raised the issue of whether the monies were returnable as fruits of an illegal search and seizure. However, because Appellant pled guilty, he has waived all nonjurisdictional defects and defenses. See Commonwealth v. Montgomery, 485 Pa. 110, 401 A.2d 318 (1979). This holds true despite Appellant’s claim that his general reservation of right to file for the return of the monies preserved his right to argue the issue of illegal search and seizure.

      . 35 P.S. § 780-113(a)(30).

      . Id.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 901.


author: MONTEMURO, Judge:

text:
    441 A.2d 1295
    Mario LUDMER, Appellant, v. ERIE INSURANCE EXCHANGE.
    Superior Court of Pennsylvania.
    Argued March 18, 1981.
    Filed Feb. 19, 1982.

      John F. Becker, Pittsburgh, for appellant.
    H. N. Rosenberg, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case presents the problem of whether a doctor who has allegedly rendered medical services to an insured victim of a motor vehicle accident has the right to sue an insurance company directly as third party beneficiary of the contract between the company and its insured.

We affirm the court below in its decision that neither the No-Fault Motor Vehicle Insurance Act nor the insurance contract itself mandates this result.

This is not to say that payment of a claim cannot be made directly to the doctor. Section 1009.106(a)(2) states in pertinent part:

... an obligation for basic loss benefits for an item of allowable expense may be discharged by the obligor by reimbursing the victim or by making direct payment to the supplier or provider of products, services or accommodations . . . (emphasis supplied)

Section 1009.106(d)(2) contemplates that assignment of claims for benefits for cost of medical services as well as products and accommodations shall be lawful. Section 1009.111(a)(3) further states that a provider of services is not precluded from contracting “or otherwise providing for a right of reimbursement” for the benefits he renders in the “allowable expense” category.

It appears, however, that the plaintiff-appellant doctor in the instant action has simply insisted upon payment by the insurer while also insisting that the cooperation of the insured, the alleged recipient of services, is unnecessary. He sees no need for the covered party to agree that services indeed were rendered, or that services were satisfactory, or that the payment to the service provider would indeed discharge the duties of the insurer from further payment. Appellant claims third party beneficiary status under the contract as read in conjunction with the No-Fault Act. We disagree.

Pennsylvania Rule of Civil Procedure 2002 provides that “all actions shall be prosecuted by and in the name of the real party in interest.” (Emphasis supplied.) Standard Pennsylvania Practice, Vol. 3 at p. 103 defines “real party in interest” as follows:

. . . “the real party in interest in a given chose in action is the person who can discharge it and can control an action brought to enforce it .. . and in many cases he will also be a person beneficially interested in the cause of action but this is not necessary.” Under this Rule assignees are the real party in interest; third party beneficiaries may bring an action in their own name . . .

A third party may recover on a contract only if the intent of the contract is to confer benefits upon that third party. Restatement of Contracts, 2d, § 113(d).

Appellant argues, from the No-Fault Act rather than from the contract wording, that the intent of the Act supports a finding that the provider of services shall be paid directly upon application and may sue directly if denied payment. As appellant’s brief argues the matter:

It is much easier, efficient [sic], and quicker, for the health care provider, pursuant to Section 106(a)(2) to submit his bill directly to the carrier. This system obviates the necessity for the insured to become actively involved in seeking payment of his medical bills. Again, this procedure demonstrates the underlying policy of the No-Fault Act in limiting the extent to which the insured needs to become involved in payment of his medical bills. Id at p. 13, (Emphasis supplied).

Appellant argues further that the two parties to the contract knew that the contract was written “pursuant to” the provisions of the Act which permit health care providers to submit bills directly to the insurance company and receive payment directly. Therefore, he reasons, any provider becomes a third party beneficiary of such a contract and thus also becomes, in effect, the “real party in interest” with, obviously, the rights of discharge, control and enforcement.

This is a simplistic view and deserves close scrutiny by any court asked to determine the issue. Can we really assume that all insurance purchasers are uninterested in the bills submitted for services they have allegedly received? Can we assume that insurance companies entering such contracts on a regular basis are uninterested in whether the insured has in fact received adequate services and has in fact relinquished his personal claims to repayment of his benefits owing to a service provider who can discharge the action lawfully after payment? Can we assume a legislative intent to “obviate” an insured (or his representative in cases of incapacity or death) from any necessity to be involved in the payment of benefits owed under a contract he signed for services allegedly rendered to him? We think not.

Where the service provider and his insured patient disagree about his right to reimbursement, the provider may proceed under § 106(f)(1) and obtain a judgment against the insured and then may garnish his claims for benefits due. Or, of course, where the patient and provider agree, assignment of the claim is possible.

The cases cited by appellant in support of his argument found a third party beneficiary relationship in the Government which rendered medical care to servicepersons and then sought reimbursement from their insurers. United States v. Automobile Club Insurance Co., 522 F.2d 1 (5th Cir. 1975); United States v. Government Employees Insurance Co., 461 F.2d 58 (4th Cir. 1972). These cases, however, are easily distinguishable from the instant action. The courts in the Federal cases specifically based their findings of third party beneficiary status in the government on the wording of the individual contracts in those cases, and not on a statutory construction. The contracts in those cases were not similar to the contract in the instant matter.

The wording of the contract that concerns us in this action provides that the insurance company will pay “damages which a covered person is legally entitled to recover . . . because of bodily injury”. ... (R. p. 43a. Emphasis original). Obligation runs directly to the entitled, covered person. There is no wording implying an obligation on the part of the insurance company to pay out any monies to a third party.

To the contrary, there is a specific provision to the effect that the insurance company shall control even as to the decision of automatic payment to a provider on request of the insured. Paragraph 3 of Part F. of the contract provides in pertinent part:

... no legal action may be brought against us until we agree in writing that the covered person has an obligation to pay or until the amount of that obligation has been finally determined by judgment after trial. No person or organization has any right under this policy to bring us into any action to determine the liability of a covered person. (R. 46a, emphasis original).

The scheme of the No-Fault Act itself, and the contract between the parties in the instant action, certainly do not preclude direct payment to a service provider by an insurance company. Ordinarily, such a course is efficient and sensible. It is not mandated, however, and the ordinary and prudent scheme of the law of contracts is not abrogated by the No-Fault Act. We cannot find that a service provider becomes a third party beneficiary of the contract in the instant action, and thus the real party in interest, merely upon the allegation that he has rendered services to the insured and presented a bill for those services to the insurer.

As the lower court states, the service provider is not seriously hampered in his ability to recover monies genuinely owed him. Where the parties amicably agree to assignment of the claim, as is usual, payment will be direct and prompt. Where problems develop, the service provider may obtain judgment against the insured and institute garnishment proceedings against the insurer.

For all the above reasons, therefore, we affirm the holding of the court below.


author: POPOVICH, Judge:

text:
    441 A.2d 1298
    COMMONWEALTH of Pennsylvania v. Frank W. ROSS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1981.
    Filed Feb. 19, 1982.
    Petition for Allowance of Appeal Denied April 30, 1982.

      Nino V. Tinari, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant’s Motion to Dismiss the Bills of Information at Nos. 493 and 494 on double jeopardy grounds. We affirm.

Appellant was tried before a judge for Criminal Conspiracy, Burglary, Theft by Unlawful Taking and Theft by Receiving Stolen Property. However, prior to the completion of the proceedings, a mistrial was granted on appellant’s motion. The facts leading up to the mistrial are as follows:

On July 29, 1977, the owner of a Philadelphia bar found his premises burglarized and reported to the police that liquor, money and cigarettes were taken. At trial, Officer Martin Holmes testified that, at approximately 5:15 A.M. on the day in question, he observed a dark colored vehicle go through the traffic light at 7th and Oregon Avenue. Officer Holmes signaled the vehicle to stop and then observed a large quantity of cigarettes, alcohol and money in the back seat. He took the keys out of the ignition and went back to his cruiser. The driver jumped out of the vehicle and ran. Officer Holmes identified the driver as the appellant.

The defense presented alibi witnesses and raised the issue of misidentification by Officer Holmes, contending that because appellant’s brother, Timothy Ross, exhibited similar physical characteristics it may have been he driving the vehicle instead of the accused. Additionally, appellant’s father testified that he saw his son Timothy driving a 1964 or 1965 Chevy on July 28, 1977 at 8:30 P.M., which was the vehicle stopped by Officer Holmes.

The attorney for the Commonwealth secured Timothy Ross for trial and called him to the stand on rebuttal. Prior to Mr. Ross testifying, defense counsel moved for a mistrial based on his knowledge that the witness would invoke the Fifth Amendment. The motion was denied.

Mr. Ross, after being advised of his Fifth Amendment rights by the trial judge, answered a few of the Commonwealth’s questions before refusing to respond to the query of “What kind of car” he was driving “about July 29th, 1977[.]” (N.T. 188) At this point, the Commonwealth’s attorney stated to the trial judge that he had been authorized by the District Attorney to grant immunity to the witness as to “any and all prosecutions arising out of the case at bar, and all involvement he may have had in any way, shape or form arising out of an incident, which [was] a burglary, that occurred on or about July the 29th, 1977, at My Little Margie’s Bar.” Id. at 189. Though the trial judge issued an immunity decree from the bench, the witness, through his counsel, still refused to testify. Appellant’s counsel again moved for a mistrial which was granted.

On appeal, appellant contends that the mistrial was caused by “intentional or grossly negligent misconduct on the part of the prosecutor,” in that he (the prosecutor) knew that the witness would utilize the Fifth Amendment privilege, and, therefore, he tried to intimidate the witness by the offer of immunity. (Appellant’s Brief at 7) The test to be applied in this instance is whether the Commonwealth engaged in either intentional or bad faith “overreaching.” Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980).

Generally, the double jeopardy clause does not bar retrial of a defendant who obtains a new trial upon his request for a mistrial. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 52 L.Ed.2d 80 (1977). As the Supreme Court of the United States explained in United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion) (Harlan, J.):

“[W]here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.”

This restriction on the double jeopardy clause, however, is not without its own limitations. The Supreme Court has held that double jeopardy will bar retrial if the defendant sought the mistrial as a result of prosecutorial misconduct amounting to overreaching. See Lee v. United States, supra, 432 U.S. at 32, 97 S.Ct. at 2147; United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). Our own high Court has adhered to such standard in deciding whether a retrial is barred; for example, in Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980), the Court stated:

“The only exception to the rule permitting retrial is where a defendant’s mistrial request is necessitated by prosecutorial error committed intentionally to force the accused to move for mistrial, thereby affording the prosecution another, possibly more favorable, opportunity to convict. When such governmental overreaching or bad faith is found to exist, the double jeopardy clause will bar retrial.” (Citations omitted) Id., 488 Pa. at 78, 410 A.2d at 1234.

In the present case, the Commonwealth produced the proprietor of the bar that had been burglarized. The witness recounted that the rear window to the premises and the doors to the back entrance were damaged. He also discovered that money was removed from the vending machines and cash register, as well as a number of liquor bottles from the bar shelf. The police were duly informed of the theft.

Officer Holmes, called on behalf of the Commonwealth, recalled that while on duty in the early morning hours of July 29, 1977, he observed a vehicle run a traffic light. After the vehicle was brought to a stop, the driver exited it and started walking toward the officer. At this point, the officer directed the individual to return to his vehicle and remain there. When the officer approached the vehicle he observed, in plain view, a large quantity of cigarettes, alcohol and money scattered over the rear seat. The driver and the occupant were ordered to place their hands on the dash. The officer removed the keys from the ignition and walked to his cruiser. As he did so, he heard doors opening and saw the driver running from the scene. The officer did not pursue the escapee; however, he did state, unequivocally, that the appellant was the driver, that he saw him for a total of “[m]aybe two or three minutes[,]” and came in contact with him “[a]bout a foot” outside the vehicle for “[m]aybe a minute to two minutes.” (N.T. 35, 36)

On cross-examination, the witness did not waver on the issue of identification. In fact, he described what the appellant was wearing and his physical characteristics. Id. at 37.

Only after the appellant put on his case, which consisted of an alibi defense and a claim of misidentification, did the Commonwealth decide to call Timothy Ross on rebuttal. At this stage of the trial, it cannot be said that the Commonwealth’s case was going badly, such that aborting the proceedings would have “afford[ed] the prosecution another, possibly more favorable, opportunity to convict.” Commonwealth v. Mitchell, supra, 488 Pa. at 78, 410 A.2d at 1234; see also Commonwealth v. Anderson, 294 Pa.Super. 1, 439 A.2d 720 (1981) (POPOVICH, J., Concurring Opinion) (Whether a case is progressing favorably for the Commonwealth, prior to a motion for a mistrial, is a factor to consider in determining if prosecutorial misconduct has occurred to bar reprosecution); accord Commonwealth v. Clark, 287 Pa.Super. 380, 430 A.2d 655 (1981).

Ostensibly, the prosecution called Mr. Ross, the appellant’s brother and the person the father identified as driving the vehicle in question on the day of the burglary, to counter appellant’s claim that he was not the operator of the vehicle stopped by the police. Thus, the question to be resolved is whether it is proper for the Commonwealth to call a witness who it believes, in good faith, will testify and not invoke the Fifth Amendment.

To resolve the issue posed, we look to Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973), where the Court held that:

“the prosecution, once informed that a witness intends to claim a privilege against self-incrimination, commits error in calling that witness to the stand before the jury where the witness is a person (co-defendant, accomplice, associate, etc.) likely to be thought by the jury to be associated with the defendant in the incident or transaction out of which the criminal charges arose.” Id., 453 Pa. at 217, 307 A.2d at 234.

In so holding, the DuVal Court recognized that the trier of fact might unjustifiably draw an inference of guilt from a witness’ refusal to testify and transfer such negative inference to defendant because of his association with the witness. Id., 453 Pa. at 213-14, 307 A.2d at 232-33.

Given the stated purpose for which the law frowns upon the calling of a witness associated with the accused, provided the prosecutor knows that such person will invoke his privilege against self-incrimination, we find that the instant case is not an exemplar of those situations in which reprosecution would be barred. See, e.g., Commonwealth v. Virtu, 495 Pa. 26, 432 A.2d 198 (1981).

To start with, at trial, the appellant’s counsel objected to Mr. Ross testifying and made a motion for a mistrial on the ground that the Commonwealth was “fully aware that this individual [would] utilize the . . . Fifth Amendment . . . . ” (N.T. 182) The motion was denied by the trial court. A review of the record lends credence to such action. For example, when the Commonwealth’s attorney sought to have the witness take the stand, he stated, in response to the allegation made, that: “Should, in fact, in this case this defendant and this witness, Mr. Timothy Ross, invoke the Fifth Amendment . . .,” id. at 183, the finder of fact would have to draw a favorable inference from such invocation. Thus, but for the unsubstantiated assertion by appellant’s counsel, we determine that there was an absence of evidence to prove that the Commonwealth knew, in advance, that the witness was predisposed to plead the Fifth Amendment. See Namet v. United States, 373 U.S. 179,188, 83 S.Ct. 1151, 1155, 10 L.Ed.2d 278 (1963) (“It is true, of course, that [the attorney for the defendant] announced that the [witnesses the prosecution sought to have testify against the defendant] would invoke their testimonial privilege if questioned. But certainly the prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous.”).

Consequently, having determined that the Commonwealth’s actions, which prompted the mistrial, were neither intentional nor motivated by bad faith, we will let stand the lower court’s Order.

Order affirmed.

      . Under Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977) and Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (plurality opinion), a defendant may appeal an order denying his pre-trial motion for relief under the double jeopardy clause.

      . Even if, arguendo, such were the case, the actions of the party calling said witness to the stand would not be condoned. The Court in Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971) applied the “principle that the jury may not draw any inference from a witness’ exercise of his constitutional rights whether the inference be favorable to the prosecution or the defense, ... [to] th[e] rule that a witness should not be placed on the stand for the purpose of having him exercise his privilege before the jury.” (Emphasis in original) Id., 445 Pa. at 232, 285 A.2d at 867.

      . Indeed, the trial judge specifically found that there was no prosecutorial misconduct. (N.T. 199) Appellant’s counsel implicitly acceded to this when he stated that prosecutorial misconduct would not be the basis of any double jeopardy motion he might file. Id. at 199-200.


text:
    441 A.2d 1301
    Eileen CUNNINGHAM, Appellant, v. RELIANCE INSURANCE COMPANIES.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Feb. 19, 1982.

      Daniel L. Thistle, Philadelphia, for appellant.
    Bernard F. Pettit, Philadelphia, for appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the trial court’s order which dismissed appellant’s motion for a new trial and for a judgment notwithstanding the verdict. For the reasons herein stated, that appeal will be quashed.

The facts which are undisputed are as follows:

On August 28, 1978, appellant-plaintiff, Eileen Cunningham, age 19, and a resident of the Commonwealth of Pennsylvania, was a passenger on a motorcycle owned and operated by Leroy J. Brown, a resident of the State of New Jersey. Appellant was neither a relative of Leroy Brown nor was she a member of his household. While the motorcycle was proceeding on Buckshutem Road in Milleville, New Jersey, it was involved in a collision with an automobile operated by Robert Henderson, a New Jersey resident. As a result of this accident, the appellant sustained substantial bodily injuries for which she is still being treated. As of June, 1979, her incurred medical expenses amounted to $37,691.40.

The matter proceeded before a judge, sitting without a jury, and a verdict was rendered for appellee on January 29, 1980. Appellant then filed a motion for a new trial and for judgment notwithstanding the verdict. The motion was dismissed. No final judgment has been entered at the trial level.

Both parties agree that the order which forms the basis of the instant appeal is from the trial court’s order which dismissed appellant’s “exceptions”. However, although the appellee does not raise the issue, the appealability of an order is jurisdictional and may be raised sua sponte. Turner v. May Corp., 285 Pa.Super. 241, 245 n.2, 427 A.2d 203, 204 n.2 (1981).

We have said repeatedly that an order dismissing exceptions is interlocutory, and as such, an appeal may not be entertained until a final judgment has been entered. See Davanzo v. Finelli, 293 Pa.Super. 70, 437 A.2d 995 (1981); Whitfield v. Farrior, 291 Pa.Super. 220, 435 A.2d 877 (1981); Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1981). Consequently, the merits of the issues raised by appellant cannot be addressed.

The appeal is quashed.

      . We note that even though the appellant had styled her objections as a motion for judgment notwithstanding the verdict and a new trial, and not as “exceptions”, the trial court acted properly in considering the motion on the merits as though it had been captioned as “exceptions”. See Norris Van Tops, Inc. v. Kopitsky, 278 Pa.Super. 77, 419 A.2d 1365 (1980).

      . We note that although both parties agree that the instant appeal lies from the trial court’s order which dismissed the “exceptions”, a discrepancy exists concerning the actual date that the “exceptions” were dismissed. This discrepancy appears to have stemmed from the fact that the trial court’s order is dated May 19th, 1980, and the date which is handwritten and inserted on the docket entry is May 28th, 1980. This factual discrepancy, however, does not affect our disposition of the case.


text:
    441 A.2d 1302
    Carl A. VENO and Carl T. Davies, Appellants, v. Charles M. MEREDITH, III, Ella C. Meredith and the Free Press.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1981.
    Filed Feb. 19, 1982.

      John M. Yarema, Allentown, for appellants.
    William Thatcher, Quakertown, for appellees.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   POPOVICH, Judge:

Appellants appeal from an order sustaining appellees’ preliminary objections in the nature of a demurrer to the third causes of action in a two count Complaint in Assumpsit and Trespass. The first two causes of action were in assumpsit and alleged that the appellees illegally terminated the contract of employment entered into with the appellants. The third causes of action were in trespass and claimed that appellees, in printing a retraction in their newspaper regarding an article about a public figure—the writing of which was attributed to the appellants, intentionally ran false, malicious and defamatory libels concerning the appellants. We quash.

Although neither party has specifically questioned the jurisdiction of this Court to resolve the present controversy, it is axiomatic that neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). The mere assertion of the appellants in their brief that jurisdiction is conferred on the Superior Court over this matter by reason of the Act of July 9, 1976, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 701 et seq. (Pamphlet, 1980) is not dispositive of the question. Accordingly, we reach the appealability of the trial court’s order sua sponte. Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981); MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815 (1976).

The appellate court’s jurisdiction is defined by statute, i.e., 42 Pa.C.S.A. § 742 (Purdon’s 1981), which grants this Court “exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas . . . . ” (Emphasis added) In deciding what constitutes a “final order,” the courts of this Commonwealth have adhered to the approach of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to “a practical rather than technical construction” of an order. In Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), our own Supreme Court set forth those factors which need to be considered, in light of Cohen's pronouncement, in deciding the finality question; viz.:

“In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536.
We applied Cohen in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), where we said: ‘Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.’ We have also said that if the practical consequence of the order by the trial court is effectively to put an appellant ‘out of court’ the order will be treated as final. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). Similarly, an order is ‘final’ if it precludes a party from presenting the merits of his claim to the lower court. Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970).”
Id., 483 Pa. at 73, 394 A.2d at 545.

Application of the criteria of Cohen to the instant case evidences its interlocutory nature. The order of the lower court regarding the issue of defamation is, indeed, collateral to the basic question of breach of contract, and it does not involve a right too important to be denied review. More importantly, the order does not adversely affect a claimed right which will be irreparably lost if review is postponed. Although appellants must in the first instance proceed to litigate the contract question below, they are not foreclosed from attacking the validity of the order as it pertains to their libel claim in post-trial motions, see, e.g., Pa.R.Civ.P. 227.1, 1038 and 1048, and, if the ruling issued is adverse to appellants, the matter will then be ripe for appeal. Further, the issue is neither waived nor mooted by the inability of appellants to appeal at this stage.

Consequently, consistent with our holdings that an order dismissing some but not all of the counts of a multi-count complaint is interlocutory and is not appealable since appellant is not out of court, see Johnson v. National Life and Accident Insurance Co., 293 Pa.Super. 300, 438 A.2d 1004 (1981); Esh v. Awglis, 291 Pa.Super. 528, 436 A.2d 242 (1981), and our “ ‘policy of precluding “piecemeal determinations and the consequent protraction of litigation”,’ ” Esh v. Awglis, supra, 291 Pa.Super, at 528, 436 A.2d at 242, we find that the order appealed from is interlocutory. Pugar v. Greco, supra.

Accordingly, the appeal from the order of the court of common pleas is quashed.

DiSALLE, J., did not participate in the consideration or review of this case.


author: SHERTZ, Judge:

text:
    441 A.2d 1304
    COMMONWEALTH of Pennsylvania v. Clyde R. BANKERT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1981.
    Filed Feb. 19, 1982.
    Joel 0. Sechrist, York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.

      Before PRICE, JOHNSON and SHERTZ, JJ.

       Decision was rendered prior to SHERTZ, J. leaving the bench of the Superior Court of Pennsylvania.

   SHERTZ, Judge:

This is an appeal from an Order of support directing Appellant father to pay $10 per week, for a period of one year, toward the cost of practical nurse’s training for his daughter. Appellant raises one issue for our consideration: “Whether the entry of a support order against the Appellant for post-high school education for a child constitutes undue hardship.” Brief for Appellant at 2. Because Appellant, by his failure to file exceptions to the Order, has waived this issue, we must affirm the Order.

At the time this appeal was taken, Pennsylvania Support Proceedings, 42 Pa.Cons.Stat.Ann. § 6701 et seq. mandated that a party file exceptions with the lower court in order to preserve issues for appeal. As this Court in Paul v. Paul, 281 Pa.Super.Ct. 202, 421 A.2d 1219 (1980) succinctly stated:

62 P.S. § 2043.35(f) provides that an action commenced under the Pennsylvania Civil Procedural Support Law “shall be a civil action in accordance with the Rules of Civil Procedure.” Although section 2043.35 was repealed on June 27, 1978, by 42 Pa.C.S.A. § 2002(a) [1291] (1979 Pamphlet), the Official Note to 42 Pa.C.S.A. § 6704 (1979 Pamphlet), which is substantially a reenactment of section 2043.35, states that subsection (f) of the repealed provision is “to be given effect in construing section 6704. . . . ” Thus, there is no question but that exceptions must be filed to a support order in order to preserve objections for appeal.

Id., 281 Pa.Super. at 210, n.ll, 421 A.2d at 1223, n.ll.

Order affirmed.

      . We note that the Supreme Court has recently abrogated this requirement. See, Rules 1910.11(k), 1910.12(g), and Comments, Rules of Civil Procedure Governing Actions for Support (effective 7/23/81).


text:
    441 A.2d 1305
    COMMONWEALTH of Pennsylvania v. Taylor DIXON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1981.
    Filed Feb. 19, 1982.

      Norman D. Callan, Altoona, for appellant.
    Charles P. Wasovich, Assistant District Attorney, Altoona, for Commonwealth, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

The sole question raised by Appellant is whether the court below erred in granting the Commonwealth’s petition for extension pursuant to Pa.R.Crim.P. 1100(c) and in denying Appellant’s petition to dismiss. We answer that question in the affirmative and, hence, reverse the order of the court below denying and dismissing Appellant’s petition to dismiss the charges pursuant to Pa.R.Crim.P. 1100(f).

The salient facts are as follows. Appellant was arrested on May 4, 1978, upon a complaint filed on the same date. Following a preliminary hearing and arraignment, the matter was scheduled for a jury trial to be held on August 23, 1978, but the trial was continued at the Commonwealth’s request. The case was then re-scheduled for trial on October 26,1978, during the October Term of criminal jury trials.

On November 8, 1978, the Commonwealth’s petition for extension pursuant to Pa.R.Crim.P. 1100(c) alleged due diligence on the part of the Commonwealth and stated:

This matter was scheduled for August 23, 1978; however, due to the backlog of the criminal docket, this matter was not reached. This matter was again scheduled for October 26,1978, but again was not reached due to the backlog of the criminal docket.

Appellant denied that the Commonwealth exercised due diligence to bring the case to trial and under New Matter averred:

The term of Court at which this case was last scheduled, ended Friday, November 3, 1978. The jury panel was dismissed on Thursday, November 2, 1978. This case was involving (sic) a third degree misdemeanor, and trial of the cause would take now [sic] longer than one (1) day. The matter could have been held within the last trial term, had the jury not been prematurely dismissed.

A hearing on the petition was scheduled for November 22, 1978. Although Appellant and the Commonwealth agree that a hearing was held on the petition, the docket entries and the record do not so reflect. Despite that fact, the court below granted the petition to extend.

On January 4, 1979, Appellant filed a petition to dismiss pursuant to Pa.R.Crim.P. 1100(f). A hearing on Appellant’s petition was held. There was no evidence introduced at the hearing regarding the number of pending criminal cases, See Commonwealth v. Smith, 269 Pa.Super.Ct. 424, at 430, 410 A.2d 329, at 332, nor was any reason given as to why the court could not, despite its limited resources, try the case during the October term, nor was any testimony introduced showing what efforts, if any, the Commonwealth had made to see that the case was tried on time.

In Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-50 (1976), our Supreme Court set forth the conditions which must be met before the trial court may grant an extension under Pa.R.Crim.P. 1100(c):

“Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the ‘due diligence’ of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.”

See Commonwealth v. Berry, 271 Pa.Super.Ct. 466, 472, 414 A.2d 130, 133 (1979). Moreover, it is well established that:

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, as remains uncontradicted. See Commonwealth v. Mitchell, supra.

Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979).

In order to meet the Commonwealth’s burden, prosecutors must do everything reasonably within their power to see that the case is tried on time. Commonwealth v. Smith, 269 Pa.Super.Ct. 424, 410 A.2d 329 (1979). Although the trial court is ultimately responsible for the proper management of the criminal calendar, Commonwealth v. Mayfield, 469 Pa. at 218, 364 A.2d at 1347, the prosecutor and the Court administrator share such responsibility, at least in the first instance. Commonwealth v. Smith, 269 Pa.Super.Ct. at 428, 410 A.2d at 331; Commonwealth v. Metzger, 249 Pa.Super.Ct. 107, 115, 375 A.2d 781, 785 (1977); See Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d at 1348.

In the absence of a record meeting the requirement of Commonwealth v. Mayfield, this Court must conclude that the trial court erred in granting the Commonwealth’s petition to extend and in denying Appellant’s motion to dismiss. Commonwealth v. Reynolds, 277 Pa.Super.Ct. 145, 419 A.2d 703 (1980).

The judgment of sentence is reversed and Appellant discharged.

This case was decided prior to the expiration of SHERTZ, J.’s commission of office.

DiSALLE, J., did not participate in the consideration or review of this case.

      . Appellant was charged with Driving Under the Influence of an Intoxicant, 75 Pa.Stat. § 3731 (Purdon 1977).

      . It is not disputed that Appellant was prepared to commence trial at that time.

      . Accordingly, there is no transcript of such hearing available.

      . At the hearing on Appellant’s petition the Court administrator testified. His testimony is summarized as follows. When the October court term, lasting three weeks, ended, Appellant’s case was the next case to be tried. During the October term two separate juries were impaneled. The jury panel in Courtroom No. 1 was dismissed during the second week of Criminal Court and the jury panel in Courtroom No. 2 was dismissed “the next to the last day.” The Court administrator also testified that on Friday of the third week “there were activities” in both courtrooms. Although the court administrator’s testimony is somewhat vague it would appear that “pleas” were heard on Friday of the third week.

      . The Commonwealth’s brief appends the guilty pleas taken by the court on November 3, 1978. Since it is apparent from the record that this information was not offered in evidence in the court below, we have given it no consideration.

      . In accordance with Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980), we are precluded from remanding for the purpose of giving the Commonwealth a “second bite” at meeting its burden on the due diligence requirement. See Commonwealth v. Alston, 286 Pa.Super.Ct. 290, 428 A.2d 997 (1981).


author: HOFFMAN, Judge:

text:
    441 A.2d 1308
    COMMONWEALTH of Pennsylvania v. Robert L. HAWKINS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1981.
    Filed Feb. 19, 1982.

      Sally A. Frick and G. William Bills, Jr., Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Following a jury trial, appellant was convicted of twenty-seven counts each of theft by deception, receiving stolen property, and misapplication of government property, as well as one count each of tampering with witnesses and criminal conspiracy. For the reasons that follow, we find appellant’s contentions meritless and, accordingly, affirm the judgment of sentence.

I.

Appellant contends that the lower court erred in denying his pre-trial motion to dismiss the charges on the ground that the statute of limitations had expired. All of the offenses relate to a ghost employee scheme perpetrated while appellant was the director of the Allegheny County Department of Manpower (ACDOM). They would, therefore, be subject to the two-year statute of limitations contained in 18 Pa.C.S.A. § 108(b)(2) (repealed). However,

[i]f the period prescribed in [18 Pa.C.S.A. § 108(b)(2)] has expired, a prosecution may nevertheless be commenced for:
(2) Any offense committed by a public officer or employe in the course of or in connection with his office or employment at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

18 Pa.C.S.A. § 108(c)(2) (repealed). Appellant argues that subsection 108(c)(2) of the Crimes Code requires that the prosecution of a public officer or employe be commenced within two years of his leaving the particular “public office or employment” occupied at the time he committed the offenses charged. Accordingly, because the informations were not filed until April 20, 1978, two years and one day after appellant left ACDOM, his prosecution would be barred by the statute of limitations. We disagree. Appellant’s construction of subsection 108(c)(2) is unduly restrictive. The phrases “public officer or employe” and “office or employment” are not limited or qualified. By contrast, the predecessor to subsection 108(c)(2) contained an express limitation or qualification of the nature advocated by appellant.

And provided also, That indictments for malfeasance, misfeasance, or nonfeasance in office, or for extortion or blackmail by color of office, or for embezzlement of public moneys or property, or for any misdemeanor in office, or for any conspiracy to commit any of said offenses heretofore or hereafter committed by any officer or employe of this Commonwealth or of any agency thereof, or of any city, county, borough, township, or school district or of any agency thereof, and their accomplices and confederates, may be brought or exhibited at any time within two years from the time when said public officer or said employe shall have ceased to occupy such office or such employment, but in no event more than six years from the commission of the offense.

Act of March 31,1860, P.L. 427, § 77, as amended by the Act of April 6, 1939, P.L. 17, § 1; 19 P.S. § 211 (repealed) (emphasis added). Consequently, we construe subsection 108(c)(2) as providing an exception to the statute of limitations whenever the “public officer or employe” has continuously occupied any “office or employment,” and not just the particular “office or employment” occupied at the time of the offense. See Statutory Construction Act of 1972, Act of December 6, 1972, No. 290, § 3, 1 Pa.C.S.A. § 1921(c)(5) (in determining legislative intent, court may consider “[t]he former law, if any, . . . upon the same or similar subjects”). It is thus of no consequence that appellant left ACDOM on April 19, 1976, because he immediately was transferred to the payroll of the Allegheny County Commissioners where he remained as a commissioner’s secretary until March 22, 1977. He was, therefore, continuously a “public officer or employe” from the time of the commission of the offenses until March 22, 1977. Thus, because the informations were filed approximately thirteen months after appellant left “public office or employment,” his prosecution was timely commenced. Accordingly, the lower court properly denied his pre-trial motion to dismiss the charges.

II.

The incidents underlying this appeal concern appellant’s involvement with Robert Ficklin. At trial, the Commonwealth introduced over appellant’s objection, evidence concerning appellant’s involvement in substantially similar schemes with others not mentioned in the present informations. Appellant contends that the lower court erred in admitting this evidence of other crimes because he was unable to prepare an adequate defense.

The prosecution generally may not introduce evidence that a defendant has committed other crimes as evidence of his guilt for the particular crime charged. See, e.g., Commonwealth v. Stanley, 484 Pa. 2, 7, 398 A.2d 631, 633 (1979); Smith v. LeFlore, 293 Pa.Superior Ct. 149, 152, 437 A.2d 1250, 1252 (1981). The rule stems from a recognition that evidence of other crimes is likely to prejudice the finder of fact and create an emotional reaction effectually stripping the accused of the presumption of innocence because proving commission of one crime does not entail proof of another, but merely bad character which cannot support an inference of guilt. See, e.g, Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978); Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972); Commonwealth v. Wright, 259 Pa. Superior Ct. 293, 393 A.2d 833 (1978). Special circumstances justifying exceptions to the general rule exist when the evidence of other crimes also tends to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related that proof of one tends to prove the other; or (5) the identity of the person committing the crime charged. See, e.g., Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269 (1973); Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334, 336 (1955); Commonwealth v. Hude, 256 Pa. Superior Ct. 439, 442-43, 390 A.2d 183, 184-85 (1978). Additionally, evidence that a defendant has committed another crime may be admitted when it tends to show that the accused has attempted to conceal the commission of the crime charged or to escape its consequences. Commonwealth v. Terrell, 234 Pa. Superior Ct. 325, 339 A.2d 112 (1975). Even when one of these exceptions applies, however, the trial court must still balance the need for the other crimes evidence against the potential prejudice to the accused. See Commonwealth v. Ulatoski, 472 Pa. 53, 63 n.11, 371 A.2d 186, 191 n.11 (1977); Commonwealth v. Wright, supra, 259 Pa.Super. at 299, 393 A.2d at 836; Commonwealth v. Hude, supra, 256 Pa.Super. at 445, 390 A.2d at 186.

Appellant concedes that the challenged evidence falls within any number of the above exceptions, is logically connected to the crimes charged, and would be admissible but for the inherent prejudice from his inability to prepare an adequate refutation of that evidence. We disagree. “When the evidence is relevant and important to one of these [exceptions], it is generally conceded that the prejudicial effect may be outweighed by the probative value.” Commonwealth v. Peterson, supra at 198, 307 A.2d at 269-70. “Where the testimony is admissible under the traditional exceptions counsel for an accused can anticipate its introduction and thus prepare a response.” Commonwealth v. Spruill, supra, 480 Pa. at 606, 391 A.2d at 1051. Moreover, appellant's bald assertion of prejudice is refuted by the record. As the court below aptly noted at page 15 of its opinion:

[Appellant’s] present, as well as his prior counsel, have at all times had available to them the statements of all witnesses whether relating to the present information or [the] other informations, and the grand jury testimony relating to all cases. In addition, during the course of trial, which lasted some three weeks, the Commonwealth sought a preliminary ruling from the trial judge concerning the admissibility of such evidence before it was presented.... He and his counsel at all times have been fully aware of all of the charges and all of the government’s evidence against him relating to those charges. Thus, it appears that not only was the information in fact available to [appellant] prior to and during the trial, he could have received, by resort to [Pa.R.Crim.P.] 305, any additional information that he might have desired. The vigorous and thorough use by defense counsel at the trial, of statements and grand jury testimony in cross-examining witnesses and in meeting the Commonwealth’s evidence belies the claim now made by him that in some way his defense was hampered.

Consequently, we conclude that the lower court did not err in admitting the challenged evidence.

III.

Appellant contends also that the lower court erred in: (A) sua sponte instructing the jury not to consider the consequences to appellant if they were to return a guilty verdict; (B) refusing to specifically identify for the jury several allegedly key Commonwealth witnesses whose testimony should have been closely scrutinized because they were among appellant’s accomplices; (C) refusing to charge that lack of force was not an element of the misdemeanor offense of tampering with witnesses; and (D) improperly instructing concerning the requisite mental element of misapplication of government property. We find, however, that the trial judge adequately instructed the jury.

A.

The trial judge specifically instructed the jury that it was not to consider the consequences to appellant were they to return a guilty verdict. The instruction, based upon that given in Commonwealth v. Corbin, 426 Pa. 24, 27, 231 A.2d 138, 139 (1967); and Coyle v. Commonwealth, 100 Pa. (4 Outerbridge) 573, 577 (1882); see also Pennsylvania Standard Jury Instructions, Criminal ¶ 7.05(4) (Subcommittee Draft, January 20, 1977), was not inappropriate. See Commonwealth v. Kauffman, 155 Pa. Superior Ct. 347, 354, 38 A.2d 425, 428 (1944) (“where accused’s counsel adverts impassionately to irrelevant and extraneous matter ... a judge who enjoins a jury to confine its deliberations to determining the defendant’s guilt or innocence cannot be convicted of dereliction .... ”).

B.

Appellant argues that the trial judge should have specifically identified for the jury the names of several accomplice-witnesses. We disagree. The court is free to select its own form of expression in charging the jury, so long as the issue is adequately, accurately, and clearly presented. When the basic charge covers a requested point, it is not error to refuse to give additional instructions. Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (1975); Perigo v. Deegan, 288 Pa.Superior Ct. 93, 431 A.2d 303 (1981); Commonwealth v. Gardner, 246 Pa. Superior Ct. 582, 371 A.2d 986 (1977). Only in exceptional cases will a trial judge be reversed on the basis that his summary of facts for the jury was inadequate. See, e.g., Commonwealth v. Wertheimer, 23 Pa. Superior Ct. 192, (1903); Blank v. Barnhart, 17 Pa. Superior Ct. 214 (1901). The trial judge instructed the jury that it “should closely and separately examine the testimony of each of those persons, that is Mr. Ficklin, Mr. Wilson, and any other person who might, in your determination have been an accomplice in those events and occurrences, and accept the testimony of such persons only with caution and only with care.” (N.T. L.A. Vol. IV, at 1229). We are satisfied that the quoted portion of the charge was sufficient to enable the jury to evaluate the testimony of all the alleged accomplices. Accordingly, the trial judge did not err in refusing to specify the identity of any other alleged accomplice-witnesses.

C.

Appellant argues next that the lower court erred in refusing to charge the jury that lack of force was not an element of the misdemeanor of tampering with witnesses. We disagree. A trial judge has a duty to clarify the relevant issues “so that the jury may comprehend the questions they are to decide and not only to state to the jury correct principles of law applicable to the pending case.” Commonwealth v. Davison, 243 Pa. Superior Ct. 12, 20, 364 A.2d 425, 429 (1976), quoting Commonwealth v. Zeger, 200 Pa. Superior Ct. 92, 97-98, 186 A.2d 922, 925 (1962). Cf. Perigo v. Deegan, supra, 288 Pa.Super. at 100, 431 A.2d at 305-06 (only issues which are relevant to the pleadings and proofs may be the subject of a jury instruction in a civil case). “There is no duty on a trial judge to charge upon law which has no applicability to presented facts.” Commonwealth v. Dessus, 214 Pa. Superior Ct. 347, 364, 257 A.2d 867, 875 (1969). Accord, Commonwealth v. White, 490 Pa. 179, 182, 415 A.2d 399, 400 (1980); Commonwealth v. Showalter, 275 Pa. Superior Ct. 1, 4, 418 A.2d 580, 582 (1980). Indeed, in charging a jury, the judge may not inject improper issues. See Heyman v. Electric Service Manufacturing Co., 412 Pa. 338, 345-46, 194 A.2d 429, 432 (1963). Accord, Commonwealth v. Kwatkowski, 267 Pa. Superior Ct. 401, 409, 406 A.2d 1102, 1106 (1979) (“It was . . . injudicious for the court below to read to the jury portions of [18 Pa.C.S.A.] § 4907 not pertinent to the instant proceedings.”). Section 4907 of the Crimes Code states:

Tampering with witnesses and informants.
(a) Offense defined.—A person commits an offense if, believing that 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; or
(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.C.S.A. § 4907. Appellant was charged only with the misdemeanor version of the offense. Thus, use of force was an irrelevant consideration. See Commonwealth v. Hobson, 484 Pa. 250, 398 A.2d 1364 (1979) (defendant not prejudiced by failure to give jury example of lesser degree of offense when charge was adequate as whole). To have given the requested instruction concerning lack of force would have engendered confusion by placing an extraneous matter before the jury. See Commonwealth v. White, supra (court should not invite jury to choose between felony and misdemeanor degrees of offense as to determine extent of punishment); Commonwealth v. Kwatkowski, supra. See also Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980); Perigo v. Deegan, supra. Accordingly, the lower court properly refused to so instruct the jury.

D.

Appellant’s final challenge to the jury charge concerns the requisite mental element of misapplication of government property. In reviewing a trial court’s instructions to the jury, an appellate court must consider the entire charge and its general effect controls. See, e.g., Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977); Commonwealth v. Rogers, 459 Pa. 129, 327 A.2d 118 (1974). The trial judge read to the jury the statutory definition of the offense, 18 Pa.C.S.A. § 4113(a) (“A person commits an offense if he applies . . . property of the government ... in a manner which he knows is unlawful ...” (emphasis added)), and the definitions of the terms “intentionally,” “knowingly,” and “negligently,” id. § 302(b)(1), (2), (4). Additionally, he distinguished the differing kinds of culpability, and twice stated the particular degree required to be proven in relation to each offense. It is not error to read applicable statutes to the jury. See, e.g., Commonwealth v. Reston, 224 Pa. Superior Ct. 80, 83, 302 A.2d 428, 429 (1962). Accord, Commonwealth v. McClellan, 270 Pa. Superior Ct. 597, 601 02, 411 A.2d 1246, 1248-49 (1979). This procedure was sufficient to place the issue of intent properly before the jury. See Commonwealth v. Bellis, 252 Pa. Superior Ct. 15, 28, 380 A.2d 1258, 1264 (1977), affirmed in part, reversed in part on other grounds, 484 Pa. 486, 399 A.2d 397 (1979).

Judgment of sentence affirmed.

      . This case arose before the effective date of the time limitations contained in the Judicial Code, 42 Pa.C.S.A. § 5552(a), (c).

      . “An offense is committed either when every element occurs, or ... when [a continuing] course of conduct or the complicity of the defendant therein is terminated. Time starts to run on the day after the offense is committed.” 18 Pa.C.S.A. § 108(d) (repealed).

      . The Act of March 31, 1860, was not expressly repealed by section 108 of the Crimes Code, 18 Pa.C.S.A. § 108, but the Judicial Code repealed both. See Commonwealth v. Bidner, 282 Pa. Superior Ct. 100, 112, 422 A.2d 847, 853 (1980).

      . Because of our disposition of this issue, we need not address the lower court’s alternative bases for sustaining the timeliness of the prosecution.

      . Appellant argues also that the lower court erred in failing to submit the statute of limitations issue to the jury. We disagree. When the evidence substantiating an exception to the statute of limitations is unrebutted, the trial judge may take the issue from the jury. Commonwealth v. Hoffman, 263 Pa. Superior Ct. 442, 448, 398 A.2d 658, 661 (1979) (applying 18 Pa.C.S.A. § 108(c)(1)). In light of the stipulation that appellant was continuously in public employment until March 22, 1977, the trial judge properly took the issue from the jury.

      . Appellant argues also that because the Commonwealth is not required to provide pretrial notice that it intends to introduce evidence of other crimes not charged, he was denied various constitutional protections. Because issues, even those of constitutional dimension, cannot be raised for the first time on appeal, his contentions have been waived. Pa.R.A.P. 302(a); Wiegand v. Wiegand, 461 Pa. 482, 484, 337 A.2d 256, 257 (1975); Commonwealth v. Thurmond, 268 Pa. Superior Ct. 283, 286, 407 A.2d 1357, 1359 (1979).

      . Contrary to appellant’s assertion, the instruction did not unduly chastise defense counsel. Indeed, the trial judge’s prefatory remarks complimented both sides for their diligence at trial.

      . Appellant argues also that the lower court erred in failing to give a “strong charge” concerning the credibility of accomplice-witnesses. See Commonwealth v. Didio, 212 Pa. Superior Ct. 51, 58, 239 A.2d 883, 886 (1968). We disagree. First, appellant does not suggest how the charge could have been made “stronger.” Second, he cannot now contend that the charge, as given, was inadequate. The charge was substantially in the form requested by appellant. Compare
        Appellant’s Points for Charge, pp. 1-2, with N.T. L.A. Vol. IV at 1227-31. See also id. at 1178-79 (in-chambers conference concerning jury charge). Moreover, the charge, as given, correctly stated the law.

      . Appellant argues also that the Commonwealth unconstitutionally deprived him of a prospective defense witness by advising the court and defense counsel that it was then in the process of preparing a perjury information against the witness. This issue has been waived because appellant failed to assert it in his post-trial motions. Pa.R. A.P. 302(a); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).


text:
    441 A.2d 1315
    John BARREN and Josephine Barren, his wife, and Henrietta Barren v. John M. DUBAS and Jean Dubas, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued May 12, 1981.
    Filed Feb. 19, 1982.

      Anthony J. Popeck, Scranton, for appellants.
    W. Boyd Hughes, Scranton, for appellees.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

This is an appeal from a final decree recognizing that an easement exists across appellants’ property, ordering appellants to restore access to the easement, and enjoining thém from interfering with appellees’ use of it. Because we conclude that the lower court lacked jurisdiction, we must vacate the decree and remand for further proceedings.

In December 1977, appellees filed a complaint in equity alleging that they had obtained a prescriptive easement to an alleyway traversing appellants’ adjoining parcel of land in Peckville, Lackawanna County. Appellees also sought to compel appellants to restore access to the alleyway and to prohibit them from interfering with appellees’ use of it. Following a hearing, the lower court entered a decree nisi recognizing the existence of the easement and granting the requested injunctive relief. Appellants timely filed exceptions alleging, inter alia, that the lower court erred in failing to permit them to introduce evidence that they had conveyed a portion of the servient tenement to Patrick and Helen Gillott prior to the commencement of these proceedings. The lower court ruled that the Gillotts were indispensible parties to these proceedings, modified the decree nisi, and affirmed it as modified. This appeal followed.

Failure to join an indispensible party “goes absolutely to the court’s jurisdiction and the issue should be raised sua sponte.” Huston v. Campanini, 464 Pa. 147, 150, 346 A.2d 258, 259 (1975), quoting Tigue v. Basalyga, 451 Pa. 436, 438, 304 A.2d 119, 120 (1973). See also Pa.R.Civ.P. 1032(1) (defense of failure to join indispensable party not waived by failure to raise it by preliminary objection, answer, or reply). “As we have said many times, if all necessary and indispensible parties are not parties to an action in equity, the court is powerless to grant relief.” Huston v. Campanini, supra, 464 Pa. at 150, 346 A.2d at 259 (citations omitted). See also Patwardhan v. Brabant, 294 Pa.Superior Ct. 129, 439 A.2d 784 (1982); Biernacki v. Redevelopment Authority of the City of Wilkes-Barre, 32 Pa.Commonwealth Ct. 537, 379 A.2d 1366 (1977). “In Pennsylvania, an indispensable party is one whose rights are so directly connected with and affected by litigation that he must be a party of record to protect such rights, and his absence renders any order or decree of court null and void for want of jurisdiction.” Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 379, 346 A.2d 788, 789 (1975) (citations omitted). Accord, Smith v. Crowder Jr. Co., 280 Pa.Superior Ct. 626, 641, 421 A.2d 1107, 1115 (1980) (“A person is a necessary and indispensable party only when his rights are so connected with the claims of the litigants that no decree can be made without impairing his rights.”). In Columbia Gas Transmission Corp. v. Diamond Fuel Co., our Supreme Court vacated a decree recognizing the existence of a disputed maintenance and repair right of way because the litigants had failed to. join the fee owner of the servient tenement.

In the instant case there can be no question that the fee simple owner of the servient tenement is an indispensable party. The right to the use and enjoyment of his property will be adversely affected by any litigation involving the easement and, therefore, he must be joined. The failure to do so deprives the court of jurisdiction.

464 Pa. at 379, 346 A.2d at 789. Similarly, when there is a dispute as to the existence of an easement, all owners of servient tenements have a material interest in tlie controversy and should be joined as defendants, even though such an owner may have had no part in the interference with, or obstruction of, the alleged easement. Annot., 28 A.L.R.2d 409, 411 (1953) (“Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way”). Cf. Huston v. Campanini, supra (persons to whom vendors allegedly sold restaurant after declaring forfeiture and repossession from plaintiffs were possible bona fide purchasers, and, therefore, indispensible parties); Tigue v. Basalyga, supra (in suit to set aside deed allegedly obtained through fraud, deceased’s personal representative was indispensible party); Kelley v. Kelley, 382 Pa. 537, 115 A.2d 202 (1955) (when adjudicating interests in coal lands, all co-tenants are indispensible parties); Biernacki v. Redevelopment Authority of the City of Wilkes-Barre, supra (“Clearly, the owner of real estate is an indispensible party to proceedings seeking transfer of the title to the property to another and culminating in an order purportedly vesting title in another. It would be difficult to imagine a darker cloud on one’s title than that created by the court’s order in this case.”) (condemnation case). Because the Gillotts, fee owners of a servient tenement, are indispensible parties, and have not been joined as defendants, the lower court lacked jurisdiction to enter a decree. Accordingly, we must vacate the decree and dismiss the complaint without prejudice to appellees’ rights to institute a new action wherein all necessary and indispensible parties are joined. Columbia Gas Transmission Corp. v. Diamond Fuel Co., supra, 464 Pa. at 379, 346 A.2d at 789-90; Tigue v. Basalyga, supra, 451 Pa. at 439, 304 A.2d at 120.

So ordered.

       Although the effect of the modification was to require appellees to join the Gillotts as additional defendants, the record indicates that joinder has not yet been made, and the Gillotts have not yet been heard concerning the existence of the easement.


author: PER CURIAM:

text:
    441 A.2d 1317
    Maurice OSSER, Appellant, v. CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1981.
    Filed Feb. 19, 1982.

      Neil E. Jokelson, Philadelphia, for appellant.
    John McNally, Jr., Deputy City Solicitor, Philadelphia, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   PER CURIAM:

This appeal is from an order in which the court of common pleas below upheld the determination of the Pension Board of the City of Philadelphia that, under section 217 of the City Pension Ordinance, appellant’s federal conviction for mail fraud had resulted in forfeiture of his city pension. Appellant claims here, as he did below, that the pension board’s interpretation of section 217 was erroneous; that his city pension was a vested right, incapable of forfeiture; and that denial of his pension violated both his equal protection and due process rights.

With exceptions inapplicable here, section 762(a)(4)(i)(B) of the Judicial Code, 42 Pa.C.S. § 762(a)(4)(i)(B), gives the Commonwealth Court exclusive jurisdiction of appeals from final orders of the courts of common pleas in actions or proceedings in which the application, interpretation or enforcement of any local ordinance is drawn into question. See Commonwealth v. Sensi, 287 Pa. Super.Ct. 452, 454, 430 A.2d 691, 692 (1981). “However, because appellee failed to object to this court’s lack of jurisdiction, our jurisdiction has been perfected, and we have discretion either to decide the case on the merits or transfer it to Commonwealth Court. 42 Pa.C.S. § 704(a); Pa.R.A.P. 741(a); see Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 465, n. 1, 406 A.2d 1133, 1135, n. 1 (1979); see also Commonwealth v. Meyer, 488 Pa. 297, 304-05, n. 9, 412 A.2d 517, 520, n. 1 (1980).” Id.

As in Commonwealth v. Sensi, supra, we believe the Commonwealth Court’s greater expertise in the issues raised here make transfer to that court appropriate. Moreover, transfer of this case will prevent unnecessary confusion and lack of coordination, since Commonwealth Court will be the forum for similar cases in this developing area of the law, in which guidance from our Supreme Court has thus far been scant because of the diversity of views among the Justices. See, e.g., Miller v. Commonwealth of Pennsylvania, State Employees’ Retirement Board, - Pa. -, 445 A.2d 88 (1981) (opinion in support of affirmance by O’Brien, C. J., joined by Nix and Flaherty, JJ.; separate opinion in support of affirmance by Nix, J.; opinion in support of reversal by Roberts, J., joined by Larsen and Kauffman, JJ.), petition for reargument pending.

Case transferred to Commonwealth Court.


text:
    441 A.2d 1318
    COMMONWEALTH of Pennsylvania, Appellant, v. Francis X. MONAGHAN, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1980.
    Filed Feb. 19, 1982.

      David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellant.
    Maurind J. Rossanese, Norristown, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   PER CURIAM:

In this case, Francis X. Monaghan, the operator of a tow-truck was charged with operating a motor vehicle while under the influence of alcohol in violation of the Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, 75 Pa.C.S.A. § 3731. The court below following a hearing before Cirillo, J. granted appellant’s motion to suppress evidence and the Commonwealth has appealed from the suppression order.

On February 17,1979, at about 1:15 a. m., Officer Worstall of the Upper Moreland Township Police was on duty in his patrol car. He heard a man who was about fifty feet away from him shouting at a tow-truck which was going south on York Road to stop. The tow-truck did so. At this point the officer thought that the man calling after the truck possibly had a problem with his car. The officer was told that the tow-truck had struck an automobile and upon examining the vehicle the officer observed recent damage to the car as there was debris next to it. The officer did not observe the tow-truck strike the vehicle. The officer then proceeded to the tow-truck and told the driver, the appellant Monaghan, to move his truck off the road into a parking space about ten feet away and the operator of the truck did so. The officer then asked the appellant if he hit the vehicle and he said that he had not. The appellant then got out of his truck and walked towards the damaged vehicle with the officer who at that time noticed that the appellant was staggering, his speech was slurred and there was odor of alcohol on his breath. The appellant stated that he had “tapped” the vehicle but that he had not done the damage which the officer was pointing to. There was no visible damage to the appellant’s truck. The officer told the appellant that based on his observations he was in no condition to drive. Following this the appellant used profanity and insisted that he would drive. At this point the appellant was placed under arrest by Officer Worstall.

The court below found that there was no probable cause to arrest the appellant on the charge of operating a vehicle while under the influence of alcohol and granted the motion to suppress all evidence. We believe that the court’s analysis of the evidence is incorrect. The court stated in its opinion at page 2: “The only purpose of the police officer stopping the defendant was to examine for a possible accident. The police officer found no evidence of any accident; and therefore, the purpose of his investigation was completed.” On the contrary, before the officer approached the appellant he was directed to a vehicle which supposedly had been struck by the tow-truck. In this respect the officer testified:

Before I approached Mr. Monaghan, I looked at the car when I got information and at that point I knew there was damage, fresh damage done, because there was some debris next to the car.

In this case, we believe it is clear that the officer had the right to approach the appellant’s tow-truck which had already stopped and attempt to determine what happened since he had observed someone shouting to the tow-truck to stop and he had been shown damage to a vehicle which apparently was recent damage and there was evidence, although based on hearsay, that the appellant was involved. When the officer approached the appellant’s truck he told the appellant that he wanted to talk to him about an accident that had just occurred. An investigatory stop of a vehicle must be based on objective facts creating a reasonable suspicion that the motorist is presently involved in criminal activity. Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 548 (1975). Further, “the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warranted the intrusion.” Commonwealth v. Galadyna, 248 Pa.Super. 226, 230, 231, 375 A.2d 69, 72 (1977). After parking his tow-truck the appellant got out and walked with the police officer in the direction of the damaged vehicle. It was then that the officer observed that the appellant manifested the standard symptoms of intoxication—staggering gait, slurred speech and an odor of alcohol on his breath. It is correct that the officer determined not to arrest the appellant as the result of a collision with the parked car as he felt that he could not prove it. It was only after it was clear that the appellant was under the influence of alcohol and insisted on continuing to operate his tow-truck that the officer placed the appellant under arrest. There was sufficient probable cause for this arrest. “It is only the probability and not a prima facie showing of criminal activity that is a standard of probable cause.” Commonwealth v. Vessells, 273 Pa.Super. 100, 105, 416 A.2d 1108 (1979).

The court below decided that the warrantless arrest was improper as the “officer had no probable cause to believe that the defendant was operating while under the influence, since he did not observe the defendant operating in an erratic or suspicious manner.” The court erred in requiring observation by the police officer of driving in an erratic manner. The Vehicle Code, supra, 75 Pa.C.S.A. § 3731(c) states:

(c) Certain arrests authorized.—In addition to any other powers of arrest, a police officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer.

The officer was justified in believing that the appellant had violated the provision dealing with operating a vehicle while under the influence of alcohol, as he knew he had operated his truck a short time before and he now appeared to be inebriated. The Act does not require that the officer observe a defendant operating a vehicle in a way that indicates that he is under the influence of alcohol. In Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932, 935 (1976) the Supreme Court held that under the Vehicle Code, as then written: “. . . The legislature purported to give police officers the authority to perform warrantless arrests for driving under the influence of liquor or drugs, 75 P.S. § 1037, whether or not that offense was committed in the presence of the arresting officer.” See also Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980).

In Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980) a defendant was involved in an accident unobserved by the police. A police officer arrived at the scene and talked to the defendant in the police car for five or ten minutes to obtain information for the accident report. The officer noticed that the defendant mumbled and there was a definite odor of alcohol about him. The officer and the defendant then exited the car and the officer assisted the tow-truck operator in removing the wreckage. Subsequently the officer placed the defendant under arrest. This court found that there was probable cause for the arrest and that the court below properly denied the defendant’s motion to suppress. The defendant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor. In the circumstances of this case the appellant’s arrest without a warrant was proper and the court below erred in suppressing all of the evidence.

Order reversed and case remanded to the court below for further proceedings consistent with this opinion.