text:
    570 A.2d 528
    URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH, a Redevelopment Authority, Appellee, v. KML SALES, INC., a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Feb. 1, 1990.
    Reargument Denied March 13, 1990.
    W. Arch Irvin, Jr., Pittsburgh, for appellant.
    Robert M. Brown, Pittsburgh, for appellee.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment entered on January 18, 1989, by the Court of Common Pleas of Allegheny County, following a directed verdict in favor of appellee, the Urban Redevelopment Authority of Pittsburgh. We affirm.

The facts set forth in the trial court’s opinion are:

The case involves an unusual factual situation pertaining to real estate. The Consolidated Rail Corporation, known as Con Rail, inherited from the bankruptcy of the Pennsylvania Railroad, various properties including a large building in the Strip District of the city of Pittsburgh known as the Produce Terminal Building, tenants of which are in the produce business except the defendant KML which is a major tenant occupying the 44,500 square feet of space.
Lately Con Rail has been prospering, but in 1979 and prior thereto it was losing so much money that it could not afford to repair anything which was not directly involved in rail movements. Meanwhile, the tenants of the Produce Terminal Building were complaining loudly about the leaking roof. An apparent solution of this problem was reached by an arrangement whereby KML would replace the roof at a cost of $350,000.00 and in return receive a rent abatement of $350,000.00, plus interest, at the rate of 13% per annum.
Consequently, the Consolidated Rail Corporation and the defendant, KML, executed a lease agreement dated September 11, 1979, for the space occupied by KML for a term of five years and an option to the lessee to renew for an additional five years. The special provisions of this lease agreement which gave rise to this case are as follows:
“ROOF WORK Lessee will, in a manner satisfactory to Lessor, remove the existing roof covering the Produce Terminal Building, but not including canopies over the loading docks, and replace same with a new roof consisting of asphalt and tar composition at a total cost of Three Hundred Fifty Thousand and No/100 ($350,-000.00) Dollars.”
and
“RENT ABATEMENT In exchange for the roofing aforesaid by the Lessee to the reasonable satisfaction of Lessor, Lessor hereby agrees to waive rental payable under the terms hereof from the effective date until such time as Lessee has recovered the $350,-000.00, plus interest, imputed on the outstanding and unamortized balance of the investment at the rate of 13% per annum.”
It would be difficult to compose language which would more emphatically provide for two things; namely, the removal of the existing roof and its replacement by another which would be new.
John W. Hindman was an Assistant Manager of Real Estate for Con Rail and he testified for the defense that he had charge of the Produce Terminal and said that he was the originator of the deal with KML in respect to a new roof and rent abatement despite that the lease agreement was signed by an executive vice-president of Con Rail, although in response to leading questions by defense counsel the record reads as though Mr. Hindman had signed it personally, but this of course is a matter of no consequence except that he indicated awareness that the agreement provided for a new roof rather than repair of the existing roof.
Shortly after the execution of the Agreement, KML instituted work on the roof and Mr. Hindman visited the scene at times and observed that the procedure being followed was merely the replacement of surface material of the roof, rather than the removal and replacement of the roof. This presented an opportunity to Mr. Hindman to solve another bothersome problem which had been worrying him and he decided to make a new deal with KML on his own. This was made possible when a supervisor of construction named George Hawkins inspected the roof after the repairs were made and being unaware that the roof was supposed to be completely replaced, said that the repairs were acceptable from his viewpoint. Mr. Hindman explains the new oral arrangement as follows:
Q. Did you then upon the roof make an agreement with Mr. Keicher?
A. You mean a written agreement, verbal agreement. Q. Verbal agreement.
A. Verbally we had some further discussions.
Q. Can you tell the jury what the verbal agreement
discussion was?
* * * * * *
Q. Answer the question. Tell the jury what the agreement that you and Mr. Keicher made there as to—
A. Well, one of the things I did at that time, for some time, as I said, they had been a prior tenant of ours, and they had been saying that we owed them approximately $70,000 for other work they had performed, and I finally said to him we would accept the roof if they would forget the other $70,000, and if they do that, I will put in — I will concur that the roof is fine, which was what we had to have so we could get on with the rent abatement program.
Q. Did Mr. Keicher agree with you that you had a deal?
A. Yes.
Q. Did you shake on it?
A. Yes, because I said I didn’t want to hear any more about that $70,000.”
Then for his protection before starting the rent abatement, Mr. Hindman had Mr. Hawkins write him a letter saying that the roofing work was satisfactory, again of course without reference to the written agreement to remove and replace the roof which was not even known to Mr. Hawkins. Also there is nothing in the record to suggest that the Vice-President who signed the Lease Agreement or any official of the railroad of higher rank than Mr. Hindman were made aware of the private oral agreement which he entered into with Mr. Keicher in behalf of KML.
On October 3, 1980, which would be about ten months after KML ceased to pay rent to Con Rail, Con Rail agreed in writing to sell the Produce Terminal Building to the plaintiff, the Urban Redevelopment Authority of the City of Pittsburgh. The conveyance took place on February 23, 1981. The tenants were made aware of the sale specifically when URA called them to a meeting, mainly to dispel any anxiety they might have such as concern for continued occupancy.
Prior to its purchase of the Produce Terminal Building, URA was made aware of the written Lease Agreement of September 11, 1979, and was given an original or a copy of it and knew that because of its provisions KML was not paying rent and would not be paying rent for a long time into the future. This was of course unavoidable' since the provisions of the Agreement, in combination with the granting of rent abatement by Con Rail, made it appear to be clear that a brand new roof had been placed on the building in accordance with the contractual obligation of KML.
Then not very long after the acquisition of the building by URA, leaking of the roof again became so prevalent that an expert examination of the roof was undertaken in January of 1982. With this type of roof, one cannot tell whether it has been replaced by ordinary examination. It was necessary to cut into the roof and remove samples for testing and when this was done, it was clearly revealed not only that KML had not removed the old roof and replaced it, but that the repair work which was done was so inadequate that it practically guaranteed that the roof would again fail. Consequently, URA was compelled to replace the roof and it then sued for its losses. The only loss held to be compensable at the hands of KML was unpaid rent and as was said, a verdict for this loss was directed for the plaintiff.

Trial Court Opinion, pp. 1-5.

At trial, the lower court directed verdict in favor of URA on the ground that KML could not enforce the “new” lease against URA, when URA purchased the property without knowledge of it. However, upon post-verdict motions, the lower court held that KML’s defense of accord and satisfaction was waived by its failure to plead it as an affirmative defense. Thereafter, appellant filed the present appeal questioning:

I. Whether a defense may be precluded by the opinion of the lower court on the basis that it had not been pleaded when the lower court’s rulings prior to the issuance of the opinion indicated that the defendant’s pleadings were broad enough to encompass such a defense and evidence of the defense was admitted?
II. Whether an assignee of a lessor’s rights in a lease of real property may recover from a tenant under a lease agreement that has been modified prior to the assignment, when the assignor of the lessor’s interest could not have recovered under that very agreement because the modification, in the nature of an accord and satisfaction, novation, or acceptance, precludes recovery by the assign- or?
III. Whether a lessee of real property has a duty to inform prospective purchasers of the property of the nature of the tenancy when there is no evidence to show that the tenant was aware of the existence of the prospective purchaser?
IV. Whether it is incumbent upon a tenant to seek indemnity from the assignor of a lessor’s interest in a lease when the assignee itself brought an action to recover against the assignor and the assignee chose to generally release the assignor?
V. Whether a vendee of real property has a cause of action against a tenant for an alleged breach of lease terms regarding improvements by the tenant when the property was purchased pursuant to a purchase agreement clearly stating that the property was being purchased in an “as is” condition, without reliance upon any representations made by the vendor?

The crux of KML’s appeal — its “whole case” — is that the lower court erred in directing the verdict in URA’s favor when the defense of “accord and satisfaction” precludes recovery. KML argues that a new oral deal modifying their written lease was struck between itself and Con Rail whereby KML would merely resurface the roof (rather than remove and replace it) and forgive a $70,000 debt owed to it by Con Rail in exchange for the rent abatement.

Regardless of the merits of appellant’s argument, appellant must first cross a threshold through which all defendants who wish to raise an affirmative defense must pass. Pursuant to Rule 1030 of the Pennsylvania Rules of Civil Procedure, “[a]ll affirmative defenses including but not limited to accord and satisfaction ... shall be pleaded in a responsive pleading under the heading ‘New Matter’.” Pursuant to Rule 1032, “[a] party waives all defenses and objections which he does not present either by preliminary objection, answer or reply ...”. Instantly, appellant failed to plead the affirmative defense of accord and satisfaction.

A review of appellant’s answer and amended new matter filed on October 23, 1985, reveals that appellant averred complete compliance with the written lease agreement to remove and replace the roof; nowhere within that pleading can even a hint of accord and satisfaction be found. Not until KML’s second pre trial statement was filed on August 12, 1986 (over three and one-half years after the original complaint was filed on December 23,1982), was the defense of accord and satisfaction even slightly hinted, and then only the most gifted counsel would have recognized or anticipated it. Only after trial began was KML’s intention to raise the affirmative defense of accord and satisfaction fully revealed. Moreover, KML never requested leave to amend its answer to include the defense, even though KML knew that its answer may not have been broad enough to encompass accord and satisfaction.

Accordingly, we affirm the lower court’s ruling that KML was precluded from raising the defense of accord and satisfaction due to its failure to plead the affirmative defense.

Order affirmed.

      . A thorough review of the record failed to reveal any such ruling by the trial judge. However, it is clear that URA objected to KML’s raising of the defense and the court sustained the objection twice before allowing KML to question Mr. Hindman about the new oral lease. T.T., pp. 401, 415-417.

      . KML has waived the affirmative defense of accord and satisfaction (see discussion infra ). Therefore, this argument must fail. Herein, URA complied with its duty to inquire on what terms KML was in possession of the property. Atlantic Refining Co. v. Wyoming Nat. Bank, 356 Pa. 226, 229, 51 A.2d 719, 724 (1947). URA had full knowledge of the written lease which provided, inter alia, any modification had to be in writing. Despite KML’s contention otherwise, evidence revealed that the Produce Terminal tenants were informed in advance of URA’s plans to purchase the terminal. T.T., p. 19. Accordingly, even if the defense of accord and satisfaction was not waived, KML may be estopped from asserting the oral modification of the written lease. Atlantic Refining, 51 A.2d at 724.

      . Certainly, KML is under no duty to seek indemnity from Con Rail, and the trial court made no such ruling. Our concern herein is the rights and obligations between URA and KML based upon the written (Con Rail/KML) lease. KML must remember that its failure to raise properly and prove the affirmative defense of accord and satisfaction has placed the company in its present practical position of having to file suit against Con Rail.

      . Though KML is certainly an intended third party beneficiary of the contract for the sale of the produce terminal with regard to enforcement of the provisions of the written lease, equally certain is the fact the KML is not an intended beneficiary of the contract with regard to the "as is” purchase provision. Therefore, KML has no authority to enforce the “as is” provision of the contract. See generally, Manor Junior College v. Katler’s Inc., 352 Pa.Super. 310, 507 A.2d 1245 (1986); Meyers Plumbing and Heating Supply Co. v. West End Federal Sav. and Loan Ass’n, 345 Pa.Super. 559, 498 A.2d 966 (1985).

      . Attorney for appellant stated on the record that accord and satisfaction was appellant’s "whole case.” Trial Transcript, p. 417.

      . KML’s original answer and new matter was filed on January 19, 1983.

      . Specifically, the pre-trial statement, in part, read: “As a matter of law, an ambiguous contract term will be given the meaning the contracting parties intend it to have. Thus, Con Rail and KML were in complete agreement that the existing roof was not to be removed but merely repaired, and the URA is barred from asserting the lease agreement called for the roof to be removed.” Pre-trial Statement, filed August 12, 1986, paragraph 11.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    570 A.2d 532
    COMMONWEALTH of Pennsylvania v. Carlie MITCHELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 20, 1989.
    Filed Feb. 20, 1990.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

Carlie Mitchell appeals nunc pro tunc from his conviction for murder in the first degree, arson, robbery, rape, criminal conspiracy, possessing an instrument of crime, and risking a catastrophe. He presents four arguments on appeal: (1) that the trial court improperly allowed impeachment by evidence of prior arrests without convictions; (2) that trial counsel was ineffective for failing to object to a charge on voluntariness of confessions; (3) that trial counsel was ineffective for failing to object to hearsay testimony; and (4) that trial counsel was ineffective for failing to object to the court’s response to a jury inquiry. We find no error; accordingly, we affirm.

First, appellant argues that the trial court erred in allowing impeachment using evidence of prior arrests not resulting in a conviction. During cross-examination of the defendant’s character witnesses, the prosecutor asked the witnesses if they knew of the appellant’s previous arrest record. Appellant’s trial counsel objected to the questioning, and the objection was overruled. At the time of trial, in June, 1981, this line of questioning was permissible; however, shortly thereafter, the rule was changed. See Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). We must therefore decide whether the rule in Scott may be applied retroactively to this case.

In Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), our Supreme Court held that the rule in Scott is applied retroactively “to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.” Id., 503 Pa. at 233, 469 A.2d at 148 (emphasis added). In the present case, trial counsel objected to the line of questioning, but did not preserve his objection through timely post-trial motions. See, e.g., Commonwealth v. Vernon, 324 Pa.Super. 395, 401, 471 A.2d 897, 900 (1984) (issues are preserved for appeal if raised at trial and in post-trial motions). For this reason, we cannot apply Scott retroactively to this case. Consequently, we affirm the decision of the trial court on this issue.

Next, appellant argues that his trial counsel was ineffective for failing to object to the court’s charge on confessions. Specifically, appellant claims that the trial court did not charge the jury that they should disregard the confession if they found it to be involuntary.

Appellant’s argument is nothing more than a game of semantics. The trial court instructed the jury that, before they could consider the confession as evidence, they must find that the confession was voluntary. The court then explained in great depth what a voluntary confession is. When reviewing a charge, this Court must only decide whether the area of the law is adequately, accurately, and clearly presented to the jury. Commonwealth v. Porter, 300 Pa.Super. 260, 446 A.2d 605 (1982). Instructions must be considered as a whole; error cannot be based on isolated portions. Commonwealth v. Kelly, 319 Pa.Super. 204, 465 A.2d 1301 (1983). Using this standard, the trial court’s charge was unquestionably adequate. Appellant’s trial counsel was not ineffective for failing to object to the instruction.

Appellant also argues that trial counsel was ineffective for failing to object to hearsay testimony. At trial, Dr. Robert Catherman, the medical examiner, testified as to the manner and cause of the victim’s death. Dr. Catherman’s testimony was based on autopsy reports prepared by Dr. Kenneth Carpenter, who was unavailable for trial because he had moved to Germany. We find that the testimony was properly admitted; accordingly, trial counsel was not ineffective for failing to object to it.

Experts may offer testimony based on the reports of others. Commonwealth v. Thomas, 444 Pa. 436, 443, 282 A.2d 693, 698 (1971). In homicide cases, pathologists may base their opinions on facts from autopsy reports prepared by others. Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978). The present case is distinguishable from Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), cited by appellant. In McCloud, the Commonwealth read substantial portions of the autopsy report, including opinions and conclusions, into the record. The Commonwealth relied on the business records exception to the hearsay rule. In the present case, Dr. Catherman did not read any of Dr. Carpenter’s opinions or conclusions. He read only the facts contained in the report, and based his own opinion on those facts. Furthermore, in McCloud, the medical examiner who prepared the report was away temporarily attending a convention. The court emphasized the fact that the Commonwealth could have produced him. In the present case, the person who prepared the report moved out of the country, and was not available to testify.

Finally, appellant asserts that trial counsel was ineffective for failing to object to the trial court’s answer to a question from the jury. The jury asked the trial court why they were not permitted to hear testimony from appellant’s co-conspirator or the co-conspirator’s statement. The trial court explained that the statement was inadmissible, and that neither side had chosen to call the co-conspirator as a witness. The trial court instructed the jury not to speculate on the matter, and not to consider it in their deliberations. Appellant asserts that the trial court’s comments permitted the jurors to believe that the co-conspirator was not called because his testimony would have harmed appellant.

This argument is frivolous. The court’s response was no more damaging to appellant’s case than it was to the Commonwealth’s. Furthermore, the trial court specifically instructed the jury not to consider the matter in their deliberations. Accordingly, appellant’s trial counsel was not ineffective for failing to object to the trial court’s response.

Judgment of sentence affirmed.

CAVANAUGH, J., concurs in which CERCONE, J., joins.

CAVANAUGH, Judge,

concurring:

I disagree with the reasoning employed in the majority’s opinion with respect to the claim of trial counsel’s ineffectiveness in failing to object to the admissibility of Dr. Catherman’s expert testimony, which was based on a hearsay autopsy report not admitted into evidence.

No case cited by the majority or the Commonwealth sufficiently distinguishes this case from the Supreme Court’s holding in Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974). McCloud rather clearly states that in a homicide prosecution, evidentiary use, as a business records exception to the hearsay rule, of an autopsy report in proving legal causation of the decedent’s death is impermissible unless the accused is afforded the opportunity to confront and cross-examine the medical examiner who performed the autopsy, absent compelling necessity. Id. The medical examiner in this case was absent from the country, but the Commonwealth did not seek to admit other evidence from which a testifying expert could have drawn conclusions as to the cause of death.

It is true that Pennsylvania courts have in the past permitted experts to testify as to the cause of death based in part on hearsay which reviewing courts felt was either admitted or merely utilized by the expert under a medical records exception. See, Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971). However, in these cases there was testimony by other witnesses as to critical, facts on which the expert based his conclusions. For instance, the Daniels court was careful to point out that, with the exception of one report, all of the facts on which the expert based his opinion came from the expert’s interviews with individuals who themselves testified to those facts during the case.

The Thomas case dealt with psychiatric expert testimony offered by the Commonwealth to refute a homicide defendant’s claim of insanity. There the expert’s conclusions were based on his own evaluation of the defendant and on psychological testing done by the court psychologist. The psychological tests were admitted into evidence and were used by defense experts as well as by the Commonwealth’s witness. As in Daniels, the court cited the then-emerging rule which permits medical witnesses to express opinion testimony on medical matters based, in part, upon reports of others which are not in evidence, but upon which the expert customarily relies in the practice of his profession. Thomas, supra.

Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978), also cited by the majority, is likewise inapposite. In Smith, a pathologist testified to the ultimate cause of death based on an autopsy performed by an individual who was not a physician, but who did have experience performing autopsies. The individual who performed the autopsy did not render an opinion as to the cause of death, but he did testify and described the wounds and the path and location of the bullets in the victims’ bodies. He also excised vital organs and turned them over to the medical doctor who was the Commonwealth’s expert. The expert testified as to the cause of death based on his own examination of the vital organs combined with information received from the individual who performed the autopsy. In Smith, then, there was no underlying hearsay problem, since another witness testified to all of the facts on which the expert based his opinion.

The same is true of Commonwealth v. Haddle, 271 Pa.Super. 418, 413 A.2d 735 (1979), cited by the Commonwealth in its brief. Furthermore, in the Haddle case the records came in only to refute a theory advanced by the defense itself, not to prove an element of the Commonwealth’s case against the defendant, as in the instant appeal.

Moreover, none of those cases, with the exception of McCloud, dealt directly with the Confrontation Clause issue which underlies appellant’s claims.

In the context of this claim of ineffectiveness, however, I perceive that there was a reasonable basis for counsel’s failure to object to Dr. Catherman’s testimony. Autopsy photographs were available which graphically depicted the decedent’s burned and mutilated body. Counsel may have wished to avoid the admission of these photographs as a foundation for Dr. Catherman’s testimony. Thus, appellant has failed to demonstrate that counsel was ineffective in not objecting to Dr. Catherman’s testimony.

CERCONE, J., joins.

      . We note that trial counsel was not ineffective for failing to preserve this issue, because Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), and Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), had not been decided and published at the time of the post-trial motions. Counsel is not ineffective for failing to predict a change in the law. Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983).

      . The facts upon which Dr. Catherman based his report were merely • Dr. Carpenter’s observations of the nature and location of various injuries and results of various tests. Dr. Catherman drew his own conclusions as to the cause of these facts.

      . The trial court’s comments follow:
      Ladies and Gentlemen, the statement of Mr. Gale under the law and for reasons which I need not go into except that under the law the statement of Mr. Gale could not be read to you.
      Now, your question also asks why we are not allowed to hear Mr. Gale.
      Now, I merely want to point out to you that Mr. Gale was available to both sides, to either side. Either side could have compelled Mr. Gale's attendance in this courtroom by the method of issuing a subpoena for Mr. Gale.
      Now, I do not care to elaborate further on what I have just told you. I do suggest to you very strongly, however, that you concentrate on the evidence that was presented for your consideration and do not attempt to speculate or concern yourselves with any thoughts about why Mr. Gale’s statement was not read to you or why Mr. Gale was not produced as a witness by either party.


author: WIEAND, Judge:

text:
    570 A.2d 536
    Barbara BURGE, Appellee, v. WESTERN PENNSYLVANIA HIGHER EDUCATION COUNCIL, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed Feb. 12, 1990.

      Mark A. Fontana, Pittsburgh, for appellant.
    Harold Gondelman, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

In this action to recover damages for an alleged breach of an oral contract of employment, the trial court found that there had been a contract of employment for a period of one year and awarded damages because of a premature discharge. On appeal from the judgment entered on the verdict, the employer challenges the sufficiency of the evidence to sustain the findings of the trial court.

On September 12, 1983, Western Pennsylvania Higher Education Council, Inc. (the Council) hired Dr. Barbara Burge as its executive director pursuant to a one year renewable contract. The terms of the oral contract, as explained to Dr. Burge, included a starting salary of $19,-575, which was negotiable in the future, and required the Council to give ninety (90) days notice in the event of non-renewal. At the beginning of the Council’s next fiscal year on July 1, 1984, Dr. Burge’s salary was increased. It was similarly increased at the beginning of each fiscal year thereafter. In May, 1986, Dr. Burge was told by the Council President, Samuel Deep, that she should begin looking seriously for another job. Because Dr. Burge knew and understood that the Council’s financial condition was strained, she did investigate other employment opportunities. On July 1, 1986, however, the Council projected Dr. Burge’s salary for fiscal year 1986-1987 at $21,660, which she continued to receive until her discharge. On January 15, 1987, she was notified that her employment would be terminated by the Council on February 15, 1987.

Burge filed an action in which she sought to recover her salary for the balance of the contract year, together with payment for twenty-four (24) unused vacation days. The action was submitted to compulsory arbitration and resulted in an award in favor of Dr. Burge in the amount of $10,616.76. The Council appealed the award to the Court of Common Pleas of Allegheny County, where the claim was tried de novo before the Honorable Robert A. Doyle, sitting without a jury. On January 10, 1989, Judge Doyle found in favor of Dr. Burge and awarded damages of $6,740.76. Post-trial motions were denied, judgment was entered on the verdict, and the Council appealed. It contends that the trial court erred when it found that the anniversary date of appellee’s employment contract had been modified, by implied agreement of the parties, to coincide with the Council’s fiscal year. The fact that appellee’s salary was annually adjusted on July 1, the Council argues, did not constitute renewal of the contract for the period of its fiscal year. Therefore, it argues further, its notice to Dr. Burge to seek other employment in May, 1986, was notice that it did not intend to renew her contract in September of that year. Following September, 1986, according to the Council’s argument, appellee was an employee at will who could be terminated at any time.

It is not the function of an appellate court to pass upon the credibility of witnesses or to act as trier of the facts. With respect to the facts found, we will not substitute our judgment for that of the trial judge, who was in a better position to observe the demeanor of the witnesses and assess their credibility. Burbage v. Boiler Engineering and Supply Co., Inc., 433 Pa. 319, 323, 249 A.2d 563, 566 (1969). If sufficient evidence exists in the record to support the findings of the trial court, we will not disturb its findings and will affirm. Commonwealth of Pennsylvania, Department of Transportation v. O’Connell, 521 Pa. 242, 248, 555 A.2d 873, 875 (1989). Where, as here, the trier of the facts determined the intention of the parties with respect to an oral contract of employment, we must defer to those findings if they are supported by the evidence. Bethlehem Steel Corp. v. Litton Industries, Inc., 321 Pa.Super. 357, 365, 468 A.2d 748, 752 (1983); Yellow Run Coal Co. v. Alma-Elly-Yv Mines, 285 Pa.Super. 84, 90, 426 A.2d 1152, 1155 (1981).

The trial court found that “although [appellee] commenced her services during September, the parties, in practice, converted her ‘contract year’ to comport with [appellant’s] fiscal year and budget year — 1 July through 30 June. The practice was impliedly agreeable to and agreed to by both parties. The parties defined the contract by their performance.” The trial court also found that when the Council increased Dr. Burge’s annual salary on July 1,1986, without definitive notice that it did not intend to renew, the contract of employment was renewed for an additional year until June 30, 1987.

Modification of an agreement may be shown by words or conduct, or both. See: Betterman v. American Stores Co., 367 Pa. 193, 200, 80 A.2d 66, 71, cert. denied, 342 U.S. 827, 72 S.Ct. 49, 96 L.Ed. 625 (1951), citing Knight v. Gulf Refining Company, 311 Pa. 357, 361, 166 A. 880, 882 (1933). “The acts of parties, their conduct, and the circumstances and relations existing between them, are all elements to be given due consideration in determining both the existence and terms of such [a modification].” P.L.E. Labor § 8, citing Knight, supra, and Howard v. Siegel, 121 Pa.Super. 519, 184 A. 272 (1936).

In the casé sub judice, Dr. Burge commenced her employment on September 13, 1983, under a renewable one year contract. On July 1, 1984, the Council increased Dr. Burge’s salary for a period coinciding with the Council’s fiscal year and gave no notice of non-renewal. Each year thereafter, Dr. Burge was notified of salary increases on July 1, the first day of appellant’s fiscal year. The trier of fact could reasonably infer from this practice, which was acceptable to both parties, that they had altered the employment contract to make the contract period conform with the Council’s fiscal and budget year.

“[W]here a contract of employment for a definite time is made and the employee’s services are continued after the expiration of the time, without objection, the inference is that the parties have assented to another contract for a term of the same length with the same salary and conditions of service.” Smith v. Shallcross, et al., 165 Pa.Super. 472, 475, 69 A.2d 156, 158 (1949). “If an agent is employed for a specified period of a year or less and thereafter continues in the employment, without further arrangements being made, it ordinarily is inferred that the employment continues upon the same terms and for a similar period as that for which he was first employed.” Id., 165 Pa.Superior Ct. at 476, 69 A.2d at 158-159. See also: P.L.E. Labor § 9. In order to terminate a contract, notice of termination “must be clear and unambiguous, and where the conduct of one having the right to terminate is ambiguous, he will be deemed not to have terminated the contract.” Maloney v. Madrid Motor Corp., 385 Pa. 224, 228, 122 A.2d 694, 696 (1956).

In this case the trial court found that the oral contract of employment required the Council to give ninety (90) days notice if it did not intend to renew its contract with Dr. Burge. The evidence discloses that sometime in April or May of 1986 the Council’s President, Samuel Deep, verbally told Dr. Burge that due to fiscal deficiencies, she should begin to look for a new job. Shortly thereafter, however, a salary increase for Dr. Burge was proposed in the budget for the 1986-1987 fiscal year. Dr. Burge continued to work and, as of July 1, 1986, began to receive the increased salary. In view of the ambiguous nature of the notice given to Dr. Burge in April or May, the trial court could readily infer that the contract had been renewed by the parties when, on July 1, 1986, Dr. Burge continued in the Council’s employ and, indeed, received an increase in her salary. She continued in the Council’s employ until February 15,1987, when she was unequivocally terminated. This, the trial court could find, was a breach of the contract of employment, which entitled appellee to receive as damages the salary which she would have received if she had been allowed to complete the one year term of her contract.

Judgment affirmed.


text:
      570 A.2d 539
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles J. McBRIDE, Sr., Appellee. COMMONWEALTH of Pennsylvania v. Charles J. McBRIDE, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 13, 1989.
    Filed Feb. 14, 1990.

      William M. Kern, Dist. Atty., Clarion for Com., appellant in No. 550 and appellee in No. 669.
    David A. Whitney, Ridgway, for appellant in No. 669 and appellee in No. 550.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

In this criminal action, both the defendant and the Commonwealth have filed appeals. Charles J. McBride, Sr., who was found guilty by a jury of aggravated assault and recklessly endangering another person, contends that his trial counsel was constitutionally ineffective. The Commonwealth argues that the trial court improperly refused to impose the mandatory minimum sentence required by 42 Pa.C.S. § 9712.

The charges resulted from an altercation between McBride, on the one hand, and Terry and Brian Shaffer, on the other. Terry Shaffer was an off-duty state trooper, and Brian Shaffer was his son. The Shaffers were standing on the berm of the highway which was adjacent to their home and were pouring oil on the berm to prevent the blowing of dust, when McBride drove past. Words were exchanged, and an argument developed between McBride and Brian Shaffer. Later, McBride returned to the Shaffer residence, confronted Terry Shaffer and pointed a gun at him while making threats. When McBride returned the gun to his car, he retrieved a baseball bat, which he swung at Shaffer. After McBride had departed, Shaffer reported the incident to the barracks of the State Police, and Corporal Haskins and Trooper Beight were dispatched to investigate. They went to McBride’s residence and there, without a warrant, seized a handgun. McBride was not then placed under arrest, but the police, nevertheless, took the gun with them when they departed.

After McBride had been found guilty of aggravated assault and recklessly endangering another person, post-trial motions, although filed late, were entertained by the trial court and rejected on their merits. McBride was then sentenced to serve a term of imprisonment for not less than eleven and one-half (HV2) months nor more than twenty-three (28) months. Thereafter, trial counsel was permitted to withdraw from the case, and new counsel was appointed to represent McBride and filed an appeal on his behalf. McBride argues that trial counsel was ineffective because he waived McBride’s right to a preliminary hearing and failed to file timely post-trial motions. He also contends that trial counsel failed to file a timely motion to suppress the handgun which had been seized from McBride without a warrant.

In determining whether counsel’s assistance has been constitutionally ineffective, we apply the following rule of law.

Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), allo, denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 158-160, 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988).

Appellant’s contention that trial counsel was ineffective because he waived the preliminary hearing is unsupported by an averment of specific prejudice. He contends only that his defense was hampered because he had not previously heard the Commonwealth’s witnesses testify. This is too general to entitle appellant to relief. “Counsel will not be found ineffective in a vacuum, and we will not consider claims of ineffectiveness without some showing of a factual predicate upon which counsel’s assistance may be evaluated.” Commonwealth v. Thomas, 372 Pa.Super. 349, 364, 539 A.2d 829, 837 (1988). See also: Commonwealth v. Silo, 509 Pa. 406, 411, 502 A.2d 173, 176 (1985); Commonwealth v. Pettus, 492 Pa. 558, 563-564, 424 A.2d 1332, 1335 (1981). In the absence of a more specific allegation regarding the prejudice suffered by appellant due to the waiver of a preliminary hearing, we find no basis upon which to find trial counsel ineffective with respect thereto.

There also is no basis on which to find trial counsel ineffective because of the untimely post-trial motions. The trial court considered the untimely post-trial motions on their merits and did not treat the issues raised as having been waived. Because the trial court chose to consider the issues raised in untimely motions, moreover, the issues were not waived for purposes of appeal. See: Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989); Commonwealth v. Hewett, 380 Pa.Super. 334, 337-338, 551 A.2d 1080, 1082 (1988). Thus, appellant has not been prejudiced in any way by the untimely filing of post-trial motions. See: Commonwealth v. Markovitch, 388 Pa.Super. 244, 248-249, 565 A.2d 468, 470 (1989).

There is arguable merit, however, in appellant’s contention that trial counsel was ineffective because he failed to file a timely motion to suppress evidence. As a general rule, an omnibus pre-trial motion, including a motion to suppress evidence, must be filed within thirty (30) days after arraignment. Pa.R.Crim.P. 307. In this case, a timely motion to suppress evidence was not filed; and when counsel sought leave of court to file a tardy motion, reciting “personal and professional matters” as a cause for the default, his motion was denied.

In support of appellant’s contention that the handgun was subject to suppression, he avers that Beight and Haskins, without any warrant and without appellant’s consent, entered his residence. In response to police questioning, appellant said that he owned a registered gun but that the gun pointed at Shaffer had been a water pistol. When the police insisted that they wanted to see appellant’s “real” gun, he retrieved a gun from the second floor of his home. This gun, he avers, was grabbed from him and taken by Trooper Beight, who said that it would be used in the investigation. The removal of the gun, it is alleged, was contrary to appellant’s protestations that it should not be removed. This gun, appellant contends, was illegally seized without a warrant and would have been subject to suppression if counsel had moved timely to suppress it.

“The Fourth Amendment to the Constitution of the United States ‘protects people from unreasonable government intrusions into their legitimate expectations of privacy.’ ” Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978), quoting United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538, 546 (1977). See: Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1976). See also: Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977); Commonwealth v. Williams, 380 Pa.Super. 227, 230, 551 A.2d 313, 314 (1988); Commonwealth v. Rispo, 338 Pa.Super. 225, 230, 487 A.2d 937, 939 (1985).

The Fourth Amendment safeguard against unreasonable searches and seizures is aimed at deterring, inter alia, physical entry into the home. U.S. v. U.S. District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Securing a warrant under the discernment of a detached and impartial issuing authority prevents the dangers of unfettered intrusions into such sacrosanct environments. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Commonwealth v. Henkel, 306 Pa.Super. 346, 352, 452 A.2d 759, 761 (1982). See also: Commonwealth v. Rispo, supra. Therefore,

a search or seizure without a warrant is deemed unreasonable for constitutional purposes. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022 [2031], 29 L.Ed.2d 564 (1971). The warrant requirement, however, is excused where exigent circumstances exist. Id. Exceptions arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons.

Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978) (footnote omitted). See also: Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983). Other exceptions to the warrant requirement arise in situations where a warrantless search or seizure by police “does not amount to a significant invasion of a defendant’s reasonable expectations of privacy.” Commonwealth v. Holzer, supra. Such exceptions include consensual searches, seizure of abandoned property and plain view searches. See: Commonwealth v. Holzer, supra, 480 Pa. at 102 n. 6, 389 A.2d at 106 n. 6; Commonwealth v. Albrecht, 510 Pa. 603, 613, 511 A.2d 764, 769 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987) (consent); Commonwealth v. Pine, 370 Pa.Super. 410, 419, 536 A.2d 811, 816 (1988) (plain view); Commonwealth v. Vecchione, 327 Pa.Super. 548, 557, 476 A.2d 403, 408 (1984) (abandoned property). A warrantless search also may be made pursuant to a lawful arrest. See: Commonwealth v. Norris, 498 Pa. 308, 315, 446 A.2d 246, 249 (1982); Com monwealth v. Walker, 348 Pa.Super. 207, 217, 501 A.2d 1143, 1148 (1985).

Generally, the courts have viewed a person’s residence as an area which is given the greatest protection by the Fourth Amendment. In this regard, the Superior Court has said:

It is clear, however, that rules governing police action without a warrant will be narrowly interpreted in cases involving a person’s home. In this regard, the United States Supreme Court has said:
The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms____ In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381, 63 L.Ed.2d 639, 653 (1980), quoted in United States v. Velasquez, 626 F.2d 314, 317 (3d Cir.1980).

Commonwealth v. Conn, 377 Pa.Super. 442, 446, 547 A.2d 768, 770 (1988). “Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” Commonwealth v. Flewellen, supra, 475 Pa. at 446, 380 A.2d at 1220. Concerning the warrantless entry by police into a private home under circumstances similar to those alleged by appellant in the instant case, LaFave has commented:

It is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating a complaint or conducting other official business. If admission is voluntarily granted by a person who is in a position to give such effective consent, then the policeman may enter and make observations while therein consistent with the scope of the permission he was given. But the mere fact that the door of the house is opened in response to the officer’s knock or ring does not mean that the officer is entitled to walk past the person so responding into the interior of the residence. Nor may the officer enter the home when there is no response at all.

1 W. LaFave, Search and Seizure, § 2.3(b), at 387 (1987) (footnotes omitted).

These principles make it clear that if the police, in fact, entered appellant’s home without his consent and without a warrant, they violated rights guaranteed to appellant by the Fourth Amendment of the United States Constitution. If, as appellant contends, the police thereafter grabbed the handgun from his hand and removed it over objection, the seizure was illegal. It follows that there is arguable merit in appellant’s contention that the gun was subject to suppression. It also appears, if appellant’s averments are correct, that the right to suppression of the evidence was lost because of counsel’s failure to act in a timely manner.

“When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the [trial court] to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing.” Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). See also: Commonwealth v. Copeland, 381 Pa.Super. 382, 397, 554 A.2d 54, 61 (1988). In this case no evidentiary hearing has been held, for the alleged ineffective assistance of trial counsel is being raised for the first time on appeal by appellate counsel. Therefore, an evidentiary hearing is necessary. Such a hearing will provide appellant with an opportunity to prove that the gun would have been subject to suppression if his counsel had timely moved to suppress it. A hearing will also provide the Commonwealth with an opportunity to show, as it now avers, that the entrance to appellant’s home was by invitation and the seizure of the gun with appellant’s consent. Therefore, the judgment of sentence will be vacated, and the case will be remanded for an evidentiary hearing on appellant’s contention that trial counsel was ineffective when he failed to move in a timely manner to suppress evidence. If it is determined that trial counsel was ineffective and that appellant was prejudiced thereby, a new trial must be granted. If counsel was not ineffective, sentence may be reimposed,

If sentence is reimposed, the trial court must proceed as required by 42 Pa.C.S. § 9712. This statutory provision, in pertinent part, is as follows:

§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa. C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
(b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

42 Pa.C.S. § 9712(a)-(c).

Prior to sentencing, the Commonwealth gave notice of its intention to proceed under this section. At the sentencing hearing, however, the trial court stated that a mandatory sentence would not be appropriate in this case because of appellant’s epileptic condition and because of the strong likelihood that the handgun introduced into evidence at trial by the Commonwealth would have been suppressed had appellant’s omnibus motion been timely filed. These reasons, as set forth by the trial court, do not justify the court’s failure to proceed at sentencing pursuant to Section 9712. If that section is applicable, the court will be required to impose a mandatory minimum sentence of five years. See: Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); Commonwealth v. Molina, 344 Pa.Super. 459, 496 A.2d 1196 (1985); Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). It will not be able to avoid the mandate because of appellant’s epilepsy or because of the non-suppression of the gun, if such is the case.

The judgment of sentence is vacated, and the case is remanded for an evidentiary hearing on appellant’s claim that trial counsel was ineffective in failing to file a timely motion to suppress evidence. If counsel is found to have been ineffective and appellant was prejudiced thereby, a new trial must be granted. If counsel was not ineffective, sentence may be reimposed, in which event the trial court must proceed under 42 Pa.C.S. § 9712.

      . McBride was acquitted of terroristic threats and a second count of recklessly endangering another person.

      . Appellant also contends that the trial court erred when it refused to consider an untimely motion to suppress evidence, but we find no merit in this contention.


text:
    570 A.2d 544
    In re ESTATE OF William Horace WARNER, Deceased. Appeal of Leonora M. WARNER and Lenora Reese.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed Feb. 16, 1990.

      Errol S. Miller, Pittsburgh, for appellant.
    Ronald G. Backer, Pittsburgh, for Mellon Bank, participating party.
    Kenneth E. Lewis, Pittsburgh, for Finout and Leichliter, participating parties.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

William Horace Warner died testate on March 9, 1985, and letters testamentary were duly issued to Mellon Bank, N.A., the executor-trustee named in the decedent’s Last Will and Testament. Pursuant to this Will, two trusts were created for the support of the decedent’s wife during her lifetime. The first trust was a marital trust (Fund A), and the second trust was a residuary trust (Fund B). Fund A was to consist of

“such amount, if any, as when added to other property passing to my wife and qualifying for the Federal estate tax marital deduction in my estate and to any property paid directly to the Trustee and allocated by it to Fund A, will equal the excess of (i) the value of my gross estate as finally determined for such tax purposes, reduced by all deductions actually allowed other than the marital deduction, over (ii) the amount which will result in a Federal estate tax in my estate equal to the total of the available unified credit and the credit for state death taxes (other than those imposed solely to obtain the credit under section 2011 of the Internal Revenue Code).”

The trustee was directed to invest and reinvest the trust res and pay the income to the testator’s widow. She was given a power of appointment with respect to the trust and also the power to invade principal. Upon her death, if the power of appointment were not exercised, the balances of principal and income were to be added to Fund B.

The residue of Warner's estate was held in trust as Fund B. The trustee was given the power to invest and reinvest Fund B and to distribute net income and principal, in the trustee’s discretion, to Mrs. Warner. Upon Mrs. Warner’s death, the trustee was authorized to distribute income and, when necessary, principal to Warner’s daughter, Lenora Reese, who was also permitted to invade principal to the extent of $5,000.00 per year. Upon the daughter’s death, the remaining trust principal was to be divided into two equal shares for Warner’s granddaughters, Linda Lenore Finout and Marie Kristine Leichliter. Warner’s will further provided that principal from the share for Marie Kristine Leichliter was to be used generously to provide for the welfare and comfortable support of Warner’s great-grandson, Brian Lee Leichliter.

The decedent’s estate contained cash in the amount of $2,544.41 and a commercial property located near the intersection of Northern Pike and Business Route 22 in Monroe-ville, Allegheny County. Immediately adjacent to and contiguous to this commercial property was a parcel of real estate which had been owned jointly by the decedent and his wife, Leonora M. Warner, as tenants by the entireties. This tract was owned solely by Mrs. Warner following her husband’s death, and she has now conveyed it to her daughter and son-in-law, Lenora and Clint Reese. It will hereinafter be referred to as the Reese property.

At the time of Warner’s death, three structures were located on the foregoing tracts. Two of the structures, which had been rented to Foto Hut, Facelifters, Ltd., and Warners Flowers, Inc., were located on the parcel now owned by the decedent’s estate. A structure leased to and occupied by Eat’N Park Restaurants, Inc., although situated primarily on property owned by the estate, protruded onto the Reese property. On the Reese property was also located a parking lot which serviced Eat’N Park.. The total annual rental from the four leases was $61,680.00 per year.

The estate owes Pennsylvania inheritance tax in the amount of $33,749.44, plus interest and penalty, if any. Repairs to a building and parking lot are needed at an approximate cost of eleven thousand ($11,000.00) dollars. Administrative costs, including commissions of the executor-trustee, counsel fees, real estate taxes, etc., must also be paid. Unfortunately, the decedent’s estate has insufficient liquid assets to pay the debts and taxes which it owes. The estate, therefore, attempted to borrow the necessary funds, giving as security a mortgage on the real estate. The mortgage transaction failed of consummation, however, when a title search disclosed that a portion of one building was on the Reese property and the decedent’s daughter, Lenora J. Reese, refused to cooperate in perfecting the estate’s title or the lender’s mortgage interest.

For similar reasons, the executor-trustee has deemed it inadvisable to sell the real estate which is the principal of the trust. Because at least a portion of the commercial property owned by the decedent’s estate is dependent upon the Reese property, it was reasoned, a sale of the trust real estate without a simultaneous sale of the Reese property would be economically unfeasible. Indeed, it was feared that in the event of such a sale, the Reeses would be the only buyers, and the price, therefore, would be inadequate. Moreover, Article VI of the Will contained the testator’s belief that the real estate should be retained as an investment by the trust. Therefore, the executor filed a petition in the Orphans’ Court of Allegheny County to obtain permission to pay inheritance tax, costs of administration, repairs, real estate taxes, etc., out of income. This was opposed by Leonora Warner, the widow who is 95 years of age, and Lenora Reese, the daughter, who is the alternate income beneficiary of the trust. The owners of the remainder interests have consented to the payment of debts, taxes and costs of administration out of income.

The Orphans’ Court, after an evidentiary hearing, granted the executor’s petition and directed that the inheritance tax, administration expenses, costs of repairs, etc. be paid from income. However, thirty-two (32%) percent of the rent received from the Eat’N Park lease was directed to be paid to the Reeses and was not to be deemed income to the Estate. Exceptions were overruled, and the income beneficiaries appealed. They contend that it was error to direct that the inheritance tax, costs of administration, repairs, etc. be paid out of income.

The costs of making repairs in the amount of eleven thousand ($11,000.00) dollars are properly payable from income. Real estate taxes and other costs of maintaining the commercial real estate and doing business in Monroe-ville are also payable from income. There is nothing in the testator’s will to require otherwise, and the provisions of 20 Pa.C.S. § 8111(a) direct that “[a]ll ordinary expenses and charges, incurred in connection with the trust estate or with its administration and management, shall be paid out of income____”

In Article Nine of the testator’s will, he provided as follows:

I direct that all Estate, inheritance and other taxes in the nature thereof, together with any interest and penalties thereon, becoming payable because of my death with respect to the property constituting my gross Estate for death tax purposes, whether or not such property passes under this Will, shall be paid from the principal of my residuary Estate____

This is a clear directive to the executor-trustee. Inheritance taxes are to be paid out of principal. This intention must be our lodestar. “[I]t can be denied only [if] it is unconstitutional, unlawful or against public policy.” In re Janney’s Estate, 498 Pa. 398, 401, 446 A.2d 1265, 1266 (1982).

The executor-trustee contends, however, that this mandate is rebutted by Article Six of the Will where the testator wrote as follows:

It is my belief that my real estate should be retained as an investment for my trusts. Therefore, I give full power to my Executor and Trustee to retain and manage the same, to establish reserve accounts, to mortgage it as necessary to provide cash for taxes and other expenses and to use both the income and principal of Fund B for mortgage payments; PROVIDED, however, that such power shall not be exercised in such manner that it would disqualify Fund A for the purposes of the marital deduction under the Federal Estate tax laws.

Although the Orphans’ Court found this argument persuasive, we are constrained to disagree. This language does not contain a mandate or direct the executor-trustee to retain the decedent’s real estate. Neither does it contradict the testator’s instruction to pay the inheritance tax out of principal. The testator’s “belief” that his real estate should be maintained as an investment is nothing more than precatory language which is not binding on the executor-trustee. The testator did not instruct the trustee to retain and manage his real estate but merely gave the trustee authority to do so in its discretion.

Testamentary intent must be ascertained by carefully reviewing all of the language contained in the will. In re Estate of Ogden, 353 Pa.Super. 273, 276, 509 A.2d 1271, 1273 (1986) (citations omitted). “[T]he words of the instrument are not viewed in a vacuum,” Id., but as part of an overall testamentary plan. See: Estate of Zerbey, 313 Pa.Super. 297, 459 A.2d 1237 (1983). Specific “[w]ords or phrases will be rejected when they have the effect to subvert or defeat testator’s whole testamentary scheme and divert the bounty from those whom he obviously intended to benefit.” Hill Estate, 432 Pa. 269, 278-279, 247 A.2d 606, 612 (1968), citing March Estate, 357 Pa. 216, 219, 53 A.2d 606, 607 (1947). The testator’s will in this case leaves no doubt that it was his wife and daughter (and not his real estate) who were the primary objects of his bounty. His wife was given all the income from the testator’s estate and the absolute power to invade the principal in the marital trust. His daughter was given all the income from the testator’s estate following his wife’s death. “[I]n nearly all instances of long continuing trusts, the life tenants are the primary objects of the bounty of testators, and their incomes should be preserved to them, as far as it is possible to do so, even though it may result in [the] ultimate diminishment of principal to be paid to far [removed] remaindermen.” Nirdlinger’s Estate, 327 Pa. 171, 173-174, 193 A. 30, 32 (1937). Here, the intent of the testator was clear. To provide maximum income for his widow and/or daughter, the testator specifically directed that the inheritance tax be paid out of principal.

The executor argues, however, that it is economically unfeasible to pay the inheritance tax from principal. We are unable to agree. We observe, initially, that the orphans’ court did not make a finding that the executor-trustee was unable to pay the inheritance tax from principal. Indeed, such a finding would not have been warranted by the evidence.

The commercial real estate, including the Reese property, was appraised as of the date of the testator’s death at $628,000.00. An appraiser opined that the actual rentals received were less than the fair rental values for comparable commercial properties and that the fair market value of the premises, if sold upon termination of the existing leases, would be in excess of one million dollars. The executor-trustee, as we have observed, is expressly authorized to mortgage the real estate to provide cash for taxes and other expenses. The executor-trustee has averred difficulty in mortgaging the entire commercial property because a portion of one building is situated on the Reese property. However, it has not been alleged, the evidence does not show, and the court did not find that funds could not be borrowed on the security of a portion of the real estate forming the corpus of the trust.

Similarly, there is no reason to believe that a portion of the trust real estate could not be sold to realize funds needed to pay inheritance tax, if this became necessary. Although the executor has averred that Monroeville Borough officials probably will not approve a subdivision, the evidence is insufficient to support such a finding, and the orphans’ court did not find in fact that a sale of a portion of the real estate to pay inheritance taxes was either impossible or unfeasible.

On the present state of the record, therefore, there does not appear to be an adequate reason for denying the efficacy of the testator’s instruction that the inheritance tax be paid from principal. We are constrained to hold, therefore, that it was error to direct that the inheritance tax be paid from income.

Compensation for an executor-trustee and counsel fees “may be apportioned between income and principal as the court may direct.” 20 Pa.C.S. § 8111(b). In this case, the court made no attempt to apportion the executor-trustee’s compensation or the fees of counsel between income and principal. Rather, in reliance on the precatory language contained in Article Six of the Will, the court held that fees and commissions were to be paid out of income. This language, we have held, is not mandatory — it merely permits the executor-trustee to retain the testator’s real estate. Therefore, it is inadequate to overcome the statutory mandate to apportion commissions and fees between principal and income. The need for a fair apportionment under the circumstances of this case is readily apparent.

The order of the Orphans’ Court is affirmed in part and reversed in part. The portion of the Orphans’ Court’s order which directed the payment of real estate taxes, repairs and business privilege taxes from income is affirmed. The direction of the orphans’ court to pay inheritance tax out of income is reversed. The inheritance tax shall be paid out of principal. The court’s direction to pay the compensation of the executor-trustee, the fees of counsel, and other costs of administration out of income is also reversed, and the case is remanded to the orphans’ court for apportionment of the costs of administration between principal and income. Jurisdiction is not retained.

      . In addition to the Reese property the decedent and his wife owned by the entireties personal property having a value of $176,607.51 and consisting of cash, certificates of deposit, savings certificates and stocks. This has been delivered to the testator’s widow and is not a part of the decedent’s estate.

      . The monthly rentals were as follows: Eat’N Park — $1,200.00; Foto Hut — $1,900.00; Facelifters, Ltd. — $1,980.00; and Warners Flowers, Inc. — $60.00. Warners Flowers was wholly owned by Lenora Reese, the decedent’s daughter.

      . The executor-trustee is authorized to use both income and principal from Fund B to make mortgage payments, but there is no authority in the will for the executor to use income from Fund A for such purpose.


author: BROSKY, Judge.

text:
    570 A.2d 549
    HERZOG OIL FIELD SERVICE, INC., Appellant, v. OTTO TORPEDO COMPANY and Benson Oil Company and Glenn Benson.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1989.
    Filed Feb. 12, 1990.

      Charles J. Duke, Bradford, for appellant.
    Joseph M. Marasco, Bradford, for Otto Torpedo Co., appellee.
    William J. Kubiak, Bradford, for Benson Oil Co., appellee.
    Raymond W. Bulson, Port Allegany, for Glenn Benson, appellee.
    Before CAVANAUGH, BROSKY and ROWLEY, JJ.
   BROSKY, Judge.

This is an appeal from a judgment entered upon an order granting in part, and denying in part, requested post trial relief. The heart of the dispute rests in the determination of whether or not terms contained in a written confirmation of an oral contract between the parties and sent after delivery of the goods became part of the agreement under the provisions of § 2-207 of the Uniform Commercial Code. We conclude that they do and therefore, reverse that portion of the order inconsistent with this opinion.

The relevant facts, briefly stated, disclose that on February 3, 1986, discussions were had between the vice president of Otto, a Mr. Glenn Benson, and the president of Herzog regarding the delivery of certain items of drilling equipment or materials by Herzog to Otto at a drilling site where Otto was currently working with Benson Oil Company. Glenn Benson authorized the delivery of approximately 2,000 feet of pipe to be paid for by Otto. On February 6, 1986, Herzog was called by Robert Benson, brother of Glenn Benson and owner of Benson Oil, and was told to deliver the previously discussed materials to the well site that day, which Herzog did. The delivery of the materials was accompanied by the delivery of a “pipe tally report”, a sort of invoice used in the business, which stated that a finance charge of 1.5% per month of the unpaid balance would be added after 30 days. Also, on that day, a written invoice was sent listing the materials delivered, the price, the terms net 30 days and indicating that balances after 30 days would carry a 1.5% monthly finance charge and also that if an account were turned over for collection, attorney’s fees in the amount of 25% of the balance due would be added. No objection to the terms of the invoice were related by Otto to Herzog.

Subsequently, Otto refused to pay on the invoice and ultimately an action was initiated by Herzog against Otto. The trial court found that a valid contractual arrangement had been entered into between Herzog and Otto and found a liability in the amount of $8,070.60, plus statutory interest from the date of the order. Upon post trial proceedings, the court added 6% interest from March 6, 1986 to the date of the order, but denied appellant’s request for interest at the rate of 1.5% monthly and also denied the request for attorney’s fees. This appeal followed.

The essence of the trial court’s finding that the interest and attorney’s fees items had not become part of the contract between the parties was the conclusion reached that such items could not become part of the contract if proffered in a post-delivery written confirmation. The court specifically found that the interest item did not constitute a material change or alteration of the contract. It appears undisputed that 13 Pa.C.S.A. § 2207 is the controlling statutory provision. This section states:

(a) General rule. — A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(b) Effect on contract. — The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(1) the offer expressly limits acceptance to the terms of the offer;
(2) they materially alter it; or
(3) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

There seems to be little dispute that the invoice sent by Herzog on the day of delivery is a written confirmation within the meaning of § 2-207. The question appears to be whether a confirmation sent after delivery of the goods falls within the scope of § 2-207. We conclude that it does.

Our first point of reference leading us to our conclusion is the language of the statute itself. The “general rule” portion of § 2207 states “a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, ...” Subsection (b) indicates that these additional terms are to be construed as proposals for addition which, between merchants, become part of the contract if they are not objected to and if they do not materially alter the agreement. No objection to the terms in question was lodged and, at least as to the interest term, the court indicated that they did not constitute a material alteration of the contract. Thus, initially it would seem that there is no requirement that the written documents be sent prior to a delivery of the goods.

Our second point of reference is the comments to § 2-207. The first comment states “[t]his section is intended to deal with two typical situations. The one is the written confirmation, where an agreement has been reached either orally or by informal correspondence between the parties and is followed by one or both of the parties sending formal memoranda embodying the terms so far as agreed upon and adding terms not discussed.” (emphasis added). The second comment adds: “Under this Article a proposed deal which in commercial understanding has in fact been closed is recognized as a contract. Therefore, any additional matter contained in the confirmation or in the acceptance falls within subsection (2) and must be regarded as a proposal for an added term____” Comment three states: “[w]hether or not additional or different terms will become part of the agreement depends upon the provisions of subsection (2). If they are such as materially to alter the original bargain, they will not be included unless expressly agreed to by the other party. If, however, they are terms which would not so change the bargain they will be incorporated unless notice of objection to them has already been given or is given within a reasonable time.”

Our third point of reference is the case of United Coal v. Hawley Fuel Coal, Inc., 363 Pa.Super. 106, 525 A.2d 741 (1987). There, we considered a case where there was a written confirmation sent after an oral agreement for the shipment of coal had been reached. We cited White and Summers treatise on the UCC which states that prior oral agreement cases in which one or both parties follow up with a written confirmation are to be run through § 2207(b)(2), with whatever result that subsection dictates. J. White and R. Summers, Uniform Commercial Code, § 1-2 at 35-36 (2d ed. 1980). We then found, in that case, that the proposed term was a material alteration of the agreement and thus did not become part of the bargain.

The above material conclusively establishes that confirming memoranda of a previously reached agreement are subject to § 2-207. The only possible distinguishing feature of the present case is that the confirmation was sent after delivery, rather than before. However, from a standpoint of legal principle, this would seem to be an immaterial distinction. All of the above references indicate that the confirming memoranda can effectuate terms in the agreement even when submitted after a commercially acceptable and legally binding contract has been formed. The point of importance is the recognition that a contract can be formed even if many of the particulars or specifics have not been discussed or agreed upon.

Under the Code, there are many ways in which parties can enter into a legal contractual relationship. In the present case, is it not immediately apparent when a binding contract was formed, even though it would seem beyond dispute that one was formed at sometime. Ostensibly, it could be argued that a binding agreement was formed through the telephone discussion on February 3rd. Or, possibly, through the telephone conversation of the 6th. And certainly, if not by then, upon shipment or acceptance of the goods at the drilling site. However, we can see no reason why there should be a different result if the confirmation had been sent on the 5th, pursuant to the conversation of the 3rd, as opposed to the facts as they transpired in the present case. The overriding principle regarding the sending of a written confirmation, and the effect thereof, would not be changed.

We have little difficulty in determining that the interest charge term is not one that materially alters the agreement. The trial court reached that conclusion, and comment 5 to § 2207 states, as an example of a term that does not materially alter the contract, “a clause providing for interest on overdue invoices ... where they are within the range of trade practice____” Furthermore, it is common in commercial circles, including transactions with non-merchants, for balances to be subjected to interest charges. As such, and since no objection to the term was lodged, we find that the trial court erred in not allowing appellant interest as provided in the written confirmation. Under operation of § 2207 the term must be considered as part of the agreement. See, in accord, Rangen, Inc. v. Valley Trout Farms, Inc., 104 Idaho 284, 658 P.2d 955 (1983).

In contrast, however, we find that the provision calling for the addition of an attorney’s fee of 25% of the balance due is a material alteration and, therefore, did not become part of the agreement. We come to this conclusion for a few reasons. First, in common experience an attorney’s fee provision is considerably less common than an interest rate provision; thus, it would not be as readily expected or anticipated. Secondly, when found, such clauses are usually less than 25% of the balance, often 10 or 15%, thus bringing the reasonableness of this particular clause into question. Thirdly, a lump sum addition of 25% changes the obligor’s financial obligation under the contract to, what must be considered, a material degree. Fourthly, we choose to follow the precedent of Johnson Tire Service, Inc. v. Thorn, Inc., 613 P.2d 521, 529 (Utah, 1980), where this conclusion was also reached. There, the Utah court disallowed a clause, purportedly added under operation of § 2-207, which called for the buyer to pay costs of collection including “reasonable attorney’s fees”, because it found that such a clause constituted a material alteration. Thus, we conclude that the attorney’s fee provision constitutes a material alteration of the agreement under § 2-207 and that the trial court correctly refused to enforce it.

For the above reasons we reverse the order appealed from to the extent it denies appellant’s request for interest at the rate specified in the invoice, in all other respects the order is affirmed.

Reversed in part, affirmed in part. Jurisdiction relinquished.