author: POPOVICH, Judge:

text:
    605 A.2d 1256
    COMMONWEALTH of Pennsylvania, Appellee, v. Dennis CROWLEY a/k/a John D. Crawley, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed April 6, 1992.

      Michael J. Healey, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

The appellant, Dennis Crowley, has perfected an appeal from the judgment of sentence (3 to 6 years imprisonment) for possession with intent to deliver a controlled substance (cocaine). We affirm.

Initially, the appellant claims that the court below erred in basing its application of the mandatory sentencing statute (18 Pa.C.S.A. § 7508(a)(3)(i)) on the total mixture of cocaine and other non-controlled substances found in his possession.

It is the appellant’s position that, although there was a total of 37.31 grams of white powder seized, his sentence should have been based solely upon the 2.61 grams of pure cocaine contained in the powder found.

The appellant concedes, as he must, that in Commonwealth v. Lisboy, 392 Pa.Super. 411, 573 A.2d 222 (1990), allocatur granted, 525 Pa. 655, 582 A.2d 322 (1990), a panel of this Court held that:

... substance, as used in [18 Pa.C.S.A. § 7508(a)(3)(ii) ], includes a mixture of cocaine and a matter other than cocaine. Hence, when § 7508(a)(3)(ii) refers to the weight of the substance, it is referring to the weight of the cocaine plus the matter that the cocaine is mixed with. * * * As mixture is encompassed in the definition of substance in § 7508(a)(3), then the word substance in § 7508(a)(3)(ii) clearly includes mixtures of cocaine and other matter.
* * # * * *
If cocaine is present in a mixture, the total weight of the mixture is used in a determination of whether a mandatory minimum sentence must be imposed.

392 Pa.Super. at 416-17, 573 A.2d at 224. Accord Commonwealth v. Perez, 397 Pa.Super. 574, 580 A.2d 781 (1990).

Although the appellant challenges the sentence imposed under 18 Pa.C.S.A. § 7508(a)(3)(i), the mandatory minimum sentencing language is identical under both subparagraphs (i) and (ii) of Section 7508. Therefore, we find it prudent to take our direction from Lisboy in deciding the course to pursue.

Stated differently, precedent (stare decisis) requires us to adhere to a ruling of this Court until it is reversed either by our Supreme Court or an en banc panel of Superior Court. Given the absence of either event, we are bound by the logic of Lisboy, supra. As a result, we find unpersuasive the appellant’s claim that Section 7508 requires a sentence to be premised upon the pure weight of cocaine and not the total weight (of the cocaine and the additive) in the product.

Lastly, the appellant contends that the mandatory sentencing statute (§ 7508(a)(3)(i)) is violative of the due process clauses of the Pennsylvania and United States Constitutions.

While the constitutionality of Section 7508 has yet to be addressed by an appellate court in this Commonwealth, we find guidance from some federal and sister-state decisions in disposing of the claim raised.

In United States ex rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir.1974), the court was reviewing the appellant’s plea of guilty to possessing an 18-ounce mixture of cocaine. On appeal, he contended that a New York statute was violative of the equal protection and due process clauses of the United States Constitution.

The appellant argued that the sanctions imposed for possession of a quantity of pure cocaine and possession of the same quantity of cocaine mixed with a diluent resulted in disparate penalties unjustified under the law, the latter carrying heavier sanctions. In response, the Second Circuit Court of Appeals wrote:

... appellant’s argument proves both too much and too little. Too much, in the sense that, by accepting appellant’s own premise that narcotics such as heroin and cocaine are generally marketed in mixtures or compounds, it does not seem unreasonable or irrational for a legislature to deal realistically with the marketing of the mixture or compound rather than the handling of the pure narcotic. Too little, in the sense that while it may not be wise to let the possessor of the pure or a purer product escape with a lighter penalty than that going to the possessor of the drug in its ordinary marketable form, it is not necessary for a legislature to attempt to eradicate all evil, but only part of it; as the Court said in Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937), “The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for [the state’s] determination.” No doubt the New York legislature, when it adopted the statutory scheme here in question ... had in mind a more flexible pattern of handling drug offenses ... considering that possessors of greater quantities of drugs should be punished more seriously because they are more likely to be dealers or to be capable of becoming such than possessors of smaller quantities, or because the greater quantities present a greater threat to society. Certainly to this extent the legislation cannot be treated as irrational. Taking the additional knowledge that heroin and cocaine at least are generally marketed in a diluted or impure state, the rationale of striking at the mixture or compound rather than at the pure quantity involved becomes evident: the possessor of 50 “bags” of five per cent pure heroin should arguably be punished no differently from a possessor of 50 bags with 10 per cent heroin. The State cannot be expected to make gradations and differentiations and draw distinctions and degrees so fine as to treat all law violators with the precision of a computer____
******
Suffice it to say[,] in the case of heroin and cocaine possession offenses[,] we do not view the New York statutes that were applied in this case unconstitutional on their face.

501 F.2d at 1184, 1185. Accord State v. Yu, 400 So.2d 762, 764-765 (Fla.1981); People v. Mayberry, 63 Ill.2d 1, 345 N.E.2d 97, cert, denied, 429 U.S. 828, 97 S.Ct. 87, 50 L.Ed.2d 92 (1976); see also Sheriff, Humboldt County v. Lang, 104 Nev. 539, 763 P.2d 56 (1988). In Lang, the Supreme Court of Nevada was asked to respond to a claim of ambiguity directed at a drug statute which proscribed possession of “28 grams or more”. The court agreed that the statute was ambiguous. Nonetheless, the court took the less restrictive view of interpretation and concluded:

The legislature enacted NRS 453.3395 to deter the large-scale distribution of controlled substances, thus decreasing the number of persons potentially harmed by the drug use. We note, however, that controlled substances are typically sold in a diluted state. In cases such as this, where the controlled substance has been “cut,” the substance is rendered more harmful to society because the dilution increases the potential number of persons who will partake of the proscribed controlled substance. The increased potential for harm to society justifies the imposition of more severe penalties for the possession of large amounts of a diluted controlled substance than for smaller amounts of a pure controlled substance. Further, the possession of large amounts of a diluted controlled substance indicates an intent to engage in the large-scale distribution of controlled substances, the very conduct that NRS 453.3395 is designed to deter. In accordance with the legislative policy underlying NRS 453.3395, we conclude that the phrase “28 grams or more” refers to the aggregate weight of the entire mixture rather than the weight of the controlled substance that is contained in the mixture.

763 P.2d at 58-59 (Citations omitted).

The appellant here, as in Daneff, postulates that the statute, as applied, violates due process principles because:

... an individual with eight (8) grams of pure cocaine would face only a one (1) year mandatory sentence, whereas an individual with twenty (20) grams of a mixture containing ten percent (10%) cocaine (2 grams pure cocaine) would face a three (3) year mandatory minimum.

Appellant’s Brief at 8.

At bar, the appellant was found to be in possession of 37.31 grams of a powder which, when tested, proved to contain 2.61 grams of cocaine. Consequently, the appellant argues that his sentence of 3-6 years imprisonment was fundamentally unfair since a person in possession of an “uncut” quantity of cocaine (2.61 grams) would not receive as severe a sentence. We do not agree.

Our inquiry under both federal and state due process clauses is the same, i.e., whether there is a rational basis for the classifications drawn by the Pennsylvania legislature. See McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Daneff, supra; cf. Novak v. Com., Unemployment Comp. Bd. of Review, 73 Pa. Cmwlth. 148, 457 A.2d 610 (1983) (Test for substantive due process is whether challenged law has a rational relation to valid state objective(s)); 7A P.L.E. Constitutional Law, § 273 (Rights protected by due process: legislature may make a classification which bears a reasonable and just relation to the act in respect to which it is imposed).

A review of the legislative history of House Bill 668, Act 1988-31, of which Section 7508 is a part, reveals no remarks regarding the objective to be achieved with the passage of Section 7508. Notwithstanding this point, we find insightful the fact that cocaine or, more accurately, cocaine hydrochloride, is marketed, as evidenced by, e.g., Turner v. United States, 396 U.S. 398, 401, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), in a mixture often containing as low a percentage as 5 per cent or less of narcotics.

No doubt the Pennsylvania legislature was cognizant, when enacting Section 7508, that cocaine is marketed, generally, in a diluted or impure state. Lisboy, supra. Thus, the “State cannot be expected to make gradations and differentiations and draw distinctions and degrees so fine as to treat all violators with the precision of a computer.” Daneff, supra, 501 F.2d at 1184.

We find that Section 7508 was enacted to deal with an ever burgeoning area of criminal activity — a drug epidemic, the effect of which pervades every aspect of our daily lives. Thus, in dealing with the drug problem, the realities of drug trafficking are not to be ignored, e.g., that cocaine is sold in a diluted form by dealers for the explicit purpose of securing more revenue for their product.

Therefore, an individual in possession of a large quantity of a drug (be it with or without a diluent) exposes himself or herself to more punishment than one in possession of a small quantity, given that in the former instance the actor is more likely to be a dealer and in the latter case a user. Id. Accordingly, we will not fault the legislature for treating individuals in possession of large quantities of drugs (be they pure or diluted) more harshly than those in possession of a small quantity — e.g., less than 2.0 grams. The rationale for the escalation in penalty is proportionate to the likelihood that a large quantity of “cut” cocaine is destined to be sold and not possessed for personal use. Thus, the differentiation in treatment is constitutionally valid; to-wit:

... even if a statute is imprecise, a person who is given fair warning that his conduct is criminal in nature has no standing to complain that other persons who engage in a different course of conduct may not constitutionally be prosecuted [to the same extent] under that statute.

Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127, 1135 (1983) (Citations omitted).

Suffice it to say, we do not embrace the appellant’s constitutional argument to undermine the enforceability of Section 7508 for sentencing purposes. The statute, as applied in this case, is not viewed as unconstitutional either on its face or as applied.

Judgment of sentence affirmed.

      . The appellant was also sentenced 30 days to 1 year for driving while under the influence of alcohol. This was to be served concurrently with the sentence issued for possession with intent to deliver cocaine. As to the remaining drug counts, the court made a determination of guilt without further penalty.

      . It is true that Section 7508(a)(3)(i) requires the imposition of a mandatory minimum sentence of 1 year in prison for possession of at least 2.0 grams of cocaine. However, if at the time of sentencing a defendant has been convicted of another drug offense, which was the case here, the sentence could be increased to a minimum of 3 years. Therefore, the appellant’s prior drug offense (cocaine) 18 Pa.C.S.A. § 7508(a. l) (Supp. 1991-92) triggers Section 7508(a)(3)(i) so as to legitimize the term of imprisonment the appellant contests as unconstitutionally imposed. We find to hold to the contrary would be inconsistent with the plain reading of Section 7508 and case law interpreting it. See Lisboy, supra.

      . 18 Pa.C.S. § 7508 reads, in pertinent part:

        (a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply: (3) A person who is convicted of violating section 13(a) ... (30) ... of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
      (i) when the aggregate weight of the compound or mixture containing the substance involved is a least 2.0 grams and less than ten grams; one year in prison and a fíne of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity____
      18 Pa.C.S.A. § 7508 (Supp.1991) (Emphasis added).


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    605 A.2d 1260
    Arthur J. BOYLE and Joanne W. Boyle, Individually and as Husband and Wife, and Boyle Land and Fuel Company, Appellants, v. Roberta W. ODELL, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1991.
    Filed April 8, 1992.

      B. Patrick Costello, Greensburg, & Kenneth L. Hirsch, Pittsburgh, for appellants.
    H. Reginald Belden, Jr., Greensburg, for appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellants, Arthur J. Boyle and Joanne W. Boyle, husband and wife, and Boyle Land and Fuel Company, instituted the instant proceedings to seek rescission of an agreement under which they purchased parcels of real property in Hempfield Township, Westmoreland County. The defendant-appellee, Roberta W. Odell, sold the properties to the plaintiffs. In addition to rescission, the plaintiffs requested that the trial court issue an order that their purchase price be returned, and that they be awarded damages flowing from losses they experienced in connection with the transaction. They also sought punitive damages. The trial court, sitting without a jury, considered a joint partial statement of the cáse, and also heard testimony from witnesses. Thereafter, the court issued a decision and order that a verdict be entered for the defendant. After timely exceptions were submitted and argued, the trial court issued a final decision and order denying the exceptions, and all relief requested by the plaintiffs. This appeal followed.

The relevant facts are not in dispute. Prior to 1959, Flora Belle Martin, the mother of defendant Roberta W. Odell, owned land on both sides of Route 119 in Hempfield Township. On May 11, 1959, Mrs. Martin contracted to sell her property on the east side of the road to Mr. and Mrs. Natale Carbone, Jr. The sales agreement entered into between Mrs. Martin and Mr. and Mrs. Carbone included the following provision:

“The Seller further gives and grants to the Buyers the first option to purchase any of the land or property which Seller might have and own on the West side of State Highway Route 119 at any time she or her heirs might wish to sell the same.”

That sales agreement was recorded in the Office of the Recorder of Deeds of Westmoreland County.

Mr. and Mrs. Carbone entered into an agreement dated June 13, 1959 with Car-Man, Inc., wherein they assigned their rights in the May 11, 1959 sales agreement with Flora Belle Martin, to that corporation. Car-Man, Inc. was owned by the Carbone family. This assignment agreement was recorded in Westmoreland County. Pursuant to the May 11, 1959 sales agreement, and the subsequent Carbone June 13, 1959 assignment agreement, on June 26, 1959, Mrs. Martin executed a deed conveying the property east of Route 119 to Car-Man, Inc. That deed was also recorded.

Between 1966 and 1975, Mrs. Martin conveyed separate parcels of her property on the west side of Route 119 to her daughter, the defendant Roberta W. Odell, and to her son, Sherwood C. Martin. Subsequently, Sherwood C. Martin conveyed all of his interests in the property to his sister, Mrs. Odell.

In April 1985, Mrs. Odell entered into a sales agreement to sell the property on the west side of the road to plaintiffs Arthur J. and Joanne W. Boyle. That sales agreement covered three separate parcels of land, and provided for a selling price of $600,000.00. Inter alia, the sales agreement stated:

“Seller shall, on the date hereinafter specified, by deed of General Warranty, well and sufficient grant and convey unto Buyer, in fee simple, clear of all liens and encumbrances, except as hereinafter set forth , good and marketable title (and such as will be insurable by any responsible title insurance company at regular rates) to the following (hereinafter referred to as “The Property”).”

Mr. and Mrs. Boyle assigned part of their rights under the sales agreement to plaintiff Boyle Land and Fuel Company, which has been identified as a corporation owned by Mr. Boyle.

Prior to the closing on the property, the plaintiffs obtained title insurance policies from Commonwealth Land Title Company. Neither the title report nor the policy disclosed the existence of any right of first refusal to purchase the property by Mr. and Mrs. Carbone or by Car-Man, Inc. Further, the evidence indicated that Mr. and Mrs. Boyle had no notice of the alleged existence of such a right of first refusal at any time before they took title to the property.

The closing on the parcels west of Route 119 took place on July 3, 1985, when defendant Roberta Odell conveyed part of the land to Mr. and Mrs. Boyle, with the remainder being deeded to plaintiff Boyle Land and Fuel Company. The deeds recited that defendant Odell was granting and conveying the parcels:

“SUBJECT TO all easements, estates, covenants, conditions, exceptions and reservations shown in prior instruments of record.
Grantor covenants that she will warrant generally the property hereby conveyed.”

These deeds were also recorded in the Office of the Recorder of Deeds in Westmoreland County.

On July 15, 1985, the attorneys for Mr. and Mrs. Boyle received notice from counsel for Car-Man, Inc. of the 1959 option which had been conveyed to Mr. and Mrs. Carbone by Mrs. Odell’s mother, Flora Belle Martin, and which was subsequently assigned to Car-Man, Inc. Moreover, Car-Man, Inc. declared an intent to exercise the right to buy the property, at a price paid during prior transactions which resulted in the conveyance of the interests of Sherwood C. Martin to defendant Roberta Odell. Thereafter, Car-Man, Inc. instituted proceedings in the Court of Common Pleas of Westmoreland County against Mrs. Odell, as well as against the plaintiffs herein, to enforce its claimed option to purchase the property on the west side of Route 119 which had been conveyed to the plaintiffs by Mrs. Odell. The plaintiffs made a demand that Ms. Odell rescind her sale of the property to them, and asked that she return their purchase price, and pay costs they had incurred in the transaction. The Boyles also discontinued remodelling work they had already begun on buildings on the property. They never actually resided on the land, as they had previously planned.

The plaintiffs instituted the instant case on July 23,1985. After reciting the relevant history of proceedings, they asserted that Mrs. Odell had breached her agreement to provide them with a clear title to the property. In a second count in the complaint, they alleged that she fraudulently and intentionally executed and delivered deeds to them which did not convey a title in accordance with the terms of the prior agreement to sell the land. They sought an order of rescission, the return of the purchase price, and damages, including legal fees and other expenses they experienced in the transaction. With regard to the fraud claims, they also asserted a claim for punitive damages.

By agreement of the Boyles and Mrs. Odell, while this action was proceeding, the court entered an order that Mrs. Odell was to attend to the physical preservation of the property while the case was pending, and the Boyles agreed to pay the taxes and insurance premiums on the property. Further, the order indicated that the winner of the litigation was to be reimbursed for expenses incurred in accordance with the division of responsibilities which had been agreed to by the parties.

In May 1990, Mrs. Odell and the Boyle’s title insurer settled with the Carbones and Car-Man and received a quitclaim deed from Car-Man, Inc., extinguishing all rights with regard to the purchase option which had been extended by Flora Belle Martin in 1959. The quitclaim deed from Car-Man to Mrs. Odell was recorded. Thereafter, Mrs. Odell tendered quitclaim deeds to Mr. and Mrs. Boyle and to Boyle Land and Fuel Company, in order to eliminate any defect in their titles which had been created by the existence of the 1959 first right to purchase. The tender was not accepted by the plaintiffs, but Mrs. Odell thereafter recorded her quitclaim deeds in Westmoreland County.

In this setting, the case came before the trial court for resolution. Essentially, the plaintiffs maintained their requests for rescission and for damages. Defendant Odell contended that the quitclaim deeds which had been procured and recorded satisfied her obligations in full to the plaintiffs.

The trial court determined that there was no evidence that Mrs. Odell had any knowledge of the 1959 first option to purchase which had been agreed to by her mother in the sales agreement with Mr. and Mrs. Carbone. On that basis, the trial court determined that the defendant had not engaged in intentional and fraudulent conduct as alleged by plaintiffs in the second count of the complaint. Accordingly, the court held that the plaintiffs were not entitled to punitive damages or any of the other requests for relief based upon their allegations that Mrs. Odell had engaged in intentional and fraudulent conduct.

The trial court also concluded that the plaintiffs were not entitled to any relief on their breach of contract claims, which were raised in the first count of their complaint. Despite the stated assumption that the right of first refusal was an encumbrance which would cause the title to the property in issue to be “nonmarketable,” and the further assumption that the “subject to” clause in the deed did not put the plaintiffs on notice that the conveyances were subject to the first right of refusal even though it was contained in the previously recorded Martin-Carbone sales agreement, the trial court declared that the plaintiffs were not entitled to rescission or any damages. The court reasoned that the general warranty provided in the deed was a covenant by the grantor only to defend the grantee’s title, and since the defendant had defended the plaintiffs’ titles in entering into the settlement with Car-Man, Inc. and obtaining quitclaim deeds for plaintiffs, the defendant had satisfied all obligations to the plaintiffs. Finally, the judge ruled that any damages that the plaintiffs “... may have suffered as a result of this litigation ...” might be recoverable by the plaintiffs in their pending action against the title insurer. The court found that the defendant fulfilled her obligation to eliminate any defect in title by resolving the disputed claim of Car-Man, Inc., and therefore, could not be held accountable for damages.

On appeal, the plaintiffs challenge the trial court’s denial of their request for rescission and damages. They argue that the trial court erred in ruling on their breach of contract claims, and also assert that the trial court improperly denied them relief under the second count of the complaint, in which they alleged that the defendant “fraudulently” and “intentionally” executed and delivered deeds to them which did not convey title as required in the prior agreement of sale they had with her.

The trial court initially analyzed the plaintiffs’ second count and we shall do likewise. The court determined that because it was established that the defendant had no knowledge of the right of first refusal, she could not have knowingly made any false representations or any deliberate non-disclosures of material facts, which would amount to culpable misrepresentations. On that basis, the trial court ruled that the plaintiffs had failed to establish any grounds for recovery based upon fraudulent or intentional conduct by the defendant. We are constrained to disagree.

Customarily, fraud is characterized by: (1) a knowingly false misrepresentation; (2) a concealment, calculated to deceive; or by (3) a nonprivileged failure to disclose. See DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644 (1958). However, fraud may be established where there is a misrepresentation, innocently made, but relating to a matter material to the transaction involved. See La Course v. Kiesel, 366 Pa. 385, 77 A.2d 877 (1951). In that case, the plaintiffs sought the cancellation of an agreement for the sale of property and for the return of their deposit, where they found that zoning restrictions for a property made it impossible for them to use it for apartments, contrary to advertising which stated that it could be used for that purpose. In response to claims that the defendants were not aware that the use of the property was restricted to a single residence, Justice Ladner explained that the defendants were not innocent of fraud, where they were responsible for a misrepresentation of an existing material fact, whether they actually knew the truth or not, especially where they had the means to obtain knowledge of the truth before making the representation. Justice Ladner explained that misrepresentations made under such circumstances are fraudulent and have been variously called implied, constructive or legal fraud, or fraud in equity. Thus, when material misrepresentations are made, whether knowingly or not, they provide grounds for rescission. For similar reasoning by our own court, in an analogous situation, see Silverman v. Bell Savings & Loan Association, 367 Pa.Super. 464, 533 A.2d 110 (1987). It is evident, from these rulings, that the trial court in the instant case erred in failing to consider that Mrs. Odell may have engaged in fraudulent conduct, despite her lack of knowledge of the 1959 first option to purchase which had been agreed to by her mother in the sales agreement with Mr. and Mrs. Carbone.

The question is also presented as to whether Mrs. Odell’s representations regarding the status of the title were material in the transaction. On this point, the decision in La Course v. Kiesel, supra., is further instructive. Justice Ladner pointed out that if purchasers take a deed subject to a restriction which might expose them to the hazard of a law suit, such renders the title not marketable. The same analysis would appear to be applicable here, and suggest a determination that the innocent misrepresentation of the defendant was material in that it related to the marketability of the title, as it clearly exposed the plaintiffs to a suit. Having made this observation however, we must remand this case to the trial court for further proceedings and consideration of the plaintiffs’ requests for relief. The trial court should make any appropriate fact-finding on these points, in the first instance, in this equity action.

It is appropriate however, that prior to remand we also examine the plaintiffs’ claim that the trial court erred in ruling that they were not entitled to rescission or other relief against Mrs. Odell. The trial court held that the defendant had satisfied all of her obligations to the plaintiffs by supplying quitclaim deeds from Car-Man, Inc. and herself. Again, we find ourselves in disagreement with the trial court. Assuming the trial court finds fraud by the defendant, or a breach of contract as alleged by the plaintiffs in the first count of their complaint, it clearly appears that the plaintiffs would have a right to obtain a rescission of the transaction, as well as a recovery of monies from the defendant.

As discussed, if it is determined that a purchaser in a real estate transaction has suffered from fraud by the seller, even in the nature of an innocent misrepresentation of a material fact, a right of rescission is established. See Roberts v. Estate of Barbagallo, 366 Pa.Super. 559, 531 A.2d 1125 (1987); La Course v. Kiesel, supra. Moreover, the purchaser is given the election of remedies; he may seek to rescind the deed, or in the alternative, may sue for damages. Roberts v. Estate of Barbagallo, supra. A plaintiff in these circumstances seeking rescission may not also seek damages, as such remedies would be inconsistent. See Wedgewood Diner, Inc. v. Good, 368 Pa.Super. 480, 534 A.2d 537 (1987); Silverman v. Bell Savings & Loan Association, supra. However, in addition to granting equitable relief, in the nature of rescission, the trial court is also empowered to grant the plaintiffs restitution of appropriate losses incurred. Silverman v. Bell Savings & Loan Association, supra; Jeffrey Structures, Inc. v. Grimaldi, 186 Pa.Super. 437, 142 A.2d 378 (1958). Restitution, unlike damages, is a remedy not inconsistent with rescission. Wedgewood Diner, Inc. v. Good, supra; Silverman v. Bell Savings & Loan Association, supra.

In the instant case, the plaintiffs sought rescission and “incidental damages”. In light of our remand of this case to the trial court for further proceedings it would not be appropriate for our court to examine the details of the plaintiffs’ claims for monies, to determine whether they encompass restitution claims or damage claims. Suffice it to point out that if the plaintiffs are found to be entitled to an order of rescission, they would also enjoy a right to restitution. Such issues are also to be addressed in the first instance by the trial court.

Reversed and remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.

      . The sales agreement did not include any reference to the Carbone first option to purchase, or anything similar to it, as a lien or encumbrance on the property.

      . The plaintiffs sued their title insurance company under the policy and for negligence. That suit has been held in abeyance pending the outcome of the instant litigation.

      . . In that regard, the court pointed out that the parties had agreed in their joint partial statement of the case that the defendant had no knowledge of any interest or claim to the property by either the Carbones or Car-Man, Inc. until after she had already conveyed the property on the west side of Route 119 to the defendants.


author: OLSZEWSKI, Judge.

text:
    605 A.2d 1265
    COMMONWEALTH of Pennsylvania v. Joseph Robert McHUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1991.
    Filed April 8, 1992.

      Guy Smith, Media, for appellant.
    Vram Nedurian, Jr., Asst. Dist. Atty., Newton Square, for Com., appellee.
    Before CAVANAUGH, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the judgment of sentence rendered following appellant’s bench trial in the Court of Common Pleas of Delaware County. Appellant was found guilty on the charge of driving under the influence and not guilty on the charges of stop sign and yield sign violations and reckless driving. Post-trial motions were denied; and appellant was subsequently sentenced to a term of imprisonment not less than thirty days nor more than two years minus one day, plus a fine of $300 and the costs of prosecution. On appeal, appellant complains that his arrest was unlawful; therefore, the trial court erred by denying his motion to suppress the results of field sobriety and breathalyzer tests. We affirm.

The record and the trial court opinion reflect the following relevant facts. On May 21, 1989, Officer Shaw of the Aston Township Police Department was on routine patrol when he entered a bordering portion of Upper Chichester Township. There, he observed two vehicles speeding on Cherry Tree Road. When both vehicles failed to observe a stop sign, Officer Shaw proceeded to follow the vehicles and radioed the Upper Chichester Township Police. After explaining the situation, Officer Shaw asked whether the Upper Chichester Police wanted him to stop the vehicles. In response to this inquiry, Officer Fanelli of the Upper Chichester Police Department requested that the vehicles be stopped.

As the vehicles approached an upcoming intersection, one vehicle proceeded through the stop sign and appellant’s vehicle braked, thereby causing it to slide into the intersection and onto the opposite curb. Appellant then drove off the curb and stopped his car. Without using any emergency warning equipment such as flashers or sirens, Officer Shaw parked his car behind appellant’s vehicle. When Officer Shaw approached the vehicle, he detected an odor of alcohol from appellant’s person. He removed appellant’s keys from the ignition until Officer Fanelli arrived a few minutes later.

Officer Fanelli was prompted to administer several field sobriety tests to appellant based on an odor of alcohol, appellant’s glassy and bloodshot eyes, and Officer Shaw’s observations. Appellant failed these tests and was arrested. Upon arrival at the Upper Chichester police station, appellant submitted to a breathalyzer test, which revealed his blood alcohol content to be 0.17%.

Appellant maintains that his arrest was illegal as a violation of the Municipal Police Jurisdiction Act, since the arresting officer was outside the territorial limits of his primary jurisdiction. Hence, appellant further argues that the trial court erred by denying his motion to suppress the results of field sobriety and breathalyzer tests. As a preliminary matter, we note that our standard of review when evaluating the disposition of a motion to suppress is to determine whether the record supports the findings of the trial court and whether the legal conclusions which follow from these findings are in error. Commonwealth v. Bowers, 400 Pa.Super. 377, 583 A.2d 1165, 1167 (1990).

The pertinent portion of Section 8953 of the Municipal Police Jurisdiction Act provides:

(a) General Rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
$ ‡ $ $ afc jjc
(3) Where the officer has been requested to aid or assist any local, State or Federal law enforcement officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.

42 Pa.C.S.A. § 8953(a)(3) (emphasis added).

The issue before us is one of first impression. Namely, we must decide whether the factual circumstances at bar constitute a “request” within the meaning of Section 8953(a)(3) of the Municipal Police Jurisdiction Act. Pursuant to this statute, Officer Shaw's actions are sanctioned, if he performed this assistance at the request of Officer Fanelli, even though he acted outside his primary jurisdiction of Aston Township. We are guided in this instance by the Rules of Statutory Construction, 1 Pa.C.S.A. § 1901-1910. According to these rules of construction, the Municipal Police Jurisdiction Act is not among those statutes which must be strictly construed and instead is subject to liberal construction to effectuate its objects and to promote justice. Commonwealth v. Ebersole, 342 Pa.Super. 151, 153-55, 492 A.2d 436, 438 (1985); 1 Pa.C.S.A. § 1928(a), (b).

In the case at bar, the lower court held that Officer Shaw did render aid in response to Officer Fanelli’s request, despite the fact that communications between the officers were initiated by Officer Shaw. Appellant suggests that Officer Shaw could not act at the request of Officer Fanelli unless he was responding to a call for assistance which originated with the Upper Chichester Police. We disagree. The facts of this case reveal that Officer Shaw did initiate contact by radioing the Upper Chichester Police and advising them of the events he witnessed. Officer Shaw proceeded to inquire whether he should stop the vehicles. At this stage, Officer Fanelli was faced with two choices. He could respond affirmatively thereby seeking the help of Officer Shaw, or he could respond negatively thereby declining. By choosing the former, Officer Fanelli enlisted and requested the assistance of Officer Shaw as contemplated by Section 8953(a)(3) of the Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8953(a)(3).

Our ruling is consistent with the public policy underlying the Municipal Police Jurisdiction Act, which was explained by this Court in Commonwealth v. Fetsick:

The general purpose of the statute is to restrict the jurisdiction of police to their own municipalities, on the one hand, while allowing certain practical and policy exceptions to the general rule on the other hand.

Commonwealth v. Fetsick, 392 Pa.Super. 264, 268, 572 A.2d 793, 794-795, allocatur denied, 525 Pa. 642, 581 A.2d 568 (1990), citing, Commonwealth v. Merchant, 385 Pa.Super. 264, 268, 560 A.2d 795, 796-797 (1989). In addition, as the lower court and appellee point out, our holding also conforms to the aims described by this Court in Commonwealth v. Ebersole:

A careful reading of the subject statute reveals that its purpose is to provide police officers with authority to make arrests outside their primary jurisdiction in limited situations. In providing such authority, the statute also ensures that police departments will be kept apprised, to the greatest possible extent, of actions taken in the municipality by the police from outside the jurisdiction. Therefore, it is clear that one of the goals of the legislature in enacting the statute was to promote a cohesive working relationship among municipal police departments.

Ebersole, 342 Pa.Super. at 155, 492 A.2d at 438 (interpreting 42 Pa.C.S.A. § 8953(a)(1)) (emphasis added).

The circumstances presented here encourage the policy of the Municipal Police Jurisdiction Act by cultivating a cohesive working relationship between the Upper Chichester and Aston Township Police Departments. The Upper Chichester Township Police Department was apprised of the situation and requested the help of Officer Shaw. Officer Shaw did not act independently, but instead engaged in a cooperative effort. In harmony with the policy of the Municipal Police Jurisdiction Act and the interests of justice, we find that appellant’s arrest was lawful and the trial court did not err by denying his motion to suppress the results of field sobriety and breathalyzer tests.

Judgment of sentence is affirmed.

      . 75 Pa.C.S.A. § 3731.

      . At his non-jury trial, appellant stipulated to the facts elicited at the preliminary hearing on July 27, 1989, and the suppression hearing on December 14, 1989. In addition, appellant stipulated to the facts cited in the affidavit of probable cause and to the breathalyzer test, which revealed appellant's blood alcohol content to be .171%.

      . We also reject appellant’s suggestion that Officer Shaw’s actions were improper since he did not follow appellant’s vehicle- from his own jurisdiction and into Upper Chichester Township, but rather acted completely within a foreign jurisdiction. Appellant cites Commonwealth v. Johnson, 373 Pa.Super. 312, 541 A.2d 332 (1988), to support this contention. Johnson, however, included an entirely different fact situation than that explained by appellant on page 11 of his brief.


author: JOHNSON, Judge:

text:
    605 A.2d 1268
    Lorraine A. ELHAJJ v. William J. ELHAJJ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 16, 1991.
    Filed March 23, 1992.

      William C. Cramer, Jr., Chambersburg, for appellant.
    Wayne F. Shade, Carlisle, for appellee.
    Before CIRILLO, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

In this equitable distribution action, we are asked to determine if the trial court’s distribution of husband’s federal civil service retirement pension, using the immediate offset method, while retaining jurisdiction to allow the pension to be revalued in the event husband retired before age 65, is error.

Husband, William J. Elhajj, argues on appeal, that if his pension cannot be fairly valued now, the trial court should have used the deferred distribution method to value his pension at retirement. Husband maintains that the trial court should have distributed his pension, either now, or later, but not both. We vacate and remand.

The parties in this action lived together from March 19, 1969, until their separation on February 19,1986, seventeen years. Wife, Lorraine A. Elhajj, spent the first ten years of marriage as a homemaker and in child rearing. Both Husband and Wife are federal civil service employees, Husband earning $48,000 yearly in contrast to Wife’s wages of $22,000. The trial court awarded 65% of the marital assets to Wife, determining Husband’s pension to have a present value of $34,167, if Husband retired at age 65, and ordered immediate distribution of Wife’s 65% pension share. Husband was bom September 15, 1940, and is now age 50.

Our scope of review in equitable distribution matters is limited; we will not reverse the trial court absent an error of law or an abuse of discretion. Berrington v. Berrington, 409 Pa.Super. 355, 361, 598 A.2d 31, 34 (1991).

Husband, however, correctly contends that there are two basic approaches to the equitable division and distribution of pension benefits in this Commonwealth: the immediate offset method, and the deferred distribution method. In Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985), we adopted these two methods of equitable distribution. Under the immediate offset method, the pensions are valued and distributed immediately along with the rest of the marital estate. Under the deferred distribution method, each party receives his or her share of the pension as it is paid upon retirement. Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988).

In Demasi v. Demasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), allocatur denied, 517 Pa. 631, 539 A.2d 811 (1988), we set forth the appropriate circumstances for the use of these methods, stating that:

The immediate offset method is properly used when the present value of the benefit is sufficient to make a present distribution. Conversely, a deferred distribution method does not employ present value because too many variables make it too difficult to determine. Instead the court retains jurisdiction and allocates benefits when they mature or are paid. Deferred distribution is also the preferred method when the parties’ other assets are insufficient to offset a pension award.

Id. 366 Pa.Super. at 50, 530 A.2d at 886.

In the immediate offset method, the non-pension-holding spouse receives an immediate distribution of marital assets, providing that spouse with the equivalent of an equitable share of the other spouse’s pension, notwithstanding that the pension will not be received until some future time. To arrive at this equivalent of an equitable share, various calculations are made, assuming that the pension-holding spouse is at retirement age: life expectancy, appropriate interest rates, contingencies such as death and disability; these variables are factored in to reach a present value. Troyen, Pension Value and Equitable Distribution, 10 Fam.L.Rep. (BNA) 3001 (1983). Present value is the estimate of present worth of these future benefits. Zollars v. Zollars, 397 Pa.Super. 204, 209-210, 579 A.2d 1328, 1330 (1990), allocatur denied, 527 Pa. 603, 589 A.2d 693 (1991). Present value is thus multiplied by the coverture fraction or the pension portion earned during marriage to determine the appropriate award for the non-pension-holding spouse. Troyen, supra. Under the deferred distribution method, it is not necessary to calculate present value since actual calculations are made on the benefit determination date, the coverture fraction being multiplied by the pension-holding spouse’s actual benefit to determine actual value. Braderman, supra.

In the present case, each party introduced expert testimony analyzing the present value of the pensions of both Husband and Wife. Wife’s federal civil service retirement pension was valued at $5,478 and is not at issue. The conclusions of the experts with regard to the value of Husband’s pension, however, varied significantly, depending upon retirement age, the discount rate and other variables utilized. The trial court, itself, remarked that the valuations placed upon Husband’s pension ranged from “a low of $24,205 to a high of $170,348.78.” Opinion, dated July 11, 1991, at 3. The trial court commented that:

The protracted proceedings in this case have served to underscore the less than scientific ability of experts to reach a fair valuation of a fully vested, but not matured, defined benefit pension.

Opinion, dated 7/11/91 at 5.

From this comment and the testimony of the pension experts, we fail to understand how the trial court, with equity, could have used the immediate offset method in distributing Husband’s pension in the present case. The trial court has, in essence, utilized a present value to order a deferred payment. We have held such determinations to be an abuse of discretion in the past. See King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984); Zollars, supra. Here, we are likewise constrained to find that a formula for the distribution of marital assets utilizing the deferred distribution method where the marital asset offset is based on present value is inappropriate.

Next, Husband contends that our recent decision in Combleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991), requires that the portion of his Civil Service Retirement System pension equaling the present value of participation in the social security system should be excluded from the present value of his pension included in the marital estate. In Combleth, husband was a Civil Service Retirement System participant, while wife was not. Thus, as the trial court in the case now before us properly observed, “[t]he goal of the Court in Combleth was to equate the pensions of the husband and wife by excising the equivalent value of Social Security benefits from the husband’s pension and rendering that portion of the pension non-marital property.” Opinion, dated July 11, 1991, at 7. However, in the present case, unlike Combleth, both Husband and Wife are participants in the Civil Service Retirement System. Neither Husband nor Wife pays social security taxes; neither Husband nor Wife is entitled to social security benefits. Hence, we conclude that the trial court has not committed an abuse of discretion by declining to extend the reasoning in Combleth to the present case.

Our review of the remaining issues raised by appellant forces the conclusion that they lack merit. Accordingly, for the foregoing reasons, we vacate the order of the trial court docketed July 11, 1991, and remand to allow the trial court to determine whether the immediate offset method or the deferred distribution method of equitable distribution should be utilized in the present case.

Vacated and remanded. Jurisdiction relinquished.


author: CIRILLO, Judge:

text:
    605 A.2d 1271
    COMMONWEALTH of Pennsylvania v. Walter WOLFE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1992.
    Filed April 15, 1992.

      Walter Wolfe, pro se.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Com., appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Bucks County denying appellant Walter Wolfe’s petition for writ of habeas corpus. We affirm.

Walter Wolfe began having indecent contact with his stepdaughter when she was thirteen years old. The assaults continued for a period of five years. When the victim was approximately eighteen years old she left Wolfe’s home to live with her natural father. Wolfe continued to harass her; he followed her home from school, drove around her house repeatedly, contacted her by telephone, and eventually threatened her father and her boyfriend.

Wolfe was tried before a jury and convicted of involuntary deviate sexual intercourse, indecent assault, corruption of minors, terroristic threats, and harassment. Post-trial motions were filed and denied. The Commonwealth filed its notice of intent to proceed under the mandatory sentencing provisions of 42 Pa.C.S. § 9718, and Wolfe was sentenced to a total term of incarceration of eight to twenty years. Wolfe filed a motion to modify sentence, see Pa.R.Crim.P. § 1410, which was denied. On direct appeal to this court, Wolfe’s judgment of sentence was affirmed in a memorandum decision. Commonwealth v. Wolfe, 377 Pa.Super. 659, 541 A.2d 1156 (1988).

On March 10, 1989, Wolfe sought collateral relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. A hearing was held and Wolfe’s petition was denied on December 11, 1989. Wolfe appealed, and this court affirmed the PCRA court’s order denying relief. Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990). Wolfe then file a petition for allowance of appeal in the Pennsylvania Supreme Court; this petition was later withdrawn.

Thereafter, Wolfe filed a pro se petition for a writ of habeas corpus. On July 15, 1991, the Honorable Kenneth J. Biehn denied the petition without a hearing, concluding that Wolfe’s petition was inappropriate under 42 Pa.C.S. § 6503. Wolfe now appeals from that order, and raises the following issues for our consideration:

1. Did the trial court err in denying the petition for writ of habeas corpus?
2. Did the trial court err in allowing the trial judge to review the petition because the appellant requested the judge’s recusal?
3. Did the trial court err in not allowing appellant his presentence investigation reports and other documents?
4. Did the trial court err in not reviewing the appellant’s sentencing issue under the writ of habeas corpus?

Wolfe also charged his counsel with ineffectiveness for failing to raise these claims at the proper proceedings.

The ancient writ of habeas corpus is inherited from the common law, referred to by Sir William Blackstone as the most celebrated writ in the English law. 3 W. Blackstone, Commentaries 129. The writ lies to secure the immediate release of one who has been detained unlawfully, in violation of due process. Commonwealth v. Gibbons, 9 Pa.Super. 527, affirmed In re Kelly, 200 Pa. 430, 50 A. 248 (1899). Traditionally, the writ has functioned only to test the legality of the petitioner’s detention. See Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971); see also 42 Pa.C.S. § 6502.

Habeas corpus is a civil remedy, regardless of whether the prisoner has been detained under civil or criminal process. Commonwealth ex rel. Paylor v. Claudy, 366 Pa. 282, 77 A.2d 350 (1951); Commonwealth ex rel. Master v. Baldi, 166 Pa.Super. 413, 72 A.2d 150 (1950), cert, denied, 340 U.S. 866, 71 S.Ct. 88, 95 L.Ed. 632 (1950). The statutory writ in Pennsylvania, however, lies only for commitments under criminal process. See 42 Pa.C.S. § 6501 et seq. As an extraordinary remedy, habeas corpus may be invoked only when remedies in the ordinary course have been exhausted or are not available; the writ is not a substitute for appellate review. Commonwealth ex rel. Kennedy v. Myers, 393 Pa. 535, 143 A.2d 660 (1958); Moore v. Roth, 231 Pa.Super. 464, 331 A.2d 509 (1974).

When a petitioner is in custody by virtue of a judgment of sentence of a court of competent jurisdiction, the writ generally will not lie. Commonwealth ex rel. Wilson v. Keeper of Jail of Philadelphia County, 26 Pa. 279 (1856). The rationale for this limitation is the presumption of regularity which follows the judgment. Commonwealth ex rel. Spencer v, Ashe, 364 Pa. 442, 71 A.2d 799 (1950), cert denied, 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1390 (1950). See also Commonwealth ex rel. DeSimone v. Cavell, 185 Pa.Super. 131, 138 A.2d 688 (1958). The writ, as stated above, is an extraordinary remedy and, therefore, a judgment rendered in the ordinary course is beyond the reach of habeas corpus. That conviction cannot be put aside lightly, and it becomes stronger the longer the judgment stands. Commonwealth ex rel. Hoch v. Banmiller, 186 Pa.Super. 57, 140 A.2d 625 (1958), cert, denied, 358 U.S. 889, 79 S.Ct. 132, 3 L.Ed.2d 117 (1958); see also P.L.E. Habeas Corpus § 31. Consequently, habeas corpus generally is not available to review a conviction which has been affirmed on appeal. Commonwealth ex rel. Dugan v. Day, 180 Pa.Super. 643, 122 A.2d 90 (1956), cert, denied, 352 U.S. 852, 77 S.Ct. 74, 1 L.Ed.2d 62 (1956).

The statutory remedy of habeas corpus empowers any judge of a court of record to issue a writ to inquire into the cause of detention. 42 Pa.C.S. § 6502. The statute provides in part:

§ 6503. Right to apply for writ
(a) General rule. — Except as provided in subsection (b), an application for habeas corpus to inquire into the cause of detention may be brought by or on behalf of any person restrained of his liberty within this Commonwealth under any pretense whatsoever.
(b) Exception — Where a person is restrained by virtue of sentence after conviction for a criminal offense, the writ of habeas corpus shall not be available if a remedy may be had by post-conviction hearing proceedings authorized by law.

42 Pa.C.S. § 6503. Here, Judge Biehn determined that habeas corpus was not an appropriate remedy, and we agree.

Each of the issues raised in Wolfe’s habeas corpus petition could have been considered and corrected in the regular course of appellate review or by post-conviction proceedings authorized by law. Id. Consequently, Wolfe’s claims are not cognizable under the statutory remedy. See 42 Pa.C.S. § 6501 et seq.; Cf. Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 140, 149 A.2d 434, 437 (1959), cert, denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 85 (1959).

In his petition, Wolfe alleges sentencing errors and that the trial judge should have recused himself from Wolfe’s trial. Wolfe’s claim that he should have had access to his presentence reports is a matter properly raised in a motion for reconsideration of sentence and on direct appeal. Pa. R.Crim.P. 1410. Moreover, this claim pertains to the discretionary aspects of sentencing. A challenge to the discretionary aspects of sentencing is not a proper basis for habeas corpus relief. See Commonwealth ex rel. Camara v. Myers, 201 Pa.Super. 496, 193 A.2d 642 (1963) (court’s discretionary power in imposing sentence is not subject to review on habeas corpus); Commonwealth ex rel. Dempsey v. Martin, 181 Pa.Super. 274, 124 A.2d 430 (1956), cert, denied, 352 U.S. 933, 77 S.Ct. 238, 1 L.Ed.2d 168 (1956). Although habeas corpus may be used to correct an illegal sentence, “where as here the sentence imposed is within the limits fixed by law, the appellate court will not inquire into the sentencing judge’s reasons for the penalty imposed.” Commonwealth ex rel. Kimble v. Keenan, 194 Pa.Super. 169, 173-74, 166 A.2d 668, 670 (1960), cert, denied, 368 U.S. 977, 82 S.Ct. 481, 7 L.Ed.2d 439 (1962).

Wolfe’s claim that the trial judge should have recused himself at petitioner’s trial is also not reviewable in a habeas corpus proceeding. See Commonwealth ex rel. Roth v. Kozakiewicz, 86 Pa.Cmwlth. 459, 485 A.2d 843 (1984). “The courts of Pennsylvania have never reviewed [recusal] in the context of habeas corpus.” Id., 86 Pa. Cmwlth. at 467, 485 A.2d at 847. Recusal is a matter reviewable upon appeal “with proper recognition of the limitations as to the scope of review of an appellate court.” Id., 86 Pa.Cmwlth. at 467, 485 A.2d at 847. Furthermore, Wolfe has failed to support this claim for relief. Commonwealth ex rel. Camara v. Myers, supra. In fact, Wolfe’s petition is devoid of any supporting facts. A bald statement that the trial judge should have recused himself is not sufficient to compel a hearing on a habeas corpus petition. Commonwealth ex rel. Hoch v. Banmiller, supra; see also Commonwealth ex rel. Freeman v. Maroney, 202 Pa.Super. 163, 196 A.2d 397 (1963) (petition for writ of habeas corpus may be dismissed without a hearing when it is apparent on the face of the petition that no proper grounds for issuance of a writ are alleged); Commonwealth ex rel. Sims v. Cavell, 200 Pa.Super. 479, 190 A.2d 340 (1963) (where petition raises no factual issues requiring determination and fails to establish any ground entitling petitioner to habeas corpus relief, a hearing is unnecessary); Commonwealth ex rel. Keller v. Myers, 197 Pa.Super. 80, 177 A.2d 10 (1962) (petition which is not self-sustaining may be dismissed without a hearing).

Finally, Wolfe’s allegations of ineffectiveness of counsel, also raised without supporting facts, do not entitle him to habeas corpus relief. Commonwealth ex rel. Sims, supra; Commonwealth ex rel. Keller, supra. Ineffectiveness of counsel claims may be brought in post-trial proceedings, on direct appeal, or pursuant to post-conviction proceedings, provided they are instituted at the first available opportunity. See Pa.R.Crim.P. 1123(a) and comment; see also Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 646 (1982) (“ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents the appllants”). Wolfe’s claims could have properly been brought at one or more of these proceedings, and thus cannot properly form the basis for habeas corpus relief. See 42 Pa.C.S. § 6503; 42 Pa.C.S. §§ 9541-9546. See also Commonwealth ex rel. Garrison v. Myers, 194 Pa.Super. 611, 169 A.2d 584 (1961) (it could not be urged on application for habeas corpus that sentence of petitioner was too severe, that his lawyer was incompetent in handling his defense, and that petitioner did not receive a fair and impartial trial); Commonwealth ex rel. Davis v. Baldi, 181 Pa.Super. 251, 124 A.2d 390 (1956) (for prisoner to be released on habeas corpus because of lack of effective representation by counsel furnished him, such representation must have been so lacking in competence that it became the duty of the court or the prosecution to observe it and correct it).

Accordingly, we affirm the trial court’s order denying Wolfe’s request for habeas corpus relief.

Order affirmed.

      . Section 9718 of the Judicial Code provides mandatory minimum sentences for offenses against infant persons:
      (a) Mandatory sentence. — A person convicted of the following offenses when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment as follows: ******

      18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse) — not less than five years.
      42 Pa.C.S. § 9718.

      . See abo Pa. Const, art. 1, § 14.

      . In his petition for habeas corpus, Wolfe requested a hearing to bring forth the following issues:

        1. The trial court manifestly abused its discretion in sentencing petitioner to a period of incarceration of not less than eight nor more than twenty years.
      2. Trial judge should release the pre-sentence reports of the petitioner upon request.
      3. The trial judge should have recused himself from the petitioner’s trial.

      . We note that Wolfe was represented by counsel at trial, during post-trial proceedings, at sentencing, and during post-conviction relief proceedings. Additionally, post-conviction counsel did raise several claims of ineffectiveness of counsel, including a claim that counsel was ineffective for failing to raise a sentencing guideline claim in the motion to modify sentence.


author: WIEAND, Judge.

text:
    605 A.2d 1275
    Edward G. HOLTEEN, Appellant, v. Martha M. HOLTEEN, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1991.
    Filed April 22, 1992.

      Colin M. Hannings, Spring House, for appellant.
    Robert C. Gerhard, Jr., Glenside, for appellee.
    Before ROWLEY, President Judge, and WIEAND and JOHNSON, JJ.
   WIEAND, Judge.

This appeal is from an order summarily denying a petition to open a final decree in divorce. Finding no error in the trial court’s order, we affirm.

Edward G. Holteen and Martha M. Holteen were divorced on December 20,1989. The divorce decree incorporated the terms of a property settlement agreement entered by the parties.

One of the items to be distributed between the parties was the marital residence. Wife offered an appraisal estimating the value of the residence to be $150,000. Husband offered appraisals of $162,500 and $117,500. Pursuant to the property settlement agreement, husband agreed to convey the home to the wife. On April 4, 1990, six months after entry of the court’s decree, wife sold the marital residence for $300,000. Husband learned of the sale on June 6, 1990; and on June 25, 1990, he filed a petition to open the decree on grounds that his agreement to convey the home to the wife was based on a mutual mistake of fact. Wife filed a petition for summary judgment, which the court granted. Husband appealed.

Section 602 of the Divorce Code of 1980, which was in effect when appellant’s petition was filed, provided as follows:

A motion to open a decree of divorce or annulment may be made only within 30 days after entry of the decree and not thereafter. Such motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or because of a fatal defect apparent upon the face of the record, must be made within five years after entry of the final decree. Intrinsic fraud is such as relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.

In the instant case, it is clear that the appellant-husband is not claiming extrinsic fraud. He contends only that a mistake was made regarding the value of the marital residence. A motion to open a decree of divorce for such a reason must be made “within thirty days after entry of the decree and not thereafter.” See: Ratarsky v. Ratarsky, 383 Pa.Super. 445, 450, 557 A.2d 23, 25 (1989), aff'd, 525 Pa. 497, 581 A.2d 1377 (1990). The motion in the instant case was made more than six (6) months after entry of the final decree in divorce. This was too late.

Substantively appellant’s motion is also lacking in merit. His averment that a mistake was made in evaluating the marital home does not present an adequate reason for opening the divorce decree. Such a mistake is not equivalent to new evidence that will sustain an attack on the validity of the decree. Any other rule would permit repeated assaults on divorce decrees whenever a party believed a marital asset had been improperly valued. As the trial court observed, the parties “entered into an equitable agreement with the advice of counsel [and] that it did not predict every eventuality is no basis for modification.”

The trial court did not allow a request for counsel fees made by the wife-appellee; and in her appellate brief she questions this aspect of the court’s order. Because she did not file a separate appeal, however, she may not challenge the trial court’s failure to award counsel fees in this appeal by husband. See: Royal-Globe Ins. Cos. v. Hauck Mfg. Co., 233 Pa.Super. 248, 253, 335 A.2d 460, 462-463 (1975).

Order affirmed.

      . A similar provision now appears in the Consolidated Statutes at 23 Pa.C.S. § 3332.


author: DEL SOLE, Judge:

text:
    605 A.2d 1276
    COMMONWEALTH of Pennsylvania v. Theodore CHASE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed April 23, 1992.

      Martin P. Dorminy, Asst. Public Defender, Reading, for appellant.
    Carolyn Lanzillo, Asst. Dist. Atty., Reading, for Com., appellee.
    Before DEL SOLE, HUDOCK and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellant, Theodore Chase, was convicted, after an appeal de novo to the Court of Common Pleas of Berks County, of the summary offense of writing a bad check. The amount of the check was $316.17 issued to Boot’s Pet Shop in payment for a cocker spaniel puppy, cage, dishes, and dog toys. He was ordered by the district court to pay restitution in the amount of the check, and fined $50.00.

On appeal, Mr. Chase claims there was insufficient evidence to support his conviction. 18 Pa.C.S.A. § 4105 is the applicable rule of law, and states in pertinent part: Section 4105. Bad Checks

(a) Offense defined — A person commits an offense if he issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
(b) Presumption — For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or order (other than a post-dated check or order) would not be paid, if:
(1) the issuer had no account with the drawee at the time the check or order was issued: or
(2) payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal.

Appellant first claims that the Commonwealth failed to prove that he had actual notice of the bank’s dishonor of his check, and therefore the evidence was insufficient not only to convict, but also to support the statutory presumption that he intended to pass a bad check. Although notice is not defined in this section, or anywhere in the crimes code, our case law holds, “that the statute requires proof of notice ‘to the issuer’ and as a penal statute must be strictly construed.” Commonwealth v. Griffith, 242 Pa.Super. 484, 364 A.2d 374 (1976). Accordingly, in Griffith, notice to the defendant’s wife of a check’s dishonor was insufficient notice, especially because on the day it was drawn there were sufficient funds in the account to cover the check, and because the recipient of the check knew that the check would be held by the defendant for a period until his company received certain payments. Id., 242 Pa.Superior Ct. at 487-488, 364 A.2d at 376. However, in the same case concerning another dishonored check, it was held that mailed notice, along with a telephone call to Appellant concerning the dishonored check, and Appellant’s promise to resubmit the check which was again dishonored, was considered sufficient evidence of actual notice. Id.

Similarly, it was held in Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), (concerning the sufficiency of the evidence to establish the elements of the crime of driving while operating privileges were suspended, and specifically the sufficiency of the evidence that Appellant had notice of the suspension of his driver’s license,) that a letter mailed to Appellant by the Bureau of Traffic Safety was insufficient to establish notice, especially when Appellant’s address was different in different places in the official records, and there was no certified or registered mail receipt from the appellant.

In Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985), it was held that defendant had insufficient notice of his license suspension, when the only evidence of the notice was a letter mailed to the defendant, while in Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982), it was held that the defendant had actual notice of his license suspension as shown by records from the Bureau of Traffic Safety indicating the Bureau had sent the defendant a letter, the defendant’s guilty behavior in removing himself from the driver’s seat when the officer approached, and by having mailed his license back to the Bureau. In general, our case law shows that the mere mailing of letter without more, does not provide adequate notice in a summary criminal prosecution. However, if the defendant’s conduct indicates that notification has been received, i.e., mailing back a licénse, (.Burkett), or resubmitting a check in response to a notification of its dishonor, {Griffith), then actual notice will most probably be found.

In the instant case the record reveals that the bank never mailed Appellant notification of the dishonor of his check. The pet store owner testified that she wrote to Appellant at the address indicated on the check, and also telephoned Appellant at the number he gave her, several times, leaving messages on his answering machine. Further, she sent messages concerning the bounced check to Appellant through a mutual friend. However, the record does not reveal whether the address or the telephone number were correct, nor does it reveal that the Appellant behaved in a way which would indicate he had received notice. As the proof of notice to the issuer must be strictly construed, we can not find on the record before us that Appellant had notice that payment on his check was refused.

Because we find that we cannot take advantage of the statutory presumption of Appellant’s intent to pass a bad check, and because we also find that the Commonwealth did not prove the element of intent by direct evidence, we hold that there was insufficient evidence to prove the requisite mens rea for this crime. Consequently, we are constrained to hold that there was insufficient evidence to prove the element of notice. Griffith, supra, 242 Pa.Superior Ct. at 487-488, 364 A.2d at 376.

Furthermore, the evidence proving that the check was presented to the bank within 30 days after issue and payment was refused for lack of funds, was seriously flawed. See, 18 Pa.C.S.A. § 4105(b)(2). The trial court sustained Appellant’s objections to the admission of the bank records, on the basis that the Commonwealth did not comply with the evidentiary requirements for admission of business records, and because the “best evidence” rule was violated. Consequently, the only exhibit admitted was the check itself which was returned to the pet store owner stamped “uncollected funds”. Because it is not entirely clear what “uncollected funds” means, and because the records of the bank were ruled inadmissible, we also find that the Commonwealth failed to prove that the bank refused payment on the check within 30 days. Because of this failure, we find that we again can not rely on the statutory presumption of intent.

Accordingly, we reverse the judgment of sentence of the trial court and dismiss the charge on the basis that there was insufficient evidence to prove that Appellant was guilty beyond a reasonable doubt of passing a bad check. Jurisdiction is relinquished.