author: CIRILLO, Judge:

text:
    470 A.2d 145
    COMMONWEALTH of Pennsylvania v. Kevin Joseph THIEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 24, 1983.
    Filed Dec. 16, 1983.

      Michelle M. Hawk, Erie, for appellant.
    Jeffrey E. Leber, District Attorney, Coudersport, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

Appellant Kevin Thiel was convicted by a jury of delivery of cocaine, and on December 17, 1981 was sentenced in the Potter County Court of Common Pleas to serve one to three years in Rockview State Penitentiary and to pay a fine of $2,500. He appeals the judgment of sentence.

Appellant raises four issues, only one of which we need address. We agree with appellant that the trial court erred in admitting into evidence two airplane tickets which the Commonwealth had not provided to appellant despite his pretrial discovery request for all tangible evidence. Pa.R. Crim.P. 305 B(l)(f), 42 Pa.C.S.A. We will reverse and remand for a new trial.

On January 23, 1980, undercover police officers arrested Pamela Sue Palmer and charged her with delivering to them one-quarter ounce of cocaine. Palmer negotiated a plea bargain and was sentenced to one to five years in prison. Pursuant to the plea bargain she agreed to cooperate in all respects in other prosecutions for illegal drug sales with which she had been connected. Palmer identified Kevin Thiel as the supplier of the cocaine she had sold to the undercover policemen. As a result, Thiel was arrested on December 2, 1980, and charged with delivery of a controlled substance. At a preliminary hearing held on December 18, 1980, Palmer refused to testify and invoked her Fifth Amendment right against self-incrimination. Consequently the district justice dismissed the charge against Thiel. The judge who had sentenced Palmer later informed her that she was violating her plea agreement and that as a possible consequence she would have to serve the remainder of her sentence at the state penitentiary rather than the Erie rehabilitation facility. Palmer then agreed to testify against appellant, who promptly was arrested and recharged.

Before trial appellant requested, pursuant to Pa.R. Crim.P. 305 B(l)(f), the disclosure of all tangible evidence in the Commonwealth’s possession. The rule at issue provides:

B. Disclosure by the Commonwealth
(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence.

In response to Thiel’s request the Commonwealth identified as tangible evidence in its possession the cocaine allegedly delivered from Thiel to Palmer to police and a laboratory analysis of the cocaine. The Commonwealth did not disclose its possession of two airplane ticket stubs bearing the names “Mr. and Mrs. K. Sutton.” The Commonwealth had information that Thiel had purchased these tickets for himself and Palmer on a return trip from Florida, where the two had gone to pick up drugs.

In its case-in-chief at trial, the Commonwealth presented Palmer’s testimony that she and Thiel had met in Florida to pick up drugs and had flown back to Pennsylvania together. Thiel in his own defense testified that he had gone to Florida to do tile work on a home there and to take a vacation with Palmer, and not to pick up drugs as Palmer said. Under cross-examination, Thiel stated that he flew back under his own name, that he did not know a K. Sutton, and that he had never used that name. In rebuttal the Commonwealth recalled Palmer to the stand and had her identify the two airplane tickets bearing the names “Mr. and Mrs. K. Sutton” as the ones Thiel had purchased for their return trip to Pennsylvania. Defense counsel objected to admission of the tickets on the ground that the Commonwealth had not disclosed them despite the defendant’s pretrial discovery request. The court overruled the objection and permitted the tickets to be introduced.

“Traditionally, the right of a criminal defendant to discovery of prosecution evidence has been restricted____ In recent years, however, there has been a ‘growing realization that disclosure rather than suppression of relevant materials ordinarily promotes the proper administration of justice.’ ” Commonwealth v. Hamm, 474 Pa. 487, 494, 378 A.2d 1219, 1222-23 (1977), quoting Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973, 984 (1966). In an effort to expand discovery in criminal cases, the Pennsylvania Supreme Court on June 29, 1977 liberalized criminal discovery in Pennsylvania by replacing former Pa.R.Crim.P. 310 with new Rule 305. Rule 310 had limited the defense to discovery of the defendant’s written statements or confessions in the hands of the Commonwealth, unless the defense could show exceptional and compelling circumstances warranting further discovery. In contrast, Rule 305 B, under which appellant sought discovery, provides for a gamut of pretrial discovery of the evidence held by the Commonwealth.

Discoverable evidence in the Commonwealth’s possession may be discoverable either by mandate of the rule (305 B(l)) or in the discretion of the trial court (305 B(2)), depending on the type of evidence sought. In exercising its discretion to grant or deny a request for discretionary discovery, the court is to be guided by the following principle of the ABA Standards Relating to Discovery and Procedure Before Trial, § 1.2 (Approved Draft, 1970): “In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with the protection of persons, effective law enforcement, the adversary system, and national security.” Pa.R.Crim.P. 305 Comment.' Since this liberal principle governs discretionary discovery, it follows that the Commonwealth, when faced with a mandatory discovery request for tangible evidence under Rule 305 B(l)(f), should exercise the utmost good faith to disclose to the defendant all material tangible evidence in its possession.

The Commonwealth argues that the airplane tickets were not material to this case until Thiel took the stand to contradict Palmer’s testimony as to the purpose of their Florida trip, and concludes that the mandatory discovery provision of Rule 305 B(l)(f) did not apply to the tickets pretrial.

It is true that we cannot expect the Commonwealth to anticipate the materiality of all possible rebuttal evidence, Commonwealth v. Oliver, 251 Pa.Super. 17, 379 A.2d 309 (1977), and we can imagine cases in which the materiality of certain evidence in the Commonwealth’s possession might not become apparent until after trial has begun. On the other hand, Rule 305 B(l) makes no distinction between rebuttal evidence and evidence the Commonwealth expects to use in its case-in-chief. In cases where the prosecutor can reasonably predict possible defense strategies and evidence, he must also be held to reasonable anticipation of what evidence in his possession might be material in rebuttal. See Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978); Commonwealth v. Jackson, 457 Pa. 79, 319 A.2d 161 (1974).

In this case the defendant was charged with delivering cocaine to Palmer, who then delivered it to police. The prosecutor knew well before trial that Palmer’s testimony would be indispensable to the prosecution as the only evidence linking the defendant to the contraband. The prosecutor therefore must have known that Palmer’s credibility would be crucial to the case. Her credibility was open to collateral attack, since her testimony was given in exchange for sentencing leniency and could be portrayed by . the defense as serving her penal interest. However, in the absence of any other extrinsic evidence to affect the jury’s credibility determination, it was also an easy guess that the defendant would not stand mute and let Palmer’s story go uncontradicted. The prosecutor therefore could anticipate that defense counsel might put Thiel on the stand to contradict Palmer’s story with his own version of events, including the trip to Florida.

In this light the Commonwealth certainly should have realized that any evidence in its possession that could bolster Palmer’s credibility while impeaching the defendant’s would be material evidence. The ticket stubs fit that bill. By eliciting Thiel’s statement on cross-examination that he had never used the name “K. Sutton”, then recalling Palmer to identify the airplane tickets as the ones purchased by Thiel, the Commonwealth in, fact succeeded in torpedoing the defense strategy of relying heavily on Thiel’s credibility.

Discovery decisions predating the enactment of liberalized Rule 305 recognize that the Commonwealth’s failure to disclose possible impeachment or rebuttal evidence may highly prejudice the defendant’s case and lead to reversible error when the evidence is sprung on the defendant unawares. Commonwealth v. Jenkins, supra; Commonwealth v. Jackson, supra. Discovery of prosecution evidence therefore has not been limited to evidence the Commonwealth expects to use in its case-in-chief. In the Jackson case, Justice Roberts commented on the Commonwealth’s failure to disclose the names of two key witnesses pretrial:

The failure of the Commonwealth to afford appellant reciprocal discovery rights made it impossible for appellant either to investigate the two witnesses whom 'the Commonwealth called to refute his alibi, or to explore the weaknesses in their stories. By placing appellant at the scene of the crime and by placing a pistol in his hand, the testimony of these two witnesses (whose names the Commonwealth refused to disclose) refuted appellant’s alibi. These witnesses were essential to the Commonwealth’s case; their credibility indispensable. Had appellant been afforded reciprocal discovery, he would have had the opportunity to be better prepared for cross-examination, and he may have had a better chance to impeach the Commonwealth’s witnesses.

457 Pa. at 84, 319 A.2d at 164. Here too, the Commonwealth’s failure to disclose the tickets in its possession deprived appellant’s counsel of any chance to investigate the tickets’ genuineness or explore other weaknesses in their validity as impeaching evidence. As a consequence, the key issue in the case — witness credibility — was heavily weighted in favor of the Commonwealth when it introduced virtually unimpeachable real evidence to support the veracity of its witness.

Had the Commonwealth disclosed the airplane tickets pretrial, it could have introduced them during Palmer’s testimony as circumstantial evidence of Thiel’s use of an alias on the Florida trip. Instead, the Commonwealth left the tickets conspicuously out of its short pretrial list of tangible evidence in its possession, and used the tickets skillfully in rebuttal. Although we impute no intentional impropriety to the prosecutor, his tactic at least has the appearance of baiting the defendant into perjury, then exposing the perjury by introducing surprise evidence. Our court has condemned such gamesmanship in criminal prosecutions. See Commonwealth v. Bartram, 240 Pa.Super. 495, 367 A.2d 1121 (1976); Commonwealth v. Mace, 234 Pa.Super. 463, 341 A.2d 505 (allocatur refused), cert. denied, 423 U.S. 996, 96 S.Ct. 423, 46 L.Ed.2d 370 (1975). As our Court said in Mace, quoting Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215, 218-19 (1963):

Society wins not only when the guilty are convicted but when criminal trials are fair ____ A prosecution that withholds evidence on demand of an accused____helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of. justice, even though, as in the present case, his action is not 'the result of guile’____

234 Pa.Super. at 470, 341 A.2d at 508-09.

In the circumstances of this case we hold that the airline tickets clearly were material pretrial and should have been disclosed to the defendant under Rule 305 B(l)(f). Cf. Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (1978) (undershorts found at scene of rape material evidence where guilty verdict must have been based at least in part on fact defendant was not wearing undershorts when arrested); Commonwealth v. Dobson, 302 Pa.Super. 57, 448 A.2d 92 (1982) (Commonwealth withheld burglar’s watch despite defense request for exculpatory tangible evidence; on charge of simple assault defendant tried to prove owner of burglarized premises had seen watch on defendant’s wrist rather than screwdriver in his hand; held, watch not material evidence where police in fact found screwdriver in defendant’s back pocket, defense was able to present its theory through testimony, and watch not produced at trial by either party).

The only question remaining is the appropriate remedy. When the Commonwealth attempted to rebut the defendant’s testimony by introducing the tickets through Palmer, defense counsel promptly objected that the tickets had not been disclosed to him under Rule 305 B(l)(f). At that point the trial court had several options. Rule 305 E provides:

E. Remedy
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

This provision

gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements. In many cases, ordering a continuance will be an adequate remedy. This will be so where the undisclosed statement or other evidence is admissible and the defendant’s only prejudice is surprise. E.g., Commonwealth v. Parente, 294 Pa.Superior Ct. 446, 440 A.2d 549 (1982); Commonwealth v. Bey, 294 Pa.Superior Ct. 229, 439 A.2d 1175 (1982). Sometimes, however, the prejudice will go beyond surprise; if the prejudice is so great that the fairness of the trial has been affected, a new trial should be ordered. Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978).

Commonwealth v. Johnson, 310 Pa.Super. 385, 395, 456 A.2d 988, 993 (1983). See also Commonwealth v. Jacobs, 501 Pa. 139, 460 A.2d 728 (1983); Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983); Commonwealth v. Glass, 495 Pa. 405, 434 A.2d 707 (1981), cert. denied, 456 U.S. 932, 102 S.Ct. 1984, 72 L.Ed.2d 450 (1982), Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983); Commonwealth v. Starks, 304 Pa.Super. 527, 450 A.2d 1363 (1983); Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982); compare Commonwealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981) (court denied defense access to copy of witness’s statement during direct examination of officer who took statement; statement provided during declarant’s testimony; no remedy because no prejudice shown).

Upon objection, the trial judge should have offered the defense discovery and a continuance in order for counsel to investigate the tickets and reprepare the defense accordingly. Had this procedure been followed, prejudice would have been minimized, and the Commonwealth’s error in failing to disclose the tickets pretrial might have been cured. But since the court completely overruled the defense objection, and we cannot discount the likelihood that the introduction of the tickets contributed to the jury’s verdict, we should find reversible error. The only remedy that can correct the error at this point is a new trial.

Judgment of sentence reversed; case remanded for a new trial.

CAVANAUGH, J., dissents.


source: Caselaw Access Project

author:
POPOVICH, Judge:
      WICKERSHAM, Judge,

license: Public Domain

text:
    470 A.2d 150
    COMMONWEALTH of Pennsylvania v. Jerome HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1983.
    Filed Dec. 16, 1983.

      John A. Halley, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Allegheny County denying appellant’s, Jerome Harris’, Post-Conviction Hearing Act (PCHA) Petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C. S.A. §§ 9541-9551. We reverse.

A review of the record reveals that on July 19, 1975, a complaint was filed against the appellant charging him with robbery, aggravated assault and the attempted murder of Eula Everson. Out of this incident arose the additional, charge of murder as to Mrs. Everson’s husband, who was shot in the head by the appellant. Further, although not related to the Everson matter, appellant was charged with the killing of one Ernest Rozier. Given the three cases lodged against the appellant, the District Attorney’s office decided to list them all for trial on December 15, 1975. One assistant district attorney was assigned to prosecute the cases.

In preparation for trial, the District Attorney’s office had anticipated that the Everson cases would be consolidated. However, in preliminary discussions with the trial judge, it became apparent that the judge was not receptive to the idea. As a result, appellant was tried first for the Thurmond Everson shooting and was found guilty by a jury on December 19, 1975. Because no jurors were brought in during the last two weeks of December, 1975, the earliest the Eula Everson case could begin was January 5, 1976, the next scheduled session for jury trials. Notwithstanding this fact, the assistant district attorney, testifying at the PCHA hearing ordered by this Court (see Commonwealth v. Harris, 286 Pa.Super. 135, 428 A.2d 609 (1981)), stated he could not litigate the Eula Everson case immediately upon his return from the Christmas and New Year holidays on January 5, 1976, because he had been given another case for that date. He knew this in advance because it was the practice of the District Attorney’s office to publish the trial list, with the name of the attorney assigned to the case, months before the scheduled trial date. The assistant district attorney recalled that all of this was “discussed at the time” the pretrial meeting occurred between counsel and trial judge, although “not of record.” In particular, he remarked:

... I can’t quote the exact words that were used but the substance of it was that if this consolidation [between the Eula Everson and Thurmond Everson cases] were [sic] not going to be granted it was, in effect, — it was going to throw us into a bind in a lot of ways. And I pointed out that we would not be trying cases in the last two weeks of 1980 [sic — 1975] and I also pointed out that I would be going to trial on the 5th of January. The question of when the Eula Everson trial could begin would be a problem. The Rozier case had to be tried. We anticipated it would be tried as soon as I was available after January.[] So we discussed an extension on both of them. We talked about a time frame. I can’t tell you at this moment just exactly what time frame we agreed upon or discussed or had in mind but I know at that time I indicated that a petition for extension of time would be drawn up reflecting what we had discussed and that is where we ended those discussions that day before we actually started the trial.
(N.T. 9/2/81 at 12)

Further, the assistant district attorney did not recollect counsel for the appellant offering any strong objections to “the extension of time process.” As recalled by the assistant district attorney, counsel for the appellant “recognized in the course of his duties exactly what was going to be necessary and acknowledged that that is the way it was going to have to go.” (Emphasis added) A review of the record discloses the opposite. For example, counsel for the appellant testified at the PCHA hearing that he never requested that the Eula Everson case be postponed because he was ready to try all three cases — Eula, Thurmond and Rozier — “at any time.” Although he could not remember if the assistant district attorney had made any specific requests of him to agree to an extension of the Eula Everson case after the Thurmond Everson murder trial, counsel for the appellant stated, “If he had, I would have said no.” This aversion by appellant’s counsel to prolonging the adjudication of any of his client’s cases was not neutralized by the petition to extend filed by the Commonwealth on January 5, 1976, regarding the Eula Everson assault trial.

At the PCHA proceeding, counsel for the appellant conceded receiving the petition to extend. Nonetheless, he testified to obtaining notice of the petition “the day after the hearing was set in the petition.” In other words, “If the hearing was set for the 5th of January, then [he] received it on the 6th.” That same day, counsel phoned the District Attorney’s office and spoke to the secretary in charge of homicides and was told that the petition to extend was signed by the court. Counsel did not complain to this purported ex parte hearing, as is evident by the fact that he could offer no reason for failing to raise the Rule 1100 issue in post-trial motions or on prior appeal. The Commonwealth- could not refute this point, except by pure speculation as to appellant’s counsel’s presence at the extension hearing. No affirmative proof could be produced to establish the legitimacy of the proceeding. In dealing with this subject in appellant’s initial appeal, this Court observed:

In the case before us, the petition to extend was granted to the Commonwealth without giving appellant the opportunity to contest it. Rule 1100(c) necessitates notice and a hearing before the grant of an extension of the run date. Therefore, appellant’s claim that the extension was procedurally deficient is obviously of arguable merit.
$ $ $ $ † *
Our finding that counsel was ineffective [since he could not state a reason for his failure to preserve the Rule 1100 issue on appeal] does not necessarily mean that the contention would have prevailed if it had been pursued. The Commonwealth has alleged that the extension was warranted because of a crowded court docket. However, this allegation, in the absence of evidence in the record, is insufficient to show that the Commonwealth used due diligence in bringing the accused to trial. (Emphasis added)

Commonwealth v. Harris, supra, 286 Pa.Super. at 137-138, 428 A.2d at 610. What is to be garnered from the aforesaid is that the Commonwealth had the burden of proving, by a preponderance of the evidence, that it exercised due diligence in trying to bring appellant to trial by January 15, 1976, which was the 180th day after the filing of the complaint. Appellant was tried on March 25, 1976.

We find that the Commonwealth failed to establish that a “crowded court docket” or any other reason excused its bringing the appellant to trial more than 2V2 months after the Rule 1100 run date.

Preliminarily, we wish to emphasize the seriousness with which this Court approaches the task of reviewing a Rule 1100 claim. It would be very easy for this Court to affirm perfunctorily a conviction on appeal, especially in a case in which a jury has found the appellant guilty as charged and hold that substantial justice has been accomplished. To do so, however, would be in direct conflict with our sworn duty to apply the law even-handedly as interpreted by our Supreme Court and not be swayed by collateral matters. See, e.g., Commonwealth v. Alexander, 318 Pa.Super. 344, 464 A.2d 1376 (1983) (ROWLEY, J., Concurring Statement). To that end, we will examine the arguments proffered by the Commonwealth to justify its asserted inability to bring the Eula Everson case to trial sooner than it did adjudicate the matter.

First, the Commonwealth avers that the assistant district attorney had “reasonably anticipated” that the Everson cases would be consolidated, and, when they were not, “[s]uch denial initiated the problem.” The Commonwealth laments that “in all fairness [the Everson cases] should have been consolidated^ for e]ven the trial judge who denied the motion to consolidate has made statements to this effect.” (Commonwealth’s Brief at 10) As regrettable as this may be, even assuming for the sake of argument that such a motion was filed, though the record does not substantiate such a fact, the motion was denied and this action took place prior to the commencement of- any of the three cases involving the accused. Consequently, the Commonwealth had the option of seeking a continuance in any or all of the cases, or assigning separate counsel to try those cases in which a Rule 1100 problem was apparent. As we shall see, the Commonwealth took neither of these routes. Accordingly, we cannot agree with the Commonwealth, at least at this stage of the discussion, that it acted with due diligence. To do so would be tantamount to penalizing the defendant for the Commonwealth’s miscalculation in assessing the temperament of the trial court and the strength of its consolidation argument. This is especially so because consolidation is a matter left to the sound discretion of the trial court, see Commonwealth v. Hill, 479 Pa. 346, 388 A.2d 689 (1978), and is not to be granted pro forma. Additionally, we need not pass judgment on the propriety of the trial court’s purported denial of the joinder motion by the prosecution since this issue is not before us on appeal.

We now turn to the second of the Commonwealth’s averments, which we find facially appealing, but substantively unpersuasive, in that to have assigned the Eula Everson case to another assistant district attorney would not have accelerated its disposition. This contention is premised on the view that the witnesses who would have testified in the Thurmond Everson case would also have had to appear in Eula Everson’s trial because both incidents arose out of the same fact situation, i.e., appellant entered the Everson home and in the course of burglarizing the residence he shot Mr. Everson and assaulted Mrs. Everson. So, until the Thurmond Everson case was completed, the charges arising out of the Eula Everson incident could not proceed to trial.

Accepting the position espoused by the Commonwealth is not dispositive of the Rule 1100 issue, inasmuch as the Thurmond case was completed by Friday, December 19, 1975, and, thus, left the remaining time up to the January 15, 1976, run date to try the Eula Everson case. The facts recited by the Commonwealth do nothing more than account for the time leading up to January 5, 1976. Even conceding that the period preceding the January 5, 1976, start-up of the Allegheny County court system was legitimately excusable as a holiday session in which jury trials were not conducted, we are still left with the reality of justifying the delay between January 5 and January 15, 1976.

This we cannot do.

The Commonwealth would have us believe that because the assistant district attorney handling the Everson case “had been assigned to try the case of Commonwealth v. Boyd” upon his return from vacation on January 5th and because the 5th was also the date the Commonwealth presented its petition for an extension, “the evidence clearly shows that an extension of time was warranted and the trial court did not err in granting the petition.” Thus, the Commonwealth urges that we sustain the decision of the lower court. (Commonwealth’s Brief at 11-12) An examination of the evidence discloses the flaws in the Commonwealth’s arguments.

To start with, at the PCHA hearing, the following illuminating question was asked of the assistant district attorney by counsel for the Commonwealth:

Q Okay. Based on my understanding of the homicide case load and that time period, the case of Commonwealth versus Charles Boyd, that was listed for January 5th, 1976 did not ultimately come off on January 5th, 1976 and in that regard is there any reason why at that point you could not have moved to get the Eula Everson case tried within the final trial date which was January 15, 1976?
A Well, I don’t know of any specific reason why. When the Boyd case came up on the 5th and ultimately turned out to be postponed, at this point we had already agreed upon — we had agreed for the time frame for the Eula Everson case. Those cases, as far as I was concerned, — both Rozier and Eula Everson— that that time frame was already fixed. That is my recollection. There was never any reason that we should move it up or ask to have it listed on the 6th or 7th or 8th of January because Mr. Nauhaus [ — appellant’s trial counsel — ] had already acknowledged and discussed the question of when that case would be listed.
(N.T. 9/2/81 at 13-14) (Emphasis added)

The assistant district attorney’s statement attributing appellant’s trial counsel with some type of acquiescence (“acknowledgement and discussion] of the question”) as to an extension is refuted by the record. As noted in the earlier portion of this Opinion, when appellant’s trial counsel testified at the PCHA hearing concerning the circumstances attendant to a petition to extend, he specifically stated he “never” requested a postponement in any of the three cases in which his client was to be tried. (N.T. 9/1/81 at 5) Although he was candid- that he could not remember a discussion with the assistant district attorney concerning a specific request by him (ADA) to obtain an extension, he testified, “If [the assistant district attorney] had, [he] would have said no.” (N.T. 9/1/81 at 7) Staying for a moment longer on this subject of an extension, we note that a panel of this Court already has held that because the appellant (or, for that matter, his trial counsel) was not afforded the opportunity to contest the Commonwealth’s petition to extend when presented to the court below, it was “procedurally deficient.” See Commonwealth v. Harris, supra, and Commonwealth v. Daniels, 288 Pa.Super. 69, 431 A.2d 291 (1981) (Dissenting Opinion by POPOVICH, J.). Therefore, the question of the propriety of an extension has been ruled upon (“finally litigated” on its merits, see Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981),) and this forecloses this present Court from again delving into the matter.

Having scrutinized the record in an attempt to determine if the Commonwealth had proven, by a preponderance of the evidence, that it acted with due diligence in bringing-the appellant to trial sooner than it did (March 25, 1976), we can say that no evidence has been presented that even hints that a “crowded court docket” (see Commonwealth v. Harris, supra) was to blame in precluding the prosecution from trying the appellant between January 5 and January 15, 1976. Compare Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982), petition for allocatur denied on January 31, 1983. The only witnesses to testify on this matter were the assistant district attorney, whose reasons for the delay were reproduced in the Commonwealth’s brief and responded to by this Court, supra, and Virginia Miranda, a secretary for the homicide attorneys in the District Attorney’s office.

Ms. Miranda testified that she was responsible for preparing certain records and keeping track of the listing of homicide cases as they progressed through the criminal process. Additionally, the witness, as she was asked to do by the Commonwealth’s PCHA attorney, prepared a schedule of all homicides listed from November of 1975 through March of 1976. The witness described the document prepared by her, since it is not of record, as having three columns. The first contained the defendants’ names, followed by a date which reflected when the case was initially scheduled for trial. The next column was captioned “subsequent listings” and contained either a second or third listing for a particular defendant regarding trial. The last column indicated the assistant district attorney who was assigned to the case. The remaining portion of the witness’ direct examination consisted of a confirmation that the assistant district attorney involved in the case sub judice was designated to litigate the Commonwealth v. Boyd case on January 5, 1976 and her document accurately indicated a true count of the homicide cases as to the period in question. However, no actual figure as to the number of cases per assistant district attorney was mentioned.

Nonetheless, of interest to this Court is the fact that the witness did testify on cross-examination that, although the 12 or 14 names of the assistant district attorneys appearing on her homicide trial list were all those involved in that type of work in 1976, there were “about 17” “assistant D.A.’s ... in the trial division in the District Attorney’s office in late 1975, 1976[.]” (N.T. 9/1/81 at 21) This would lend credence to the argument that if the assistant district attorney handling the Everson and Rozier cases was inundated with work (see N.T. 9/2/81 at 14-15), so as to hamper his ability to try the appellant before the 15th of January of 1976 for the Eula Everson matter, there were at least 3 other non-homicide attorneys whose work schedule may have been less congested. Since the Commonwealth has presented no evidence to rebut this corollary, or, stated differently, because it has failed to meet its burden of proof, we are left with little alternative but to reverse the Order of the PCHA court and grant the appellant the relief requested. See Commonwealth v. Alexander, supra.

Order reversed.

WICKERSHAM, J. filed a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

The underlying facts of this case were accurately set forth in appellee’s brief as follows:

The appellant, Jerome Harris, was charged by criminal indictment returned by the Grand Jury of Allegheny County at No. CC7505589A with Robbery, Aggravated Assault, and Attempted Murder.
On January 5, 1976, the Commonwealth filed a Petition to Extend Time and said petition and notice of the hearing were served upon counsel for the appellant. The motion was granted on January 13, 1976 and the time within which to commence trial was extended until April 15, 1976.
On March 24, 1976, the appellant proceeded to trial by jury before the Honorable John W. O’Brien. At trial, the appellant was represented by Lester Nauhaus, Esquire, of the Office of the Public Defender of Allegheny County. The court granted the demurrer of the appellant to the Robbery charge but the jury found the appellant guilty as to the Aggravated Assault and Attempted Murder charges.
On April 5, 1976, appellant filed a Motion for New Trial/Arrest of Judgment. This motion was denied on November 8, 1976 and on November 30, 1976, the court sentenced the appellant to undergo imprisonment for not less than five (5) nor more than twenty (20) years.
Notice of Appeal to the Superior Court was filed on December 23, 1976. Judgment of sentence was affirmed by the Superior Court at No. 367 April Term, 1977. A petition for allocatur to the Supreme Court was denied on October 30, 1978.
The facts of the crime may be briefly and accurately summarized as follows:
In the early hours of Sunday morning, July 6, 1975, Thurman and Eula Everson were preparing to retire for the night. While in the bathroom, Eula Everson heard a knock at the house door and her husband admitted a guest. (TT 339)
Some time later, Mrs. Everson heard a noise like a firecracker (TT 350); suddenly a man entered her room to assure her everything was alright. (TT 352) As Mrs. Everson went to check on the safety of her husband, she was hit over the head and knocked unconscious before reaching her husband. Subsequently, upon reviving, she was able to call the Clairton Police. (TT 355) While in the hospital for treatment of her injuries, she identified appellant as the man who entered her room by selecting his picture from a photographic array. (TT 352, 361, 362-364, 385)
Appellant was arrested on view on July 13, 1975, at 24 Vince Street, Pittsburgh, Pennsylvania, as an escapee from Graterford Prison. During the course of the arrest, a gun was seized from a cupboard shelf in the apartment where appellant was found. (TT 319) Ballistics tests showed that the bullet taken from Mr. Everson was fired from the gun seized during appellant’s arrest. (TT 327) Appellant was subsequently charged with the offenses against Mr. Everson.
Appellant filed a petition under the Post Conviction Hearing Act, claiming a violation of Rule 1100 and seeking dismissal of the indictment filed against him. During the hearing on the petition held on January 3, 1979, the court treated the petition as one claiming ineffectiveness of trial counsel for failing to preserve a Rule 1100 objection during the post-trial motions and the petition was argued accordingly. The petition was denied on July 12, 1979. On August 13, 1979, a timely Notice of Appeal was filed by appellant.
The Superior Court, No. 742 April Term, 1979, remanded the present case for hearing on whether the Commonwealth exercised due diligence in bringing defendant to trial speedily.
On September 1, 1981, such hearing was conducted and on September 2, 1981, it was held that the Commonwealth exercised due diligence in bringing appellant to trial speedily. This appeal followed.

I agree with the analysis of the Honorable John W. O’Brien who found that petitioner’s Rule 1100 rights had not been violated. He said:

Edward Fagen, Deputy Assistant District Attorney in charge of the Homicide Division for Allegheny County in 1975 and 1976, testified that during that time period the Administrative Judge of the Criminal Division would not assign more than two homicide cases per week because of the volume of cases on the general trial list. He further testified that in December of 1975 over 200 homicide cases were pending. Other problems relating to the listing of homicide cases for trial in December of 1975 were the limited number of Assistant District Attorneys and public defenders who were qualified and available for trying the large number of homicide cases, as well as court scheduling practices.
Joseph B. Steele, who was an Assistant District Attorney trying homicide cases in 1975 testified to the following: He was the attorney assigned to try three cases in which Petitioner was charged: CC7505589 (involving the attempted murder and aggravated assault on Eula Ever-son); CC7505477 (involving the death of Ernest Rozier); and CC7505774 (involving the death of Thurman Ever-son). All three cases were listed for trial on December 15, 1975; the Commonwealth had anticipated the Everson cases would be consolidated for trial and that the Rozier case would be tried as soon as possible thereafter. However, after the court denied the motion to consolidate, jury selection on the Thurman Everson murder trial began on December 14, 1975, and on December 20, 1975. Petitioner was convicted of Third Degree Murder. The Eula Everson case could not be tried during the last two weeks of December because prospective jurors were unavailable. He (Steele) was on vacation until January 5, 1975, at which time he was scheduled to begin the case of Commonwealth v. Charles Boyd, an unrelated homicide. (However, that case was postponed to a later date.)
In addition to trying homicide cases Steele was in charge of the “Crimes Against the Person” section of the District Attorney’s Office, which duties took up much of his time.
As to the possibility of another attorney in the office trying the Eula Everson case, Steele testified as follows:
I was saying that the reason this case couldn’t easily be assigned to another District Attorney, number one, it had been my case for a long period of time. By that time we are talking about several months that it had been handled by me and no one else. The whole involvement had been done by me and no one else. There were complex difficulties in the case, not getting the witnesses in and dealing with two witnesses who were, you might say, hostile and certainly unwilling to be witnesses. And to lateral that to another District Attorney on a short notice would be pretty unrealistic. Remand Hearing Trans. 9/2/81, p. 27.
Further, the victim, Eula Everson, had speech difficulties and a “great fear” of testifying. Id. p. 11.
Finally, it appears that Petitioner’s trial counsel, during pre-trial discussions, at least gave the impression to Steele that there was no objection to the Eula Everson and Rozier cases being tried after their original final trial dates (which would have been in mid-January, of 1976): A.D.A. Zunich: “Q. Okay. Do you recall whether or not
Mr. Nauhaus (Petitioner’s trial counsel) had any reservations about the case [sic] not proceeding immediately to trial, one after the other? Did he offer any strong objections as to what was forthcoming, the extension of time process—
Mr. Steele: A. Ño, not at all. It was my recollection and it is my recollection that he recognized in the course of his duties exactly what was going to be necessary and acknowledged that that is the way it was going to have to go.
Q. Okay. Based on my understanding of the homicide case load and that time period, the case of Commonwealth versus Charles Boyd, that was listed for January 5th, 1976 did not ultimately come off on January 5th, 1976 and in that regard is there any reason why at that point you could not have moved to get the Eula Everson case tried within the final trial date which was January 15, 1976?
A. Well, I don’t know of any specific reason why. When the Boyd case came up on the 5th and ultimately turned out to be postponed, at this point we had already agreed upon — we had agreed for the time frame for the Eula Everson case. Those cases, as far as I was concerned, — both Rozier and Eula Everson — that that time frame was already fixed. That is my recollection. There was never any reason that we should move it up or ask to have it listed on the 6th or 7th or 8th of January because Mr. Nauhaus had already acknowledged and discussed the question of when that case would be listed.
Q. Were you surprised when he moved to dismiss these cases?
A. Yes, absolutely.” Remand Hearing Trans. 9/2/81, pp. 13 and 14.
Under the circumstances it appears the Commonwealth did not violate Petitioner’s Rule 1100 rights as to either the Eula Everson or Rozier cases.

Lower ct. op. at 2A-6A.

      . As for the Rozier case, appellant ultimately pleaded guilty and appealed from the judgment of sentence on grounds of a violation of Pa.R.Crim.P. 1100 and the involuntariness of the plea. This appeal was remanded by our Supreme Court for the taking of testimony on the issues raised. See Commonwealth v. Harris, 492 Pa. 381, 424 A.2d 1242 (1981).

      . In point of fact, the Commonwealth filed a petition for an extension of time under Pa.R.Crim.P. 1100(c) which the trial court granted on December 21, 1975, specifying that trial should begin by April 15, 1976. However, on April 5, 1976, appellant pleaded guilty to homicide generally. See note 1, supra. Thus, contrary to the impression created by the assistant district attorney, there is evidence to indicate that the Rozier murder trial did not create an impediment to proceeding to trial on the Eula Everson case until "after January” of 1976.
        See Commonwealth v. Harris, 492 Pa.Super. 381, 424 A.2d 1242 (1981) and discussion infra.

      . We note in passing that the PCHA judge, who also presided over the pre-trial proceedings relevant to the case here, offered that, as to the extension petition by the Commonwealth, he "wouldn’t have signed an Order ex parte if [he] thought it was contested — this [was his] feeling.” (N.T. 9/2/81 at 39) However, he did go on to say, "... well, this would be speculation on [his] part, ... but this is how [he] fe[lt] about the matter[.]” Id.

      We find it interesting, although not dispositive of this issue because it appears in the trial court’s opinion dated January 3, 1980 and thus is not the type of record evidence upon which an appellate court is to base its decisions (see Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981)), that the trial judge wrote, albeit the order granting the petition to extend indicates that it was signed on January 13, 1976, “that date was filled in sometime after the order was signed.” (Trial Court Opinion at 2, n. 1) The testimony of trial counsel for the appellant indicates that he learned on January 6, 1976 that an order granting the Commonwealth’s petition had been signed by a judge on January 5, 1976. (N.T. 9/1/81 at 8-9) (Trial Court Opinion at 2, n. 3)

      . We wish to mention that in examining the Rule 1100 decisions filed in this Commonwealth, a pattern has emerged that seems to pervade some, if not all, of the District Attorneys’ offices. That is, in an effort to avoid a violation of the court-created 180-day speedy trial rule, District Attorneys have been required to engage in "calendar-watching.” The Court finds this practice reminiscent of the "clock-watching” done by the police after our Supreme Court’s decision in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977).
      Just as our Supreme Court seems to be questioning the continued practicality of the six-hour Davenport rule, see Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983); Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983) (Concurring Opinion by McDERMOTT, J.), it may be time "to examine the continuing viability of our decisions [in Rule 1100, concerning the implacable 180-day time clock, because] ... the need to requires.” Commonwealth v. Daniels, 288 Pa.Super. 69, 77 n. *, 431 A.2d 291, 295 n. * (1981) (DLsenting Opinion by POPOVICH, J.). We believe that if a speedy trial violation is claimed, the more realistic gauge to assessing the Commonwealth’s actions would be to utilize either a "totality of circumstances” approach (see, e.g., Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) or a "prejudice to the defendant” test as existed under Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). See also Commonwealth v. Walls, 303 Pa.Super. 284, 290 n. 13, 449 A.2d 690, 693 n. 13 (1982), petition for allocatur denied on January 31, 1983; Commonwealth v. Fairley, 298 Pa.Super. 236, 241, 444 A.2d 748, 751 (1982).

        However, we, as an intermediate appellate court, cannot overrule our Supreme Court’s decisions. It is for our high Court to re-examine, and, if it sees fit, to modify or abrogate, such a time-oriented rule.

       Numerals in parentheses preceded by the letters "TT” refer to the pages of the Trial Transcript.


author: POPOVICH, Judge:

text:
    470 A.2d 159
    George CHAMBERS, Appellant, v. TODD STEEL PICKLING, INC. and the Estate of Robert Berger.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1983.
    Filed Dec. 16, 1983.

      Fern B. Caplan, Philadelphia, for appellant.
    Allan David Windt, Philadelphia, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the court below sustaining the preliminary objections of appellee, Todd Steel Pickling, Inc., (hereinafter referred to as Todd Steel) and dismissing the mechanics’ lien claim filed by appellant, George Chambers. We reverse.

Appellant sought to impose a lien on property belonging to Todd Steel, based on improvements made to that property between March, 1980, and October, 1981, at the request of Robert Berger, deceased, the sole stockholder and president of Todd Steel. The property had been purchased by Todd Steel in March, 1980, and then leased by Todd Steel to Robert Berger.

Todd Steel filed preliminary objections to appellant’s mechanics’ lien claim. On June 23, 1982, the trial court issued the following memorandum opinion and order:

The Court finds that the Preliminary Objections of defendant Todd Steel Pickling, Inc. pursuant to 49 P.S. § 1505 raise the following issues of fact concerning exemption or immunity of property from lien under the provisions of 49 P.S. § 1303(d):
1. Whether defendant Todd Steel Pickling, Inc. leased the subject property to Robert Berger;
2. Whether Robert Berger acted in the capacity of defendant’s lessee when he contracted with plaintiff George Chambers;
3. Whether the requirement of a written statement by the owner that the improvements were made for the owner’s use and benefit is applicable and necessary in this matter; and
4. Whether defendant Todd Steel Pickling, Inc. signed such written statement.
ORDER
AND NOW, therefore, this 23rd day of June, 1982, it is ORDERED and DECREED that the parties take depositions concerning the issues of fact raised by defendant’s Preliminary Objections.

Depositions were taken and, following the submission of briefs to the trial court, the court issued an order sustaining the preliminary objections and dismissing the mechanics’ lien. The court below found that appellant had never contracted with Todd Steel directly or through Mr. Berger as a corporate agent. The latter finding was based on an analysis of the agency principle of apparent authority. Because Mr. Berger never mentioned- to appellant that Todd Steel owned the property, and because appellant initially believed that Mr. Berger owned the property, appellant could not have justifiedly relied on any representations by Todd Steel that Mr. Berger was acting in the capacity of agent.

Todd Steel was held protected by the Mechanics’ Lien Law of 1963, because it 'did not sign a statement indicating that the improvements contracted for were for the immediate use and benefit of Todd Steel. The law provides in pertinent part as follows:

1303. Lien not allowed in certain cases, (d) Leasehold premises. No lien shall be allowed against the estate of an owner in fee by reason of any consent given by such owner to a tenant to improve the leased premises unless it shall appear in writing signed by such owner that the erection, construction, alteration or repair was in fact for the immediate use and benefit of the owner.

49 P.S. § 1303(d).

With regard to the above statute the trial court stated:

A Mechanics’ Lien, as a purely statutory creation, is available only on such terms as the legislature saw fit to provide. Without a contract between plaintiff and defendant as its basis, the lien is invalid. Murray v. Zemon [402 Pa. 354], 167 A.2d 253, at 255 (1963). Plaintiff has failed to comply with the statutory requirements; defendant’s preliminary objections must therefore be sustained.

Lower Court Opinion at p. 5.

For purposes of our standard of review, an order sustaining preliminary objections to a mechanics’ lien claim because of a showing of exemption or immunity of property from the Mechanics’ Lien Law, is analogous to an order sustaining preliminary objections to a complaint in assumpsit.

[W]hen the sustaining of preliminary objections will result in a denial of claim, or a dismissal of suit, preliminary objections should be sustained only in cases which are clear and free from doubt. Conrad v. City of Pittsburgh, 421 Pa. 492, 218 A.2d 906 (1966); Baker v. Brennan, 419 Pa. 222, 213 A.2d 362 (1965); Schrader v. Heath [408 Pa. 79, 182 A.2d 696], supra.

Legman v. School District, 432 Pa. 342, 345, 247 A.2d 566, 569 (1968).

Appellant argues that Mr. Berger was the alter ego of Todd Steel and acted at all times relevant to the case at bar as its corporate agent. Furthermore, appellant asserts that Mr. Berger negligently failed to correct the misconception of appellant that Mr. Berger was the owner of the realty in question. Appellant contends that Mr. Berger induced his reliance on the fact of ownership by ordering and supervising work done to personal specifications and by authorizing payment on that work by both personal checks and checks of other companies owned by Mr. Berger. Appellant concludes that because he was justified in his reliance upon the apparent ownership of the property by Mr. Berger, there was no necessity for the writing called for in 49 P.S. § 1303(d).

In sustaining appellee’s preliminary objections, the court below relied on Murray v. Zemon, 402 Pa. 354, 167 A.2d 253 (1960). In Murray, the contractor made improvements to a property pursuant to a written contract with the tenant. The owners were not parties to the contract, and its terms disclosed that the contractor was relying solely on the credit of the tenant. However, the contract was entered into with the knowledge and oral consent of the owners, and they had previously agreed to help obtain the money necessary to pay for the repairs. The Supreme Court held that because no contractual relationship existed between the contractor and the owners, the lower court had not erred in granting a motion to strike off a lien on the property. The Court rejected an estoppel argument raised by the appellant. The Court stated:

Nor are we prompted to sustain the validity of the claim because of appellant’s argument that the owners are now estopped to raise the question. The contractor knew who the record owners of the property were. With this knowledge, he contracted in writing with the tenant for payment. No facts were withheld nor any attempt made to mislead. No promise was ever made by the owners to pay for the cost of the improvement. Under such circumstances, estoppel does not lie. As pointed out in Seelar v. East End M. & T. Co., supra, if the contractor desired to subject the estate of the owner to such a lien, it was his duty to inquire into the nature of the consent given, if any. His failure to do so is his fault alone. When consent, of the type required by statute as a prerequisite to such a lien, is lacking, no such lien may successfully be asserted.

Id., 402 Pa. at 360-61, 167 A.2d at 256, 257.

In the instant case, appellant indicated that until July, 1981, he did not know that .Todd Steel owned the property. According to appellant, Mr. Berger never mentioned Todd Steel when the agreement was entered into. (Deposition of George Chambers, pp. 11, 63-64). Appellant testified that on the various jobs he had done for Mr. Berger, he had been paid by personal checks and checks issued by Berger Steel and Universal Metal Stamping, corporations owned by Mr. Berger. In describing the circumstances leading up to the agreement at issue, appellant stated that Mr. Berger had discussed that he was always looking for a gentleman’s farm and that he had found one for appellant to remodel. According to appellant, Mr. Berger began living in the house full time about three months after the job started. (Deposition of George Chambers, p. 66). Before that, “they were bringing furniture in and sleeping over in sleeping bags____ They would bring the kids over for the weekend.” (Deposition of George Chambers, p. 65). Appellant stated further that he thought for some time that Universal Metal Stamping owned the house because he and his crew were put on the payroll of Universal Metal Stamping when Mr. Berger could not keep up with his bills. (Deposition of George Chambers, pp. 29, 42). Several applications for building permits and supply orders list either Todd Steel or Robert Berger as owner of the property.

Doris O’Neill, the only officer and board member of Todd Steel and Universal Metal Stamping other than Mr. Berger, handled the books and records for these corporations and also handled Mr. Berger’s personal account. (Deposition of Doris O’Neill, pp. 9, 12). Mrs. O’Neill testified that Todd Steel never made any agreement with or payments to appellant. (Deposition of Doris O’Neill, p. 9). However, Mrs. O’Neill stated that Todd Steel issued two checks totaling $6,000 for work done on the property, that Berger Steel paid for some of the work, and that Universal Metal Stamping had issued checks for work done and materials used. (Deposition of Doris O’Neill, pp.' 36, 37). Mrs. O’Neill also stated that Mr. Berger “put purchase orders in one of the companies’ names in order to obtain the discounts.” (Deposition of Doris O’Neill, p. 49).

It has been held that, “while an owner may consent to his tenant’s improvement of the property, without assuming any liability for the work done, provided he acts in good faith throughout, he cannot escape such liability if he knows of the tenant’s intention to make a contract ‘acting as if he were the owner’____” (Emphasis added). Fluke v. Lang, 283 Pa. 54, 57, 128 A. 663, 664 (1925). In Fluke v. Lang, supra, the Court was interpreting Section 2 of the Mechanics’ Lien Act of 1901, replaced by 49 P.S. § 1303(d), in conjunction with Section 4 of the 1901 Act, which was omitted from the Mechanics’ Lien Law of 1963. Section 4 of the Mechanics’ Lien Act of 1901 provided:

Any owner, not being a committee, guardian or trustee, as aforesaid, who shall knowingly suffer or permit any person, acting as if he were the owner, to make a contract for which a claim could be filed, without objecting thereto at the time, shall be treated as ratifying the act of such person acting as if he were the owner, and the claim may be filed against the real owner, with the same effect if he himself had made the contract. Ratification shall also be presumed, and like subjection to lien shall follow, if the owner, not being a committee, guardian or trustee, as aforesaid, subsequently learning of such contract or of work being done upon his property, shall not, within ten days thereafter, repudiate the same, either by notice to the contractor and subcontractors or by posting such repudiation on the most public part of the structure or other improvement.

According to the explanatory comments of the Joint State Government Commission, the above section does not appear in the Mechanics’ Lien Law of 1963 because it was omitted as unnecessary. Despite the fact that Section 4 of the Act of 1901 is not found in the present statute, we find the interpretation given Section 2 of that Act persuasive in interpreting the nearly identical language of 49 P.S. § 1303(d). The deposition testimony submitted to the court below raises a serious question concerning the good faith of Todd Steel throughout the instant transaction.

As indicated by the Supreme Court in Murray, supra, which interpreted Section 2 of the Act of 1901, an estoppel theory may be sustained in certain situations. In Murray, estoppel did not lie because the contractor was under a duty to inquire into the nature of the consent given by the owner to the tenant with regard to the improvements made to the property. Murray, supra 402 Pa. at 361, 167 A.2d at 257. The Supreme Court held that estoppel would not lie against the property owner because the contractor, knowing who the record owners were, contracted in writing with the tenant for payment. We are mindful of the fact that the law requires strict compliance with statutes governing the right to assert a lien against real estate. Murray, supra, 402 Pa. at 358, 167 A.2d at 255. However, where the president and sole stockholder of the corporate owner of the property leads a contractor to believe that he is the actual property owner, we believe that the duty to inquire announced in Murray cannot be imposed.

In Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637 (1978), the Supreme Court pierced the corporate veil because the owner of the corporation, Joseph Ashley, had co-mingled his personal interests with that of the corporation. Significant to the Court was the individual’s reply to the question of how long he had lived in the house owned by the corporation. Mr. Ashley responded, “I bought that home, we bought that home in 1970 ____” (Emphasis in original) Id., 482 Pa. at 237-38, 393 A.2d at 641. We find the following language from Ashley v. Ashley, supra, particularly relevant to the instant case:

This legal fiction of a separate corporate entity was designed to serve convenience and justice, Great Oak Building and Loan Assoc. v. Rosenheim, 341 Pa. 132, 19 A.2d 95 (1941), and will be disregarded whenever justice or public policy demand and when the rights of innocent parties are not prejudiced nor the theory of the corporate entity rendered useless. Gagnon v. Speback, 389 Pa. 17, 131 A.2d 619 (1957). We have said that whenever one in control of a corporation uses that control, or uses the corporate assets, to further his or her own personal interests, the fiction of the separate corporate identity may properly be disregarded. Watercolor Group, Inc. v. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976).

Id. 482 Pa. at 237, 393 A.2d at 641.

In the instant case, the evidence suggests that Mr. Berger contracted for improvements to property which he knew belonged to a corporation he owned, Todd Steel, and which would accrue to the immediate use and benefit of both Mr. Berger, as an individual, and Todd Steel. Despite the fact that a mechanics’ lien claim is purely the creation of statute, Murray, supra, it is clear from the cases interpreting the Mechanics’ Lien Law that estoppel may lie where facts have been withheld, and where a property owner has not acted in good faith throughout the transaction. The record in this case reveals that Todd Steel may be estopped from seeking the protection of § 1303(d) of the Mechanics’ Lien Law.

However, as in cases where summary judgment has issued after preliminary objections have been sustained, our scope of review is narrowed to the question of whether the lower court’s disposition of the case was proper. Dutch Pantry v. Shaffer, 396 Pa. 102, 151 A.2d 621 (1959). Therefore, we do not hold as a matter of law that estoppel should lie against Todd Steel. Nevertheless, the evidence submitted to the court below shows that this case is far from being clear and free from doubt. The fact that the property owner did not sign the writing required by 49 P.S. § 1303(d) does not necessarily mean that the property is exempt or immune from lien. Accordingly, the order of the lower court is reversed.

      . "Claim” is distinguished from "action” in Rule 1651 of the Pennsylvania Rules of Civil Procedure, which provides:
      Rule 1651. Definitions. Conformity to Assumpsit
      (a) As used in this chapter
      “claim” means a mechanics’ lien claim which has been filed;
      "action” means an action to obtain judgment upon a claim.
      (b) Except as otherwise provided in this chapter, the procedure to obtain judgment upon a claim shall be in accordance with the rules relating to the action of assumpsit.
      The note following Rule 1651 explains that the procedure governing the filing of a claim is governed by 49 P.S. § 1101 et seq, while the rules relate to the procedure between the filing of the lien and reduction of the claim to judgment. In the instant case, preliminary objections to the mechanics’ lien claim were filed pursuant to 49 P.S. § 1505, which provides:
      § 1505. Procedure for contesting claim; preliminary objections
      Any party may preliminarily object to a claim upon a showing of exemption or immunity of the property from lien, or for lack of conformity with this act. The court shall determine all preliminary objections. If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise. If the filing of an amended claim is allowed, the court shall fix the time within which it shall be filed. Failure to file an objection preliminary shall not constitute a waiver of the right to raise the same as a defense in subsequent proceedings.

      . 49 P.S. 1101 et seq.

      . Preliminary objections in assumpsit actions are governed by Pa.R. C.P. 1028, which provides in pertinent part:
      Rule 1028. Preliminary Objections
      * * * * * *
      (c) A party may file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections. The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.


author: WICKERSHAM, Judge:

text:
    470 A.2d 164
    Amedeo VOLPE and Anne C. Volpe, H/W, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raybestos-Manhattan Inc., Owens-Corning Fiberglass Corp., Forty-Eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corporation, GAF Corporation, Celotex Corporation, Armstrong Cork Company, Unarco Industries, H.K. Porter Co., Inc., Southern Asbestos Company, J.P. Stevens Inc., Eagle-Picher Industries, Inc., Amatex Corporation, Delaware Asbestos and Rubber Company, Pacor, Inc., Fibreboard Corporation, Keene Corporation, Carlock, Inc.
    Superior Court of Pennsylvania.
    Argued April 25, 1983.
    Filed Dec. 23, 1983.
    Petition for Allowance of Appeal Denied May 10, 1984.

      Martin Greitzer, Philadelphia, for appellants.
    Lowell A. Reed, Jr., Philadelphia, for appellees.
    Before CERCONE, President Judge and SPAETH, HESTER, CAVANAUGH, WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WICKERSHAM, Judge:

In this case we are asked to decide whether admiralty law, rather than the Pennsylvania statute of limitations, is applicable to Amedeo Volpe’s claims that his asbestosis is due to defendants’ conduct. This litigation began in 1977, when Amedeo Volpe, formerly a civilian employee at the Philadelphia Naval Shipyard, filed a complaint in trespass and assumpsit against Johns-Manville Corporation and numerous other defendants (hereinafter known as Defendants). Mr. Volpe’s complaint alleged that the Defendants were all engaged in the business of mining, manufacturing, selling, or distributing asbestos and asbestos products and that he came into contact with Defendants’ asbestos products during his employment at the Navy Yard. The complaint further alleged that Mr. Volpe came into contact with asbestos as he worked on ships both in dry dock and on the navigable waters of the United States.

After Defendants filed preliminary objections to Volpe’s complaint, the complaint was amended. In response, the Defendants filed an answer and new matter. The Defendants admitted that asbestos products were placed in the stream of commerce but denied the other allegations of the complaint. As new matter, the Defendants asserted that Volpe’s claims were barred by the statute of limitations, laches, and failure to give notice on the warranty claims.

The Defendants then moved for summary judgment on the ground that Volpe’s claim is barred by the statute of limitations. Oral argument was conducted before the Honorable Harry A. Takiff of the Philadelphia County Court of Common Pleas. After consideration, Judge Takiff ruled that admiralty law did not control the case and that the two year Pennsylvania statute of limitations for torts barred Volpe’s suit. This appeal timely followed.

The pleadings and depositions established the following facts. Amedo Volpe was employed at the Philadelphia Naval Shipyard from 1967 to 1974. In October of 1973 Mr. Volpe was given his yearly physical examination. The physical included x-ray examinations of Mr. Volpe’s lungs; it was these routine x-rays that led a physician at the Navy Yard to diagnose asbestosis. Mr. Volpe testified that he first heard he had asbestosis from the Navy Yard doctor in November 1973. Eventually, Mr. Volpe was referred to Dr. Harold Israel, a lung specialist.

It was Dr. Israel who first explained to Mr. Volpe what asbestosis is. As Mr. Volpe related during a deposition, Dr. Israel told him that asbestosis caused a concrete-like formation in the lungs and that while his condition would not improve, further exposure to asbestos could worsen the disease. Mr. Volpe then decided to avoid exposure to asbestos at work; in December of 1973, Mr. and Mrs. Volpe obtained and read an article in the New Yorker magazine which described the danger posed by asbestos in the workplace. Mr. Volpe retired from the Navy Yard in early 1974 because of his health problems (arteriosclerosis and asbestosis). This suit followed.

Questions of admiralty law are, of course, most frequently decided by the federal courts. Mr. Volpe relies heavily on a decision from the Court of Appeals for the Fourth Circuit, White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). In White, five shipyard workers received jury verdicts against various manufacturers of asbestos products; the district court granted judgment n.o.v. in favor of the defendants and declined to exercise admiralty jurisdiction because the alleged injuries suffered bore no reasonable relationship to traditional maritime activity. The circuit court stated that the issue before it was whether the district court should have exercised its inherent admiralty jurisdiction.

The circuit court began its analysis by citing to a leading Supreme Court decision delineating the boundaries of admiralty jurisdiction, Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). Executive Jet Aviation held that a tort action is within admiralty jurisdiction if there is both (1) a maritime locality of the injury, and (2) a significant relationship to traditional maritime activity. Id. at 268, 93 S.Ct. at 504. The circuit court proceeded to apply the Executive Jet tests to the products liability claim.

According to the majority, the locality prong of the Executive Jet test was easily satisfied. The plaintiffs alleged that they installed asbestos insulation at the shipyard and dry dock areas as well as aboard vessels located on navigable waters. The court then considered whether the circumstances surrounding the employees’ injuries satisfied the maritime nexus prong of the Executive Jet test. The plaintiffs installed asbestos insulation, without which the vessels would have been unable to carry passengers and cargo. The court held that because the asbestos insulation became an integral part of the ship, the installation of the insulation is essential to maritime industry. “Therefore, the work done by these shipyards bears a ‘significant relationship to traditional maritime activity’ because the installation of the asbestos products has a direct effect on marine navigation and commerce.” White v. Johns-Manville, supra, at 239.

Appellants would have us adopt the reasoning of the Fourth Circuit Court of Appeals. Mr. Volpe asserts that White v. Johns-Manville, supra, is dispositive of this case because the United States Supreme Court denied certiorari. Mr. Volpe argues that his work history is identical to that of the plaintiffs in White, and that he also worked on ships in dry dock as well as on the navigable waters of the United States. Thus, Mr. Volpe believes he has satisfied the locality test as a matter of law. Mr. Volpe welded boilers and pipes, work that is just as essential to the function of a ship as the installation of insulation; hence, Mr. Volpe was as involved in a traditional maritime activity as the successful plaintiffs in White.

White v. Johns-Manville, supra, does not, however, govern our disposition of this case. We find the views of the Ninth Circuit Court of Appeals as expressed in Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir.1983) and the views of the First Circuit Court of Appeals given in Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983) more persuasive than White.

The Owens-Illinois litigation began with the claim of one Wayne Plunkett, who filed suit to recover for personal injuries allegedly caused by exposure to asbestos products made by Owens-Illinois and other defendants. Plunkett argued that admiralty jurisdiction applied to his suit because he suffered substantial exposure to asbestos during his employment in a shipyard. The exposure occurred when Plunkett worked with and around asbestos products in the boiler rooms of ships under construction, which ships had been launched but not completed when Plunkett worked on them.

The Court of Appeals for the Ninth Circuit stated that Plunkett’s service aboard ships floating in navigable waters satisfied the locality test, but went on to note that the maritime location of a tort no longer suffices to invoke admiralty jurisdiction. It was thus necessary to decide whether the alleged injury to Plunkett arose in the course of a traditional maritime activity.

The court wrote:

To determine whether an alleged tort bears a significant relationship to traditional maritime activity, we must consider four factors: (1) traditional concepts of the role of admiralty law; (2) the function and role of the parties; (3) the types of vehicles and instrumentalities involved; and (4) the causation and nature of the injury suffered. T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855, 857 (9th Cir.1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2398, 44 L.Ed.2d 667 (1975).

Owen-Illinois, supra, at 970. The Ninth Circuit Court of Appeals applied these concepts and concluded that admiralty jurisdiction did not lie. In its examination of the first factor, the court resorted to the traditional distinction between contracts for the repair of vessels, which are governed by admiralty law, and contracts for the construction of new vessels, which are not governed by admiralty law. Plunkett’s alleged injuries occurred as he worked on new ships; therefore, the tort alleged lacked the maritime flavor necessary to invoke admiralty jurisdiction. Id. at 970.

The court continued:

Nor does an examination of the other factors persuade us of a significant maritime quality to the claims asserted here. Plaintiff’s job, installing and cleaning up around the installation of asbestos, is hardly a distinctively maritime role, in contrast to the navigational functions of the crew of a ship engaged in ocean or river shipping. While ships were obviously involved here, the tools and safety equipment (or lack thereof) present in the installation and clean-up of asbestos — unlike the navigational equipment and safety devices of a vessel — possess few maritime attributes. The use of masks, unlike the provision of lifeboats, is hardly a precautionary measure distinctively connected to traditional maritime activity. Finally, the nature of the injury, an asbestos-related disease, and its causation, the unprotected inhalation of asbestos fibers, bear little maritime connection. Both the injury and its cause are far more closely affiliated with the clearly land-based negligence arising in the construction industry generally than with negligence taking place in commerce and navigation on the navigable waters____ We conclude that plaintiffs claims do not bear a significant relationship to traditional maritime activity and that admiralty •jurisdiction is therefore lacking.

Owens-Illinois, supra, at 970-71 (citations omitted).

When we apply the reasoning of the circuit court to the case now before us we come to a similar result. At the Philadelphia Navy Yard, Mr. Volpe spent seventy percent of his time on ships with seventy-five percent of that time on repair and twenty-five percent devoted to new construction. Reproduced Record at 42a. Clearly, Mr. Volpe’s service at the Navy Yard was on ships in navigable waters; the locality test of Executive Jet Aviation is thus satisfied.

There is not, however, the maritime nexus required to invoke admiralty jurisdiction.

We agree with the Ninth Circuit Court of Appeals that installing and cleaning up around the installation of asbestos insulation is not a distinctively maritime role. Mr. Volpe’s duties as a welder involved the use of asbestos blankets to protect ship equipment in the areas where he worked and also involved cutting through asbestos insulation while welding. Reproduced Record at 110a-113a. Welding, even welding necessary to the function of a ship, is not a distinctively maritime role. Mr. Volpe argues that rejecting his claim because welding is not exclusively a maritime occupation would mean “that a ship’s cook, one who performs a traditional maritime function, would be denied the protection of admiralty law simply because there are cooks working in many non-ship locations____” Brief for Appellant at 7.

This argument is not well taken. Ships’ cooks are protected in admiralty law not because they are cooks, but because they cook on board a vessel and thus face not only the hazards common to cooking but also the perils of sailing navigable waters. Mr. Volpe did not face the dangers inherent in traveling upon the seas or navigable lakes and rivers. The First Circuit Court of Appeals noted that the unseaworthiness remedy of admiralty was meant to protect seamen and those performing seamen’s duties:

Seamen are the wards of admiralty, and the policy of the maritime law has ever been to see that they are accorded proper protection by the vessels on which they serve---- [Thus] the owners owe[] to the seamen the duty of furnishing a seaworthy vessel and safe and proper appliances in good order and condition; and ... for failure to discharge such duty there [is] liability on the part of the vessel and her owners to a seaman suffering injury as a result thereof. The State of Maryland, 85 F.2d 944, 945, 4th Cir.1936, quoted in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 91-92 n. 9, 66 S.Ct. 872, 875-876 n. 9, 90 L.Ed. 1099 (1946).
Two observations may be made about the application of this policy. The first is that unseaworthiness can arise not only from something as nautical as a faulty anchor windlass but from something as unmaritime as the presence on a ship of a hazardous chemical. See, e.g., Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir.1980) (unseaworthiness claim based on seaman’s exposure to benzene fumes escaping from the ship’s storage tanks); Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir.1976) (unseaworthiness claim based on exposure to noxious fumes escaping from the chemical tank of a barge).
A second, and perhaps more immediately pertinent observation is that the policy protects not only seamen but, by judicially created extension, those who are serving the same functions as seamen would serve; otherwise a vessel owner might be able to frustrate the policy by subcontracting chunks of a seaman’s job to others. But the limits of the extension are narrowly circumscribed.
The seaworthiness remedy has been extended to some harbor workers, see Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), but only if those harbor workers were injured while doing work traditionally done by members of the crew and thus, presumably, subject to many of the same hazards as seamen, see United New York and New Jersey Sandy Hooks Pilots Ass’n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959). See also West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959) (focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done); Waganer v. Sea-Land Service, Inc., 486 F.2d 955, 958 (5th Cir.1973) (two-fold requirement for unseaworthiness recovery: “(i) the ship in question must have been in navigational status, and not ‘dead’, which in turn depends upon whether the contracted work is minor or major, and who has custody and control of the ship while the work is being done; and (ii) the pattern of repair must reflect work traditionally and ordinarily done by seamen, excluding persons performing such tasks as making major repairs requiring drydocking or special skills”).
The distinctions drawn in the seaworthiness context, according to the work performed by the injured party and the hazards encountered by him, counsel against admiralty jurisdiction in this case. Under the tests set-out above, plaintiff’s decedent would plainly be excluded. The ships on which he worked were out of navigation and the work was major, requiring special equipment and skills. It was not work traditionally done by members of the crew. More important, if the reason for admiralty’s special concern for the care and safety of seamen is that they are exposed to the peculiar hazards of the sea and a vessel’s equipment, then the dangers faced by a shipyard worker installing asbestos insulation are scarcely traditional concerns of admiralty or is there any reason to expect an admiralty court to possess expertise in addressing those dangers.

Austin v. Unarco Industries, Inc., 705 F.2d 1, 12-13 (1st Cir.1983) (footnote omitted).

Further, Mr. Volpe worked on vessels in a shipyard, not on ships in active service. As Mr. Volpe explained in a deposition, he was exposed to asbestos in the course of “ripouts”; during a ripout, shipyard workers cut through a ship’s decks so that machinery can be removed for repair. Slicing through a ship’s decks is major work, requiring special skills and equipment. A ship’s crew would not perform a ripout. Therefore, Mr. Volpe was not performing a traditional seaman’s role when he was exposed to asbestos.

The causation and nature of the injury suffered also weigh against the grant of admiralty jurisdiction. Assuming arguendo that Mr. Volpe’s asbestosis was caused exclusively by his exposure to asbestos at the Navy Yard, the injury he suffered was the same as he would have suffered had he worked on boilers in a factory on dry land. Mr. Volpe’s peril was not created by any hazard of the sea and there is no need to invoke the special expertise of admiralty courts.

For all of the foregoing reasons, we hold that admiralty jurisdiction does not lie in this case. Our judgment is reinforced by the concerns expressed by the Supreme Court in cases determining the limits of admiralty jurisdiction. In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 269-70, 93 S.Ct. 493, 505, 34 L.Ed.2d 454 (1972), the Court stated:

The law of admiralty has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world, beyond whose shores they cannot go. That law deals with navigational rules — rules that govern the manner and direction those vessels may rightly move upon the waters. When a collision occurs or a ship founders at sea, the law of admiralty looks to those rules to determine fault, liability, and all other questions that may arise from such d catastrophe. Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage.

See also Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), wherein the Court explains that the need for uniform rules for navigable waters is an important factor in limiting admiralty jurisdiction. In this case, there is no comparable need for uniformity sufficient to displace state law.

Because admiralty jurisdiction does not lie in this case, we believe that summary judgment in favor of Defendants was properly granted.

Pa.R.Civ.P. 1035(b) provides that a ruling on a motion for summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Judge Takiff found that by December 1973, Mr. Volpe knew of his injury, asbestosis, the operative cause of his injury, inhalation of asbestos dust and fibers, and the causal connection between his injury and his exposure to asbestos at work. Mr. Volpe and his wife were also aware of the names of asbestos manufacturers. Yet Volpe and his wife did not file their amended complaint until September 1977, well over three years after Mr. Volpe knew all he needed to know to bring an action. We agree with the judge below that once Mr. Volpe knew these facts, he had the ability to investigate and pursue his claim. The running of the statute of limitations cannot be postponed until a claimant actually does pursue a suit without contravening the very purpose of limitations on actions. Mr. Volpe’s claim is clearly barred by the statute of limitations.

Order affirmed.


author: McEWEN, Judge:

text:
    470 A.2d 170
    COMMONWEALTH of Pennsylvania v. Barry Alan PULLING, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 14, 1983.
    Filed Dec. 30, 1983.

      Terrence P. Cavanaugh, Erie, for appellant.
    Michael R. Cauley, First Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   McEWEN, Judge:

This is an appeal from the order of the Common Pleas Court which dismissed without a hearing the petition of appellant under the Post Conviction Hearing Act (PCHA). Since a pro forma dismissal of the PCHA petition of appellant was not warranted by the circumstances here presented, we remand for an evidentiary hearing.

Appellant entered pleas of guilty to two counts of burglary and was sentenced to a term of imprisonment of from five and one-half to thirteen years and to a consecutive five year term of probation. Although appellant neither challenged his plea nor took a direct appeal, he did file, on October 26, 1981, a pro se PCHA petition. Newly appointed counsel filed an amended PCHA petition alleging that as a result of the ineffective assistance of guilty plea counsel, appellant was unlawfully induced into entering his pleas. The learned hearing judge, for the reasons provided in a very thoughtful and able expression of view, dismissed the petition without oral argument and without a hearing.

Appellant here reiterates the contention that his plea of guilty was unlawfully induced as a result of the ineffectiveness of prior counsel. He claims that counsel promised him that if he pleaded guilty, he would not be sent to the Western State Penitentiary. Before we consider the merits of this claim however, we must first determine whether it has been waived, since “[a] failure to file a petition to withdraw a guilty plea or to take an appeal constitutes a waiver of any defects in the guilty pleas unless some extraordinary circumstances are shown.” Commonwealth v. Reider, 267 Pa.Super. 359, 363, 406 A.2d 1081, 1083 (1979). See also Commonwealth v. Henderson, 298 Pa.Super. 180, 444 A.2d 720 (1982); Commonwealth v. Peele, 291 Pa.Super. 84, 435 A.2d 231 (1981); Commonwealth v. Farnwalt, 286 Pa.Super. 559, 429 A.2d 664 (1981); Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979). Since a claim of ineffective assistance of counsel is an extraordinary circumstance which prevents such a waiver, Commonwealth v. Cofield, 310 Pa.Super. 356, 456 A.2d 650 (1983); Commonwealth v. Henderson, supra; Commonwealth v. Reider, supra, this instant contention has not been waived.

The pertinent section of the Post Conviction Hearing Act provides:

[T]he court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of facts when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

19 P.S. § 1180-9 (current version at 42 Pa.C.S.A. § 9549). See also Commonwealth v. Porter, 256 Pa.Super. 163, 389 A.2d 651 (1978). An evidentiary hearing should thus be conducted where the record does not clearly refute the claim of an accused that his plea was unlawfully induced. Commonwealth v. Cofield, supra; Commonwealth v. Rusinko, 303 Pa.Super. 216, 449 A.2d 656 (1982); Commonwealth v. Henderson, supra; Commonwealth v. Paige, 287 Pa.Super. 133, 429 A.2d 1135 (1981); Commonwealth v. Farnwalt, supra; Commonwealth v. McCall, supra; Commonwealth v. Reider, supra. “Our courts have previously determined that in borderline cases petitioners are to be given ‘every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing.’ ” Commonwealth v. Strader, 262 Pa.Super. 166, 176, 396 A.2d 697, 702 (1978) quoting Commonwealth v. Nahodil, 212 Pa.Super. 77, 79, 239 A.2d 840, 840 (1968).

The petition we here study, as earlier noted, was summarily dismissed. While the record of the colloquy prior to sentencing, as well as the “Statement of Understanding of Rights Prior to Guilty Plea” executed by appellant, reveal that appellant indicated that no promises had been made' to him concerning what sentence would be imposed if he pleaded guilty, there is no evidence to refute his claim that prior counsel had promised him where the sentence would be served in return for the entry of the pleas. Moreover, the following dialogue at the sentencing proceeding would seem to suggest that appellant may well have believed that he would not serve the sentence in a state institution:

MS. ZACKS-GABRIEL: I would make a brief statement on Mr. Pulling’s behalf, your Honor. As is clear, the pre-sentence is rather extensive in this case, very big. One of the things I would like to point out in the pre-sentence is the discussion regarding the mental difficulties of Mr. Pulling. Now, I believe that everybody has gone over the colloquy very well this morning and that there is, hopefully, no question as to Mr. Pulling’s understanding of same. However, I think that the Court should consider Mr. Pulling’s mental difficulties when imposing sentence. As also indicated in the pre-sentence, your Honor, Mr. Pulling has spent a large majority of his life institutionalized in one setting or another. If the Court decides to send Mr. Pulling to a state institution, I would respectfully request the Court to heed Mr. Amann’s statement in the pre-sentence to the difficulties Mr. Pulling had in the institutions before and possibly any recommendation could be attached to the commitment stating that Mr. Pulling would not be institutionalized in Western or Rockview because of his particular difficulties in those institutions, your Honor.
THE COURT: All right.
MS. ZACKS-GABRIEL: His broken home is very obvious in the pre-sentence as is Mr. Pulling’s difficulties with education, with employment with all kinds of facets of his life, your Honor. However, he’s cooperated fully. I think he is trying his best, and I would respectfully request that the Court possibly consider Mercer as an alternative, although the time certainly won’t be as extensive as the District Attorney might request. I think that Mercer might provide a setting whereby Mr. Pulling, perhaps for the first time,.could get some kind of guidance and assistance with the difficulties he faces. That’s all, your Honor. Thank you.
THE COURT: Okay, the reasons for the sentences are: I considered the guidelines of sentencing in Pennsylvania, I considered the nature of the crimes which you committed which were somewhat violent in nature, I’ve considered your prior record, and I’ve considered the evaluations, especially the mental difficulties you have had, and I believe I am being lenient in these sentences for as you were told, the maximum I could give you would be a $50,000 fine and twenty to forty years in prison, and I am not doing anything of that sort. On 377 of 1980 — or 393 of 1980, pay the costs of prosecution, five years probation, to run consecutively to the sentence at 377 of 1980, and I recommend an institution other than Western Penitentiary or Rockview be utilized by the Bureau of Corrections for his incarceration, $300 fine, costs, make restitution in all cases if you have not already done so, undergo imprisonment in the custody of the Bureau of Corrections in the Commonwealth of Pennsylvania. It shall be a minimum of five-and-a-half and the maximum shall be thirteen years. Okay.
MS. ZACKS-GABRIEL: Thank you, your Honor.
THE COURT: And work through the probation where he is sent.

It is clearly established that the sentencing judge is without authority to direct that a term of imprisonment in excess of two years be served in a specific institution. Commonwealth ex rel. Black v. Superintendent, State Correctional Institution Graterford, 293 Pa.Super. 442, 439 A.2d 193 (1981); 42 Pa.C.S.A. § 9762. See also Commonwealth v. Maute, 263 Pa.Super. 220, 228, 397 A.2d 826, 830 (1979). Had appellant apprised counsel during their discussion concerning the guilty plea that he would not plead guilty if the sentence was to be served in certain specified institutions, counsel would have been ineffective had he either promised appellant that he would not be sentenced to those institutions or failed to advise appellant that the court was powerless to insure that the sentence would be served in a specific place of confinement. We are unable to determine whether appellant was induced to plead guilty in either fashion, since there was no hearing upon the petition. We must, therefore, remand to the Common Pleas Court so that an evidentiary hearing may be held to determine (1) whether appellant had instructed counsel that he would not plead guilty if the sentence was to be served in Rockview or Western State Penitentiary, and (2) whether counsel thereupon expressed the claimed promise or failed to advise appellant that the court could not provide any such guarantee. See Commonwealth v. Cofield, supra; Commonwealth v. Rusinko, supra; Commonwealth v. Peele, supra; Commonwealth v. Farnwalt, supra; Commonwealth v. McCall, supra.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1397], as amended, Act of June 26, 1980, P.L. 265, No. 77, § 2, which delayed repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1 which delayed repeal until June 26, 1982, repealed, Act of May 13, 1982, P.L. 417, No. 122, § 2, which replaced the prior Act by adding 42 Pa.C.S.A. § 9541 et seq., as suspended by Pa.R.Crim.P., Rule 1507, 42 Pa.C.S.A., insofar as it is inconsistent with the Rules.

      . Appellant was charged in Bill of Information No. 377 of 1980 with burglary, aggravated assault, and criminal attempt and in Criminal Information No. 393 of 1980'with burglary, aggravated assault, terroristic threats and recklessly endangering another person. In return for his pleas of guilty to the burglary charges, the Commonwealth agreed to nol pros the other charges.

      . The factual basis of this assertion appears in the counseled PCHA petition of appellant which includes an allegation by appellant that "I was told that if I plead guilty, I would not have to serve time in Western State Penitentiary.”

      . Following imposition of sentence, appellant was, in fact, incarcerated in the Western State Penitentiary.

      . Appellant also contends in his brief “that the sentencing court did not adequately set forth its reasons for sentence as required by the Pennsylvania Sentencing Code.” Appellant was, however, advised prior to sentencing (1) that he had a right to file a motion challenging the validity of his guilty pleas or the legality of sentence; (2) that such motion had to be filed within ten days from the date of sentence; (3) that he had a right to appointed counsel for the purpose of such filing; and (4) that the failure to file a motion would constitute a waiver of the right to appeal. Appellant did not file any motions within the ten day period and has thus waived this contention. Commonwealth v. Lightly, 307 Pa.Super. 239, 453 A.2d 14 (1982); Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982). Moreover, this issue has not been preserved since appellant does not argue that extraordinary circumstances, such as ineffective assistance of counsel for failure to challenge the propriety of sentence, exist. Commonwealth v. Reider, supra; Commonwealth v. Henderson, supra; Commonwealth v. Peele, supra.