author:
TAMILIA, Judge:
      KELLY, Judge, CIRILLO, Judge,

text:
    637 A.2d 997
    COMMONWEALTH of Pennsylvania v. Julio RIVERA, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1993.
    Filed Feb. 14, 1994.

      Marc Neff, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com. appellee.
    Before ROWLEY, President Judge, and McEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   TAMILIA, Judge:

This is an appeal from the judgment of sentence entered February 10, 1992. Appellant, Julio Rivera, was found guilty in a nonjury trial of possession with intent to deliver a controlled substance and criminal conspiracy. Following the denial of post-trial motions, and pursuant to the mandatory minimum sentence provisions of 18 Pa.C.S. § 7508, the trial court sentenced appellant to a term of seven (7) to fourteen (14) years imprisonment, and fined him $50,000 on the drug charge, and a consecutive term of six (6) years probation on the conspiracy charge. We affirm.

The facts of this case, as stated by the trial court, are as follows.

On May 17, 1991, at about 7:40 p.m., Officer Willie Jones, a plainclothes member of the Philadelphia Police Department’s Narcotics Unit arrived in the 2900 block of North Philip Street, driving an unmarked vehicle. Officer John Brennan, also of the Narcotics Unit, had just established a surveillance post at Cambria and Philip Streets, from which he could see the entire 2900 block of Philip Street, looking north from his location.
Officer Jones stopped his car in the middle of the block, and was approached by several Hispanic males, including a Mr. Guzman, and Mr. Baretto, and the Defendant, Julio Rivera.
According to Officer Jones, he told Mr. Baretto that he wanted to buy a kilogram of cocaine, and displayed what he said was $27,000.00 with which to pay for it. Mr. Baretto then allegedly called Mr. Guzman, his “boss,” over to the car, whereupon further conversation ensued, the upshot of which was that Officer Jones would leave and return in 10 or 15 minutes to make the purchase.
When Officer Jones returned to the block, Mr. Baretto got into the car, and they proceeded downed [sic] the block to a garage, which Mr. Baretto and Mr. Guzman entered, returning with about an ounce of what Officer Jones believed to be powdered cocaine. Officer Jones stated that he didn’t want anything other than the kilogram of cocaine, and Mr. Baretto and Mr. Guzman returned the white powder to the garage.
Shortly thereafter, a brown four-door car pulled up and stopped. Mr. Guzman reached inside and picked up a “rectangular shaped object, in blue and green wrapping,” and handed it to the Defendant. The Defendant then allegedly ran over to a vacant lot, where he placed the package under the front seat of a two-door brown Toyota located there. Mr. Baretto and Officer Jones went to this Toyota, where Mr. Baretto retrieved the parcel, showed it to Officer Jones, and requested $2,000.00, presumably as a down payment on the kilo. When Officer Jones went back to his car, ostensibly to get the money, he put on his emergency flashers, a pre-arranged signal to his back-up units, which arrived on the scene and arrested everyone concerned.
The contents of the blue-green package were field-tested positive for cocaine, which result was later verified by the police laboratory.

(Slip Op., Goodheart, J., 5/12/92, pp. 1-3; footnote omitted.)

Appellant first argues in this appeal that the evidence was insufficient to sustain the verdicts. Appellant contends the “record is devoid of any evidence that [appellant] knew or should have known the contents of the package.” This Court’s standard of review for “sufficiency of the evidence” claims views the evidence in the light most favorable to the Commonwealth as verdict winner, and accepts as true all evidence and all reasonable inferences therefrom, which, if believed, properly could support the verdict. Commonwealth v. Harper, 416 Pa.Super. 608, 611 A.2d 1211 (1992).

When viewed in this light, we find this claim entirely without merit. The evidence clearly established that the individuals arrested were involved in a plan to sell a kilo of cocaine to the undercover officers, and that appellant was a member of that conspiracy. An agreement sufficient to establish a conspiracy can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990). In fact, the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence, so long as the inferred facts flow, beyond a reasonable doubt, from the proven facts to establish the accused’s guilt or elements of the crime. Commonwealth v. Paschall, 333 Pa.Super. 323, 482 A.2d 589 (1984). Where, as here, the evidence established appellant was a willing member of a conspiracy to deliver cocaine, and fled when police approached, appellant’s knowledge of the contents of the package he delivered may be inferred, and the evidence was sufficient to sustain the verdicts.

The second claim presented by appellant, which brings this case before this Court en banc, is that the trial court erred in sentencing appellant to a seven-year mandatory term for a “subsequent” drug offense under the sentence enhancement provisions of the Crimes Code. We disagree.

The parties do not dispute any of the following. Appellant was arrested in or about August, 1990 and charged with possession with intent to deliver cocaine. Thereafter, on May 17, 1991, appellant was charged with the instant offenses. Appellant pled guilty to the August, 1990 charge on July 29, 1991, and was sentenced on that date. Appellant was convicted on the instant charges on November 27, 1991, and sentenced on February 3, 1992.

The Crimes Code, 18 Pa.C.S. § 7508, Drug trafficking sentencing and penalties, provides, inter alia:

(a) General rule.—Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
$ ‡ ‡ ‡ ‡
(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of the Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical -with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecqunine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fíne as set forth in this subsection:
(iii) when the aggregate weight of the compound or mixture of the substance involved is at least 100 grams; four years in prison and a fine of $25,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: seven years in prison and $50,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.

Id., § 75G8(a)(3)(iii) (emphasis added). Section 7508 goes on to provide:

(a.l) Previous conviction.—For purposes of this section, it shall be deemed that a defendant has been convicted of another drug trafficking offense when the defendant has been convicted of another offense under section 13(a)(14), (30) or (37) of the Controlled Substance, Drug, Device and Cosmetic Act, or of a similar offense under any statute of any state or the United States, whether or not judgment of sentence has been imposed concerning that offense.

Id.

The above statute was amended, effective December 19, 1990. Prior to amendment, section 7508(a)(3)(iii) read as follows:

(iii) upon the first conviction when the amount of the substance involved is at least 100 grams; four years in prison and fine of $25,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity and, upon conviction of another offense subject to sentencing under this section: seven years in prison and $50,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.

Id. (emphasis added). The December, 1990 amendment, as emphasized above, requires a substantially different interpretation of the application of sentence enhancement and recidivist'sentences from the pre-amendment statute.

The precise issue presented in this case has been dealt with in two other recent en banc decisions of this Court. See Commonwealth v. Tyrone Williams, 431 Pa.Super. 167, 636 A.2d 183 (1993); Commonwealth v. Plass, 431 Pa.Super. 251, 636 A.2d 637 (1994). Although Williams and Plass dealt with other violations of section 7508, their analysis of the statute is dispositive and controlling in this case as well.

The Plass Court stated:

Up to this point, no court has discussed the particular interpretation of this statute which concerns us here. We are therefore guided by the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., and must construe the statute in light of its plain language. Id., § 1903. Moreover, “[w]hen determining the meaning of any particular recidivist statute or section, it is the language of that statute or section, and no other, which must be interpreted or [and] applied.” Commonwealth v. Gonzales, 415 Pa.Super. 564, [574], 609 A.2d 1368, 1373 (1992). Here, the language of § 750(3)(i) is unambiguous. “If at the time of sentencing, the defendant has been convicted of another drug trafficking offense,” the enhancement provisions apply.

Id. at 253, 636 A.2d at 638. In the present case, as in Plass, the parties do not dispute that appellant’s first offense was “another offense” under the Controlled Substance, Drug, Device and Cosmetic Act which would trigger the recidivist provision in section 7508(a)(3)(iii) and (a.l), and that “at the time of sentencing” for the present offense he was convicted of the first offense. “[W]e simply fail to see, under a plain reading of the statute, how the enhancement was inapplicable.” Id. at 253, 636 A.2d at 638. We, therefore, reject appellant’s claim that one must be arrested and convicted for the first offense prior to the arrest for the second offense in order to trigger the subsequent offense enhancement. The 1990 amendment above clearly eliminates the requirement that prior arrest and conviction occur before the subsequent arrest to trigger enhancement.

While never addressing how the plain language of section 7508 can be ignored, appellant does attempt to draw analogies between section 7508 and cases dealing with other recidivist statutes. See Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991), alloc. den., 529 Pa. 646, 602 A.2d 857 (1992) (sentencing guidelines); Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993) (violent crimes). See also Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), alloc. granted, 531 Pa. 644, 612 A.2d 983 (1992).

This case, however, unlike Eyster, Dickerson and Beatty, contains express statutory language susceptible to no ambiguity, and phrased quite simply: “[I]f at the time of sentencing the defendant has been convicted of another drug trafficking offense____” 18 Pa.C.S. § 7508(a)(3)(iii) (emphasis added). See Plass, supra at 253, 636 A.2d at 638.

We find the thorough and well-reasoned decisions in Plass and Williams, supra, are controlling in this case, and require no further exposition by this Court.

Judgment of sentence affirmed.

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

KELLY, J., files a concurring and dissenting opinion joined by CIRILLO and JOHNSON, JJ.

KELLY, Judge,

concurring and dissenting:

I agree with the majority’s conclusion that the evidence was sufficient in this case to sustain the guilty verdicts on the charges of criminal conspiracy and possession with intent to distribute a controlled substance. However, I part with the majority on the sentencing issue.

The statutory analysis espoused in Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), alloc. granted 531 Pa. 644, 612 A.2d 983 (1992); and Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991), appeal denied, 529 Pa. 646, 602 A.2d 857 (1992), that a “previous conviction” must precede a subsequent offense before the “previous conviction” can be used to enhance the sentence for the later offense, applies with equal vigor in the case at bar. Here, appellant committed his second offense before he was convicted for his first offense. Under these circumstances, I would vacate judgment of sentence and remand for resentencing. Hence, I respectfully dissent.

CIRILLO and JOHNSON, JJ., join.

CIRILLO, Judge,

concurring and dissenting:

I join Judge Kelly in his concurring and dissenting opinion and add only the following: While I recognize that the reasoning behind the recidivist philosophy has been borrowed from cases interpreting statutes different than the one at issue here, it is essential, in my opinion, that we remain consistent in our interpretation of penalty enhancement provisions. See Commonwealth v. Kane, 430 Pa.Super. 203, 633 A.2d 1210 (1993) (en banc) (applying the pre-amendment section 7508, a defendant must be convicted of the prior offense before the commission of the subsequent offense for an enhanced sentence to attach); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), aff'd, 533 Pa. 322, 623 A.2d 814 (1993) (when determining penalty enhancement under 75 Pa. C.S. § 3731(e)®, the sentencing court must utilize the date of the offense for which defendant is to be sentenced and determine the number of prior' convictions as of that date); Com monwealth v. Tobin, 411 Pa.Super. 460, 601 A.2d 1258 (1992), aff'd, 533 Pa. 322, 623 A.2d 814 (1993) (same); Commonwealth v. Eck, 411 Pa.Super. 465, 601 A.2d 1261 (1992) (en banc), alloc. denied, 533 Pa. 607, 618 A.2d 398 (1992, Table) (same); Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991), aff'd, 533 Pa. 294, 621 A.2d 990 (1993) (for prior conviction to serve as an enhancer under 42 Pa.C.S.A. § 9714, the conviction must precede the commission of a later offense); Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991) (en banc), appeal denied, 529 Pa. 646, 602 A.2d 857 (1992) (pursuant to 42 Pa.C.S.A. § 2154, in order for a prior conviction to apply to the prior record score for sentencing purposes, one must have been previously convicted for a crime committed before the current offense, whether or not a sentence has been imposed on the prior offense).

The clear spirit of the recidivist philosophy, as evidenced by the foregoing authority, dictates that the amended section 7508(a) be applied in the same fashion. The uniform application of recidivist provisions would undoubtedly serve to ensure continuity, efficiency, and stability in our judicial decision-making. Thus, in adhering to the underlying purpose of the recidivist philosophy as interpreted by the appellate courts in Pennsylvania, I would join Judge Kelly’s decision to vacate Rivera’s judgment of sentence and remand for resentencing.

      . 35 P.S. § 780-113(a)(30).

      . Id., 18 Pa.C.S. § 903.

      . The trial court noted in its Opinion that this case was decided using the pre-amendment version of section 7508, due in part to the mistaken belief of both parties and the trial court that the amendments were enacted in 1931, rather than in 1990. This belief has been abandoned on appeal, and both parties’ arguments are based on the amended section 7508, as is our decision. As a result, appellant’s reliance on Commonwealth v. Polanco, 532 Pa. 599, 616 A.2d 1372 (1992), a preamendment case, is misplaced. In any event, the Supreme Court in Polanco, while reversing on other grounds, upheld this Court's interpretation of the legislative policy and intent underlying section 7508.

      . While we respect our colleagues' Concurring and Dissenting Opinions about “recidivist philosophy,” it is our opinion that is a policy to be established by the Legislature and not this Court.


source: Caselaw Access Project

author: JOHNSON, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    637 A.2d 1001
    COMMONWEALTH of Pennsylvania v. Albert D. JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1993.
    Filed Feb. 23, 1994.

      Joseph P. Burt, Erie, for appellant.
    Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, McEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   JOHNSON, Judge:

On this appeal from judgment of sentence, we are asked to determine the propriety of imposing the recidivist enhancement provision of 18 Pa.C.S. § 7508(a)(3)(h), the pre-1990 amendment version, where the commission of the second offense, on which the enhancement is based, occurred prior to a conviction on the first offense. Because we find that for a prior conviction to serve to enhance a sentence, the conviction must precede the commission of the later offense, we shall vacate the judgment of sentence and remand the case for resentencing.

We are also presented with three additional allegations of trial court error: (1) failure to compel disclosure of the confidential informant; (2) failure to grant a request for a missing witness instruction; and, (3) imposition of an excessive and unreasonable sentence. For the reasons set forth below, we find no merit in these three allegations of trial court error. Accordingly, we affirm the conviction, even as we remand for resentencing.

In September, 1990, Albert D. Jones sold cocaine to an undercover police detective in a controlled drug buy. A jury convicted Jones of unlawful delivery of a controlled substance, 35 P.S. § 780-113(a)(30); unlawful possession of a controlled substance, 35 P.S. § 780—113(a)(16); and criminal conspiracy, 18 P.C.S. § 903. In November, 1990, two months after committing the offenses underlying this appeal, Jones committed his second offense, possession with the intent to deliver a controlled substance (cocaine), 35 P.S. § 780-113(a)(30). Prior to being convicted for his first offenses, Jones was convicted and sentenced for his second offense. Based upon the earlier conviction for the second offense, the Honorable Michael T. Joyce applied 18 Pa.C.S. § 7508(a)(3)(ii), on the conviction for the first offenses, and sentenced Jones to a term of incarceration of 5 to 10 years, plus 5 years consecutive probation. The sentencing court also imposed the mandatory minimum fine of $30,000. Jones’ timely filed post-verdict motions were denied. He now appeals to this Court based upon the four above-stated allegations of trial court error.

On September 20, 1990, Detective E.L. Mioduszewski was working undercover with a confidential informant. The informant arranged a meeting between Jones and the detective so that the detective could make a controlled drug buy from Jones. The drug transaction occurred at a gas station when the informant picked up the drugs from the location where Jones had placed them, and Detective Mioduszewski simultaneously placed the money on the dashboard of Jones’ car. State Narcotics Agent Barbara Winschel, who recognized Jones from numerous prior observations of him, observed the transaction from a parking lot across the street from the gas station. Her testimony corroborated that of Detective Mioduszewski. Jones was arrested several months later.

On the morning of trial, Jones requested disclosure of the identity of the confidential informant. The trial court denied Jones’' request for disclosure, but did not address this issue in its subsequent Opinion. The trial court also denied Jones’ request for a missing witness instruction. On appeal, Jones argues first that the trial court erred in failing to compel the Commonwealth to disclose the identity of the informant because the informant “could have been interviewed and potentially presented as to distances, lighting conditions, conversations, positions of police officers, length of observations, physical descriptions, and all of the many other factor’s [sic] with a bearing upon reliability of identification testimony.” We disagree.

Rule 305(B), Pa.R.Crim.P., governs disclosure of information by the Commonwealth. Rule 305(B) provides, in pertinent part:

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.
(a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth;
* * * * * *
(2) Discretionary With the Court. In all court cases, ... if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
(a) the names and addresses of eyewitnesses;
# # H* ‡ & #

Pa.R.Crim.P., Rule 305(B)(1)(a); Rule 305(B)(2)(a). Thus, the mandatory provision of the rule expressly compels the Commonwealth to disclose any information it has that is favorable to the defendant and which is material to guilt or punishment. “Evidence is material ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.’ ” Commonwealth v. Redmond, 395 Pa.Super. 286, 298, 577 A.2d 547, 553 (1990), quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40, 57 (1987). Evidence which is both favorable to the accused and material to guilt or punishment is exculpatory. Exculpatory evidence is that which “extrinsically tends to establish defendant’s innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching.” Id. at 298, 577 A.2d at 552.

Under the second provision of Rule 305(B), the court, in its discretion, may require the Commonwealth to disclose other evidence, provided the defendant files a motion for pretrial discovery. Before the court will exercise its discretion to permit disclosure, the defendant has the burden of proving that the evidence requested in discovery is material, reasonable and in the interest of justice. Commonwealth v. Novasak, 414 Pa.Super. 21, 33, 606 A.2d 477, 483 (1992), appeal denied, 532 Pa. 662, 616 A.2d 984 (1992). “Although exact predictions of what the informant might say cannot be expected, a reasonable possibility that the informant could give testimony that would tend to exonerate the defendant must be suggested.” Commonwealth v. Delligatti, 371 Pa.Super. 315, 325, 538 A.2d 34, 39 (1988), appeal denied, 520 Pa. 595, 552 A.2d 250 (1988). Mere assertion that the information might be helpful to the defense is insufficient to mandate disclosure. Id. Once the defendant proves that the requested evidence is material and the request is reasonable, the court, in the interest of fairness, must balance the public interest in protecting the flow of information against the accused’s right to prepare a defense. Id.

In this case, Jones has failed to meet even the threshold requirements of Rule 305(B)(1)(a). Jones claims that the Commonwealth should have disclosed the identity of the confidential informant because the informant was an eyewitness, who “could have been interviewed and potentially” (emphasis added) presented facts which may have caused the jury to question the detective’s and the agent’s identification testimony. At no time before or during trial, and nowhere in his brief, does Jones argue that the identity of the confidential informant should be disclosed because the informant has information that is exculpatory or would tend to exonerate him. Since Jones has failed to meet this threshold requirement of Rule 305(B)(1)(a), the Commonwealth did not have a mandatory duty to disclose the identity of the confidential informant.

Jones has also failed to meet the threshold requirements of Rule 305(B)(2)(a). This section is invoked when the defendant files a motion for pretrial discovery. Here, Jones failed to file a motion for pretrial discovery. Instead, Jones made a request for disclosure of the identity of the informant on the morning of trial, to which the Commonwealth objected as being untimely. N.T., November 4, 1991, at 13-14. In addition, Jones has failed to make the required showing that the identity of the informant was material to the preparation of his alibi defense. Jones merely asserts that the informant might have information that could be beneficial to his defense, by questioning the credibility of the detective’s and agent’s identification testimony. Mere assertions, however, are insufficient to support a motion for disclosure of information. Delligatti, supra. Moreover, the evidence adduced at trial does not suggest that the informant would have been able to bolster Jones’ case.

The Commonwealth requested that the identity of the informant remain confidential for the safety and protection of the informant and for future use in undercover investigations. The detective testified, in camera, that based on a phone conversation he had with the informant and the informant’s mother concerning an alleged assault by Jones, the informant had legitimate fears for his own safety and that those fears continued to the time of trial. In light of Jones’ failure to meet the threshold requirements of Rule 305(B) to justify disclosure, and the testimony on the confidential informant’s fear for his safety, we conclude that the trial court properly denied Jones’ request for disclosure of the identity of the confidential witness.

Jones’ second contention is that the trial court erred in failing to give a missing witness instruction, when the Commonwealth failed to call an eyewitness to the crime, specifically, the informant. A negative inference may be drawn from the failure of a party to call a particular witness who was in that party’s control. Delligatti, 371 Pa.Super. at 326, 538 A.2d at 40. However, an inference may not be drawn where there exists a satisfactory explanation as to why the party failed to call such witness. Id.

The record indicates that the Commonwealth established a genuine concern for the personal safety and protection of the informant. As a result, the trial court refused to disclose the identity of the informant. While the trial court concluded that there was no missing witness, the trial court could have easily found that the concern for the informant’s safety was a satisfactory explanation for failing to call the informant to testify. Thus, we conclude that the trial court properly denied Jones’ request for a missing witness instruction, since the Commonwealth provided a satisfactory explanation as to why the witness would not be called to testify.

Finding no merit in these first two contentions, we shall affirm the conviction.

Jones also claims that the trial court imposed an excessive and unreasonable sentence. Here, Jones is chailenging the discretionary aspects of sentencing to which there is no absolute right to appeal. This claim must be considered as a petition for permission to appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Initially, we note that Jones has complied with the basic procedural requirements of Tuladziecki by timely filing a notice of appeal and by complying with the dictates of Pa.R.A.P. 2116(b) and 2119(f). We must therefore determine whether Jones has established that a substantial question exists as to the appropriateness of his sentence. Only where a party can “articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised [should] the appellate court ... review the manner in which the trial court exercised its discretion.” Tuladziecki, 513 Pa. at 515, 522 A.2d at 20.

As the basis for his challenge to the sentence, Jones claims that the trial court failed to give sufficient consideration to certain mitigating factors. These factors include his 1) lack of a criminal history; 2) his youth (age 22); 3) potential; 4) lack of addictions to drugs or alcohol; 5) newly married status; and, 6) the fact that Jones did have “a good history of work-seeking.” Appellant’s Brief at 9-10. Our supreme court has held, however, that where a pre-sentence investigation report exists, it is presumed that the sentencing court was aware of any relevant information within the report, and that the sentencing court properly weighed any mitigating factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). In this case, since the sentencing court had access to Jones’ presentence investigation report, we conclude that the sentencing court appropriately weighed any mitigating factors. Moreover, this Court has determined that an appeal based on the argument that the sentencing court failed to give sufficient weight to certain mitigating factors does not raise a substantial question. Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990), appeal denied, 526 Pa. 629, 584 A.2d 312 (1990). Because Jones has failed to raise a substantial question, his challenge to the discretionary aspects of sentencing must fail.

Finally, Jones asserts that the sentencing court erred in applying the sentence enhancement provision, pursuant to 18 Pa.C.S. § 7508(a)(3)(ii). Jones argues that since his commission of the second offense occurred prior to his conviction for the first offense, the enhancement provision does not apply. We agree.

Section 7508(a)(3)(ii), prior to the 1990 amendment, reads in pertinent part:

§ 7508. Drug trafficking sentencing and penalties
(a) General rule.—Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(3) A person who is convicted of violating section 13(a)[,] (14) or (30) of The Controlled Substance, Drug, Device and Cosmetic Act ... shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(ii) upon the first conviction when the amount of the substance involved is at least ten grams and less than 100 grams; three years in prison and a fine of $15,00[0] ..., upon conviction for another offense subject to sentencing under this section: five years in prison and $30,000....

18 Pa.C.S. § 7508(a)(3)(ii) (emphasis added).

Generally, statutes that are penal in nature must be strictly construed. 1 Pa.C.S. § 1928(b). In addition, statutes must be interpreted to further the special purposes of the particular provision. 18 Pa.C.S. § 105. This particular recidivist statute, prior to its amendment in 1990, is silent on the question of whether the commission of the second offense must antedate the conviction on the first offense. Where “a statute admits of reasonably contradictory constructions^] the one most favorable to the accused should be applied.” 39 Am.Jur.2d § 4. See also Commonwealth v. Eyster, 401 Pa.Super. 477, 488, 585 A.2d 1027, 1033 (1991) (en banc), appeal denied, 529 Pa. 646, 602 A.2d 857 (1992).

In Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993), our supreme court construed another recidivist statute by examining the theory underlying habitual criminal legislation. There, the court adopted our long established articulation of the theory as follows:

It was not intended that the heavier penalty prescribed for the commission of a second offense should descend upon anyone, except the incorrigible one, who after being reproved, ‘still hardeneth his neck.’ If the heavier penalty prescribed for the second violation ... is visited upon the one who has not had the benefit of the reproof of a first conviction, then the purpose of the statute is lost.

Id. at 299, 621 A.2d at 992, quoting Commonwealth v. Sutton, 125 Pa.Super. 407, 413, 189 A. 556, 558 (1937) (emphasis added). “The point of sentence enhancement is to punish more severely offenders who have persevered in criminal activity.” Id. “[A] defendant should not be subject to a sentence of increased severity for recidivism unless he has had the benefit of the reproof of a first conviction prior to committing the second offense.” Id. 533 Pa. at 301, 621 A.2d at 993. See also Commonwealth v. Kane, 430 Pa.Super. 203, 633 A.2d 1210 (1993); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), affirmed, 533 Pa. 322, 623 A.2d 814 (1993) (per curiam); Eyster, supra.

Section 7508 was amended in December, 1990, to include the language, “if at the time of sentencing the defendant has been convicted of another drug trafficking offense.... ” In Commonwealth v. Williams, 431 Pa.Super. 167, 636 A.2d 183 (1993) (Cirillo, J., concurring and dissenting; Johnson, J., Kelly, J., dissenting), this Court, en banc, determined that the post-amendment version of the enhancement provision “clearly directs a sentencing court to determine, at the time of sentencing, whether the defendant has a previous conviction under the Controlled Substance, Drug, Device and Cosmetic Act, and if so, to impose the mandatory minimum sentence,” without regard to when the later offense occurred. Williams, at 169, 636 A.2d at 184-85. Under the pre-1990 version, however, this Court, en banc, interpreted “upon conviction for another offense” to mean that “[i]n order [for a defendant] to be subject to the recidivist penalty under this section, the prior conviction must precede the current offense for which the defendant is being sentenced.” Kane, supra, at 206, 633 A2d at 1211 (emphasis in original). “[F]or a prior conviction to serve as an enhancer ... the conviction must precede the commission of the later offense.” Id. at 206, 633 A.2d at 1211, quoting Dickerson, 404 Pa.Super. 249, 261, 590 A.2d 766, 772 (1991), affirmed, 533 Pa. 294, 621 A.2d 990 (1993).

The present case is also a pre-1990 amendment case, in which the prior conviction did not precede the commission of the second offense. Since Jones committed his second offense before being convicted for his first offense, the sentence enhancement provision is inapplicable. Here, prior to committing his second offense, Jones did not have the benefit of the reproof for his first conviction, as was contemplated by legislators in enacting recidivist statutes. Jones committed his second offense approximately one year before being convicted for the first offense. In light of the policy underlying recidivist statutes, in addition to the constitutionally required strict construction of penal statutes to favor the defendant, we find that the sentencing court erred in applying the enhancement provision.

Accordingly, the conviction is affirmed, the judgment of sentence is vacated and the case is remanded for resentencing consistent with this Opinion.

Judgment of sentence is vacated. Case is remanded for resentencing. Jurisdiction is relinquished.

DEL SOLE, J., files a Concurring and Dissenting Opinion.

DEL SOLE, Judge,

concurring and dissenting:

I join the Opinion of my colleague, Judge Johnson on the sentencing question. I disagree, however, with the majority’s remaining analysis which finds that the trial court did not err in dealing with questions involving the “alleged” confidential informant.

If the Commonwealth’s position, that this defendant committed the crime charged, is correct, then its argument that there was a confidential informant is disingenuous. The Commonwealth presented evidence that the “confidential informant” arranged the buy of drugs with the defendant as seller, was known by the defendant, was present at all times during the transaction, viewed and tested the quality of the drugs before the money was transferred, and was led to the drugs after the transfer. In addition, if the detectives testimony is to be believed, this defendant already threatened the “informant” raising serious doubt about the Commonwealth’s position that the “informant’s” identity must remain a secret.

However, if the defendant’s position is correct that he was not involved, the testimony of an eyewitness to the crime would be necessary for the defense.

While courts have acted to preserve the identity of confidential informants, that protection is generally associated with their involvement in providing probable cause for obtaining search warrants, or other aspects of the investigation process, not with participating in the commission of the crime charged. Our Supreme Court dealt with this issue in Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). There the Court held unanimously that even where a trial court gave a missing witness instruction, it was reversible error to not require disclosure of the informant’s identity since the “confidential informant” was an eyewitness witness to the crime. That is precisely the issue before us.

While there is a need to protect the identity of informants in certain situations, that need must give way to the demands of a fair trial. As the Court said in Carter:

The defect in this argument [disclosure of an informant’s identity terminates usefulness and may lead to retribution] of the Commonwealth is that it overlooks one fact of overwhelming importance. That fact is the complete lack of justification for reducing the stringency of fair-trial safeguards for certain defendants merely because of the type of crime with which they are charged....
... We do not believe, however, that our notions of jurisprudence permit the prosecution to be the arbiter of the value to the defense of the testimony of a prospective witness. Under an adversary system of justice, each side is deemed uniquely suited to determine whether the testimony of a particular witness will advance its cause.

427 Pa. at pp. 68 & 64, 233 A.2d at pp. 289 & 290.

For these reasons, I cannot join the Majority’s decision finding no error by the trial court in dealing with the identification of the Commonwealth’s material witness. At the very least, the trial court should have given the missing witness instruction requested by the defendant.


author: TAMILIA, Judge.

text:
    637 A.2d 1008
    Robert M. CARPENTER and Merle R. Kintigh, Individually and t/d/b/a Kintigh and Carpenter, a/k/a Kintigh and Carpenter Fine Homes v. FEDERAL INSURANCE COMPANY, Bankers Standard Insurance Co., Insurance Company of North America, Erie Insurance Co., Ralph Michael Costello and Naomi S. Costello, His Wife, Kintigh Construction, Inc., Cherly L. Micklow, Administratrix of the Estate of Paul Micklow, t/d/b/a Micklow Electric Company, Halo Lighting, A Division of McGraw-Edison Company, Atlantic Inland, Inc. and Middle Atlantic Electrical Inspections, Inc. (Two Cases) Appeal of ERIE INSURANCE COMPANY. Appeal of BANKERS STANDARD INSURANCE COMPANY and Insurance Company of North America.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed Feb. 24, 1994.

      Dennis J. Slyman, Greensburg, for Erie Ins.
    Peter J. Hoffman, Philadelphia, for Bankers Standard and Ins. Co. of North America.
    Robert P. Lightcap, Latrobe, for Carpenter and Kintigh.
    Dara A. Decourcy, Pittsburgh, for Halo Lighting.
    Richard F. Boyle, Greensburg, for Costello.
    Before TAMILIA, CERCONE and HESTER, JJ.
   TAMILIA, Judge.

Erie Insurance Company (Erie), Bankers Standard Insurance Company (Bankers) and the Insurance Company of North America (INA) appeal from the March 1, 1993 Order affirming the October 5, 1992 Order which held the appellant insurance companies owed insurance coverage and a defense to the plaintiffs in the underlying declaratory judgment action and appellees herein, Robert M. Carpenter and Merle R. Kintigh, t/d/b/a Kintigh and Carpenter a/k/a Kintigh and Carpenter Fine Homes. Plaintiffs were also awarded attorneys’ fees and costs.

Appellees sought a determination whether they were insured by the appellant insurance companies against the damages sought by Dr. and Mrs. R.M. Costello as a result of a January, 1986 fire which destroyed the home Kintigh and Carpenter had constructed for them in 1974. In the interest of judicial economy, we have set forth below the trial court’s recitation of the facts explaining the relationship among all concerned parties.

The plaintiffs in this [declaratory judgment] case are Robert M. Carpenter, Merle R. Kintigh, Kintigh and Carpenter, and Kintigh and Carpenter Fine Homes. Messrs. Carpenter and Kintigh were each engaged in the business of construction, and initially formed a partnership for the purpose of constructing residences in June of 1968. That partnership was variously known as Kintigh and Carpenter and/or Kintigh and Carpenter Fine Homes. In May, 1974, the partnership entered into agreements with Ralph and Naomi Costello to construct a home for them in Mount Pleasant Township, Westmoreland County, Pennsylvania, commencing construction in late May, 1974, and completing construction in November, 1975.
On September 29, 1978, the partnership formed Kintigh and Carpenter, Inc., a Pennsylvania Corporation, which continued the business of constructing homes, and transferred the assets, employees and contracts to construct in progress to the corporation. Essentially, Kintigh and Carpenter, Inc. was a continuation of the business of the partnership under the corporate form. On May 31, 1980, Carpenter withdrew from the corporation, selling his shares of stock, and the name of the corporation was changed to Kintigh Construction, Inc.
On January 8, 1986, the residence that Kintigh and Carpenter and/or Kintigh and Carpenter Fine Homes built for the Costellos was consumed by fire, being destroyed. On November 18, 1986, the Costellos filed suit, the underlying action to this matter, against Robert M. Carpenter and Merle R. Kintigh, individually and trading and doing business as Kintigh and Carpenter Fine Homes, a partnership, and Kintigh Construction, Inc., along with other defendants who are not directly involved in this Declaratory Judgment Action.
The matters raised in this Declaratory Judgment proceeding came about when the plaintiffs herein sought a defense and coverage regarding the claims made by the Costellos, and were denied defense coverage by the insurance companies here involved. A claim for coverage against Federal Insurance Company, the company which insured the partnership at the time that the home was constructed for the Costellos has been decided by a grant of a demurrer .... The Preliminary Objections in the nature of a demurrer filed by Bankers Standard Insurance Company (Bankers) and the Insurance Company of North America (INA) were dismissed at the same time____ The policies of insurance of Bankers, INA and Erie Insurance Company (Erie) remain issues of contention for our purposes.

(Slip Op., McCormick, Jr., J., 10/7/92, pp. 2-4.)

The Bankers’ manufacturers/contractors package policy at issue provided coverage from August 8, 1985 until August 8, 1986 and stated the named insured was R.M. Carpenter d/b/a Wineman and Carpenter, Inc. The INA excess blanket catastrophe liability coverage also extended from August 8, 1985 to August 8, 1986 and indicated the insured was R.M. Carpenter d/b/a Wineman and Carpenter, Inc. Erie’s policies, a business catastrophe liability policy and a comprehensive general liability policy, both having a coverage period from February 1, 1985 to February 1, 1986, named Kintigh Construction, Inc., as the insured. When the Costellos filed suit, Bankers and INA denied coverage and refused a defense, and Erie defended Kintigh Construction, Inc., under reserve but denied coverage. As a result of appellees’ declaratory judgment action, the court found, inter alia, coverage extended to Robert M. Carpenter as an individual, and the Erie policies necessarily provided coverage to Kintigh Construction, Inc.’s predecessors in interest. This appeal followed.

Bankers and INA argue the trial court erred by finding policies which listed “R.M. Carpenter d/b/a Wineman and Carpenter, Inc.” as the named insured extended coverage to Robert M. Carpenter as an individual, for his liability as a member of the partnership which built the Costello home, Kintigh and Carpenter a/k/a Kintigh and Carpenter Fine Homes. Appellants contend the language of the policies provides when a corporation is listed as a named insured, its officers and/or directors, such as Robert Carpenter, are individually covered only when acting on behalf of that corporation. Because Carpenter was not acting on behalf of Wine-man and Carpenter, Inc., with regard to the Costellos’ suit, appellants argue the trial court erred by finding Bankers and INA owed a duty to defend and indemnify. We agree.

The Banker’s declaration sheet listed the named insured as R.M. Carpenter, d/b/a Wineman and Carpenter, Inc. Directly below this information appeared: Named Insured Is: Corporation. INA’s policy likewise listed M. Carpenter, d/b/a Wine-man and Carpenter, Inc., as its named insured. This Court fails to find any basis for holding the wording identifying the named insured is ambiguous, capable of more than one meaning. Had the policies intended to include appellee Carpenter as an individual, those words would have been included in the policy sections identifying the insured. At the very least, the conjunction “and” would have been inserted. The named insured, as it stands, included Carpenter only with regard to his actions as an officer, shareholder and/or director of the corporation. Moreover, reading the policy in its entirety as mandated by Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983), and St. Paul Fire & Marine Ins. Co. v. U.S. Fire Ins. Co., 655 F.2d 521 (3rd Cir.1982), paying particular attention to the “who is covered” and “persons insured” clauses, supports a finding Carpenter’s coverage extended only to those actions he performed within the scope of his duties for Wineman and Carpenter. To expect Bankers and INA to extend coverage to Carpenter for any and all actions relating to his profession, however dated, is unreasonable and would expose Bankers and INA to an incalculable risk, not one summarily assumed in the issuance of a standard corporation liability policy. Further, there is no basis for the trial court’s finding an ambiguity existed ipso facto as a consequence of the conflicting interpretations by the parties involved.

Whether a trial court has correctly interpreted a writing, in ascertaining the legal duties which arise therefrom, is a question of law subject to review by this Court. N.E.A. Cross v. National Fuel Gas, 410 Pa.Super. 451, 600 A.2d 228 (1991), appeal denied, 530 Pa. 656, 608 A.2d 31 (1992). As the drafter of an insurance policy, it is incumbent upon the insurance company to delineate as precisely as possible the full extent of coverage. Techalloy Co. Inc. v. Reliance Ins. Co., 338 Pa.Super. 1, 487 A.2d 820 (1984). Where the words of an insurance policy are clear and unambiguous, they must be given their plain and ordinary meaning. Standard Venetian Blind and St. Paul Fire, supra. Courts should read policy provisions to avoid ambiguities, if possible, and not torture language to create them. Geist v. Niagara Fire Ins. Co., 173 Pa.Super. 587, 98 A.2d 223 (1953). We find Bankers and INA clearly and precisely identified their insureds to be Wineman and Carpenter, Inc., and any and all of those individuals acting on its behalf in their capacities as director, shareholder and/or officer. Accordingly, we vacate that portion of the Order holding Bankers and INA owed a duty to defend and indemnify R.M. Carpenter relating to the Costellos’ underlying suit. It follows Bankers’ and INA’s share of the attorneys fees and costs ($19,686.39) is likewise vacated as no evidence of bad faith on the part of the insurers challenging coverage has been established. See U.S. Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306 (3rd Cir.1985); Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635 (1981).

Appellant Erie presents five issues for this Court’s consideration beginning with the allegation the court erred by finding Kintigh Construction, Inc., was a successor corporation to Kintigh and Carpenter, Inc., which, in turn, was a successor in interest to the original partnership known as Kintigh and Carpenter, and/or Kintigh and Carpenter Fine Homes. By doing so, appellant argues, the court erroneously imposed upon Erie the duty to defend and provide coverage under its policy insuring Kintigh Construction, Inc., for Merle R. Kintigh, as an individual, for his actions while a partner in the original business which Erie did not insure. The question before this Court is simply whether the trial court erred by finding Kintigh Construction, Inc., established in 1980, was a successor in interest to the original partnership formed in 1968.

It is the general rule in this Commonwealth that the sale or transfer of a business’ assets to a successor entity does not automatically include the liabilities of the predecessor. Hill v. Trailmobile, Inc., 412 Pa.Super. 320, 603 A.2d 602 (1992); Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). However, like all rules, this tenet has its exceptions. The general rule of successor nonliability does not apply if, inter alia, the purchasing corporation is merely a continuation of the selling corporation. Hill, supra; Simmers v. American Cyanamid Corp., 394 Pa.Super. 464, 576 A.2d 376 (1990).

We agree with the trial court’s finding that with the exception of the entity’s transformation from a partnership to a corporation and then a corporation owned by Kintigh and Carpenter to a corporation owned solely by Kintigh, “[i]n all other respects, the entity retained its basic structure, purpose, assets and employees. As such, the partnership, transmuted into a corporation, is a continuation of the business entity, and the liabilities and potential liabilities of the partnership are deemed to have carried over to the corporation.” (Slip Op., McCormick, Jr., J., 10/5/92, p. 9.) Based on our review of the record, the 1980 transformation of Kintigh and Carpenter, Inc., into Kintigh Construction, Inc., was likewise a simple continuation of business as usual. Accordingly, the corporation insured by Erie was a continuation of the previous corporation and partnership and, as such, “was subject to the liabilities and potential liabilities of those predecessor entities.” (Slip Op., McCormick, Jr., J., 3/1/93, p. 8.) Erie contracted to insure Kintigh Construction Inc., against those liabilities. Therefore, the trial court did not err by finding successor liability on the part of Kintigh Construction, Inc., and imposing upon Erie the duties to defend and provide insurance coverage to the corporation and to the individuals Kintigh and Carpenter, in their capacities as officers, directors or shareholders, relating to the Costellos’ underlying suit for damages.

Next, Erie argues the trial court erred by awarding attorneys’ fees and costs after it found the insurer had acted in bad faith by failing to accept responsibility to defend and indemnify under its contract of insurance with Kintigh and Carpenter, Inc. We disagree.

The award of attorneys’ fees and costs is within the discretion of the trial court whose decision we will not disturb absent an abuse of discretion. First Pennsylvania v. National Union, 397 Pa.Super. 612, 580 A.2d 799 (1990). If a duty to defend is found on the part of an insurer, it is also the insurer’s responsibility to pay for attorneys’ fees and costs incurred by the insured in the underlying action. Id. In the Costellos’ suit, Erie provided a limited defense for Kintigh Construction, Inc., but refused to provide a defense for the corporation’s predecessors in interest or Kintigh and Carpenter as individuals. Having found Erie did indeed have a duty to defend and provide coverage for the aforementioned appellees, but refused to do so, an award of attorneys’ fees and costs relating to the Costello action was appropriate.

The matter of attorneys’ fees and costs relating to the declaratory judgment action provides a more difficult problem for now the issue of bad faith comes into play. See First Pennsylvania^ supra (an insured who is compelled to bring a declaratory judgment action to establish his insurer’s duty to defend an action brought by a third party may recover attorneys’ fees if the insurer has, in bad faith, refused to defend the action brought by the third party). At first blush, because our finding of liability on the part of Erie for the underlying action was predicated upon an exception to the general rule of nonliability for successor corporations, it could be found Erie had a reasonable basis upon which to challenge its responsibility to provide coverage for and indemnity to appellees. However, our reason in affirming the trial court’s award of fees and costs is grounded in Erie’s responsibility as an insurer, skilled in the drafting of insurance documents and presumably educated in areas of law relating to an insurer’s liability. Erie issued the policies in question on February 1, 1985, approximately five years after Kintigh and Carpenter, Inc., became Kintigh Construction, Inc. This is not so long a period of time that a reasonable underwriter would not have made inquiries into the corporation’s history in order to ascertain any possible pre-existing or future liabilities for activities occurring prior to the February 1, 1985 effective date. Moreover, we must consider Erie’s opportunity to issue a binder so as to allow a period of time during which to ascertain whether the potential insured, herein Kintigh Construction, Inc., was indeed an insurance risk Erie wished to undertake. We find Erie had a duty to investigate its potential policy holder and all attendant risks. Had Erie conducted a thorough investigation, it would have determined its potential successor liability for the actions of the corporation/partnership prior to it becoming Kintigh Construction, Inc. By not doing so and thereafter refusing to defend based on its challenge to successor liability, Erie forced the appellees’ collective hand to institute the action for declaratory judgment. To compel appellees to expend thousands of dollars to enforce their contractual right to a defense and indemnification would fly in the face of equity. Moreover, contrary to Erie’s contention it did represent the entity of Kintigh Construction, Inc., we agree with the trial court Erie’s representation, tempered by its decision to exclude its work product (see argument infra), amounted “to very little defense____” (Slip Op., McCormick, Jr., J., 3/1/93, p. 6.) Plus, this limited defense did not eliminate the remaining insureds’ need to retain private counsel to provide them with an adequate defense.

Based on these facts as well as all the testimony and evidence of record, the trial judge reasoned Erie exhibited bad faith by denying coverage to its insureds and forcing a declaratory judgment action. We find no basis upon which to disturb this ruling.

Next, Erie argues the court erred by finding the work product exclusion included in its policies was inapplicable to this case. The exclusion provided there would be no coverage for

(15) property damage to your products arising out of the products or any part of them.
(16) property damage to work performed by you or on your behalf arising out of the work or any part of it including materials, parts or equipment furnished.

Paragraph 16, however, was deleted from the basic policy by an endorsement titled “Broad Form Property Damage Liability Coverage, and replaced by the following exclusionary clause:

(3) [We do not cover] property damage to work performed by you arising out of the work or any portion of it, or out of materials, parts or equipment furnished but only with respect to (a) the Completed Operations Hazard and (b) any classification stated on the Declarations as “including completed operations.”

Erie contends these clauses preclude liability on its behalf for damage to the Costellos’ house which occurred as a result of a light fixture which was allegedly defectively installed by a subcontractor.

The trial court reasoned “the purpose of a work products exclusion in a commercial liability insurance policy is to distribute the risks contemplated in the production or construction of a product” so that “if the product itself is flawed because of the failure of the insured [herein the appellee builders] in the work process, the insured must repair or replace it, but if the product’s failure causes injury or damage to third parties, the insurer [herein Erie] is responsible for indemnification of the loss.” (Slip Op., 10/5/92, p. 11.) Based on this reasoning, the trial court found the facts before it presented the exact situation wherein the work products exclusion clause would not apply. If the insured contractor or any subcontractor had been required to repair or replace some part of the Costello home because of negligence in the original construction, the work product exclusion would have applied. However, because the court found the damages to the Costello home were damages to the property of third parties as contemplated in the policy coverage as a completed operation, the court ruled the work product exclusion was inapplicable and Erie was responsible to compensate the Costellos for their loss.

The reason for work product exclusions is somewhat analogous to exclusions for bailment or care, custody and control situations which is clearly explained in Slate Construction Co. v. Bituminous Casualty Corp., 228 Pa.Super. 1, 323 A.2d 141 (1974).

With respect to the exclusion from coverage of property damage to property in the “care, custody or control” of the insured, one commentator has noted: “There are several different reasons for such an exclusion in the policy. Fundamentally, were it not for the exclusion there would be a greater moral hazard as far as the insurance company is concerned. It also eliminates the possibility of the insured making the insurance company a guarantor of its workmanship.
“The liability policy contemplates payment generally in situations where the ordinary degree of care is the measure of liability. The premium is determined on that basis. Liability for damage to property in charge of or in the care, custody or control of the insured where there is a bailment is controlled by different rules of law, and as a practical result the hazard is greatly increased.
“There is usually some form of insurance available to cover injury to or destruction of the excluded property at a higher premium which is commensurate with the risk. The exclusion is to eliminate securing the same coverage under a liability policy at cheaper rates.”

Id. at 5-6, 323 A.2d at 144, quoting Cooke, Jr., Care, Custody or Control Exclusions, 1959 Ins.L.J. 7, 9.

Furthermore, should the work product exclusion be found applicable as to the contractor, exclusionary clause three did not address the potential liability of any subcontractor. The Costellos’ complaint averred their damage was caused by work completed by a subcontractor whose work product, according to clause 3, was NOT excluded from coverage. The clause in and of itself supports a finding the contested endorsement was not intended to exclude the work of the subcontractors employed by the partnership in the construction of the Costello home. We agree with the trial court the work product exclusionary clause was inapplicable to the factual scenario with which we are faced.

Having found each of appellant/Erie’s arguments devoid of merit, we affirm that portion of the March 1, 1993 Order pertaining to Erie Insurance Company.

Based on the foregoing reasons of law and fact, we vacate that portion of the March 1, 1993 Order holding appellants Bankers and INA owed a duty to defend and provide coverage for Robert Carpenter as an individual. Attorneys fees and costs relating to plaintiffs’ declaratory judgment action and charged to appellants Bankers and INA are likewise vacated. The Order as it relates to appellant Erie is affirmed in its entirety.

Jurisdiction relinquished.

      . These appeals, No. 00552 Pittsburgh, 1993 (Erie), and No. 00602 Pittsburgh, 1993 (Bankers and INA), were listed and heard consecutively before a panel of this Court and emanate from the same Court of Common Pleas case, No. 1506 of 1990. Accordingly, in the interest of judicial economy, a single opinion addressing all issues will be penned.

      . The court awarded Kintigh and Carpenter fees and costs related to the underlying action brought by the Costellos ($20,218.50) and those relating to the declaratory judgment action ($19,154.28). Erie was ordered responsible for one-half of these amounts ($19,686.39) while appellants Bankers and INA shouldered the other half.

      . See footnote 2.

      . Erie entered its appearance for the corporation of Kintigh Construction, but provided a defense limited by a work product exclusionary clause.

      . There is no indication in appellant’s brief if Erie insured appellees prior to this date.

      . See footnote 2. Although Bankers and INA have been relieved of their obligation to pay attorneys’ fees and costs, Erie remains liable for its 50 per cent share equaling $19,686.39.

      . The words "or on your behalf,” included in the original exclusion clause (16), were omitted from the work product exclusion contained in exclusion (3). By this omission, the work product exclusion, if otherwise applicable, would be limited to the contractor’s work. This becomes critical as the Costellos' allegation of negligent installation is levied at the subcontractors.


author: CERCONE, Judge:

text:
    637 A.2d 1015
    COMMONWEALTH of Pennsylvania v. Michael RIVERA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1994.
    Filed Feb. 24, 1994.
    Aaron C. Finestone, Philadelphia, for appellant.

      Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com. appellee.
    Before BECK, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after appellant, Michael Rivera, entered an open guilty plea to third degree murder, aggravated assault, criminal conspiracy, possession of an instrument of crime generally, and carrying firearms on a public street or public property in Philadelphia. We deny permission to appeal.

The trial court has aptly summarized the facts underlying this appeal in the following manner:

The defendant’s plea stems from his involvement in the shooting death of Susan Largiolli on October 4, 1991. The defendant, along with co-defendants Hector Arzuaga and Antonio Rodriguez, arrived at the decedent’s home at 9181 Academy Road in the City of Philadelphia. The defendant was carrying a 9mm handgun and Mr. Rodriguez was carrying a .357 Magnum. The defendants argued with some occupants of the home, including the decedent, Leanne Gross, Gabriel Navaro, James Dinkins, and Carlos Greene. They all observed Mr. Arzuaga yell, “bust them, bust them,” at which point the defendant and Mr. Rodriguez pulled out their guns, but the clip from the defendant’s gun fell to the ground. Leanne Gross and Carlos Greene were running away when they heard a shot. The decedent was pronounced dead at 1:52 A.M. on October 4, 1991, from a bullet wound to the back.

Trial court opinion filed August 25, 1993 at 2-3 (citations omitted).

Appellant entered the above referenced open guilty pleas on August 12, 1992. On July 22, 1993, the lower court sentenced appellant to serve seven (7) to fifteen (15) years incarceration on the murder charge with concurrent terms of five (5) to ten (10) years for aggravated assault, two (2) to four (4) years for conspiracy, and one (1) to two (2) years for possession of an instrument of crime. No sentence was imposed on the charge of carrying firearms on a public street in Philadelphia. Appellant timely filed a motion to modify sentence, which the lower court denied. The instant timely appeal followed, raising a single issue for our consideration: whether the lower court committed an abuse of discretion by imposing an aggregate sentence of seven to fifteen years when appellant pled guilty, cooperated in the prosecution of his co-conspirators, was not the shooter and had an unfortunate social history which included a pattern of substance abuse.

Appellant does not contend that the sentence meted out to him by the trial court is illegal. Rather, he challenges the discretionary aspects of his sentence. Appellant’s brief contains a separate statement attempting to demonstrate that a substantial question exists regarding the appropriateness of the sentence imposed as required by the Pennsylvania Rules of Appellate Procedure. See 42 Pa.C.S.A. § 9781(b); Pa. R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987). This court “will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id.

The essence of appellant’s complaint is that the sentence imposed in this case was excessive because the lower court did not properly take into account certain factors such as appellant’s cooperation with law enforcement officers, his willingness to acknowledge his culpability by pleading guilty, the fact that he did not himself actually shoot the victim, and his unfortunate personal history. However, in Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc), this court determined that an allegation that the sentencing court “failed to consider” or “did not adequately consider” various factors is, in effect, a request for this court to substitute its judgment for that of the lower court in fashioning appellant’s sentence. Such an allegation does not raise a substantial question that the sentence imposed was in fact inappropriate. Id. at 326, 562 A.2d at 1388.

The Williams court reasoned that allegations of this type, in the absence of contrary allegations, concede that the lower court was provided with adequate information on which to base its sentencing decision. Id. This is particularly so where a pre-sentence report exists. Having such information in its possession, Pennsylvania law presumes that .the sentencing court will act properly. Id., (citing Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988) (“It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand”)). The record in this case clearly indicates that the lower court possessed and consulted a pre-sentence report.

Appellant’s allegations in the instant case are similar to those which were presented to the court in Williams. Appellant has not contended that the sentencing court relied upon inadequate information. Rather, appellant argues that the lower court inappropriately applied correct information when imposing sentence. Since appellant is effectively asking this court to substitute our judgment for that of the lower court, he has failed to present us with a substantial question which will allow us to review the discretionary aspects of his sentence. As such, we must disallow the appeal. See also Commonwealth v. Lopez, 426 Pa.Super. 625, 627 A.2d 1229 (1993) (allegation that sentencing court failed to attach sufficient weight to mitigating factors of record does not present a substantial question); Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992), allocatur denied, 535 Pa. 615, 629 A.2d 1377 (1993) (arguments that sentencing court improperly weighed various legitimate factors does not raise a substantial question).

Appellant’s petition for permission to appeal is denied.

      . 18 Pa.C.S.A. § 2502(c).

      . Id. § 2702(a)(1).

      . Id. § 903.

      . Id. § 907.

      . Id. § 6108.


author: JOHNSON, Judge:

text:
    637 A.2d 1017
    Brian DOUGHERTY, v. David McLAUGHLIN, Appellant. Brian DOUGHERTY, Appellant, v. David McLAUGHLIN.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1993.
    Filed Feb. 17, 1994.

      Thomas F. Weis, Pittsburgh, for McLaughlin.
    Greg T. Kinskey, Pittsburgh, for Dougherty.
    Before ROWLEY, President Judge, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

In this case, we are asked to determine whether the trial court properly granted Brian Dougherty’s motion for additur, increasing the jury’s damage award, when the trial court determined that the jury’s verdict was inadequate. Since we conclude that, where a jury renders an inadequate verdict, the proper remedy is the grant of a new trial, we vacate and remand this matter for a new trial.

Dougherty commenced this action against David McLaughlin to recover damages for personal injuries resulting from an automobile accident. The jury rendered a verdict in favor of Dougherty. He filed post-trial motions requesting additur to the damages awarded or, alternatively, a new trial. The trial court granted Dougherty’s motion for additur, but denied his motion for a new trial. The court then entered judgment which reflected the increased damages awarded. Both parties appealed.

The trial court summarized the facts as follows:

On January 25, 1990, defendant, David McLaughlin (McLaughlin), was operating his 1986 Ford Escort, in which plaintiff, Brian Dougherty (Dougherty), was a front seat passenger. At approximately 3:30 a.m., [McLaughlin] lost control of the vehicle and collided with a tree, injuring all three occupants of the automobile.
Police Officer John Mackey arrived at the scene approximately ten minutes after the accident and had the victims transported by ambulance to St. Clair Hospital. Officer Mackey testified that all three smelled of alcohol; a blood alcohol test taken at the hospital revealed that [McLaughlin] had a .21 blood alcohol level.
On March 3, 1990, [Dougherty] filed a complaint in civil action alleging [McLaughlin]’s negligent operation of his vehicle caused [Dougherty] to sustain serious injuries and damages. A four day jury trial was held beginning November 13, 1992.
[Dougherty] presented uncontradicted medical evidence that his two days hospitalization included treatment for injuries to the face, neck and head resulting in permanent scarring and nerve damage, a fractured rib, whiplash, a concussion, and torn shoulder ligaments. Initial surgery consisted of debridement of lacerations and injections at the wound sites, followed by trimming of the skin tissue. Three additional scar revisions were performed on [Dougherty] in an attempt to make the scars appear less obvious.
The jury returned a verdict in favor of [Dougherty] in the amount of $3,279, awarding damages solely for the cost of unreimbursed hospital care, thereby excluding damages for pain and suffering. Pursuant to 42 Pa.C.S. setion [sic] 8553, the court molded the award to $1,836.24 to reflect the jury’s assignment of 44% comparative negligence to [Dougherty]. [Dougherty]’s post-trial motion was granted, increasing the award to $43,279.00 in order to compensate [Dougherty] for pain and suffering, inconvenience, embarrassment and disfigurement. The verdict was molded, and judgment was entered for [Dougherty] in the amount of $24,236.24.

Trial Court Opinion, dated July 8, 1993, at 1-2.

McLaughlin filed an appeal. Dougherty filed a cross appeal. McLaughlin contends that the trial court’s use of additur denied him his constitutional right to a jury trial. Dougherty maintains that the trial court properly granted his request for additur. Alternatively, Dougherty contends that if we find the trial court’s use of additur improper, the trial court erred in denying his motion for a new trial where uncontroverted evidence of pain, suffering, inconvenience, embarrassment and permanent scarring was presented and the jury only awarded medical expenses. In addition, Dougherty argues that the trial court erred in: (1) refusing to charge on punitive damages; (2) allowing the issue of comparative negligence to go to the jury; (3) failing to direct a verdict in favor of Dougherty; (4) admitting evidence of the group’s alcohol consumption; and, (5) admitting the testimony of McLaughlin’s economic expert.

We must first determine if the trial court properly granted Dougherty’s motion for additur. Previously, when faced with a question of the propriety of additur, our supreme court stated that “[a] court does not have power to add to a verdict it deems inadequate in order to avoid granting a new trial.” R.L.J. Riling, Inc., v. Schuck et ux., 346 Pa. 169, 171, 29 A.2d 693, 694 (1943). The Schuck court relied upon the reasoning of this Court in Lemon v. Campbell, 136 Pa.Super. 370, 375, 7 A.2d 643, 645 (1939), in which we explained the effect of additur. By granting additur, the trial court sets aside the jury’s verdict and renders its own verdict. Lemon, supra.

McLaughlin claims that the trial court erred in granting additur. However, Dougherty maintains that the grant of additur was proper, citing Gaspero v. Gentile, 160 Pa.Super. 276, 50 A.2d 754 (1947). While Gaspero does say that a court may revise a verdict upward, we find it to be inapposite. In Gaspero, the plaintiff issued his writ of replevin, filing an affidavit of value stating the goods were worth $500. Following trial, the jury rendered a verdict in favor of the defendant, but awarded damages of only $239. The defendant appealed. On appeal, this Court held that the plaintiff was bound by his affidavit of value. Therefore, in the event of a verdict for the defendant on the right of possession, the jury was required to fix the defendant’s damages at $500. Accordingly, we increased the defendant’s damages to $500 and entered judgment.

Here, the jury was not required to fix Dougherty’s damages at a set amount. Damages were disputed. Therefore, Gaspero does not support the trial court’s grant of additur.

In this case, the trial court determined that the jury’s verdict was inadequate. By granting additur, the trial court substituted an increased damage award for the verdict of the jury. See Lemon, supra. We find that the trial court was without authority to grant additur to remedy the inadequacy of the jury’s verdict. Therefore, we vacate the judgment entered which reflected the grant of additur.

Next, we focus upon Dougherty’s claim on cross appeal that in the event this Court finds the trial court’s grant of additur improper, the trial court erred in denying his motion for a new trial based on the jury’s failure to award him damages for his pain, suffering, inconvenience, embarrassment, and permanent scarring. Whether a new trial should be granted on the grounds of inadequacy of damages is a matter within the trial court’s discretion. Krivijanski v. Union R. Co., 357 Pa.Super. 196, 515 A.2d 933 (1986). The purpose of appellate review is to determine if the trial court abused its discretion. Id.

In Morris v. Peekyno, 202 Pa.Super. 490, 492, 198 A.2d 396, 397 (1964), this Court, quoting 15 Am.Jur., Damages, § 231, stated:

As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or where the award is so inadequate that it should not be permitted to stand. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more. [Emphasis added].

Morris has been cited with approval in Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982).

Tort victims must be compensated for all that they lose and all that they suffer. Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). Where a jury awards a plaintiff his medical expenses, they make a finding that the expenses were related to the defendant’s actions in injuring the plaintiff. Catalano v. Bujak, 148 Pa.Cmwlth. 269, 611 A.2d 314 (1992), alloc. granted, 534 Pa. 642, 626 A.2d 1159 (1993). However, by not awarding any pain and suffering, the jury also makes a finding that the plaintiff did not suffer as a result of his injuries and subsequent surgery. Id. Such findings are inherently inconsistent. Id.

Here, the trial court properly instructed the jurors that if they found McLaughlin to be liable to Dougherty, they must compensate Dougherty for all physical and financial injury sustained as a result of the accident. N.T., November 13-16, 1992, at 246. Further, the court listed the items that must be included in the determination of damages, including pain, suffering, embarrassment, and disfigurement. Id. at 247.

The nature of Dougherty’s injuries indicate at least some pain and suffering. The jury’s failure to award any damages for pain and suffering is clearly inconsistent with its award of medical expenses alone and resulted in an inadequate verdict. The trial court recognized that the jurors had disregarded or misapprehended the court’s instructions. See Trial Court Opinion, supra at 4-5. In an attempt to remedy the inadequate verdict, the court granted Dougherty’s motion for additur, though it denied his motion for a new trial. As we concluded above, the court had no authority to grant additur. Consequently, we are constrained to conclude that a new trial is necessary and that it was an abuse of discretion for the trial court to refuse to grant a new trial where, after disregarding court instructions, the jury renders an inadequate verdict.

In view of our disposition, we deem it unnecessary to address the remaining issues which Dougherty raises in his cross appeal.

Accordingly, the judgment entered is vacated, and the action is remanded for a new trial.


author: POPOVICH, Judge:

text:
    637 A.2d 1020
    RESOLUTION TRUST CORPORATION as Conservator for Atlantic Financial Savings, F.A., Appellee, v. Cecil J. BUCHANAN and Lela N. Buchanan, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed March 1, 1994.

      James A. Swetz, Stroudsburg, for appellants.
    Mark J. Conway, Blue Bell, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal from the May 26,1993, order of the Court of Common Pleas of Monroe County granting the Appellee/Plaintiff s motion for summary judgment and denying the Appellants/Defendants’ motion for summary judgment. We affirm.

As this Court has recently stated in Jones v. General Motors Corp., 428 Pa.Super. 544, 631 A.2d 665 (1993):

... a motion for summary judgment is properly granted only where “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 judgment as a matter of law.” Pa.R.C.P. 1035(b). In reviewing a motion for summary judgment, the trial court “must examine the record in the light most favorable to the non-moving party.” [Citation omitted]

Applying this standard of review, the relevant facts are as follows: On February 25, 1989, the Appellants executed a promissory note for a $1,000,000.00 loan extended to them by Atlantic First Federal (AFF). The loan was secured by a first lien mortgage on lots 8, 9, and 10 situated in Monroe County, as evidenced by a mortgage executed by the Appellants on the same day as the promissory note.

With AFF’s insolvency on January 11, 1990, Resolution Trust Corporation (RTC) was appointed as receiver for AFF, which became a newly-chartered federal savings association known as Atlantic Financial Savings (AFS).

On November 14, 1991, RTC entered a judgment by confession (amounting to $1,077,456.59, plus future costs) for the Appellants’ default on October 7, 1991. Thereafter, on January 22, 1993, RTC filed a complaint to conform confessed judgment pursuant to 41 P.S. § 407 (hereinafter “Act 6”) and Pa.R.Civ.P. 2981 et seq. Further, on March 29, 1993, RTC filed a motion for summary judgment alleging that there were no issues of material fact; it had provided the Appellants with proper notice per 35 P.S. § 1680.401c et seq. (hereinafter “Act 91”); and it should be granted summary judgment as a matter of law.

In response, the Appellants filed a cross-motion for summary judgment averring that RTC had failed to comply with the requirements of Act 91, in that it neither provided notice prior to confessing judgment nor did it designate any consumer credit counseling agencies in Monroe County.

After a review of the pleadings, the court entered an order granting RTC’s motion for summary judgment but denied the Appellants’ motion seeking similar relief. This appeal followed and raises two issues for our consideration: the court erred in entering judgment in favor of the Plaintiff “where it failed to comply with the notice requirements- of Act 91 prior to confessing judgment originally and where the notice sent subsequently fail[ed] to contain a counseling agency within the confines of [Monroe] ... county where the mortgagors] reside[d].” See Appellants’ Brief at 5.

More particularly, as to Act 91 notice being delayed until after confessing judgment, the Appellants argued that the failure to comply with such a condition precedent rendered the court without “jurisdiction” to act upon RTC’s motion for summary judgment; a fortiori, argued the Appellants, the judgment entered on November 14, 1991, was a nullity. Id. at 9 & n. 1. We find the argument to be disingenuous.

Our Supreme Court, in Bennett v. Seave, 520 Pa. 431, 554 A.2d 886 (1989), was confronted with a class action, suit by the Appellees/Bennett and Porter against the Appellant/Mid-Penn Consumer Discount Co. for alleged violations of the notice requirements of Act 6 and Act 91, the latter of which was enacted in 1983 to establish an emergency mortgage assistance program to prevent the widespread mortgage foreclosures on residential properties which had resulted from default caused by circumstances beyond the owners’ control. Id.

With regard to the Appellees, their loans had been secured by notes and mortgages on the debtors’ personalty and residential property. In the case of Bennett, for example, the Appellant filed a complaint seeking recovery of the amount due from “all assets owned by the debtor other than the residential property.” As for Porter, the property which secured his debt was described “as household contents and ... his residential property.”

When Porter defaulted, a notice of intention to sue on the note was identical to that sent to Bennett. No evidence appeared in the record indicating that other legal proceedings had been initiated to collect the outstanding balance due on Porter’s loan.

The trial court held that the notices required under Act 6 and Act 91 were unnecessary to collect on personal consumer loans by assumpsit actions on a note which did not involve mortgage foreclosure. This Court reversed, holding that failure to comply with the notice requirements under either Acts would preclude Mid-Penn from instituting action against any assets of the debtors. Our Supreme Court disagreed and reinstated the trial court’s initial ruling. In the course of doing so, the Court wrote:

... Act 6 and Act 91 require that notice must be given before any legal action may be commenced to recover under a “mortgage obligation”, the crucial inquiry becomes what is encompassed within the definition of a mortgage obligation.
Act 6 defines a “residential mortgage” to include:
an obligation to pay a sum of money in an original bona fide principal amount of fifty thousand dollars ($50,000) or less, evidenced by a security document and secured by a lien upon real property located within the Commonwealth containing two or fewer residential units or on which two or fewer residential units are to be constructed and shall include such an obligation on a residential condominium unit.
41 P.S. § 101 (Emphasis added). Act 91 defines the term “mortgage” for purposes of the act as “... any obligation evidenced by a security document and secured by a lien upon real property located within the Commonwealth including, but not limited to, a deed of trust and land sale agreement.” 35 P.S. § 1680.401(c)(a) (Emphasis added).
While it is clear from the comparable definitions of mortgage that the mortgages executed by the Appellees are -within the scope of the acts, it does not necessarily follow that the notice provisions are applicable to legal actions brought under a promissory note executed contemporaneously with the mortgage documents when recovery is limited to a separate security interest in personalty. The debts assumed by the Appellees were secured both by granting a security interest in household goods and by executing a mortgage on residential property.
‡ ‡ ‡ ‡ ‡
Although we agree that “obligation” refers to the debt, we must reject the Superior Court’s analysis that every security interest created in connection with a consumer loan transaction is a “mortgage obligation” for purposes of the Act simply because real property is pledged along with additional collateral to secure the underlying debt. This analysis collapses the two separate transactions—the one which pledges the personalty as security and the one which creates a lien upon real property. The mortgage documents executed by the Appellees are obligations “evidenced by a security document and secured by a lien upon real property. The notes which were also executed evidence the debt, but do not of themselves create a lien upon real property.
The purpose behind the notice provisions of both acts [6 and 91] was not to require a lender to advise the borrower of an intention to accelerate the maturity of a residential mortgage obligation when the legal action initiated is not based upon the mortgage document. The comprehensive statutory scheme demonstrates an extensive program designed to avoid mortgage foreclosures.
A borrower may pledge multiple forms of collateral to secure a debt—the protections afforded by Act 6 and Act 91 are statutorily limited to security extended by the execution of a residential mortgage.

520 Pa. at 441-43, 554 A.2d at 891-92 (Emphasis added in part; footnote omitted).

With Bennett in mind, we observe that the Appellants at bar executed a “Demand Promissory Note” evidencing a $1,000,-000.00 Loan from RTC’s predecessor containing a provision granting it a “security interest/lien” not only by way of any other security agreement or document granting AFF any rights in any of the Appellants’ property for the purpose of securing the liabilities, but “in all property of such” Appellants which at any time AFF shall have in its possession. Said lien and security interest were independent of any right of set-off which AFF might have.

Additionally, the Note provided for a:

WARRANT OF ATTORNEY: RECOGNIZING THAT [THE APPELLANTS ARE] WAIVING CERTAIN IMPORTANT RIGHTS, INCLUDING THE RIGHT OF PREJUDGMENT NOTICE AND HEARING, EACH MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT OR AT ANY TIME THEREAFTER, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST SUCH MAKER FOR SUCH SUMS AS ARE DUE ON THE LIABILITIES....

As further security for the loan, AFF obtained a mortgage of even date executed by the Appellants, which reads in relevant part:

In consideration of the indebtedness evidenced by the obligation and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Mortgagor, and as security for payment to Mortgagee of the principal amount of the obligation with interest thereon, and all other sums provided for in the obligation and in this Mortgage and in the Loan Documents hereinafter referred to, according to their respective terms and conditions, and for the performance of the agreements, conditions, covenants, provisions and stipulations contained herein and therein, and in all other agreements and instruments made and given by Mortgagor to Mortgagee in connection with the indebtedness evidenced by the obligation ..., Mortgagor has granted, conveyed, bargained, sold, aliened, enfeoffed, released, confirmed and mortgaged, and by these presents does hereby grant, convey, bargain, sell, alien, enfeoff, release, confirm and mortgage unto Mortgagee, its successors and assigns, all that certain real estate described in Exhibit “A” attached hereto (the “mortgaged real estate”), which is hereby made a part hereof and incorporated herein by reference.
TOGETHER WITH all Mortgagor’s right, title and interest, now owned or hereafter acquired, in:
(i) Any and all buildings ... improvements, hereditaments and appurtenances mortgaged and intended so to be, or in any way appertaining thereto----
All of the above-mentioned real estate, buildings, improvements, fixtures, equipment, tenements, hereditaments and appurtenances ... and other property interests are collectively referred to herein as the “Mortgaged Premises.”

Attached as Exhibit “A” to the mortgage were metes and bounds descriptions of Lots 8, 9 and 10, none of which listed the erection of any building/dwelling thereon.

We make mention of this given the fact that the Appellants refer in their pleadings to the Appellee presently seeking satisfaction of the amount due and owing under the confession of judgment by execution upon their personal home. Other than such self-serving statement by the Appellants, we have no indication of record that the Appellee is attempting to execute on the Appellants’ home to satisfy the debt.

In fact, the record discloses that the Appellee is no further along the procedural course toward ultimate execution on its judgment than its attempt to conform the confessed judgment pursuant to Pa.R.Civ.P. 2981 et seq. More specifically, we would observe that Act 91’s “notice” requirement, to be sent in advance of “commencing] any legal action ... to recover under [any] ... obligation” by a mortgagee, shall not be applicable if:

(1) The property securing the mortgage is not the principal residence of the mortgagor.
(2) The property securing the mortgage is not a one or two-family owner-occupied residence.
(3) The mortgage is insured by the Federal Housing Administration under Title II of the National Housing Act (12 U.S.C. §§ 1707-1715^18).

35 P.S. § 1680.401c(a)(l)-(3).

Viewed in light of the preceding, there is no indication in the Defendants’ pleadings or supporting briefs that the subject property is the place upon which rests their principal residence or that they are the owners-occupants of the property upon which is erected a one or two-family residence. Id.; Hawkins v. Pennsylvania Housing Finance Agency, 141 Pa. Cmwlth. 283, 595 A.2d 712, 714 (1991); Harris Savings Association v. Eshleman, 40 D. & C.3d 480, 486 (Lancaster Cty., 1984).

Accordingly, because the Defendants did not satisfy the preliminary eligibility requirements of Act 91, they were not entitled to receive the protections of Act 91. Id.

Therefore, for the reasons herein stated, we affirm the order appealed.

Order affirmed.

      . The Resolution Trust Corporation (RTC), the Plaintiff herein, was appointed receiver for Atlantic Financial Federal (AFF), a thrift institution declared insolvent by the Director of the Office of Thrift Supervision, Department of Treasury. AFF was succeeded in interest by Atlantic Financial Savings (AFS), a newly chartered federal savings association, which acquired certain assets and accepted the transfer of certain liabilities of AFF.
      Following its appointment as receiver, RTS entered into a Purchase and Assumption Agreement with AFS and took possession of all of the assets of AFF in accordance with applicable law.

      . A praecipe to enter judgment in favor of the Appellee/Plaintiff and against the Appellants/Defendants for the sum of $1,077,456.00 plus fees and expenses was filed June 4, 1993.

      . The Appellants/Defendants consist of Cecil J. and Lela N. Buchanan.

      . Act 6 was promulgated to delay mortgage foreclosure for those individuals needing credit counseling to extricate themselves from their financial shortcomings and begin the road back to financial solvency with payment to their mortgagee. Act 91, on the other hand, avails state funding to those who qualify for the same during a financial crunch brought on by means beyond the control of the mortgagor.

      . In reading Act 91, it is evident that its purpose is to provide "private homes and rental units" to low and moderate income families in need of housing.” See 35 P.S. §§ 1680.102, 1680.102a (Emphasis added). Such does not appear to be the case with the Appellants.

      . To the extent that the Appellants assail the court’s denial of their cross-motion for summary judgment, issued under the same order which granted the Appellee’s motion for summary judgment, we find that it is appealable since it ends the litigation by placing the Appellants "out of court”. See Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).
      However, inasmuch as the dual appeals are inextricably intertwined factually and legally, disposition in favor of the Appellee necessitates a denial of the Appellants’ appeal in the absence of a genuine issue of material fact and the Appellee’s entitlement to relief as a matter of law. See Jones v. General Motors Corp., 428 Pa.Super. 544, 631 A.2d 665 (1993).