text:
    473 A.2d 1047
    COMMONWEALTH of Pennsylvania v. Kevin Joseph CADEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed March 9, 1984.

      Howard J. Gallagher, III, Assistant Public Defender, Media, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   HESTER, Judge:

On February 9, 1982, appellant was adjudged guilty of burglary in a non-jury trial by the Court of Common Pleas of Delaware County. Charges of criminal trespass, theft by unlawful taking, and criminal mischief merged into the aforesaid conviction. Following the denial of post-verdict motions, appellant filed this appeal.

Three issues are raised herein: first, whether the trial court erred in denying appellant’s motion to dismiss for double jeopardy; second, whether appellant’s motion to dismiss under Rule 1100 was properly denied; and third, whether the trial court properly refused appellant’s demurrer. After reviewing the record, we conclude that all the contentions are lacking in merit. Hence, we affirm.

The facts which led to the prosecution in this case are as follows. On May 11, 1981, at 11:39 p.m., police in Delaware County were notified that a flatbed truck had been stolen from Blenheim Motors, Inc. Approximately three and one-half hours later, appellant was apprehended by Montgomery County police while he was operating said vehicle. The police discovered that appellant was also in possession of a stolen farm tractor which he was transporting on the flatbed truck. In addition to the above-cited Delaware County charges, appellant was also charged by the Montgomery authorities with two counts of theft by receiving stolen property, unauthorized use of a motor vehicle, and possession of a controlled substance. On October 19, 1981, in Montgomery County, appellant entered a plea of guilty to one count of receiving stolen property and possession of a controlled substance. The remaining counts were dismissed.

Herein, appellant contends that the Commonwealth purposely engaged in piecemeal litigation, thereby subjecting him to repeated prosecutions for offenses stemming from the same criminal episode. In light of the prohibition of double jeopardy, appellant argues that his Montgomery County conviction barred any further prosecution in Delaware County.

Appellant’s argument is premised upon 18 Pa.C.S.A. § 110 which states in relevant part:

“Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in Section 109 of this title ... and the subsequent prosecution is for:
(1) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court ... or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil____”

Preliminarily, we note that appellant’s Montgomery County guilty plea does constitute a conviction for purposes of the above statute. See 18 Pa.C.S.A. § 109. However, that is the only aspect of appellant’s case which satisfies any of the requirements of § 110.

Appellant could not have been convicted in Montgomery County of the offenses with which he was charged in Delaware County. The counts of burglary, criminal trespass, theft by unlawful taking, and criminal mischief relate to the act of entering Blenheim Motors, Inc., and removing one of its vehicles. The locus of this criminal conduct was situated within the boundaries of Delaware County, thus requiring appellant to be prosecuted there. It is a fundamental precept of law that “ ‘the court has no jurisdiction of the offense unless it occurred within the county of trial Commonwealth v. Thomas, 305 Pa.Super. 158, 162, 451 A.2d 470, 472 (1982), citing Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418, 419 (1934). Since Montgomery County lacked jurisdiction over these offenses, appellant could not have been convicted of these offenses in the first prosecution. This Court recently addressed a similar contention in Commonwealth v. Nichelson, 294 Pa.Super. 438, 443-444, 440 A.2d 545, 548 (1982). Therein, we noted, “ ‘the application of § 110 requires that the offense must have been within the jurisdiction of a single court.’ ” These offenses were committed against the peace of the respective counties, and appellant was properly charged in both.

Appellant also cannot argue that his conviction in Montgomery County arose from the same criminal episode which supported his conviction in Delaware County. Appellant’s guilty plea to receiving stolen property was founded upon his possession of the farm tractor, which was not on the flatbed truck when it was originally stolen. His conviction in Delaware County centered on the unlawful removal of the flatbed truck from Blenheim Motors. Under these facts, the same criminal episode element of § 110 has not been met. See Commonwealth v. Miller, 278 Pa.Super. 103, 419 A.2d 1378 (1980). Therefore, the instant prosecution is not barred on that basis.

The only Montgomery County charge which arguably arose from the criminal conduct perpetrated in Delaware County was one count of receiving stolen property (i.e., the flatbed truck). However, as stated above, that offense occurred beyond the jurisdiction of the Delaware County Court. Moreover, the law defining that offense “intended to prevent a substantially different harm,” that is, the unauthorized intentional receipt, retention, or disposition of movable property, than the charges which are the subject of this appeal. For all of the above reasons, the lower court did not err in denying appellant’s motion to dismiss for double jeopardy.

Appellant secondly complains that the trial court erred in denying his motion to dismiss pursuant to Pa.R.Crim.P. 1100 (hereinafter Rule 1100). That rule provides, in pertinent part:

Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Pa.R.Crim.P. 1100(a)(2). The complaint in the case at bar was issued on May 13, 1981, thereby establishing a run date of November 9, 1981. Trial was scheduled for November 16, 1981. On November 10, 1981, one day past the run date, appellant filed a motion to dismiss. Said motion was denied. Appellant contends that the Commonwealth failed to try him within the requisite period and he should therefore be discharged.

When an accused applies for dismissal of charges due to an alleged violation of Rule 1100, we must first determine whether or not circumstances were present which warranted the exclusion of any period of time pursuant to section (d). Commonwealth v. Shelton, 469 Pa. 8, 13-14, 364 A.2d 694, 696 (1976). This section provides:

In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceeding which results from:
(1) the unavailability of the defendant or his attorney

Pa.R.Crim.P. 1100(d)(1). The comment to this section defines an unavailable defendant as one who is “physically or mentally incompetent to proceed.”

In the instant case, appellant attempted to commit suicide subsequent to his arrest. Consequently, he was involuntarily committed to Norristown State Hospital under the Mental Health and Mental Retardation Act of October 20, 1966, P.L. 96, Art. IV, 50 P.S. § 4101 et seq. The purpose of this hospitalization was to provide appellant with appropriate treatment during that critical time. The total period of hospitalization was twenty days from June 3rd to 23rd, 1981, and necessitated a postponement of the preliminary hearing from June 11 to June 29, 1981.

We have held in the past that defendants who are hospitalized when seriously ill are deemed unavailable for purposes of Rule 1100(d)(1). Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980); Commonwealth v. Quinlan, 259 Pa.Super. 536, 393 A.2d 955 (1978); Commonwealth v. Haynes, 245 Pa.Super. 17, 369 A.2d 271 (1976). When a defendant’s condition renders him “physically or mentally incompetent,” criminal proceedings against him must be continued to such time as he is able to participate therein. Those periods of time during which he is incapacitated must be excluded from the 180-day period within which he must be brought to trial.

It is true that we have refused to exclude periods of hospitalization when a defendant has been ruled competent to stand trial, yet remained committed. Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1980); Commonwealth v. Quinlan, supra. However, when an accused is in the process of being examined to determine the state of his mental health, we have ruled those periods to be excludable. Id. We find the instant facts to be similar in that appellant required immediate hospitalization to stabilize his precarious mental condition. We therefore exclude the twenty days from the mandatory period within which appellant should have been tried. In doing so, the adjusted run date became November 29, 1981. Therefore, the originally scheduled trial date of November 16, 1981, was timely.

Although appellant was not tried on that date, Rule 1100 was not violated because the Commonwealth petitioned for and received an extension of time. Rule 1100(c)(1) and (3) provide:

At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
Such motions ... shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.

On November 16, 1981, which was also the date of the Rule 1100 hearing, the Commonwealth was unable to commence trial because of the illness and hospitalization of an essential eyewitness. The Commonwealth therefore requested and received a reasonable period of time for the recuperation of that witness.

It is firmly settled that periods of delay due to the unavailability of a hospitalized Commonwealth witness may be the basis for an extension of time for commencement of trial. Commonwealth v. Schuster, 288 Pa.Super. 310, 431 A.2d 1063 (1981); Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977). We, therefore, conclude that the Commonwealth met its burden of establishing that, despite its due diligence, trial could not proceed prior to the run date. Thus, the lower court did not err in granting the Commonwealth’s petition for an extension of time and in denying appellant’s motion to dismiss.

Finally, appellant asserts that the verdict was against the weight of the evidence and law. He therefore contends that the trial judge erred in denying his demurrer and motion for a directed verdict. The basis of his argument is that mere possession of a stolen item is insufficient to justify a finding of guilty beyond a reasonable doubt.

In addressing such arguments previously, this Court opined that possession alone of the stolen property cannot support a conclusion of guilt; rather, evidence of the surrounding circumstances must be considered. Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975). These factors include the situs of the theft and that of the stolen property when found; the type of property; and the elapsed time between the theft and the defendant’s arrest.

It is clear from an examination of the surrounding circumstances that the evidence supports a finding of guilt. A mere three hours and twenty minutes elapsed between the perpetration of the crime and the recovery of the property. The stolen truck was a vehicle capable of easy movement and was discovered in appellant’s possession in an area which was approximately an hour’s drive from the crime scene. The place, time, and circumstances under which appellant was found with the truck support an inference of his guilt, which “more likely than not [flows] from the proven facts on which it is made to depend.” Commonwealth v. Shaffer, 447 Pa. 91, 108, 288 A.2d 727, 737 (1972), cert. den. 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972).

Consequently, we hold that the Commonwealth met its burden of providing sufficient evidence upon which the trial court, sitting as arbiter of fact, could conclude beyond a reasonable doubt that appellant was guilty. The demurrer and motion for a directed verdict being properly denied, we affirm.

Judgment of sentence affirmed.

SPAETH, President Judge, concurs in the result.

      . Appellant asserts that he was also charged with unauthorized use of a motor vehicle and receiving stolen property. This Court cannot find any evidence of the first charge in the record. It appears that the second charge was dismissed at the preliminary hearing. Any discussion of double jeopardy with respect to this charge would be irrelevant since jeopardy only attaches "in a non-jury prosecution when the court has begun to hear evidence.” Commonwealth v. Arelt, 308 Pa.Super. 236, 241, 454 A.2d 108, 111 (1982). Since this count was dismissed well before that time, jeopardy never attached.

      . This count was dismissed when appellant pleaded guilty to receiving stolen property (i.e., the farm tractor) and possession of a controlled substance.

      . Appellant’s double jeopardy argument is in reality self-defeating. An accused who is aware of charges filed against him in separate townships that are based on the same criminal episode, and who fails to move for a consolidation of these charges, waives his statutory right to have those charges combined in one prosecution. Commonwealth v. Johnson, 319 Pa.Superior Ct. 463, 469, 466 A.2d 636, 639 (1983); Commonwealth v. Quackenbush, 314 Pa.Super. 324, 460 A.2d 1162 (1983). Il is clear appellant knew of the charges levelled against him in Delaware County since he was so charged while incarcerated in Montgomery County. Therefore, if the charges arose from the same criminal episode, any § 110(l)(iii) claim is waived due to appellant’s failure to move for consolidation. If they do not arise from the same conduct, as we do so hold, and are subject to the jurisdiction of two separate courts, no violation of § 110 occurred.

      . A typographical error committed by the District Justice placed the filing of the complaint at May 23, 1981, rather than May 13, 1981. Consequently, trial was unknowingly set for a date beyond the 180-day period. In light of our finding that no Rule 1100 violation occurred, we need not address the effect of this error on the run date. However, we note that appellant was silent regarding that error', and chose to permit all parties to rely upon the District Court’s transcript when setting the trial date. Only after the correct run date passed did he reveal the error in his motion to dismiss. Our Supreme Court observed in Commonwealth v. Brown, 497 Pa. 7, 11-12, 438 A.2d 592, 594 (1981), ‘‘[w]hile it is true that a defendant has no duty to bring himself to trial, see Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359 (1976), a defendant has no right to mislead the court and the Commonwealth as to the suitability of a particular trial date once that date has been set.” Therein, waiver of Rule 1100 was deemed to have occurred. We would likewise be inclined to hold that appellant’s actions constituted waiver. However, as stated above, it is unnecessary for us to do so.

      . This conclusion is consistent with previous holdings of our court wherein we ruled that a defendant may not benefit from delay that he has caused. Commonwealth v. Machi, 294 Pa.Super. 338, 439 A.2d 1230 (1982); Commonwealth v. Gallo, 276 Pa.Super. 562, 419 A.2d 601 (1980); Commonwealth v. Jones, 250 Pa.Super. 98, 378 A.2d 471 (1977). The circumstances which caused a delay in bringing appellant to trial, appellant’s hospitalization following his suicide attempt, were created by appellant’s own actions. If we did not exclude this period, the Commonwealth would be forced to bring .appellant to trial in a shorter time than is legislatively mandated. Such a result would increase the chance of a Rule 1100 violation, and thereby weaken "society's right to punish and deter crimes.” Commonwealth v. Reihart, 302 Pa.Super. 515, 517, 449 A.2d 35, 36 (1982).

      . Appellant does not contest the unavailability of this witness as an improper basis upon which the extension of time was granted.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    473 A.2d 1052
    Ruth SAVAGE and Meesha Scott, a Minor, by her Parent and Natural Guardian, Delores Scott and Delores Scott, in her own right, Appellants, v. COMMERCIAL UNION INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1983.
    Filed March 13, 1984.

      Allen L. Feingold, Philadelphia, for appellants.
    Gary V. Gittleman, Philadelphia, for appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from that portion of the June 3, 1983 Order of the Court of Common Pleas of Philadelphia County (per Judge DiBona) “dismissing] with prejudice” appellants’, Ruth Savage’s, Dolores Scott’s and Meesha Scott’s, Petition for Uninsured Motorist Arbitration. We reverse.

The record reveals the following: On May 13, 1974, appellants had entered a taxicab in Philadelphia, Pennsylvania, which was struck by a vehicle insured by Safeguard Mutual Insurance Company (Safeguard). Because the appellants had sustained injuries, and Safeguard was declared insolvent, they sought entitlement to benefits by filing a claim with the taxicab’s insurer, appellee-Commercial Union Insurance Company (CUIC), under The Pennsylvania Insurance Guaranty Association Act. 40 Pa.C.S.A. § 1701.101 et seq.

By letter dated August 10, 1981, counsel for the appellants notified CUIC of “the[ir] wish to file an uninsured motorist claim” in regard to the 5/13/74 accident and to have the matter resolved by a three-member panel of arbitrators, with the neutral arbitrator selected by the other two members chosen by each side. Appellants listed their choice and went on to state that if a response was not received within a reasonable time from CUIC, they would “commence suit accordingly.” Thereafter, on January 18, 1982, appellants filed a “Petition to Appoint a Neutral Arbitrator” claiming that the two sides had “not been able to mutually select [sic] a neutral arbitrator to hear th[e] uninsured motorist claim and/or [CUIC] ha[d] failed and/or refused to mutually select [sic] an arbitrator.” Appellants also made averments concerning the occurance of the accident, their injury and the filing of a claim with the appellee.

In its Answer, appellee denied all of the appellants’ allegations save for the admission “that the Petitioners were passengers in the insured’s vehicle.” Further, appellee mentioned that it had “selected Edward Leach as its arbitrator ... [and] requeste[d] the Petitioners to advise who they had selected as their arbitrator in order that a neutral arbitrator c[ould] be selected.” It is to be noted that appellants named their choice (Joseph Mellace) in their August 10, 1981 letter to the appellee, but the appellee, in a “Memorandum” attached to its Answer, asserted that the petition was the first demand by the appellants’ attorney for an uninsured motorist arbitration and that appellants’ attorney had never advised it of their choice for an arbitrator. As a result, appellee requested that the petition be dismissed as premature.

Judge Gafni entered two Orders. The first was dated April 2, 1982, directing that the matter proceed to arbitration within 45 days, and that he would appoint the third arbitrator if he were not advised within 20 days that such an appointment had occurred. The judge’s second Order, issued April 27, did what the parties had failed to accomplish, i.e., appointed a neutral arbitrator. In the interim, appellee had sought to depose appellants. However, by letter dated April 19, 1982, counsel for the appellants informed CUIC that, inter alia, because it “ha[d] no right to a sworn statement,” neither he nor his clients would be present at the scheduled deposition. As a result thereof, counsel for the appellee submitted a “Petition to Stay Uninsured Motorist Arbitration,” and, in support thereof, attached a “Memorandum of Law.” Both documents made reference to the source of appellants’ right to recoupment, i.e., appellee’s policy of insurance. Appellee alleged that “unless and until the [appellants] ha[d] met their obligations under the terms of the ... policy” they had no right to an arbitration hearing. In particular, appellee averred:

In view of the facts and the allegations made by the plaintiffs, they are bound to comply with the terms of the same policy of insurance issued by Commercial Union as stated in the defendant’s Petition attached hereto, the “Conditions” part of the policy provides as follows:
“3. Proof of Claim; Medical reports: As soon as practicable, the insured or other person making claim shall give to the Company written proof of claim, under oath if required, including full particulars of the nature and extent of the injuries, treatment, and other details entering into the determination of the amount payable hereunder. The insured and every other person making claim hereunder shall submit to examinations under oath by any person named by the Company and subscribe the same, as often as may reasonably be required. ..”. (See Exhibit “D-2” paragraph 3)
The aforementioned policy under the “Conditions” section also provides:
“11. Action Against Company: No action shall lie against the Company unless, as a condition precedent thereto, the insured or his legal representative has fully complied with all the terms of this endorsement”. (See Exhibit “D-2” paragraph 11)
The plaintiffs have clearly failed to comply with the conditions precedents [sic] set forth in the policy. The plaintiffs cannot seek to claim rights under said policy without being subject to the condition set forth therein. The defendant is entitled to take the sworn statements of the plaintiffs herein in order to properly prepare [sic] its case for trial and evaluate its exposure.

Additionally, our review of Paragraph 8 of the “Conditions” portion of the policy of insurance indicates that disputes concerning “entitlement to recover damages” or “the amount of payment” allegedly owed by the insurer to a claimant “shall be settled by arbitration in accordance with the rules of the American Arbitration Association^]”

In the Answer to appellee’s petition, appellants did not dispute their refusal to give a sworn statement, contending that “they [were] not required to under the laws of this Commonwealth; and[,] more importantly, they [were] not required under the Orders of Judge Gafni ... directing that a hearing commencing within 45 days from the date of his original Order” take place. Further, appellants argued that since “[t]his [was] the first time that the issue of giving a sworn statement ha[d] been raisedf,]” because the petition to proceed to arbitration had been granted and the court had appointed a neutral arbitrator, appellee’s petition to stay the arbitration should be denied.

Judge Gafni disagreed and, in an Order issued May 27, 1982, directed the appellants to appear in appellee’s counsel’s office for the taking of sworn statements, as well as holding in abeyance any arbitration proceedings until such time as the appellants appeared for their sworn statements.

The deposition, having been initially postponed because Ms. Savage had been released from the hospital the date it was scheduled, was held on December 20, 1982, in appellee’s counsel’s office.

Ms. Savage, during questioning by counsel for the appellee, answered inquiries regarding her marital situation, living accomodations and employment status. Ms. Savage responded to the last question by stating that, upon the advice of her doctors, she had not worked since the date of the accident. Also, she testified that, as of eight years after the accident, treatment was still being administered to her for injuries sustained as a result thereof. However, when counsel for appellee asked Ms. Savage if she had paid her doctor bills, her counsel objected and instructed her not to respond. Immediately thereafter, the following exchange took place:

BY MR. GITTLEMAN:
Q. Have you paid for the doctor?
MR. NERENBERG: I object to that question. I instruct her not to answer.
MR. GITTLEMAN: At this time for the record, I would like to request that Judge Gafni review the testimony up to this point and ask both people to come back to testify at a later date.
I believe that counsel is being obstreperous and will not permit the sworn statement to go on. I believe that this material is quite evident to be necessary in preparation of the defense of this case. Claimant has filed a claim for P.I.P. benefits and this deposition is going to be used for that.
Also, it should be further noted that I have attempted to accommodate the plaintiffs. There was no notice of this deposition either by phone or by mail or in my file. I have asked counsel for the plaintiff, Sheldon Nerenberg, to supply me with what date this was scheduled. He could not. I have asked him to give me his file to indicate when this was scheduled and he is not able to do that.
In view of the statement, I would petition Judge Gafni to reschedule this deposition. Thank you.
MR. NERENBERG: We are not going to reschedule. We are here today for the deposition. If he wishes to take it, fine. It’s up to him.

As described by counsel for the appellants in his brief to this Court, Attorney Gittleman terminated the deposition and left the office. Thereafter, despite appellants’ counsel’s sending a letter (accompanied with copies of the police’s accident reports) to appellee’s counsel (dated February 8, 1983,) informing him that the claimants intended to be present at the February 28, 1983, arbitration hearing, counsel for the appellee filed a “Petition to Dismiss Uninsured Motorist Arbitration.” Therein, counsel alleged, as is relevant here, that:

13. The plaintiffs have failed to comply with the Order of this Honorable Court dated May 27, 1982 ... and therefore no uninsured motorist arbitration may be held.
14. The neutral arbitrator, Barnaby C. Wittels, Esquire has scheduled the arbitration ... for February 28, 1982....
15. In view of the plaintiff’s failure to have their sworn statements taken, the uninsured motorist arbitration scheduled for February 28, 1983 should be dismissed with prejudice, or in the alternative at the very least, continued until such time as the plaintiffs have complied with the [May 27, 1982] Court Order.

In a “Memorandum of Law” affixed to appellee’s petition, counsel repeated some of the arguments proffered in his initial petition to stay the arbitration and made reference to appellants’ failure to comply with the “Conditions” section of the policy of insurance calling for a claimant to “submit to examinations under oath____” Counsel for the appellee went on to characterize the atmosphere at the deposition hearing as one in which:

It became immediately apparent that plaintiffs’ counsel had no intention of allowing the plaintiff to answer questions concerning information to which the defendant was entitled____ The statement of Ruth Savage was stopped at that time since to continue would have been an exercise in futility. The statements of plaintiffs, Delores Scott and Meesha Scott were never taken.

In response, counsel for appellants reiterated the arguments raised in his Answer to appellee’s prior petition, i.e., questioning the authority of the court to require such discovery, the relevancy of the subject sought to be discovered and that the matter was more appropriately left to the arbitrators to deal with in the context of a hearing. Nonetheless, counsel for appellants was willing to proceed to have his clients deposed, but he sought to have the inquiry conducted within “ear-shot” of the courtroom so that any issue arising therein could be dealt with by a judge.

A rule returnable was issued for March 4, 1983. Counsel for the appellants failed to appear and, on the same date, an Order was entered directing that no arbitration be held “unless and until the [appellants] complied with the Court’s Order dated, May 27, 1982” requiring that sworn statements be given by the appellants. After the entry of the aforecited Order, April 11, 1983 was set for the taking of the depositions. However, counsel for the appellants wrote to the lower court judge, by letter dated March 28, 1983, apprising him that he had not been consulted as to the proposed date and time for the taking of the depositions. Also, he noted that the scheduled date was inconvenient and his clients would be unavailable. As promised, appellants did not appear on the specified date. Consequently, counsel for the appellee filed a “Petition to Dismiss Uninsured Motorist Arbitration.” Appellee alleged therein, as is germane to the case at bar:

9. On or about April 4, 1983, Petitioner responded to Plaintiffs’ attorney’s letter [dated March 28, 1983], and advised Judge Lord that [the attorney for the appellants] refuses to speak to anyone from Petitioner’s office. A true and correct copy of said letter is attached hereto, incorporated herein, and labelled Exhibit D-7.
10. On or about April 6,1983, Judge Lord advised [counsel for the appellants] that Motions, not letters, will be ruled on. A true and correct copy of that letter is attached hereto, incorporated herein and labelled Exhibit D-8.
11. On or about April 11, 1983, the date on which the sworn statements of [appellants] were scheduled, neither [appellants] nor any representative from their attorney’s office appeared at Petitioner’s office for the taking of the sworn statements.
12. A telephone call was placed to [appellants’] attorney’s office, at which time Petitioner was advised that counsel for [appellants] had no record of any sworn statements being scheduled.
13. In view of the fact that counsel for [appellants] acknowledges Petitioner’s rescheduling of the sworn statements in his letter to Judge Lord, dated March 28, 1983, as well as the fact that Notice was sent to [appellants’] attorney on March 14, 1983, there is absolutely no basis for any allegation by [appellants’] counsel that he did not have any record of the scheduling of the sworn statements of [appellants].
14.....
WHEREFORE, [appellee] respectfully requests that this Honorable Court issue an Order that the Order of the Court dated April 27, 1982, which appointed Barnaby C. Wittels, Esquire, as a neutral arbitrator is vacated and, further, that the [appellants’] Petition for Uninsured Motorist Arbitration is dismissed with prejudice.

Counsel for the appellants responded to the allegations of the appellee by contending that: 1) he had “repeatedly kept trying to schedule these statements” sought by the appellee; 2) it was the appellee which had acted in bad faith in filing its petitions to stay the arbitration, and, thus, prolonged the resolution of the matter at issue; and 3) the court was without authority to require the taking of depositions.

On June 3, 1983, the court below “dismissed with prejudice” appellants’ Petition for Uninsured Motorist Arbitration. This appeal followed.

Initially, we observe that the instant appeal is from a final order, 42 Pa.C.S.A. § 742, inasmuch as appellants are precluded from having the merits of their claim heard by a panel of arbitrators. See National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968). In other words, the Order of the court below “disposes of the entire case.” See T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); see also 42 Pa.C.S.A. § 7320(a)(1) (An appeal may be taken from an order denying an application to compel arbitration under 42 Pa.C.S.A. § 7304 (relating to proceedings to compel or stay arbitration)).

Of the four issues raised by the appellants, we find it necessary, given the result reached, to address only the contention that the court below exceeded its authority in ordering the appellants to submit to a deposition, and, upon failing to do so, to dismiss with prejudice their petition to proceed to arbitration.

We begin our discourse with an examination of Harleysville Mutual Casualty Co. v. Adair, 421 Pa. 141, 218 A.2d 791 (1966), which we find instructive in deciding what course to pursue in dealing with the issue at hand.

In Adair, a minor had sustained injuries in an automobile accident, and, because the other motorist was uninsured, he filed a claim under his insured’s uninsured motorist coverage. The minor, as requested by the insurer (Harleysville), submitted to a physical examination and gave it a statement of the accident. No other information was sought by Harleysville.

After the passage of approximately 2 months, Harleysville informed the minor that it would not settle, for the other motorist in the accident had stated that the minor was at fault. Following this, Harleysville forwarded interrogatories to the minor and demanded that they be answered in compliance with a provision in the policy of insurance requiring that:

The insured and every other person making claim hereunder shall submit to examination under oath by any person named by the company and subscribe the same, as often as may reasonably be required.

The preceding paragraph is identical to the one contained in CUIC’s policy of insurance.

As a result of Harleysville’s refusal to honor the minor’s claim, he requested that the matter proceed to arbitration, as provided for in the policy of insurance. The arbitrator, as is applicable here, ruled that the minor did not have to answer the interrogatories and set a date for a hearing. Prior thereto, Harleysville instituted an action for an injunction, seeking to restrain the arbitration hearing from commencing and petitioning for a declaratory judgment. The trial court upheld the minor’s preliminary objections and dismissed the complaint in equity. On appeal, our Supreme Court framed the issue for review as one involving a question of procedure; to-wit:

[W]hether pretrial discovery or “pre-hearing” discovery under the Procedural Rules is available in an arbitration proceeding instituted in accordance with the provisions of the appellant insurer’s own contract, which provided for arbitration of uninsured motorist claims in accordance with the rules of the American Arbitration Association.

Id., 421 Pa. at 143, 218 A.2d at 793.

The Adair Court refused to embrace Harleysville’s view that a provision of its policy, “requiring the insured and every other person making a claim to submit to examination under oath by a person named by the company, as often as may be reasonably required, [was] a condition precedent to the institution of arbitration, i.e., prior to the arbitration ____” (Emphasis in original) Ibid.

More importantly, the Court then proceeded to articulate its reasons for holding that Harleysville had no right to impede the orderly commencement and completion of an arbitration proceeding on the ground that the claimant had not responded to its interrogatories. In pertinent part, the Court stated:

When appellant, by its own contract, agreed to abide by the rules of the American Arbitration Association, it voluntarily surrendered the right to invoke any of the procedural devices which would be available in an action at law. The right to discovery is one of these devices which is not obligatory as an essential of due process to a valid arbitration proceeding.
To hold that all arbitration proceedings must be considered subject to all the procedural devices available in ordinary civil actions instituted in a court of law, without regard to either the provisions of the arbitration contract or the rules of the American Arbitration Association would eliminate, or at least severely curtail, arbitration as a means of facilitating the solution of disputes. One need only consider what such a ruling would do to all the compulsory arbitration proceedings which have so effectively reduced backlogs in cases under $2,000.
To permit an equity action to be brought to restrain an arbitration proceeding in toto or to obtain declaratory judgments as to procedural matters because of dissatisfaction with an interlocutory ruling of the arbitrator would be unthinkable. No such injunctive or declaratory judgment process is available in an ordinary civil action at law as a means of challenging an interlocutory ruling by the court.
Appellant here agreed that the rules of evidence applicable in ordinary actions at law were not to be applicable to these arbitration proceedings under the rules of the American Arbitration Association. This provision must be construed together with the provisions of the policy relating to interrogation of the claimant with regard to his proof of claim. Appellee, to the point of arbitration, cooperated with appellant insurer. After the commencement of the arbitration the arbitration procedures agreed to by appellant controlled. To permit appellant to maintain this proceeding in equity would permit it to gain by indirection what it is not entitled to by direct action.
Finally, the Arbitration Act of 1927, supra, Secs. 7 and 10, 5 P.S. §§ 167, 170, provide a complete method of statutory relief by appeal to the court to vacate, modify or correct an award where the arbitrators exceed their powers or refuse to hear evidence or by misbehavior prejudice the rights of a party.[] Recourse to equity is therefore improper and unjustified.

Id., 491 Pa. at 145, 218 A.2d at 794.

Instantly, as in Adair, the policy of insurance contained a clause requiring that any disagreement concerning the issue of negligence and/or damages would be “settled by arbitration in accordance with the rules of the American Arbitration Association.” See note 1, supra. Further, there is no evidence of record to indicate that the appellee either disputed the applicability of the arbitration process as the means by which appellants’ claim was to be resolved, or that it was unaware of the fact that the American Arbitration Association rules make no provision for any pre-trial discovery as in actions at law.

Therefore, because the arbitration process had come into effect here (the three arbitrators had been selected and a hearing date had been set), prior to appellee’s request that the appellants subject themselves to being deposed, the court below acted ultra vires.

Since an aspect of appellee’s uninsured motorist clause would have been at issue, i.e., whether the appellants were obligated to submit to a deposition as a condition precedent to continuing with the arbitration, the matter was within the exclusive jurisdiction of the arbitrators. See United Services Automobile Association Appeal, 227 Pa.Super. 508, 516, 323 A.2d 737, 741 (1974); cf. Pennsylvania General Insurance Co. v. Barr, 435 Pa. 456, 459, 257 A.2d 550, 552 (1969) (“In other cases construing language virtually identical to that found in the present arbitration provisions, we have held that it was for arbitrators to decide whether ... a condition precedent of recovery had been satisfied ____” (Citations omitted)). Furthermore, although not controlling, it is to be observed that our Legislature has recognized, in the context of statutory arbitration, the feasibility of having an application seeking a deposition ruled upon by the arbitration panel as part and parcel of the dispute resolution process. The relevant part of the statute reads:

(b) Depositions. — On application of a party and for use as evidence the arbitrators, in the manner and upon the terms designated by them, may permit a deposition to be taken of a witness who cannot be served with a subpoena or who is unable to attend the hearing.

The Act of October 5, 1980, P.L. 693, No. 142, § 501(a), 42 Pa.C.S.A. § 7309(b).

Accordingly, we believe that the more acceptable procedure would have been for the appellee to apply and request from the arbitrators permission to depose the appellants, instead of seeking a stay from the court to achieve the same result. Thus, inasmuch as the lower court’s directive that the appellants be deposed usurped a function more appropriately left to the arbitrators, we find that the appellants’ refusal to abide by the court’s order is subject to no sanctions, i.e., the dismissal with prejudice of their petition to proceed to arbitration.

Our holding is consistent with the ruling in Adair, which refused to equate the discovery procedures indigenous to an action at law with the rules (e.g., American Arbitration Association guidelines) applicable to an arbitration proceeding.

In closing, we note what was stated by the Court in Adair that the insurer is not prejudiced, for, “[i]n any event, [it] can examine the claimant under oath during the arbitration process so that no substantive rights of the [insurer] are in any way affected.” Id. 421 Pa. at 144, 218 A.2d at 794. Also, if the appellee feels that it has been denied a fair hearing, assuming for the sake of argument that the arbitrators do not permit it to depose the appellants, see Smaligo v. Fireman’s Fund Insurance Co., 432 Pa. 133, 134, 247 A.2d 577, 578 (1968), it is afforded an avenue of relief in the nature of an appeal to the court to vacate or modify an award. See 42 Pa.C.S.A. § 7341; Great American Insurance Co. v. American Arbitration Association, 436 Pa. 370, 260 A.2d 769 (1970). Therefore, appellee’s recourse to the court of common pleas was premature and unjustified.

Order reversed. Jurisdiction is relinquished.

      . Paragraph 8 reads in its entirety:
      8. Arbitration: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then upon written demand of either, the matter or matters upon which such person and the coihpany do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.
      Instantly, since neither the insurance policy’s arbitration clause nor any subsequent agreement between the parties evidenced an intention to look to statutory arbitration (see, e.g., Uniform Arbitration Act, 42 Pa.C.S.A. § 7301 et seq.) as the means by which disputes under the policy of insurance would be resolved, common law rules control. John Robbins Co. v. Airportels, Inc., 418 Pa. 257, 210 A.2d 896 (1965); Smith v. Safeguard Mutual Insurance Co., 212 Pa.Super. 83, 239 A.2d 824 (1968). In other words, in the case at bar, we are dealing with common law arbitration. See Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978); National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968).

      . We note that the concluding paragraph in Adair, to the extent that it endorses the use of statutory rules of arbitration to question a common law arbitration award, has lost some of its vitality. See Johnson v. Harleysville Mutual Casualty Co., 212 Pa.Super. 89, 239 A.2d 828 (1968), cert. denied, 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780 (1969). The appellate courts of this Commonwealth have adhered to the tenet that where the same arbitration provision as is present here is at issue, the dispute resolution process is subject to common law rules of review. See, e.g., National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968); Smith v. Safeguard Mutual Insurance Co., 212 Pa.Super. 83, 239 A.2d 824 (1968).


author: WIEAND, Judge:

text:
    473 A.2d 1060
    Louise E. GRUBB v. Gordon GRUBB. Appeal of BREWERY AND BEER DISTRIBUTORS, DRIVERS, HELPERS AND PLATFORM MEN LOCAL UNION NO. 830 AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS A/K/A LOCAL UNION 830.
    Superior Court of Pennsylvania.
    Argued May 31, 1983.
    Filed March 16, 1984.

      Stephen F. Ritner, Philadelphia, for appellants.
    Ann Miller and Paul R. Rosen, Philadelphia, for Louise Grubb, appellee.
    Charles C. Shainberg, Philadelphia, for Gordon Grubb, appellee.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

This is an appeal from an order holding a labor union in contempt of court because its custodian of records failed to produce all records requested by a subpoena duces tecum issued in a divorce action commenced against the union’s managing officer, Gordon Grubb. For the reasons hereinafter set forth, we reverse.

During the pendency of a divorce action against Gordon Grubb, Mrs. Grubb filed a petition under Pa.R.C.P. 1920.13 for alimony pendente lite and counsel fees. Grubb was an active member and managing officer of Brewery and Beer Distributors, Drivers, Helpers and Platform Men, Local Union 830 (the Union). Mrs. Grubb’s attorney caused a subpoena duces tecum to be issued to the Union’s “custodian of records” directing him to appear for hearing and to bring with him records showing Gordon Grubb’s wage and salary history, the fringe benefits to which he was entitled, and information regarding the value of his interest in a job-related pension plan. A motion for protective order was filed and denied, and the Union was ordered to deliver the requested records to Mrs. Grubb’s attorney. Salary records were thereafter obtained and furnished to plaintiffs counsel. However, counsel for the Union failed to obtain the information regarding Grubb’s interest in the pension plan. Instead, he reported that the pension fund was a separate entity, housed in a different building, and managed and controlled by trustees appointed by the Union and the employers of union members. The pension information requested and the pension records, counsel stated, were not available to the Union’s custodian of the records. He suggested that these items could be obtained from the administrator of the pension fund. Counsel for Mrs. Grubb thereupon cited the Union for contempt, and a hearing on the citation was set. Prior to this hearing, Mrs. Grubb also caused a subpoena to be served upon Morris Goldman, a Union affiliated trustee of the pension fund. He provided most of the requested pension information to Mrs. Grubb’s counsel. However, at the time of the hearing, certain actuarial data remained unsupplied. This information required computations by the pension fund’s privately retained actuary, and these calculations had not been completed prior to the hearing.

At the hearing, no testimony was taken. After listening to arguments of counsel in chambers, the court entered an order holding the Union in contempt. The order imposed an unconditional fine of $2,000.00, awarded counsel fees to Mrs. Grubb’s attorney of $1,500.00, and directed that a fine of $200.00 per day be paid by the Union if the remaining pension information were not furnished within a week of the court’s order. The daily fine of $200.00 was never assessed, for the desired information was furnished by the actuary for the pension fund. The Union appealed the order holding it in contempt. Thereafter, the marital action between Louise and Gordon Grubb was settled amicably; and the counsel fees awarded by the court against the Union were waived. The only portion of the court's order not moot, therefore, is the unconditional fine of $2,000.00 which the court assessed against the Union.

Contempt may be civil or criminal; criminal con-tempts are further divided into direct and indirect classifications. Commonwealth v. Marcone, 487 Pa. 572, 577, 410 A.2d 759, 762 (1980); Brocker v. Brocker, 429 Pa. 513, 519, 241 A.2d 336, 338 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969); Commonwealth v. Harris, 409 Pa. 163, 173, 185 A.2d 586, 591 (1962); Simmons v. Simmons, 232 Pa.Super. 365, 369, 335 A.2d 764, 766 (1975). “The distinguishing characteristic between contempts which are classified as criminal and those labeled civil is that the latter has as its dominant purpose to enforce compliance with an order of court for the benefit of the party in whose favor the order runs. Criminal contempts, on the other hand, have as a dominant purpose the vindication of the dignity and authority of the court and to protect the interests of the general public.” Commonwealth v. Marcone, supra 487 Pa. at 577, 410 A.2d at 762 (citations omitted). The “[d]ominant purpose of coercion or punishment is expressed in the sanction imposed. A civil adjudication of contempt coerces with a conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court’s order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fine which the contemnor is powerless to escape by compliance.” In re Martorano, 464 Pa. 66, 78-79, 346 A.2d 22, 28 (1975) (citations and footnote omitted). See also: Commonwealth v. Charlett, 481 Pa. 22, 27-28, 391 A.2d 1296, 1298 (1978); Barrett v. Barrett, 470 Pa. 253, 260, 368 A.2d 616, 619 (1977); Woods v. Dunlop, 461 Pa. 35, 39-40 & n. 2, 334 A.2d 619, 621-622 & n. 2 (1975); Brocker v. Brocker, supra 429 Pa. at 519-521, 241 A.2d at 338-339; Rouse Philadelphia Inc. v. Ad Hoc ’78, 274 Pa.Super. 54, 71-72, 417 A.2d 1248, 1258 (1979), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980); Kramer v. Kelly, 265 Pa.Super. 58, 63-64, 401 A.2d 799, 801-802 (1979). Where the contempt is civil in nature, “the court must impose conditions on the sentence so as to permit the contemnor to purge himself; he must be allowed to carry the keys to the jail in his pocket.” Id., 265 Pa.Superior Ct. at 64, 401 A.2d at 802, citing Barrett v. Barrett, supra; Riccobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970). In such cases, the “court is not permitted to impose a coercive sentence conditioned on the contemnor's performance of some act that is incapable of performance.” In re Martorano, supra 464 Pa. at 80, 346 A.2d at 29 (footnote omitted). “[A] contemnor who will be sentenced to a determinate term of imprisonment or a fixed fine, which he is powerless to escape by purging himself of his contempt, is entitled to the essential procedural safeguards that attend criminal proceedings generally.” Id. (footnote omitted). See: Barrett v. Barrett, supra 470 Pa. at 261, 368 A.2d at 619; Kramer v. Kelly, supra 268 Pa.Super. at 64, 401 A.2d at 801-802. See generally: Commonwealth v. Abrams, 461 Pa. 327, 336 A.2d 308 (1975); Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974). “A direct criminal contempt consists of misconduct of a person in the presence of the court, or disobedience to or neglect of the lawful process of the court, or to misbehavior so near thereto as to interfere with the immediate business of the court____ All other behavior which may have a more remote impact upon the dignity of the court and its ability to fulfill its responsibilities are classified as indirect contempts.” Commonwealth v. Marcone, supra 487 Pa. at 578-579, 410 A.2d at 762-763 (citations omitted). See also: Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978) (Opinion announcing the decision of the Court by Roberts, J.); Philadelphia Marine Trade Association v. International Longshoreman’s Association, 392 Pa. 500, 140 A.2d 814 (1958). Certain direct criminal con-tempts may be punished summarily. These contempts are listed at 42 Pa.C.S. § 4132 as follows:

“(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors, or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court thereby obstructing the administration of justice.”

Only contempts committed in open court may be punished by imprisonment; other contempts are punishable by fine only. 42 Pa.C.S. § 4133.

A subpoenaed witness who refuses to testify when ordered to do so may be dealt with either by criminal contempt, civil contempt or both. In re Martorano, supra 464 Pa. at 76-77, 346 A.2d at 27-28. See also: Commonwealth v. Hawkins, 322 Pa.Super. 199, 469 A.2d 252 (1983). A witness who refuses to comply with a subpoena duces tecum may be dealt with in similar fashion. See generally: Federal Trade Commission v. Scientific Living, Inc., 150 F.Supp. 495, 500 (M.D.Pa.1957), aff’d mem., 254 F.2d 598 (3rd Cir.), cert. denied, 355 U.S. 940, 78 S.Ct. 429, 2 L.Ed.2d 421 (1958). A willful refusal to comply with a subpoena duces tecum is a direct affront to the dignity and authority of the court, which may be vindicated by imposition of an unconditional fine. However, a court may also proceed civilly to coerce compliance for the benefit of the party who has caused the subpoena to issue. If a court proceeds criminally and civilly in the manner prescribed by law, it may impose both an unconditional fine and a fine which is conditional upon noncompliance. Contrary to the Union’s argument, therefore, we find no impropriety inherent in a contempt order which imposes both an unconditional fine and an additional fine of $200.00 per day for each day that non-compliance continues.

We are persuaded, however, that finding the Union in contempt of court was erroneous. In Commonwealth v. Garrison, supra, Justice Roberts said, in announcing the decision of the Court, “No satisfactory definition of contemptuous misconduct has been developed. Perhaps the best definition is that misconduct is behavior that is inappropriate to the role of the actor.” Id. 478 Pa. at 372, 386 A.2d at 979. “[T]he mere showing of noncompliance with a court order ... is never sufficient, alone, to prove contempt.” Commonwealth v. Haefner, 470 Pa. 392, 396, 368 A.2d 686, 688 (1977). To be contemptuous, conduct “must be such that some degree of delinquency or misbehavior can be predicated of it.” In re Contempt of Myers & Brei, 83 Pa.Super. 383, 387 (1924) (citation omitted).

As a general rule, there is no contempt in refusing to obey an order when the alleged contemnor, without fault on his part, is unable to comply with it. 7A P.L.E., Contempt § 12. See also: Biggan v. Foster Township Zoning Hearing Board, 272 Pa.Super. 513, 517, 416 A.2d 575, 577 (1979); Liberal Credit Clothing Co. v. Tropp, 135 Pa.Super. 53, 60, 4 A.2d 565, 568 (1939). “If it is demonstrated that an alleged contemnor is unable to perform (in contrast to willfully disobeying) and has in good faith attempted to comply with a court order (in contrast to having shown disrespect), the purposes for punishing noncompliance are eliminated.” Commonwealth, Department of Environmental Resources v. Pennsylvania Power Co., 461 Pa. 675, 687, 337 A.2d 823, 829 (1975) (plurality opinion) (citations omitted). See also: Commonwealth v. Kreplick, 379 Mass. 494, 399 N.E.2d 9 (1980) (subpoena duces tecum issued by special grand jury and served upon defendant as “keeper of the [corporate] records” is not enforceable by contempt proceedings against defendant in the absence of evidence that the requested documents were in the defendant’s possession or under defendant’s control).

In the instant case, after its request for a protective order had been denied, the Union furnished to counsel for Mrs. Grubb, as the court had directed, the records pertaining to Mr. Grubb’s salary, including fringe benefits. With respect to the requested pension information, the Union responded that it did not have those records and recited the manner in which such information could be obtained. Parenthetically, it may be observed that it was by means similar to that suggested by the Union’s attorney that Mrs. Grubb subsequently obtained the desired information.

This conduct by the Union was not contemptuous of the court’s order. Its response to the subpoena and also to the court’s order denying a protective order was not inappropriate. Contrary to the trial court’s observations, there was no evidence whatsoever that the Union had placed “road blocks” in the way of Mrs. Grubb’s efforts to obtain information regarding her husband’s pension rights. It was not contemptuous, as the court seemed to think, that the Union failed to obtain for Mrs. Grubb those pension records which it did not have in its possession. The issue was not whether the Union and the pension plan were related, as opposed to being entirely separate entities, but whether the Union’s response to the subpoena duces tecum was inappropriate and contemptuous. We conclude that the Union response was appropriate and not contemptuous, and that it was error to hold otherwise.

Reversed.

      . Goldman failed to appear at the hearing, allegedly because of inadequate notice. His failure to appear, in any event, was irrelevant on the issue of whether the Union had been contemptuous of the court’s prior order or the subpoena issued to the custodian of its records.

      . The Union also directed its own request to the administrator of the pension fund for the information which Mrs. Grubb wished to obtain.


text:
    473 A.2d 1064
    PRINCESS HOTELS INTERNATIONAL v. Dennis E. HAMILTON, t/a Hamilton Holidays, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1983.
    Filed March 16, 1984.
    Petition for Allowance of Appeal Denied July 10, 1984.

      Walter W. Wilt, Harrisburg, for appellant.
    Harvey Freedenberg, Harrisburg, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Where a civil litigant decides to change lawyers and moves for a continuance four days prior to a scheduled, non-jury trial, is it an abuse of discretion to deny his request and require that trial take place as scheduled? We conclude under the circumstances of this case that it was not.

Dennis E. Hamilton, trading as Hamilton Holidays, contracted with Princess Hotels International to lease ninety hotel rooms at the Bahamas Princess on the nights of April 13, 14 and 15, 1979. The total contract price of $14,266.80 was payable as follows:

Deposit $1,000.00
January 13,1979 $4,422.26
February 13,1979 $4,422.26
March 13,1979 $4,422.28

The contract provided that in the event the rooms were cancelled less than thirty days prior to the date of arrival, the travel agent would be billed for the rooms for the entire stay.

Hamilton failed to make the payments required by the contract and, on April 6, 1979, a week before the scheduled arrival, cancelled the reservations. Princess Hotels brought an action in assumpsit for the full balance of $10,266.80. Following trial without jury, at which Hamilton’s sole defense was the intervention of the Three Mile Island incident on or about March 28, 1979, the court found that Princess Hotels was entitled to recover its damages, together with interest. Exceptions were dismissed, and the prothonotary was directed to enter judgment on the verdict. Hamilton appealed.

Appellant’s attorney was Richard S. Friedman, Esquire, who, together with his associate, James Turner, Esquire, provided representation during the pleading and discovery stages. The case was certified ready for trial on August 29, 1980. In November, 1980, Friedman was imprisoned. Thereupon, Turner, on December 12, 1980, entered his separate appearance and assumed full responsibility for Hamilton’s defense. On February 5, 1981, notice was given that trial had been scheduled for March 13, 1981. Shortly after notice was received, Hamilton and Turner met to discuss Hamilton’s defense to the claim. By late February, however, Hamilton had become dissatisfied with Turner’s services. In early March he attempted to retain another attorney, who refused to undertake Hamilton’s defense because of the lack of time in which to prepare for trial. On March 9, 1981, Turner moved for a thirty day continuance. The motion was opposed by counsel for Princess Hotels; and the court denied the requested continuance. Immediately prior to trial, Hamilton renewed his request for a continuance. Appellee, who had brought witnesses from the Bahamas and from New Jersey for trial, opposed the request. The court again refused to continue the trial, and appellant, who had rejected the services of his attorney, proceeded to trial without counsel.

The grant or refusal of a continuance when a case has been called for trial is within the discretion of the trial court; and that court’s decision will be overturned only if its decision constitutes a clear abuse of discretion. Phoenix Mutual Life Insurance Co. v. Radcliffe On The Delaware, Inc., 439 Pa. 159, 165, 266 A.2d 698, 701 (1970); Ragnar Benson, Inc. v. Bethel Mart Associates, 308 Pa.Super. 405, 416, 454 A.2d 599, 604 (1982); Love v. Harrisburg Coca-Cola Bottling Co., 273 Pa.Super. 210, 214, 417 A.2d 242, 244 (1979). The matter of calendar control is best left to the tribunal concerned, and an appellate court is loathe to interfere unless justice demands intervention. Dublin Sportswear v. Charlett, 485 Pa. 633, 638-639, 403 A.2d 568, 571 (1979). See: Budget Laundry Co. v. Munter, 450 Pa. 13, 23, 298 A.2d 55, 59 (1972).

Here, appellant became aware that his retained counsel would not be able to represent him in November, 1980, and Turner thereafter entered a separate appearance on appellant’s behalf. This was almost two months before notice of trial was received and three months before the date set for trial. Turner was not unfamiliar with the case, for he had been associated with appellant’s counsel and had participated in the pleading and discovery stages of the litigation. Even after appellant had become disenchanted with Turner, more than three weeks remained before trial. Nevertheless, appellant waited until only one week before trial to seek another attorney and did not request a continuance of trial until only four days intervened. Appellant has not averred negligence or lack of preparation on the part of Turner, but only a desire to change attorneys. Under these circumstances, we cannot say that the trial court abused its discretion in refusing his request for a continuance of thirty days. This is particularly so where, as here, the issues were not complex and appellant’s asserted defense to a breach of contract was of dubious validity. It is significant also that appellee required and had already arranged for the presence of witnesses from outside the state of Pennsylvania and from outside the continental United States in order to proceed on the date set for trial by the court. See: Love v. Harrisburg Coca-Cola Bottling Co., supra.

Appellant’s reliance on Bierstein v. Whitman, 355 Pa. 515, 50 A.2d 334 (1947), is misplaced. In that case, the plaintiff, an out-of-state resident involved in a difficult malpractice case, was abandoned by counsel who withdrew his appearance without leave of court. A new attorney, who had been retained a few days prior to trial, was unprepared to proceed on the date of trial, and no witnesses were present. The court denied a requested continuance, and plaintiff’s counsel was forced to proceed. After completing cross-examination of the defendant, who was called on plaintiff’s side of the case, plaintiff’s counsel requested that the trial be continued until the following day in order to obtain the presence of additional witnesses. The trial court denied the request and then, on motion of the defendant, entered a compulsory non-suit. This, it was held on appeal, was an abuse of discretion.

These are not the facts of the instant case. Here, appellant’s counsel was familiar with the case and was both willing and able to represent appellant at trial. It was appellant who, shortly before trial, determined to obtain other counsel. Appellant’s right to be represented by counsel of his choice was not absolute, and when he determined to discharge his attorney without cause shortly before trial, he did so at his peril. Snyder v. Port Authority of Allegheny County, 259 Pa.Super. 448, 452, 393 A.2d 911, 913 (1978). He could not compel either the court or the plaintiff to subordinate their interests in having the case tried and adjudicated to his whim regarding the employment of new counsel. See also and compare: Budget Laundry Co. v. Munter, supra; Nerkowski v. Yellow Cab Co. of Pittsburgh, 436 Pa. 306, 259 A.2d 171 (1969); Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965); Yoder v. T.F. Scholes, Inc., 404 Pa. 242, 173 A.2d 120 (1961); Krupa v. Williams, 316 Pa.Super. 408, 463 A.2d 429 (1983); Mazzenga v. Dorfman, 272 Pa.Super. 379, 415 A.2d 1248 (1979); Snyder v. Port Authority of Allegheny County, supra; Kaplan v. State Civil Service Commission, 13 Pa.Cmwlth. 29, 317 A.2d 683 (1974).

Appellant also contends that the verdict was improper because it was not shown that appellee had made a good faith attempt to mitigate the damages caused by appellant’s breach of contract. There is no merit in this argument. “The general rule is that the burden of proof rests with the defendant to show that the plaintiff could have minimized his damages by using the ordinary care of a reasonable and prudent person.” APCL & K, Inc. v. Richer Communications, Inc., 241 Pa.Super. 396, 403-404, 361 A.2d 762, 766 (1976). See also: Williams v. National Organization, Masters, Mates & Pilots of America, 384 Pa. 413, 422, 120 A.2d 896, 901 (1956); State Public School Building Authority v. W.M. Anderson Co., 49 Pa.Cmwlth. 420, 423, 410 A.2d 1329, 1331 (1980). Appellee’s evidence showed that even though appellant’s cancellation had occurred only a week before the first night’s reservation, it had contacted other charter operators in an effort to relet the rooms. An expert witness expressed the opinion that appellee’s efforts had been commercially reasonable. Although appellant disagreed and suggested additional actions that might have been taken, the trial court resolved this issue in favor of appellant. Where, as here, the trial court’s findings are supported by the evidence, they are binding upon an appellate court. Burke v. Israel, 264 Pa.Super. 286, 292, 399 A.2d 779, 782 (1979).

The order and judgment is affirmed.

      . After making the initial deposit, Hamilton made no payment until March 9, 1979, when he paid $3,000.00. Upon request, Hamilton sent a check for an additional $3,000.00, which was received on April 2, 1979, but payment thereon was stopped.


author: MONTEMURO, Judge:

text:
    473 A.2d 1067
    Bernard L. SCHLEETER v. Clarence J. INTRIERI, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed March 16, 1984.

      Gibson Smith, York, for appellant.
    Lewis Pierce Sterling, York, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMÚRO, JJ.
   MONTEMURO, Judge:

This matter is before the court on the appeal of Clarence J. Intrieri, Jr. from the dismissal of his exceptions to a non-jury verdict. The lower court’s verdict was entered upon a finding that appellant had defaulted on a mortgage to Bernard L. Schleeter, appellee. Appellant does not dispute that appellee was entitled to a verdict in his favor, but argues only that the lower court erred in calculating one portion of the interest awarded.

Appellant borrowed $13,500 from appellee on November 7, 1975. The loan was secured by a mortgage, the terms of which were not contested. The mortgage provides that the sum of $13,500 would be paid back in monthly installments of $321.17, said installments including interest at the rate of 15% per year on the principal debt. Appellant made the monthly payments in a timely fashion for two years. Thereafter, most payments were late and finally on July 10, 1980, appellee exercised his option to call due the remaining principal. As of July 10, 1980, appellant had paid back $11,953.18 of the principal leaving the remaining unpaid principal at $1,546.82.

Appellee instituted this action to recover the remaining principal, interest on the principal, interest on the late payments, and attorney’s fees under the mortgage. The final verdict awarded appellee $5,863.45, said sum including an amount of $3,631.40 as interest on the late payments. Appellant complains that this award of $3,631.40 as late payment interest was erroneous. We agree.

The lower court found that twenty-nine payments due from December 31, 1977, to July 10, 1980, were paid; however, payment was overdue in each case. It then set forth a table of calculations representing the interest due on each late payment; the sum totaling $3,631.40. The lower court calculated interest due on each late payment by multiplying the contractual interest rate of 15% per annum, times the portion of the year over which the payment was late, times the principal balance on the date that the payment was due. Thus, for the first late payment due on January 7, 1978, the lower court assessed interest of $354.82. This means that because appellant was 94 days late in paying his January 7, 1978, installment of $321.17, he had to pay an additional $354.82 in interest! This result is preposterous.

Interest is the compensation allowed by law or fixed by contract for the deprivation of the use of money. When there is no such deprivation, no interest can be awarded. 19 P.L.E. Interest and Usury § 3. In the case of a late payment, the deprivation to the payee is the use of the amount of the payment for the period of time during which the payee was entitled to payment. The lower court improperly and incomprehensibly reasoned that when a $321.17 payment was late, the payee was deprived of the entire remaining principal and should get interest based on the amount of the entire remaining principal. Until the debt was called in on July 10, 1980, however, the appellee was only entitled to a $321.17 payment each month. Appellee was not deprived of the use of the entire remaining principal when a payment was late, but only $321.17.

The proper calculation for the interest due on the January 7, 1978, payment is as follows:

Interest on payment due
January 7,1978 = 15% Interest x 94 days of use x $321.17 amount year 365 days/year of payment
= $12.41

Applying these computations to all twenty-nine late payments found by the lower court, the total interest to be awarded appellee on late payments is $196.41. Specifically, interest due on each late payment is as follows:

Due Date Days Late Interest
Jan. 7, 1978 94 $ 12.41
Feb. 7, 1978 64 8.45
Mar. 7, 1978 34 4.49
May 7, 1978 88 11.61
June 7, 1978 58 7.66
July 7, 1978 38 5.02
Aug. 7, 1978 92 12.14
Sept. 7, 1978 62 8.18
Oct. 7, 1978 32 4.22
Nov. 7, 1978 2 .26
Dec. 7, 1978 74 9.77
Jan. 7, 1979 62 8.18
Feb. 7, 1979 32 4.22
Mar. 7, 1979 58 7.66
Apr. 7, 1979 38 5.02
May 7, 1979 86 11.35
June 7, 1979 56 7.39
July 7, 1979 36 4.75
Aug. 7, 1979 4 .53
Sept. 7, 1979 93 12.27
Oct. 7, 1979 63 8.32
Nov. 7, 1979 33 4.36
Dec. 7, 1979 12 1.58
Jan. 7, 1980 58 7.66
Feb. 7, 1980 28 3.70
Mar. 7, 1980 2 .26
Apr. 7, 1980 93 12.27
May 7, 1980 63 8.32
June 7, 1980 33 4.36
Total $196.41

Accordingly, we reverse the judgment of the lower court and remand for reduction of late payment interest in conformity with this opinion. We note also that in reducing this portion of the award, the award for attorney’s fees which was based on a percentage of the principal and interest awards, will correspondingly be reduced.

      . The coúrt en banc slightly amended the verdict in accordance with appellant’s exposure of an error in computation, however, appellant’s major contention was dismissed.