author: POPOVICH, Judge:

text:
    585 A.2d 1012
    Leonard S. FIORE, Sr., et al., Appellee, v. OAKWOOD PLAZA SHOPPING CENTER, INC., Joseph H. Aronow, Anthony Galioto, Appellants. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1990.
    Filed Jan. 15, 1991.

      Roy A. Powell, Pittsburgh, for appellee.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the October 2 and 18, 1989, orders of the Court of Common Pleas of Centre County dismissing the defendants/appellants’ rules to show cause and holding them in contempt of court. We affirm.

To appreciate the result we reach in the case, a detailed account of the events leading to the present appeal is necessary. Toward that end, the record indicates that Saul Waxman, a real estate broker in central Pennsylvania, was approached by a Doctor David Hadden in regard to property he wished to sell in Centre County. Mr. Waxman, at all times thereafter, represented the partnership of FL & S Associates.

Waxman made contact with Joseph Aronow and Anthony Galioto, both New York residents, who showed interest in purchasing the land in question and constructing a shopping center on the site.

The parties had agreed, at least at first, that the purchase price was to be paid in cash. However, Mr. Aronow altered his position and wanted a subordinated purchase money mortgage to be issued. To this, FL & S agreed without objection. To accommodate Mr. Waxman, the FL & S group offered to secure the payment of the balance of his commission (he had been paid $27,000.00 and could have been owed, depending on the square footage of the center when completed, up to $70,000.00) by assigning him a 6% interest in the mortgage FL & S held on the property sold to the defendants as their security for the remaining monies to be paid.

To validate the sale of the the property between the parties, an indenture with Bond and Warrant, along with an accompanying addendum, were executed by the defendants and FL & S. Both the Bond and Warrant and Mortgage documents contained confession of judgment clauses authorizing acceleration of payment of the $1.1 million purchase price plus attorney’s fees upon default of the prescribed monthly payments of principal and interest.

Upon failure of the defendants to make payments as required by the various documents, the plaintiffs filed a complaint in confession of judgment demanding a total of $1,216,145.00 (in principal, attorney’s commission and 9% interest as of August 26, 1989) from the defendants t for “defaulting] ... under the terms of ... [a] Bond and Warrant ... to make agreed upon payments” calculated as $9.00 per square feet times total interior square footage on permit for building less $700,000.00 but not less than $750,-000.00. The document was dated December 23, 1986, and executed by Anthony Galioto, as President of Oakwood Plaza Shopping Center, Inc., and individually as did Joseph M. Aronow. The $700,000.00 figure, however, did not appear anywhere in the “form” Bond and Warrant document. Rather, attached thereto was an “addendum” in which the defendants agreed to:

... pay to Obligee [plaintiffs] one-half of the entire principal amount of the obligation secured hereby[*] The entire principal then be due and payable on or before four months after the Commencement date; and *such principal amount is calculated as nine ($9.00) Dollars/per square foot times total interior square footage on permit for building less seven hundred thousand dollars but not less than $750,000.00.[ ]

By notice of even date, the prothonotary of Centre County entered judgments in favor of the plaintiffs and against each of the defendants, separately. Pursuant to Pa.R. Civ.P. 4006, 4009 and 4019, the plaintiffs requested of the defendants that they produce various documents and respond to interrogatories for the discovery of assets to aid in the execution of the judgments.

On January 6,1989, the plaintiffs filed Motions to Compel and For Sanctions for failure of the defendants to answer interrogatories and/or produce documents. On May 10, 1989, a petition to open or strike judgment was filed by Joseph M. Aronow and Anthony Galioto. It was alleged therein that, on December 16, 1986, the plaintiffs had agreed to sell and the defendants to buy a parcel of land. In furtherance of the sale, the succeeding instruments were signed: (a) agreement of sale with rider; (b) purchase money mortgage with addendum; and (c) warrant with addendum.

It was the contention of the defendants that the plaintiffs had obligated themselves to “obtain all necessary approvals from authorities having jurisdiction over the site for use ... as a shopping center ... and to obtain building permits.” Paragraph 10. Further, the defendants averred that the plaintiffs, by way of agreement, were to provide: (a) all municipal water and sanitary sewers; and (b) a road around the perimeter of the site for ingress and egress with water, storm and sanitary sewer pipe lines. Paragraphs 12 and 15.

The plaintiffs were held to have failed to comply with any of the “condition[s] precedent to the payments to become due under the Note.” Paragraph 24. Because the addendum (which was recorded with the mortgage) took precedence over the Note, and the former was not attached to the Note when confession of judgment was made, it was the defendants’ position that the Note was “not collectible” and unenforceable for the “[Plaintiffs’ fail[ure]” to give material consideration as they promised as an inducement to obtain the Note. Paragraphs 35, 37 and 39. The defendants also argued that, because the principal balance due to the plaintiffs under the addendum to the Note was “based on a formula using the total interior square footage as shown by the building permit,” the complaint’s failure to set forth the square footage permitted by the building permit, or that it was ever issued, justified striking the confession of judgment. Paragraphs 42 and 43.

At this point, it requires that we recite the substance of the Agreement of Sale signed by the interested parties hereto and dated July 14, 1986, with respect to the 14.8 acres of land situate in Patton Township, Centre County. In Paragraph 1, the parties provided that, as a condition to the contract, the plaintiffs/sellers:

... shall obtain approval by all necessary authorities having jurisdiction over the site for use of the site as a Shopping Center or Strip of no less than 161,200 square feet and no more than 200,000 square feet ground coverage for interior commercial space useable for retail shopping.
That said approval shall include provision for municipal water, municipal sanitary sewers to within 50 feet of the site, and acceptable storm sewers or collection pools, all with the right to install, hook-up and utilize at no additional cost or expense for construction other than normal hook-up fees, connecting pipes of up to 50 feet and on-site storm pipes and pool constriction.

As for the purchase price, it was to be computed based on the square footage of the shopping center to be used for commercial space times $9.00. Paragraph 5. Affixed to the Agreement of Sale was a Rider that took precedence over the Agreement of Sale and required that the plaintiffs/sellers: “present all prepared engineering and architectural studies to local authorities for approval of the exact site plan required by [defendants/]Purchaser.” Paragraph 9.

A motion to strike the petition of Joseph M. Aronow and a response thereto were filed. In the latter instrument, the plaintiffs averred that judgment was entered properly based on the defendants’ default. The plaintiffs denied that the Agreement of Sale and Rider “were pursuant to any offer” by the plaintiffs. Paragraph 8, And, the allegations in Paragraphs 10, 12, 21 and 27 of the defendants’ petition were claimed to be “misstatements of said agreement.” Also, the plaintiffs denied not obtaining all necessary approvals and refuted the contention that they had any obligation to obtain building permits. Paragraphs 11, 15, 16, 22, 25, 30, 39, 40 and 43. Lastly, the plaintiffs admitted that the terms of the addendum were incorporated as part of the Bond and Warrant, see Paragraphs 29 and 32, but it was denied that the “Bond and Warrant” was incomplete, altered or failed to include the addendum. Paragraphs 31, 34 and 35. As for the lack of consideration on the obligation to provide a road for ingress and egress, this was denied as well by the plaintiffs. Paragraphs 15 and 39.

In support of the motion in opposition to the petition to open or strike judgment, the affidavits of David Sweetland and Harry K. Sickler, Jr. were submitted by the plaintiffs.

Sweetland’s affidavit indicated that, between 1981 and 1986, he was township engineer for Patton Township, Centre County, and was familiar with all regulations required in connection with land development in that area. As is applicable here, he was involved with the “planning for and obtaining approvals in connection with the Oakwood Plaza Shopping Center Development.” Paragraph 4. Sweetland also averred that the defendants had taken court action in the Supreme Court of New York, County of New York. There, Sweetland submitted responses, under oath, in support of his Motion For Summary Judgment In Lieu Of Complaint And In Opposition To Defendants’ Cross Motions.

Sweetland’s affidavit, prepared for presentment before and submitted to the Supreme Court of New York to buttress his motion for summary judgment, indicated that he was hired to perform engineering and consulting services for Joseph M. Aronow and Anthony Galioto with regard to the construction of a shopping center on the 14.8-acre site in Patton Township, Centre County. The architectural and buildings plans were to be prepared by CDA International, Inc. for Aronow and Galioto. Paragraph 9. It was never Sweetland’s understanding that FL & S Associates was responsible for or in any way involved with consulting or architectural services relating to the planning and design of the Oakwood Plaza Shopping Center Project. Paragraph 11.

Sweetland, pursuant to his affidavit, acknowledged advising Aronow, for whom he had prepared a preliminary General Site Plan, “both orally and in writing that submission of the [Final] Site Plan to Patton Township for approval was the next step required in order to progress the development of the project. Any subsequent approvals or design work could not proceed without the submission of the [Final] Site Plan for approval.” Paragraph 22. This never came to pass, and Sweetland was never paid for his services to Aronow and Galioto.

According to Sweetland, increasing the interior retail space from 161,200 square feet to 193,382 square feet was calculated by him and provided to the defendants. And, as far as Sweetland was concerned, “no question that further work toward obtaining additional approvals and building permits required decisions and authorization to proceed by Oakwood, Aronow and/or Galioto[, and not anyone involved with FL & S Associates].” Paragraph 29, Exhibit 2.

The second affidavit of record is that of Harry K. Sickler, Jr., a partner of FL & S Associates. He also prepared a similar affidavit in support of Motion For Summary Judgment In Lieu Of Complaint And In Opposition To Defendants’ Cross Motion filed in the Supreme Court of the State of New York. He adopted the affidavit as a response to the defendants’ Petition to Open or Strike Judgment. It was alleged therein that the defendants, by agreement dated July 14, 1986, had contracted to buy a 14.8-acre site of land in Patton Township from the plaintiffs. Subsequently, the two parties agreed upon a rider to the contract which changed the purchase price. Also, on December 23, 1986, the defendants executed an indenture (“Purchase Money Mortgage”) in the amount of $1.1 million for the 14.8 acreage of land. Additionally, the defendants executed a Bond and Warrant obligating the three to pay FL & S Associates $1.1 million with interest at 9% per annum.

Once the Deed and Mortgage were recorded, the defendants defaulted on their obligations and failed to pay as required under the Bond and Warrant and the Purchase Money Mortgage. As a result, on October 31, 1988, FL & S Associates instituted a Complaint in Mortgage Foreclosure in Centre County (No. 88-2392). The defendants failed to respond. Thereafter, in accordance with Pa.R.Civ.P. 237.1, FL & S Associates provided notice of its intention to take a default judgment in the event the defendants did not respond to the complaint. Notice was delivered on November 15, 1988. By December 5, 1988, the defendants had filed no response. Accordingly, pursuant to Pa.R.Civ.P. 1037(b), a judgment in the amount of $1,287,713.88 was entered in favor of FL & S Associates and against the defendants by the Court of Common Pleas of Centre County.

Notice of entry of the judgement was provided to the defendants on December 5, 1988, and a writ of execution was issued on the judgment on the same day by the court. No action was taken by the defendants. By separate complaint filed September 9, 1988, FL & S Associates commenced an action on the Bond and Warrant against the defendants. The complaint on the Bond and Warrant was based upon the identical facts giving rise to the complaint in mortgage foreclosure.

Notification of the entry of the judgment in favor of the plaintiffs in the amount of $1,216,145.00 plus interest was sent to each of the defendants on September 9, 1988. On November 9, 1988, under Pa.R.Civ.P. 3117, 4006 and 4009, FL & S Associates served a request for discovery in aid of execution on each of the defendants. The defendants failed to respond, and, as a result, FL & S filed and served on the defendants a motion to compel and for sanctions for the defendants' failure to respond to discovery. The court granted the motion after argument for which the defendants did not respond or appear. In fact, no action was taken by the defendants since the entry of the judgment, and the situation remains status quo.

It was Sickler’s contention, via his affidavit, that the defendants' claims of FL & S failing to meet certain of its obligations were based on “unsupported affidavits” submitted in the motion for summary judgment in lieu of complaint before the court in New York, and the same “are provably false.” Paragraph 45, Sickler’s Affidavit. For example, to Galiolo’s affidavit that Paragraph 1 of the Agreement of Sale made the plaintiffs responsible for obtaining on-site improvements, it was FL & S Associates’ position that the “necessary approvals ... were obtained. (Documentation of the approvals are included in the Affidavit of David Sweetland.).” Likewise, the approved number of square feet was increased by the zoning board to 193,382 square feet of retail space on the site as well as FL & S providing an irrevocable letter of credit in the amount of $83,000.00 to guarantee the performance of the public improvements which included a “roadway”.

On the question of engineering and architectural studies, the plaintiffs asserted that what plans existed were presented to the local authorities for approval. Since no “final site plan” had been completed by the defendants, FL & S Associates could not have been requested “to present what did not exist.” Finally, FL & S Associates, through Sickler’s affidavit, stated that the Agreement of Sale and Rider (contrary to the defendants’ interpretation) required that “all engineering and architectural work was defendants’ responsibility and that defendants could request FL & S Associates to submit defendants’ designs for approval. No such request was ever made[.]” To the same effect, Sickler’s affidavit alleged that Aronow’s affidavit was “filled with misstatements and fabrications” regarding the obtaining of building permits, providing water and sanitary sewers, storm sewers and collection pools, and installing a roadway around the perimeter of the site by the defendants.

As far as FL & S Associates was concerned, it had “clearly performed its obligations by providing for the extension of utilities and the completion of the roadway.” Similarly, FL & S was of the mind that the obtaining of building permits was not a sine qua non to any payments under the Bond and Warrant and Mortgage.

On June 15, 1989, a hearing was conducted to resolve the various complaints and motions filed by the respective parties regarding the confession of judgment and the attempt by the defendants to open or strike its entry. Thereafter, the court issued an opinion and order dated July 14, 1989, denying the motion to open or strike judgment, one of the grounds being that the defendants’ delay of almost 9 months in contesting the confession of judgment was “unreasonable ... [and the defendants] fail[ed] to offer any explanation or excuse for such a delay.” The July 14th order was reduced to judgment and an appeal to this Court followed.

By September 15, 1989, the plaintiffs had filed motions seeking to hold the defendants in contempt of court and impose sanctions for failure to answer interrogatories in aid of execution of the confession of judgment. Further, the plaintiffs argued that the defendants’ appeal was “untimely” and a motion to quash would be filed by FL & S Associates. In response, the defendants alleged that their appeal was timely, that they were not showing contempt for the court and wished to have an adjudication on the merits of the case to establish that the plaintiffs were not entitled to recovery.

In particular, the defendants averred that the action should be vacated for the lack of subject matter jurisdiction for the plaintiffs’ failure to join a necessary party-plaintiff, i.e., Saul Waxman, the individual who acted as a real estate broker in facilitating the transaction leading to the Agreement of Sale. Paragraph 6. And, because the addendum provided that no action could be instituted under the mortgage without written consent of Waxman or the purchase of his interest by the plaintiffs, the failure of either event to occur denied the court subject matter jurisdiction to entertain the suit. Paragraphs 13, 14 and 20.

On October 11, 1989, the plaintiffs presented an answer to the defendants’ petition seeking to vacate the judgment. They argued that the cause of action against the defendants was initiated in accordance with the terms of the Bond and Warrant, that the payment of 6% interest to Waxman was secured by the mortgage and was separate and distinct from the Bond and Warrant. Further, the plaintiffs asserted that the mortgage was not the subject of the proceeding, Waxman had no interest in the Bond and Warrant, and, although Waxman’s consent was not obtained prior to commencing the suit under the Bond and Warrant:

... he ha[d] specifically consented to the actions commenced by FL & S Associates, including the instant proceeding, as well as the proceeding to foreclose on the mortgage filed at No. 88-2392. Paragraph 11.

Finally, the plaintiffs urged that the defendants had misrepresented repeatedly, under oath, the facts relating to the proceedings before the court and continued to do so both in the petition and in the affidavits attached thereto. Paragraph 17.

On October 10, 1989, a hearing was conducted on the motions for a stay of discovery and to vacate judgment. At that time, counsel for the defendants told the court that he had discontinued, that morning, the appeal to Superior Court and presented the court with a copy of the praecipe for discontinuance to establish record evidence that there was no case pending before the Superior Court so as to deprive it of the “ability to act” on defendants’ petition.

The fundamental argument to vacate judgment was stated by the defendants to be “a relatively simple and straight forward argument that the judgment ... [was] void ... for failure of the plaintiff[s] to join as a party in the proceedings an indispensable party. That indispensable [party was] Saul Waxman.” The remedy for this procedural misstep, so stated the defendants, was to dismiss the action. And, the fact that Waxman may have consented to the plaintiffs’ suit after its institution was of no moment.

Counsel for the plaintiffs was permitted to present the position of his clients. In doing so, he observed that the initial argument that the court lacked jurisdiction, given the withdrawal of the appeal to Superior Court by the defendants, was a moot point. The simple issue, as viewed by counsel for the plaintiffs, was one in which the defendants were confusing the “Bond and Warrant” with the “Mortgage”—two separate documents which the defendants believed should be construed together in resolving the case.

Counsel for the plaintiffs asserted that Waxman was not a party to the “Bond and Warrant” and had no interest in such a document. Thus, the case should focus on the resolution of the “Bond and Warrant” matter since the only instrument in which Waxman had an interest was the “Mortgage”, an action in which judgment had been entered by default almost a year prior to the present suit in which no appeal or petition to open had been filed. The mortgage foreclosure action was continuing to proceed, so stated counsel for the plaintiffs.

Additional argument was heard from both counsel. Wax-man testified that he agreed to allow the plaintiffs to proceed with their lawsuit against the defendants after its commencement. It was Waxman’s understanding that he was to look to the plaintiffs to recoup his broker’s commission on the real estate transaction. He had no claim against the defendants.

On October 18, 1989, the court issued an opinion and order dismissing the defendants’ Rule To Show Cause. Once this order, along with the contempt order and fine of October 2, 1989, was reduced to judgment, an appeal to this Court ensued challenging both adjudications.

The first issue posed for our consideration concerns the finding by the court below, and endorsed by the plaintiffs, that the defendants’ filing a notice of appeal on September 5, 1989, to Superior Court from the order of July 14, 1989, denying their petition to open or strike judgment divested the court of jurisdiction to vacate the judgment.

The law is settled in this Commonwealth that once a party takes an appeal to an appellate court, the trial court is divested of jurisdiction over the subject matter and “may no longer proceed further in the matter.” Pa.R.App.P. 1701(a); Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965); Commonwealth v. Burkett, 352 Pa.Super. 350, 507 A.2d 1266 (1986), allocatur denied 9/10/87. Instantly, an examination of the record discounts any divestiture of jurisdiction in the court below.

For instance, we had attorneys for both parties acknowledging at the October 10, 1989, hearing that there had been a discontinuance of the defendants’ previous appeal of the July 14, 1989, order denying the defendants’ petition to open or strike judgment. This appeal was docketed at No. 545 HBG 89 by the prothonotary for the Superior Court in Harrisburg. A copy of the praecipe discontinuing the No. 545 HBG 89 appeal was presented, at least ostensibly, to the court below during the October 10,1989, hearing and a copy of the same was included in the appellants’ “supplemental Record On Appeal” at lb-3b.

We would note at this juncture that the presentment of a copy of the praecipe discontinuing the previous appeal to afford the court below authority to entertain the issues to be decided is not consistent with this Court’s disallowance of the use of appellate briefs as a substitute for evidence in the record generated and compiled at the trial level. See, e.g., McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987).

It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal. It is not for an appellate court to scour the dockets of the various prothonotaries to confirm or deny allegations of any party to an appeal. See, e.g., Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983).

Nonetheless, even though we have the authority to remand this case for a supplementation of the record on this issue of “discontinuance” of a prior appeal at No. 545 HBG 89, see Pa.R.App.P. 1926, we have taken the liberty, in the interest of judicial economy, to determine that the original appeal of the July 14, 1989, order was withdrawn and discontinued by the appellants on October 10,1989, the very date inquiry was made into why the judgment earlier entered in the case (on July 14, 1989) should not be vacated and why discovery in aid of execution should not be stayed. Accordingly, we find that the court was not deprived of jurisdiction under this theory of the case.

The second issue proffered by the appellants attributes the court below with error in holding that Waxman was not an indispensable party, and, therefore, a vacation of the confession of judgment was warranted.

It does not go unnoticed that the appellants do not assail the confession of judgment under the traditional tripartite test to determine whether a judgment should be opened. See Cross v. 50th Ward Comm. Ambulance Co., 365 Pa.Super. 74, 528 A.2d 1369, 1371 (1987). Notwithstanding such a fact, the appellants assert the indispensability of Waxman as a party to the suit denied the court below of jurisdiction to hear and enforce any matter attendant to the confession of judgment issue.

In this Commonwealth, the issue of failure to join an indispensable party cannot be waived; if such a party is not joined, a court is without jurisdiction to decide the matter. See Nelson v. Dibble, 353 Pa.Super. 537, 510 A.2d 792 (1986). In deciding whether a party is to be labelled indispensable, the following factors are utilized in the equation:

1) whether the party has a right or interest related to the claim; 2) the nature of the right or interest; 3) whether the right or interest is essential to the merits; and 4) whether justice can prevail without violating due process rights of the absent party.

Waksmunski v. Delginis, 391 Pa.Super. 37, 44, 570 A.2d 88, 92 (1990) (Citations omitted); see also Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1855); 3A Moore, Federal Practice § 19.07.

At bar, our examination of the record reveals the absence of the factors necessary to establish the indispensability of Waxman as a party-plaintiff.

As is accurately observed by the appellees in their brief to us at pages 13 and 14:

First, the instant action relates to the Bond and Warrant, or Note, executed by Oakwood as well as Aronow and Galioto individually. Judgment was entered on that Note in September, 1988. Contrary to Appellants’ assertion, Mr. Waxman has no pecuniary interest in the Note, is not a party to that Note, nor was he assigned any interest in the Note by FL & S Associates. FL & S Associates hold[s] the only interest in that Note. [See Bond and Warrant RA 231a.] A separate action on the mortgage was filed at No. 88-2392 on October 31, 1988. That action filed by FL & S Associates relates to the mortgage on the Oakwood property and it is that mortgage in which
FL & S Associates has assigned a 6 percent (6%) interest to Mr. Waxman in order to provide security for the payment of commissions that may be owed to Mr. Wax-man by FL & S Associates in the event that FL & S Associates is paid the balance owed on the Note. As is apparent from the Addendum to the Mortgage (RA 226a), Mr. Waxman is merely an assignee of a portion of FL & S Associates’ interest in the mortgage, and that assignment is to secure the payment of certain additional commissions when and if they become due. [See Mortgage with attached Addenda RA 223a.]
Second, Appellants defaulted in the mortgage foreclosure proceeding and have never moved to open or vacate that Judgment and no appeal from that Judgment entered on December 7, 1988 has ever been filed. In short, Appellants[] have filed this Petition in the wrong proceeding. [Emphasis in original]

Additionally, the court below has written that:

Mr. Waxman is not an indispensable party since complete relief can be accorded among those already party to the action without his presence, and his absence will not impair or impede his ability to protect his interest, nor will it leave Defendants at risk of incurring double, multiple, or inconsistent obligations. Gardner v. County of Allegheny, 382 Pa. 88, 114 A.2d 491, 495 (1955). Mr. Waxman’s interest in the mortgage was assigned by FL & S Associates solely to secure the payment of funds arising from the separate contractual relationship between Mr. Waxman and FL & S Associates.
Because Mr. Waxman’s interest is in the mortgage and arises out of FL & S Associates^] interest, and since Mr. Waxman’s right to the payment of any additional funds relates to FL & S Associates’ contractual obligation to him for additional broker’s commissions, Mr. Waxman has no direct claim against the Defendants under the bond and warrant or otherwise. Not only is his presence not essential for granting relief in this matter, but it is wholly irrelevant and inappropriate in this action.
Furthermore, Mr. Waxman is not an indispensable party to this action since his interest is in the mortgage and not the bond and warrant; and since that interest is not joint for purposes of Pa.R.Civ.P. 2227(a) (“persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants”). The addendum to the mortgage clearly states that FL & S Associates has assigned to Saul Waxman a 6% interest in the mortgage. It does not create a joint interest in the mortgage between the parties nor does it render Mr. Waxman an indispensable party to the present proceedings.

Lower Court Opinion, 10/18/89 at 8-9 (Emphasis in original). We agree.

Because we hold that the court correctly found Waxman not to be an indispensable party to the lawsuit, this, of necessity, dispenses with the need to respond to the allegations of the appellants captioned Points III and IV in their appellate brief, both of which relate to Waxman and his purported status as an indispensable party and his failure to consent to the commencement of the present litigation.

. The last contention relates to the supposed commission of error on the part of the court below in denying a stay of execution and holding the appellants in contempt for failing to comply with the execution procedures. See Appellants’ Brief at 38.

Judge Grine, in his opinion, has artfully stated the case against the appellants’ argument:

Defendants contend that because they have filed a Notice of Appeal, discovery in aid of execution should be stayed. However, Defendants have failed to comply with the Pa. Rules of Appellate Procedure in order to properly perfect the appeal or a supersedeas to stay discovery in aid of execution in this matter.
It is well-established that a prerequisite to the issuance of a supersedeas is the existence of a valid appeal. See generally, Wilkinson v. United Parcel Service, 158 Pa. Super. 34, 43 A.2d 414, 415 (1945). Only Defendants Aronow and Galioto have filed a Notice of Appeal. However, even Aronow and Galioto’s Notice of Appeal of this Court’s Order of July 14, 1989, was not filed until September 5, 1989, 53 days after the entry of the Order. Accordingly, the Notice of Appeal is untimely and cannot support the requested stay.
******
Although Rule 1701 of the Pennsylvania Rules of Appellate Procedure states that the trial court no longer has jurisdiction in a matter after appeal has been taken, the exceptions to that rule provide that the trial court may continue to “enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.” This Court, therefore, retains jurisdiction to enforce its prior order of January 26, 1989, directing defendants to respond to discovery in aid of execution, absent an appropriate supersedeas issued by the Superior Court. This Court is empowered to enforce its orders, even after Notice of Appeal, by means of contempt. See, Rosenberg v. Holy Redeemer Hosp., 351 Pa.Super. 399, 506 A.2d 408, 414 (1986).
******
The Rules of Appellate Procedure require that Defendants properly perfect an application for supersedeas and file a bond with the appellate court in order to stay judgment or any postjudgment proceedings ancillary to judgment. See, e.g. Pennsylvania Rules of Appellate Procedure 1731-1738. The mere filing of an appeal does not automatically function as a supersedeas and stay the trial court’s powers. Shinn v. Stemler [159 Pa.Super. 129], 47 A.2d [294] at 295 [ (1946) ] (Defendant appealed Order denying Petition to 0[pe]n Judgment. Court held Judgment not stayed by appeal). Defendants have neither requested a supersedeas nor filed any bond with the Superior Court.
... Defendants have virtually no chan[c]e of success on the merits. As this Court determined, Defendants failed to demonstrate that they could fulfill the “meritorious defense” factors required to justify opening or striking a judgment. [See this Court’s Order of July 14, 1989]. Accordingly, under any analysis, but especially under the no abuse of discretion standard applicable to Defendants’ appeal, there is little likelihood that Defendants will prevail on appeal.
Inasmuch as the appeal filed by Aronow and Galioto is not only untimely, but is also without merit, a stay in this case would further prejudice Plaintiffs’ attempts to execute on the judgment. The resulting detriment to Plaintiffs would be without reason and serve no legitimate purpose for Defendants’ benefit, other than to continue to delay the enforcement of Plaintiffs’ rights. Therefore, even if Defendants had properly requested a supersedeas and filed the appropriate security with the Court, they would not be entitled to a stay of discovery, or any other ancillary post-judgment proceeding of this Court.

Lower Court Opinion, 10/18/89 at 15-17.

We see no reason to alter the determination made by the court with regard to any of its rulings against the interest of the appellants. Accordingly, we will affirm its actions.

Orders affirmed.

MONTGOMERY, J., concurs in the result.

      . FL & S Associates consisted of Leonard S. Fiore, Sr., Leonard S. Fiore, Jr., Richard R. Fiore, Thomas C. Large and Harry K. Sickler, t/a FL & S Associates. This same cadre make up the party-plaintiffs/appellees.

      . The underscored language was added to the “addendum" and appears in hand-written form in the margin of the document.

      . The motion before the New York court is based upon facts and claims for relief that are identical to those contained in the two Pennsylvania actions that have proceeded to final judgment. Paragraph 43.

      . State College Development Company was initially involved in the purchase of the realty. However, it assigned to Oakwood the agreement of sale. Paragraph 19, Sickler’s Affidavit.

      . In the interim, i.e., on October 2, 1989, the court held the defendants in contempt and directed each to pay $3,000.00 for failing to comply with its January 26, 1989, order. On October 10, 1989, the defendants filed a motion for reconsideration of the October 2nd order on the ground that, inter alia, they were guilty of no more than indirect criminal contempt warranting, under 42 Pa.C.S. § 4136(b), a maximum fine of $100.00. By order dated November 13, 1989, the fine was reduced to $100.00 plus reasonable attorney’s fees to be determined at a later date.

      . Our review of the record evidences the inclusion of no exhibit of the withdrawal of the appeal to Superior Court being attached to the stenographer’s notes, despite the fact that there is an indexing system referring to the defendants/petitioners’ exhibit # 1.

      . See note 6, supra.

      . The appellants did so, however, by a petition to open or strike judgment filed May 10, 1989, and alleged therein that, inter alia, the appellees’ failure to secure purported "permits” for and construct “roads" on the proposed shopping center site rendered the underlying "Bond and Warrant” with addendum unenforceable for lack of consideration. No mention was made at that time to the indispensability of Waxman to the suit so as to deprive the court below of jurisdiction to entertain the confession of judgment. Notwithstanding that fact, the petition was denied for the appellants’ failure to assert "a meritorious defense.” Lower Court Opinion, 7/14/89 at 3. No timely appeal was perfected from the July 14, 1989, order of court. In fact, the notice of appeal to Superior Court was filed September 5, 1989, well beyond the 30-day time-limit to attack a final order. See Pa.R.App.P. 903(a). This appeal was withdrawn, ultimately, on October 10, 1989. See note 7, supra and accompanying text.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    585 A.2d 1022
    Dennis YETTER, Appellant, v. WARD TRUCKING CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1990.
    Filed Jan. 18, 1991.

      Mark F. Lovecchio, Williamsport, for appellant.

      Michael J. Soltis, White Plains, N.Y., for appellee.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   MONTEMURO, Judge:

Appellant, Dennis Yetter, appeals from an order granting preliminary objections in favor of appellee, Ward Trucking Company, for failure to state a cause of action in wrongful discharge and defamation. Appellant raises two issues on appeal: (1) whether Pennsylvania should recognize a cause of action for defamation based upon compelled self-publication of the defamatory statement; and (2) whether Pennsylvania recognizes a cause of action for wrongful discharge based on specific intent to harm the employee. We affirm the dismissal of the complaint, as we agree with the trial court that appellant has failed to state a cause of action for wrongful discharge under Pennsylvania law and that appellant has not made out a cause of action in defamation.

In reviewing the grant of preliminary objections for failure to state a cause of action, we must accept as true the facts set forth in the complaint, as well as all reasonable inferences deducible therefrom, and determine whether the facts as pleaded state an actionable claim under the theories alleged. Elia v. Erie Insurance Exchange, 398 Pa.Super. 433, 581 A.2d 209 (1990).

Appellant’s count in defamation rests on the communication by appellant of statements made by appellee in discharging appellant. The allegedly defamatory statements were communicated to appellant in a letter written by an employee of appellee, appellant’s immediate supervisor, explaining the reasons for appellant’s termination:

You were terminated from your position with Ward Trucking because of your very poor employment record. Your record includes engaging in incidents of poor work performance, failing to give a conscientious effort to your position, harassing and coercing another employee, maligning the company and demonstrating a poor attitude, among other things.

Complaint, Exh. “A”. While there are no claims that appellee published the statements to any person other than appellant, appellant alleges that at the time appellee made the statements to appellant, “it was foreseeable to the Defendant [appellee] that the Plaintiff would be compelled to publish said statements to a third person such as a family member or a prospective employer,” Complaint, para. 27. Appellant further avers that he did indeed “publish” the statements to his wife, other relatives and prospective employers during interviews. Compl. para. 28. Relying on 42 Pa.C.S.A. § 8343, the trial court held that appellant failed to make out a cause of action in defamation because Pennsylvania law requires the plaintiff to prove publication by the defendant.

Section 8343 in pertinent part states:

§ 8343. Burden of proof
(a) Burden of plaintiff.—In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant—
******

42 Pa.C.S.A. § 8343(a). We have found no cases within our jurisdiction which consider whether publication of the defamatory statement by the defendant to the defamed party, followed by “compelled” publication by the defamed person to a third party, satisfies the statutory mandate of “publication by the defendant.”

Relying on cases from other jurisdictions and the Restatement (Second) of Torts, § 577, appellant urges us to hold that the publication requirement is met where the defendant makes the defamatory statement to the plaintiff who later is compelled to communicate the defamatory matter to a third party, and it was foreseeable to the defendant that the plaintiff would be compelled to publish the matter. Appellee responds that the wording of § 8843(a)(2) is clear and unambiguous, and the plain meaning of the text requires that the publication must be by the defendant. Although we do not read § 8434(a)(2) as prohibiting a claim of defamation based on compelled self-publication, we have carefully reviewed Pennsylvania law on defamation and under the particular circumstances posed by this case, we decline to adopt appellant’s novel cause of action.

Consistent with a policy favoring private resolution of disputes between employers and employees, Pennsylvania law recognizes the absolute privilege of employers to publish defamatory matter in notices of employee termination. Sobel v. Wingard, 366 Pa.Super. 482, 531 A.2d 520, 522 (1987); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984); DeLuca v. Reader, 227 Pa.Super. 392, 323 A.2d 309 (1974). Thus, a letter articulating the reasons for an employee’s termination which is published only to the employee “ ‘may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal.’ ” Agriss, supra, 334 Pa.Super. at 310, 483 A.2d at 464, quoting DeLuca, supra, 227 Pa.Super. at 399-400, 323 A.2d at 313. The purpose of the absolute privilege is to encourage the employer’s communication to the employee of the reasons for discharge by eliminating the risk that the employer will possibly be subject to liability for defamation. Where the privilege is abused by the employer’s publication of the defamatory material to unauthorized parties, the employer is no longer immune from liability. Agriss, supra, 334 Pa.Super. at 309, 483 A.2d at 463. In this case, there are no allegations that appellee communicated the contents of the letter to anyone other than appellant.

Appellant’s proposed cause of action in defamation based on a theory of compelled self-publication counters the employer’s absolute privilege to publish defamatory matter to the employee regardless of the occasion or the employer’s motive. To allow liability to attach in those instances where it is foreseeable that a discharged employee may repeat the defamatory material to a prospective employer during a job interview would, in effect, defeat the employer’s privilege, as it is highly likely that a discharged employee will be seeking other employment.

The caselaw from other jurisdictions cited by appellant recognizes a qualified or conditional privilege, as opposed to an absolute privilege, of employers to publish to employees the reasons for their discharge. Unlike the absolute privilege recognized in Pennsylvania, a qualified privilege may be overcome by a showing that the contents of the letter were false and the publication was motivated by express malice. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1346 (Colo. 1988); Neighbors v. Kirksville College of Osteopathic Medicine, 694 S.W.2d 822 (Mo.Ct.App.1985); Lewis v. Equitable Life Assurance Society, 389 N.W.2d 876 (Minn.1986); Grist v. Upjohn, 16 Mich.App. 452, 168 N.W.2d 389 (1969); Colonial Stores, Inc. v. Barrett, 73 Ga.App. 839, 38 S.E.2d 306 (1946). Because of this significant difference between Pennsylvania law and the law from these other jurisdictions, we do not find these cases persuasive. While we appreciate the employee’s interest in truthful communication in the context of the employee’s termination, we find that appellant’s position is at odds with the law of this Commonwealth regarding the employer’s absolute privilege. We hold that where the defamation action rests on the publication of an employee termination letter by the employer to the employee only, the requirement that the defamatory matter be published by the defendant is not met through proof of compelled self-publication. We express no view as to whether under a different set of circumstances, compelled self-publication of the defamatory material by the defamed person, rather than by the defendant, to a third party will suffice.

Appellant’s cause of action for wrongful discharge is based on discharge with the specific intent to harm the employee. Appellant finds support for his specific intent to harm theory in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) and several Superior Court cases interpreting Geary. Appellee responds that Pennsylvania law does not recognize a cause of action for wrongful discharge based on specific intent to injure.

It is well-established that in Pennsylvania an at-will employee may be terminated for good reason, bad reason, or no reason at all. Hershberger v. Jersey Shore Steel Co., 394 Pa.Super. 363, 575 A.2d 944, 946 (1990). Our supreme court has recently stated:

It should be noted that, as general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.

Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346, 348 (1990), citing Clay v. Advanced Computer Applications, 522 Pa. 86, 88-90, 559 A.2d 917, 918 (1989); See also Hershberger, supra. Although the court in Geary, supra did consider and reject the plaintiffs cause of action for wrongful discharge based on specific intent to harm, the court stated that “[w]e hold only that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.” 456 Pa. at 184-85, 319 A.2d at 180. Although in several cases this Court has interpreted Geary as recognizing a cause of action under the specific intent to harm theory, see Mudd v. Hoffman Homes For Youth, 374 Pa.Super. 522, 543 A.2d 1092, 1096 (1988); Tourville v. Inter-Ocean Insurance Co., 353 Pa.Super. 53, 508 A.2d 1263 (1986), allocatur denied 514 Pa. 619, 521 A.2d 933 (1986); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306, 318 (1986), in at least one case, this Court has interpreted Geary as viewing a discharge motivated by specific intent to harm as an example of when a discharge violates public policy. Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Div., 281 Pa.Super. 560, 422 A.2d 611 (1980). We note that all of these cases were decided prior to the Clay and Paul cases, which clearly hold that the only exception to the employment at-will doctrine is where the discharge violates clear mandates of public policy. Thus, to survive a challenge of failure to state a cause of action, the complaint must establish the violation of a public policy.

The public policy exception is limited to terminations of employment that have violated significant and recognized public policies:

[T]he extent to which public policy limits an employer’s control over his business must be determined on a case by case basis____ An essential element in permitting a cause of action for wrongful discharge is a finding of a violation of a clearly defined mandate of public policy which “strikes at the heart of a citizen’s social right, duties and responsibilities.”

Hineline v. Stroudsburg Electric Supply Co., Inc., 384 Pa.Super. 537, 559 A.2d 566 (1989), allocatur denied 524 Pa. 628, 574 A.2d 70 (citations omitted). In Cisco v. United Parcel Services, Inc., 328 Pa.Super. 300, 306, 476 A.2d 1340, 1343 (1984), this Court noted that:

“The sources of public policy [which may limit the employer’s right of discharge] include legislation; administrative rules, regulation, or decision; and judicial decision. In certain instances, a professional code of ethics may contain an expression of public policy____ Absent legislation, the judiciary must define the cause of action in case-by-case determinations.

Id., citing Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (1980). Indeed, in the few cases in which this Court has held that a claim has been stated for wrongful discharge based on the employer’s violation of public policy, there existed a statute evidencing a legislative recognition of some public policy. In Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989), the Court recognized a cause of action for wrongful discharge where the employee was discharged for reporting the employer’s violations of the Nuclear Regulatory Commission (NRC) to the NRC. The Court ífoted that under the federal Energy Reorganization Act, the plaintiff was required to report these violations. The plaintiff’s reporting of the NRC violations furthered the “well-recognized, substantiated” public concerns of protecting the health and safety of the public against the dangers of radiation. Id., 388 Pa.Superior Ct. at 420, 565 A.2d at 1180. In Hunter v. Port Authority of Allegheny Cty., 277 Pa.Super. 4, 419 A.2d 631 (1980), the employer refused to allow the plaintiff, who had previously b^n told he could begin work, to begin employment because of the employee’s past felony conviction for assault. In holding that the plaintiff had made out a cause of action for the employer’s refusal to employ, the court relied on “the deeply ingrained public policy” against unwarranted stigmatization of former offenders. Id., 277 Pa.Superior Ct. at 13 n. 5, 419 A.2d at 636 n. 5. As evidence of the established public policy, the Court cited a statute which limited the use of the employee’s criminal records by employers when making employment decisions, and judicial decisions which recognized the policy of limiting the employer’s use of an individual’s past criminal record to restrict the employee’s right to engage in lawful employment. Id., 277 Pa.Superior Ct. at 9-11, 419 A.2d at 634-35. In Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978), we held that an employee discharged for performing jury duty was entitled to recover for wrongful discharge. In support of its finding that jury service is an important and recognized public policy, the Court relied on a statute which requires our citizens to serve jury duty and the Pennsylvania constitutional provision granting the right of trial by jury. Id., 277 Pa.Superior Ct. at 32-33, 386 A.2d at 120-21.

On the other hand, in Geary, supra, our supreme court held that the discharge of an employee for complaining about defective products to management did not state a cause of action for wrongful discharge under the public policy exception. See also Yaindl, supra (discharge for calling to the company’s attention defects in the manufacturing of pumps for an overseas company did not violate any stated public policy). In Hineline, supra, this Court rejected the employee’s claim for wrongful discharge based on the employee’s dismantling of his employer’s illegal video and audio surveillance equipment. In addition,

this Court has refused to find that a public policy violation exists where an employee was discharged after complaining about the financially wasteful manner in which his department was run, Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985); where an employee was discharged for actively seeking a position with a competitor, McCartney v. Meadowview Manor, Inc., 353 Pa.Super. 34, 36-37, 508 A.2d 1254, 1255 (1986) ; where relations with those under the employee’s supervision had deteriorated irretrievably, Turner [v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 505 A.2d 259 (1985)], where an employee was discharged even though he had done the job well, Betts v. Stroehmann Bros., 355 Pa.Super. 195, 512 A.2d 1280 (1986); where false accusations of criminal behavior led to discharge, Gillespie v. St. Joseph’s Univ., 355 Pa.Super. 362, 513 A.2d 471 (1986); where an employee claimed that every person had a right to earn a living in a job that he chooses, Marsh \v. Boyle, 366 Pa.Super. 1, 530 A.2d 491 (1987) ]; where a college president was discharged for insisting on a publicly conducted investigation of illegal activities of member of the Board and a dean of the College, Rinehimer v. Luzerne County Community College, 372 Pa.Super. 480, 539 A.2d 1298 (1988).

Hineline, supra, 384 Pa.Super. at 541-42, 559 A.2d at 569. See also Darlington, supra (no public policy was violated where investigation leading to discharge was heavily slanted against employee, and employee was not given the opportunity to defend against the evidence which was accumulated against him).

Instantly, appellant has failed to point to any statutorily or judicially recognized public policy which was violated by appellee in terminating appellant. In support of the count in wrongful discharge, the Complaint alleges that appellee selectively enforced its company rules against appellant; that appellant’s supervisor, Steve Patton, personally disliked and was jealous of appellant, and appellee exaggerated or fabricated numerous incidences of job misconduct by appellant. While appellee’s alleged behavior may be reprehensible, the allegations simply do not rise to the level of significant and recognized public policy violations which would support a cognizable cause of action for wrongful discharge. None of the allegations “strike at the heart of the citizen’s social right, duties, and responsibilities.” Appellant has failed to state a cause of action for wrongful discharge.

For the foregoing reasons, we affirm the order of the trial court dismissing appellant’s complaint.

Order affirmed.

      . On appeal, appellant does not challenge the trial court’s dismissal of a second count for wrongful discharge based the employer’s violation of appellant’s constitutional right to freedom of speech.


author: TAMILIA, Judge:

text:
    585 A.2d 1027
    COMMONWEALTH of Pennsylvania v. Michael E. EYSTER, Appellant (Three Cases). COMMONWEALTH of Pennsylvania v. Murril LARSEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1990.
    Filed Jan. 18, 1991.

      Craig P. Miller, Lock Haven, for Michael E. Eyster.
    Peter Rosalsky, Public Defender, Philadelphia, for Murril Larsen.
    Merritt E. McKnight, Dist. Atty., Lock Haven, Hugh J. Burns, Philadelphia, Asst. Dist. Atty., for Com.
    Stuart B. Suss, Asst. Dist. Atty., Lock Haven, amicus curiae in Nos. 415, 416 and 417.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

These appeals are taken from judgments of sentence and are together before the Court en banc for determination of their common issue: the proper interpretation and application of the term “previously convicted,” as defined in 42 Pa.C.S. § 2154(a)(2), in determining a defendant’s prior record score for sentencing purposes.1 These cases present an issue of first impression under the new sentencing guidelines, 204 Pa.Code § 303. et seq., and the guidelines’ enabling statute, 42 Pa.C.S. § 2151 et seq. As we find the appearance of a substantial question presented by appellants as to this issue, this Court grants allowance of appeal from the discretionary aspects of the sentences imposed upon appellants. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S. § 9781(b).

As an initial matter, however, before we may address the central issue of these appeals, we must first deal with the Commonwealth’s contention that appellant Murrill Larsen’s claim as to the discretionary aspects of sentencing has been waived for failure to raise the claim in a motion for reconsideration of sentence, as required by Pa.R.Crim.P. 1410.

Our Supreme Court in Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984), relying on an earlier decision in Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978), held a discretionary sentencing issue is preserved for appellate review if raised either at the time of sentencing or in a motion to modify sentence. As neither Walls nor Tomasso have been overruled, and as appellant Larsen raised the issue now under review at the sentencing hearing, we find his claim has not been waived.

Turning now to the cases before us, a brief factual history of each case will expedite analysis of the issue as it relates to the respective cases.

COMMONWEALTH v. EYSTER

Appellant Michael Eyster, charged with three separate sales of controlled substances, the first two for sale of cocaine and the third for sale of marijuana, entered negotiated pleas of guilty to all three offenses on March 3, 1989 and was sentenced on June 21, 1989. Appellant was sentenced to a term of three (3) to twelve (12) months imprison-, ment on the first offense, a consecutive sentence of nine (9) to thirty-six (36) months on the second cocaine offense and a consecutive sentence of six (6) to twelve (12) months for sale of marijuana. The trial court determined each of the three offenses stemmed from a separate transaction, and, therefore, determined the three convictions must be “stacked” under sections 303.6 and 303.7 of the sentencing guidelines. Thus, although sentencing for all three offenses occurred on the same day, the court attached a prior record score of zero to the first offense, resulting in a prior record score of two on the second offense, both convictions resulting in a prior record score of four on the third offense. We are presented, then, with appellant’s claim that the court erred in utilizing earlier convictions on the same day to enhance the prior record score, where the prior convictions did not precede the commission of the offense upon which sentence was currently being imposed.

COMMONWEALTH v. LARSEN

Appellant Murrill Larsen was convicted on July 21, 1989 of unauthorized use of an automobile and receiving stolen property. Appellant was sentenced to a term of one and one-half (IV2) to three (3) years imprisonment, based in part upon the trial court’s consideration of two convictions for crimes which were committed before commission of the instant offenses, but for which conviction did not occur prior to commission of the instant offenses. Using the two earlier charges, the trial court adopted a prior record score of four and as in Eyster, supra, appellant claims the sentencing court erred under the applicable provisions of the sentencing guidelines and the sentencing code, which allow consideration of prior convictions in computing a prior record score only if both the conduct constituting the offense and the adjudication of guilt on that offense occurred prior to the commission of the later offense. In this case, while the commission of the other crimes was prior in time to commission of the current offense, conviction on the prior charges occurred subsequent to commission on the current charge.

DISCUSSION EYSTER

On appeal, Eyster argues the three drug sales had, in fact, been part of a single transaction mandating computation of the prior record score only for the most serious offense under section 303.6. This turns on whether amend-merits to the sentencing code have changed the law and its interpretation as was pronounced by this Court in Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986) (en banc), and Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986).

The sentencing commission, in its comments, has taken the view that the legislature, in amending the language of 42 Pa.C.S. § 2154 to include the definition of “previously convicted” to supersede Mourar and Wolfe, expressed an intent to permit the use of any earlier committed offenses to increase the prior record score, so long as conviction on that offense occurred prior to commission of the current offense. It goes on to state it is not necessary that a finding of guilt on the prior sentence occur before the current offense is sentenced and not necessarily before the commission of the current offense or verdict or plea on the current offense. This latter comment is confusing and contradictory to the wording of the statute infra.

As applied to Eyster, guilty pleas were entered on two offenses of delivery of cocaine, which occurred on April 26, 1988 and October 4, 1988, and to one count of delivery of marijuana, which occurred on October 11, 1988. Eyster had no prior convictions and, in a plea negotiated in consideration of his cooperation with the Commonwealth, he was promised the lowest minimum sentence authorized under the mitigated range of the guidelines. The trial court determined the sentencing guidelines require that the earlier offenses be utilized in computing the prior record score to be applied to the later offenses. Thus the April 26th offense carried a prior record score of zero (0), the April 26th conviction becoming a prior record score of two (2) for the October 4th count, the two earlier convictions, therefore, resulting in a prior record score of four (4) which was applied to the October 11th charge.

It is necessary that we review the amendment to the sentencing code, as promulgated by the legislature, to determine if the interpretation applied to the guidelines was correct. In making this determination, it is appropriate to consider the precipitating factors leading to the legislative changes and to determine how those provisions would, in fact, be modified.

The changes worked by the legislation are contained in 42 Pa.C.S. § 2154. The prior statutory provision read, in pertinent part, as follows:

§ 2154. Adoption of guidelines for sentencing
The commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant. The guidelines shall:
(2) Specify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon.

(Emphasis added.)

Pursuant to Mourar and Wolfe, supra, this Court held a defendant must have been sentenced for a prior crime before the current crime was committed in order for the earlier crime to qualify for enhancement of a prior record score. This was determined after a review of history of recidivist legislation and case law in this state. Also, since the Sentencing Commission was empowered to enact guidelines to implement the legislation, this Court reviewed and applied those guidelines in deciding Mourar and Wolfe. Decisive in that respect was the interpretation given to prior conviction by the Sentencing Commission. At that time, the guidelines defined prior conviction as follows:

§ 303.7(g) Prior Conviction. A prior conviction is defined as a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal has been taken on the offense.

Based on simple logic and clarity of construction, the only reasonable conclusion we could reach was that the prior conviction and sentence must have preceded commission of the current offense in order to be included in prior record score calculations. Wolfe, supra.

The legislature, in response to Wolfe and Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987), enacted amendatory legislation to clarify its intent as to its meaning of prior conviction (Wolfe) and prior juvenile offense (Tilghman), which brings us to the current cases and issue before us.

The legislation, pursuant to which the current guidelines are in effect, 42 Pa.C.S. § 2154, reads as follows:

§ 2154. Adoption of guidelines for sentencing
(a) General rule.—The commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for defendants who plead guilty or nolo contendere to, or who were found guilty of, felonies and misdemeanors. The guidelines shall:
(1) Specify a range of sentences applicable to crimes of a given degree of gravity.
(2) Specify a range of sentences of increased severity for defendants previously convicted of or adjudicated delinquent for one or more misdemeanor or felony offenses committed prior to the current offense. For purposes of this section “previously convicted or adjudicated delinquent” shall include any finding of guilt or adjudication of delinquency whether or not sentence has been imposed or disposition ordered prior to the commission of the current offense.

In its implementation of this legislation, the Sentencing Commission took the prudent implementing step of redefining prior conviction and adjudication of delinquency by adopting the following statutory language:

§ 303.7(g) Prior convictions and adjudications of delinquency. A prior conviction means “previously convicted” as defined in 42 Pa.C.S. § 2154(a). A prior adjudication of delinquency means previously adjudicated delinquent as defined in 42 Pa.C.S. § 2154(a)(2).

(204 Pa.Code §§ 303.1-303.9, effective April 25, 1988.) While the Commission has provided comments to interpret the legislative meaning, since those comments are confusing and the Commission is relying entirely on the legislative language for its interpretation of the meaning of prior conviction or previously convicted, wisdom dictates that we ascertain the legislative intent directly without having it filter through the Commission’s attempts at clarification.

Returning to the legislative pronouncement in section 2154, it becomes clear the legislature intended that in order for a prior conviction to apply to the prior record score, 1) the person must have been previously convicted; 2) for a crime committed before the current offense; 3) whether or not sentence has been imposed on the prior offense. The simplest, most direct interpretation which can be derived from the legislation is elimination from the decision of Mourar, Wolfe and the guideline definition of prior offense, the requirement that a person must have been convicted and sentenced before the commission of the subsequent offense, to qualify the prior offense for the prior record score. The legislative intent is clear: to provide for an enhancement of punishment for those persons who stand convicted but who await sentence and to serve as a deterrent for those persons, particularly when overcrowded jails increasingly require persons to be released pending sentencing. The amendment eliminates the grace period between conviction and sentencing. It does not, however, change the underlying philosophy espoused by Mourar and Wolfe that recidivist legislation attempts to encourage offenders to stay out of trouble and punishes recidivists who refuse to be deterred even after a conviction. For these reasons, it is obvious the legislature fully intended that the commission and conviction on the prior crime occur before the commission of the current crime in order for prior record score points to apply. This interpretation prevents the stacking that occurred in Wolfe and which is implicated here.

In this case, three separate crimes were committed, but before there were any convictions, the run of crimes was completed. Therefore, the requirement of the statute that the guidelines shall “[s]pecify a range of sentences of increased severity for defendants previously convicted ... for one or more misdemeanor or felony offenses committed prior to the current offense ” was lacking. 42 Pa.C.S. § 2154(a)(2) (emphasis added). To assure that the Wolfe/Mourar interpretation of conviction was altered to insure that conviction did not also include sentencing, it further mandated “ ‘previously convicted ...' shall include any finding of guilt ... whether or not sentence has been imposed ... prior to the commission of the current offense.” Id. (Emphasis added).

While amicus and appellee would refer us to the comments of the legislators in debate and/or those of the Sentencing Commission, we believe it is unnecessary because we perceive no ambiguity in the statutory language, and the legislative change, which the amendment sought to achieve, is self-evident.

Applying the above construction to the facts of this case and to the manner in which the guidelines were applied to the sentence by the trial court, we hold the court erred in stacking the earlier charges which were not “previous convictions” of record at the time of commission of the crimes to which they were applied as prior convictions pursuant to section 303.7(g) of the guidelines. The proper prior record score to be applied to each of the convictions for sentencing purposes is zero.

We, therefore, vacate the sentence as imposed and remand for resentencing in conformity with this Opinion and in accordance with the negotiated plea.

DISCUSSION—LARSEN

Turning to the sentencing of Larsen and applying the test we have developed in reviewing Eyster above, we must conclude the court erred in sentencing in this case for similar reasons. The facts establish a different order of sentencing, but because the clear mandates of the statute, 42 Pa.G.S. § 2154, and the guideline section 303.7(g) were not followed, this case must be remanded for resentencing in accordance with this Opinion. A brief analysis of the sentencing procedure will point clearly to the defect which requires vacation of the sentence and remand.

Larsen was convicted on July 21, 1989 on the current charges of unauthorized use of an automobile and receiving stolen property. In sentencing Larsen to a term of one and one-half (IV2) to three (3) years imprisonment, the court applied a prior record score of four to enhance this sentence. The score was derived from two offenses which, although they were committed before the December 18, 1988 commission of the current offense, did not result in convictions until after commission of the present offense. As we stated in our discussion regarding Eyster, the test provided by the statute is two-fold: 1) the person must have been previously convicted; 2) for a crime committed before the current offense. Whether or not the person has been sentenced on the prior offense is no longer relevant to this consideration. In this case, Larsen committed two crimes prior to the commission of the current offense, which satisfies one of the two prongs announced by the statute and guidelines. However, the convictions on those charges came after the commission of the current offense. Since the second prong requires conviction on the earlier offense prior to commission of the current offense, the application of a prior record score of four to the current offense, based on those offenses, is error. The prior record score in this case must be zero.

Obviously, this appears to give the defendant an unwarranted benefit, but it is impossible to provide a sentencing code which covers every possible contingency that may arise in sentencing. It is better for consistency and uniformity of interpretation to be applied across the board for the vast majority of cases while a few defendants in infrequent cases receive a benefit, than to create a cumbersome, confusing and error prone system which breeds continued litigation. We believe the statute is clear and unambiguous and our application herein is the only possible one to the facts of this case. To adopt appellee’s position would be to permit any combination of dates of commissions of crimes and convictions, to result in application of prior record score points and thereby make meaningless language clearly intended to provide a sequential ordering in keeping with long standing due process considerations and recidivist philosophy. Even though there might be two interpretations of the statute, which we do not concede, what we said in Wolfe, supra, bears repeating:

When a criminal statute is susceptible of two constructions, both reasonable, it is not the construction that is supported by the greater reason that is to prevail but the one that operates in favor of the defendant’s liberty, and if there is doubt, the defendant must be given the benefit of the doubt.

Commonwealth v. Smith, 333 Pa.Super. 155, 481 A.2d 1352, 1355 (1984) (citations omitted). This principle is in turn consistent with the theory underlying habitual criminal legislation, viz. that:

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.
Commonwealth v. Sutton, 125 Pa.Super. 407, 189 A. 556 (1937) (citations omitted).

Id., 349 Pa.Superior Ct. at 418-19, 503 A.2d at 437.

We are convinced that in most cases when the Commonwealth intends to take advantage of previous conviction scores, where crimes are committed and prosecuted in a tight time-frame and in close proximity to each other, attention to procedural time lines will minimize the problem. We believe, however, as we have described in Mourar and Wolfe, supra, the intent of recidivist legislation is to deal with persons as recidivists over a broad spectrum of time and criminal activity and is not designed nor intended to be a numerical stepladder to accumulate points to enhance sentences for people involved in crime sprees in abbreviated time frames, or cases stretched out by law enforcement officials attempting to maximize their efforts in corralling persons involved in a network of criminal activity. The sentencing guidelines have sufficient flexibility within the structured ranges to account for those circumstances without application of enhancement factors derived from prior record scores.

For the above reasons, the judgment of sentence is vacated and the case remanded for resentencing consistent with this Opinion.

      . Neither appellant disputes that the sentencing court properly may consider other offenses in determining sentence, Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987), but only that the respective sentencing courts erred in using the prior convictions to determine appellants’ prior record score.

      . Defendant’s offenses and convictions, in chronological order, are as follows:

        1988 April 29, 1988—Defendant committed armed burglary-robbery (offense 1)
      August 30, 1988—Defendant committed felony drug conspiracy offense (offense 2)
      December 18, 1988—Defendant committed instant offense, theft and unauthorized use of a car (instant offense)

        1989 May 17, 1989—Defendant found guilty of offense 1
      July 18, 1989—Defendant found guilty of offense 2
      July 21, 1989—Defendant found guilty of instant offense September 22, 1989—Defendant sentenced on instant offense; offenses 1 and 2 counted in calculating defendant’s prior record score.