author: CIRILLO, Judge: SAMUEL C. RANCK, Judge:

text:
    451 A.2d 729
    COMMONWEALTH of Pennsylvania v. Richard Harry FORTUNE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 5, 1982.
    Filed Oct. 8, 1982.

      Peter T. Campana, Williamsport, for appellant.
    James J. Rosini, District Attorney, Northumberland, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

Appellant, Richard Harry Fortune, was convicted by a jury on November 19, 1979, of second degree murder, rape, and criminal conspiracy to commit second degree murder. After trial counsel timely filed post-verdict motions, he was replaced by present counsel who also filed additional post-verdict motions. These motions were denied by the trial court. Appellant was sentenced to life imprisonment on the second degree murder conviction and a concurrent term of not less than ten nor more than twenty years imprisonment on the criminal conspiracy conviction. He was additionally sentenced to a consecutive term of imprisonment of not less than ten nor more than twenty years on the rape conviction. This appeal followed.

Appellant raises two issues on appeal: (1) trial counsel was ineffective for failing to call as a defense witness appellant’s brother, Roy Fortune; and (2) the evidence is insufficient, as a matter of law, to convict appellant of the crimes charged. We raise a third issue, sua sponte, that is that appellant was illegally sentenced when a consecutive sentence was imposed on him for the rape conviction.

We find no merit to appellant’s first contention, and we adopt the finding of the trial court in regard to the issue of ineffectiveness.

Appellant’s second contention is that the evidence is insufficient, as a matter of law, to sustain the convictions. We find no merit to this argument.

It is well settled that the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973). It is the province of the factfinder to weigh the evidence. Commonwealth v. Alston, 461 Pa. 664, 337 A.2d 597 (1975). The factfinder can believe all, part, or none of the evidence. Commonwealth v. Smith, 457 Pa. 638, 326 A.2d 60 (1974). The test for the sufficiency of the evidence was set forth in Commonwealth v. Jackson, 466 Pa. 311, 313, 353 A.2d 370, 371 (1976) as follows:

The test for the sufficiency of the evidence is whether accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the fact-finder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.

The record so viewed establishes that on January 26,1979 in the early afternoon, appellant, his brother, Roy Fortune, and Robert Martin were riding in Martin’s mother's car in Potts-ville when they picked up the victim, Cynthia Nosek, who was hitch-hiking. While driving around the area, they stopped to buy food and alcoholic beverages. Later in the day, they travelled to and stopped at a remote area of Northumberland County referred to as the “Grate.” Appellant told the victim to remove her clothes. She refused, stating that she had previously been raped. As appellant began to remove her clothes, she indicated that she would take her clothes off, and she removed her blouse and bra. Appellant removed her pants and placed her in the rear of the station wagon. The victim went into a convulsion, appellant had sexual intercourse with her, and she became unconscious. Appellant stated afterwards to his co-conspirators that “we raped her, we can’t let her go because she’ll go to the cops and we’ll get in trouble,” The victim was beaten in the head, chest and pelvic areas and was repeatedly stabbed, which led ultimately to her death.

Based on the applicable law, we believe that the evidence was sufficient to convict appellant of murder of the second degree (felony-murder), rape and criminal conspiracy.

Although appellant has not raised the question of the imposition of an illegal sentence, we may raise the issue, sua sponte, since the question of the legality of the sentence is never waived. Commonwealth v. Belgrave, 258 Pa.Super. 40, 49, 391 A.2d 662, 666 (1978).

While the criminal conspiracy conviction does not merge into the completed offense of second degree murder, See Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980), we believe that the consecutive sentence imposed on the underlying felony of rape should have merged with the sentence of life imprisonment imposed on the felony-murder conviction.

The relevant statutes provide as follows:

Murder of the second degree—A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

Act of 1978, April 28, P.L. 84, No. 39, § 1, 18 Pa.C.S.A. § 2502(b).

Definitions—. . .
Perpetration of a felony—The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping, (emphasis added)

Id., 18 Pa.C.S.A. § 2502(d).

The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (a) protection against a second prosecution for the same offense after an acquittal; (b) protection against a second prosecution for the same offense after conviction; and, (c) protection against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); U.S. v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). Our concern in this case is with the third guarantee. Recently, the Pennsylvania Supreme Court in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), held that under the 1939 Penal Code, the underlying felony of robbery was a constituent offense of felony murder. While the felony murder statute which governs the present case is a different one than applied in Tarver, we believe that a similar holding is called for here.

Additionally, the Supreme Court of the United States in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), discussed the District of Columbia felony-murder statute which is similar to 18 Pa.C.S.A. § 2502. In that case, Whalen was convicted of killing the victim in the perpetration of the rape. He was sentenced to consecutive sentences of imprisonment on each conviction. The United States Supreme Court held that the sentence imposed was improper because the rape merged into the murder for sentencing purposes:

In the present case, however, proof of rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another offense.

Id., 694, 100 S.Ct. at 1439, 63 L.Ed.2d at 725.

In the instant case, we find that the sentence imposed on the underlying felony, rape, should have merged at sentencing with the sentence imposed on the second-degree murder conviction. We need not remand, since we are authorized to vacate the consecutive sentence imposed on the rape conviction. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). We, therefore, affirm the sentence of life imprisonment on the second degree murder conviction and the concurrent term of imprisonment on the criminal conspiracy conviction, and we vacate the consecutive sentence imposed on the rape conviction.

Judgment of sentence is affirmed on the second degree murder conviction and on the criminal conspiracy conviction, and vacated on the rape conviction.

APPENDIX

OPINION

SAMUEL C. RANCK, Judge:

Before the Court are Defendant’s post-trial motions for new trial and in arrest of judgment. Defendant was convicted by a jury on November 19, 1979, of murder in the second degree, rape, and conspiracy to commit murder in the second degree. Defendant’s trial counsel filed post-verdict motions and supplemental motions on his behalf. Trial counsel was subsequently replaced by present counsel who was permitted to file additional post-verdict motions. Of all these, only two grounds have been briefed and argued before the Court, and therefore, those will be the only grounds considered. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).

I.

Defendant first challenges the sufficiency of the evidence to convict him of the crimes for which he was charged. Particularly, Defendant contends that there was insufficient evidence of “forcible compulsion” or “threat of forcible compulsion” to sustain the charge of rape, and that if the rape conviction cannot stand as an underlying felony, then the felony murder and the conspiracy to commit felony murder convictions must both fall in a domino-type manner.

The Crimes Code defines rape in section 3121:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; . . .

The requirement that the act be committed by forcible compulsion or threat of forcible compulsion has recently been explained by the Superior Court in Commonwealth v. Rough, [275] Pa.Super. [50], 418 A.2d 605 (1980):

The force necessary to support a rape conviction need only be such as to establish a lack of consent, and it is relative depending upon the particular circumstances. Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978). [C]onsent is an act of free will. It is not the absence of resistance in the face of actual or threatened force inducing a woman to submit to a carnal act; active opposition is not a prerequisite to finding lack of consent. Commonwealth v. Hayden, 224 Pa.Super. 354, 356-57, 307 A.2d 389, 390 (1973). See Commonwealth v. Moskorison, 170 Pa.Super. 332, 85 A.2d 644 (1952). Outcry, struggle and fresh complaint need not be proven to sustain a rape conviction, but are merely factors to be weighed by the trier of fact. Johnson Appeal, 445 Pa. 270, 284 A.2d 780 (1971); Commonwealth v. Hornberger, 199 Pa.Super. 174, 184 A.2d 276 (1962).

275 Pa.Super, [at 56-57], 418 A.2d at 608.

Viewing the evidence in a light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, there is clearly sufficient evidence in the record for the jury to have found Defendant guilty of rape beyond a reasonable doubt. The record reflects that on January 26, 1979, the Defendant, his brother Roy Fortune, and Robert Martin were riding in Martin’s mother’s car in Pottsville, Pennsylvania, when they picked up the victim, Cynthia Nosek, while she was hitchhiking. They proceeded to drive around the area, eventually returning to Northumberland County, stopping along the way to buy food and alcoholic beverages. Late in the afternoon they traveled to a remote area of the County referred to as the “Grate.” Shortly after arriving, the Defendant told Cynthia to remove her clothing. She refused, stating that she had been raped once before. When he began to remove her clothing she indicated she would do this herself, and proceeded to take off her blouse and bra. The Defendant removed her pants and placed her in the rear of Martin’s station wagon. She became unconscious, as if in a convulsion, and the Defendant had intercourse with her. The Defendant admitted afterwards that, “We raped her, we can’t let her go because she’ll go to the Cops and we’ll get in trouble.”

While there is no evidence of a struggle with the Defendant, her initial refusal to undress and her statement that she had been raped before indicates Cynthia’s awareness of what the Defendant had in mind and her opposition to it. Furthermore, as these events took place in a remote area of the County unfamiliar to the victim, it is not surprising that she made no further efforts to protect herself. Finally, by stating that the victim had been raped, the Defendant has indicated his own awareness that his intercourse with her had been without her consent. For the foregoing reasons, the claim of insufficiency of the evidence is without foundation.

II.

Defendant has also asserted that his trial counsel was ineffective by failing to call as a defense witness the Defendant’s brother, Roy Fortune, an eyewitness to the events of January 26, 1979. An evidentiary hearing was held to determine the basis for trial counsel’s decision.

The hearing testimony indicated that the Defendant and Roy initially consulted with Harry Klein, Esq., Chief Public Defender of Northumberland County. The facts as related to Attorney Klein by Roy were substantially that it was Martin and not the Defendant who raped and killed the victim. Roy later informed the Defendant of his willingness to testify on the Defendant’s behalf at trial. However, Roy’s own counsel, Jack C. Younkin, Esq. indicated that it would have been highly prejudicial to his client’s interests for him to have testified for the Defendant, as Roy’s own trial for offenses arising out of the events of January 26, 1979, was scheduled for a date later than the Defendant’s trial. Attorney Younkin would have advised Roy of this, and of his right against self-incrimination, had Attorney Klein attempted to have him testify.

Attorney Klein decided not to call Roy at the Defendant’s trial because Roy did not impress him as one likely to be an effective witness. He considered that Roy’s non-assertive personality would have made him susceptible to becoming confused or excited on cross-examination, and that his direct testimony would add little to the Defendant’s testimony. Attorney Klein also considered the Defendant to be a strong witness with a better ability to communicate effectively with the jury than his brother.

The standard to be applied when evaluating the effectiveness of counsel’s representation was set out in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

[cjounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.

427 Pa. at 604, 235 A.2d at 352.

Taken as a whole, the record at the evidentiary hearing reflects that Attorney Klein’s decision not to call Roy was based on his reasonable evaluation of the relative merits of what Roy could offer in furtherance of the Defendant’s cause. It also might be noted that had Roy been called as a witness he would have been subject to cross-examination, not only as to his bias as a close family member of the Defendant, but also as a corrupt and polluted source as an accomplice. It is true that one who has exculpatory evidence to offer would ordinarily be a prime candidate for calling at trial, and there are cases which have held that failure to do so is ineffective assistance of counsel. See eg. Commonwealth v. Stiefel, [286] Pa.Super. [259], 428 A.2d 981 (1981). However, where the failure to call a witness is reasonably designed to effectuate the Defendant’s interests, as it was here, counsel has not acted ineffectively. Commonwealth v. Banks, 267 Pa.Super. 10, 405 A.2d 1277 (1979); Commonwealth v. Robinson, 232 Pa.Super. 328, 334 A.2d 687 (1975).

ORDER

AND NOW, September 17, 1981, after due consideration of the written and oral arguments of counsel, IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Motions for New Trial and In Arrest of Judgment are DENIED.

      . Act of 1978, April 28, P.L. 84, No. 39, § 1; 18 Pa.C.S.A. § 2502(b).

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 3121.

      . Id.; 18 Pa.C.S.A. § 903.

      . Act of 1939, June 24, P.L. 872, § 701; 18 Pa.C.S. § 4701.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    451 A.2d 734
    COMMONWEALTH of Pennsylvania v. Simon EVANS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1981.
    Filed Oct. 8, 1982.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      Nino V. Tinari, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and BECK, JJ.
   BECK, Judge:

This appeal is from denial to appellant of relief under the Post Conviction Hearing Act (“PCHA”). Appellant claims he was denied his constitutional right to effective assistance of counsel. The Pennsylvania Supreme Court recently reasserted in Commonwealth v. Schroth, 495 Pa. 561, 564, 435 A.2d 148, 149 (1981) the standard of review where ineffective assistance of counsel is claimed:

In considering appellant’s claim of ineffective counsel, we are governed by Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where we held that a court must independently review the record and examine counsel’s stewardship in light of available alternatives. The inquiry ceases and counsel is deemed to have been effective once the court is able to conclude that counsel’s actions had a reasonable basis designed to effectuate the client’s interests. The test is not whether it appears on hindsight that another course of action would have been more reasonable. Further, counsel is not ineffective in failing to assert a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

BACKGROUND

On January 7, 1972, Hayes Fulton heard someone running downstairs in the house where he rented a room and observed a black man and black woman leave the house, enter a car, and drive away. He later described the car to police officers as a dark blue or black Pontiac and supplied them with the license number which he had committed to memory. Mack Baker was found to have been brutally murdered in that house.

The police checked the license number given them by Mr. Fulton and found it to be registered to a William Campbell with an address near the murder scene. In the early afternoon of January 7, the police questioned Mr. Campbell. He told them that his license plate had been taken by one James Robinson and placed on a dark colored Pontiac which Mr. Campbell had seen driven by both James Robinson and Simon Evans, appellant herein. He also stated that he believed appellant to be the owner of that vehicle.

The following morning, January 8, at 7:10 a.m., the police proceeded to appellant’s residence. They observed a dark colored Buick bearing the above license plate parked on the same block. The police were admitted into appellant’s building by his girlfriend who directed them to an upper room where they found appellant sleeping and arrested him. He was given only partial Miranda warnings because he interrupted the officers attempting to state them by saying: “I know all that.” After he was transported to police headquarters where he was given his full Miranda warnings, he volunteered an oral confession.

While additional evidence against appellant was introduced at trial through the testimony of Maxine Ward who had pleaded guilty to murder of the second degree for this crime and was awaiting sentence, it is evident that the submission to the jury of appellant’s recorded oral confession was a major contributing factor in the verdict.

The jury found appellant guilty of murder of the first degree.

PCHA CLAIMS BY APPELLANT

In his petition, as amended by appointed counsel, and in this appeal, appellant claims four separate instances of trial counsel’s failure to render effective assistance:

(1) Failure to preserve appellant’s claim that the statements by appellant should have been suppressed as the fruits of an unlawful arrest;

(2) Failure to submit a point for charge on voluntary manslaughter or to object to the charge by the trial judge that the jury refrain from considering voluntary manslaughter;

(3) Failure to seek to suppress evidence related to the car;

(4) Failure to assert and preserve properly the issue of unwarranted limitation of cross-examination of Maxine Ward.

Trial counsel was appointed January 13, 1972, and on March 30, 1972 he filed a Motion to Suppress the alleged statements on the sole grounds that appellant had not been given proper Miranda warnings. On August 14, 1972, that Motion was denied. The court found that, although full Miranda warnings were not given at the time of appellant’s arrest, they were given prior to taking any statement from appellant.

Trial counsel represented appellant on appeal. In that appeal, counsel attempted to raise the issue of whether the statements were involuntary as a matter of law because 1) they were the fruits of an unlawful arrest, and 2) they were not preceded by proper Miranda warnings. The Pennsylvania Supreme Court ruled that the former claim was waived by failure to raise it at the trial level and rejected the latter claim on its merits. Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 (1975).

We conclude that trial counsel failed to raise, argue, or preserve the issue of whether the statements should have been suppressed as the fruit of an unlawful arrest made without probable cause.

In evaluating the above omission in the context of an ineffective assistance claim, we must ask whether the claim foregone bore arguable merit. For it is clear that counsel is not ineffective for failing to raise baseless claims. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). “And we will find a ‘reasonable basis’ for inaction if the thing not done had no likelihood of success.” Commonwealth v. Ford, 491 Pa. 586, 594, 421 A.2d 1040, 1044 (1980).

Thus, we turn our attention to whether seeking to suppress the confession as the product of an unlawful arrest would have been a fruitless act or whether it bore a likelihood of success. In doing so, we must evaluate the substance of the foregone claim to see if it bore arguable merit. We reiterate, however, that appellant did not preserve the claim for appellate review. We will evaluate the foregone claim solely in the context of his ineffective assistance of counsel claim. Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980).

We thus turn to the claim that the police lacked probable cause to arrest appellant and that his subsequent confession therefore should have been suppressed as the fruit of that illegal arrest. In the instant case, the information upon which the police acted in proceeding to arrest appellant was the statement by an eyewitness that he had seen a black man and a black woman leaving the crime scene in a car which he described as a dark blue or black Pontiac bearing a license number that he memorized. The police traced that license number to William Campbell who told them that James Robinson put that license plate on a car which Mr. Campbell believed to be owned by appellant. The officers proceeded to appellant’s apartment and observed on appellant’s block a dark-colored Buick, which bore the previously described license plate. They arrested appellant inside his apartment.

This Court enunciated the standard for finding probable cause to arrest a suspect in Commonwealth v. Jones, 271 Pa.Super. 528, 532, 414 A.2d 379, 381 (1979):

Probable cause to arrest existed if, at the time appellant was detained by the police, the facts and circumstances known to them and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that appellant had committed the shooting. Commonwealth v. Powers, 484 Pa. 198, 201, 398 A.2d 1013, 1014 (1979). The test is not one of certainties but one of probabilities dealing with considerations of everyday life. Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 681 (1976). The facts known must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training. Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).

It is well settled that “[t]here is a substantial basis for crediting the information of an eyewitness.” Commonwealth v. Irving, 485 Pa. 596, 601, 403 A.2d 549, 551 (1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 676, 62 L.Ed.2d 651 (1980). “[IJnformation provided by an eyewitness whose identity is known has also been deemed sufficient [to establish probable cause].” Commonwealth v. Stokes, 480 Pa. 38, 44, 389 A.2d 74, 77 (1978).

We conclude that the eyewitness testimony of Mr. Fulton coupled with the officers’ further investigation supplied probable cause for appellant’s arrest. Since we here determine that the arrest was not illegal, we need not evaluate whether the fruit of that arrest, the confession, was purged of its primary taint.

Appellant also argues that the failure of trial counsel to request a point for charge on voluntary manslaughter, or to challenge the instruction by the trial judge with regard to voluntary manslaughter, rendered the assistance of counsel ineffective. This argument is based upon the rulings in United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir.1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975) and Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974) that the defendant charged with murder has a right to a charge permitting a finding of voluntary manslaughter upon requesting such a charge. However, it has been held that the rule is not retroactive. Commonwealth v. Joyner, 475 Pa. 345, 380 A.2d 754 (1977). We note that appellant’s trial predated the rule, and it is clear that at the time of appellant’s trial, “where there [was] absolutely no evidence of the elements of manslaughter it [was] not error for the trial judge to refuse to charge on this point or submit manslaughter as a possible verdict.” Commonwealth v. Kenney, 449 Pa. 562, 568, 297 A.2d 794, 797 (1972) (footnote deleted). We agree with the Commonwealth’s assertion that no evidence introduced at trial supported the conclusion that appellant was “acting under a sudden and intense passion resulting from serious provocation”, 18 Pa.C. S.A. § 2503(a), or that “he believe[d] the circumstances to be such that, if they existed, would justify the killing . . . but his belief is unreasonable.” 18 Pa.C.S.A. § 2503(b). We thus conclude that the omissions of trial counsel regarding a charge of voluntary manslaughter did not render 'his assistance ineffective as the act omitted did not have a likelihood of success.

Appellant additionally argues that trial counsel was ineffective for failing to move to suppress evidence arising from what is claimed to have been an illegal seizure and search of the car. No physical evidence resulting from the search, or even relating to the car, was introduced at trial. Counsel was not ineffective therefore in failing to move to suppress with regard to the car search. See Commonwealth v. Biebighauser, 450 Pa. 336, 300 A.2d 70 (1973).

Finally, appellant argues that the failure of trial counsel to preserve the issue of limitation of the cross-examination of Ms. Ward constituted ineffective representation. The context in which the claim is raised relates to the sustaining of objection to questions about the witness’ background as a prostitute. The questions at issue sought to elicit repetition of matter already developed in the course of direct and cross-examination. A conscious decision on the part of trial counsel to confine post-trial motions and appeal to more substantial issues appears reasonable under the circumstances.

Order affirmed.

      . Act of January 25, 1966, P.L. 1580, 19 P.S. 1180-1, et seq.

      . Appellant asserts that his confession should have been suppressed as involuntary because he was not given his full Miranda warnings. This claim was rejected, however, on direct appeal to the Pennsylvania Supreme Court. Commonwealth v. Evans, 460 Pa. 313, 315, 333 A.2d 743, 744 (1975). That issue then has been finally litigated and cannot be renewed under the PCHA petition. 19 P.S. § 1180-4(a)(3).

      . The Commonwealth argues that this claim has been waived because it was not raised in the petition filed under the PCHA. While this issue was not recited in the pro se petition originally filed by appellant, it was clearly raised in the amended petition and supporting brief filed by appointed counsel. We thus reject the Commonwealth’s waiver argument.

      . See discussion in footnote 2, supra.


author: MONTEMURO, Judge:

text:
    451 A.2d 738
    Elvin C. SMITH and Fern E. Smith, Appellants, v. James FULKROAD, Jack Fulkroad and Larry Fulkroad, t/d/b/a the Fulkroad Sanitary Landfill.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1981.
    Filed Oct. 8, 1982.
    Petition for Allowance of Appeal Denied May 10, 1983.

      Bruce D. Foreman, Harrisburg, for appellants.
    Arthur L. Goldberg, Harrisburg, for appellees.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case concerns an equity matter in which the appellants, owners of farm property, are contesting but a single principal issue: may the appellees, operators of a sanitary landfill, continue to use what was formerly a country lane located near appellants’ farmhouse as a heavily-used access road for a daily parade of trucks hauling sixty tons of refuse onto a neighboring property?

It is apparent upon review of the record that the appellants have abandoned the argument that the use of the property as a landfill is improper. The evidence that the appellees correctly advertised, and that the necessary preparations to protect the health and safety of the neighborhood were complied with is overwhelming. The closing of the landfill at the present time would indeed be expensive, inequitable, and monumentally inconvenient to the local municipalities who depend on it, as well as to appellees.

It is notable that this spectre of the harm that would be done by a reversal of that part of the decision of the lower court which concerns the use of the entire landfill site is kept alive only by the appellees. Their Brief spends six pages of its counterstatement of the case in discussing the value of the landfill and the care of preparation taken, but only a single page addresses the problem of the roadway. The expanded use of the road, however, presents a serious legal problem quite separate from the use of the landfill site as a whole. We affirm the lower court in its decision that the use of the former farm as a sanitary landfill is proper and may not be enjoined. However, as to the access road onto that property, we reverse the decision.

This action was taken in Equity and is therefore subject to the provisions of Pa.R.C.P. 1517, the pertinent terms of which are set forth below as follows:

Rule 1517. The Adjudication. Notice
(a) The court shall make an adjudication and may do so before the testimony has been transcribed. The adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law and (4) a decree nisi. (Emphasis supplied.)

Appellant contends, and we agree, that the lower court failed in its adjudication to make findings of all the facts which were necessary to be known in order to determine the issue as to the access road. The opinion en banc perpetuated that error, also stressing the use of the tract as a sanitary landfill and thereby subordinating the question as to the roadway to the outcome on the other issue. We therefore will set forth both the facts from the adjudication and from the record itself in the determination of the case.

The appellees performed their part in advertising the sanitary landfill and in preparing the farmland for its proposed use. The appellants certainly had constructive notice of the operations long before actual work on the site began. Once work began, appellant Fern Smith wrote a single protest letter to her district justice, but otherwise the appellants were passive until the day that widening and rebuilding of the dirt lane 200 yards from the Smith farmhouse was begun. Appellant and appellee agree that the appellants’ protests were then swift and consistent. They immediately protested orally to the workmen and foreman, wrote to appellees twice through their attorney, caused a survey to be made establishing their ownership to more than half the original road surface, and, after six months of protest, they filed the complaint in this action, requesting the court to enjoin commercial use of the road.

The appellants state, without contradiction, that the use of the country lane as an enlarged roadway for transport of sixty tons of refuse daily was not advertised. As to this use of what they considered to be their own property, they never had notice prior to the start of the activity that began the improvements and widening of the road. They consider that as to this part of the project their protests were timely and are not barred by laches. We agree.

Laches is an equitable defense, and its “essence” has been held to be:

. . . estoppel, arising out of an inexcusable delay in the bringing of suit which prejudices the defendant’s rights to such an extent that it would be an injustice to permit suit to be brought. Pennsylvania Turnpike Commissioners v. Atlantic Richfield Co., 31 Pa.Cmwlth. 212, 375 A.2d 890, (1977) aff’d 482 Pa. 615, 394 A.2d 491, 482 (1978).

There was no inexcusable delay involved here. As to the landfill itself, appellants made little protest, but when the accessway located upon their own property was visibly becoming involved as a permanent part of the landfill project, they moved into action immediately. Appellees had not advertised their intent to incorporate the dirt lane into this business, and they were informed of appellants’ opposition prior to the expenditure of $8,000.00 on the roadway. Appellants’ right to redress is therefore not barred by laches as to the issue of the accessway despite its applicability to the landfill site as a whole.

Once the complaint was filed, two hearings were promptly held, one on November 19,1979 and a second on February 1, 1980. The testimony established the correctness of the appellees behavior in establishing the site as a sanitary landfill and the lack of protests by the appellants despite notice.

The original dirt lane was approximately ten feet wide; more than half the road surface was on the appellants’ property, forming its southern boundary. The lane had been used by the public for many years, although traffic was sparse indeed. Seasonally, farm equipment used the road for planting and harvesting of crops; occasional horse and buggy traffic became occasional automobile traffic. Appellants’ claim to private use was refuted by local witnesses who testified to using the road at will, but all agreed that traffic was quiet, occasional, and rural.

The court below stressed a United States Geological Survey Map, published in 1953, which called this lane a light-duty public lane and showed it as connecting two highways. Testimony established, however, that the lane was always an unimproved dirt road, repaired by the appellants over their section of lane, and that a bridge over a stream had washed out long before the 1953 survey and was never repaired, permanently severing the connection between the two highways.

The court did find that the commercial truck access had “altered the rural and residential character” of appellants’ locale, that dust, dirt and noise have significantly increased, and that certain changes have occurred in the well water although these do not amount to significant pollution. In short, “a marked transformation in the former peaceful enjoyment” of their home has taken place.

The lower court found that more than half the surface of the original dirt lane belonged to the appellants, but that many years of unrestricted use of that lane by the public had created an easement by prescription. See e.g. Wampler v. Shenk, 404 Pa. 395, 172 A.2d 313 (1961). An easement, however, does not confer any title to physical property. Cain v. Aspinwall, 289 Pa. 535, 137 A. 610 (1927). What is more, the rights acquired in an easement by prescription are limited:

[The easement] must be measured by the enjoyment of it, and [defendant] had no right to use it in a different and more extensive manner. Pittsburgh & L. & E. RR. Co. v. Stowe Township, 374 Pa. 54, 96 A.2d 892 (1953) and cases cited therein.
[The easement] is limited by the user under which it is gained. Donahue v. Punxsutawney Borough, 298 Pa. 77, 148 A. 41 (1929).
... if an easement is used for any purpose inconsistent with that for which it was granted, the grantee becomes a trespasser to the extent of the unauthorized use. Biber v. Duquesne Light Co., 235 Pa.Super. 428, 344 A.2d 628 (1975).
A fundamental principle is that an easement for the benefit of a particular piece of ground cannot be enlarged and extended. . . . The purpose of this rule is to prevent an increase of the burden upon the servient estate, and it applies whether the easement is created by grant, reservation, prescription, or implication. Percy A. Brown Co. v. Raub, 357 Pa. 271, 293, 54 A.2d 35 (1947)

Advances in technology are considered to be “contemplated in the grant of an easement” 12 Pennsylvania Law Encyclopedia, 481, and testimony shows that the appellants never opposed such advances. Horse and buggy traffic slowly gave way to occasional automobile traffic and eventually automated farm equipment was also permitted. This accords with holdings that a right-of-way easement may be “used for all ordinary purposes in a reasonable manner,” Garan v. Bender, 357 Pa. 487, 55 A.2d 353 (1947); see also McCully v. Pittsburgh Rys. Co., 44 Pa.Super. 316 (1910); Taylor v. Heffner, 359 Pa. 157, 58 A.2d 450 (1948).

The right-of-way easement in this instance could not be found to extend to cover an improved road, some twenty feet in width, handling heavy trucking in the amount of sixty tons of refuse a day.

Therefore, although the lower court was correct in finding the right-of-way had become “public”, its equation of “public” with a right to alter significantly the grant of the easement was incorrect. As explained above, laches cannot apply to this issue, as the appellants’ protests were immediate, constant, and predated expenditure of money and effort on the accessway. Out of a total expenditure of $200,000 on the project, an approximate $8,000 was spent on improvement of the dirt lane to make it suitable for use by dozens of heavy trucks on a daily basis. That sum was expended after timely objection was made.

We, therefore, hold that the appellants’ suit requesting an injunction in this matter was properly taken and not barred by laches. The lower court was correct in refusing to grant an injunction against operation of the sanitary landfill as a whole, and that portion of the opinion below is affirmed. As to the accessway, however, the decision of the lower court is reversed, and an injunction against the use of the lane shall be entered.

However, as this matter is in equity and as the court has been requested to fashion relief as is equitable and proper, we hold that the permanent injunction shall not be enforced until six months after the filing of this opinion, in order to permit a new accessway to be created in another location while the landfill continues to operate.

The order of the court below is reversed, and an injunction shall issue against the appellees’ use of the appellants’ lane for commercial purposes.

WIEAND, J., concurs in the result.

      . The complaint originally requested an injunction that was more far-reaching. Specifically, the appellants wanted to restrain the appellees from (1) dumping refuse on the landfill site; (2) utilizing the lane for any commercial or industrial purpose; (3) operating the landfill in any manner. Appellants also requested “relief as equitable and proper.”


author: POPOVICH, Judge:

text:
    451 A.2d 741
    POCONO INTERNATIONAL RACEWAY INC., Appellant, v. POCONO PRODUCE INC. and United States Fidelity and Guaranty Company.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1981.
    Filed Oct. 8, 1982.
    Petition for Allowance of Appeal Granted Feb. 7, 1983.

      John B. Dunn, Stroudsburg, for appellant.
    Matthew R. Sorrentino, Bethlehem, for appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This appeal originates from a grant of summary judgment in favor of appellee. We reverse. The action arose out of a tunnel collapse at the Pocono International Raceway. The tunnel runs underneath the roadbed of the raceway and connects the infield with the outside of the track. On June 27, 1980, appellant, Pocono International Raceway, filed a trespass action against appellee, Pocono Produce, alleging that on or about June 15, 1978, one of appellee’s trucks struck at least four of the structural beams of the tunnel arch, so weakening the structural integrity of the tunnel that it collapsed sometime between October, 1978, and April, 1979. Appellee filed an answer and new matter raising the defense of the statute of limitations. After discovery, including the deposition of Dr. Joseph R. Mattioli, Chairman of the Board and chief executive officer of appellant-corporation, appellee filed a motion for summary judgment based on the statute of limitations defense. The lower court granted the motion because it found that appellant had ascertained the facts necessary to bring the action within two years after the collision took place, and, in failing to file a timely complaint, appellant was barred from bringing this action by the statute of limitations.

Appellant contends that the lower court erred in refusing to apply the “discovery rule” exception to the general rule that “mere mistake, misundertanding or lack of knowledge is not sufficient to toll the running of the statute.” Trial court opinion at 5, quoting Schaffer v. Lazelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). “The Pennsylvania ‘discovery’ rule delays the accrual of the cause of action from the time of the defendant’s negligent conduct to a time when the injury caused by that conduct becomes known or knowable.” Prince v. Trustees of the University of Pennsylvania, 282 F.Supp. 832, 840 (E.D.Pa.1968). We agree with appellant’s contention and, accordingly, reverse the lower court’s order granting summary judgment.

Summary judgment can only be issued in clear cases where there is no genuine issue of material fact. See Wallace v. Horvath, 283 Pa.Super. 179, 423 A.2d 1047 (1980); Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980). See also Pa.R.C.P. 1035(b). The facts, viewed in the light most favorable to the non-moving party, see Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979), indicate that upon the reopening of the raceway in April, 1979, Dr. Mattioli immediately inspected the tunnel and discovered that one of the I-beams had been “ripped pretty bad and distorted or warped.. . . ” (Mattioli Dep. 8/18/80, page 13). The appellant’s maintenance man, George Ewald, informed Mattioli that a refrigerated truck had struck the beam. The identity of the truck, however, was unknown to him. Ewald allegedly acquired his information about the collision through some unascertained source during the prior winter months. On or about April 4, 1979, Mattioli attempted to locate a former food supplier of his known as “Frosty Acres” by contacting Edward K. Driebe, President of appellee-corporation. Driebe, without being asked, admitted that one of his corporation’s trucks had struck the I-beam. According to Mattioli, Driebe informed him that the collision occurred on or about June 15, 1978.

The lower court’s holding that appellant’s lack of knowledge of the damage and its perpetrator did not toll the running of the statute was based on the following dictum from Schaffer, supra, “[I]f the existence of the injury is not known to the complaining party and such knowledge cannot be reasonably ascertained within the statutory period, the limitation does not begin to run until discovery of the injury is reasonably possible.” Id., 410 Pa. at 406, 189 A.2d at 270. Although this statement suggests that the discovery rule only applies when knowledge of the facts necessary to bring suit cannot reasonably be ascertained within the prescribed statute of limitations, no case has barred an action based on this rationale. In Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959), the Supreme Court, in reversing a judgment of non-suit, held that whether or not plaintiffs should have reasonably discovered that defendant’s underground conduit was the cause of his sewerage problems was a question for the jury. The Court stated:

“As for the statute of limitations, there seems to be no dispute here that the statute runs, on causes arising from subsurface injury, from the time of discovery of the cause of harm or the time when the cause of the harm reasonably should have been discovered, whichever is earlier.” Id., 397 Pa. at 141, 153 A.2d 481.

Subsequent cases have consistently held that application of the discovery rule provides the litigant with the full statutory period, commencing at the time of the discovery or when the discovery reasonably should have been made. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Aberman v. Funk, 278 Pa.Super. 385, 420 A.2d 594 (1980); Grubb v. Albert Einstein Medical Center, 255 Pa.Super. 381, 387 A.2d 480 (1978); Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978).

The discovery rule has been limited in only two areas. In Anthony v. Koppers Company, 469 Pa. 119, 436 A.2d 181 (1981), the Supreme Court, in construing 12 P.S. 1603 and 12 P.S. 34, refused to extend the discovery rule to wrongful death and survival actions by holding that an injury could be discovered no later than death for the purposes of those causes of action.

Although statutes of limitation often work harsh results, the necessity of such line drawing is observed in every jurisdiction. However, to restrict the discovery rule to those cases where an injury is not discovered until after the expiration of the otherwise appropriate statute of limitations would, under certain forseeable circumstances, work absurd and arbitrary results. The unfairness inherent in granting a full two years to bring suit to someone who discovers his injury two years and one day from the date inflicted, while barring the claim of another who had the misfortune of discovering his injury just before his fresh start deadline, is the same type of result that the discovery rule was created to avoid. This purpose was aptly summarized by Chief Justice O’Brien in his dissent in Anthony v. Koppers, supra: “The discovery rule, therefore, is best seen as a judicial response to the anomalies which inevitably result from the wooden applications of statutes of limitations.” Id., 469 Pa. at 124, 436 A.2d at 185 (O’BRIEN, C.J. Dissenting).

The lower court misapplied the general rule that mere lack of knowledge is not sufficient to toll the statute of limitations. This rule only applies where the facts necessary to bring suit had been discovered, but knowledge that a cause of action brought on account of that injury would be successful was not obtained until after the statute of limitations had run. See Wallace v. Horvath, supra, 283 Pa.Superior Ct. at 184, 423 A.2d at 1050 (BROSKY, J. Concurring).

We hold that the statute of limitations in this case was tolled until that date where the appellant reasonably ascertained that its tunnel had been damaged by appellee. Because a genuine issue of material fact exists as to whether appellant had knowledge of the alleged tortious conduct, or should have had knowledge through the exercise of due diligence, prior to June 27, 1978, summary judgment should not have issued.

Reversed and remanded for trial.

Jurisdiction is relinquished.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 5524(4).

      . In Anthony v. Koppers, 496 Pa. 119, 436 A.2d 181 (1981), the Supreme Court notes that references made in Schaffer to the discovery rule were dicta and are in no way binding. Id., 496 Pa. at 123 n. 7, 436 A.2d at 184 n. 7.

      . Repealed by Section 2(a)[310] of the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, effective June 27, 1978. See 42 Pa.C.S.A. 5524(2).

      . Repealed by Section 2(a)[807] of the Judiciary Act Repealer Act. See 42 Pa.C.S.A. § 5524(2).


author: VAN der VOORT, Judge:

text:
    451 A.2d 744
    CHELTENHAM FEDERAL SAVINGS AND LOAN ASSOCIATION v. POCONO SKY ENTERPRISES, INC. Appeal of John W. DEAN and Katherine Dean, His Wife, and Donald B. McCoy and Joan McCoy, His Wife.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Oct. 8, 1982.

      H. Robert Fiebach, Philadelphia, for appellants.
    John T. Stieh, Milford, for appellee.

      Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an appeal from the lower court’s determination of a fair market value on a Motion for Deficiency Judgment, pursuant to 42 Pa.C.S. § 8103 et seq., which is substantially a reenactment of 12 P.S. § 2621.1 et seq.

Cheltenham Federal Savings and Loan Association (hereafter referred to as Cheltenham) loaned Pocono Sky Enterprises, Inc. (hereafter referred to as Pocono) $250,000 and as security for the loan received for a mortgage on 66 non-contiguous lots in a real estate development of over 600 lots located in Pike County. Pocono subsequently transferred 55 of those lots to the appellants. The loan went into default and Cheltenham filed a complaint in Confession of Judgment, and judgment was entered against Pocono. A sheriff’s sale was eventually held, at which Cheltenham bid in the realty. Cheltenham thereafter filed a petition designated “Petition to File Deficiency Judgment”, requesting the court to determine the fair market value. After a hearing, the court entered the following order, from which the appellants have appealed:

ORDER

AND NOW, March 3, 1980, the fair market value of the subject real estate is fixed as of the date of execution sale, July 25, 1979, at $136,000.00.

Appellant’s brief raises five issues, enumerated below.

Essentially they raise two fundamental issues specifically; first that the opinion of Cheltenham’s expert on values, whose opinion Judge Thomson followed in determining fair market value, was improperly arrived at; and second, that the lower court’s determination was contrary to the weight of the evidence.

The initial duty and authority to determine “fair market value” under petitions of this kind lies with the fact-finder, the lower court. Our review is limited to deciding whether there is sufficient evidence to sustain the holding of the lower court, or whether there is a reversible error of law. Shrawder v. Quiggle, 256 Pa.Superior Ct. 303, 311, 389 A.2d 1135 (1978). Recognizing our limited authority on appeal, and our deference in most cases to the lower court’s determination, based upon its first-hand observation of the witnesses, we are nevertheless of the opinion that the lower court’s finding and order are not consistent with the weight of the evidence.

The pertinent testimony presented to Judge Thomson can be summarized as follows: On July 19, 1973, Cheltenham loaned $250,000 to Pocono, secured by a mortgage on some 66 lots in a development known as “Sky View Lake”. On May 14, 1973, before making this loan, Cheltenham had the properties appraised by William A. Hammeke, who valued the lots at $420,000. (Defendant’s Exhibit l). By deed dated June 25, 1975, Pocono conveyed the 55 lots here involved to John W. Dean III and Donald B. McCoy.

On September 8, 1976, Hammeke made a second appraisal of the 55 lots for Cheltenham, and evaluated them at $400,-000. (Defendant’s Exhibit 2). By a bond dated February 4, 1977, Dean and McCoy, with their respective wives, undertook to pay Pocono’s then debt of $195,000. On May 4,1978, Cheltenham took judgment by confession against Pocono in the amount of $215,231.44. Hammeke made a new appraisal dated June 27, 1978 of the 55 lots for Cheltenham, and appraised them at $400,000. On July 25, 1979, Cheltenham bought the property on an execution sale. “As of July 25, 1979” (N.T. 13), William R. Henkelman appraised the 55 lots for Cheltenham. Using what he termed “a subdivision analysis” (N.T., p. 20) to determine what “an investor-developer would pay” (N.T., p. 15), and after making various assumptions discussed hereinafter, Henkelman evaluated the 55 lots at $136,000. As of July 27, 1979 (R. 30a) Joseph Von Hake, at the request of Cheltenham, using a method of “comparable sales”, evaluated the 55 lots to be worth $110,-000.

George Fry, President of Cheltenham, testified that Cheltenham’s policy was to make loans up to 75 to 80 percent of the “appraised market value” (N.T., p. 69). On or about December 18, 1979, at the request of appellant’s attorneys, Davis R. Chant, a real estate appraiser, evaluated the 55 lots as of July 25, 1979, at $255,000. The total debt owing to Cheltenham as of July 25, 1979, including interest and costs, was $226,257.

It seems obvious from the record that Judge Thomson accepted as the best evaluation of the property the opinion of the witness Henkelman, since the court’s finding of a value of $136,000 was identical with the net “fair market value” to which Henkelman testified. We find that Henkelman’s evaluation was predicated upon two false assumptions:

(1) that the 55 lots could be resold by Cheltenham only at “wholesale” prices to a buyer in bulk; and

(2) that the “gross”, or “retail” value of the 55 lots must be reduced to a “net” or “wholesale” value by allowing to Cheltenham, after estimated expenses, a “profit” of 20% of the gross sales price, plus an allowance of 14% per annum for the use of Cheltenham’s money—sometimes referred to as a reduction of profit to “present value” with a factor of 14%.

Henkelman, and all witnesses who testified on the point, conceded that the various lots were not all contiguous, and that all had been developed to a point where some of them, at least, could be (and, in fact, some were) sold to individuals for residences at “retail” prices of $6,000 to $7,000 per lot. That Henkelman gave no weight at all to the possibility that Cheltenham could sell some lots at “retail” obviously tends to affect adversely the value of his testimony. Further, it seems to us that there is an additional error in Henkelman’s approach from a “gross” or “retail” evaluation to a “net” or “wholesale” value: After deducting estimated expenses from the “gross” sales price, which is, of course, proper, although the various experts differ as to what those percentages should be, Henkelman deducts, first, a “profit” of 20% of the gross sales price and then, second, an allowance at 14% per annum to reduce what Henkelman terms the “fair market value” (a net 40% of the “gross” sales price) to its “present worth”.

Henkelman estimated the gross sales price for the 55 lots, sold over a period of four years, at $452,420 and estimated expenses (promotion, commissions, administration and overhead) at 40%, or $180,968. The net of $271,452 can be termed a “gross profit”, and could be argued to represent “fair market value”, before whatever further adjustments are necessary, including, from a third party investor’s viewpoint certainly, an allowance for “profit”, or, from the mortgagee’s viewpoint, an allowance to reduce the “gross profit” to “present worth”, since payment of the mortgagor’s debt will be delayed over a period of 4 years. Henkelman reduced the “gross profit” by 20% of the gross sales price ($90,484) to reduce the “fair market value”, net, to $180,968, receivable in parts over a four year span, and reduced further by the 14% factor to $136,000, as it happens a further reduction of $44,968.

There is manifest error in this case in giving Cheltenham the benefit in the expert’s calculations of both a “profit” of 20% of the estimated retail sales price and an allowance at 14% to reduce the apparent yield from the estimated resales over the 4 year span to its “present worth”.

Although the Deficiency Judgment Acts of 1941 and 1976 do not say so specifically, their obvious objective is to relieve a debtor of further personal liability to the creditor, if the real property taken by the creditor on an execution has a “fair market value”, as of the date of the execution sale, sufficient so that the creditor may dispose of the property to others (or even, sometimes, use it himself) without a net loss to the creditor. See Phillip Green & Son, Inc. v. Kimwyd, Inc., 410 Pa. 202, 205, 189 A.2d 231 (1963). In this specific case, that objective would be accomplished if Cheltenham, having taken title to the real property on July 25, 1979, could dispose of it at a price which would net to Cheltenham $226,257.16, or more, after deducting from the sales price:

a) All of its expenses in making the sale, as well as can be determined, plus, at the most,

b) An allowance to the creditor for the use of its money (the $226,257.16) until the sale (or sales) was completed.

Judge Thomson’s determination of “fair market value”, as that phrase is applicable to this present case, must be reexamined on a basis consistent with all the pertinent circumstances in this case, which include (but not to the exclusion of other circumstances):

The specific nature of these lots, and the possibility of sale of some or all to buyers in bulk, or to individuals;

The allowance of deductions against estimated sales prices necessary expenses to dispose of the property; and

The allowance of some factor for the delay probable before the property is disposed of, but not an additional allowance for a “profit” on the conversion of the property.

Parenthetically, it should be noted that the Deficiency Judgment Statutes (42 Pa.C.S. § 8103 et seq. and 12 P.S. § 2621.1 et seq.) do not define the phrase “fair market value”. Many cases refer to the fair market value” as the price a purchaser, willing but not obliged to buy, would pay an owner, willing but not obliged to sell. Philadelphia and Reading Coal and Iron Company v. Northumberland County, 323 Pa. 185, 188, 186 A.2d 105 (1936); Appeal of Pennsylvania Co. for Insurance on Live and Granting Annuities, 282 Pa. 69, 74, 127 A. 441 (1925). In cases of the present kind, the actual situation is that of a “purchaser” obliged to buy in, in order to protect the loan it made, and an “owner” obliged to sell his property at a sheriff’s sale, because he is unable to pay his debt. Remembering that the Deficiency Judgment Statutes were enacted to relieve the judgment debtor and are to be construed liberally in his favor, Shrawder v. Quiggle, supra, the determination of “fair market value” in this present case should be made on the basis of what reasonably the judgment creditor can get out of the property in partial or complete recapture of the loan and interest on the loan, after necessary expenses, as suggested above, but without giving the judgment creditor an additional “profit”

The gross selling price, as determined from the judgment creditor’s viewpoint, seems obviously a higher value than would be offered by an “investor-developer” who is not obliged to take over the property. Such buyer will be induced to buy the property only if his purchase price plus his expected costs will still permit him an attractive profit to compensate him for his know-how, expertise, risk of loss, and the use of his money. Fundamently, Henkelman’s testimony as to value, apparently adopted by the lower court, is an expression of his opinion of what a speculative investor would pay for the property, rather than an expression of the “fair market value” as between Cheltenham and appellants, neither of whom is acting willingly or speculatively. Both are trying to get out of an unfortunate situation on the best basis possible.

We repeat that the initial duty and authority to determine “fair market value” in this case lies with the lower court and that our authority on review is limited. Nevertheless, the determination of a fair market value of $136,000 seems inconsistent with much of the testimony, particularly the evidence as to the three appraisals made for Cheltenham by Hammeke, all made in the ordinary course of business, in the neighborhood of $400,000, upon which evaluations Cheltenham obviously relied in making and handling the loan in this case.

The order appealed from is vacated and the case is remanded for further proceedings for a re-determination of fair market value on a basis consistent with this opinion.

We do not retain jurisdiction.

CAVANAUGH, J., dissented and would affirm on the basis of the opinion of the court below.

      . The Deans and McCoys had acquired the stock of Pocono prior to the transfer. Prior to the Confession of Judgment, appellants had executed a collateral bond and mortgage pursuant to a loan modification agreement with Cheltenham.

      . I. IN ARRIVING AT THE FAIR MARKET VALUE OF THE SUBJECT PROPERTY, THE TRIAL COURT ERRED IN MAKING A DEDUCTION FROM THE RETAIL VALUE OF THE PROPERTY, OR ESTIMATED GROSS SALE PROCEEDS, TO ALLOW FOR PROFIT.

        II. IN ARRIVING AT THE FAIR MARKET VALUE OF THE SUBJECT PROPERTY, THE TRIAL COURT ERRED IN MAKING ANY DEDUCTIONS FROM THE RETAIL VALUE OF THE PROPERTY, OR ESTIMATED GROSS SALE PROCEEDS, IGNORING EVIDENCE OF RECENT SALES AND THE HAMMEKE APPRAISALS.
      III. IN ARRIVING AT THE FAIR MARKET VALUE OF THE SUBJECT PROPERTY, THE TRIAL COURT ERRED IN MAKING DEDUCTIONS FROM THE RETAIL VALUE OF THE PROPERTY, OR ESTIMATED GROSS SALE PROCEEDS, TO ALLOW FOR THE COSTS OF OBTAINING A “WILLING” BUYER.
      IV. IN ARRIVING AT THE FAIR MARKET VALUE OF THE SUBJECT PROPERTY, THE TRIAL COURT ERRED IN MAKING DEDUCTIONS FROM THE RETAIL VALUE OF THE PROPERTY, OR ESTIMATED GROSS PROCEEDS, TO ACCOUNT FOR THE TIME NEEDED TO SELL THE LOTS.
      V. EVEN ASSUMING THAT DEDUCTIONS FOR SALES, MARKETING, PROMOTIONAL AND ADMINISTRATIVE EXPENSES WERE PROPER, THE TRIAL COURT’S ACTUAL DEDUCTIONS WERE EXCESSIVE.

      . Hammeke’s report states that there are “60 lots in B section” which he valued at $7,000 per lot.

      . Henkelman’s report indicates that he had appraised the property for Cheltenham on December 30, 1978 (Plaintiff’s Exhibit 1, p. 1), but his evaluation as of that date is not stated.

      . Chant used an “income approach” somewhat similar to Henkelman’s; he agreed with Henkelman generally as to a cumulative “retail” or “gross value” of the lots of $428,000 (Henkelman’s comparable figure was $426,000), but disagreed as to the estimated expenses of reselling and other allowances.

      . This figure was arrived at through the following calculations using estimated figures.
      First year’s gross sales $170,400
      less 60% 102,240
      net profit 68,160
      reduced to present worth (n.profit X .877193) 59,789
      reduction for present worth 8,371
      Second year: gross sales 89,460
      less 60% 53,676
      net profit 35,784
      reduced to present worth (n.profit X .769468) 27,534
      reduction for present worth 8,250
      Third year: gross sales 93,933
      less 60% 56,359
      net profit 37,574
      reduced to present worth (n.profit X .674971) 25,361
      reduction for present worth 12,213
      Fourth year: gross sales 98,627
      less 60% 59,176
      net profit 39,451
      reduced to present worth (n.profit X .592080) 23,358
      reduction for present worth 16,093
      Total present worth or fair market value: $136,042 rounded to $136,000.

      . Appellant argues that this allowance should not exceed 9% per annum since the pertinent mortgage provided for interest at 9%. This is a fair argument, but its weight and efficacy is to be determined by the fact-finder.

      . These 55 lots present a rather special marketing problem for a buyer in bulk, since they are not all contiguous, and are a part of an aggregate of about 600 lots. Most of the 600 are owned by another interest. The experts seem to agree that the parcel of only 55 lots is too small to interest a marketing team. This complicates the problem.


author: PER CURIAM:

text:
    451 A.2d 749
    COMMONWEALTH of Pennsylvania v. FLORIDA-EASTERN U.S. VAN LINES, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 7, 1982.
    Filed Oct. 8, 1982.

      William P. Thorn, Philadelphia, for appellant.
    Joseph A. Smyth, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Montgomery County imposing a $100.00 fine plus costs upon Florida-Eastern U.S. Van Lines, Inc., for failure to affix an identification marker on a motor vehicle registered in New Jersey. 75 Pa.C.S.A. § 2101, et. seq. Appellant was initially found guilty and fined by a district justice. Following an appeal to the Common Pleas Court, a de novo trial was held and appellant was again found guilty and ordered to pay a fine plus costs. This appeal followed.

On appeal, appellant argues that the $25.00 fee required for the issuance of an identification marker is unconstitutional insofar as it applies only to motor carrier vehicles registered in foreign states. 75 Pa.C.S.A. § 2102(b). We cannot reach the merits of this claim, however, since there is no indication in the record that appellant filed post-verdict motions in accordance with Pa.R.Crim.P. 1123. On the other hand, there is also no indication in the record that appellant was advised, after verdict, of its right to file post-verdict motions and the consequence of failure to so file. Pa.R. Crim.P. 1123(c).

Appellant’s de novo trial was held in May, 1981, shortly before the decision of this Court in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (post-verdict motions required to preserve issues for appeal following de novo trial in summary cases). Recently, in Commonwealth v. Picker, 293 Pa.Super. 381, 383-384, 439 A.2d 162, 163-164 (1981), President Judge Cercone discussed the application of Koch to cases predating the decision in that case:

The state of this record is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.P. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, 292 Pa.Superior Ct. 224, 437 A.2d 16, 1981; Commonwealth v. Williams, 290 Pa.Superior Ct. 158, 434 A.2d 179 (1981). Cf. cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Walton, 289 Pa.Superior Ct. 411, 433 A.2d 517 (1981); Commonwealth v. Koziel, 289 Pa.Superior Ct. 22, 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Superior Ct. 92, 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the de novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence, in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123. The proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions. Appellant Picker, however, should not be faulted for his failure to do so because of the confusion which existed before Koch and the recent amendments to the Comments to Rules 67 and 1123 of the Rules of Criminal Procedure. See Commonwealth v. Johnston, supra [292 Pa.Superior Ct.] at 227 n. 3, 437 A.2d 16 n. 3.

Accordingly, in Picker, the judgment of sentence was vacated and the case remanded for the filing of post-verdict motions nunc pro tunc within ten days. See also Commonwealth v. Cogan, 303 Pa.Super. 53, 449 A.2d 624 (1982); Commonwealth v. Ferrone, 302 Pa.Super. 280, 448 A.2d 637 (1982); Commonwealth v. Bonnarigo, 300 Pa.Super. 276, 448 A.2d 634 (1982); Commonwealth v. Patterson, 299 Pa.Super. 146, 445 A.2d 191 (1982); Commonwealth v. Cascario, 298 Pa.Super. 519, 445 A.2d 109 (1982); Commonwealth v. Kauffman, 298 Pa.Super. 375, 444 A.2d 1222 (1982); Commonwealth v. McNelis, 297 Pa.Super. 4,442 A.2d 1184 (1982); Commonwealth v. Gates, 295 Pa.Super. 213, 441 A.2d 425 (1982).

We recognize that appellant raised, and the lower court considered, the constitutionality question posed in the instant appeal. However, as we said in Commonwealth v. Picker, 293 Pa.Super. at 384, 439 A.2d at 164, this cannot substitute for the filing of post-verdict motions:

Finally, we note that in this case the lower court, pursuant to Pa.R.App.P. 1925(b), issued an order directing appellant to file of record a concise statement of the matters complained of on appeal. Thus, the appellant did so and the lower court specifically addressed these issues in its opinion in support of an order pursuant to Pa.R. App.P. 1925(a). This, however helpful, is certainly not an adequate substitute for the filing of post-verdict motions because the latter ask the lower court to reconsider its decision in light of alleged errors whereas the former simply requires the court to justify and articulate the reasons for its decision. This distinction is crucial in light of the fact that one of the main purposes for requiring post-verdict motions is to give the lower court an opportunity to correct asserted errors at that early stage without necessitating the expenditure of time and judicial energy in taking a costly appeal to the appellate courts. See Commonwealth v. Koch, 288 Pa.Superior Ct. at 295, 431 A.2d at 1055. In Koch, we stated that ‘[t]he purpose of such motions is twofold: (1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review. Commonwealth v. Kinsey, 249 Pa.Superior Ct. 1, 375 A.2d 727 (1977).’ While a concise statement of matters complained of on appeal may narrow the issues for review, it does not allow the lower court the opportunity to correct its errors because the notice of appeal has already been filed and the lower court is thereby divested of jurisdiction to act further on the case. Pa.R.App.P. 1701(a).

Judgment of sentence vacated and case remanded for the filing of post-verdict motions nunc pro tunc.

We do not retain jurisdiction.


author: PRICE, Judge:

text:
    451 A.2d 751
    George E. EWING, Appellant, v. OLIVER REALTY, INC., and PBP Liquidating Trust and Equitable Life Assurance Society of the United States.
    Superior Court of Pennsylvania.
    Argued April 16, 1980.
    Filed Oct. 15, 1982.

      George E. Ewing, Pittsburgh, pro se.
    Frederick N. Egler, Jr., Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   PRICE, Judge:

This appeal arises out of an action in Equity which plaintiff-appellant, George E. Ewing, motivated by a complaint and Petition for Special Injunction on February 2, 1979. The action eventually resulted into an adjudication of contempt and a judgment against Mr. Ewing, from which he appeals.

The facts are as follows: The appellant, George Ewing, is an attorney admitted to the bar of the Supreme Court of Pennsylvania and of Allegheny County. Mr. Ewing leased office space at the Equibank Building, Two Oliver Plaza, Pittsburgh from Oliver Realty, the appellees in this action. After Mr. Ewing had fallen behind in his rent, he filed a complaint and a request for an injunction in order to prevent appellees from evicting him or disturbing his possession. On the same day that the complaint was filed, February 2, 1979, the court (per Watson, J.) set a hearing on plaintiff’s petition for February 8, 1979, and temporarily granted the relief sought by Mr. Ewing without prior notice or hearing pending a final judicial order. (R. 15b).

On February 8, 1979, the parties entered into a consent order which was signed by the Honorable Ralph H. Smith, Jr. (R. 16b). The order provided that the February 2, 1979 order restraining appellees from evicting Mr. Ewing was to remain in full force and effect through March 31, 1979, on the condition that Mr. Ewing pay $1,400.00 to appellee Oliver Realty, Inc. by February 12, 1979 and pay an additional $5,639.28 to appellee by March 31, 1979.

Mr. Ewing did issue a check for $1,400.00 during the week of February 12, 1979 but the check was returned by the bank for insufficient funds. Mr. Ewing told Albert Schwacke, an employee of Oliver Realty, that he was aware that the check had been returned due to insufficient funds. (R. 89b-91b). Although there was no evidence offered of any threatened lockout, Mr. Ewing presented another Petition for Special Injunction seeking to extend the injunction already in effect against defendants. (R. 17b). The court, by order of the same day, decreed that the two previous orders of February 2, 1979 and February 8, 1979, were to remain in full force and effect and that Mr. Ewing pay $5,639.28 to appellees by March 31, 1979. A hearing was set for April 5, 1979, in which the permanence of the order would be resolved. Mr. Ewing sent a check for $5,639.28 to appellees but again the check was returned due to insufficient funds.

Appellees decided to take action at this point, and on April 5, 1979, they petitioned the court to issue a rule to show cause why an attachment for contempt of court should not issue against the plaintiff. (R. 28b). Although Mr. Ewing had been served with a subpoena on April 3, 1979 requiring him to attend the hearing, he failed to do so. The court, upon being informed that plaintiff had not made the payments specified by its March 30 order, vacated the order at appellees request, since the order also restrained them from evicting Mr. Ewing. The rule was issued that same day and made returnable on April 10, 1979, at 9:30 a.m. (R. 36b). The rule was served to Mr. Ewing’s office by hand delivery on April 5, 1979.

On April 6, 1979, Mr. Ewing was personally served with a subpoena for the April 10 hearing directing him to appear in court. Mr. Ewing also ignored this subpoena, but he did file an answer on April 9, 1979. (R. 53b-54b). After failing in all attempts to contact Mr. Ewing, the court ordered a bench warrant to issue for the arrest of Mr. Ewing. (R. 43b).

Mr. Ewing telephoned the court on Friday, April 13 after efforts had been made to locate him. The court agreed to restrain the sheriff from arresting Mr. Ewing over the weekend on the condition that he appear at a contempt hearing on Monday, April 16, 1979. (R. 47b).

Mr. Ewing was in court on April 16 and after a brief hearing, the court found Mr. Ewing to be in contempt of court for his failure to comply with the subpoena order of March 30,1979. It was ordered that Mr. Ewing could purge himself of the contempt if he would vacate his offices in appellees’ building within one week. (R. 134b). The court also found Mr. Ewing in contempt for his failure to comply with the April 6 subpoena and fined him $500 plus the costs of attachment. (R. 134-135b). The order of March 30 was subsequently reduced to judgment which was entered against Mr. Ewing for $7,039.28. (R. 44b).

A notice of appeal was filed to this court on April 16, 1979 by Mr. Ewing. His application for a supersedeas of the order of April 16 was denied by this court (per Cercone, J.) on April 20, 1979. Mr. Ewing filed exceptions to the April 16 order which were denied on June 26, 1979.

The case involves various issues that can best be divided into two central questions. The first is whether there was a proper finding of contempt and the second is whether Judge Smith’s decision to order Mr. Ewing to vacate and to pay back rent was a proper exercise of judicial discretion.

Both at the April 16 hearing and in his brief, Mr. Ewing has argued extensively that he could not be held in contempt of the March 30 order. In a civil contempt proceeding there is a five step process which must be followed. Crislip v. Harshman, 243 Pa. Superior Ct. 349, 365 A.2d 1260 (1976). The steps are as follows: (1) a rule to show cause why an attachment should not issue, (2) an answer and hearing, (3) a rule absolute (arrest), (4) a hearing on the contempt citation, and (5) an adjudication of contempt. Id. 243 Pa. Superior Ct. at 352, 365 A.2d at 1261. Judge Smith followed the procedure scrupulously in this case as evidenced from the record. (R. 28b, 35b, 36b, 40b, 43b, 45b-168b).

Mr. Ewing’s central attack on the contempt ruling is based on the fact that the March 30 order had been vacated at the time of the April 16 hearing by Judge Smith. It is ironic that Mr. Ewing would seek refuge in the fact that the order was vacated on April 5 when he had already failed to comply with its terms by not appearing at the April 5 hearing or paying the money due. There was no justification offered for his failure to show on April 5 or April 10 other than the fact that he thought appellees were on a “fishing expedition.” Judge Smith vacated the order only after appellees came into court and sought an attachment for contempt. From the situation (and the stated intention of Judge Smith on the record), it is apparent that Judge Smith was not relieving Mr. Ewing of any obligations, but rather was relieving appellees of their continuing duty to adhere to the injunction against them, when Mr. Ewing had consistently failed to keep up his end of the bargain. (R. 134b). It is hard to imagine how Mr. Ewing could realistically believe that the order had been vacated in part for his benefit when he had done nothing to deserve any relief from the court, and in fact had done the opposite by drafting checks when he had no funds from which the checks could properly be paid.

Even if Mr. Ewing genuinely believed that the order was invalid, he was still obligated to comply with the subpoena issued under the order and to attend the hearing. Mr. Ewing chose to ignore the April 5 hearing where he would have had an opportunity to present his position. The law is clear that an order validly issued by a court must be obeyed until declared invalid in the regular course, and as an attorney, Mr. Ewing certainly should have been aware that subpoenas must be obeyed.

The Supreme Court of Pennsylvania stated in the case of Philadelphia Marine Trade Association v. International Longshoremen that:

[E]ven though the preliminary injunction was invalid, that does not determine the legality of the contempt citations. It is well settled that: “. .. an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.” United States v. Mine Workers, 330 U.S. 258, 293 [67 S.Ct. 677, 696, 91 L.Ed. 884] (1947).

453 Pa. 43; 49-50, 308 A.2d 98, 102 (1978). See also, In Re Estate of Downing, 459 Pa. 537, 330 A.2d 530 (1974); Horne Co. v. Int. U. of Op. Eng. Etc., 250 Pa. Superior Ct. 145, 378 A.2d 868 (1977).

The Pennsylvania Supreme Court has also stated that “the interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses obedience, does so at his peril.” Philadelphia Marine Trade Association v. International Longshoremen’s Association, 392 Pa. 500, 524-25, 140 A.2d 814, 826-27 (1958) (concurring opinion of Bell, J.). Also see Bata v. Central Penn National Bank, 433 Pa. 284, 287, 249 A.2d 767, 768 (1969). In the present case, the court still had jurisdiction over the parties and the subject matter. Mr. Ewing did not bother to appear at the April 5 or the April 10 hearing, and by this behavior, he has shown indifference for the dignity and respect of the court. We hold that Mr. Ewing was properly held to be in civil contempt for his failure to comply with the subpoena which was issued due to his failure to comply with the March 30 order demanding that he pay back rent and appear in court April 5. Therefore, Mr. Ewing’s first allegation of error is denied.

The next allegation of error concerns the sanctions imposed by Judge Smith and the judgment entered against Mr. Ewing. Judge Smith, after finding Mr. Ewing in contempt, ordered that he pay a fine of $500 for ignoring the subpoena and that he vacate the premises in one week if he desired to purge himself of the contempt. Judgment was also entered for the back rent that Mr. Ewing owed appellees. Mr. Ewing claims that if he was to be “evicted”, the procedures under the Landlord and Tenant Act would have had to be followed.

Mr. Ewing had sought equity in the courts from the beginning with his two requests for injunctions. Yet Mr. Ewing has continually failed to do equity himself by willfully disobeying court orders and flouting the court’s authority by ignoring subpoenas. Judge Smith did not summarily evict Mr. Ewing as prohibited by the Landlord and Tenant Act; rather Mr. Ewing was given one chance after another to present his case and to remain in his offices despite his failure to pay rent. To hold that Judge Smith was powerless to prevent the continuing unfairness to appellees would be to strip his court of the equity power to enforce its own orders and to render justice.

It has long been settled that courts of equity have the power to enforce their own orders. Mr. Ewing’s position is similar to that of the plaintiff in Winton’s Appeal, 97 Pa. 385, (1881) where the court stated:

The position of the plaintiff is this: Having obtained a decree in his favor by which the deed was declared a mortgage, upon the offer to pay promptly and in cash the amount due thereon, he now declines to pay the money, and denies the power of the court to compel him to do so. He seems to be under the impression that the cause has reached a point where the court has lost its power, that the proceedings are at a deadlock, and that the only remedy left the defendant is to go into a court of law with his scire facias upon the mortgage, a writ of ejectment or action of convenant. In the meantime the land, which is chiefly valuable for its coal, is being constantly depreciated by the working of its mines.
The plaintiff has mistaken the powers of a court of equity. It is not so helpless as he imagines. When once it has a case within its grasp it has all the authority necessary to a full disposition of all the questions arising therein. In doing so it has no occasion to call to its aid the assistance of a court of law. Its remedies are plastic, and may be molded to meet the exigencies of the case. The plaintiff, having invoked this jurisdiction and obtained the relief he sought, cannot now turn the defendant over to a court of law to obtain the redress to which he is entitled upon the plaintiff’s own showing. The tribunal to which the latter has appealed will hold him and his property within its grasp until he does that equity which he solemnly promised to perform..

97 Pa. at 394-395. See also, Commonwealth ex rel. Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270 (1962); Philadelphia Marine Trade Association v. International Longshoreman, 392 Pa. 500, 140 A.2d 814 (1958); Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956). Thus in this case, it was certainly proper for the judge to order that the premises be vacated due to Mr. Ewing’s failure to comply with the back rent orders.

The court was also justified in imposing the $500 fine under powers granted by 42 Pa.C.S.A. § 4131. Mr. Ewing’s conduct had consistently evidenced disrespect for the court and required immediate vindication. Mr. Ewing, as an officer of the court, was guilty of official misconduct by ignoring the subpoena and Judge Smith had the discretion to impose such a sanction and the $500 fine was justified. See, Commonwealth v. Stevenson, 482 Pa. 76, 393 A.2d 386 (1978); Commonwealth v. Strickler, 481 Pa. 579, 393 A.2d 313 (1978); Bata v. Central Penn National Bank, 433 Pa. 284, 249 A.2d 767 (1969).

Because we find that Mr. Ewing was properly held in contempt and that the sanctions were proper, the judgment entered against Mr. Ewing for back rent was also proper. Therefore, Mr. Ewing’s allegations of error are dismissed and the order of the court of April 16,1979 is affirmed, with costs taxed to appellant.

      . Mr. Ewing did not move out of the offices within a week and another hearing was held on April 25 in which Mr. Ewing finally agreed to vacate the premises after the appellees agreed to provide movers. At no time has Mr. Ewing paid any of the back rent.

      . Appellant raised four issues in his briefs but we do not agree with his classification as there are only two substantial issues in this factually complicated case. Moreover, Mr. Ewing’s briefs are not very helpful since he has failed to meet even the minimal requirements of Chapter 21 of the Rules of Appellate Procedure. Among other things, Mr. Ewing has failed to include: a statement of jurisdiction (Pa.R.A.P. § 2114); a summary of argument of the case that is a balanced presentation of the history of the proceedings and avoids argument, (Pa.R.A.P. § 2117(b) (emphasis added)); references to the record or a reproduced record or a designation thereto (Pa.R.A.P. § 2117(a)(4) and § 2154). Mr. Ewing’s reply brief is of more aid since exhibits are included, but still falls short of remedying the defects in the original. Although we have the option of suppressing the brief or quashing Mr. Ewing’s appeal due to these inadequacies under Rule 2101, we have not chosen to do so this time.

      . Since the citation in this case was for the purpose of coercing Mr. Ewing into complying with the previous court orders to the benefit of the appellees, the contempt is civil in nature and not criminal. See In Re B., 482 Pa. 471, 476, 394 A.2d 419, 421 (1978); Commonwealth v. Charlett, 481 Pa. 22, 391 A.2d 1296 (1978); Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Cahalin v. Goodman, 280 Pa.Superior Ct. 228, 421 A.2d 696 (1980).

      . See also Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1969); Kramer v. Kelley, 265 Pa.Superior Ct. 58, 401 A.2d 799 (1979).

      . Mr. Ewing argues that the petition should have been personally served but there is no merit to this contention when there is already jurisdiction over the parties. Mr. Ewing had been personally served with the subpoena, and the order, rule, and petition had been served by hand delivery. (R. 38b-39b). See Messmore’s Estate, 293 Pa. 63, 141 A. 124 (1928); Commonwealth v. Fladger, 250 Pa.Superior Ct. 36, 378 A.2d 440 (1977).

      . Mr. Ewing knew that he owed at least some money tó the appellees so it is hard to believe that he could realistically have thought they were merely fishing.

      . Mr. Ewing’s repeated claim that the matter is moot is ludicrous. Mr. Ewing, as an officer of the court, should know better than to expect that his obligations would suddenly disappear. The obligation to pay rent was still very much an issue, and any hope of mootness is at best, wishful thinking.

      . As for Mr. Ewing’s allegation that there is no longer any court order in existence which he could violate, we answer simply by pointing out that he had already completely violated the terms of the order before the order was vacated. The subpoena was issued after the order had been violated and the order was vacated only to prevent him from obtaining its benefits.

      . Mr. Ewing argues that the hearing itself was unfair for three reasons: (1) he was denied of the right to counsel; (2) he was entrapped into attending the hearing and then was falsely imprisoned during the hearing; (3) he should have been granted a continuance. Because we find no merit to any of these arguments, we will deal with them briefly.
      (1) . Mr. Ewing did not bring an attorney with him to the hearing and did not at any time, ask Judge Smith if he could consult with counsel. As an officer of the court, he was certainly aware of his rights and any counsel right he had was waived by his silence.
      (2) Quite simply, Mr. Ewing was never falsely imprisoned and this consistent allegation in his briefs is rather tiresome. Mr. Ewing claims that since he said he was ill he should have been allowed to leave. However, the judge asked him if he wanted a doctor or to be excused and Mr. Ewing declined on both counts.
      Nor was Mr. Ewing entrapped into attending the hearing. Judge Smith agreed to restrain the sheriff from arresting Mr. Ewing over the Easter weekend in return for his promise to appear in court on Monday. Judge Smith had no obligation to do this and was merely being courteous. To classify this as entrapment is an exercise in creative thinking that has no bearing.
      (3) Judge Smith was willing to consider a continuance on the basis that Mr. Ewing might call in witnesses, but the record shows that Mr. Ewing thought that it was more important that he get back to work and thus decided that he would rest his case. (R. 115b-120b). Mr. Ewing was not forced to rest as he claims but rather made a conscious decision and while he may regret his hasty action, there is no valid basis for arguing that a continuance should have been granted. Also, by this time, Mr. Ewing had already ignored two subpoenas and failed to comply with the March 30 order. Mr. Ewing would not specify any defenses which he could raise even if given more time.

      . Typical of Mr. Ewing’s attitude is the following excerpt from the April 25, 1979 hearing concerning the fact that he had failed to move out or pay back rent after the contempt had been adjudicated. While Judge Smith is attempting to find out why Mr. Ewing has not left the premises, or paid the rent, Mr. Ewing states:
      As I understand it, even if I paid it, it doesn’t make any difference; they still want me out today. So why should I?
      THE COURT: Why should you what?
      MR. EWING: Why should I pay and get kicked out?
      (R. 157b; See also 158b- 162b).

      . Mr. Ewing also argues that the Act of July 12, 1842, P.L. 339, 12 P.S. § 257 bars imposition of contempt sanctions. He did not make this argument in the lower court and is therefore barred from making it here (Pa.R.A.P. 302(a)) although it would not be of any help to him even if considered.


author: WICKERSHAM, Judge:

text:
    451 A.2d 757
    Marta J. CHAPLYNSKY, M.D., Appellant, v. BROAD STREET HOSPITAL and Eugene B. Spitz, M.D.
    Superior Court of Pennsylvania.
    Argued April 22, 1982.
    Filed Oct. 15, 1982.
    Petition for Allowance of Appeal Denied Dec. 17, 1982.

      David Bruce Hanes, Philadelphia, for appellant.
    Joseph B. Erwin, Philadelphia, for Broad St. Hosp., appellee.
    Daniel J. Zucker, Philadelphia, for Spitz, appellee.

      Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

This is a consolidated appeal from orders of the Philadelphia Court of Common Pleas denying a petition and amended petition to vacate the dismissal of a suit pursuant to Star Rule 350 of the Rules of Civil Procedure of the Court of Common Pleas of Philadelphia. The pertinent facts are as follows:

Appellant Chaplynsky filed a complaint in equity on January 3, 1974, alleging, inter alia, that appellees Spitz and Broad Street Hospital had failed to pay fees owed her under an agreement whereby she had performed medical services, including 150 angiograms, at the hospital. Discovery was then conducted. A notice of deposition was filed on January 14, 1975; this was the last activity recorded on the docket in this case until October 4, 1977, when it was noted that the action had been dismissed on September 23, 1977, for failure to prosecute in accordance with Star Rule 350.

On July 3, 1980, Chaplynsky filed a petition to vacate the dismissal, which was denied by the lower court on September 24, 1980. Chaplynsky then filed an amended petition to vacate the dismissal, which was denied by the lower court on October 24, 1980. Chaplynsky also filed a motion for reconsideration of the order dismissing the original petition to vacate, which was denied on November 12, 1980. Appeals were taken from all three lower court orders and consolidated into this appeal.

Appellant Chaplynsky frames the first issue involved as follows:

Should Local Rule * 350 have been applied to the case?

Brief for Appellant at 4.

Star Rule 350 of the Rules of Civil Procedure of the Court of Common Pleas of Philadelphia (now re-numbered Rule 130) provides, in pertinent part, as follows:

(1) Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary’s Office for a period of two
(2) successive years, the action shall be dismissed with prejudice, for failure to prosecute under the provisions of this rule, and the docket so marked, provided that no less than sixty (60) days’ notice be given by publication once in The Legal Intelligéncer.
(3) Dismissal under (1) or (2) is subject to the right of any party to reinstate the action by written application for good cause shown after such dismissal within three (3) months of the date of dismissal.

Here, no certificate of readiness was filed nor were any proceedings docketed in the prothonotary’s office for over two years after January 14, 1975, when notice of a deposition was given. Notices that cases filed in “the year C.P. 1973,” in which there had been no activity on the docket for over two years, would be dismissed pursuant to Star Rule 350 were published in The Legal Intelligencer several times in July of 1977, over sixty days before the suit was dismissed.

It is clear that the' present case fits within the criteria for dismissal established by Star Rule 350. Chaplynsky argues, however, that the lower court prothonotary exceeded his authority as a ministerial officer in applying Star Rule 350 to this case. This issue was not raised below, however, and we may not now consider it on appeal. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Chaplynsky also argues that the phrase in Star Rule 350(1): “[where] no proceedings have been docketed . . . for a period of two (2) successive years,” should be interpreted to mean that two years, each beginning January 1 and ending December 31, must pass without any docket activity in a case before it may be dismissed. Viewing Star Rule 350 in conformance with the plain meaning rule of construction (see Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980)), we reject Chaplynsky’s argument and find that the two year period referred to in the rule is measured from the date proceedings were last docketed in the prothonotary’s office. We note that even if Chaplynsky’s argument was correct, there were no docket entries in this case during the calendar years 1978 and 1979.

Appellant Chaplynsky frames the second question involved as:

Did counsel for plaintiff establish ‘good cause’ for vacating the Philadelphia Local Rule * 350 dismissal?

Brief for Appellant at 4.

An action dismissed under Star Rule 350 may be reinstated for good cause shown. Good cause shown requires the satisfaction of three elements: (1) the petition must be timely filed; (2) the reason for the default reasonably explained or excused; and (3) the facts constituting grounds for the cause of action be alleged. Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 421 A.2d 810 (1980).

Chaplynsky’s counsel offers the following explanation as good cause to vacate the dismissal: “[T]his case was a matter handled in tandem with another matter. ... It is this similarity between these two cases that appears to have been the cause of some confusion in the listing of this case as ready for trial.” Brief for Appellant at 13.

In International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa.Super. 378, 378 A.2d 986 (1977), we rejected a similar excuse offered as good cause for vacating a nonsuit, specifically, that counsel was “involved in a companion case against appellant . . . and had mentally consolidated the cases.. . . ” Id., 250 Pa.Superior Ct. at 381, 378 A.2d at 988. The court ordered that the non pros entered by the prothonotary be reinstated. We similarly reject Chaplynsky’s argument that the confusion of two similar cases being pursued by a single counsel gives rise to good cause for vacating the order dismissing the complaint in this case.

Orders affirmed.

      . An appeal may be taken from an order denying a petition to open a judgment of non pros. See Kennedy v. Bulletin Co., 237 Pa.Super. 66, 346 A.2d 343 (1975).