source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    481 A.2d 1352
    COMMONWEALTH of Pennsylvania v. Anton SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 19, 1984.
    Filed Sept. 21, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for robbery. Appellant was tried by a judge sitting without a jury on charges of robbery, theft, and receiving stolen property, and was found guilty of having violated Section 3701(a)(1)(v) of the Crimes Code, 18 Pa.C.S. § 3701(a)(1)(v), which provides that “... a person is guilty of robbery if, in the course of committing a theft, he ... (v) physically takes or removes property from the person of another by force however slight.” Appellant concedes that the evidence was sufficient to prove theft but argues that it was insufficient to prove robbery because it did not prove “force however slight.” We agree and therefore reverse the judgment of sentence and remand for imposition of sentence for theft.

In determining the sufficiency of evidence, we must view the evidence, including all reasonable inferences from it, in the light most favorable to the Commonwealth. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979). So viewed, the evidence established the following.

On the evening of August 26, 1981, appellant approached Joseph Walker, a blind man, and asked him for a cigarette. Mr. Walker, who had known appellant for two years and recognized his voice, answered that he did not have a cigarette, and continued on his walk to a store. On Mr. Walker’s return from the store, appellant reached into Mr. Walker’s pants pocket, removed a partially protruding pack of cigarettes, and ran away. There was no threat by appellant or struggle or physical resistance by Mr. Walker.

In holding this evidence sufficient to sustain appellant’s conviction of robbery, the trial judge stated:

The cigarettes, although not completely in the pocket, were sufficiently in the pocket for [appellant] to have to pull them out. In fact, there was no way [appellant] could have gotten the cigarettes out of the Complainant’s pocket without using some force. There was not a lot of force used, but there was force. The statute specifically provides: “force however slight. ” (emphasis added).

Slip op. at 3.

The elements of robbery as defined by § 3701(a)(l)(v) are (1) that the defendant physically take or remove property, (2) from the person of another, (3) by use of force however slight. Here, as appellant concedes, the first two elements were proved. However, with respect to the third element, the only “use of force” that was proved was that appellant used just so much force as was necessary to “physically take or remove” (first element) the pack of cigarettes “from the person of” Mr. Walker (second element). The conclusion follows that the third element was not proved, and that the evidence was therefore insufficient. Plainly, the legislature intended to distinguish between evidence showing only a taking or removal from the person, and a taking or removal by force. To hold, as did the trial judge, that evidence proving only a taking or removal also proves a removal by force because “there was no way [appellant] could have gotten the cigarettes ... without using some force” is equivalent to holding that the first and third elements are synonymous. Such a holding is proscribed, for its effect would be to make the third element redundant, or surplusage, and in construing a statute, we must assume that the legislature intended that every word of the statute would have effect. Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982); Crusco v. Insurance Company of North America, 292 Pa.Super. 293, 437 A.2d 52 (1981); 1 Pa.C.S. § 1922(2). To give effect to the phrase “force however slight”, we must construe it as requiring proof of more than only the physical removal of an object from a person. Cf. Common wealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979) (evidence proved “a brief tug of war over the wallet;” held that evidence was insufficient to prove robbery by putting the victim in fear of immediate serious bodily injury but would have been sufficient to prove robbery by removing property from victim by force however slight).

The Commonwealth argues that the phrase “force however slight” should be construed to include “any act directed to overcome the will of the victim.” Brief for Commonwealth at 4. As applied here, the argument is that Mr. Walker did not want appellant to take his cigarettes; that appellant’s act of removing the protruding pack of cigarettes from Mr. Walker’s pocket therefore overcame Mr. Walker’s will; and that this was “force however slight.” We find this argument unpersuasive, for several reasons.

The legislature clearly intended a distinction between “robbery” and “theft.” In defining “robbery,” the legislature starts from the premise that the person is “in the course of committing a theft,” and then goes on to define what additional act will result in that conduct becoming a robbery, as, for example, if the thief “inflicts serious bodily harm upon another,” 18 Pa.C.S. § 3701(a)(1)(i), or, the provision pertinent to our consideration here, “physically takes or removes property from the person of another by force however slight”, 18 Pa.C.S. § 3701(a)(1)(v). These two sorts of robbery are, respectively, a felony of the first degree and a felony of the third degree. 18 Pa.C.S. § 3701(b). In defining the punishment for “theft”, the legislature provided that if the property in question was “taken from the person or by threat,” the theft is to be punished as a misdemeanor of the first degree. 18 Pa.C.S. § 3903(b). If we were to accept the Commonwealth’s definition of “force”, the distinction between robbery by force however slight and theft would be eliminated. Mr. Walker’s pack of cigarettes was “taken from [his] person”. This taking no doubt was, in the words of the Commonwealth’s argument, an “act directed to overcome [his] will”, but to say that it was therefore a taking “by force however slight” would be to say that there was no difference in meaning between § 3903(b) (property “taken from the person”) and § 3701(a)(1)(v) (“physically take or remove property from the person of another by force however slight”). However, when the legislature used the same verb (“takes”) in one section without qualifier (“taken from the person”) and in another section with qualifier (“takes from the person ... by force however slight”), the legislature must have intended the two sections to have a different meaning.

This conclusion finds further support in other principles of statutory construction. The Statutory Construction Act provides that “words and phrases shall be construed according to their common and approved usage...” 1 Pa.C.S. § 1903. Webster’s Dictionary defines force as a “general term for the exercise of strength or power to overcome resistance.” Here, no doubt because of the stealth and quickness with which appellant acted, Mr. Walker offered no resistance. As a matter of common usage, therefore, appellant’s taking of the pack of cigarettes was without “force,” slight or otherwise.

Similarly, the Crimes Code states that its provisions “shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purpose of [the Crimes Code] and the special purposes of the particular provision involved.” 18 Pa.C.S. § 105. One general purpose of the Crimes Code is to differentiate on reasonable grounds between serious and minor offenses. 18 Pa.C.S. § 103(5). Construing the phrase “force however slight” to exclude a taking by stealth alone is consistent with this purpose because a taking by stealth alone is not as likely to result in injury to the victim as a taking by “force”; for “however slight” the force may be, the victim may be prompted by it to resist, and injury may ensue. In recognition of this possibility, § 3701(a)(1)(v) has as its special purpose that greater punishment should be inflicted on those who use “force however slight” than on those who by resort to stealth void the use of force.

Finally, since § 3701(a)(1)(v) is a penal provision it must be strictly construed. 1 Pa.C.S. § 1928(b)(1). When a criminal statute is susceptible of two constructions, both reasonable, it is not the construction that is supported by the greater reason that is to prevail but the one that operates in favor of the defendant’s liberty, Commonwealth v. Glover, 397 Pa. 543, 546, 156 A.2d 114 (1959); and if there is doubt, the defendant must be given the benefit of the doubt, Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682 (1975). In this case, even if we could find the definition of force advocated by the Commonwealth reasonable, instead of precluded because producing surplusage, still we should have to accept appellant’s position because it is at least equally reasonable.

The judgment of sentence for robbery is reversed and the case is remanded for imposition of sentence for theft. Jurisdiction is relinquished.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 3925.

      . The Commonwealth cites cases from other jurisdictions holding that where the taking is from the immediate presence of the victim and not from the victim’s person, still a "theft” may occur. These cases are irrelevant. The issue before us is not whether a theft occurred— undeniably one did — but whether a robbery occurred.
      The Commonwealth also argues that by enacting § 3701(a)(l)(v) as an amendment to the Crimes Code, see Act of June 24, 1976, P.L. 425, No. 102 § 1, "the legislature intended to change the statutory scheme by treating what had been only theft as robbery.” Brief for Commonwealth at 4 n. 1. This argument has no merit. "Whenever a section or a part of a statute is amended ... the remainder of the original statute and the amendment shall be read together as one statute passed at one time....” 1 Pa.C.S. § 1953; Appeal of Neshaminy Auto Villa Ltd., 25 Pa.Cmwlth. 129, 358 A.2d 433 (1976). We therefore must construe the Crimes Code so as to give effect to all its provisions, which is to say, so as to preserve, not eliminate, the distinction between robbery and theft. No doubt the legislature could have decided that mere removal of property from the person, “[which] had been [defined as] only theft”, should be redefined as "robbery”, but then it would have redefined "theft”. For the same conduct (mere removal) cannot be both “robbery” and "theft”.

      . Webster’s Third New International Dictionary 887 (1965).


author: CAVANAUGH, Judge:

text:
    481 A.2d 1355
    Gretchen Oswald HAVILAND v. Isaac John HAVILAND. Appeal of Gene FETTY, Executor of the Estate of Isaac John Haviland, Deceased.
    Superior Court of Pennsylvania.
    Argued May 15, 1984.
    Filed Sept. 21, 1984.
    Sidney Baker, Pittsburgh, for appellant.
    Robert N. Clarke, Washington, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   CAVANAUGH, Judge:

This appeal is from an order granting appellee-wife’s motion to strike appellant, executor of her deceased husband’s estate, as a substituted party to this divorce action and to terminate the action. We affirm.

The relevant facts are not in dispute. On August 6, 1981, appellee filed a complaint in divorce against her husband, appellant’s decedent, based alternatively on theories of indignities and irretrievable breakdown. Appellant answered and counterclaimed for equitable distribution of the marital property. A master was appointed, but before any testimony was taken, appellant’s decedent died. Appellant filed a suggestion of death and voluntary substitution pursuant to 20 Pa.C.S. § 3371. By its order of September 1, 1983, the lower court struck appellant as a substituted party and terminated the action as of the date of decedent’s death. It is this order from which appeal is taken.

Initially, appellant recognizes the long-standing rule that unlike most actions, pending divorce actions are abated by the death of one of the parties. Matuszek v. Matuszek, 160 Pa.Super. 526, 52 A.2d 381 (1947); Upperman v. Upperman, 119 Pa.Super. 341, 181 A. 252 (1935); Sirbaugh v. Sirbaugh, 46 D. & C. 417 (1943); Hammond v. Hammond, 9 Pa.D. & C. 228 (1927); 3 A. Freedman, Law of Marriage and Divorce in Pennsylvania, § 670 (2d ed. 1957). However, appellant contends that the recent passage of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101, et seq., changed the law so that a pending divorce action involving the equitable distribution of marital property survives the death of one of the parties. We must disagree.

It is true that enactment of the Divorce Code made fundamental changes in the law relating to the disposition of marital property upon divorce. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), aff'[d, 498 Pa. 570, 449 A.2d 1378 (1982); Divorce Code, supra, § 102, 23 P.S. § 102. In particular, the Code greatly expanded the protection afforded to the dependent spouse upon divorce. Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); Gordon v. Gordon, supra. However, we find nothing in the Divorce Code which would indicate an intention to extend these protections to the estate of a deceased spouse. On the contrary, the economic provisions of the Divorce Code clearly look to the continued life and welfare of both spouses. For example, in dividing the marital property, the Divorce Code requires the court to consider such factors as the “sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties,” id,. § 401(d)(3), 23 P.S. § 401(d)(3); “the opportunity of each party for future acquisitions of capital assets and income,” id. § 401(d)(5), 23 P.S. § 401(d)(5); and “the standard of living of the parties established during the marriage,” id. § 401(d)(9), 23 P.S. § 401(d)(9). Moreover, the Divorce Code only authorizes distribution of marital property in conjunction with a decree granting a divorce. See §§ 301(d)(1), 401(b). And, as has been often stated, a divorce will not be decreed where one party has died since

a man can no more be divorced after he is dead than he can be married or condemned to death. Marriage is a union for two lives, which can be dissolved either by death or by process of law; but after it has been dissolved in one of those ways you cannot dissolve it again: you cannot untie a knot which has already been untied.

Stanhope v. Stanhope, 11 P.D. 103, 108 (1886). See also Matuszek v. Matuszek, supra; Upperman v. Upperman, supra; Hammond v. Hammond, supra.

Our conclusion that the property provisions of the Divorce Code are intended to apply to living spouses is further reinforced by reference to the Probate, Estates and Fiduciaries Code, 20 Pa.C.S., which is in pari materia with the Divorce Code because it also relates to the distribution of spousal property. In Re William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. denied, Beatty v. Lycoming County Children’s Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978); 1 Pa.C.S. § 1932 (relating to construction of statutes in pari materia). As such, we must construe the statute so as to give effect to the provisions of both. Black v. Billy Penn Corp., 72 Pa. Commonwealth Ct. 628, 457 A.2d 192 (1983); 1 Pa.C.S. § 1922(2).

If we were to accept appellant’s theory, the result would be that the mere unilateral filing of a divorce action, any time prior to the death of one spouse, would be sufficient to upset and evade the operation of settled, established rules of probate and intestate succession. In this regard, we must note that the Probate, Estates and Fiduciaries Code, supra, also contains substantial provisions designed to insure the fair distribution of the marital estate upon the death of one spouse. See, e.g., 20 Pa.C.S. § 2102 (intestate share of surviving spouse); § 2103(1) (intestate share of children); 20 Pa.C.S. Ch. 22 (elective share of surviving spouse); and 20 Pa.C.S. § 3121 (family exemption). In the absence of specific language, we will not construe the Divorce Code to have such a profound and potentially debilitating impact on the Probate, Estates and Fiduciaries Code.

For the foregoing reasons, we hold that under the circumstances of this case, the lower court correctly determined that the divorce action abated upon the death of appellee’s husband. Our holding today is in accord with our own courts of common pleas, as well as other jurisdictions which have considered this question. See Chappell v. Chappell, 21 Pa.D. & C.3d (1981); Preece v. Preece, 682 P.2d 298 (Utah 1984); and cases collected at Annot., 104 A.L.R. 654 (1936), supplemented by Annot., 158 A.L.R. 1205 (1945).

Order affirmed.

      . Appellant also seeks support from 20 Pa.C.S. § 3371 and 42 Pa.C.S. § 8302 (relating to survival of actions), which are as follows:
      § 3371. Actions which survive
      All causes of action or proceedings shall survive as provided by 42 Pa.C.S. § 8302 (relating to survival action).
      § 8302. Survival action
      All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
      However, it has been consistently held that divorce actions do not fall within these statutes. Upperman v. Upperman, supra; Sillers v. Sillers, 25 Pa.D. & C. 77 (1935).


author: BROSKY, Judge:

text:
    481 A.2d 1358
    COMMONWEALTH of Pennsylvania ex rel. Polly M. STUMP v. Richard CHURCH. Appeal of Polly M. STUMP.
    Superior Court of Pennsylvania.
    Argued May 2, 1984.
    Filed Sept. 21, 1984.

      Bernard Mendelsohn, Reading, for appellant.
    Jeraldine D. Kozloff, Wyomissing, for appellee.
    Before SPAETH, President Judge, and BROSKY and BECK, JJ.
   BROSKY, Judge:

The issue presented to us in this appeal is whether the father of an eighteen year old high school graduate has a duty to provide his son with support so as to enable him to attend a private preparatory school on a post-graduate basis.

The parties were married in November, 1962. Two children were born of the marriage: Peter James in October, 1963 and Robert Frederick in June, 1965. Mrs. Stump and Mr. Church were separated in 1970 and entered into an agreement which provided that appellee Mr. Church would pay $120.00 per week for the support of his sons.

The agreement was made part of an order of court and remained in effect until 1975 when it was modified to require appellee to pay only $60 per week because he was having financial difficulties.

In 1977 Mr. Church apparently began to again pay $120 per week although he was not directed to do so by an order of court until 1980.

In October, 1981 appellee sought a reduction in the support order to $60 per week because he alleged, Peter had reached the age of eighteen, had graduated from high school and was no longer entitled to support.

Mrs. Stump answered Mr. Church’s petition by claiming that Peter was a full-time student, pursuing post-graduate studies at a preparatory school in Maine. Mrs. Stump filed a cross-petition seeking an increase in support on the grounds that her children’s expenses and former husband’s income had both increased.

A hearing officer recommended that support be continued for Peter and that the amount be increased to $75 per child per week. Mr. Church filed exceptions to the hearing officer’s recommendations and following hearing the lower court sustained the exceptions, directing that the support order be terminated as to Peter. This appeal followed.

It is well-established that the trial court has wide discretion in awarding support payments and its decision will not be disturbed unless it has abused that discretion. Commonwealth ex rel. Berry v. Berry, 253 Pa.Super. 268, 384 A.2d 1337 (1978).

As we explained in Boni v. Boni, 302 Pa.Super. 102, 108, 448 A.2d 547, 550 (1982):

“Our scope of review is limited to a determination as to whether the order of support can be sustained on any valid ground. Commonwealth ex rel. Marvin v. Marvin, 193 Pa.Super. 179, 164 A.2d 128 (1960). We must determine whether there was sufficient evidence to sustain the lower court or contrariwise whether the lower court was guilty of an abuse of discretion. A finding of abuse of discretion is not lightly made; but only upon a showing of clear and convincing evidence. Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Super. 390, 358 A.2d 102 (1976); Commonwealth ex rel. Caplan v. Caplan, 236 Pa.Super. 605, 346 A.2d 822 (1975); Commonwealth ex rel. Halderman v. Halderman, 230 Pa.Super. 125, 326 A.2d 908 (1974).” Straub [v. Tyahla] supra, [274 Pa.Super. 411, 414] 418 A.2d [472] at 474 [1980].
“In reviewing the lower court’s action to determine whether an abuse of discretion has occurred, we recognize that ‘[a]n abuse of discretion is [not] merely an error of judgment, but if in reaching a conclusion the law is overriden [sic] or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 174, 361 A.2d 781, 785 (1976).” Straub, supra.

In Lederer v. Lederer, 291 Pa.Super. 22, 24-25, 435 A.2d 199, 200-201 (1981) this court wrote:

It is settled law in Pennsylvania that in absence of an agreement to educate “a father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate, earning capacity or income to enable him to do so without undue hardship to himself.” Emrick v. Emrick, 445 Pa. 428, 430-431, 284 A.2d 682, 682-683 (1971); Hutchison v. Hutchison, 263 Pa.Super. 299, 300, 397 A.2d 1218, 1219 (1979). However, a support order may be entered against a parent for a child’s college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent. Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979).

The lower court concluded that Mr. Church had not agreed to send Peter to college, but had instead expressed a desire that his sons receive a college education and assuring them funding from various sources. We will not disturb this factual finding of the trial court most especially in this case in which regardless of any promise as to a college education, there was clearly no agreement by Mr. Church to support his son’s attendance at the Hyde School following his high school graduation.

We must then determine whether Peter was entitled to support absent an agreement.

In the seminal case, Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963) we considered whether the child would successfully complete his studies, the adequacy of the child’s income and whether the parent had sufficient estate, earning capacity or income to enable him to pay support without undue hardship.

The lower court in the present case concluded that while it did not fault Peter’s choice to attend the Hyde School and believed that Mr. Church could provide support without incurring undue hardship, that nevertheless a support order would not be proper in view of the type of school Peter was attending and the preparation it provided him for the future.

Peter had attended a preparatory school in Connecticut and was due to graduate in the spring of 1981. Unfortunately he failed a course in pre-calculus and was not permitted to graduate with the rest of his class. Peter took a course in pre-calculus at a school near his home during the summer of 1981 and received his diploma in July of that year.

During his last year at the Salisbury School in Connecticut Peter applied to one college seeking admission for the fall, 1981. He was not accepted. There was testimony to the effect that while Peter’s SAT scores were more than adequate he was experiencing academic difficulties at Salisbury and certain of his teachers, and his football coach, suggested that he would benefit from another year of college preparatory education.

When Peter failed to gain admission to the college of his choice he and his mother decided that he should indeed spend another year at the preparatory level. He therefore attended a summer session at the Hyde School in Maine and entered the school in the fall on a post-graduate basis.

While he was a post-graduate student, it seems that all but one of the courses taken by Peter was on the preparatory, not college level.

Mr. Church argues that he was not consulted about the decision to enroll Peter at the Hyde School and that he disagrees with that decision. He believes that if Peter was unable to attend college in the fall of 1981 that he should have sought employment. Mr. Church testified that had Peter been amenable he could have secured him employment at the corporation at which he is employed, although Peter’s testimony was to the effect that his father did not follow through on the employment offer.

In any event Mr. Church argues that he should not be forced to support Peter in the educational endeavor with which he disagrees.

While we understand Mr. Church’s position and the lower court’s agreement with it, nonetheless we must conclude that the court erred in denying support payments to Peter.

While the Hyde School is not a college and is therefore in a different category of institution than the schools discussed in the afore cited cases, we believe that the principle enunciated in them applies to this case. That is, in Commonwealth ex rel. Ulmer v. Sommerville, supra, and the cases following it, our courts have recognized that children, even those over the age of eighteen years are entitled to financial support from their parents so that they may pursue education and prepare themselves for adulthood.

Unfortunately Peter was not ready academically to proceed to college immediately following his high school graduation. Nonetheless, he was entitled to aid from his father in order to prepare himself for higher education.

Nor does our Supreme Court’s recent decision in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) lead us to a different result.

In that case the Court established guidelines to be used in the calculation of child support and said that parents are legally obligated to provide only for the reasonable expenses of their children. In fact the Court cautioned that “Neither parent should be permitted to increase the parties’ support obligations by unilaterally indulging the children in things which are not reasonably necessary for their well-being.” (505 Pa. at 471, 480 A.2d at 995).

The Court then explained that the hearing court must begin its inquiry by determining the reasonable expenses of the children involved.

Reasonable expenses are not limited to the bare necessities of life, but extend to articles that are reasonably necessary for the proper and suitable maintenance of the child in view of his social station in life ... and the fortune possessed by him and his parents. (505 Pa. at 471-472, 480 A.2d at 995). Among the “necessities” for which a child is entitled to support is a proper education.

We have determined that the costs involved in Peter’s attending the Hyde School were reasonable under the circumstances of this case and therefore have concluded that despite Mr. Church’s opposition to the expenditure, he must contribute to it.

Mr. Church contends that Peter is not entitled to support for the 1981-82 school year because his scholarship and other financial resources more than covered his expenses. The record, however, does not disclose that Peter earned the sum of money shown by Mr. Church to be his estimated earnings and without that income it seems that Peter was not able to meet his expenses.

An appropriate order is therefore to be entered by the lower court keeping in mind Peter’s expenses, his own income and scholarship as well as the father’s financial status and ability to pay. See Melzer v. Witsberger, supra as to the calculation of the amount of support.

Order reversed and case remanded for further proceedings consistent with this opinion.

JURISDICTION IS RELINQUISHED.


text:
    481 A.2d 1362
    AUTOLOGIC INCORPORATED and Volt Information Sciences, Inc. v. CRISTINZIO MOVERS t/a Domenic Cristinzio Inc., Appellant.
    Superior Court of Pennsylvania.
    Argued May 3, 1984.
    Filed Sept. 21, 1984.

      Donald K. Joseph, Philadelphia, for appellant.
    Vincent R. McGuinness, Jr., Philadelphia, for appellees.
    Before SPAETH, President Judge, and BROSKY and McEWEN, JJ.
   BROSKY, Judge:

This is an appeal from the order denying appellant’s petition to open a default judgment. Appellant contends that the court below erred in denying the petition on the basis that appellant had not reasonably explained its default. We disagree with appellant and, accordingly, affirm the order of the trial court.

In August of 1980, appellee had equipment moved from California to Pennsylvania. It engaged appellant to move the equipment from Folcroft, Pennsylvania to Gettysburg, Pennsylvania. In October of 1980, appellant was informed by appellee’s attorneys that appellee was claiming that appellant was responsible for damage to the equipment and appellant was requested to notify its insurance company. Appellant notified its insurance broker who in turn notified the insurance carrier. Appellee’s attorneys thereafter dealt directly with the insurance carrier until, in May of 1982, the carrier notified appellee’s attorneys that it declined to make any payment on the claim believing it to be without merit. A copy of this notification was also sent to Clare Fahrer, the employee of appellant in charge of monitoring claims for damages. Appellees then filed a complaint in trespass and assumpsit on July 14, 1982 which was served upon appellant on July 15, 1982. Appellant did not answer the complaint and on September 3, Í982 a notice of praecipe for entry of default judgment was served upon appellant. Ms. Fahrer, believing that appellant’s insurance company was still handling the matter and that these documents were merely copies, did not forward either of the documents to either the insurance company or her superiors. A default judgment was entered on September 16, 1982. Appellant filed its petition to open judgment on October 18, 1982, which the lower court denied on November 17, 1982. This appeal timely followed.

Appellant argues that the court below abused its discretion by denying its petition to open on the basis that it had not reasonably excused its default. We disagree.

We note initially that a petition to open a default judgment is an appeal to the trial court’s equitable powers, and its decision will not be overturned absent a clear abuse of its discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). The court must look to the promptness with which the petition to open was filed, the reason given for the default, and the merits of the defense asserted. Id.

Instantly, appellant argues that its failure to answer the complaint was due to Ms. Fahrer’s belief that the matter was being handled by the insurance company and, therefore, that the complaint was simply a copy of a document of which the insurance company was aware. It contends that this belief was justifiable because she knew that the matter had been referred to the insurance company which had then dealt directly with appellee.

Generally speaking, a default attributable to a defendant’s justifiable belief that his legal interests are being protected by his insurance company is excusable. Bethlehem Apparatus Company, Inc. v. H.N. Crowder Company, Inc., 242 Pa.Super. 451, 364 A.2d 358 (1976). However, if the insured fails to inquire of the insurer as to the status of the case after events have occurred which should have reasonably alerted the insured to a possible problem, the insured is precluded from asserting a justifiable belief that its interests were being protected. Id.; see Baskerville v. Philadelphia Newspapers, Inc., 278 Pa.Super. 59, 419 A.2d 1355 (1980).

Appellant’s excuse for its initial failure to respond to the complaint is arguably an acceptable one considering appellee’s earlier direct dealings with the insurance company. However, when appellant received appellee’s notice of praecipe for entry of default judgment, we see no reason why, at the very least, it would not have sought assurances from its insurance carrier that it was being represented. Certainly, this notice should have indicated to appellant that there was some possibility that the insurance company was not aware of the complaint. Indeed, such inquiry is precisely the response intended by Pa.R.C.P. 237.1, which mandates that notice of the praecipe for entry of a default judgment be sent to the party against whom judgment is to be entered and to his attorney, if any. The comment to Rule 237.1 states:

The Rule requires notice to be given to both the defaulting party and his attorney, if any. This dual service is proposed for two reasons. First, there may be delays in transmittal of process and pleadings from the client to his attorney. This often occurs where papers are forwarded by a party to his insurer through an intermediary, such as an insurance agency. Often the papers never get to defendant’s attorney until after the time for filing a responsive pleading has expired. Notice to the party will alert him that there may have been some failure in transmission and prompt inquiry of his insurer may correct this, (emphasis added).

Thus, “[w]e find that the record clearly shows that the appellant has not acted in a manner which would have enabled it to rely justifiably upon legal representation by the insurance company.” Crowder, supra, 242 Pa.Super. at 456, 364 A.2d at 360.

Furthermore, we find appellant’s excuse is rendered no more reasonable because its reliance on its insurance company was through what it now characterizes as an “unsophisticated, low-level employee.” The fact remains that it was this type of employee that appellant chose to give responsibility to for handling damage claims. While it has been held that an employee’s clerical error may constitute sufficient legal justification to open a default judgment, see e.g., Campbell v. Heilman Homes, Inc., 233 Pa.Super. 366, 335 A.2d 371 (1975) (observing that the employee’s failure to forward the complaint was not unlike a clerical error), we do not believe the instant case falls within that category. Appellant gave Ms. Fahrer the responsibility not simply to forward in every case all papers she received to her superiors, but to make the decision whether or not there was a need to do so. Thus, appellant’s failure to respond to the complaint was not due simply to the inattentiveness of its employee, but to her conscious decision which it had empowered her to make. We do not find it unjust to hold appellant responsible for that decision. If we were to hold otherwise, employers could cause interminable delays in litigation simply by intentionally choosing unqualified employees to handle claims brought against them.

Accordingly, the court below did not abuse its discretion in finding that appellant failed to reasonably explain or excuse the default.

Order affirmed.

McEWEN, J., concurs in the result.

      . Even at this point, appellant’s excuse borders on the unreasonable since Ms. Fahrer apparently had notice of appellant’s insurer’s denial of appellee’s claim.

      . We note that the lower court did not consider the other two requirements for opening a default judgment, but stopped after it concluded that the default was not reasonably excused. Generally, this approach is improper; all three parts of the test should be evaluated in light of all the circumstances and equities of the case. Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982).

        However, we need not decide whether such failure was error in the case sub judice since appellant has not argued in this appeal that the trial court abused its discretion by this failure.


author: TAMILIA, Judge:

text:
    481 A.2d 1365
    COMMONWEALTH of Pennsylvania v. Robert L. SMITH, Appellant. COMMONWEALTH of Pennsylvania v. Michael BARNES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Sept. 21, 1984.

      Patrick J. Flannery, Assistant Public Defender, Kingston, for appellants.
    Joseph Giebus, Assistant District Attorney, Wilkes Barre, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered against appellant, Michael Barnes, in the Court of Common Pleas of Luzerne County pursuant to his negotiated plea of guilty to a charge of criminal conspiracy to commit robbery. Appellant was sentenced to a term of imprisonment of two years and one month to four years and two months. This appeal followed.

Co-defendant Robert L. Smith entered a negotiated plea of guilty to charges of robbery, criminal conspiracy, simple assault, and criminal mischief. He was sentenced to eighteen to thirty-six months imprisonment followed by seven years probation and on appeal raises issues duplicative of those contained in appellant Barnes’ appeal.

The issues raised relate to the court’s use of appellants’ juvenile records in fashioning their sentences and are of first impression in relation to the Sentencing Guidelines.

It is first alleged that because the court made no record findings of the nature of juvenile adjudications factored into the Sentencing Guidelines and noted on the forms used to calculate sentences, or of appellants’ ages at the time of their commission, the requirements of the Guidelines were not met.

Title 204 Pa.Code § 303.7(b)(1)(ii) as reported in 42 Pa.C.S.A. § 9721 states that:

(1) The offenses scored in this section are as follows:

(ii) All prior juvenile adjudications of delinquency where there was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant’s 14th birthday.

The clear legislative intent refers not to the record of sentencing as appellants seem to argue, but to the record of juvenile adjudications, which in the instant cases appear in the presentence reports from which the information on the Guidelines forms is abstracted. Since trial counsel did not object to the data contained in the presentence report or allege any discrepancies therein nor in fact was the propriety of the sentences questioned, we find no merit to their contention.

Appellants next question the consideration of their (or any) juvenile records in sentencing, citing In the Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981) for the proposition that since the purpose of juvenile proceedings is to seek treatment, reformation and rehabilitation rather than to punish, such adjudications should not be regarded as criminal acts for the purpose of sentencing.

The intention of the Legislature is clear in its adoption of the policy which not only allows but requires examination of a defendant’s juvenile record in fashioning appropriate sentences.

The Juvenile Act itself, 42 Pa.C.S.A. § 6354(b)(1), carves out an exception to the use of the juvenile’s record in a subsequent adult proceeding, stating such records may be used:

(1) in dispositional proceedings after conviction of a felony for the purpose of a presentence investigation and report;

Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981).

It is clearly the intent of the Legislature that a child who continues his pattern of serious and violent anti-social activity into adulthood, should not receive the benefit of a cloak of immunity regarding that behavior, when it is relevant to predicting future behavior and the public safety is at risk.

Until and unless the mandate to utilize juvenile records as a sentencing aid is legislatively reversed, it remains incumbent upon the sentencing courts to obey it.

Judgment of sentence affirmed.


author: ROBERTS, Judge:

text:
    481 A.2d 1366
    FAIRMONT CORPORATION v. Mort EISNER, individually and t/a Certified Carpet Distributors, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 12, 1984.
    Filed Sept. 28, 1984.

      Shelley W. Elovitz, Pittsburgh, for appellant.
    Samuel Avins, Pittsburgh, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROBERTS, Judge:

This appeal is taken from a judgment entered against appellant in the amount of $2783.95, following the dismissal of appellant’s exceptions to a non-jury verdict in the same amount. Among appellant’s exceptions was his main contention on this appeal, that the court improperly permitted appellee to proceed ex parte.

Appellee commenced the present action in March of 1981 to recover the above sum, which represents the amount of allegedly “unauthorized discounts” which appellant had taken in connection with goods purchased from appellee. Through counsel, Gilbert M. Gerber, Esq., appellant filed a “Notice of Intention to Appear” which denied that the discounts taken had been unauthorized. The matter proceeded to arbitration. On October 26, 1981, a panel of arbitrators entered an award in favor of appellant. Appellee filed a notice of appeal from the award with the court of common pleas. The January 12, 1982, edition of the Pittsburgh Legal Journal listed 9:00 a.m., March 15, 1982, as the time and date for trial, before Doyle, J.

By order of our Supreme Court dated February 3, 1982, counsel for appellant was disbarred on consent, pursuant to Pa.R.D.E. 215. See The Pennsylvania Lawyer, Vol. 4, No. 3 (April 15, 1982), p. 33. Under Pa.R.D.E. 217, the disbarment would take effect in 30 days, on March 5, 1982. See former Pa.R.D.E. 217(c), now Pa.R.D.E. 217(d). During that interim period, counsel for appellant was required to give appellant notice of the disbarment, “advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney,” and

“In the event the client does not obtain substitute counsel before the effective date of the disbarment, supervision, or transfer to inactive status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency on which the proceeding is pending for leave to withdraw.”

Id. No substitute counsel entered an appearance on appellant’s behalf prior to trial, and no motion for leave to withdraw appears of record in this case.

The matter proceeded to trial ex parte before a judge sitting without a jury on March 15, 1982, the date advertised in the Pittsburgh Legal Journal. Prior to appellee’s presentation of evidence, Robert W. Koehler, Esq., counsel for appellee at trial, told the court of a conversation between appellant and Samuel Avins, Esq., counsel for appellee at the arbitration level, who was not present at the trial. According to Mr. Koehler,

“it was either on Tuesday or Wednesday of last week. Mr. Eisner made inquiry as to when the hearing would be held. Mr. Avins informed him that the hearing would be held on this date at 9:00 a.m. before your Honor in Room 711 of the City-County Building, Pittsburgh. At that time, Mr. Eisner did not relate whether he had retained substitute counsel and nothing further was said.”

The trial judge then stated:

“All right. We made attempts also to contact the persons involved. Let the record show ... that in addition to [official publication in the Pittsburgh Legal Journal], cards were mailed on February 8, 1982, to all counsel of record or persons who were named as parties but had no counsel listed on the official records for trial before this member of the court today; that the case has now been called; that counsel of record, Mr. Gerber, has not responded; that attempts have been made and actually calls have been made to Mr. Mort Eisner [(appellant)], trading as Certified Carpet Distributors advising him of the time and place of the hearing.
We will, therefore, proceed with the hearing.”

The “hearing” was in reality a trial on the merits of appellee’s claim, and consisted of appellee’s presentation of two witnesses, whose testimony concerning the allegedly unauthorized discounts spanned a total of seven pages of trial transcript. The verdict of $2783.95, plus interest, in favor of appellee was returned on the day of trial.

Within three days of trial, appellant, through new counsel, filed exceptions to the verdict. Appellant also filed an “Affidavit of Non-Notice of Hearing,” in which appellant stated that he had not been informed, “either orally ... or ... in writing by Attorney Samuel Avins of the date, time or place of the hearing,” and, further, that Mr. Avins had advised appellant “that it would be a conflict of interest for him to tell me [ (appellant) ] anything about the case.” By order dated June 15, 1982, the court dismissed appellee’s exceptions. In the opinion accompanying the order, the court treated as true the information supplied by Mr. Koehler regarding the conversation between appellant and Mr. Avins, in which Mr. Avins allegedly told appellant of the date, time, and place of trial. The record shows no evidentiary hearing being held on the representations of appellant contained in his “Affidavit of Non-Notice,” in which he disputed the content of that conversation and his alleged awareness of the scheduling of trial.

This matter is governed by the principles established by our Supreme Court in Triangle Pacific Philadelphia Corp. v. Trident Enterprises, Inc., 495 Pa. 427, 434 A.2d 1165 (1981). There, the trial court permitted the plaintiff to proceed to trial notwithstanding the absence of counsel for the defendant, on a record which showed that counsel for the defendant had not been made aware of the date for the trial. Our Supreme Court “focus[ed] ... upon the reasonableness of the court’s action ... when it ordered that the matter proceed to trial ex parte, 495 Pa. at 436, 434 A.2d at 1169, and consistent with fundamental fairness, deemed it improper for the matter to proceed to trial ex parte “at a time when counsel for appellee was unaware that the matter would be considered.” 495 Pa. at 434, 434 A.2d at 1168. See also Budget Laundry Co. v. Munter, 450 Pa. 13, 298 A.2d 55 (1972) (ex parte trial improper where counsel for defendant was unavailable, due to legitimate demands of schedule). Here, appellant’s exceptions disputed whether appellant had been, in fact, made aware of the date for trial by counsel for appellee. If appellant, as he alleges, was not advised of the date for trial, then just as in Triangle Pacific, fundamental fairness requires that appellant be granted relief from the judgment.

12] We do not agree with the trial court’s reading of Triangle Pacific, which would limit entitlement to relief to cases in which a continuance has been requested by the party seeking relief. Although the facts of Triangle Pacific show that a continuance was requested by counsel for the defendant, that request was made prior to the scheduling of the actual trial. Our Supreme Court, as noted above, considered the controlling question in Triangle Pacific to be whether counsel for the party adversely affected by the ex parte trial had knowledge of the actual trial date. Consistent with Triangle Pacific and the considerations of fundamental fairness upon which that decision is based, surely it must be concluded that a request for a continuance need not be made where, as it is alleged here, there is no reason to know that a trial date has been set.

13] Nor do we agree with appellee’s suggestion that notice by publication and/or by specific notice to counsel of record was adequate to inform appellant of the date for trial. Notice of the date for trial by publication was provided three weeks before entry of the order disbarring appellant’s counsel of record, Mr. Gerber. Specific notice, by mailing cards, was given five days after the order of disbarment, at a time when Mr. Gerber was required, by Pa.R.D.E. 217, to terminate his involvement in pending matters. Yet as of the ex parte trial, counsel of record for appellant was still Mr. Gerber, whose disbarment, pursuant to former Pa.R.D.E. 217(c), would have taken effect ten days earlier and who, on this record, had not sought leave to withdraw in accordance with Pa.R.D.E. 217(b). In these circumstances, and in light of the alleged efforts of counsel for appellee to advise appellant of the date for trial, it may not fairly be concluded that appellant’s former counsel supplied appellant with all information necessary to charge appellant with having had knowledge of the date, time and place of trial.

Other than the alleged conversation between appellant and one of appellee’s counsel, the content of which appellant has sharply disputed, the sole remaining source of efforts to provide appellant with information concerning the trial date is mentioned by the trial judge, who, just prior to trial, stated that “attempts have been made and actually calls have been made to [appellant] advising him of the time and place of the hearing.” This record, however, clearly does not establish any more than that appellant was not reached by the party who had made the “attempts” and had placed the “calls.”

Because the present record does not support the trial court’s dismissal of appellant’s exceptions, the order dismissing appellant’s exceptions and the judgment in favor of appellee must be vacated. The record is remanded for further proceedings consistent with this opinion, including an evidentiary hearing on appellant’s claim that he was not made aware of the date for trial, following which an appropriate order and judgment shall be entered.

.Order dismissing exceptions and judgment vacated. Record remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.


author:
BROSKY, Judge:
      WIEAND, Judge,

text:
    482 A.2d 236
    COMMONWEALTH of Pennsylvania v. Terrance DOZIER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed Aug. 17, 1984.
    Reargument Denied Oct. 26, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   BROSKY, Judge:

This appeal is from the denial of appellant’s motion to quash certain informations filed against him. Appellant contends that his prosecution on those charges is barred by his prior prosecution for a different offense arising out of the same criminal episode. 18 Pa.C.S. § 110. We find, based on the peculiar facts of this case, that no violation of that statutory prohibition would be created by his prosecution and, accordingly, affirm.

The relevant procedural history is as follows. Appellant was charged in informations numbered 2705, 2706 and 2707 with terroristic threats, robbery and simple assault, respectively, for events occurring on May 12, 1981. He was also charged with informations numbered 2708, 2709 and 2710 for conspiracy, theft and robbery, respectively, for events occurring in an unrelated incident on November 3, 1981. The Commonwealth moved to continue numbers 2709 and 2710 from the second incident and proceeded to trial on the remaining charges. It is the Commonwealth’s contention that it was through a mistake that information number 2708, also from the second incident, was not included in its motion to continue. This explanation is supported by the fact that the Commonwealth presented no evidence at trial relating to information number 2708; but presented evidence relating only to the first incident. The trial court, quite properly, granted a demurrer to number 2708. At this point the Commonwealth concedes that double jeopardy bars a retrial on number 2708, but wants to proceed to trial on the remaining two counts arising out of the second incident. Appellant counters that such a trial is barred by 18 Pa.C.S. § 110. His motion to quash these two informations on these grounds was denied and is appealed from here.

Preliminarily, the interlocutory appealability of the order denying appellant’s motion to quash informations 2709 and 2710 must be decided. The statute in question is not mandated by either the Federal or Pennsylvania constitutional protections against double jeopardy. However, it does statutorily extend the protection of those provisions. The policy considerations underlying the double jeopardy clauses are also the basic purposes of the statute before us. Because of this, the interlocutory appealability of double jeopardy claims has been applied to claims based on this statute. See Commonwealth v. Buechele, 298 Pa.Super. 418 at 421, 444 A.2d 1246 at 1247 (1982). In short, this appeal is properly before us.

The relevant statutory provision states:

When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for: ...
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense

18 P.S. § 110.

Section 109, referred to above, defines acquittal as follows: “There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction." 18 Pa.C.S. 109(a), (emphasis supplied). When the trial court granted a demurrer it was, definitionally, making the sort of determination underlined above. In terms of there having been an “acquittal” of information number 2708, that element of § 110 was met sub judice.

The Commonwealth, while admitting that the facts of this case bring it under the provisions of § 110, would have us not apply its sanctions here — on the theory that it was only by mistake that information number 2708 was not continued along with the other charges arising out of the same incident. We reject that basis for vitiating a § 110 violation.

While, under the circumstances of this case, the explanation that a mistake was made is quite credible, that is quite beside the point. Procedural requirements, such as § 110, cannot be selectively enforced only when their violation did not occur on a good faith basis. A mistake standard would not only be difficult to establish as a practical matter, but would tend to encourage less than truthful allegations. An additional consideration is most convincing here. That the violation was the result of a mistake would not mitigate the fact that the purposes underlying the statute were nonetheless not served.

Those purposes were detailed in Commonwealth v. Green, 232 Pa.Super. 134 at 141-2, 335 A.2d 493 at 496 (1975).

The purpose of such a requirement as expressed by the courts of this Commonwealth is to avoid harassment and oppression of the citizen through repeated efforts by the authorities to obtain a conviction, and to protect societal interest against piecemeal litigation which drains judicial and professional resources.

See also Commonwealth v. Breitegan, 276 Pa.Super. 181 at 187, 419 A.2d 155 at 158 (1980). The effect of harassment and of wasted resources would be quite unabated by the fact that the violation occurred through inadvertence, rather than intentionally.

The purposes of the rule of law in question here are relevant in another sense. “It is fundamental that a rule of law should not be applied where its application fails to serve the purposes for which it was designed.” Commonwealth v. Beatty, 500 Pa. 284 at 291, 455 A.2d 1194 at 1198 (1983). The Supreme Court used that language in deciding not to apply this same § 110(1)(ii) to cases involving Motor Vehicle Code offenses.

Under the particular facts of this case, we conclude that enforcement of the statute would not serve its purposes. Because appellant would have undergone two trials in any event he was not subjected to any extra harassment by virtue of the § 110(1)(ii) violation. An essential part of that lack of harassment was the absolute lack of any evidence having been presented at trial for the # 2708 charge. Similarly, a waste of judicial and professional resources did not result from the inclusion of the # 2708 charge in the trial. The trial would have proceeded on the charges from the first episode without the inclusion of the # 2708 charge.

Because the purposes of the statute would not be furthered by its enforcement in this particular case, we will not enforce it here.

The order dismissing the motion to quash information numbers 2709 and 2710 is affirmed.

WIEAND, J., filed a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. If the provisions of 18 Pa.C.S. §110 are applicable to the facts of this case, as the majority holds, then this Court cannot properly refuse to enforce the statute’s bar of a second trial. Where a statute has been duly enacted by the legislature, this Court should not apply it selectively. If exceptions to the statute are to be created, they must be created by the legislature. They should not be created on an ad hoc basis by a court when it finds the result of enforcement harsh or unwise under the peculiar circumstances present in a particular case. Although I share the majority’s concern for cautious application of a statute which permits a person accused of crime to evade prosecution on grounds unrelated to guilt or innocence, I am unwilling to pay the price of selective, non-uniform enforcement of the statutory law of this Commonwealth.

I would enforce the provisions of 18 Pa.C.S. § 110 and discharge the defendant.

      . This statute was modeled closely on § 1.07(2) of the Model Penal Code which reads:
      (2) Limitation on Separate Trials for Multiple Offenses. Except as provided in Subsection (3) of this Section, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.
      The same prohibition against separate trials of charges arising out of the same incident was created first by case law after § 110 was passed but before it went into effect. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). After remand from the U.S. Supreme Court, Pennsylvania v. Campana, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), the Pennsylvania Supreme Court clarified that its decision in Campana I was based, not on the Pennsylvania or United States double jeopardy clauses, but on its supervisory power over the courts. Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974). In Commonwealth v. Hude, 500 Pa. 482 at 488, 458 A.2d 177 at 180 (1983), that court stated that, "Any treatment of an alleged Campana rule violation as a separate and distinct claim from an asserted section 110 violation is misleading.” Accordingly, this case will be treated solely with reference to section 110.

      . See also Commonwealth v. Shelhorse, 252 Pa.Super. 475, 381 A.2d 1305 (1977).

      . The Commonwealth concedes, and we have independently determined that the other elements necessary for a case to come under § 110 are also present here. Namely, all three charges did arise from the same incident; that this was known to the prosecutor; that all charges were within the jurisdiction of a single court; and that the court did not order separate trials.
      Further, while waiver can obtain on this issue, Commonwealth v. Bethel, 295 Pa.Super. 312, 441 A.2d 1248 (1982), defendant need not move for consolidation, Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978). The record reveals that appellant has not waived this issue through failure to preserve it below.

      . The two trials would have taken place for each of the sets of charges arising out of the two unconnected criminal episodes.


author: HOFFMAN, Judge: SPAETH, President Judge,

text:
    482 A.2d 240
    TOURAINE PARTNERS v. Herbert T. KELLY, Cecilia Perez Combs, Joel D. Beaver, Vivian Green, Patricia Risoli and Linda Risoli, John H. Evants, Stanley I. Gibell, Ruth S. Steppacher, David Feingold, Timothy G. Cutler, S.G. Winson. TOURAINE TENANTS ASSOCIATION (an unincorporated association under the laws of the Commonwealth of Pennsylvania) by David FEINGOLD, Trustee ad litem, and Cecilia Perez Coombs, Trustee ad litem, and Julian Fox, substituted Trustee ad litem, Appellants, v. TOURAINE PARTNERS, a limited partnership under the laws of the Commonwealth of Pennsylvania, and Sargo III Inc., sole general partner of Touraine Partners, and Robert Sheridan & Partners, a partnership and Robert Sheridan, an individual, and Marc Sheridan, an individual, and Marks & Co., Inc., a corporation and Robert Demchik, an individual, and Barbara Leff, an individual, and Raymond Fleisher, an individual and Touraine Associates, a limited partnership.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1984.
    Filed Aug. 31, 1984.
    Petition for Allowance of Appeal Denied Jan. 9, 1985.

      Jerome J. Shestack, Philadelphia, for appellees.
    Joseph S. Moloznik, Philadelphia, for appellants.
    Before SPAETH, President Judge, and BECK, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal presents a novel issue concerning the construction of the term “declarant” under the Pennsylvania Uniform Condominium Act, 68 Pa.C.S.A. § 3101 et seq. For the reasons stated herein, we affirm the order of the lower court.

The facts are as follows: In the late summer or early fall of 1980, J.E. Marks, general partner of Touraine Associates (then owner of The Touraine apartments), determined that The Touraine required extensive improvements. Accordingly, the apartment management instituted a policy of renewing tenant leases only on a month-to-month or other short-term basis. On October 29, 1980, Robert Sheridan of Robert Sheridan & Partners, a limited partnership, entered into a purchase and sale agreement with Touraine Associates, whereby he acquired The Touraine for approximately $3,500,000. Sheridan then assigned his interest to Touraine Partners, a newly formed partnership. At the time of the sale, Sheridan expected to open The Touraine as a condominium following the completion of a major renovation and restoration program. The acquisition and closing documents recognized Touraine Partners’ right either to convert the building into a condominium or to continue to use it as a rental apartment building. In mid-December, 1980, because of changed market conditions, Touraine Partners reevaluated the likelihood of reopening the building as a condominium, and by mid-January, 1981, when it received the deed from Touraine Associates, it was seriously reconsidering the feasibility of opening as a condominium and regarded reopening as a rental apartment building as “a very serious alternative”. On January 30, 1981, Touraine Partners distributed a letter to all Touraine residents, notifying them that because of the renovation program, leases would be honored until their expiration date but would not be renewed, and that financial benefits would be forthcoming to those willing to enter into early lease terminations. Approximately 100 tenants chose early lease termination and received an option to return to The Touraine when it reopened as either a rental apartment building or a condominium.

On or about February 17, 1981, The Touraine Tenants Association commenced an equity action against Touraine Partners, Sargo, III, Inc. (sole general partner of Touraine Partners), Robert Sheridan, Robert Sheridan & Partners, and Marks & Co. (managing agent for The Touraine), seeking to prevent Touraine Partners from evicting individual tenants of The Touraine and to stop the renovation project. Settlement negotiations continued through the summer of 1981, during which time Touraine Partners’ counsel repeatedly referred to the occupying tenants, whose various leases expired in March, May, June or August of 1981, as illegal holdover tenants. Touraine Partners accepted rent checks tendered for July and August, but refused rent payments for September and thereafter. On July 21, 1981, at a meeting between Touraine Partners and the Touraine tenants at the Bellevue Stratford Hotel, Touraine Partners expressed its willingness to make available to the tenants certain benefits detailed in the Pennsylvania condominium statute, provided the tenants terminated the litigation. Also in July, Touraine Partners began the restoration program and entered into a contract with Turner Construction Co. for that purpose.

On September 15 and 16, 1981, Touraine Partners filed a complaint in equity and motions for preliminary injunction against two of the occupying tenants, seeking immediate possession of the occupied premises and the defendants’ ejectment. Touraine Partners subsequently filed similar actions against ten other occupying tenants. On September 28, the twelve defendants answered the motions, claiming that because Touraine Partners had converted The Touraine into a condominium, the condominium statute entitled them to at least one year’s additional occupancy and, in some cases (because of age), two years. Contrary to Touraine Partners’ assertion, they also claimed that they were not illegal holdovers but were occupying under valid leases which had not been terminated or had been terminated improperly under the Landlord and Tenant Act, 68 Pa.S.A. § 250.101 et seq.

In the October, 1981 issue of the WFLN Radio Guide, there appeared a full-page advertisement proclaiming the availability of condominium homes in The Touraine.

On October 2, 5, 6, 7 and 9, 1981, the Chancellor held hearings on the motions for preliminary relief. On October 9, the court consolidated the twelve actions against the individual tenants with the tenants’ original action, and, because of the extensive testimony taken, considered the hearing as final.

In the November 2, 1981 issue of Time magazine, the November 9, 1981 issue of Newsweek, and the December 2, 1981 issue of Business Week, there appeared advertisements on the availability of condominium homes in The Touraine.

On November 3, 1981, the tenants filed a motion to reopen testimony alleging that the November advertisements constituted after-acquired evidence. On December 2, 1981, the Chancellor filed a Decree Nisi, granting the injunctive relief requested by Touraine Partners and denying the tenants’ requested relief. The court refused to reopen testimony and the holdover tenants were ordered to vacate the premises within 30 days. On December 14, the tenants’ exceptions were hand-delivered to the trial judge. On January 13, 1982, the lower court en banc dismissed the exceptions and entered the Decree Nisi as a Final Decree. On January 15, Touraine Partners executed the Declaration of Condominium for The Touraine, which was recorded in the Deed Book of Philadelphia County on February 9, 1982. On February 11, the tenants filed the instant appeal.

Appellants contend that the lower court erred in holding that Touraine Partners was not a “declarant” under the 1980 Pennsylvania Uniform Condominium Act, 68 Pa.C.S.A. § 3101 et seq., (the Act). The term “declarant” is defined, in pertinent part, as follows: “(2) If the condominium has not yet been created, ‘declarant’ means any person who offers to dispose of or disposes of his interest in a unit not previously disposed of.” Id. § 3103 (emphasis added). Under § 3410 of the Act, a “declarant” of a conversion condominium must give occupying tenants at least one year’s notice of the conversion before requiring them to vacate and the right to purchase their units. Here, the lower court specifically found that: “72. Touraine Partners neither disposed of nor offered to dispose of an interest in any unit at The Touraine.” (Lower Court Opinion at 16). Although this finding was affirmed by the lower court en banc, we believe that this finding of “fact” is more properly characterized as an interpretation of statutory law, and hence do not hesitate to review it. Indeed, the disposition of this case turns on the correct construction of the phrase “offers to dispose” in the Act’s definition of declarant.

The term “dispose” is defined in the Act as “[a] voluntary transfer of any legal or equitable interest in a unit, other than as security for an obligation”, 68 Pa.C.S.A. § 3103; however, the term “offer” is not defined. Appellants contend, therefore, that the definition of the term “offering” contained in the Act controls:

Any advertisement, inducement, solicitation or attempt to encourage any person to acquire any interest in a unit other than as security for an obligation. An advertisement in a newspaper or other periodical of a general circulation, or in any broadcast medium to the general public, of a condominium not located in this Commonwealth, is not an offering if the advertisement states that an offering may be made only in compliance with the law of the jurisdiction in which the condominium is located.

68 Pa.C.S.A. § 3103 (emphasis added). Accordingly, appellants argue that the advertisements appearing in the October, 1981 issue of the WFLN Radio Guide and subsequently in other magazines constituted “offers to dispose” of condominium units within the meaning of “declarant”, thereby entitling them to notice and the option to purchase under § 3410.

Appellees, however, contend that the lower court correctly interpreted “offers to dispose” to mean contractual offers. Therefore, they argue that because the advertisements did not quote any prices, they were too indefinite to constitute “offers” and, hence, did not result in Touraine Partners becoming a declarant under the Act.

In order to resolve this dispute, we turn to the language and background of the Act itself. Section 3410 provides, in pertinent part:

(a) Notice of conversion — A declarant of every conversion condominium shall give each of the tenants and any subtenant in possession of a unit or units in a building or buildings subject to this subpart notice of the conversion no later than one year before the declarant will require the tenants and any subtenant in possession to vacate.... Every notice shall be accompanied by a public offering statement concerning the proposed sale of condominium units within such building or buildings. Except as otherwise provided in subsection (f), no tenant or subtenant may be required by the declarant to vacate upon less than one year’s notice, except by reason of nonpayment of rent, waste or conduct that disturbs other tenants’ peaceful enjoyment of the premises and the terms of the tenancy may not be altered during that period. Failure of a declarant to give notice as required by this subsection is a defense to an action for possession.
(b) Offer to tenant to purchase unit. — For six months after delivery or mailing of the notice described in subsection (a), the declarant shall offer to convey each unit or proposed unit occupied for residential use to the tenant who leases that unit. If a tenant fails to purchase the unit during that six-month period, the declarant may not offer to dispose of an interest in that unit during the following six months at a price or on terms more favorable to the offeree than the price or terms offered to the tenant____
(d) Notice to vacate. — If a notice of conversion specifies a date by which a unit or proposed unit must be vacated, the notice also constitutes a notice to quit specificed by section 501 of the act of April 6, 1951 (P.L. 69, No. 20), known as “The Landlord and Tenant Act of 1951.”
(g) Tenant meetings; open to the public. — At least 30 days before the notice of conversion is given, the declarant shall hold a tenant meeting open to the public in the municipality where the conversion is proposed at a place and time convenient to the persons who may be directly affected by the conversion.

68 Pa.C.S.A. § 3410 (emphasis added). This provision makes it clear that a public offering statement must be prepared before the notice of the conversion can be given and that the occupying tenant must receive the first offer to purchase the unit. Then, if the tenant declines to purchase the unit within the six-month period, the declarant cannot offer to dispose of the unit during the following six months on terms more favorable to the offeree than the terms offered to the tenant. Under § 3406, unless certain exceptions apply, a declarant must provide a purchaser of a unit with a copy of the public offering statement not later than the date of any contract of sale. 68 Pa.C.S.A. § 3406. Unless the purchaser is given the public offering statement more than 15 days before execution of a contract for the purchase of a unit, the purchaser may, before conveyance, cancel the contract within 15 days after receiving the statement. Id. The required content of the public offering statement for conversion condominiums is outlined in §§ 3402 and 3404, and includes a description of the proposed condominium the declarant’s schedule of construction, the types of financing offered by the declarant, and copies of the contracts and leases to be signed at closing. See 68 Pa.C.S.A. §§ 3402, 3404.

The Pennsylvania Condominium Act is based upon the 1977 Uniform Condominium Act (UCA), §§ 1-101 et seq., 7 U.L.A. 101 (1978). The definition of “declarant” in § 3103 of the Pennsylvania Act corresponds, in relevant part, to the definition of “declarant” in § 1-103(10) of the UCA. Comment 7 to § 1-103 contains the following explanation:

The definition of “declarant” focuses on two distinct time periods regarding the condominium: before and after the condominium has been created.
The definition also focuses on those circumstances where liability should be imposed upon a potential declarant before the condominium is created. In those circumstances, the declarant would not meet the definition contained in subsection (10)(i). It is a common market practice in some states, however, for a prospective de clarant to sell or to offer to contract to sell condominiums units to prospective purchasers before the condominium is created. In such a case, the offeror would meet the definition of a declarant contained in subsection (10)(ii).

UCA § 1-103 comment 7 (emphasis added). Additionally, the comments to § 4-106 of the UCA, upon which § 3406 of the Pennsylvania Act is based, contemplate situations in which the declarant and a prospective purchaser enter into a “nonbinding reservation agreement”, whereby the purchaser reserves the right to buy a unit but is not contractually bound to do so. UCA § 4-106 comment 3.

In light of the provisions of the Pennsylvania Act and the comments to the UCA, we find appellees’ construction of “offers to dispose” in the definition of declarant as contractual offers reasonable. The Act clearly contemplates certain limited situations when a person could become a declarant prior to the execution of the declaration of condominium. The alternate definition was added because, in practice, developers often sold or offered to sell condominium units before the condominium was even created. This offer, whether to occupying tenants or to other prospective purchasers, comes in the form of the public offering statement. Under contract law principles, “[a]n offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Restatement (Second) of Contracts § 24 (1981). “A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.” Id. § 26. “Advertisements of goods by display, sign, handbill, newspaper, radio or television are not ordinarily intended or understood as offers to sell.” Id. § 26 comment b. An advertisement is an invitation to the public to come and purchase. Id. § 26 illus. Accord, Hilliard Estate, 383 Pa. 63, 117 A.2d 728 (1955) (offer is distinguishable from preliminary contract negotiations and invitations to bid).

Accordingly, we reject appellants’ construction of “offers to dispose” to include advertisements as inconsistent with the Act. Instead, we hold that when the condominium has not yet been created, a declarant under the Pennsylvania Uniform Condominium Act is one who has prepared and delivered a public offering statement to a prospective purchaser with the intent of concluding a sale of a condominium unit with that purchaser. Therefore, the developer of a conversion condominium becomes a declarant under the Act only upon his delivery of the notice of intent and public offering statement to the occupying tenant, thereby triggering the tenant’s six-month option to purchase.

In the instant case, it is apparent that Touraine Partners cannot be considered a declarant. Throughout the relevant time period, it became increasingly uncertain as to the feasibility of reopening the building as a condominium and consequently never prepared (or delivered) a public offering statement or entered into any preliminary negotiations for the sale of condominium units. Although The Touraine management did commence a major renovation and restoration program, such work was necessary, regardless of whether the premises reopened as a condominium or as an apartment rental building, because of the building’s deterioration.

Moreover, even if Touraine Partners had been a declarant under the Act, we would not grant appellants’ requested relief because of our finding that appellants were illegal holdovers whose leases had been properly terminated under the Pennsylvania Landlord and Tenant Act, 68 Pa. S.A. § 250.101 et seq. The Landlord and Tenant Act provides that its three-months notice provision may be modified or waived by the tenant under the terms of the particular lease. Id. § 250.501. Here, The Touraine management determined the need for extensive improvements and began its policy of not renewing or renewing only on a short-term basis in late 1980. It notified its tenants in January, 1981 of the nonrenewal of their leases because of the renovation program. Cecilia Perez Coombs, a tenant with a multi-year residential lease containing a 90-day termination notice provision, received notice of lease renewal for only one year on March 14, 1980. A year later, on March 13, 1981, she received 90 days written notice of nonrenewal, expiring on June 30, 1981. On August 20, 1981, she received a notice to vacate, but continued to occupy the premises. Her tendered rent for July and August, 1981 was accepted by Touraine Partners, but her rent for September and thereafter was refused. Herbert T. Kelly, M.D., a tenant with a commercial lease containing a 90-day termination notice provision, received a letter on January 15, 1981 from Marks & Co., informing him that his lease would naturally expire on April 30, 1981 and would be renewed only on a month-to-month basis. On January 23, he was informed that his tenancy would in all likelihood be terminated promptly. On February 13, he received a letter notifying him that his tenancy would terminate on May 31, 1981. He requested a lease extension to August 31, 1981, and Touraine Partners expressed its willingness, provided he agreed to vacate then. Kelly did not agree and continued to occupy beyond May 31. His tendered rent checks for June, July and August were accepted. On August 20, he received an additional notice to vacate by August 31, 1981. Kelly’s rent tendered for September, 1981 and thereafter was refused. Timothy Cutler, a tenant with a residential lease which expired on March 31, 1981, received a letter dated April 2, 1981 from Marks & Co., in which he was advised: “Inasmuch as you are, in fact, still living in the building, even though you are trespassing, we shall continue to charge you on a day to day basis until the courts permit us to evict you.” These tenants were among the twelve defendants in appellees’ action in ejectment. It was not until approximately one month after the last of these tenants’ leases had expired that The Touraine advertisement appeared in the October, 1981 WFLN Radio Guide. Therefore, in removing the condominium aspect of the case, what remains is an apartment building which was forced to undergo major repairs because of deteriorating structures and systems, and whose tenants’ leases expired by their terms and were not renewed because of the renovation. The fact that appellees considered reopening The Touraine as a condominium is not justification for appellants’ illegally holding over after the expiration of their leases. We find implicit in the Pennsylvania Condominium Act that § 3410’s purpose is the protection of tenants with properly existing leases.

Accordingly, having found that Touraine Partners was not a declarant under the Pennsylvania Uniform Condominium Act and that appellants were not entitled to any of the Act’s benefits, we must affirm the order of the court below.

Affirmed.

SPAETH, President Judge, filed a concurring opinion.

SPAETH, President Judge,

concurring:

I concur in the majority’s affirmance of the trial court’s order, but write separately because my analysis differs somewhat from the majority’s. Appellants were not entitled to the protections of the Condominium Act if their leases were validly terminated under the Landlord Tenant Act before Touraine Partners became a declarant. On appeal appellants argue that the advertisement in the October 1981 WFLN Philadelphia Guide constituted an offer under the Condominium Act, thereby making Touraine Partners a declarant under the Act. Unlike the majority, I find it unnecessary to decide whether the advertisement constituted an offer under the Condominium Act. I think it sufficient to note that on appeal appellants have not effectively challenged the trial court’s conclusion that appellants’ leases were validly terminated under the Landlord Tenant Act prior to the publication of the October 1981 WFLN Guide.

Appellants’ statement of questions does not challenge the trial court’s conclusion. The statement of questions reads as follows:

I. Did the lower court err in holding that Sheridan/Touraine Partners was not a “Declarant” within the meaning of the Pennsylvania Uniform Condominium Act?
Answer: Yes, the court did so err.
II. Did the lower court err in refusing to permit after discovered evidence?
Answer: Yes, the court did so err.
III. Did the lower court err in transforming these proceedings from that involving a temporary injunction proceeding to that involving a permanent injunction proceeding after the close of the testimony on the temporary injunctions without allowing tenants/appellants an opportunity to present testimony in support of the allegations of their complaint in equity?
Answer: The court did so err.

“[OJrdinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.” Pa.R.A.P. 2116. See Commonwealth v. Unger, 494 Pa. 592, 594 n. 1, 432 A.2d 146, 147 n. 1 (1980) (issue not included in statement of questions not preserved on appeal); Keller v. Old Lycoming Township, 286 Pa.Super. 339, 343 n. 3, 428 A.2d 1358, 1360 n. 3 (1981) (issues not stated as questions involved on appeal will not be considered).

Moreover, the references in the text of appellants’ brief to the trial court’s conclusion are vague and do not effectively challenge the trial court’s analysis. In their statement of the case at page 8 appellants state generally that the August 1981 notice did not meet the 30 and 90 day notice requirements of the Landlord Tenant Act, but this statement is not explained or developed in the argument section of the brief, and therefore should not be considered on appeal. See Giant Markets, Inc. v. Sigma Marketing Systems, Inc., 313 Pa.Super. 115, 126 n. 2, 459 A.2d 765, 771 n. 2 (1983) (issue raised in summary of argument and not carried forward in the brief will not be considered). In their first argument at page 20 of their brief, appellants say that the October 1981 WFLN Guide was first distributed during the last week of September. However, there is no evidence in the record to support this contention. Quite to the contrary, Mrs. Coombs testified that she first saw the October 1981 Guide “When it was first published in October.” N.T. 2.174. In any case, appellants haye not challenged the trial court’s determination that under the Landlord Tenant Act and the terms of Paragraph 21 of their leases, the August 20, 1981, notice was sufficient to require the tenants to surrender possession in 5 days.

Given the effectively unchallenged conclusion that appellants’ leases were validly terminated under the Landlord Tenant Act prior to publication of the October 1981 WFLN Guide, I should hold that appellants have not established that the trial court erred in holding that they were not entitled to the protections of the Condominium Act. Even if the advertisement did constitute an offer and Touraine Partners thereby became a declarant, only tenants legally in possession at that time would be entitled to the protections of the Act.

      . We accept these findings of fact which were affirmed by the lower court en banc and are supported by sufficient evidence. See Sobel v. Sobel, 435 Pa. 80, 84, 254 A.2d 649, 651 (1969); Yuhas v. Schmidt, 434 Pa. 447, 453, 258 A.2d 616, 619 (1969); Agsco Equipment Corp. v. Borough of Green Tree, 297 Pa.Superior Ct. 33, 36, 443 A.2d 284, 286 (1981); Frowen v. Blank, 266 Pa.Superior Ct. 145, 147, 403 A.2d 585, 586 (1979).

      . On March 15, 1982, the lower court granted Touraine Partners’ motion for sanctions and ordered the tenants’ counsel to pay attorneys fees of $2,500 to the Touraine Partners.

      . If the condominium has been created, then a "declarant” is defined, in relevant part, as "any person who has execuíed a declaration". 68 Pa.C.S.A. § 3103. Under the Act, a condominium is created by recording an executed declaration. Id. § 3201(a). Therefore, in the instant case, because the Declaration of Condominium for The Touraine was not recorded until February 9, 1982, the Touraine condominium had not yet been created during the relevant time period.
      The term “person" is defined to include natural persons, corporations and partnerships. Id. § 3103.

      . A "conversion condominium" is "[a] condominium containing any building that at any time before recording of the declaration was occupied wholly or partially by persons other than purchasers and persons who occupy with the consent of purchasers." 68 Pa.C.S.A. § 3103.

      . See 68 Pa.C.S.A. § 3410.

        . The 1977 UCA was amended in 1980, but the amended version has not been adopted by Pennsylvania. As amended, § 1-103(9) of the 1980 UCA defines a "declarant” as "any person or group of persons acting in concert who (i) as part of a common promotional plan, offers to dispose of his or its interest in a unit not previously disposed of[.]” 1980 UCA § 1-103, 7 U.L.A. 124, 131 (Supp.1983).

      . Applicable Pennsylvania caselaw on the subject is sparse. Sargo, II, Inc. v. City of Philadelphia, 488 F.Supp. 1045, 1052-53 (E.D.Pa.1980), involved a 1979 city ordinance providing that a condominium conversion would be unlawful unless the tenants were given one year’s advance written notice "of the owner's intention to convert to a condominium by a date certain specified therein”. Id. The district court held that substantial compliance with this ordinance, which had been enacted pursuant to the Pennsylvania Unit Property Act, 68 P.S. § 700.101 et seq. (repealed 1980), was sufficient. In River Park Tenants Association v. 3600 Venture, 534 F.Supp. 45, 50-51 (E.D.Pa. 1981), the court held that under the Pennsylvania Uniform Condominium Act, developers were not prevented from giving notice of the impending conversion prior to the recordation of a declaration of condominium. See also 68 Pa.C.S.A. § 3410 note 2 (citing River Park Tenants Association v. 3600 Venture, supra).

      . Appellants’ construction of "offers to dispose” to include advertisements is also overly broad. In a situation such as the instant case, it would be both unrealistic and unwarranted to hold that a general advertisement suffices to trigger § 3410, thereby requiring the developer to give notice of an uncertain conversion and allowing the tenants to buy into a condominium which may never exist. We agree with appellees’ conclusion that the term “offering” has relevance only with respect to the optional Article 5 provisions of the 1977 UCA. Article 5, which Pennsylvania did not adopt when it adopted the rest of the UCA in 1980, provides for state agency regulation and registration of residential condominiums. See id. § 5-110 comment 2 (foreign condominium must only be registered in the enacting state if a declarant is "offering" the condominium in the enacting state).

      . Section 250.501 of the Landlord and Tenant Act provides, in relevant part, that:
      A landlord desirous of repossessing real property from a tenant may notify, in writing, the tenant to remove from the same at the expiration of the time specified in the notice under the following circumstances, namely, (1) upon the termination of a term of the tenant, (2) or upon forfeiture of the lease for breach of its conditions, (3) or upon the failure of the tenant, upon demand, to satisfy any rent reserved and due, where there is not personal property on the premises adequate to satisfy the rent in arrears except such property as is by this act exempt from levy and sale on distress for rent.
      In case of the expiration of a term or of a forfeiture for breach of the conditions of the lease where the lease is for any term of less than one year or for an indeterminate time, the notice shall specify that the tenant shall remove within thirty days from the date of service thereof, and when the lease is for one year or more, then within three months from the date of service thereof----
      The notice above provided for may be for a lesser time or may be waived by the tenant if the lease so provides.
      68 Pa.S.A. § 250.501.

      . The record supports the lower court’s finding that Touraine Partners did not engage in any conduct tending to coerce or harass the tenants into early lease terminations. See Lower Court Opinion at 18-19.

      . Appellants also contend that the lower court erred in (1) refusing to permit the admission into evidence of alleged after-discovered evidence; (2) changing the temporary injunction proceedings to permanent injunction proceedings; and (3) entering the March 15, 1982 order sanctioning the tenants’ counsel. We find these contentions meritless. First, the after-discovered evidence, namely, the November advertisements in Time and Newsweek, was cumulative, sought to impeach credibility, and unlikely to change the result of the hearing; therefore, the lower court did not abuse its discretion in denying appellants’ motion to reopen testimony. See Freed v. Priore, 247 Pa.Superior Ct. 418, 424, 372 A.2d 895, 898 (1977); Hydro-Flex, Inc. v. Alter Bolt Co., Inc., 223 Pa.Superior Ct. 228, 232, 296 A.2d 874, 877 (1972). Next, the record indicates that appellants' counsel agreed to the preliminary hearing being considered a hearing on both a preliminary and final injunction or, at least, failed to object to the lower court's ruling during the conference and hearing. See N.T. October 9, 1981 at 5.71-5.72. See also Lower Court Opinion at 4 and 4 n. 6. Lastly, no appeal was taken from the March 15, 1982 order and therefore we will not consider the issue. See Pa.R.A.P. 903(a).

      . I agree with the majority’s disposition of appellants’ remaining ■ arguments, see Majority Opinion 210 n. 10, except that I would not address the third argument as it is not raised in appellants’ statement of questions.