author: OLSZEWSKI, Judge:

text:
    566 A.2d 296
    COMMONWEALTH of Pennsylvania v. Daniel MARSH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1989.
    Filed Nov. 16, 1989.

      J. Michael Farrell, Philadelphia, for appellant.
    Helen Kane, Asst. Dist. Atty., Philadelphia, for Com.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposing life imprisonment for felony murder with a concurrent term of two and one-half years for assault. Appellant, Daniel Marsh, raises seven issues for our review. Finding no merit in his contentions, we affirm the judgment of sentence.

On March 26, 1984, appellant and four cohorts, guns drawn, kicked in the door of an illegal lottery operating at 2820 West Lehigh Avenue in Philadelphia. Four of the men entered, while a fifth positioned himself outside as a lookout. The men inside demanded money and ordered everyone inside to get down. When gunfire erupted, Ms. Carrie Morton was shot by appellant and killed as she stood in front of the booth, attempting to place her bets. Gloria Smith, another customer, suffered a gunshot wound in the wrist.

Carl Cooper, who had been working in the establishment as a doorman and had recognized some of perpetrators from a previous robbery, ran out the door when the shooting began. Cooper watched the perpetrators flee and ran for help. Police obtained descriptions of the perpetrators from Cooper and others present at the scene and learned that the premises had been robbed at gunpoint on two occasions within a two-week period prior to the murder. Cooper assisted police in preparing a composite sketch of appellant and informed them that the perpetrators frequented Storey’s Bar. On March 29, 1984, police transported Cooper to Storey’s, where he identified appellant. On May 23, 1984, Cooper also identified appellant at a line-up.

Appellant was arrested on March 29, 1984, and charged with second-degree murder, conspiracy, possessing an instrument of crime, aggravated assault, and robbery. A motion to sever was denied on November 19, 1984. On December 4, 1984, the trial court granted appellant’s motion to suppress an enlarged photo album but denied suppression of other forms of identification. On February 7, 1985, following a jury trial, appellant was found guilty as charged. Post-verdict motions were filed and denied; and on March 24, 1987, appellant was sentenced to life in prison for second-degree murder with a concurrent sentence of two and one-half to five years for aggravated assault. Appellant filed a petition to modify his sentence nunc pro tunc, which was denied on April 23, 1987. This appeal followed.

Appellant first contends that the trial court erred in denying his severance motion. Specifically, appellant asserts that he was prejudiced by the testimony of co-defendant Wiggins, “which resulted in the introduction of the statement which [Wiggins] gave to the police wherein he named the co-defendants____” Appellant’s brief at 9. In this regard, our Rules of Criminal Procedure provide:

Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

Pa.R.Crim.P. 1127(A)(2). It is well settled that the decision whether to sever trials is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Hess, 378 Pa.Super. 221, 238, 548 A.2d 582, 591 (1988), citing Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985). “A joint trial of co-defendants is ‘advisable when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to [all] defendants.’ ” Commonwealth v. Thomas, 346 Pa.Super. 11, 19, 498 A.2d 1345, 1349 (1985), citing Morales, 508 Pa. at 61, 494 A.2d at 372. When a conspiracy is charged, defendants should be tried together unless some actual prejudice is shown. Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984). A defendant must show real potential for prejudice and not mere speculation. Commonwealth v. Doa, 381 Pa.Super. 181, 205, 553 A.2d 416, 428 (1989), citing Commonwealth v. Patterson, 519 Pa. 190, 195, 546 A.2d 596, 599 (1988).

In the instant case, the record reflects that the charges against all defendants were identical and arose from the same incident. Indeed, many of the same witnesses would testify and the evidence was essentially the same for each of them. Therefore, “[severance would have resulted in unnecessary repetition.” Commonwealth v. Council, 355 Pa.Super. 442, 447, 513 A.2d 1003, 1006 (1986).

Moreover, appellant’s claim that he was prejudiced by co-defendant Wiggins’ statement to police is refuted by the record, for Wiggins’ statement was admitted in redacted form, eliminating the identification of Wiggins’ two co-conspirators. This Court has held that it is improper to find a co-defendant prejudiced by the admission of another co-defendant’s redacted statement if the statement does not tend to identify the co-defendant as a participant in the crime. Hess, 378 Pa.Super. at 238, 548 A.2d at 591, citing Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980); see also Council, 355 Pa.Super. at 449, 513 A.2d at 1007. “The interests of judicial economy commend redaction over severance in a joint trial of co-conspirators.” Hess, 378 Pa.Super. at 240, 548 A.2d at 592. We find no abuse of discretion on the part of the trial court in denying appellant’s severance motion.

Next, appellant contends that the trial court erred in denying appellant’s motion to suppress Cooper’s identification of appellant in the line-up and his in-court identification because they were tainted by the photo identification that the trial court suppressed. On March 30, 1984, Cooper was shown color photos of appellant taken from photo albums seized, pursuant to a warrant from an automobile in which two co-defendants were arrested. The trial court ruled that the photo identification was inadmissible on the grounds that: (1) appellant was under arrest at the time of the viewing and was denied his right to counsel; and (2) it was unduly suggestive because Cooper knew that the photo album had been seized from the automobile that Cooper had previously described to law enforcement officials.

In this regard, our Supreme Court has determined that “an in-court identification following an illegal out of court identification is admissible into evidence if, considering the totality of the circumstances, it is determined that the in-court identification had an independent origin ‘sufficiently distinguishable to be purged of the primary taint.’ ” Commonwealth v. Buehl, 510 Pa. 363, 385, 508 A.2d 1167, 1178 (1986), quoting Commonwealth v. Ransome, 485 Pa. 490, 497, 402 A.2d 1379, 1383 (1979). Factors making the in-court identification reliable are as follows:

(1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the [out-of-court] identification; (4) any previous identification by the witness or some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.

Commonwealth v. Laurenson, 323 Pa.Super. 46, 59, 470 A.2d 122, 128 (1983), quoting Commonwealth v. Slaughter, 482 Pa. 538, 546, 394 A.2d 453, 457 (1978).

The record reflects that at the time of the robbery, Cooper recognized appellant from appellant’s participation in another robbery of the lottery a week before and from having seen him the night before at Dooley’s Parlor. Transcript at 1670. Moreover, Cooper testified that he observed appellant crash through the door of the lottery building and observed him standing in the middle of a well-lit room prior to the murder. Four days later, Cooper selected appellant from a crowd of people inside Storey’s Bar. Indeed, Cooper never failed to identify appellant. Therefore, there is no reason to believe that the suppressed identification in any manner tainted the line-up or in-court identifications. We are satisfied that these identifications had independent origin and, accordingly, affirm the determination of the trial court.

Appellant also asserts that the trial court violated appellant’s constitutional privilege against self-incrimination by inquiring of appellant’s trial counsel as to whether appellant was going to testify regarding appellant’s shaving habits. The record reflects that when appellant’s counsel cross-examined Cooper, the following dialogue ensued:

[Attorney for appellant]: Can you see, by the way, if Mr. Marsh has a mustache from where you’re sitting?
[Cooper]: It’s very thin if he got one.
[Attorney for appellant]: If has one at all, it’s very thin?
[Cooper]: Yes.
[Attorney for appellant]: Okay____ Can you see whether or not Mr. Marsh has been shaven from where you sit?
If he has ever shaven in his life?
[The Commonwealth]: Objection, Your Honor.
The Court: Objection sustained.
[Attorney for appellant]: Would the Court permit me to have Mr. Marsh stand in front of the jury box so they can see whether or not he has ever shaven?
The Court: At the present time?
[Attorney for appellant]: Yes, in his life, yes.
The Court: How can he assume that? Where does that testimony come from?
[Attorney for appellant]: It would come from—
The Court: Is he going to take the stand and testify to that?
[Attorney for appellant]: No.

Transcript at 2070-2071.

It is well settled that reference to an accused’s post-arrest silence is a violation of his constitutional right against self-incrimination. Commonwealth v. Melvin, 378 Pa.Super. 59, 63, 548 A.2d 275, 277 (1988), citing Commonwealth v. Mays, 361 Pa.Super. 554, 523 A.2d 357 (1987); Commonwealth v. Gbur, 327 Pa.Super. 18, 474 A.2d 1151 (1984). Cautionary instructions, however, may rectify what otherwise might be reversible error. Commonwealth v. Robinson, 379 Pa.Super. 575, 576, 550 A.2d 800, 801 (1988), citing Gbur, supra. The courts of this Commonwealth use a four-factor test to determine whether cautionary instructions can cure such an error: “1) the nature of the reference to the defendant’s silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction.” Gbur, 327 Pa.Super. at 24, 474 A.2d at 1154. Using this test, we find that any prejudice that may have resulted from the trial court’s inquiry was adequately cured.

First, we note that the trial court’s inquiry was not a comment on appellant’s unwillingness to testify; rather, it was a question designed to ascertain the relevance and direction of defense counsel’s inquiry and, therefore, not a direct implication of appellant’s right against self-incrimination. In this event, the degree of prejudice was minimal. Compare Mays, supra (high degree of prejudice when officer made direct reference to appellant’s unwillingness to give a statement). Second, the reference to appellant’s silence was a single inquiry as to whether appellant would testify — a fact that the jury would learn, in any event, at some point during the trial. Third, the Commonwealth was in no manner involved in the reference and supported the curative instruction. Fourth, the trial court rendered a competent curative instruction both shortly after the reference and during the jury charge. We conclude, therefore, that the actions of the trial court were appropriate to protect appellant’s right to a “fair” trial, “remembering that the United States Constitution does not require a ‘perfect’ trial to effectuate one’s rights under the law.” Robinson, 379 Pa.Super. at 580, 550 A.2d at 803.

Next, appellant alleges that the trial court improperly admitted evidence of two prior gunpoint robberies of the lottery premises. It is well established that evidence of past crimes is inadmissible to prove that the defendant committed the crime with which he is presently charged. Commonwealth v. Donahue, 519 Pa. 532, 539, 549 A.2d 121, 125 (1988). Nonetheless, evidence of other crimes is admissible when:

“it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial — in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. [Citation omitted.] When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value. [Footnote omitted] [emphasis added.],” quoting Commonwealth v. Peterson, 453 Pa. 187, 197-8, 307 A.2d 264, 269 (1973).

Commonwealth v. Clayton, 516 Pa. 263, 276 n. 8, 532 A.2d 385, 392 n. 8 (1987), quoting Commonwealth v. Rose, 483 Pa. 382, 399-400, 396 A.2d 1221, 1230 (1979).

Instantly, we are satisfied that there is sufficient similarity between the crimes to justify the admission of evidence regarding each at trial for the purpose of showing a common scheme. Significantly, appellant proffered an alibi defense and challenged the reliability of Cooper’s identification testimony. Evidence of the prior robberies, therefore, was probative, as it tends to rebut the alibi defense and buttress Cooper’s testimony. Specifically, the Commonwealth’s evidence established that within two weeks of the instant robbery, two other robberies occurred on the premises. The first occurred on the Tuesday two weeks prior to the instant offense, between 2:00 and 2:30 p.m. Two men knocked on the door, identified themselves as police officers, and were admitted by William West, who accepted bets on the premises. Once inside, co-defendant Kevin Coleman drew a gun and placed it at West’s neck, demanding money. Cooper, who was outside the store, observed Coleman fleeing the scene after the robbery.

The second robbery occurred nine days later, on a Thursday at 2:30 p.m. Again, West responded to a knock at the door after which a man asked for “Jake,” who was inside playing cards with Cooper. When West unlocked the door to permit the man access, two armed men rushed in behind the first man. They announced a holdup and ordered everyone to get to the floor. Appellant held a gun to West’s head while co-defendant Madison went to the money box. West handed over the lottery proceeds and the robbers fled.

We find that the Commonwealth offered sufficient proof of common elements of the three offenses: (1) all of the offenses occurred within a two-week period; (2) all of the offenses took place at the same location; and (3) the perpetrators gained access in the same manner, drew guns, and robbed the premises at gunpoint. See Commonwealth v. Gibbons, 379 Pa.Super. 285, 293, 549 A.2d 1296, 1300 (1988). There is, in other words, substantial evidence of prior criminal acts and of a similarity in the three cases. Donahue, supra, 519 Pa. at 543, 549 A.2d at 127. The trial court, therefore, did not abuse its discretion in allowing the admission of the evidence of other crimes. Commonwealth v. Middleton, 320 Pa.Super. 533, 549, 467 A.2d 841, 849 (1983), citing Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977).

Next, appellant claims that the trial court invaded the province of the jury “by expressing its opinion on the ultimate issue of the Appellant’s guilt by commenting to the jury that the evidence proved Appellant guilty of prior alleged robberies of 2820 West Lehigh Avenue.” Appellant’s brief at 22. The record reflects that appellant is challenging a limiting instruction provided by the trial court to advise the jury that it was restricted in its consideration of this prior crime evidence. The court’s charge in this regard provided as follows:

You have heard evidence tending to prove that the defendants, Kevin Coleman, Barry Coleman, James Madison and Daniel Marsh, were guilty of offenses for which they are not on trial. Now, I am speaking of the testimony to the effect that they were involved in prior robberies at 2820 West Lehigh Avenue. This evidence is before you for a very limited purpose, that is for the purpose of tending to prove identity by showing prior acquaintances or for the purpose of showing motive or a common scheme, plan or design. This evidence must not be considered by you in any other way than for the purpose just stated. You must not regard this evidence as showing that any of the defendants is a person of bad character or criminal tendencies from which you might be inclined to infer guilt. If you find the defendants guilty, it must be because you are convinced by the evidence that he committed the crimes charged and not because you believe he is wicked or has committed other offenses.

Transcript of 2/7/85, at 48-49.

Appellant’s contention that the instruction was in error is meritless. Our Supreme Court, in Commonwealth v. Claypool, 508 Pa. 198, 205, 495 A.2d 176, 179 (1985), declared that when evidence of prior criminal acts is admitted, "... such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has been admitted.” See also Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989). Therefore, the trial court properly instructed the jury as delineated supra.

Appellant also alleges prosecutorial misconduct on the part of the Commonwealth for charging appellant with the two prior robberies “for the sole purpose of gaining their use as evidence at the Appellant’s trial for homicide.” Appellant’s brief at 23. Specifically, appellant asserts that “[t]he Commonwealth knew at the time of its presentation to the court that the only evidence [of the prior robberies] in its possession, the identifications of the defendant by West and Cooper, was so unreliable that it would be unable to obtain a conviction for those crimes.” Appellant’s brief at 24. Appellant’s contention misapprehends the law concerning admission into evidence of a defendant’s prior bad acts. Our Supreme Court has declared that the introduction into evidence of a crime other than the one charged does not depend upon a showing of a conviction of the prior crimes. Commonwealth v. Smith, 502 Pa. 600, 611, 467 A.2d 1120, 1125 (1983), citing Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981); Commonwealth v. DeVaughn, 488 Pa. 629, 413 A.2d 660 (1980). As discussed supra, the evidence of the prior robberies was properly admitted. The fact that the Commonwealth subsequently elected to dismiss the charges for the prior robberies is, therefore, of no consequence.

Further, this action on the part of the Commonwealth in no manner rises to the level of prosecutorial misconduct. The United States Supreme Court has enunciated principally two types of prosecutorial misconduct: (1) the prosecutorial misconduct designed to provoke a mistrial; and (2) the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980), citing United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). The Commonwealth properly presented evidence of the prior bad acts; therefore, there has been no bad faith conduct designed to prejudice appellant. Moreover, the Commonwealth acted within its prerogative in dismissing the charges.

Finally, appellant asserts that trial counsel was ineffective for failing to procure appellant’s alibi witness, Crystal Robinson. When addressing a claim of ineffectiveness, we first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). If so, we must then determine whether the action or inaction of counsel had some reasonable basis designed to effectuate his client’s interests. Id. Finally, appellant must also demonstrate that counsel’s ineffectiveness prejudiced him such that the outcome at trial would have been different. Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987).

In order to establish counsel’s ineffectiveness for failing to call a particular witness, appellant has the burden of offering a positive demonstration or offering to prove at an appropriate hearing that this witness’s testimony would actually have been helpful to the defense. Commonwealth v. Flis, 369 Pa.Super. 275, 283, 535 A.2d 157, 160 (1987). In addition, appellant must prove that appellant informed counsel of the witness’s existence. Commonwealth v. Glessner, 337 Pa.Super. 140, 146, 486 A.2d 521, 524 (1985). “The burden of proving counsel’s ineffectiveness rests on the party alleging it.” Flis, supra, citing Commonwealth v. Wallace, 347 Pa.Super. 248, 251, 500 A.2d 816, 818 (1985). Instantly, appellant has not proved that trial counsel was aware of Ms. Robinson’s existence, nor has he in any manner established or offered to establish what Ms. Robinson would have testified to at trial. Accordingly, we cannot make a finding of ineffectiveness on the assumption that a witness’s testimony would have affected the proceedings. Flis, supra.

Judgment of sentence affirmed.

DEL SOLE, J., concurs in the result.

      . Sentence was suspended on both the conspiracy and possessing an instrument of crime counts. Sentence for the robbery conviction was deemed merged with the murder sentence.

      . The Commonwealth urges that this issue has been waived because appellant, in supplemental post-trial motions filed by new counsel, has not alleged that trial counsel was ineffective for failing to raise the issue in the originally filed post-verdict motions. The Commonwealth, however, has offered no support for its position and, indeed, we find none.

      . Finding the instruction to be proper, we will not address appellant’s assertion that trial counsel was ineffective for failing "to request a curative instruction on this point.” Appellant’s brief at 23. See Commonwealth v. Buehl, 510 Pa. 363, 384, 508 A.2d 1167, 1176 (1986), citing Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984) (When jury instructions are adequate, counsel cannot be deemed ineffective for failing to request an adequate charge.).

      . It is conceivable that the Commonwealth chose not to prosecute appellant on the other charges because appellant was sentenced to life imprisonment for the instant offense. While we cannot presume that the Commonwealth decided not to prosecute because of a lack of sufficient evidence, as appellant suggests, we note that in this circumstance, such reasoning would have been in compliance with our Rules of Professional Conduct, which provide:
      RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR The prosecutor in a criminal case shall:
      (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause....


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    566 A.2d 303
    COMMONWEALTH of Pennsylvania v. Eric J. PHELPS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1989.
    Filed Nov. 17, 1989.

      Eric J. Phelps, appellant, in pro. per.
    Before TAMILIA, KELLY and CERCONE, JJ.
   PER CURIAM:

This is an appeal from judgment of sentence entered by the court on January 24, 1989 following appellant’s convictions of a misdemeanor and three summary offenses under the Vehicle Code. He was sentenced to pay a fine of $100 and spend 15 days to 12 months in prison, followed by community service.

Appellant contends the Commonwealth has no jurisdiction over him because he has relinquished to the Commonwealth all property rights constituting privileges and immunities under the fourteenth amendment. Such a release, appellant asserts, returns him to the pre-fourteenth amendment status of an “American Freeman,” and it revokes the Commonwealth’s power over him.

Appellant’s position is not supported by any legal authority and is antithetical to the general notions of a democratic society. One cannot create a special legal status so as to avoid the laws of the Commonwealth by releasing certain property rights. We have reviewed appellant’s brief and arguments which are comprised of a myriad of disparate, disconnected and untenable legal citations and conclusions without foundation in constitutional and statutory law. Appellant would have us treat his status as a Pennsylvania citizen as a property right which he can divest at will, retaining to himself only such rights and privileges which were granted him pursuant to the Bill of Rights of the United States Constitution.

Inherent in the adoption by the various states of the United States Constitution and the amendments thereto, was the retention of states’ sovereignty over their citizens, which is coextensive in most respects with federal sovereignty. To make abundantly clear that the Federal Constitution did not abrogate individual and states’ rights, which were not arrogated to the Federal system, James Madison proposed and had adopted the ninth and tenth amendments to the United States Constitution.

ARTICLE [IX]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

ARTICLE [X]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Const. art. IX and X. In conformity with the Federal Constitution, the state of Pennsylvania has empowered its government, through a Constitution duly promulgated by a convention of its people, in a Declaration of Human Rights (Article I), to unalterably establish the rights people have to liberty and free government. These rights may be abandoned in a limited way under special circumstances but the governance of the people may not be rejected or refused or changed individually. Section 2, Article I, Political powers, imposes all power in the people collectively, and government is founded on their authority which may be altered, reformed or abolished only in such manner as they may think proper. The laws of the Commonwealth are promulgated by the legislature, which is empowered by Article II of the Pennsylvania Constitution, and Article III which provides for the procedure in enacting bills, which become the law. Article IV of the Pennsylvania Constitution empowers the Judiciary, which functions to enforce and interpret the laws and the Constitution. As a Pennsylvania resident, appellant has a status, rather than a property right which he can divest. The status of resident carries with it not only the rights but the duties incumbent upon a citizen, resident or transient in Pennsylvania, which subjects him to the laws of the Commonwealth.

Since appellant points to no legal infirmity in the proceedings in the trial court, but relies on his assumed status of “U.S. Freeman” to immunize himself from the effects of his violation of Pennsylvania laws, and there is no legal or constitutional basis for the claimed status, his appeal must be denied and judgment of sentence affirmed.

Judgment of sentence affirmed.

      . Altered, forged, or counterfeit documents and plates (M1); 75 Pa. C.S. § 7122.
      Registration and certificate of title required; 75 Pa.C.S. § 1301.
      Operation of vehicle without official certificate of inspection; 75 Pa.C.S. § 4703.
      Carrying and exhibiting driver’s license on demand; 75 Pa.C.S. § 1511.


author: DEL SOLE, Judge.

text:
    566 A.2d 304
    COMMONWEALTH of Pennsylvania v. Barbara J. KOZARIAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1989.
    Filed Nov. 15, 1989.

      Norma Chase, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com.
    Before WIEAND, DEL SOLE and MELINSON, JJ.
   DEL SOLE, Judge.

Appellant takes this appeal from the judgment of sentence imposed following her guilty plea to charges of receiving stolen property, conspiracy, theft and forgery. Represented by new counsel she alleges that her prior counsel was ineffective for failing to preserve a claim that her sentence, which totaled 15 to 37 years, was incorrectly computed by utilizing a prior record score of 4 independently on each count to which she plead guilty.

The application of the following provision is relevant to a resolution of this issue:

§ 303.6 Consecutive Sentences.
(a) When imposing sentences for convictions arising out of the same transaction, the prior record score is computed for the offense with the highest offense gravity score in such transaction. For the remaining offenses in such transaction, the prior record score shall be O.

42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.6

To determine whether the convictions at issue were each a separate “transaction”, thereby precluding the application of § 303.6, it is necessary to examine the facts established in the record.

NUMBER 851U19A

At CC8512419A Appellant was sentenced to 1-2 years on a conspiracy charge and a consecutive term of 2-5 years on her conviction for Theft by Unlawful Taking. In formulating each of these sentences the court applied a prior record score of 4. A third charge to which Appellant plead guilty, Receiving Stolen Property, was found to have merged for sentencing purposes. The charges found at this number arose from an incident in which Appellant, posing as a prostitute, removed four $50.00 bills and a cashier’s check in the amount of $3900.00 from the pants pocket of the victim, Richard A. Duessel.

In determining, for purposes of the sentencing provisions found at § 303.6, whether these crimes were part of the same “transaction” attention must be paid to the fact that Appellant’s prior record score was applied to both the theft charge and the conspiracy charge. A similar situation was found in Commonwealth v. Phillips, 374 Pa.Super. 219, 542 A.2d 575 (1988). Therein the court cited to an earlier decision and its reference to the comments of the Pennsylvania Commission on Sentencing.

A “transaction” is a crime or crimes which were committed by a defendant at a single time or in temporally continuous actions that are part of the same episode, event, or incident, or which are conspiracy and the object offense.

Id., 374 Pa.Superior Ct. at 222-24, 542 A.2d at 577, citing Commonwealth v. Fries, 362 Pa.Super. 163, 523 A.2d 1134 (1987), See Pa.C.Sent.2d (September 1, 1986) p. 51.

The Phillips court found:

It is clear that Appellant was convicted of conspiracy and theft involving the same vehicle and therefore these crimes should have been considered as a single transaction episode. Accordingly, Appellant’s prior record score of 6 should have been applied to one of his convictions and a prior record score of zero should have been used in calculating the sentence for the remaining crime. Since both convictions were for offenses with the same gravity score it would not matter which sentence was computed] using the zero record score; however, it is obvious that a vastly different result from the sentence imposed by the court would have been suggested by the guidelines had a zero record score been utilized.

Commonwealth v. Phillips, supra, 374 Pa.Superior Ct. at 224, 542 A.2d at 578.

This language found in Phillips is equally applicable to the present case. The criminal Complaint filed makes clear that the Theft and Receiving Stolen Property charges were the objects of the conspiracy charge. The Complaint alleges that Appellant and another individual entered a conspiracy “with the intent of promoting or facilitating the crime of THEFT AND RECEIVING STOLEN PROPERTY, NAMELY $200.00 IN U.S. CURRENCY AND A CHECK FOR $3900.00 BELONGING TO RICHARD DUESSEL....” Accordingly, as in Phillips, the prior record score of 4 should have been applied to only one of the two convictions, which each had an offense gravity score of 5.

As stated, Appellant was sentenced to serve 24-60 months on the theft charge and 12-24 months on the conspiracy charge. With an offense gravity score of 5 and a prior record score of 4 the minimum range under the guidelines is 18-24 months, while the same offense gravity score using a zero prior record score would suggest a minimum sentence range of 0-12 months. “Thus, it is apparent that the range of sentences that are suggested by the guidelines vary substantially when the rule of ‘single transaction’ is applied to computation of the sentence.” Commonwealth v. Fries, supra, 362 Pa.Super. at 175, 523 A.2d at 1139.

NUMBER 8513167A

At a separate number Appellant was charged with 6 counts of forgery. The specific facts relating to these charges are not detailed in the record. The record does, however, establish that Appellant did forge the name of Arthur Collins on various checks. Checks numbered 311, 312 and 313 were each presented at Union National Bank on November 7, 1985 where a bank employee, who recognized Appellant as a bank customer, co-signed the checks which were then cashed. The next day Appellant engaged in the same process and checks numbered 315, 316, and 320 were cashed. The Commonwealth submits that each of the six counts arising out of the forgery of six checks was the result of a separate transaction. The Commonwealth reasons that because each check is a separate writing, a separate criminal act took place each time Appellant forged a check.

The trial court and the Commonwealth err, however, in focusing on the separate and distinct nature of Appellant’s acts, rather than on the temporal relationship between the crimes. The separate and distinct nature of the criminal acts are relevant to a merger inquiry. See Commonwealth v. Dieterly, 294 Pa.Super. 25, 439 A.2d 732 (1981) (where the court concluded that the convictions for forgery and theft by deception would not merge since appellant committed two successive and distinct acts when he signed the forged check without authority and then presented it for payment.) Although distinct, crimes which occur on a continuum within an episode or event are said to be part of the same transaction. The sentencing court must focus on whether the crimes are “temporally continuous actions, unseparated by law abiding behavior” as to constitute a transaction. Commonwealth v. Fries, supra, 362 Pa.Super. at 173-75, 523 A.2d at 1139.

In the instant case three checks numbered 311, 312 and 313 were presented at the same bank to the same bank employee on November 7, 1985, each bearing the forged signature of Arthur Collins. There is no indication in the record that Appellant separated these criminal acts by “law abiding behavior”. Rather the record, including Appellant’s guilty plea colloquy, indicates that these criminal activities occurred as part of one transaction. The fact that each forgery was a separate writing and the result of Appellant’s independent decision to commit another crime is of no consequence for a determination of whether these distinct crimes were part of the same “transaction.” See Commonwealth v. Fries, Id. (where defendant committed acts within a three day period during which he held his victim captive, separate crimes of rape, kidnapping involuntary deviate sexual intercourse, terroristic threats, simple assault and burglary were part of a single transaction for sentencing purposes).

Appellant received consecutive 2-5 year sentences for all three of these forgery convictions, and her prior record score of 4 was used in computing each of these sentences. As with the offenses at No. CC8512419A, the suggested minimum range in the guidelines for a crime with an offense gravity score of 5 and a prior record score of 4 is 18-27 months, while the same conviction using a prior record score of 0 would suggest an appropriate minimum sentence to be in the range of 0-12 months. The sentencing court’s failure to utilize a zero prior record score for two of the offenses which occurred within this transaction was clearly error which substantially altered the suggested sentencing ranges.

The same rationale applies equally to the remaining three forgery convictions. These charges stemmed from Appellant’s conduct which occurred the next day when she presented checks numbered 315, 316 and 320 for payment. The prior record score of 4 should not have been applied to each of these convictions. While ordinarily this score should be applied to only the most serious offense, here each of the offenses were of equal gravity, thus, the prior record score should have applied to only one of the forgery convictions which occurred on November 7, 1985 and one of her convictions for her crimes of November 8, 1985.

For these reasons we conclude that Appellant received an inappropriate sentence. Because we are unable to conceive of any reason why counsel would have chosen to disregard this error we find that counsel was ineffective for failing to preserve this sentencing claim. We vacate the Judgment of Sentence in this case, remand the case for resentencing and direct the court to apply a prior record score of 4 to one of the convictions at CC8512419A, one of the convictions at CC8513167A which resulted from the November 7, 1985 forgeries and to one of the three convictions which resulted from the November 8, 1985 forgeries. The remaining convictions should be computed using zero as a prior record score.

Judgment of Sentence vacated. Case remanded for re-sentencing in accordance with this memorandum.


author: POPOVICH, Judge:

text:
    566 A.2d 307
    William Alan O’NEIL, a Minor By and Through his Parents and Natural Guardians, Janet O’NEIL and Carl O’Neil and Janet O’Neil and Carl O’Neil in Their Own Right v. HENRY’S RIVERSIDE MARKET. Appeal of COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Nov. 16, 1989.

      Jason W. Manne, Pittsburgh, for Dept. of Public Welfare, appellant.
    Neil R. Rosen, Pittsburgh, for appellees.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Venango County approving settlement of a minor’s claim by the appellant/Commonwealth of Pennsylvania, Department of Public Welfare. We affirm.

The facts are not contested and indicate that, as a result of an incident occurring on March 30, 1987, William Alan O’Neil, a minor, sustained personal injuries on the premises of Henry’s Riverside Market in Venango County.

Counsel for the minor, after numerous discussions with representatives of the Market’s insurance carrier, concluded that an offer of settlement in the amount of $9,000.00 was fair, reasonable and should be accepted by the minor. In accordance therewith, given O’Neil’s status as a minor, his counsel sought court approval to settle the claim owed to, as well as monies owed by, the minor.

In a petition to settle the minor’s claims, his counsel set forth a proposed distribution of the monies, the sum of which $706.00 was to be paid to the appellant, less attorney’s fees of 40%, i.e., $282.40.

The Petition for Leave to Settle the Minor’s Claim was granted consistent with counsel’s distributive scheme on May 13, 1988. On the same date the Petition was granted, the appellant filed an answer with new matter contending that the 40% attorney’s fee against the Commonwealth- of Pennsylvania’s claim, when the minor and the other creditors were being charged only 33⅓%, was unjustified. Further, the appellant claimed that its receipt of only two days written notice prior to the time the Petition to settle was to be heard in court was “unreasonable” and did not afford it sufficient time to appear and respond to the content of the Petition’s attorney-fee structure in court.

The court below denied the appellant’s complaints and a timely appeal to this Court followed wherein the same two issues raised below are argued again by the appellant to this Court.

On the issue of the ability of counsel for the appellant to deduct attorney’s fees for aiding in securing monies for the minor, and prorating such fee against the total amount recovered before distributing the remainder to the various creditors, we would observe that 62 P.S. § 1409(b)(7)(i) allows for the payment of reasonable attorney’s fees prior to allowing as a first lien against the amount of such original judgment or award, the amount of the appellant’s expenditures for the benefit of the beneficiary under the medical assistance program. As made mention by the attorney for the minor at his brief at page 11, “The Legislature, when referring to ‘such judgment or award’ could only have meant the original judgment or award, unaffected by any offset for costs or attorney’s fees.” (Emphasis in original) We agree, for in subparagraph (ii) of the same statute, the Legislature took pains to allow for the payment of services rendered, by one such as the appellant where it aids in prosecuting the beneficiary’s case, “out of the balance of such judgment or award” once attorney’s fees have been paid. Thus, we find ample support in the language of § 1409 to require the appellant to be debited its prorata share of attorney’s fees for counsel for the minor’s efforts in creating the fund from which the distribution was being made without any assistance or aid from the appellant. See also Shearer v. Moore, 277 Pa.Super. 70, 419 A.2d 665 (1980).

The amount of attorney’s fee sought to be deducted form the appellant’s share of its remuneration was offered to be reduced from 40% to 33⅓% to conform to the fee-percent paid by the minor and the amount charged other creditors. However, the appellant refused the offer. See correspondence dated November 9, 1988, November 7, 1988, and November 4, 1988, between counsel for the minor and counsel for the appellant, wherein the offer to reduce the fee charged was rebuffed by the appellant. Since an attorney’s fee was required to be paid by the appellant, as we interpret § 1409, and counsel for the minor offered to reduce the initial fee, the appellant’s rejection of the same will not allow him to complain now.

As for the appellant’s argument that 48 hours notice by counsel for the minor of the presentment of the Petition to settle the minor’s claim was unreasonable and deprived it of due process, we must point out that, albeit the appellant had only 48 hours notice of the impending proceeding, the appellant’s counsel did communicate to the court below in the following manner to the Petition by indicating: “because of ... the smallness of our claim, I will not rearrange my schedule to appear in court to contest the motion.”

We find that the appellant had no intention of appearing at the minor’s settlement proceeding, given the size of the monies to be recouped. Further, even if the appellant’s counsel desired to be present and found the constraints of other legal matters impairing his ability to appear to object to the attorney’s fee matter, he could have asked for a “continuance”. No such course was pursued, and no reason for failing to do so is stated by appellant’s counsel. Accordingly, based on the record before this Court, no relief will be granted the appellant.

Order affirmed.

      . The order was reduced to judgment by being entered on the docket.

      . Henry's Riverside Market is not a party to this appeal.

      . The appellant directs our attention, in a post-submission communication to this Court pursuant to Pa.R.App.P. 2501, to the case of Kavanaugh v. Kavanaugh, 157 Pa.Super. 251, 42 A.2d 323 (1915), to buttress its contention that 48 hours notice of the hearing of the minor’s Petition was not "reasonable” and requires reversal of the lower court’s order.
      Unlike Kavanaugh, however, the appellant instantly communicated with the court below advising the court that its attorney would not rearrange his schedule to appear at the proceeding. Such a fact, in conjunction with the appellant’s ability to have sought a continuance and did not, prompts this Court to affirm the lower court’s order.
      If time existed for the appellant’s counsel to communicate in writing that he would not arrange his schedule to appear at the hearing, he certainly had the time to seek a continuance. The failure to do so cannot be condoned by this Court with a reversal of the lower court’s order.


text:
    566 A.2d 310
    Marion D. KELLY t/d/b/a Kelly Building Company, Appellant, v. Charles J. HANNAN and Nancy L. Hannan, His Wife Legal Title Holders/Owners Alan E. Thompson and Terri L. Thompson, his Wife Equitable Title Owners, Appellees.
    Superior Court of Pennsylvania.
    Argued May 18, 1989.
    Filed Nov. 16, 1989.

      Mary E. Baloh, Greensburg, for appellant.
    J.R. Rygiel, Uniontown, for appellees.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the order entered in the Court of Common Pleas of Fayette County granting the appellees’ preliminary objections. On appeal, the appellant, Marion D. Kelly (Kelly Building Company) hereafter “Kelly”, contends: (1) improved property remains subject to a mechanics’ lien if the lease which purports to exempt the improved realty is patently fraudulent; and (2) the theory of estoppel validates a mechanics’ lien filing where the parties to the construction contract are represented to be the owners of the improved realty. We reverse.

Briefly, the facts, as stated in the record, are as follows:

During the month of January, 1986, Mr. and Mrs. Charles J. Hannan claim they leased a portion of their property to their daughter and son in law, Terri and Alan Thompson. Mr. Hannan wrote the first lease by hand and dated it January 1, 1986. His signature was the only signature appearing therein. A formal lease was prepared thereafter by counsel and dated January 1, 1986, with the signatures of the Hannans and Thompsons. Mr. Hannan testified that the purpose of the leasing arrangement was to “give [the Thompsons] the property under a lease, in case something would ever happen to one of them, [he] wanted the property to revert back to [him].” (N.T. 11/1/88 p. 29)

On April 28, 1986, the Kelly Building Company entered into a construction contract with the Thompsons for the building of a home at the estimated cost of $229,877.75. (N.T. 3/1/88 p. 44) Initially, in 1986 when construction began, the Thompsons financed the construction with demand notes, and, thereafter, the Thompsons obtained a $100,000.00 mortgage. The bank issuing the mortgage knew that the Thompsons did not own the property. The record reveals that Mr. Hannan was an active member on the board of directors of the issuing bank, and he did not co-sign the loan.

The Thompsons zoning permit listed the home at a value of $100,000.00, and, during Mrs. Thompsons’s deposition, she stated the figure was reduced so tax calculations in the future would be reduced. (N.T. 3/1/88 pp. 44-45) The home was insured for $225,00.00 under a home owner’s policy. (N.T. 3/1/88 p. 72)

The appellant and his son testified that, during the bidding stage and at the time of signing the contract, Mr. and Mrs. Thompson stated that her father, Mr. Hannan, was “giving them a piece of property, approximately five to seven acres to build a house on.” (N.T. 11/1/88 pp. 35, 37, 44) When applying for the zoning certificate and the permit for a sewage disposal system, the Thompsons listed themselves as the owners of the property. (N.T. 11/1/88 pp. 21, 24) Construction commenced under the contract on May 12, 1986. In August, 1986, the property was surveyed.

The Hannans and the Thompsons never recorded the lease, and the agreement was not disclosed to Mr. Kelly. The Hannans did not enter into the contract or agree in writing to pay for the improvements to the leased property. The Hannans claim that at the time the contract was entered into, and after construction began, Mr. Kelly knew that the Hannans were the owners of the land upon which the residence was being constructed. Terri Thompson stated that her father paid $50,000.00 toward the cost of the construction.

On December 8, 1987, Mr. Kelly filed a mechanics’ lien against Charles and Nancy Hannan and Terri and Alan Tnompson. Preliminary objections were filed by Charles and Nancy Hannan on January 19, 1988, asserting the existence of a written lease between themselves and the Thompsons. On November 4, 1988, an evidentiary hearing pursuant to 49 P.S. § 1505 of the Mechanics’ Lien Law of 1963 was conducted. These were the two issues addressed by the lower court at the hearing on the appellees’ preliminary objections: (1) Was the improvement to leased premises without the necessary written indication from the owners that the construction was for their immediate use and benefit; and (2) whether the theory of estoppel prohibited the owners from using the lease as a bar to the appellant’s mechanics’ lien. Preliminary objections were sustained, and this timely appeal followed.

The trial court sustained the appellees’ preliminary objections based upon 49 P.S. § 1303(d) which provides in pertinent part:

§ 1303 LIEN NOT ALLOWED IN CERTAIN CASES
(d) Leasehold Premises. No lien shall be allowed against the estate of an owner in fee by reason of any consent given by such owner to a tenant to improve the leased premises unless it shall appear in writing signed by such owner that the erection, construction, alteration or repair was in fact for the immediate use and benefit of the owner.

49 P.S. § 1303(d)

Initially, we note our standard of review for the granting of preliminary objections as stated by this Court in Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 470 A.2d 159, 161 (1983):

For purposes of our standard of review, an order sustaining preliminary objections to a mechanics’ lien claim because of a showing of exemption or immunity of property from the Mechanics’ Lien Law, is analogous to an order sustaining preliminary objections to a complaint in assumpsit.
[W]hen the sustaining of preliminary objects will result in a denial of claim, or a dismissal of suit, preliminary objections should be sustained only in cases which are clear and free from doubt. Conrad v. City of Pittsburgh, 421 Pa. 492, 218 A.2d 906 (1966); Baker v. Brennan, 419 Pa. 222, 213 A.2d 362 (1965); Schrader v. Heath, [408 Pa. 79, 182 A.2d 696], supra.
Legman v. School District, 432 Pa. 342, 345, 247 A.2d 566, 569 (1968).

Chambers v. Todd Steel Pickling, Inc., at 124, 470 A.2d at 162.

Pursuant to a lengthy hearing and after considering the arguments presented therein, the lower court stated in its opinion:

[T]he construction contract for the dwelling home involved herein was entered into between [the] contractor and Alan Thompson and Terri Thompson. By its express terms, it manifests that the Thompsons were the persons agreeing to pay the contract price. There was never a contractual relationship between the contractor and [the Hannans], the owners, whereby they agreed to pay for said construction, or any portion thereof. No promise, by the owner, to pay is asserted. The fact that the owners had knowledge of and may have even consented to the construction is not in itself sufficient. Murray v. Zemon, 402 Pa. 354, 167 A.2d 253 (1961). “In order for the claim to be valid against the estate of the owner, where he is not party to the contract, his consent must appear in the form of a written statement, signed by him and which shall also state that the improvement is made for his immediate use and benefit. Murray, supra, 167 A.2d at 256. ... Where, as here, a contractor knows that the person with whom he is contracting is not the record owner, there is a duty upon the contractor to inquire into the nature of the consent given, if any, if he desires to subject the estate of the owner to a lien. Murray, supra, 167 A.2d at 257. (Trial Court Op. pp. 4, 5)

First, the appellant contends the lease between the Han-nans and the Thompsons is fraudulent for the following reasons: (1) the lessees resided at a residence other than the address indicated on the lease agreement and the address given was that of the leased property which did not exist until six months after the signing of the lease; (2) the formal lease was drafted after January 1, 1986, by an attorney, and the appellees did not produce the original hand-written lease or the typed lease during the discovery process; (3) the leasing agreement was not recorded or disclosed to the contractor; and (4) no check or receipt of payment could be produced to show that consideration had been paid pursuant to the lease agreement.

The validity of a lease is discussed by this Court in Cusamano v. Anthony M. DiLucia, Inc., 281 Pa.Super. 8, 421 A.2d 1120, 1122 (1980):

We begin with the observation that leases are in the nature of contracts and are thus controlled by principles of contract law, including the well settled rules of interpretation and construction. Pugh v. Holmes, 253 Pa.Super. 76, 384 A.2d 1234 (1978), affirmed as modified, 486 Pa. 272, 405 A.2d 897 (1979). As in the case of other written contracts, the purpose in interpreting a lease is to ascertain the intention of the parties, and such intention is to be gleaned from the language of the lease. National Biscuit Co. v. Baehr Bros., 203 Pa.Super. 133, 199 A.2d 494 (1964). Such intention is not to be determined merely by reference to a single word or phrase, but rather by giving every part of the document its fair and legitimate meaning. Boyd v. Shell Oil Co., 454 Pa. 374, 377, 311 A.2d 616, 618-19 (1973); Friestad v. Travelers Indemnity Co., 260 Pa.Super. 178, 393 A.2d 1212 (1978).
Where the terms of a lease are not ambiguous, the interpretation and construction are for the court, and the court must determine the intention of the parties from the language of the lease alone. National Biscuit Co. v. Baehr Bros., supra. ...
[I]n order for us to find an ambiguity in a contract, we must find that the document is reasonable subject to two different interpretations. Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 252, 258-59, 404 A.2d 398, 401 (1978).

Cusamano v. Anthony M. DiLucia, Inc., at 13-14, 421 A.2d at 1123.

Instantly, when reviewing the validity of the lease, the purpose of the entire agreement is to be given every fair and legitimate meaning. Cusamano v. Anthony M. DiLucia, Inc., supra 281 Pa.Superior Ct. at 13, 421 A.2d at 1122. The typed lease was drafted by an attorney, and the elements of the earlier hand-written agreement were incorporated and expanded upon to reflect the intent of the parties. The lease was not ambiguous in its meaning, and the typed lease was signed by the Hannans and the Thompsons. The document on its face reflects the intention of the parties held thereto.

We note, however, the controversy surrounding the leases. The hand-written lease signed by Mr. Hannan and the typed lease signed by the Hannans and the Thompsons were not produced during discovery or mentioned by the appellees’ counsel and Terri Thompson during their depositions. Both leases were first introduced by the Hannans at the hearing. The appellant contends that the typed lease is patently fraudulent because the address given by the Thompsons as their current address on the lease agreement was that of the leased property which was not established until six months after the date of the lease.

During the cross examination of Terri Thompson, the confusion regarding the drafting of the lease was discussed by the appellees’ counsel Mr. Rygiel. He stated that he prepared the lease but was unable to say when the lease was typed:

Q. And the first time — now, if I understand you correctly, you did not have an attorney draw up either one of these leases, [the handwritten or the typed], but rather it was done between you and your father?
A. I am sorry. I didn’t understand that.
Q. You did not have an attorney draw those papers up?
A. I didn’t, no.
MR. RYGIEL: Let’s get that straight now. That was created in my office. I told you that. I typed that form up. The instructions are right there — Joe, in that first one. And we followed those instructions and we produced exactly what that original hand-written agreement is.
THE COURT: Her answer was that she did not have an attorney draw it up.
THE WITNESS: I did not. Correct.
MR. RYGIEL: She is correct, but I just wanted to clarify the situation.
MRS. BALOH: So your, just so I clarify it on the record, your Honor, because I wasn’t told this and I did not know what lawyer drew up these papers, that Mr. Rygiel is putting on the record today, that he indeed drew up these papers.
MR. RYGIEL: From the information given, yes.
MRS. BALOH: And that, if I understand your to stipulate, you are saying as a fact that you drew it up and you drew it up in the early part of January of 1986.
MR. RYGIEL: I typed it up from the instructions, yes. No, no, no, I am not saying January 1,1986, no, no, no. I don’t know when. I don’t know when I did it, but I just complied with the instructions and dated it as of January 1, 1986.

(N.T. 11/1/88 pp. 17, 18)

Cross examination of Terri Thompson continued, and she stated that on March 1, 1988, the day of her deposition, nearly two years after the date appearing on the lease, she had not yet realized that Mr. Rygiel had drawn up the lease. She said that Mr. Rygiel never stated to her during the deposition that he had completed the papers, and she did not know when the typed lease was prepared by Mr. Rygiel. She believed that Mr. Rygiel was given a copy [of the typed lease] after Mr. Kelly filed his Mechanics’ Lien. (N.T. 11/1/88 p. 19) Clearly, the record supports the appellant’s contention that the typed lease was not prepared on January 1, 1986.

In conclusion, we find that the language of the lease is not ambiguous and clearly reflects the intentions of the parties. The record also supports the appellant’s allegations that there were misrepresentations regarding the lease and when it was actually prepared. With these discrepancies in mind, we now turn to the appellant’s next contention wherein he claims the owners did not act in good faith throughout the transaction and the theory of estoppel validates the mechanics’ lien.

The appellant contends the theory of estoppel validates a mechanics’ lien where the parties to the construction contract are represented to be the owners of the improved realty. Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 470 A.2d 159 (1983) citing Fluke v. Lang, 283 Pa. 54, 57, 128 A. 663, 664 (1925) (interpreting Section 2 of the Mechanics’ Lien Act of 1901, replaced by 49 P.S. § 1303(d), in conjunction with Section 4 of the 1901 Act, which was omitted from the Mechanics’ Lien Law of 1963).

The appellant’s second contention is to be reviewed in light of the following language:

‘[A] mechanics’ lien is a statutory proceeding, the action in rem being in the nature of collateral security for the payment of the debt due for work done or materials furnished’ in accordance with a contract, express or implied. Hoffman Lumber Co. v. Mitchell, 170 Pa.Super. 326, 331, 85 A.2d 664, 667 (1952), allocatur denied; Murray v. Zemon, 402 Pa. 354, 167 A.2d 253 (1961); Fisher Sprinkler Co. v. Ide, 305 Pa.Super. 554, 451, A.2d 1015 (1982); Sections 201, 301 & 503 of the Mechanics’ Lien law of 1963, Act of August 24, 1963, P.L. 1175, 49 P.S. §§ 1201, 1301 & 1503.

Nowicki Const. Co. v. Panar Corp. N.V., 342 Pa.Super. 8, 492 A.2d 36 (1985).

We must always bear in mind that this is not a common law action, but rather a claim to assert a peculiar type of lien against real estate under the provisions of a statute, strict compliance with which has always been demanded ... Consequently, they are available only on such terms as the Legislature saw fit to provide, (citations omitted) ... The right to file a mechanics’ lien must have a contract as its basis.

Murray v. Zemon, 402 Pa. 354, 167 A.2d 253 (1961).

As guidance to the Court we cite Murray v. Zemon, 402 Pa. 354, 167 A.2d 253 (1961) which discusses the historical legacy of the Mechanics’ Lien laws:

As pointed out in Boteler v. Espen, 1882, 99 Pa. 313, 315, the test of the question involved is found in the identity of him who incurred the cost of the repairs: “If the landlord, the building was subject to the lien, but if the tenant, it was not.” This case held the written consent required was an absolute consent, consistent with the right to do the work on the credit of the building. While the above case was decided under the provisions of the earlier Mechanics’ Lien Act of August 1, 1868, P.L. 1168, we do not believe that the Act of 1901, supra, intended to change the nature of the consent required. If anything, the words in the latter statute are more restrictive ...
And, as pointed out in Fluke v. Lang, supra, the very purpose of the Act of 1901 was to protect the owner against the filing of lien claims involving improvements contracted for by the tenant, where the circumstances clearly show that the contractor looked to the tenant for payment at the time the contract was made.
The contractor knew who the record owners of the property were. With this knowledge, he contracted in writing with the tenant for payment. No facts were withheld nor any attempt made to mislead. No promise was ever made by the owners to pay for the cost of the improvement. Under such circumstances, estoppel does not lie. (emphasis added)

Murray v. Zemon, supra, 402 Pa. at 360, 167 A.2d at 256.

The most recent interpretation of the new Mechanics’ Lien Act of 1963 was thereafter discussed in Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 470 A.2d 159 (1983)

According to the explanatory comments of the Joint State Government Commission, [Section 4 of the Mechanics’ Lien Act of 1901] does not appear in the Mechanics’ Lien Law of 1963 because if was omitted as unnecessary. Despite the fact that Section 4 of the Act of 1901 is not found in the present statue, we find the interpretation given Section 2 of the Act persuasive in interpreting the nearly identical language of 49 P.S. § 1303(d). As indicated by the Supreme Court in Murray, supra, which interpreted Section 2 of the Act of 1901, an estoppel theory may be sustained in certain situations. In Murray, supra 402 Pa. at 361, 167 A.2d at 257 estoppel did not lie because the contractor was under a duty to inquire into the nature of the consent given by the owner to the tenant with regard to the improvements made to the property ... estoppel would not lie against the property owner because the contractor, knowing who the record owners were, contracted in writing with the tenant for payment ... However, where the president and sole stockholder of the corporate owner of the property leads a contractor to believe that he is the actual property owner, we believe that the duty to inquire announced in Murray cannot be imposed, (emphasis in original)

Chambers v. Todd Steel Pickling Inc. supra, 323 Pa.Superior Ct. at 128, 470 A.2d at 163.

The Court in Chambers found that the interpretation given Section 2 of the Act of 1901 is nearly identical to the language of 49 P.S. § 1303(d) of the Act of 1963. The Court stated the following when discussing the interpretation of the Mechanics’ Lien Act of 1963:

It has been held that “while an owner may consent to his tenant’s improvement of the property, without assuming any liability for the work done, provided he acts in good faith throughout, he cannot escape such liability if he knows of the tenant’s intention to make a contract ‘acting as if he were the owner’...” (Emphasis in original) Fluke v. Lang, 283 Pa. 54, 57 128 A. 663, 664 (1925). In Fluke v. Lang, supra, the Court was interpreting Section 2 of the Mechanics’ Lien Act of 1901, replaced by 49 P.S. § 1303d, in conjunction with Section 4 of the 1901 Act, which was omitted from the Mechanics’ Lien Law of 1963. Section 4 of the Mechanics’ Lien Act of 1901 provided:
Any owner, not being a committee, guardian or trustee, as aforesaid, who shall knowingly suffer or permit any person, acting as if he were the owner, to make a contract for which a claim could be filed, without objecting thereto at the time, shall be treated as ratifying the act of such person acting as if he were the owner, and the claim may be filed against the real owner, with the same effect if himself had made the contract. Ratification shall also be presumed, and like subjection to lien shall follow, if the owner, not being a committee, guardian or trustee, as aforesaid, subsequently learning of such contract or of work being done upon his property, shall not, within ten days thereafter, repudiate the same, either by notice to the contractor and subcontractors or by posting such repudiation on the most public part of the structure or other improvement
Despite the fact that Section 4 of the Act of 1901 is not found in the present statue, we find the interpretation given Section 2 of the Act persuasive in interpreting the nearly identical language of 49 P.S. § 13030(d). The deposition testimony submitted to the court below raises a serous question concerning the good faith of Todd Steel throughout the instant transaction.
As indicated by the Supreme Court in Murray, supra, which interpreted Section 2 of the Act of 1901, as estoppel theory may be sustained in certain situations. In Murray, estoppel did not lie because the contract was under a duty to inquire into the nature of the consent given by the owner to the tenant with regard to the improvements made to the property. Murray, supra, 402 Pa. at 361, 167 A.2d at 257. The Supreme Court held that estoppel would not lie against the property owner because the contractor, knowing who the record owners were, contracted in writing with the tenant for payment. We are mindful of the fact that the law requires strict compliance with statutes governing the right to assert a lien against real estate. Murray, supra, 402 Pa. at 358, 167 A.2d at 255. However, where the president and sole stockholder of the corporate owner of the property leads a contractor to believe that he is the actual property owner, we believe that the duty to inquire announced in Murray, cannot be imposed. (Emphasis added)

Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 470 A.2d 159, 163-64 (1983).

In Chambers, the president, and sole stockholder of the corporation which owned the leased land, led the contractor to believe that he was the actual owner of the land. He contracted to have a residential structure constructed and did not disclose that the land was leased to him by the corporation and that the corporation owned the property. The Supreme Court pierced the corporate veil in Chambers and stated the “president contracted for improvements to property which he knew belonged to a corporation he owned, ... which would accrue to the immediate use and benefit of both himself and the corporation.” Chambers, supra, 323 Pa.Superior Ct. at 129, 470 A.2d at 164.

Instantly, in review of the case at hand the language below will be the boundary mark for this Court’s inquiry. The owner of leased property may be found liable for the improvements a tenant has made if the owner has “not acted in good faith throughout the transaction knowing that the tenant intends to make a contract acting as if he were the owner.” Chambers, supra, 323 Pa.Superior Ct. at 127, 470 A.2d at 161. Where facts are withheld and any attempt is made to mislead the contractor and the owner has promised to pay for the cost of the improvements, the theory of estoppel will lie. Murray, supra, 402 Pa. at 127, 167 A.2d at 256.

The record reveals that, during the bidding stage and at the time the contract was signed, the Thompsons stated to Mr. Kelly that Mr. Hannan had given the property to them so they could build a home. The Hannans and the Thompsons admitted that the land was given to the Thompson for the purpose of building a home. However, the parties did not state to Mr. Kelly that the land had been conveyed or transferred. The purpose of the lease was to protect the Hannans’ interest in the property, and, in the event that the Thompsons were unable to continue living on the property, Mr. Hannan stated that he wanted the property to revert back to him. Mr. Kelly.,admitted that he did not check any records to determine if the Hannans had conveyed title to the property to the Thompsons prior to the signing of the contract.

Mr. Kelly entered into the contract with the Thompsons and the Hannans made no promise to pay. the costs of the improvements to the property. See Murray v. Zemon, 402 Pa. 354, 358-59, 167 A.2d 253, 257 (1961) (“If the contractor desired to subject the estate of the owner to such a lien, it was his duty to inquire into the nature of the consent given, if any. His failure to do so. is his fault. alone.”) The following excerpt of the record is Mrs. Thompson describing her father’s involvement in the payment of the, construction contract:

Q. Can you please, tell me whether or not your father, Charles Hannan, paid for any of your construction?
A. Yes, he did.
Q. And out of the $229,000, can you give me a fair estimate of what percentage your father would, have paid?
A. Let me think. Approximately around $50,000.
Q. $50,000, — would the $50,000 have been payments that your father, Charles Hannan, and your mother, Nancy L. Hannan, made directly to Mr. Kelly?
A. No. My mother was not involved in any payments.
Q. Where did the payments come from?
A. My father had given the money to me and I gave it to Mr. Kelly.
Q. Did your father take the money out of his Reese’s Wholesale account?
A. I have no idea.
Q. You weren’t there when he made these transfers.
A. No I wasn’t.
Q. You don’t remember how it was your father gave you $50,000?
A. He gave me the money.
Q. In cash?
A. It wasn’t in one lump sum, no, it was not in one lump sum. When Mr. Kelly would come for a draw, either the bank, — I’d get the money from the bank or from my account, or we would write one out of my father’s account, depending on what my father and I had discussed.
Q. All right, so it either came from the bank, — what bank?
A. Smithfield Bank.
Q. So, you’re saying there were checks made to Mr. Kelly from the Smithfield Bank?
A. I would say one or two.
Q. Was Mr. Kelly told that some of the loan was going to come from the bank?
A. Oh, yes.
Q. You’re saying — then, there would be several checks from Reese’s Wholesale?
A. No.
Q. Well, there would be money that went into your account from Reese’s Wholesale?
A. From Reese’s Wholesale? I don’t think they have anything to do with it.
Q. Your father’s personal account, then?
A. I would imagine it would be out of his personal.
Q. Don’t imagine. Tell me what it was.
A. Some of it was cash. I have no idea.
Q. How much—
A. I have no idea whether he took it out of the business or not, — I have no idea.
Q. Well, the checks you would have some idea.
A. Right.
Q. Your recollection is what?
A. Okay, the money he gave me was cash to pay.
Q. All right, so there were no checks?
A. From what I can remember, — we have one account with Terri L. Hannan and Charles Hannan on it. He might have gotten one from it you know.
Q. But the rest of the $50,000 was cash that your father gave you?
A. Right ...
Q. Were you present at anytime when your father gave Mr. Kelly cash?
A. My father never gave Mr. Kelly cash. I went back to the office. I counted it out in front of Mr. Kelly, and I gave it to him.
Q. If I understand you correctly, then, out of this $229,-000, about $50,000 was given to Mr. Kelly in cash?
A. Approximately.

(N.T. deposition 3/1/88 pp. 51-54)

The appellant argues that the Thompsons were acting as the owners of the property, and the Hannans may not escape liability because they knew of the Thompsons’ intention to enter into this contract acting as if they were the owners. Mr. Hannan did not agree with the appellant to pay the costs of the improvements, but the record reveals that $50,000.00 was deposited by Mr. Hannan into a banking account which he held jointly with Mrs. Thompson for the costs of the construction. The Thompsons told Mr. Kelly that the cost of the construction was being financed through a bank, and the record reveals that the Thompsons’ mortgage was approved by the bank even though they were not the legal owners of the property. Mr. Hannan was an active member of the board of directors of the issuing bank. He did not co-sign the loan issued to the Thompsons. Periodically, Mr. Hannan supervised the construction and never indicated that the construction was unauthorized.

In conclusion, the language of the lease is not ambiguous and the document is not reasonably subjected to two different meanings. Terri Thompson stated that she did not know that there had been a lease typed at the time of her deposition which was nearly two years after the construction contract was entered into with Mr. Kelly. The appellees contend that builders have a duty to inquire into the nature of the consent given by the owner to the tenant with regard to the improvements made to the property. The record reveals that the typed leasing agreement produced at the hearing was not in existence on April 28, 1986, when Mr. Kelly contracted with the Thompsons. Also, during discovery the handwritten lease and typed lease were not mentioned or produced prior to the hearing. It is clear a lease was produced at the time of the hearing. However, the attorney representing the appellee who typed the lease was unable to state on the record when the lease came into existence.

Further, Mr. Kelly was told by the Thompsons and the Hannans that the land had been given to the Thompsons for their use. The record reveals that the normal incidents of ownership such as the mortgage, building and sewage permits and surveying requests were either requested or held by the Thompsons.

Presently, we find the contractor believed that he was contracting with the owners of the property and the Han-nans knew of the Thompsons’ intentions to contract with Mr. Kelly as though they were the owners. In Murray, supra, the Supreme Court stated that estoppel would not lie because there were no facts withheld nor any attempt made to mislead the contractor. The circumstances surrounding the mortgage were misleading as to the ownership of the property. The Thompsons admittedly misrepresented themselves as the owners of the property on various permits. The Court in Chambers found that an owner may consent to his tenant’s improvement of the property, without assuming any liability for the work done, provided he acts in good faith throughout the transaction. But he cannot escape such liability if he knows of the tenant’s intention to make a contract acting as if he he were the owner. The leasing agreement entered into in this case does not engage the language of 49 P.S. § 1303(d) wherein the owner of the estate in fee is protected from liability. We believe the appellee failed to act with good faith throughout the transaction and produced a lease at the time of the hearing in order to engage the language of § 1303(d). Had the typed lease been in existence at the time of the filing of the appellant’s mechanic lien, it would have been produced during discovery.

For these reasons stated above we reverse the lower court's order granting the appellees’ preliminary objections.

      . The appellant’s claim is for approximately $16,000 which is the final ten percent draw equalling $22,988.78 minus the credits the appellant deducted. (N.T. deposition 3/1/88 p. 28)

      . 49 P.S. § 1505 "Procedure of contesting claim; preliminary objections.
      Any party may preliminarily object to a claim upon a showing of exemption or immunity of the property from lien, or for lack of conformity with this act. The Court shall determine all preliminary objections. If an issue of fact is raised in such objections, the Court may take evidence by deposition or otherwise.”


text:
    566 A.2d 318
    STATE FARM FIRE AND CASUALTY COMPANY v. Bruce LEVINE, Gerald Levine, Michael Bielaus and John Bielaus. Appeal of Michael BIELAUS and John Bielaus.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1989.
    Filed Nov. 22, 1989.

      Jeffrey M. Stopford, Media, for appellants.
    Marc F. Ullom, Warrington, for State Farm, appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Appellee, State Farm Fire and Casualty Company, brought an action for declaratory judgment to determine whether it owed a duty to defend or indemnify its insured in a personal injury action. The jury found by a preponderance of the evidence that the insured expected or intended to cause an injury of the same general type that the victim suffered; accordingly, the trial court entered judgment in favor of appellee. Michael and John Bielaus, the victim and his father, appeal the judgment. They assert that the court used an improper standard to decide what constitutes “an injury of the same general type.” We have reviewed the law, the facts and the notes of testimony, and we find no error. Accordingly, we affirm the decision of the trial court.

The underlying cause of action in this case arose from an altercation in a high school locker room on February 23, 1983. The insured, 17-year-old Bruce Levine, had heard that the injured party, 16-year-old Michael Bielaus, had defamed him. Levine located Bielaus and discussed the matter with him. Eventually, Levine punched Bielaus’s face, crushing the bones of Bielaus’s left cheek. Bielaus had to undergo reconstructive surgery and claims continued numbness in that portion of his face.

Levine was insured under a homeowners’ insurance policy issued by State Farm. This policy does not cover “bodily injury or property damage which is expected or intended by the insured.” State Farm sought a declaratory judgment action to determine whether the injury in the underlying case was excepted from the coverage of the policy. At trial, the primary issue was whether this injury was “expected or intended by the insured.” The jury found that it was. On appeal, Bielaus and his father assert that the court did not apply the correct standard, that the jury charge was in error, and that judgment n.o.v. or a new trial should have been granted. Upon review, we find that the court applied the correct standard; accordingly, we reject all of appellants’ contentions and affirm the decision of the trial court.

Both parties and the lower court agree that this case is controlled by United Services Automobile Ass’n v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982 (1986), allocatur denied, 515 Pa. 601, 528 A.2d 957 (1987). In Elitzky, this Court interpreted identical language in a similar policy. The Elitzky court analyzed authority from other jurisdictions, and found that the cases fell into three basic categories. Elitzky, 358 Pa.Super. at 369-72, 517 A.2d at 986-987. Some jurisdictions apply a tort theory, holding that an actor intends all natural and probable consequences of his acts. Other jurisdictions hold that an injury is intended only if the actor intends the precise harm that occurred. A third group of cases hold that the injury is intended “if the actor intended to cause a harm of the same general type as that which did result.” Elitzky, 358 Pa.Super. at 371, 517 A.2d at 987. The Elitzky court then analyzed Pennsylvania cases and concluded that Pennsylvania follows the third group, holding that there is no coverage where the actual injury is of the same general type as the injury intended.

The parties dispute the meaning of “an injury of the same general type.” Appellant asserts that an injury of the same general type is an injury of the same magnitude. We disagree. The general type of injury is a composite of many factors, including nature or character of the injury, cf. Elitzky, 358 Pa.Super. at 372, 517 A.2d at 988; magnitude, cf id.; location, cf. Donegal Mutual Ins. Co. v. Ferrara, 380 Pa.Super. 588, 594, 552 A.2d 699, 702 (1989) (where insured intentionally kicked victim in the groin, the act was not covered because insured “acted knowing the consequences of her act would be damage to [the victim’s] genitalia”), and other factors.

We have thoroughly reviewed the notes of testimony, and we find that the trial court adequately explained “an injury of the same general type.” The court explained that the injury need not be precisely the same as the injury intended, N.T. Vol. II at 119. The court provided the jury with two hypothetical situations, taken from the Elitzky case. N.T. Vol II at 117-118, 119-120. These hypotheticals adequately delineate the boundaries of “an injury of the same general type.” Contrary to appellants’ suggestion, the trial court never improperly focused the jury’s attention on any one factor. The trial court committed no error.

Furthermore, the jury’s verdict was not so contrary to the evidence that judgment n.o.v. should have been granted. Entering judgment n.o.v. is a drastic act; such a judgment should only be entered where reasonable people could not fail to agree that the verdict was improper. In reviewing a denial of a motion for judgment n.o.v., this Court must review the evidence in the light most favorable to the verdict winner, resolving any conflict of evidence in favor of the verdict winner. Martin v. Soblotney, 296 Pa.Super. 145, 168, 442 A.2d 700, 712 (1982).

We have reviewed the notes of testimony. The evidence shows that Levine was angry with Bielaus and that Levine struck Bielaus with great force. The jury could infer that Levine intended to cause serious physical damage to Bielaus’s face. The jury was entitled to disbelieve Levine’s testimony, in which he claimed that he did not know a single blow could break bones. There is ample evidence to support the verdict. Judgment n.o.v. is not mandated.

Judgment affirmed.

      . Witnesses at trial provided varied interpretations of the tone and content of this discussion.

      . The jury answered the following interrogatory in the affirmative: Do you find by a preponderance of the evidence that defendant, Bruce Levine, intended to injure Michael Bielaus and that he acted expecting or intending that injury of the same general type suffered by Michael Bielaus was substantially certain to result from his action?


author: TAMILIA, Judge:

text:
    566 A.2d 320
    Lawrence MARRA and Francesca Marra, Husband and Wife, Appellants, v. Kenneth STOCKER, Sheriff of Northampton County, Merchants Bank, N.A., Brian R. Hartman, Robert S. Apgar, Marie E. Apgar.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1989.
    Decided Nov. 16, 1989.

      Gerald M. Barr, Allentown, for appellants.

      John M. Metzger, Allentown, for Merchants Bank, appellee.
    Brian M.P. Monahan, Easton, for Hartman and Apgar, appellees.
    Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from judgment for appellees entered May 12, 1989, denying appellants’ motion to declare a sheriff’s sale null and void. Appellants brought the underlying action six months after the mortgage foreclosure by appellee/bank and subsequent sheriffs sale of the property at issue to appellee/Hartman.

On November 22, 1982, Robert S. Apgar and Marie E. Apgar received title to the property in question and subsequently mortgaged it to appellee/bank. The mortgage contained a “due on sale” clause. Appellants later purchased the property at a tax upset sale for $1,614.37; whereupon the county tax claim bureau deeded the premises to appellants. Although appellants notified appellee/bank of their interest and requested the balance due on the mortgage, appellee/bank, on December 22, 1986, filed and served a mortgage foreclosure action against the Apgars, who had previously filed for bankruptcy, and against appellants as terre tenants. Appellants did not file a responsive pleading, and at the April 10, 1987 sheriffs sale of the property, although appellants attended they did not bid on the property. The successful bidder was appellee/Hartman.

Appellants argue the sheriffs sale should be declared null and void because appellee/bank did not notify them of the intention to foreclose as required in 41 P.S. § 403, Notice of intention to foreclose.

(a) Before any residential mortgage lender may accelerate the maturity of any residential mortgage obligation, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the residential mortgage debtor for such residential mortgage obligation, such person shall give the residential mortgage debtor notice of such intention at least thirty days in advance as provided in this section.

41 P.S. § 403(a). Furthermore, under section 404, Right to cure a default, the reason for such notice is so that a residential mortgage debtor may cure his default and prevent sale or other disposition of the property and avoid acceleration by tendering the amount or performance specified.

Appellee/bank served appellants with the mortgage foreclosure action on January 16, 1987, thereby notifying them of the foreclosure action. In fact, this service was also sufficient so as to notify appellant of the subsequent sheriffs sale, which he did not participate in but nonetheless attended. Appellee did not follow the requirements of 41 P.S. § 403, supra, claiming appellants were terre tenants, not residential mortgage debtors entitled to such notice.

In order to decide if appellee/bank gave proper notice, we must first determine whether or not appellants are residential mortgage debtors to whom the notice requirements of 41 P.S. § 403 apply. A residential mortgage debtor is defined as “a non-corporate borrower who is obligated to a residential mortgage lender to repay in whole or in part a residential mortgage and successor record owner of the property, if any, who gives notice thereof to the residential mortgage lender.” 41 P.S. § 101, Definitions. A terre tenant, on the other hand, is “one who claims an interest in the land subject to the lien of the mortgage.” Bank of Pennsylvania v. G/N Enterprises, 316 Pa.Super. 367, 463 A.2d 4 (1983). The record reveals appellants bought the property in question at a tax upset sale, and such a sale is subject to the lien of any previous recorded mortgage. 72 P.S. § 5860.609, Certain liens divested by sale. The record fails to show appellants were in any way “obligated” to appellee/bank so as to fall within that part of the definition of residential mortgage debtors. They did not have any rights or contractual obligations under the mortgage. Even so, appellants are successor record owners by virtue of purchasing the property at the tax upset sale, and they notified the mortgage lender, appellee/bank, of their interest in the property. (Stipulations of Counsel, Joint Exhibit No. 1; Record # 23a; R.R. 662.) Based on these facts, appellants must be considered residential mortgage debtors for purposes of 41 P.S. § 403.

Our inquiry though does not end there because the formal notice requirements of 41 P.S. § 403 are more liberally construed where the mortgage contains a “due on sale” clause. See New Home Federal Sav. & Loan Ass’n v. Trunk, 333 Pa.Super. 393, 482 A.2d 625 (1984). In New Home, this Court held the formal notice requirements of 41 P.S. § 403 unnecessary where a default cannot be cured by the original owner acting alone but requires some additional action by another party. Moreover, in Ministers and, Missionaries Benefit Board of American Baptist Church v. Goldsworthy, 253 Pa.Super. 321, 385 A.2d 358 (1978), this Court held notice of foreclosure that did not comply with 41 P.S. § 403 acceptable because appellant transferee could not cure the default, which was based on a violation of the mortgage’s “due on sale” clause. In much the same way, appellants here could not cure the default brought on by a violation of the “due on sale” clause. When appellants bought the property at the tax upset sale, the transfer from the Apgars to appellants violated the “due on sale” clause, and because appellants took subject to the mortgage and not as successors in right to the mortgage, they are unable to cure the default. Hence, the case law clearly suggests the strict notice requirements of 41 P.S. § 403 are not mandated.

Additionally, appellants’ assertion the lack of such notice has prejudiced them is without merit. Appellant Lawrence Marra, as revealed at oral argument, is a sophisticated real estate investor with experience in over 100 sales of this type. Appellants knew they were taking subject to the terms of the existing mortgage because they notified appellee/bank and attempted to ascertain the balance due on the mortgage. One of the mortgage terms to which they were subject was the “due on sale” provision, and appellants cannot now claim prejudice after subjecting themselves to the mortgage in the first place. Additionally, the mortgage foreclosure complaint served on appellants by appellee/bank contained a copy of the § 403 notice of intention to foreclose served on the Apgars, a copy of the mortgage agreement containing the “due on sale” clause and the accelerated amount due on the mortgage (Joint Exhibit No. 3, Complaint in Mortgage Foreclosure; R.R. 73a-86a; (not included in Record)). Armed with all of this information, appellants claim they did not have notice of the mortgage foreclosure. We find the assertion unsupported by the facts, which show appellants had actual notice of the foreclosure.

Further investigation reveals appellants’ own actions prejudiced them — not the appellee/bank’s failure to notify them as per 41 P.S. § 403. Appellants failed to file any responsive- pleadings raising the notice issue. Rather, appellants let the court enter a default judgment against them, attended the sheriff’s sale without even bidding and then waited six months before filing the underlying action. Appellees should not have to pay the price exacted by appellants’ inaction, so we must uphold the outcome of the sheriff’s sale.

Judgment affirmed.