text:
    449 A.2d 725
    COMMONWEALTH of Pennsylvania, Appellant, v. Henry W. KALINOWSKI, individually, and Henry W. Kalinowski, Sheriff of Wayne County and Warden of the Wayne County Jail.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1981.
    Filed Aug. 20, 1982.

      Marc R. Wolfe, Special Prosecutor, Stroudsburg, for Commonwealth, appellant.
    Randolph Borden, Hawley, for appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from an order suppressing certain evidence seized from the appellee, Henry W. Kalinowski, pursuant to a search warrant that was held to have been invalid. Such evidence was directed to be excluded from use at appellee’s trial. We affirm.

The warrant in question reads as follows:

“On 5/16/79 Gerri McElroy, a Deputy Sheriff employed by Wayne County, did inform the affiant that she, in the course of her duties as a Deputy Sheriff, at the Sheriff’s office, did observe certain equipment utilized for the interception of telephonic conversation and recording of same conversations in the office of Henry W. Kalinowski, Sheriff of Wayne County. The affiant has personnally [sic] known Ms. McElroy for the past 4 mos. The affiant believes that the information given Ms. McElroy is true and correct and she is known to be a truthful and honest person by the affiant and within the community.
In 1978 in a class action proceeding in US Federal Court, Middle Dist., before Judge Malcom Muir, brought by the prisoners of the Wayne County jail, the Wayne County Sheriff, Henry Kalinowski, admitted, under oath, that illegal wire tapping took place during his tenure in office. Several former employees of the Wayne County Sheriff’s Department whom the affiant believes to be reliable, have stated that illegal wire tapping too [sic] place during their employment by the Wayne County Sheriff, Henry W. Kalinowski. These employees are Russell Thomas, Steven Vogt, and Paul Carpenter.
The equipment and connections described by the former employees, named above, is [sic] similar in description to the equipment described by the aforesaid, Gerri McElroy.”

Before addressing the sufficiency of the probable cause section of the aforecited warrant, we need to review the particular statute with which the appellee was charged with violating; that is, 18 Pa.C.S.A. § 5705(1) (Supp.1982-83), which provides in relevant part:

“Except as otherwise specifically provided in section 5706 (relating to exceptions to prohibitions in possession, sale, distribution, manufacture or advertisement of intercepting devices), a person is guilty of a felony of the third degree if he does any of the following:
(1) Willfully possesses an interception device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of a wire or oral communication.. . . ”

Section 5706, which is referred to in Section 5705, provides in relevant part:

“(a) Unlawful activities.—It shall not be unlawful under this chapter for:
(1) .. .
(2) a person under contract with the United States, a state or a political subdivision thereof, or an officer, agent or employee of a state or a political subdivision thereof
to possess, sell, distribute, manufacture, assemble or advertise any intercepting device, while acting in furtherance of the appropriate activities of the United States, a state or a political subdivision thereof or a communication common carrier.
(b) Responsibility.—-The Attorney General and the district attorney or their designees shall have the sole responsibility to buy, possess and loan any intercepting device which is to be used by investigative or law enforcement officers for purposes of interception as authorized under section 5704(2) (relating to exceptions to prohibition on interception and disclosure of communications), 5712 (relating to issuance of order and effect) or 5713 (relating to emergency situations).” 18 Pa.C.S.A. § 5706(a)(2) & (b) (Supp. 1982-83)

Initially, we observe that the suppression court takes the position that, when the preceding statutes are viewed in concert, “it becomes apparent that possession of this equipment by [appellee] could have been legal only if he derived it through the authorization of the Attorney General, the District Attorney of Wayne County, or their designees.” However, the court went on to hold that there was an absence of probable cause in the warrant because, “[t]here [was] no information in the instant Affidavit on the basis of which the District Magistrate could infer either that [appellee] had, or had not, obtained proper authorization.” (Lower Court Opinion at 16) What the court is saying, in essence, is that the affidavit section of the warrant must recite that the accused was unauthorized to possess an interception device as a sine qua non to establishment of probable cause justifying issuance of the warrant. We need not rule on the credulity of such a proposition, since we find that the warrant was facially defective on another ground. But see Ignacio v. People of the Territory of Guam, 413 F.2d 513, 519 (9th Cir. 1969). For example, we observe that the named informant told the affiant, on May 16,1979, “that she, in the course of her duties as Deputy Sheriff, at the Sheriff’s [appellee’s] office, did observe certain equipment utilized for the interception of telephonic conversation ... in the office of Henry W. Kalinowski [-appellee], Sheriff of Wayne County.” As correctly posited by the appellee, in regard to the preceding, “[w]hen the informant made the statement to the affiant is of little consequence. What is important is when the informant made the observation. That date is unascertainable from the affidavit at issue.” (Appellee’s Brief at 9) We agree. Interestingly enough, the Commonwealth concedes as much in its brief by stating that the “affiant does not state that McElroy made observations recently .. . . ” (Commonwealth’s Brief at 16)

On the subject of the time-frame within which criminal activity is observed and sufficient to establish probable cause to validate a warrant, we look to the case of Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973). In Conner, the Court determined that the lower court erred in not finding a search warrant defective and the evidence (weapon) seized as a result thereof suppressible. In so doing, the Court stated, as some of its grounds for reversal:

“The search warrant is defective . . . because the aider-man was not supplied a time-frame upon which to ascertain when the affiant gained his information from his informants, when the informants themselves obtained the information they allegedly had, and if probable cause presently existed to believe, that at the time the warrant was issued, appellant was keeping a firearm in his automobile. As this Court has recently stated:
‘Although the information supplied the magistrate “. . . must be tested with a commensense, nontechnical, ungrudging, and positive attitude, ... ”, Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir. 1966); United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the information must he sufficient “. . . to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he said they were.” Spinelli, supra at 393 U.S. 413, 89 S.Ct. at 587 (emphasis added). See also Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Cf. [Commonwealth v.] McCants, supra [450 Pa. 245, 299 A.2d 283 (1973)]. Probable cause must be established at the time the warrant is issued. See, e.g., Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); [U. S. v. Bailey, supra, 458 F.2d 408, (9 Cir.); Durham v. United States, 403 F.2d 190, 193 (9th Cir. 1968); Spinelli v. United States, 382 F.2d 871, 897 (8th Cir. 1967) (Heaney, J., dissenting), rev’d, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Rosencranz, supra; Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173 (1963); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971); Commonwealth v. Bove, 221 Pa.Super. 345, 293 A.2d 67 (1972). Cf. McCants, supra. “. .. [I]t is manifest that the proof [necessary to establish probable cause] must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probably cause at that time.” Sgro, supra, 287 U.S. at 210, 53 S.Ct. at 140.’ ” (Emphasis in original)

Here, as in Conner, the magistrate was not informed as to when the informant obtained the information she allegedly had. Was it a day prior to the date of the affidavit, a week, a month? “Any selection of time on our part would be purely conjectural. So too must have been the magistrate’s determination.” Commonwealth v. Simmons, 450 Pa. 624, 630, 301 A.2d 819, 822 (1973).

“If we were to sustain the magistrate’s determination, the issuance of search warrants would be allowed solely upon suspicion of criminal conduct, a standard far less demanding than that embodied in the Fourth Amendment. We cannot countenance such a deviation from explicit constitutional norms. ‘Indeed, if the affidavit [and sworn testimony] in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for [the magistrate].’ Rosencranz, supra, 356 F.2d at 317. ‘It is one thing to expect the magistrate to give a commonsense reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a crime is presently being committed.’ Id. at 317.” (Emphasis in original) Commonwealth v. Simmons, supra, 450 Pa. at 631, 301 A.2d at 823.

On this record, we cannot conclude that the affidavit at issue provided a sufficient basis for an independent determination by a neutral judicial officer that probable cause existed. Commonwealth v. Conner, supra.

The Commonwealth presents additional arguments in an attempt to establish the propriety of the search warrant; viz.: “The latter portions of the Affidavit, while not putting the information contained therein into a time frame, clearly established that at prior times the [appellee], while Sheriff of Wayne County, engaged in unlawful wiretapping. Thus, a continuing pattern of unlawful activity emerges.” (Commonwealth’s Brief at 16) The Suppression Court’s opinion to this Court adequately and correctly disposed of such contentions, and we need not comment on them any further.

Order affirmed.

WICKERSHAM, J., notes his dissent.

      . The Commonwealth certified that the prosecution of cases 24, 83, 84, 87 and 90 would be terminated if the Suppression Court’s order is not reversed, as the evidence suppressed is the principal incriminating evidence on these charges. However, the Commonwealth concedes that “[t]he Suppression Court’s ruling has no effect on cases 85, 86, 88 and 89.” (Commonwealth’s Brief at 3, n.1) As to the former offenses, we find that the Commonwealth has satisfied its burden justifying an appeal from the grant of a suppression motion. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496 (1978).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    449 A.2d 729
    Michael SOTAK and Karen Sotak, his wife v. Richard H. NITSCHKE and Ursula Nitschke, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1982.
    Filed Aug. 20, 1982.

      George B. Stegenga, Washington, for appellants.
    Bernard S. Shire, Monessen, for appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the final decree entered by the court in equity which directed appellants-defendants, Richard and Ursula Nitschke, to perform specifically the agreement of sale they negotiated with appellees-plaintiffs, Michael and Karen Sotak. We affirm in part and remand for the reasons herein stated.

In this appeal, appellants raise the following issues: (1) whether the trial court failed to comply with Pa.R.C.P. 1517 because the decree nisi failed to include a statement of the issues, a chronological statement of the facts, and a discussion of the legal issues presented; (2) whether appellees failed to prove fraud; (3) whether specific performance should have been granted because the suit was filed untimely and because the trial court failed to conclude that appellants should be reimbursed for $23,000 worth of improvements they made on the property in question; and (4) whether appellees should be charged with knowledge of the second survey.

The “DECREE NISI” which appellants complain is defective contained the following information:

“DECREE NISI
March 23, 1981
After reviewing this matter extensively, we have decided to accept the Plaintiff’s proposed findings of fact with the exception of No. 28 finding. We would also delete the word “obvious” from finding No. 2.
We accept the Plaintiff’s proposed conclusion of law. It seems to me that since there must be oral arguments on this case before the court en banc, if exceptions are taken, that a full dress opinion can await that stage; otherwise we double the paper work.
The Defendants are granted 20 days from service hereof to take exceptions. In the interest of bringing the arguments to a head—it was all quite diffuse in the chancellor’s room—we urge that the Defendant not file the routine boilerplate objection to each finding of fact and conclusion of law but address exceptions to those on which a centrality of disagreement can be conferred. We find that the Plaintiffs were defrauded and deceived here— that is the heart of the matter.
In the event no exceptions are filed, we will issue a final decree in 20 days. We intend specifically therein to require performance of the agreement of sale dated November 14,1975 as the same is written and intend to order that the deed be reformed and rectified by making it’s [sic] description consistent with the agreement of sale. Ancillary relief, as requested in the other lettered paragraphs of the Plaintiff’s demand, will be applied to effectuate this central decision.
/s/ Charles G. Sweet P. J.”

When examining the chancellor’s decree, we must remember the following guidelines:

“Pennsylvania Rules of Civil Procedure 1516 to 1519, 12 P.S. Appendix clearly enunciate the steps which must be followed by the chancellor, and by the litigants, before a procedurally proper appeal may be taken to this Court. Rule 1516 recites that the parties may file requests for findings of fact and conclusions of law. Rule 1517 itemizes the contents of the chancellor’s ‘adjudication.’ This adjudication must contain, in addition to a decree nisi, a summary of the issues raised in the pleadings, specified findings of fact and conclusions of law, and a discussion of the factual and legal questions involved in the case. Rule 1518 allows the parties 20 days to file specific exceptions to this adjudication. Finally, Rule 1519 provides that the court en banc shall pass on these exceptions, or, if none are filed, the prothonotary, upon praecipe, shall enter the decree as final. All of these steps are necessary to establish an adequate record on appeal. See also In re Involuntary Termination of Parental Rights, 487 Pa. 387, 409 A.2d 404 (1979).

Houston-Starr Co. v. Virginia Mansions Apartments, Inc., 295 Pa. Super. 480, 483-484, 441 A.2d 1334, 1336 (1982).

Appellants contend that the decree is defective because of the absence of a statement of the issues, chronological statement of the facts, and conclusions of law. We cannot agree.

In the discussion portion of their brief, appellants also state that “the action should be dismissed as the Court does not have jurisdiction in this matter, for the reason that indispensable parties, to-wit, the several purchasers of the land in question, were not joined in this proceeding.” Brief for Appellants at 16. The state of the record, however, precludes an examination of this contention.

To begin with, the chancellor adopted appellees’ proposed findings of fact, with two exceptions, and their conclusions of law. Those findings and conclusions, which are of record, are as follows:

“PLAINTIFF’S PROPOSED FINDINGS OF FACT

1. The parties entered into a Sales Agreement prepared by Kent Putnam, Esquire, dated November 14, 1975 which contained the following details: (Exhibit 1)

(a) Richard H. Nitschke and Ursula Nitschke, his wife, were Sellers.

(b) Michael Sotak and Karen Sue Sotak, his wife, were Buyers.

(c) The closing date was set for March 14, 1976.

(d) The sales price was Forty-five Thousand and 00/100ths ($45,000.00) Dollars; Two Thousand and 00/100ths ($2,000.00) Dollars for personal property and Forty Three Thousand and 00/100ths ($43,000.00) Dollars for the real property.

(e) The Buyers, their heirs and assigns, were to have the use in common with the Sellers, their heirs and assigns, of a spring located on the part of Sellers’ land and all the right, liberty and privilege thereto with the right of ingress and egress across Sellers’ land to said spring.

(f) The property which was the subject of the Agreement was described as:

‘All that certain tract of land situate in the Borough of Centerville, Washington County, Pennsylvania, being that part of a tract of land comprising 86 acres, more or less, conveyed to the Sellers herein by deed of Adolph Berg-stein, et ux., dated March 18, 1961 and recorded in the Washington County Recorders’ Office in Deed Book Volume 1098, page 14, lying to the East of Hancock Road, bounded on the North by lands now or formerly of Charles Patterson, et ux., Westley M. Fowler, et ux., and others, on the East by the Nitschke farm line, on the South by lands now or formerly of Joseph Kovach and on the West by Hancock Road, containing 36 acres, more or less.’

(g) A more detailed description was to be provided upon completion of a survey.

2. In the description contained in Paragraph 8 of the Sales Agreement, (Plaintiff’s Finding of Fact 1(g)), there was an [obvious] drafting error in the description of the parcel as being East of Hancock Road and also bounded on the West by Hancock Road, which error was overlooked by both parties. (T. 42)

3. Both parties intended to agree that the property being sold was located West of Hancock Road and was bounded on the East by Hancock Road. (T. 42)

4. Pursuant to the Sales Agreement, Richard Nitschke instructed Michael J. Kanalis, a Registered Surveyor to prepare a survey of the property to be conveyed. (T. 160)

5. Michael J. Kanalis prepared and delivered two prints of a survey dated December 27, 1975 to Plaintiff, Michael Sotak, who paid him for the survey. (T. 15)

6. The December 27, 1975 survey accurately represented the property to be conveyed under the terms of the Sales Agreement with the exception that a house parcel was not included in the survey. (T. 15, 17, 18, 19, 20 & 106)

7. The Plaintiffs approved the survey and Karen Sue Sotak delivered it to Richard Nitschke on January 5, 1976. Richard Nitschke also approved it and agreed that the survey represented the ground to be conveyed. (T. 126, 191)

8. Richard Nitschke, upon approving the said survey, offered to deliver it to Kent Putnam, Esquire for the preparation of legal documents. (T. 126)

9. After Richard Nitschke approved the survey, Karen Sue Sotak took it to First Federal Savings and Loan Association of Monessen, (‘First Federal’), for use in connection with Plaintiffs’ mortgage application. (T. 127)

10. Between January 5, 1976 and January 24, 1976, Richard Nitschke directed Michael J. Kanalis to prepare a second survey of his property located on Hancock Road. (T. 160, 172)

11. Michael J. Kanalis prepared a second survey, dated January 24, 1976, and delivered it to Richard Nitschke, who paid for it. (T. 163)

12. The January 24,1976 survey was materially different from the description in Paragraph 8 of the Sales Agreement and from the survey of December 27, 1975 in that the later survey deleted 746 feet of frontage on Hancock Road which contained the orchard of approximately 4.5 acres, which was replaced by a parcel of property fronting 99 feet on Horton Road so that the acreage contained in the two surveys was the same. (T. 56, 57, 170)

13. Richard Nitschke delivered the January 24, 1976 survey to Kent Putnam, Esquire. (T. 203)

14. Kent Putnam, Esquire prepared a deed and mortgage for the property to be sold which contained a description of the property that conformed with the January 24, 1976 survey.

15. On March 23, 1976, the property sale transaction was closed at the office of First Federal when the Sellers delivered an executed deed to the Plaintiffs and Plaintiffs executed a mortgage in favor of First Federal. (T. 102)

16. Both the deed and the mortgage contained descriptions of the property conveyed which conformed with the survey of January 24, 1976. (Exhibits 12, 19)

17. At the time of the closing, the closing officer for First Federal had no knowledge that the January 24, 1976 survey had been prepared or existed, but rather granted the mortgage under the mistaken belief that the mortgaged premises were identical to the property described in the survey of December 27, 1975 along with the house described in a previous deed to the Sellers as per survey dated August 26, 1972. (T. 106)

18. At the time of the closing, the Plaintiffs were not aware that the January 24, 1976 survey had been prepared, rather they believed that the deed and mortgage descriptions described the property shown in the survey of December 27, 1975 and the farm house description. (T. 46)

19. The deed delivered by the Sellers to the Buyers made no reference to the right of the Buyers to have the use of the spring located on the land of the Sellers along with the right of ingress and egress across the Sellers’ land to said spring. (Exhibit 12)

20. From the date of the Sales Agreement, Plaintiffs never agreed to change the boundaries contemplated in the Sales Agreement and described in the survey of December 27, 1975. (T. 43)

21. The Plaintiffs were never notified by First Federal, Sellers, or Kent Putnam, Esquire that the property described in the deed did not conform to the property described in the survey of December 27, 1975. (T. 45)

22. Plaintiffs executed the mortgage to First Federal in reliance upon the belief that the description in the mortgage was identical to the property contemplated to be sold pursuant to the Sales Agreement of November 14, 1975 and described in the survey of December 27, 1975, the statement of Richard Nitschke that he would deliver the December 27, 1975 survey to Kent Putnam, Esquire, Plaintiffs’ attorney, for the preparation of the deed and mortgage and that their attorney had prepared the deed and mortgage in accordance with the December 27,1975 survey. Plaintiffs also executed the mortgage to First Federal in reliance on the fact that neither the Sellers, their attorney, or First Federal informed that there was a change in the survey of December 27, 1975. (T. 38)

23. All consideration under the Sales Agreement was paid by the Buyers to the Sellers. (T. 81, 102, 103)

24. The real estate conveyed by the Defendants to the Plaintiffs was of substantially less value and utility than the property agreed to be sold pursuant to the November 14, 1975 Sales Agreement. (T. 57, 58)

25. Plaintiffs did not discover the substitution of real property in the conveyance to them until the summer of 1977. (T. 63)

26. Plaintiffs first saw the January 24, 1976 survey in the fall of 1977 when Kent Putnam, Esquire handed it to Michael Sotak. (T. 71)

27. After the conveyance to the Plaintiffs, Defendants created a sub-division known as the Hancock Road Plan of Lots upon the orchard parcel which had been deleted from the conveyance and subsequently conveyed the property to various grantees of the Defendants. (T. 62, Exhibit 13)

28. The Plaintiffs are obligated to pay $4,000.00 in attorneys fees and $400.00 in appraisal fees in connection with the instant law suit. (T. 61)”

The conclusions framed by appellees and adopted by the court below were set forth according to the following:

“PROPOSED CONCLUSIONS OF LAW
1. This Court has jurisdiction of both the parties and the subject matter of the instant lawsuit.
2. That on November 11, 1975 the parties entered into a valid and binding contract for the sale of real estate.
3. The Defendant Sellers breached the contract and acted with the intention of defrauding the Plaintiff Buyers in the instant transaction by conveying to them property which was substantially different from the property which Defendants had agreed to convey in the sales agreement. Specifically, Defendants committed a fraud on Plaintiffs in the following manner:
(a) In having prepared a second survey without the knowledge or consent of Plaintiffs which altered the description of the first survey.
(b) In not informing Plaintiffs or the lending institution financing the sale that a second survey had been prepared.
(c) In instructing the law firm which represented Plaintiffs and Defendants to prepare a deed and mortgage with description of land based upon the boundaries depicted in the January 24, 1976 survey.
(d) The property included in the January 24, 1976 survey, although of equal size, was substantially less valuable and of less utility.
(e) Defendants knew that Plaintiffs were acting under a mistaken belief when Plaintiffs executed the mortgage, accepted the deed and paid the consideration to the Defendants.
(f) In not granting to Plaintiffs the use and access rights to the spring, located on Defendants land, but conversely excepting and reserving the right to use and have access to spring located on the land conveyed to Plaintiffs.
4. The Plaintiffs relied on the representations of the Defendants that the survey of December 27, 1975 represented the property which was to be conveyed to Plaintiffs, and had no knowledge of the January 24, 1976 survey.
5. Plaintiffs acted with clean hands and are entitled to the relief sought.
6. Plaintiffs do not have an adequate remedy at law.
7. Because of the uniqueness of the real estate which is the subject matter of this lawsuit, Plaintiffs are entitled to specific performances of the November 14, 1975 contract.
8. The court will retain jurisdiction of this case in order to see that Plaintiffs acquire possession and good and marketable title to the premises.”

More specifically, appellants argue that the court’s findings and conclusions fall short of complying with Rule 1517 because the “ ‘Decree Nisi’ was nothing more than an affirmance of plaintiff’s proposed findings of fact and conclusions of law.” Brief for Appellant at 11. Nothing in the rules, however, precludes a court from adopting those findings and conclusions proposed by a party. In fact, the contrary is implied. Rule 1516 states in pertinent part that “[n]o requests for findings of fact and conclusions of law may be submitted except by leave of court. These requests may be treated by the court as suggestions.” (Emphasis added.) From this language, it is clear that the court also may adopt such suggested findings and conclusions. See Anderson v. Guerrein Sky-way Amusement Co., 346 Pa. 80, 85, 29 A.2d 682, 685 (1943) (“The court did not make findings of fact or conclusions of law of its own, but merely affirmed or refused the requests for findings and conclusions presented by the parties. As these requests adequately covered all the factual and legal issues involved this practice substantially complied with the requirements of Equity Rule 67.”).

Although a commentator has suggested that “[i]t is better practice, however, for the court to set forth its findings [of fact] identical with the requests of one of the parties,” the court’s mere affirmance of the findings submitted by counsel is not a basis for reversal. Goodrich Amram, 2d § 1517:3 at 174. In any event, appellants are not deprived of an adequate record for appeal on this issue. See Balin v. Pleasure Time, Inc., 243 Pa.Super. 61, 68, 364 A.2d 449, 453 (1976).

Interestingly enough, appellants argue that the court’s decree failed to contain a statement of the issues. This argument, however, does not afford appellants a basis for reversal. With respect to this aspect of the case, the court stated:

“In the interest of bringing the arguments to a head—it was all quite diffuse in the chancellor’s room—we urge that the Defendant not file the routine boilerplate objections to each finding of fact and conclusions of law but address exceptions to those on which a centrality of disagreement can be conferred. We find that the Plaintiffs were defrauded and deceived here—that is the heart of the matter.” Trial Court’s “Decree Nisi” at 2.

Under these circumstances, we conclude that the decree was not defective. See also Rosenfeld v. Rosenfeld, 390 Pa. 39, 51, 133 A.2d 829, 835 (1957) (“We do not see, however, what could be gained by our remanding the case.”)

Although the issue of whether other parties should have been joined in the present action was not raised in the exceptions filed by appellants, we will address the issue since it is a jurisdictional one. See Patwardhan v. Brabant, 294 Pa.Super. 129, 131-132, 439 A.2d 784, 785 (1982). Appellants . contend that other purchasers of the land in dispute should have been joined. We are unable to resolve the merits of the instant argument because the record is incomplete.

In the final decree of the court en banc, the court stated the following:

“FINAL DECREE
AND NOW, this 3rd day of June, 1981, it is ordered, adjudged and decreed that the defendants, Richard H. Nitschke and Ursula Nitschke, specifically perform the agreement of sale dated November 14, 1975; that the defendants reform and rectify their deed to the plaintiffs dated March 5, 1976, by cancelling the same as it now stands upon record, and executing, delivering and recording in lieu and place thereof a similar deed to the plaintiffs, Michael Sotak and Karen Sotak, his wife, in accordance with the description set forth in paragraphs 6 and 8 of the plaintiffs’ complaint in equity, together with the grant of a right-of-way to the plaintiffs to have the use in common with the defendants, their heirs and assigns of a spring located on the other parts of the land of the defendants, their heirs and assigns, with the right of ingress and egress to the aforesaid spring. This court will retain jurisdiction of this matter, pending determination of the rights of third parties, not parties in this proceeding. Costs on the defendants, Richard H. Nitschke and Ursula Nitschke.” Record at 27. (Emphasis added).

The only other evidence of record which sheds some light on the subject is the following statement included in the court en banc’s opinion:

“[t]he court’s decree, of course, is without prejudice to the rights of persons not parties to this proceeding, and the court retains jurisdiction pending the disposition of companion litigation.” “PER CURIAM' OPINION” at 3.

Additionally, appellants fail to elaborate on their claim other than to state that “several purchasers of the land in question, were not joined in this proceeding.” Brief for Appellants at 16.

With these facts in mind, we must apply the following legal standards:

“ ‘By definition an indispensable party is one whose presence is essential for the granting of relief.’ Goodrich Amram 2nd § 1032.6. ‘[A] party is indispensable where his rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights.’ Powell v. Shepard, 381 Pa. 405, 412, 113 A.2d 261, 265 (1955).

Patwardhan v. Brabant, 294 Pa.Super. at 132, 439 A.2d at 785.

Because the only allegations concerning the companion litigation appear in the parties’ briefs and the trial court’s opinion, we are unable to resolve the issue on this incomplete record. Commonwealth v. Rini, 285 Pa.Super. 475, 483, 427 A.2d 1385, 1390 (1981). For this reason, the matter is remanded to the trial court to consider the issue and to develop the record at which time the court shall not dismiss the action with prejudice but shall proceed either to consolidate the actions or to allow appellees to take the necessary steps to join the other parties if the court determines that the parties are indispensable. See Patwardhan v. Brabant, 294 Pa.Super. at 131, 439 A.2d at 785. Henceforth, any future appeal shall be from the final order of court thus imposed.

With respect to the other issues, the trial court adequately addressed them in the opinions (“DECREE NISI” and “PER CURIAM OPINION”) which form the basis of the instant appeal. As a result, we need not elaborate.

The order of the court below is affirmed in part and the matter is remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.

       Pa.R.C.P. 1518 presently requires that exceptions be filed in ten days rather than twenty days.

       The effect of non-compliance with the Rules of Civil Procedure is succinctly stated in Goodrich-Amram, 2d, Vol. 5, page 170, 171, as follows:
      Unless the provisions of Rules 1517-1519 are followed, an appeal in an equity case is premature and will be quashed. Review by the court en banc is obligatory. Where no adjudication is filed, and there are no exceptions of final decree, an appeal is premature and will be quashed.”

      . The chancellor deleted the word ‘obvious’ from its decree.

      . The chancellor also did not adopt Finding # 28.

       Indeed the effect on one’s rights may be of constitutional dimension. ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ Mulane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950).”

      . It may well be that the relief granted by the trial court, specific performance, is the appropriate remedy since “specific performance is an equitable remedy to compel the performance of a contract in the precise terms agreed on, or substantially.” 34 P.L.E. § 1, Specific Performance, at 2. However, because the state of the record precludes our examination of the indispensable party issue and also because “[b]y definition an indispensable party is one whose presence is essential for the granting of relief”, the court on remand should formulate the appropriate decree after it determines whether certain third parties were indispensable. See Patwardhan v. Brabant, 294 Pa.Super. 131, 439 A.2d at 785. (Emphasis added).


author: VAN der VOORT, Judge:

text:
    449 A.2d 735
    AUGUST PETROLEUM COMPANY 77B a Limited Partnership v. Isabel CASCIOLA, Thomas Casciola and James Miller, Appellants. AUGUST PETROLEUM COMPANY 77B a Limited Partnership, Appellant, v. Isabel CASCIOLA, Thomas Casciola and James Miller.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1981.
    Filed Aug. 20, 1982.

      Jerome Hahn, Williamsport, for Casciola and Miller, appellants (at No. 1260) and appellees (at No. 1277).
    Sanford Finder, Williamsport, for August Petroleum, appellant (at No. 1277) and appellee (at No. 1260).
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This case is before us on cross-appeals. The Plaintiff, August Petroleum Co., 77B, a Limited Partnership, headquartered in New York City and registered in the Commonwealth of Pennsylvania as an oil and gas operator (hereinafter, August), filed a Complaint in equity seeking an injunction to restrain the Defendants, Isabel Casciola and Thomas Casciola, the owners of the surface of the land, from interfering with August’s drilling and operating two gas wells on the Casciola property, and for damages because of delays which resulted from interference by the Casciolas.

The Casciolas denied such interference or liability for damages, and, by way of Counter-Claim, sought a mandatory injunction requiring August to remove from the Casciola property a three-inch gas line installed by August, and also sought compensation for damages allegedly caused by August’s unauthorized installation.

The decree of the Chancellor grants injunctive relief to both parties, restraining the Casciolas from interfering with August’s completion and operation of two gas wells on the Casciola property, and ordering August to remove the pipeline, but denying the claims of both parties for damages. Exceptions to the decree by both August and the Casciolas were dismissed, and the decree was affirmed by the Court en banc. We affirm the decree of the Lower Court.

The land involved in this dispute consists of approximately 104 acres in Cecil Township, Washington County (hereinafter, the Casciola property), purchased in 1947 by Isabel Casciola and her husband (who died December 2, 1976) from Pittsburgh Consolidated Coal Company, the predecessor of Consolidation Coal Company (hereinafter, Consolidation). Isabel Casciola deeded a home site on a portion of the property to her son, Co-Defendant Thomas Casciola. The property fronts on State Route 50 at its intersection with Muse-Cecil road. A right-of-way of the Montour Railroad, which runs in an east to west direction, effectively bisects the property, approximately half lying to the north of the railroad along Route 50, and an approximately equal acreage to the south. The Casciola property is bounded on the South by what is known as the Scoggins property.

The deed to Isabel Casciola and her now deceased husband excepts and reserves from the conveyance, in favor of the Grantor, it’s successors and assigns:

All the oil and gas in and underlying said land, with the right to drill and operate thereon for the production of said oil and gas, without liability for damages to the surface of said land, the buildings or crops thereon, or any other damage in connection with the operation thereon for said oil and gas.

The surface of the Casciola property is in the beginning stages of development. Three members of the Casciola family have built homes on it. Two lot plans have been approved and recorded, one north of the railroad planned for commercial development along Route 50, and the other a plan of residential development south of the railroad. In 1977, a plan as yet unrecorded was proposed by James Miller, a real estate consultant to Mrs. Casciola, for the development of the remaining property for both residential and commercial purposes, including a proposed sewage treatment plant on a portion of the property north of the railroad. None of these plans had been further implemented at the time of trial in the Court below.

On May 22, 1978, Isabel Casciola granted August a right-of-way over her property for a two-inch pipeline for the transportation of water, oil, or gas from the Scoggins property line on the South to a meter site on Route 50 to the north, where the proposed line would connect with a larger gathering line of Peoples Natural Gas Company. The right-of-way agreement was written in two parts, one for the land south of the railroad and the second for the land to the north. A third agreement, signed contemporaneously, authorized the installation of a meter regulator at the northern terminus of the line where the line would connect with the Peoples line. Mrs. Casciola was paid $3,500 for the three grants.

The two right-of-way documents are identical in terms. The location of the line was not described in any of the grants, although Mrs. Casciola testified that it was verbally agreed with the negotiating representative of August that the line should be laid along either the east or the west perimeter of the property to the south of the railroad, and then in a direct line across the Casciola property to the north of the railroad to Peoples gathering line adjacent to Route 50. Representatives of August denied the existence of any such understanding. They testified that the only limitation negotiated had been the language in the right-of-way agreements about a possible relocation of the right of way. The right-of-way agreements provide that:

In the event said pipeline interferes with the construction of any streets, roads, houses, or for the erection thereon of buildings of a permanent nature, the Grantee shall, at its own expense, relocate the said pipeline to another location on the land of the Grantor, location to be mutually determined by both parties, said location to be supplied free of all cost by Grantor to Grantee.

On or about September 22, 1978, Consolidation entered into a letter agreement with August to grant August the right to earn an oil and gas lease covering Consolidation’s oil and gas interests in certain described lands in Cecil Township, including the Casciola property. By its terms, August was to commence the drilling of a test well within 120 days from the date of the agreement, and was to proceed with due diligence to drill to a specified depth. If the well was completed and capable of producing oil or gas in paying quantities, August would earn the right to a lease of Consolidation’s oil and gas rights to a specified depth on the Casciola property and others adjoining it. The judgment of Consolidation was to be conclusive as to whether the well was capable of producing in paying quantities. If in the judgment of Consolidation August earned the lease, it was to be dated back to September 22, 1978.

Very shortly thereafter, August, without consultation or notification to either of the Casciolas, laid a three-inch pipeline across the Casciola property, beginning at a point adjacent to a gas well on the Scoggins property immediately to the south of the Casciola property, and continuing northward in a straight line over the approximate center of the Casciola property to the proposed connection with the gathering pipeline of Peoples Natural Gas Co. adjacent to Route 50 on the northern line of the Casciola property, a distance of about 1,600 feet. Thomas Casciola learned that the pipeline had been laid at or about the time of installation, but made no complaint. He did not learn until the following spring that it was a three-inch line.

In January of 1979, August began drilling the test well authorized in the September 22, 1978 agreement with Consolidation. It was known as Consolidation Well No. 1, and was located in the southwest corner of the Casciola property. James Miller, a realtor representing Mrs. Casciola, questioned the representative of August at the site as to the right of August to be on Casciola property, and was told that August had a lease from Consolidation.

In April, 1979, August surveyed for a site for a second well on the Casciola property near the house of Thomas Casciola, who told the surveyors that they were trespassing. On the advice of an August geologist, the well was never drilled.

Later in the same month, a representative of August informed Thomas Casciola that August was surveying a site for a third well on the Casciola property, to be known as Consolidation Well No. 3. Mr. Casciola told the August representative that August should not proceed without the consent of Isabel Casciola. Following this encounter, the Casciolas employed an attorney, Richard Ferris, who inspécted the Casciola property with James Miller, the Casciola real estate consultant. It was on the occasion of this inspection that they discovered that August had installed a three-inch pipeline instead of the authorized two-inch line. On or about May 1, 1979, Attorney Ferris advised August by letter that the pipeline was larger than the one agreed upon, and that the proposed Well No. 3 would interfere with the planned development of the Casciola property. The letter concluded with the request that August desist from further activity until the matter was resolved. The letter was never answered.

Between March 20 and June 1, 1979, Delta Drilling Company drilled six wells for August on properties in Cecil Township other than the Casciola property. Delta’s contract with August was on a per diem rate for use and operation of its drilling rig, including a stand-by charge of $1,200 a day when the rig was shut down while waiting for instructions from August or for materials or services to be supplied by August.

On June 1,1979, August directed Delta to prepare the site for drilling Consolidation Well No. 3 on the Casciola property. Delta entered the property at once, and began to construct an access road and to clear a drilling site. Thomas Casciola demanded that Delta quit operations because August had failed to show that it had a right to be on the Casciola property. On June 7, Delta ceased preparatory work on the drill site until the controversy was resolved. Discussions between representatives of August and Casciola led to no agreement, and on Sunday, June 10, 1979, August undertook to proceed with the preparations of the drill site under the protection of security guards and over the protest of Thomas Casciola. Thomas Casciola then called the Cecil Township police to halt the work by Delta. After two visits to the scene by the police, Delta ceased operations.

On the next day, June 11, 1979, August filed its Complaint in equity, seeking an injunction against interference, and asking damages to cover the stand-by charges of Delta from June 2.

On the same day that the suit was filed, June 11, 1979, Consolidation signed an oil and gas lease with August, dated back to September 22, 1978, granting to August the right to drill for oil and gas on the Casciola property. The lease was delivered to August the following day, June 12, 1979.

On June 15, 1979, by stipulation in this litigation, Casciola agreed not to interfere with the drilling of Well No. 3 and the continued operation of Well No. 1, without prejudice to the rights of the parties if they were unable to reach an agreement as to their respective rights on the Casciola property. No agreement was ever reached.

The Court below heard the testimony of the parties on both the Complaint and Counter-Claim at various dates between December 17,1979 and May 19,1980. The Chancellor filed his Opinion and entered the Court’s Decree Nisi on August 13, 1980. Exceptions were dismissed by the Court en banc on November 25, 1980.

The Lower Court’s Decree directs Isabel and Thomas Casciola not to interfere with or obstruct August in the drilling, mining and production of oil and gas from Consolidation’s Wells Nos. 1 and 3 on the Casciola property. This was clearly appropriate on the basis of the oil and gas lease which August obtained from Consolidation on June 12, 1979, and this portion of the Decree is not challenged by the Casciolas on appeal.

The ruling of the Court below that no damages should be awarded for the stand-by charges incurred by August is also correct for the very fundamental reason that August did not obtain a right to enter the Casciola property until it obtained its lease of the oil and gas rights from Consolidation on June 12, 1979 (the day after August started this litigation).

It is urged upon us that the lease by its terms was made retroactive to September 22,1978, and that this retroactivity is an answer to the Casciolas’ right to resist entry on their property at any time after that date. The rights of August and Consolidation, as between themselves, are no doubt dated back to September 22, 1978; but this retroactivity, which came into existence for the first time on June 12, 1979, when the lease was delivered, cannot change the fact that when Thomas Casciola protested the activities at Well No. 3 between June 1 and the date of suit, there was no oil and gas lease in existence between August and Consolidation, so that his protests were justified.

Even if we gave the requested effect to the retroactive date of the lease and treated the lease as though it had in fact been in existence since September 22, 1978, the Casciolas would have been within their rights in protesting entry upon their property until August had shown them evidence of its authority to come upon the property. This it never did, although repeatedly asked to do so in the three-month period prior to suit, for the very good reason that such authority did not exist until the day after suit was filed. Unless a property owner has a right to demand proof of authority to enter upon his property, a trespasser could simply assert that it had such a right and the owner would be helpless to protect himself against unlawful trespass.

We next consider the Counter-Claim of Mrs. Casciola, in which she seeks a mandatory injunction to require the removal of the three-inch pipeline and damages for its installation.

The Lower Court granted such an injunction and directed the removal of the pipeline. This was plainly appropriate because August was a willful trespasser in installing a three-inch pipeline in full knowledge that its right-of-way agreement authorized only a two-inch line. August offered no explanation or excuse for its conduct. It simply made a unilateral decision, undisclosed to the Casciolas, to install the larger pipeline. The three-inch line constitutes a continuing trespass on the property of the Casciolas until removed. Sigal v. Manufacturers Light & Heat Co., 450 Pa. 228, 238, 299 A.2d 646, 650 (1973).

August contends that the requirements that the pipeline be removed is unreasonable, and that Isabel Casciola should be limited to an award of damages. This argument overlooks the fact that August has no right of eminent domain and consequently no right to compel Mrs. Casciola to sell them a three-inch pipeline across her property.

August makes the further argument that once the construction of the pipeline was completed, the controversy became moot and injunctive relief inappropriate. The same argument was made and answered in Sigal, 450 Pa. at 232-33, 299 A.2d 646, wherein the Court stated:

The appellee has relied on various cases to sustain its contention that a controversy is moot if the act to be enjoined has been completed. The cases cited by appellee are: [citations omitted]. The appellee is correct that in the cited cases the act to be enjoined had been completed and equity did not give any relief. In all these cases, however, equity declined to act, not because the act sought to be enjoined had been completed, but because any relief, other than injunctive relief, would have been inappropriate. In none of the cases cited was there a continuing trespass or any other circumstances which required equitable relief in order to complete the litigation.

The Decree of the Court below also authorized August to replace the three-inch line, if it so desires, with a two-inch line in the same location as the present three-inch line. The Casciolas object to the authorized location of the two-inch line, contending that the right-of-way should follow the perimeter of Mrs. Casciola’s property south of the railroad right-of-way, instead of directly across it as at present. The right-of-way agreements granted by Mrs. Casciola do not specify any definite location for the pipeline or any specific wells to be served by it. The Chancellor found no evidence of fraud, accident, or mistake in their negotiation or issuance. The grants simply describe the Casciola property by boundary lines, and authorize a right-of-way across it. The Casciolas contend that there was a verbal understanding prior to the grants that the pipeline should follow the east or west perimeter of the property south of the railroad. August has offered testimony that there was no such understanding.

Each of the agreements further provides that Mrs. Casciola may compel August to relocate this pipeline at its own expense if the pipeline interferes with the construction of any street, road, house, or the erection on the property of buildings of a permanent nature, upon request by Isabel Casciola, the new location to be agreed upon by the parties or arbitrated. This would not be needed if the pipeline were to follow the perimeter of the property.

The Court further noted that Thomas Casciola had known of and acquiesced in the location of the line when it was laid, and concluded that no agreement to follow the perimeter had been made. This finding, affirmed by the Court en banc, has the effect of a jury verdict. Krosnar v. Schmidt, Krosnar McNaughton Garrett Co., 282 Pa.Super.Ct. 526, 534, 423 A.2d 370 (1980).

The Casciola property is not presently being developed, although plans for its development exist. While there was no agreement between the parties as to the precise location of the present pipeline, no objection was made to its location at installation, and the Lower Court determined that the existing route was not unreasonable at this time. We agree. The present right-of-way having been located with the acquiescence if not the consent of the Casciolas, a change cannot be compelled by them except within the ambit of the right-of-way agreements. Pennsylvania Water and Power Company v. Reigart, 127 Pa.Super.Ct. 600, 193 A. 311 (1937).

The Lower Court denied the Casciola claim for damages because of the unauthorized installation of the three-inch line. They had offered testimony that the value of the property had depreciated by $90,000 because of the installation of the line. The Court pointed out that under the right-of-way agreements, Isabel Casciola could have compelled its removal at any time if it interfered with the development of her property. The Court concluded that she had failed to prove that the location of the pipeline right-of-way as presently located interfered with the development of her property, or that August had unreasonably refused to relocate the line upon request.

The Casciolas make the argument that August should have been required to account for the profits realized by it from the operation of the three-inch line, on the premise that they constitute unjust enrichment from an unauthorized use of the Casciola property. This issue was not raised in the Court below, either before the Chancellor or the Court en banc; consequently, it cannot be considered here. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super.Ct. 230, 240, 433 A.2d 40 (1981); Pa.R.C.P. 1518.

The order of the court below is affirmed.

      . James Miller was dismissed as a defendant by stipulation.


author: LIPEZ, Judge:

text:
    449 A.2d 741
    COMMONWEALTH of Pennsylvania v. Edward L. CLIPPER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 28, 1981.
    Filed Aug. 20, 1982.

      Peter T. Campana, Williamsport, for appellant.
    Robert F. Banks, First Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal from a judgment of sentence for “retail theft, third or subsequent offense,” under the Crimes Code, 18 Pa.C.S. § 3929(a)(1) and (b)(l)(IV) (Supp.1982-1983). We agree with defendant’s argument that prior convictions for shoplifting under the 1939 Penal Code may not be used to increase the grade of a retail theft offense under 18 Pa.C.S. § 3929(b)(1), and only prior convictions for retail theft under the Crimes Code may be used for this purpose. Since the Commonwealth here put into evidence only prior convictions for shoplifting under the 1939 Penal Code, 34we vacate the judgment of sentence and remand for sentencing on retail theft, first offense, which is a summary offense under 18 Pa.C.S. § 3929(b)(l)(I) (Supp.1982-1983).

Section 816.1(a) of the 1939 Penal Code defined the offense of shoplifting and set the penalty therefor as follows:

Whoever shall willfully take possession of any goods, wares or merchandise offered for sale or exhibited by any person with the intention of converting the same to his own use without paying the purchase price thereof, or with the intention of depriving the owner of the possession thereof without his consent, shall be guilty of shoplifting, and, upon conviction thereof in a summary proceeding, shall be sentenced to pay a fine of not less than twenty-five dollars ($25) and not more than five hundred dollars ($500), or to undergo imprisonment of not less than five (5) days and not more than ninety (90) days, or both.

Act of June 24, 1939, P.L. 872, § 816.1(a), 18 P.S. § 4816.1(a) as amended. (Appendix to 18 Pa.C.S.).

When the Crimes Code was passed in 1972 (with an effective date of June 6, 1973), “shoplifting” was supplanted by the offense of “retail theft” in 18 Pa.C.S. § 3929. After defining retail theft in section 3929(a), subsection (b) provided for determining the grade of the offense as follows:

(1) Any person committing the first offense of retail theft when the value of the merchandise is less than $100 is guilty of a summary offense.
(2) Upon conviction of a second offense when the value of the merchandise is less than $100, the person shall be guilty of a misdemeanor of the second degree.
(3) Upon commission of a third or any subsequent offense, regardless of the value of the merchandise, the person shall be guilty of a misdemeanor of the first degree.
(4) When the value of the merchandise shall be $100 or more, any person who shall commit the offense of retail theft whether same shall be a first or subsequent offense, shall be guilty of a misdemeanor of the first degree.

18 Pa.C.S. § 3929(b). The 1976 revisions to section 3929 included a new subsection (b), which states:

(1) Retail theft constitutes a:
(I) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.
(II) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.
(III) Misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.
(IV) Felony of the third degree when the offense is a third of subsequent offense, regardless of the value of the merchandise.
(2) Amounts involved in retail thefts committed pursuant to one scheme or course of conduct, whether from the same store or retail mercantile establishment or several stores or retail mercantile establishments, may be aggregated in determining the grade of the offense.

18 Pa.C.S. § 3929(b) (Supp.1982-1983).

It is the latter version of section 3929(b) which is applicable here, but because both versions refer only to “retail theft” and not “shoplifting,” they both create the problem outlined in a law review article shortly after passage of the Crimes Code:

Unanswered are the problems of recidivists, convicted of shoplifting under the 1939 Penal Code or arrested and not yet convicted of retail theft under the Crimes Code. It has been argued that one starts “anew” under the Crimes Code. Thus, a three or four time convicted shoplifter could only be charged with the summary retail theft provision for any new arrest after June 6, 1973.

Belsky, Dougherty and Goldblatt, Three Prosecutors Look at the New Pennsylvania Crimes Code, 12 Duq.L.Rev. 793, 798 (1974).

The argument that shoplifting convictions under the 1939 Penal Code are inapplicable to section 3929(b) of the Crimes Code was rejected in the one lower court opinion which dealt with the issue, reasoning as follows:

Both acts prohibit the theft of merchandise, both require an intention to convert to one’s own use and both require that the actor intend not to pay the purchase price or full value thereof.
Nor is it fatal to the prosecution that the first offense occurred prior to the enactment of the Crimes Code. In 24B C.J.S. 1960(5) it is said: “. . . in order to authorize the infliction of a more severe penalty on conviction for a second or a subsequent offense, it is not necessary that the first conviction . . . should have occurred subsequent to the enactment of the statute or the amendment thereof.” People v. Hightower, [414 Ill. 537] 112 N.E.2d 126, cert. den. 346 U.S. 875, [74 S.Ct. 128, 98 L.Ed. 383]; Com. v. Warner, 87 D. & C. 91 [1953].

Commonwealth v. Shade, 66 Lanc.L.Rev. 191, 192; 7 D. & C.3d 240, 242 (1977).

We disagree with the reasoning of the court in Shade. Admittedly, we have little guidance on the question, because of the sparse legislative history of section 3929. See Commonwealth v. Coleman, 289 Pa.Super.Ct. 221, 227, 433 A.2d 36, 39 (1981), petition for allowance of appeal denied. “Since we have not had occasion in the past to definitely construe its provisions, we look for guidance to certain fundamental principles of statutory construction: first, that the legislature is not presumed to have intended an absurd or unreasonable result; second, that good sense and practical utility are always to be considered; and third, that statutes should receive the most reasonable and sensible construction possible.” Id. (citations omitted). Keeping these principles in mind, we do not believe that the Shade court was correct in inferring a legislative intent to include shoplifting under the 1939 Penal Code within the meaning of “retail theft” in section 3929(b) from the similarity in elements in the two definitions.

Section 3929 of the Crimes Code was a comprehensive effort to respond to the concerns of the Pennsylvania Retailers’ Association about the ineffectiveness of shoplifting prosecution under the 1939 Penal Code, and is patterned after the Retailers’ Association’s own proposed retail theft legislation. Belsky, Dougherty and Goldblatt, supra, 12 Duq.L. Rev. at 797 & n.30; see S. Toll, Pennsylvania Crimes Code Annotated, § 3929, Reporter’s Comment, at 456 (1974); Comment, Theft and Related Offenses in the New Pennsylvania Crimes Code: A New Concept in Property Offenses, 78 Dick.L.Rev. 44, 47-48, n.22 (1973). To deal with the Retailers’ Association’s concerns, section 3929 created a new offense of “retail theft,” expanding the crime of shoplifting as defined in the 1939 Code. 18 Pa.C.S. § 3929(a); see Belsky, Dougherty and Goldblatt, supra, 12 Duq.L.Rev. at 797 & n.31.

The legislature in enacting section 3929, as well as the draftsmen of the proposed legislation on which it is based, must have been thoroughly aware that they were using this new statutory term, “retail theft,” throughout this section, which was designed to cure some of the problems of shoplifting prosecution under the 1939 Code. Since the most serious of these problems was lack of effective punishment, see Belsky, Dougherty and Goldblatt, supra, 12 Duq.L.Rev. at 797, they must have been most acutely aware of it with respect to the important changes wrought by subsection (b), which increased the grade of the offense based on the number of prior offenses and the amount involved, in order to decrease recidivism and emphasize property protection. See Comment, supra, 74 Dick.L.Rev. at 47-48, n.22.

Had shoplifting convictions under the 1939 Code been intended to be included under section 3929(b), it would have been an extremely simple matter to mention them explicitly. Moreover, when the legislature enacted the 1976 amendments to section 3929, including a further expansion of the definition in subsection (a) and an amended subsection (b), there was still no mention of 1939 Code shoplifting offenses and the new subsection (b) still referred only to “retail theft.” We must therefore conclude that only prior retail theft convictions under the Crimes Code were intended to increase the grade of a retail theft offense under section 3929(b). Since in this case only prior shoplifting offenses under the 1939 Penal Code were introduced to increase the grade of defendant’s offense, we must vacate his judgment of sentence for “retail theft, third offense,” and remand for resentencing on retail theft as a summary offense under 18 Pa.C.S. § 3929(b)(l)(I) (Supp.1982-83). See Commonwealth v. Campbell, 273 Pa.Super.Ct. 407, 409, 417 A.2d 712, 714 (1980).

Judgment of sentence vacated and case remanded for resentencing in accordance with this opinion.

      . Our decision on this issue obviates consideration of most of defendant’s other contentions, including: (1) that use of shoplifting convictions under the 1939 Code to increase the grade of a retail theft offense under 18 Pa.C.S. § 3929(b) would render section 3929(b) unconstitutional as an ex post facto law; (2) that the court below erred in failing to conduct a colloquy on the record to assure that defendant had knowingly and intelligently entered into a stipulation that he had four prior retail theft convictions; (3) that trial counsel was ineffective in advising defendant to enter into the stipulation that he had four prior convictions for retail theft; and (4) that trial counsel was ineffective for failing to assure that the trial court conducted a colloquy to ascertain that defendant had knowingly and intelligently entered the stipulation that he had four prior retail theft convictions.
      There is only one remaining issue which we must consider, defendant’s after-discovered evidence claim. The court below held a post-verdict evidentiary hearing on this issue, and concluded that, of the four requirements for a new trial based on after-discovered evidence, defendant failed to meet at least two—that the evidence could not have been discovered with reasonable diligence before trial concluded, and that the evidence not be merely corroborative or cumulative. See Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978). We agree with the trial judge, and our review of the notes of testimony from the evidentiary hearing convinces us that defendant also failed to meet the requirement that the allegedly after-discovered evidence be likely to compel a contrary result. See Commonwealth v. Warner, 277 Pa.Super.Ct. 598, 606, 419 A.2d 1312, 1315 (1980).

      . The Commonwealth established defendant’s prior convictions by introducing a stipulation, which was signed by defendant, his counsel and the prosecutor. The stipulation stated:
      IT IS HEREBY AGREED AND STIPULATED between the defendant and the Commonwealth that the defendant has four (4) prior convictions for retail theft as follows:
      1. May 4, 1972, before District Justice William E. Woods, Harrisburg, Pennsylvania.
      2. May 20, 1972, before District Justice William E. Woods, Harrisburg, Pennsylvania.
      3. June 8, 1972, before District Justice Joseph F. Pinamonti, Harrisburg, Pennsylvania.
      4. August 5, 1972, before District Justice William E. Woods, Harrisburg, Pennsylvania.
      While the stipulation states that the prior convictions were for “retail theft,” the dates of all four convictions precede the effective date of the Crimes Code, June 6, 1973. The stipulation thus established only shoplifting convictions under the 1939 Penal Code. We also note that nowhere in defendant’s extensive arguments concerning this stipulation, see note 1, supra, does he contend that it was error to inform the jury of the stipulation, see Commonwealth v. Coleman, 289 Pa.Super.Ct. 221, 433 A.2d 36 (1981), petition for allowance of appeal denied, and we have accordingly not decided that issue.

      . We do not discuss the reasoning and authorities in the second quoted paragraph from the Shade opinion, because they deal only with whether the legislature constitutionally could include convictions which occurred prior to the enactment of a recidivist statute, a question we do not reach because of our construction of the retail theft statute. See note 1, supra.

      . Even construing the statute as favorably as possible to the Commonwealth, the most we could say is that the construction urged by the Commonwealth is equally as reasonable as ours. In that event, the rule of strict construction of penal statutes would require us to reach the same conclusion. 1 Pa.C.S. § 1928(b)(1) (Supp. Pamphlet 1964 to 1981); see Commonwealth v. Hill, 481 Pa. 37, 42, n.6 391 A.2d 1303, 1306 n.6 (1978); Commonwealth v. Darush, 256 Pa.Super.Ct. 344, 348, 389 A.2d 1156, 1158 (1978); Commonwealth v. Teada, 235 Pa.Super.Ct. 438, 444, 344 A.2d 682, 684-85 (1975); see also Commonwealth v. Broughton, 257 Pa.Super.Ct. 369, 377, 390 A.2d 1282, 1286 (1978); Commonwealth v. Cluck, 252 Pa.Super.Ct. 228, 237-38, 381 A.2d 472, 477 (1977); Commonwealth v. Cunningham, 248 Pa.Super.Ct. 219, 222, 375 A.2d 66, 67 (1977).


text:
    449 A.2d 745
    CITY OF PHILADELPHIA v. FRANKLIN SMELTING AND REFINING COMPANY, Appellant. BRIDESBURG CIVIC COUNCIL v. FRANKLIN SMELTING AND REFINING COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1982.
    Filed Aug. 20, 1982.
    Petition for Allowance of Appeal Denied Nov. 3, 1982.

      Carl N. Weiner and Louis W. Fryman, Philadelphia, for appellant.
    Kenneth S. Cooper, Philadelphia, for City of Philadelphia, appellee.
    Jerome Balter, Philadelphia, for Bridesburg, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   LIPEZ, Judge:

Defendant Franklin Smelting and Refining Company has filed two appeals, which have been consolidated here, from orders denying Franklin Smelting’s preliminary objections to complaints by plaintiff City of Philadelphia and plaintiff Bridesburg Civic Council. These orders are interlocutory and nonappealable, and the appeal must therefore be quashed.

In its “statement of jurisdiction,” Pa.R.A.P. 2114, Franklin Smelting relies on Rule of Appellate Procedure 341, which deals only with final orders. An order dismissing a defendant’s preliminary objections, however, is clearly interlocutory. Balter v. Balter, 284 Pa.Super.Ct. 350, 355, 425 A.2d 1138, 1140 (1981); see Martino v. Transport Workers Union of Philadelphia—Local 234, 301 Pa.Super.Ct. 161, 169, 447 A.2d 292, 296 (1982). Under the Act of March 5, 1925, P.L. 23, § 1,12 P.S. § 672, such an order was nevertheless appealable if it dealt with a question of jurisdiction, Balter v. Balter, supra, but that statute was repealed effective June 27, 1980. See generally Gallardy v. Ashcraft, 288 Pa.Super.Ct. 37, 39-40, n.3, 430 A.2d 1201, 1202, n.3 (1981), appeal dismissed as improvidently granted, 497 Pa. 587, 442 A.2d 693 (1982). Thus it is inapplicable to these appeals, which were filed on March 5, 1981.

Since section 672 is inapplicable, we need only consider whether the jurisdictional issues raised by Franklin Smelting meet the requirements of Pennsylvania Rule of Appellate Procedure 311(b), effective April 22, 1979. 8 Pa.Bull. 3636, 3637 (1978). The only jurisdictional issues covered by Rule 311(b) are questions of personal or in rem jurisdiction.

In its appeal with respect to the Bridesburg Civic Council’s complaint, Franklin Smelting claims the court below had no jurisdiction of the cause of action under the federal Clean Air Act because of failure to meet the notice requirement of the Act. Assuming such notice is a prerequisite to jurisdiction, it certainly does not raise an issue of personal or in rem jurisdiction under Rule 311(b).

Franklin Smelting also claims that the court below lacked “equity jurisdiction” of the complaints of both the City of Philadelphia and the Bridesburg Civic Council. These challenges to so-called “equity jurisdiction” do not pose a true question of jurisdiction at all. Balter v. Balter, supra, 284 Pa.Super.Ct. at 355-56, 425 A.2d at 1140-41. The orders involved here would thus-not have been appealable even if section 672 were still in effect, and they are certainly not appealable under Rule 311(b), which is narrower in its coverage than section 672. None of the orders here are appealable on any basis, and the entire consolidated appeal must therefore be quashed.

Appeal quashed.

      . But see Pennsylvania Higher Education Assistance Agency v. Di Massa, 296 Pa.Super.Ct. 529, 532 n.3, 442 A.2d 1177, 1178 n.3 (1982). The Di Massa opinion’s erroneous use of June 27, 1978 as the effective date for the repeal of 12 P.S. § 672 apparently sprang from the failure to note that section 2(a)[1069] of the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[1069], 42 P.S. § 20002(a)[1069] (1982 Pamphlet at 462) provided that section 4(b) of JARA, 42 P.S. § 20004(b) (1982 Pamphlet at 595) was applicable to the repeal of the Act of 1925, which contained 12 P.S. § 672. Section 4(b) of JARA provided: “Repeals contained in this act which make reference to this subsection shall take effect two years after the general effective date of this act.” Thus repeal of section 672 took place not on the general effective date of JARA, June 27, 1978, but two years later on June 27, 1980, as indicated in the recent unanimous en banc opinion in Martino v. Transport Workers Union of Philadelphia—Local 234, 301 Pa.Super.Ct. 161, 447 A.2d 292 (1982).

      . Pennsylvania Rule of Appellate Procedure 311(b) provides:

        Order sustaining venue of personal or in rem jurisdiction. An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real of personal property if:
      (1) the plaintiff, petitioner or other party benefiting from the order files of record within ten days after the entry of the order an election that the order shall be deemed final; or
      (2) the court states in the order that a substantial issue of jurisdiction is presented.
      Pa.R.A.P. 311(b).


author: PER CURIAM:

text:
    449 A.2d 746
    COMMONWEALTH of Pennsylvania v. Alfred MASSIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1981.
    Filed Aug. 20, 1982.

      John H. Corbett, Jr., Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   PER CURIAM:

On June 18, 1974, appellant pleaded guilty to various charges. Subsequently on September 17, 1975, appellant filed for relief under the Post Conviction Hearing Act. A hearing was held; relief was denied on October 9, 1975. A second PCHA petition was filed February 17, 1977; it was denied without hearing. An appeal from this second denial of relief was taken in this Court at No. 655 April Term, 1977.

Prior to any decision at No. 655 April Term, 1977, appellant, on July 20, 1978, filed a third PCHA petition. This petition was denied without hearing. Appellant here appeals the denial of his third petition. On January 5, 1982, another panel of this Court filed an opinion at No. 655 April Term, 1977, remanding the case to the lower court for an evidentiary hearing. Commonwealth v. Massie, 294 Pa.Superior Ct. 115, 439 A.2d 777 (1982). Such hearing was held on February 12,1982. By opinion and order of April 1,1982, Judge Strauss denied relief.

Appellant’s complaint, both on this appeal and his appeal at No. 655 April Term, 1977, was that the lower court improperly denied PCHA relief without first appointing counsel and conducting a hearing. Appellant was granted appropriate relief by this Court as a result of his appeal at No. 655 April Term, 1977, i.e., a counseled hearing. Therefore, we find the current appeal is duplicitous and should be dismissed.

Appeal dismissed.


text:
    449 A.2d 747
    COMMONWEALTH of Pennsylvania v. Henry F. ALDRETE, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued April 28, 1982.
    Filed Aug. 20, 1982.

      William F. Scarpitti, Jr., Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from judgments of sentence entered immediately following appellant’s conviction on eight summary traffic offense charges.

On April 10, 1980 appellant was arrested outside his home following a high speed chase through portions of Erie County. He was charged with recklessly endangering another person, a second degree misdemeanor, and with fifteen assorted summary traffic offenses. All the charges were tried on October 17 through 27, 1980 in the Erie County Court of Common Pleas. The jury returned a verdict of not guilty on the misdemeanor charge. The trial judge, however, entered a finding of guilty on eight of the summary traffic offenses. The court immediately imposed judgments of sentence. Appellant was not given the opportunity to file post-verdict motions between the finding of guilt and the imposition of sentence. On October 28, 1980 appellant filed motions in the nature of post-verdict motions although they actually came after the entry of the court’s judgment. These motions went unheard. This appeal followed.

The post-verdict procedure followed by the lower court was in clear contravention of Rule 1123 of the Pennsylvania Rules of Criminal Procedure. Pa.R.Crim.P. 1123. This same procedure was recently decried in this Court’s opinion in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). Koch and its progeny hold that where post-verdict motions have not been filed because sentencing was followed hard upon the heels of the findings of guilt the proper course for this Court to follow is to vacate the judgment of sentence and remand the case for the filing of post-verdict motions nunc pro tunc.

Because the trial court failed to provide appellant the chance to file post-verdict motions before it entered the judgments of sentence presently on appeal we are constrained to vacate those same judgments of sentence and remand the case for the filing of post-verdict motions as per Rule 1123 of the Rules of Criminal Procedure.

Judgment of sentence vacated, case remanded and jurisdiction relinquished.

      . 18 Pa.C.S. § 2705.

      . See Commonwealth v. Kancle, 302 Pa.Superior Ct. 454, 448 A.2d 1129 (1982) (Appellant not afforded opportunity to file post-verdict motions: no waiver where appellant not informed of right to file post-verdict motions following summary conviction.)


text:
    449 A.2d 748
    BURNS INTERNATIONAL SECURITY SERVICES, INC. v. POWER PLANT POLICE AND SECURITY OFFICERS, LOCAL 1, Affiliated With Federation of Special Police and Law Enforcement Officers, and Herman Jaffee, Business Agent, Richard L. Pfeiffer, Richard O. Dallas, Bradley Warner and Harry Morningstar, as Members and Individually, and John Doe and Jane Doe, Being All the Persons Who Are Employed By or With Burns International Security Services, Inc. at Philadelphia Electric Company’s Peach Bottom Plant, Appellants.
    Superior Court of Pennsylvania.
    Argued March 23, 1982.
    Filed Aug. 20, 1982.
    Charles W. Johnston, Jr., Harrisburg, for appellants.
    Gordon A. Roe, York, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   PER CURIAM:

These are appeals from orders issuing and continuing in full force and effect, an injunction against appellants arising from a labor dispute.

This case arose out of a strike, beginning on April 30, 1981, by appellants against appellee at the Peach Bottom Atomic Power Plant in York County, Pennsylvania. On May 1,1981, a Friday evening, appellee sought and obtained an ex parte preliminary injunction enjoining mass picketing a¡f Peach Bottom and scheduling a hearing for May 6. Pickets were limited to three at the Atom Road entrance to the plant, the entrance designated for use by appellee’s employees. Appellee’s complaint, dated May 1, 1981, was actually filed on the following Monday, May 4. The complaint alleged that mass picketing by appellants had blocked both entrances to Peach Bottom, preventing ingress and egress from the plant and endangering the safety of employees at the plant and of residents in the surrounding area. Attached to the complaint were affidavits of several plant employees stating that they had been threatened by large groups of pickets and had been prevented from entering the plant.

On May 5, 1981, appellants petitioned for removal to Federal District Court. On May 6, the Federal Court remanded the case to the Court of Common Pleas of York County. On that same date, the Court of Common Pleas continued its prior injunction and set May 11, 1981, as the new hearing date.

At that hearing, five witnesses testified for appellee. After the hearing, the court ordered the injunction continued until further order of court. This appeal followed.

At oral argument, all parties agreed that the labor dispute in this case had been settled and the strikers were back at work. Therefore, we note that this appeal is now moot. Epstein v. Pincus, 449 Pa. 191, 296 A.2d 763 (1972). “No purpose is presently served by passing upon the legitimacy of orders that at this point have no legal force and effect.” Pa. Coal Min. Ass’n v. Commonwealth, etc., 498 Pa. 1, 444 A.2d 637 (1982). This is not a situation involving a substantial question which is likely to be repeated unless settled as was the situation in Colonial Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977). See also Janet D. v. Carros, 240 Pa.Super. 291, 307-312, 362 A.2d 1060, 1068-1070 (1976), and Com. ex rel. Watson v. Montone, 227 Pa.Super. 541, 323 A.2d 763 (1974).

Appeal quashed.

      . The Peach Bottom Atomic Power Plant is owned by the Philadelphia Electric Company. Appellee supplies by contract security guards for Peach Bottom.


text:
    449 A.2d 750
    COMMONWEALTH of Pennsylvania v. Candido RIQUELMY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1982.
    Filed Aug. 20, 1982.

      Saul Solomon, Norristown, for appellant.
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   PER CURIAM:

These are direct appeals from two consecutive two (2) to five (5) year sentences of imprisonment imposed following appellant’s conviction by a jury on charges of criminal conspiracy and attempt to commit theft by deception. Appellant raises three issues on appeal. First, that the sentences are unlawful under § 906 of the Crimes Code; second, that the trial court erred in denying his pre-trial motion to quash the information; and third, that the evidence was insufficient to sustain the verdict.

Appellant’s first argument concerning the legality of his sentences is based upon § 906 of the Pennsylvania Crimes Code which prohibits convictions for more than one offense defined in chapter 9 of the code “for conduct designed to commit or culminate in the commission of the same crime.” Criminal conspiracy and attempt are each defined in chapter 9 of the code. The Commonwealth concedes that the conduct underlying both charges was designed to culminate in the commission of one crime. The Commonwealth argues, however, that appellant has waived his objection to the sentences by failing to raise the issue in the trial court. Appellant argues, however, that the legality of his sentences is not a waivable issue. This matter has been decided contrary to the Commonwealth’s contention by a panel of this Court in Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981). Here, as in Turner, appellant was convicted of two crimes defined in chapter 9 of the code where only one crime was contemplated in violation of § 906. In Turner, the court vacated one sentence and affirmed the other. We will do likewise in this case and vacate the sentence imposed on the charge of attempted theft, and affirm the sentence imposed on the charge of conspiracy.

Appellant also argues that the information filed against him by the district attorney fails to set forth with sufficient particularity the crimes charged. This issue was considered and discussed by the trial court in its opinion denying appellant’s post-trial motions. There the issue was adequately addressed by the trial court and correctly decided. There is no need to elaborate further on the court’s opinion in that regard.

Finally, appellant argues that the evidence was insufficient to support the jury’s verdict. The test of whether the evidence was . sufficient to support a conviction is whether viewing the evidence in the light most favorable to the Commonwealth, the jury could reasonably have found the defendant guilty beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975). Applying that test, the evidence in this case, particularly the testimony of Officer Miles Edwards, was clearly sufficient to support the convictions.

The judgment of sentence on the charge of criminal conspiracy is affirmed. The judgment of sentence imposed on the charge of attempted theft is vacated.


text:
    449 A.2d 751
    Andrew HORVAT, Appellant, v. Dolores HORVAT.
    Superior Court of Pennsylvania.
    Argued June 21, 1982.
    Filed Aug. 20, 1982.

      Edward S. Wardell, Philadelphia, for appellant.
    Allen W. Toadvine, Langhorne, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   PER CURIAM:

This is an appeal from the dismissal of a petition under the Protection From Abuse Act. Judge Shertz observed for a panel of this court in a recent case under that Act:

Section 10189 of the Act in question provides that any proceeding thereunder shall be in accordance with the Rules of Civil Procedure. In addition, Rule 1905, Pa.R. Civ.P., which was promulgated to implement the Act, provides: “The decision of the court and the time for exceptions thereto shall be governed by Rule 1038(b) to (e) inclusive.” Rule 1038(d), Pa.R.Civ.P., in turn, requires the filing of exceptions to the decision of the lower court.

Knisely v. Knisely, 295 Pa.Super.Ct. 240, 241, 441 A.2d 438, 439 (1982) (footnote omitted). Appellant here failed to file exceptions. Therefore he preserved no issues, and the appeal must be dismissed. See Pa.R.A.P. 1972(5).

Appeal dismissed.


text:
    449 A.2d 752
    Ida SUNBURY, Appellant, v. HOME INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1981.
    Filed Aug. 27, 1982.

      Allen L. Feingold, Philadelphia, for appellant.
    Frederick T. Lachat, Jr., Philadelphia, for appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   PER CURIAM:

The procedural posture of this appeal is essentially identical to that of Johnson v. Keystone Insurance Company, 299 Pa.Super.Ct. 187, 445 A.2d 517 (1982). Accordingly, we shall vacate the order dismissing appellant’s complaint for noncompliance with the “240 Day Rule” and Philadelphia Rule of Civil Procedure 151, and remand the case to the court below for further proceedings consistent with the opinion in Johnson v. Keystone Insurance Company, supra.

Order vacated, and case remanded for further proceedings. Jurisdiction relinquished.


text:
    449 A.2d 752
    Treena BROOKS, Appellant, v. Walter SCHACHTEL, Esquire, Lois Phillips and Bertha Shapiro, Executors of the Estate of Davis Shapiro.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1981.
    Filed Aug. 27, 1982.
    Allen L. Feingold, Philadelphia, for appellant.
    Joseph M. Hankins, Philadelphia, for appellees.
    Before SPAETH, BECK and LIPEZ, JJ.
   PER CURIAM:

The procedural posture of this appeal is essentially identical to that of Johnson v. Keystone Insurance Company, 299 Pa.Super.Ct. 187, 445 A.2d 517 (1982). Accordingly, we shall vacate the order dismissing appellant’s complaint for noncompliance with the “240 Day Rule” and Philadelphia Rule of Civil Procedure 151, and remand the case to the court below for further proceedings consistent with the opinion in Johnson v. Keystone Insurance Company, supra.

Order vacated, and case remanded for further proceedings. Jurisdiction relinquished.


text:
    449 A.2d 753
    COMMONWEALTH of Pennsylvania v. Joseph INADI, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1982.
    Filed Aug. 27, 1982.

      Holly Maguigan, Philadelphia, for appellant.
    Edward J. Cameron, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   PER CURIAM:

This case involves an expedited appeal from an order of extradition entered by the court below. This court stayed extradition pending disposition of the appeal on the merits.

In 1980 an indictment was returned in Cape May County, New Jersey, charging the appellant with conspiracy in connection with illegal drug activities. In November, 1981, the appellant was arrested by Philadelphia police on a fugitive warrant issued in Cape May County, New Jersey. On February 1, 1982, appellant was arrested on a formal extradition warrant issued by the governor of Pennsylvania to which was attached a governor’s warrant and the extradition papers issued by the governor of New Jersey.

On June 1, 1982 a hearing was held in the court below on the appellant’s petition for habeas corpus and on the petition for extradition. Following the hearing the court below entered an order of extradition, which we subsequently stayed. Oral argument was held in this court on June 9, 1982.

Extradition will be ordered if (1) the subject of the extradition is charged with a crime in the demanding state; (2) the subject of the extradition is a fugitive from the demanding state; (3) the subject of the extradition was in the demanding state at the time of the commission of the crime and (4) the requisition papers are in order. Commonwealth v. Rowe, 264 Pa.Super. 67, 398 A.2d 1060 (1979), Commonwealth ex rel. Pizzo v. Aytch, 273 Pa.Super. 55, 416 A.2d 1086 (1979).

At the extradition hearing there was sufficient evidence to establish that the appellant was the individual named in the information in New Jersey. The governor’s warrant contained a photograph of the individual indicted in Cape May County and the court below examined the photograph and found it to be a picture of the appellant. Further, when the Philadelphia police asked appellant if he knew that New Jersey wanted him appellant responded “Now I do, yeah”.

Appellant contends that there was not sufficient evidence to establish that he was in New Jersey at the time of the commission of the crime. We disagree. “The allegations of the requisition and the accompanying affidavit must be accepted as prima facie true.” In re Ripepi, 427 Pa. 507, 511, 235 A.2d 141, 142 (1967). See also Commonwealth ex rel. Pizzo v. Aytch, supra. The governor’s warrant in the instant case provides:

JOSEPH INADI used telephone (215) 757-1475 located at 3060 Bristol Road Long Meadow Apartment, Apt. 117, Cornwells Heights, Pennsylvania, and telephone (215) 335-9861 located at The Waiting Room Bar, Roosevelt Boulevard, Philadelphia, Pennsylvania to engage in conversations relating to the distribution and possession of controlled dangerous substances; possessed controlled dangerous substances; traveled to Cape May County regarding the manufacture and possession of controlled dangerous substances; and met with persons named above and not so named to accomplish the acts recited.

These papers aver that the appellant was in New Jersey when the alleged crime occurred and we are constrained to find that this is so since the appellant offered nothing to establish that he was not in New Jersey at the time of the crime. Commonwealth ex rel. Reis v. Aytch, 225 Pa.Super. 315, 310 A.2d 681 (1973).

Appellant contends that some of the evidence introduced at the extradition hearing was based on information obtained in a wiretap and that compliance with the Pennsylvania Wiretapping and Electronic Surveillance Act, Act of October 4, 1978, P.L. 831, No. 164, 18 Pa. C.S.A. § 5701 et seq. was not established. For extradition purposes the Commonwealth sufficiently established that the wiretaps were authorized in New Jersey. The affidavit in the governor’s warrant states that the wiretap was authorized. Further, the proceedings in the demanding state are “clothed with the traditional presumption of regularity.” Michigan v. Doran, 439 U.S. 282, 290, 99 S.Ct. 530, 536, 58 L.Ed.2d 521, 528 (1978). It must be remembered that extradition proceedings are summary in nature. United States ex rel. Vitiello v. Flood, 374 F.2d 554 (2d Cir. 1967). In extradition proceedings hearsay is admissible, as well as evidence secured in violation of the relator’s constitutional rights or evidence otherwise illegally seized. Commonwealth v. Rowe, supra.

Appellant’s reliance on Commonwealth v. Bennett, 245 Pa.Super. 457, 369 A.2d 493 (1976) to support his contention that the Commonwealth must prove full compliance with Pennsylvania’s Wiretapping and Electronic Surveillance Act is not justified. The Bennett case did not involve extradition proceedings. The issue was whether information based on wiretaps in a foreign jurisdiction may be used to support a search warrant in Pennsylvania. The court concluded that the use in Pennsylvania of information secured through a valid, properly authorized wiretap in a foreign jurisdiction is not in contravention of the Pennsylvania anti-wiretapping statute. The Bennett case does not require that in an extradition proceeding involving information based on wiretaps that the Commonwealth must prove that all of the stringent safeguards in our anti-wiretap statute were complied with in New Jersey. To place this burden on the Commonwealth would go far beyond what is required in extradition proceedings.

Finally, we conclude that the extradition papers are in order and that all of the requirements for extradition have been met.

Order of extradition affirmed and order of the Superior Court staying extradition shall be forthwith vacated.

      . The Uniform Criminal Extradition Act, Act of July 9, 1976, P.L. 586, 42 Pa. C.S.A. § 9121 et seq. sets forth the procedure to be followed in extradition cases.

      . The Pennsylvania Wiretapping and Electronic Surveillance Act provides in 18 Pa. C.S.A. § 5717(c) as follows:
      (c) Otherwise authorized personnel.—Any person who, by any means authorized by the laws of another state or the Federal Government, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence where otherwise admissible while giving testimony under oath or affirmation in any proceeding in any court of this Commonwealth.