author: ROWLEY, Judge:

text:
    457 A.2d 103
    Frank G. BINSWANGER, Jr., John K. Binswanger, Anthony J. Walton, Jr., and Robert M. Brasler, Individually and t/a the Binswanger/Herman Company, Appellants, v. Robert P. LEVY and David Richard Levy, and Burton K. Stein, Esquire and Barclay Hotel Associates.
    Superior Court of Pennsylvania.
    Argued May 5, 1982.
    Filed Feb. 18, 1983.

      Jean C. Hemphill, Philadelphia, for appellants.
    Sidney Ginsberg, Philadelphia, for appellees.
    Before ROWLEY, CIRILLO and MONTEMURO, JJ.
   ROWLEY, Judge:

This is an appeal from an order of the trial court sustaining appellees’ preliminary objections in the nature of a demurrer and dismissing appellants’ complaint in assumpsit.

Initially we note the applicable standard of review is expressed in Donnelly v. DeBourke, 280 Pa.Super.Ct. 486, 489-90, 421 A.2d 826, 828 (1980) (citations omitted):
[WJhen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom ... [Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty, that, upon the facts averred, the law will not permit recovery by the plaintiff.
See also Bickell v. Stein, 291 Pa.Super.Ct. 145, 149, 435 A.2d 610, 612 (1981).
A demurrer is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Del Boring Tire Service, Inc. v. Barr Mach., Inc., 285 Pa.Super.Ct. 66, 426 A.2d 1143 (1981). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. Barto v. Felix, 250 Pa.Super.Ct. 262, 378 A.2d 927 (1977). In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint. Linda Coal and Supply Co. v. Tasa Coal Company, 416 Pa. 97, 204 A.2d 451 (1964). Any doubt as to whether a demurrer should be sustained should be resolved against the moving party. Commonwealth, Dept. of Environmental Resources v. Peggs Run Coal Co., 423 Pa. Commw.Ct. 765, 423 A.2d 765 (1980).

DeSantis v. Swigart, 296 Pa.Super. 283, 286, 442 A.2d 770, 771-772 (1982).

From the complaint filed in this case the following “facts” appear. The individual appellants are licensed real estate brokers and, as partners, conduct business in Philadelphia under the name “The Binswanger/Herman Company.” The three individual appellees are the co-executors of the Estate of Rita K. Levy (decedent). One of the assets of decedent’s estate was a “unit” in a “multi-unit building” (the condominium) on Rittenhouse Square in Philadelphia. Decedent’s unit was identified as apartment 15-A. Appellee “Barclay Hotel Associates” (the Associates) is a Pennsylvania partnership. The Associates owns or operates the largest single unit in the condominium. The Associates’ unit is identified and known as “The Barclay Hotel.”

The executors desired to sell Apartment 15-A. On January 25, 1980, Frank G. Binswanger (Binswanger), one of the appellants and a partner in Binswanger/Herman, obtained the approval of the co-executors of the Levy Estate to show the apartment to a prospective purchaser. That same day, Binswanger notified the executors by mail that if his client made an offer to purchase the apartment, he expected “to be paid the normal and usual fee for services rendered.”

Binswanger showed the unit to L. Osmond Benoliel, a prospective purchaser, on Monday, January 28, 1980. The next day, appellee Stein informed Binswanger by letter that the broker’s expectations would be unfulfilled and his firm would “be entitled to a 6% real estate commission only in the event that the property” was sold to the Benoliels or a Dr. Fife, who was also appellants’ client. Mr. Stein also stated that Binswanger’s firm would “not be entitled to any real estate commission or compensation of any kind from the Estate in the event that the property [was] sold by the Estate to anyone else (including the Barclay Hotel) no matter what the price or terms of said sale may be.” He went on to say that the Binswanger firm had “never been nor are you presently authorized to sell, show, appraise, set a value for or in any way deal with” apartment 15-A. Mr. Stein further noted in his letter that the apartment had been previously shown by the executors to certain prospective purchasers and that they would continue in the future to show it to potential buyers. Finally, Mr. Stein said that there was “a further possibility that the hotel unit at the Barclay” [Associates] would “purchase the apartment unit based on an alleged outright option to purchase or under an alleged right of first refusal.”

Mr. Benoliel made an offer to purchase the property in February, 1980, for “approximately $187,500.” The offer was contained in a letter from the Benoliels’ attorney to Mr. Stein but it was alleged that “a copy of the letter has not been made available to” appellants. It was also alleged that the Benoliels’ offer “exceeded the purchase price of $180,000 which Mr. Stein had indicated the Estate desired to net from the transaction by $7,500 to cover a commission at a reduced rate which the [appellants], through Frank G. Binswanger, Sr. offered to accept if the sale were concluded.”

Prior to receiving the offer from the Benoliels, the executors and Associates had been negotiating for a sale of the apartment but “active negotiations” had ceased when the executors rejected an offer that was “much lower” than that received from the Benoliels. However, “[o]n the basis of the offer made by the Benoliels, the ... Executors received and accepted an identical offer for the Levy Unit from ... [the Associates] which, according to the ... Executors, had a right of first refusal on the Levy Unit and exercised that right after the Benoliels made their offer.” The sale of the apartment to the Associates took place about April 15, 1980.

Appellants further allege that although they have no personal knowledge of the matter, they have been informed that the “Associates either paid the Levy Estate a sum to compensate the [appellants] or else agreed to indemnify the Estate from the [appellants’] claim for a commission.” Finally, appellants allege that they are entitled to a commission of $7,500 from “either or both” of the appellees “because it was the services rendered by the [appellants] ... which made it possible for” the executors to sell the apartment to the Associates.

On May 5, 1980, after their demand for payment was refused, appellants commenced this action in assumpsit to recover a commission which they allege was due them. Pursuant to Pa.R.C.P. No. 1017, appellees filed preliminary objections. One objection was in the nature of a demurrer claiming that appellants had failed to set forth facts sufficient to state a cause of action against them. The other objection was in the nature of a motion to strike. On November 18, 1980, the trial court ruled that the complaint failed to state a cause of action; sustained the demurrer and dismissed the complaint.

On December 5, 1980, appellants filed a “motion to open judgment and vacate order sustaining [appellees’] preliminary objections and dismissing [appellants’] complaint.” With this motion appellants alleged additional facts, submitted additional exhibits and asked that they “be permitted to proceed to trial, or in the alternative, to amend the complaint.” No action was taken on appellants’ motion for the ensuing two weeks. Appellants filed an appeal to this court on December 18, 1980 (the last day of the appeal period) from the order of November 18, 1980. Subsequently, on January 23, 1981, the trial court denied appellants’ motion to open, vacate or amend for the reason that it was “moot as a result of [appellants’] appeal taken to the Superior Court of Pennsylvania.”

We agree with the trial court that, as it now stands, appellants’ complaint fails to state a cause of action.

Unless an exclusive contract is entered with a real estate broker, there is usually no bilateral contract. Rather, the vendor offers a property for sale under certain terms, including a specific price, and the offer is interpreted as a promise to pay the broker a commission for producing a purchaser ready, willing, and able to contract on the vendor’s terms and able to perform the contract. Simon v. H.K. Porter Co., 407 Pa. 359, 180 A.2d 227 (1962); Andrien v. Bennett, 191 Pa.Super. 150, 155 A.2d 206 (1959). Generally, when a broker produces a purchaser meeting those requirements, the broker is entitled to a commission even if the vendor later sells the property to a different purchaser. Simon v. H.K. Porter Co., supra. However, if a vendor communicates or the circumstances indicate a contrary intention, then the vendor has not made an offer which can result in a contractual obligation, if accepted, but an invitation to bid or submit offers. Hilliard Estate, 383 Pa. 63, 117 A.2d 728 (1955); Andrien v. Bennett, supra.

Estate of Bennett, 487 Pa. 157, 161-162, 409 A.2d 12, 14-15 (1979). In this case, the appellants were aware that they were dealing with fiduciaries. Prior to the submission of any offer from the Benoliels, appellants were notified of the very limited circumstances under which a commission would be paid to them. They were also advised that the executors were actively seeking purchasers for the property, and that Associates either had, or claimed to have, an option to purchase the property or a right of first refusal. The letter from Mr. Stein to appellants makes it clear that the executors did no more than invite or agree to receive bids or offers for the property from appellants’ clients. The allegations of the complaint repudiate appellants’ claim that the executors had made an offer to sell the property or that there was any promise, express or implied, to pay appellants a commission in the event of a sale except on the precise terms stated by Mr. Stein. Therefore, the trial court correctly concluded that the complaint, as drafted, failed to state a cause of action against appellees.

However, we have concluded that appellants should be given an opportunity to amend their complaint in order to set forth a valid cause of action if they can.. First, the procedural anomaly with which appellants were confronted should not operate to foreclose an opportunity which would otherwise be readily available. An order sustaining preliminary objections and dismissing the complaint is a final and appealable order. Otto v. American Mutual Insurance Company, 482 Pa. 202, 204 n. 1, 393 A.2d 450, 451 n. 1 (1978) (citing cases). To protect their appellate rights and keep their lawsuit alive, appellants understandably felt constrained to file this appeal. See Brown v. Kleinfelter, 267 Pa.Super. 144, 406 A.2d 560 (1979). There is no assertion that the appeal was interposed for delay or to harass the appellees. Furthermore, once the appeal was filed the trial court properly refrained from taking any further action. Pa.R.A.P. 1701. Under these circumstances we are not prepared to hold that appellants have waived the right to amend their complaint.

Moreover, where a plaintiff has asked for leave to amend upon appeal, the Supreme Court of Pennsylvania has granted such leave. In Otto v. American Mutual Insurance Company, 241 Pa.Super. 423, 361 A.2d 815 (1976) reversed 482 Pa. 202, 393 A.2d 450 (1978), this court denied leave to amend because the appellants in that case had not sought such leave from the trial court in the first instance. 241 Pa.Super. at 436-437, 361 A.2d at 822-823. The Supreme Court reversed saying:

There may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile. We think, however, that the Superior Court erred in concluding that this was such a case. The right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully. 482 Pa. at 205, 393 A.2d at 450-451.

Likewise, in the instant case we cannot now say, on the present state of the record, that appellants clearly cannot state a cause of action nor can we conclude that granting leave to amend would be futile. See also Associates of Philipsburg v. Hurwitz, 292 Pa.Super. 406, 415-416, 437 A.2d 447, 452-453 (1981).

Appellants, in their “Motion to Open Judgment and Vacate Order” filed with the trial court on December 5, 1980 alleged that they had “newly-discovered documents” which support their claim that they are entitled to a commission. These include: (1) the proposed agreement of sale submitted by the Benoliels in the amount of $187,500.00; (2) a letter from the Benoliels’ attorney to appellee Stein, dated March 12, 1980; (3) a letter from Mr. Stein dated March 17, 1980 to the Benoliels’ attorney which appellants claim “implicitly admits an obligation to [appellants]” and (4) a copy of the deed for Apartment 15-A showing that Associates purchased it on April 14, 1980 for $160,000.00.

In Hamill Quinlan, Etc. v. Rosswog Homes, Inc., 281 Pa.Super. 235, 422 A.2d 146 (1980) this Court held that an allegation by the broker that the seller had agreed with the buyer to pay a realtor’s commission, was sufficient to state a cause of action by the broker against the seller and that the trial court had erred in sustaining the seller’s demurrer to the broker’s complaint. See also Wray v. Bowman, 74 Pa.Super. 479 (1920). Although appellants’ complaint fails to adequately plead such a promise by any of the appellees in this case it is not clear, in light of the additional averments in their Motion, that they are unable to plead facts that would bring them within this Court’s ruling in Hamill Quinlan, Etc. v. Rosswog Homes, Inc. supra. It does appear that the stated consideration for the sale to Associates was some $27,500.00 less than the amount offered by appellants’ clients. Additionally, in the letter from the Benoliels’ attorney to Mr. Stein, the attorney stated that it was his recollection that Mr. Stein had said “that the [Associates] would be required to pay a commission if a demand was made therefore in connection with the sale to the [Associates].”

Appellants also argue that they would be “entitled to a commission if the transaction was not consummated because [the] sellers rejected the buyers produced by [appellants] in bad faith or as a part of a conspiracy between [appellees] to deprive [appellants] of a commission,” citing Perry v. Spellman, 194 Pa.Super. 555, 168 A.2d 615 (1961). They claim that the information contained in their Motion would support recovery under these theories also.

Whether appellants can in fact plead sufficient facts to state a cause of action under any of these additional theories or whether, if pled, they can prove their right to a commission is not presently before us. We only hold that it does not appear with certainty that the law will not permit recovery by the appellants. This being so, they should be given an opportunity to file an amended complaint before their claim is finally dismissed. We therefore affirm the order of the trial court insofar as it sustained appellees’ demurrer to appellants’ complaint. However, the order is modified to allow appellants an opportunity to amend their complaint within such time as may be granted by the trial court. Case remanded to the trial court for further proceedings in accordance with this opinion.

Jurisdiction is relinquished.

      . See the "Unit Property Act”, Act of July 3, 1963, P.L. 196, Art. I, § 102, 68 P.S. § 700-102, repealed by the "Uniform Condominium Act”, Act of July 2, 1980, P.L. 286, No. 82, § 2, except as to condominiums created prior to the effective date of the "Uniform Condominium Act”.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    457 A.2d 108
    John RYBAS, Appellant v. Morton B. WAPNER, Esquire and Shelly’s Forman, Individually and T/A Shelly’s Pharmacy and Spawd, Ind.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1982.
    Filed Feb. 18, 1983.

      Paul Benjamin, Philadelphia, submitted a brief on behalf of appellant.
    Steven G. Wigrizer, Philadelphia, for appellees.
    Before WIEAND, BECK and M0NTEMUR0, JJ.
   BECK, Judge:

This defamation action was initiated by appellant John Rybas against appellees Morton B. Wapner, Esquire, and his client, Shelly Forman, a pharmacist. The trial court granted appellees’ motion for summary judgment and this appeal followed.

Rybas is engaged in several businesses run by himself and his three sons in the Far Northeast section of Philadelphia, where his family have been long-time residents. For-man’s drug store, known as Shelly’s Pharmacy, has been located since 1970 in space leased by Rybas in a shopping center which Rybas built. Forman, too, lives in the Far Northeast.

In 1977, Rybas and Forman were in the midst of two separate lawsuits arising out of their landlord-tenant relationship. During the settlement negotiations, on December 12, 1977, Benjamin Paul, Rybas’ attorney, wrote a letter to Wapner, Forman’s attorney, asking for certain financial statements and tax returns. On December 16, 1977, Wapner responded to Paul. His letter contained the following paragraph:

“If Mr. Rybas ever intends to settle this amicably, it is going to be incumbent upon him to make some gesture of good faith, some attempt to demonstrate that he is not as an anti-Semitic as he appears to be, and to make some effort at trying to live together as a good neighbor.” Following receipt of Wapner’s letter, Rybas filed suit,

claiming that the letter was defamatory and demanding judgment in excess of $100,000. Wapner denies that the letter was defamatory, and claims that Rybas fails to prove damages. He does not plead truth as a defense, but claims that the statement in question is absolutely privileged as relating to a judicial proceeding.

In reviewing summary judgment, the Court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. Scheetz v. Borough of Lansdale, 64 Pa.Commw. 24, 438 A.2d 1048 (1982). Clearly there is no genuine issue of material fact in this case. Our review is therefore limited to the issues of (1) whether Wapner’s letter was defamatory, and actionable without proof of damages, and (2) whether the statement was privileged as a communication between attorneys.

In Pennsylvania law, a communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Corabi v. Curtis Publishing Co., 441 Pa. 432, 441, 273 A.2d 899, 904 (1971). Procedurally, it is the function of the court in the first instance to determine whether the communication complained of is capable of a defamatory meaning. The test is the effect the statement would fairly produce, or the impression it would naturally engender, “in the minds of the average persons among whom it is intended to circulate.” Corabi, supra, 441 Pa. at 447, 273 A.2d at 907, quoting Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936).

The trial court concluded that Wapner’s statement could not, as a matter of law, have a defamatory meaning, and we reach the same conclusion. Therefore, the sentence in the letter complained of is not actionable under Pennsylvania law. We find Raible v. Newsweek, Inc., 341 F.Supp. 804 (W.D.Pa., 1972) persuasive. In that case, an action in defamation based on an accusation of racial prejudice was dismissed by the court because the sum total of the words complained of was tantamount to describing the plaintiff as a “bigot.” We are persuaded that the Raíble court was correct in asserting “to call a person a bigot or other appropriate name descriptive of his political, racial, religious, economic, or sociological philosophies gives no rise to an action for libel” (at 807).

Raíble relied on McAndrew v. Scranton Republican Publishing Co., 364 Pa. 504, 72 A.2d 780 (1950) and Sweeney v. Philadelphia Record Co., 126 F.2d 53 (3rd Cir.1942) along with a related action, Sweeney v. Beacon Journal Publishing Co., 66 Ohio App. 475, 35 N.E.2d 471 (1941). The thrust of McAndrew and Sweeney is that not every embarassing and annoying publication is a libel. A publication which charges that an individual is actuated by unpleasant or undesirable prejudice may offend his sensitivities, but is not thereby libelous.

We note that to restrict too severely the right to express such opinions, no matter how annoying or disagreeable, would be dangerous curtailment of a First Amendment Right. Individuals should be able to express their views about the prejudices of others without the chilling effect of a possible lawsuit in defamation resulting from their words. We thus affirm the fundamental right to express views about the character of other people except where that express will “so ... harm the reputation of another as to lower him in the estimation of the community or ... deter third persons from associating or dealing with him.” Corabi, supra, 441 Pa. at 477, 273 A.2d at 907.

Essential to the very idea of defamation is injury to “reputation” in the popular sense. The damage is judged by the reaction of other persons in the community, and not by the party’s self-estimation. In this respect the law recognizes that every man has a right to have his good name unaffected by false statements which lower him in the estimation of the community or deter third persons from dealing with him, but the law does not protect a person from hurt feelings or individual negative reactions to a particular statement.

We- hold that Wapner’s statement to the effect that Rybas should make some attempt to demonstrate “that he is not as antisemitic as he appears to be” is not capable of defamatory meaning. To reach this conclusion, the reviewing Court must examine the words in their factual context. Wapner’s alleged defamation was written in a letter to a fellow attorney and was intended for no other audience. The intended publication was therefore extremely limited. In Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980) our Court held that factual context included the nature of the intended audience as a “critical factor” in determining whether a statement was capable of defamatory meaning. In that case, the alleged defamation was an evaluation of an academic performance, intended for communication to only a few members of the university community. We found that while negative evaluation of an academic performance might be embarassing or annoying, it did not lead the community to ostracize or shun the plaintiff.

The law is clear that the nature of the intended audience must be evaluated, and “the test is the effect the statement is fairly calculated to produce ... in the minds of the average persons among whom it is intended to circulate.” Corabi, supra, 441 Pa. at 447, 273 A.2d at 907. We need not speculate whether Wapner’s alleged libel would be capable of a defamatory meaning if it appeared in some other context. We face a fact pattern far different from the principal case which Rybas cites, O’Donnell v. Philadelphia Record Co., 356 Pa. 307, 51 A.2d 775 (1947). In that case, the following statement in an editorial was held libelous:

“John O’Donnell is a Naziphile. He makes no secret of it. On numerous occasions, to all friends and barflies within hearing, he has broadcast his sympathy with most of Hitler’s aims—such as destruction of the British Empire, suppression of labor unions and liquidation of the Jews.” (356 Pa. at 309, 51 A.2d 775).

Clearly, the 1977 statement of Wapner, in a letter intended only for Rybas’ attorney and read only by appellant’s family and three close business and professional associates, in no way approaches the large public audience of the statement in the Record editorial. We also take judicial notice of the fact that the defamation in O’Donnell was originally published at a time when the United States was on the brink of war with Nazi Germany, and republished in August 1942, after the outbreak of hostilities. We further distinguish this characterization of Rybas from calling someone a member of the Communist party, held defamatory in Solosko v. Paxton, 383 Pa. 419, 119 A.2d 230 (1956) and Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952) at a time when membership in the Communist Party was a felony.

Since we find as a matter of law that Wapner’s statement was not capable of defamatory meaning, we do not reach the question of whether Rybas was required to prove damages therefrom. We also find it unnecessary to decide whether the letter in question was privileged as part of a communication between attorneys pursuant to a legal settlement.

We affirm the lower court’s order granting summary judgment.

      . Prosser, Law of Torts, 4th ed. (1971) § 111; Eldredge, The Law of Defamation, (1978) §§ 4, 35; Restatement, 2d, Torts, § 559.


author: CAVANAUGH, Judge:

text:
    457 A.2d 111
    Joseph COLAVECCHI v. Bert E. KNARR and Luella C. Knarr, his wife, Mary Louise Marshall, Orville Marshall, her husband, Silas P. Knarr, and Alice F. Knarr, his wife, Henry S. Knarr and Evelyn Knarr, his wife, H.S. Knarr, and Mary Knarr, his wife, Wesley E. Donahue, and Lisa A. Donahue, his wife, and Any Heirs or Persons Claiming or Who Might Claim Title Under Them and Any Other Person, Persons, Firms, Partnerships or Corporate Entities who Might Claim Any Title to the Premises Herein Described. Appeal of Wesley E. DONAHUE and Lisa S. Donahue.
    Superior Court of Pennsylvania.
    Submitted Sept. 28, 1981.
    Filed Feb. 25, 1983.

      Jackson Casey, Sykesville, for appellants.
    Joseph Colavecchi, in pro. per.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

In October, 1973, the appellee, Joseph Colavecchi, purchased a one-half interest in certain real estate located in Clearfield County, Pennsylvania, at a tax sale. Unfortunately, for the parties involved in this appeal, the same real estate was also conveyed by the Clearfield County Commissioners to the appellants herein, Wesley E. Donahue and Lisa A. Donahue.

In December, 1978, the appellee commenced an action to quiet title against the appellants, and others. The appellee proceeded on two fronts in his action to quiet title. He sought to have the sheriff serve those of the defendants whose existence and whereabouts were known. He also petitioned the court for service by publication upon those defendants whose whereabouts were unknown or upon parties in interest whose identity was not known. On December 4, 1978, the court below pursuant to Pa.R.C.P. 1064 entered an order directing service of the complaint by publication in the Clearfield Progress newspaper upon parties in interest in the property “who are presently not of record and cannot be determined after due investigation of the available records, ... so that this will be notice at large to any defendants of whom the plaintiff may not have knowledge.” The order further provided that if the complaint was not pleaded to within twenty days after the publication of the notice that judgment may be entered against such defendants.

Appellee knew of the existence and whereabouts of the appellants and they were listed in the complaint as: “Wesley E. Donahue and Lisa A. Donahue, his wife, of 239 S. Highland Street, DuBois, Pennsylvania, 15801.” A copy of the complaint was delivered to the sheriffs office to be personally served on the appellants but apparently the sheriff’s office was unable to do so. Before the sheriff’s return was filed concerning the appellants, the court below on January 2, 1979, by President Judge Reilly, entered an order in the action confirming title in the appellee and stating that appellee: “has an indefeasible title to the property in question.” On January 16, 1979 the “sheriff’s return” was filed which stated inter alia that “after diligent search in my bailiwick I return the within action to quiet title ‘NOT FOUND’, as to Wesley E. and Lisa A. Donahue, defendants.”

On February 6, 1979 the appellee filed a praecipe for judgment with the prothonotary and in March, 1979, the appellants learned that judgment had been entered against them. On April 28, 1980, after many attempts to obtain counsel appellants filed their petition to open or vacate judgment which was denied by the court below.

Appellants contend that the judgment against them was void as they were not personally served with a copy of the complaint. Appellants argue in their brief that there should have been personal service made upon them as “during the pendency of this action defendant Wesley E. Donahue was listed in the DuBois telephone directory of September, 1978, and was listed in the Clearfield County voter’s registration roles.” We agree that there was not proper service on appellants. Pa.R.C.P. 1064(c) dealing with service of process in an action to quiet title states:

(c) If a defendant is dead or his identity or whereabouts is unknown, and an affidavit to that effect is filed, the plaintiff may serve the defendant by publication in such manner as the court by local rule or special order shall direct.

This rule is exemplary as actions to quiet title may involve real estate wherein the parties in interest are long dead, or whose whereabouts are unknown. The court below properly allowed service by publication as to “any defendants of whom the plaintiff may not have knowledge.” Appellants clearly did not fall within this class as the appellee was well aware of appellants’ existence and whereabouts. That the sheriff could not make service at the address furnished to him by appellee did not by that fact convert the appellants into persons “whose whereabouts [are] unknown.” If the sheriff visited the appellants’ residence when they were at work, or absent for some other reason, service by publication would not be permitted in place of personal service.

The appellants have appealed to this court from the dismissal by the court below of the petition to open or vacate judgment. The grant of a petition to open judgment is a matter of judicial discretion and an appeal to the court’s equitable powers. This discretion is to be exercised only when three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown and (3) the failure to appear can be excused. Further, a lower court’s refusal to open a judgment will not be reversed unless there has been an abuse of discretion. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). See also, Maurice Goldstein Co. v. Marogolin, 285 Pa.Super. 161, 427 A.2d 162 (1980).

In the instant case the appellants did not fall within the class of persons over whom the court permitted service by publication. Since there was no personal service on appellants the court did not have jurisdiction over them.

Our appeal is controlled by Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 466, 416 A.2d 549, 551 (1979) in which this court stated:

The lower court correctly noted that, ordinarily, three factors must coalesce before a default judgment can be opened: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.” McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973). Where, as here, however, a defendant asserts that he was never served with the complaint and therefore had no notice of the proceedings against him, we believe that a court must determine whether such assertion is true before considering any other factors. If valid service has not been made and the defendant is wholly without notice of the proceedings against him, then the court has no personal jurisdiction over the defendant and is without power to enter a judgment against him. (Emphasis added).

In Johnson v. Atlas Van Lines, 274 Pa.Super. 253, 418 A.2d 392 (1980) we stated at 274 Pa.Super. 257, 418 A.2d 394:

Because valid service was not made and appellant was wholly without notice of the proceedings against it, the district justice was without power to enter a default judgment herein. Accordingly, we must reverse the order of the lower court denying appellant’s petition to set aside service and open judgment, and remand to give appellant the opportunity to file an answer to appellee’s complaint.

See also, Kophazy v. Kophazy, 279 Pa.Super. 373, 421 A.2d 246 (1980).

Applying the test of Liquid Carbonic Corp., supra, we find that the judgment against appellants was invalid, as they were not properly served and the court below abused its discretion in refusing to open the judgment.

In the circumstances of this case, the appellants acted promptly to petition the court to open the default judgment after they learned that it had been entered. The requirement of a meritorious defense was clearly present as the court lacked jurisdiction over the appellants and there was also a valid excuse for failure to appear as the appellants were unaware of the action to quiet title until after default judgment had been entered.

Order dismissing the petition to open judgment vacated and judgment opened.

      . In American Vending Co., Inc. v. Brewington, 289 Pa.Super. 25, 432 A.2d 1032 (1981) this court considered Liquid Carbonic Corp., supra, as the appellants contended that they were not served with a copy of the complaint. On appeal from an order refusing to open default judgment, the court affirmed as there was sufficient evidence to sustain the determination of the court below that they had been properly served by the sheriff.


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    457 A.2d 114
    COMMONWEALTH of Pennsylvania v. Keith KRUT, Appellant. COMMONWEALTH of Pennsylvania v. Kevin J. KRUT, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 14, 1982.
    Filed Feb. 25, 1983.

      Thomas Orson Vreeland, Washington, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is a consolidated appeal from separate orders of court which dismissed the appeals filed by appellants, Keith and Kevin Krut, from their convictions before a district magistrate. For the reasons herein stated, the matter must be remanded for proceedings not inconsistent with this opinion.

Appellant, Keith Krut, was convicted of disorderly conduct, a summary offense, and sentenced to pay a fine and costs of $126.00. Appellant, Kevin Krut, was convicted of multiple offenses and was ordered to pay fines and costs totalling $310.00. Both of the appellants timely appealed their convictions to the Court of Common Pleas of Allegheny County. The trial court dismissed the appeals for the reason that the appellants had failed to appear in court on the scheduled trial date. The instant consolidated appeal then followed.

According to appellants, defense counsel requested a continuance on January 5, 1981, the day before the hearing was scheduled. At that time, the trial court advised counsel of its policy to deny continuances in statutory appeals. Appellants also contend that an explanation was given to the trial court for their absence; that is, each appellant “was out of the country pursuant to some unavoidable business.” Brief for Appellants at 4. We need not reach the merits of appellants’ argument because notwithstanding the reason for appellants’ absence, the trial court should have determined the facts of the case and rendered a verdict.

The instant appeal is controlled by a recent decision of this Court, Commonwealth v. Kyle, 307 Pa.Super. 446, 453 A.2d 668 (1982). In Kyle, this Court remanded the matter for a trial de novo because the trial court improperly dismissed Kyle’s appeal from a summary conviction when the appellant had failed to appear at the scheduled trial date. Our Court said the following:

“The action of the lower court [in] dismissing the appeal was improper. “This court has repeatedly held that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either ‘guilty’ or ‘not guilty.’ ” Commonwealth v. Gula, 300 Pa.Super. 445, [446], 446 A.2d 938 [939] (1982), citing Commonwealth v. Carter, 230 Pa.Super. 401, 326 A.2d 530 (1974); see also Commonwealth v. Gamarino, 299 Pa.Super. 144, 445 A.2d 189 (1982).
Normally, this defect alone would compel a remand for the entry of a proper verdict followed by appropriate post-trial motions in accordance with Pa.R.Crim.P. 1123. Commonwealth v. Gula, supra; Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d [1052] 1053 (1981). However, in the present case there is an additional ERROR. The trial judge compounded the problem by “dismissing” the de novo appeal without taking any testimony concerning the facts of the case.
The pertinent section of Pa.R.Crim.P. 1117 reads as follows:
a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict. (Emphasis added).
In the instant case, not only was there an improper verdict, but there was no determination of the facts of the offense. The trial court, even if empowered to proceed without a defendant, must determine the facts and render a verdict. Since this was not done, we are constrained to remand for a new trial. 307 Pa.Superior 446, 453 A.2d 668. (Footnotes omitted) (Emphasis in Original).

Accordingly, because appellants have perfected their appeals to the Court of Common Pleas of Allegheny County, the cases have to be retried “as if the prior summary proceeding^] had not occurred,” that is, de novo. Id. at ftn. 3. (emphasis added); see also, Commonwealth v. Moore, 226 Pa.Super. 58, 312 A.2d 422, 426 (1973) (trial de novo means “that the defendant’s case will in fact be tried in Common Pleas 'anew the same as if it had not been heard before and as if no decision had been previously rendered.’ 2 Am.Jur.2d Admin.Law § 698 (1962)”) (Spaeth, J., Dissenting and Concurring Opinion).

Accordingly, the orders of the court are reversed, and we remand for proceedings not inconsistent with this opinion. This Court does not retain jurisdiction.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

The majority today holds that in an appeal from a summary conviction before a magistrate, the court of common pleas is required to “determine the facts of the case and render [ed] a verdict”, even where the defendant fails to appear. Because I find no rational support for this conclusion in the law, and since the result cannot but have an adverse effect upon the administration of our criminal justice system, I must dissent.

The hearings on the statutory appeals were, on November 13, 1980, scheduled for trial de novo in the court of common pleas on January 6, 1981 before the then statutory appeals judge, the Honorable Nicholas P. Papadakos. However, on the date set for the hearings, both defendants failed to appear. Pursuant to appellants’ failure to appear for their appeals without having obtained a continuance, both appeals were dismissed on the scheduled trial date.

Relying on Commonwealth v. Kyle, 307 Pa.Super. 446, 453 A.2d 668 (1982), the majority here reverses the orders dismissing the appeals and remands, presumably, to require the common pleas court to proceed with a trial. In Kyle, the majority relied on Commonwealth v. Gula, 300 Pa.Super. 445, 446 A.2d 938 (1982); Commonwealth v. Carter, 230 Pa.Super. 401, 326 A.2d 530 (1974); and Commonwealth v. Gamarino, 299 Pa.Super. 144, 445 A.2d 189 (1982) in declaring that “in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either ‘guilty’ or ‘not guilty’.” Kyle, supra, 307 Pa.Super. 446, 453 A.2d 668. In all three of these cases, however, it is clear that this court was considering the proper disposition of a statutory appeal following a hearing on the merits. Neither Gula, nor Carter, nor Gamarino provide any support for the proposition, advanced by the majority here, that a judgment must be either “guilty” or “not guilty” where no trial de novo has been held.

In the Kyle case, the majority seemingly interpreted Pa.R.Crim.P. 1117 as requiring the de novo court to determine the facts and render a verdict. After citing the following sentence from the rule, with emphasis:

The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict[,]

the Kyle majority went on to conclude:

In the instant case, not only was there an improper verdict, but there was no determination of the facts of the offense. The trial court, even if empowered to proceed without a defendant, must determine the facts and render a verdict.

Kyle, supra, 307 Pa.Super. 446, 453 A.2d 668 (footnotes omitted, emphasis in original).

With this proposition of law, I am unable to agree. The Kyle majority concedes, in a footnote, that our earlier decision in Commonwealth v. Smith, 237 Pa.Super. 506, 352 A.2d 90 (1975), presented identical facts to those confronting the Kyle court but goes on to assert that our holding in Smith, to the effect that Rule 1117 does not require the Commonwealth to proceed with trial in the defendant’s absence, was overruled by this court’s decision in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981). Since the Koch court was primarily concerned with the proper interpretation of Pa.R.Crim.P. 1123 providing for written motions for new trial and in arrest of judgment, and the application of Rule 1123 to appeals from summary convictions, and since the facts in Koch involved a full hearing on the merits in the common pleas court, I am unable to accept the conclusion of my colleagues in the recent Kyle decision that Commonwealth v. Smith, supra, has been “effectively overruled.”

On the contrary, I believe that the analysis of my brother, Judge CAVANAUGH, in his dissenting opinion filed in Kyle is irrefutable, and that the decision of the majority in that case should, and must, be re-examined. Admittedly, the facts presented on this appeal are indistinguishable from those which confronted the Kyle court. But the same must be said for the facts which arose in Commonwealth v. Smith, supra. I’m convinced that we were wrong in departing from the clear guideposts erected in Smith, and that that departure resulted from misreading signs intended to assist the judicial traveler along a road ending at a different, unrelated destination.

Traveling down the well-beaten path of appeals from summary conviction where no hearing has been held, the end of the journey seems clear to me. To quote Judge CAVANAUGH:

The instant case was not heard de novo. The appellant did not appear in court when his case was called and ... did nothing to pursue his right on appeal. Since he did not see fit to appear at trial there is no obligation on the court to proceed to trial in the defendant’s absence. The majority opinion overlooks the fact that the appellant stands convicted of a summary offense. In the absence of pursuing his appeal his conviction stands....
The majority would require the totally futile act of having a trial following a summary conviction, in every case where the defendant appeals to the courts of common pleas but does not deign to attend his trial, notwithstanding his demand for a trial implicit in his appeal. This would require a blatant waste of judicial manpower.

Commonwealth v. Kyle, supra, Dissenting Opinion, Cavanaugh, J., 307 Pa.Super. 446, 453 A.2d 668.

Because I believe that the courts of common pleas are fully justified in dismissing statutory appeals in a proper case, Commonwealth v. Smith, supra, 237 Pa.Super. at 509, 352 A.2d at 91, I would address the sole issue raised by the appellants on these appeals: Did the trial court abuse its discretion by not granting a continuance.

On the day before the hearing, defense counsel went to the judge’s chambers for an unrecorded meeting. Defense counsel requested the court to grant a continuance on the grounds that the defendant was out of the country, but the request was denied. On the scheduled hearing date, after the cases were called, the court dismissed the defendants’ appeals for the reason that they had failed to appear.

In their briefs, appellants allege that at the conference in the judge’s chambers the court declared that it had a policy to deny continuances brought under statutory appeals and further that counsel’s efforts in explaining the reasons for the continuance would be fruitless (Appellants’ Briefs at 4).

These allegations are only to be found in the appellants’ briefs. They are absent from the record. The appellant has the responsibility to assume that his claims of error are secured on the record. See Commonwealth v. Kollock, 246 Pa.Super. 16, 22-3, 369 A.2d 787, 790-91 (1977). Appellate courts are to decide cases based only on what the record contains, and may not consider assertions raised by briefs of counsel. Dile v. Dile, 284 Pa.Super. 459, 465 n. 5, 426 A.2d 137, 141 n. 5 (1981) (per curiam); Marine Bank v. Huhta, 279 Pa.Super. 130, 139 n. 5, 420 A.2d 1066, 1070 n. 5 (1980).

The record demonstrates that the appeals were dismissed following the defendants’ failure to appear on the scheduled date. There was no error in denying the continuance. The trial court has the discretion to grant or refuse a continuance, and its decision will not be reversed except in clear cases of abuse. Blackledge v. Commonwealth, Pennsylvania State Police, 62 Pa.Commw. 188, 191-92, 435 A.2d 309, 311 (1981); Krull v. Krull, 236 Pa.Super. 207, 210, 344 A.2d 619, 620 (1975).

Although not raised by appellants, I believe that the more appropriate question for review, on the records before us, is whether the trial court palpably abused its discretion by dismissing the appeals after the appellants did not appear or answer when the cases were called on the scheduled hearing date. My review of the record satisfies me that the trial court did not abuse its discretion.

Since I find no abuse of the trial court’s discretion, and since I am unable to agree with my colleagues that these appeals should be returned to the trial court for mandatory hearings without regard to the efforts of appellants in pursuit of their appeals, and since I believe that the order under review should be affirmed, I hereby register my dissent.

      . 18 Pa.C.S.A. § 5503.

      . The offenses were driving an unregistered vehicle (75 Pa.C.S.A. § 1301), fleeing or attempting to elude a police officer (75 Pa.C.S.A. § 3733(a)), operating a motorcycle without an inspection sticker (75 Pa.C.S.A. § 4703(a)), operating a motorcycle without wearing protective headgear or an eye-protective device (75 Pa.C.S.A. § 3525(a) and (b)), and driving on the left side of the roadway (75 Pa.C.S.A. § 3301(a)).

      . The record shows that appellant, Kevin Krut, filed his direct appeal in the Commonwealth Court which then transferred the appeal to this Court since that appeal involved the same issues of fact and law as the appeal launched by appellant, Keith Krut. See Pa.R.A.P. 752(a).

      . We note that both briefs for the individual appellants contain a verbatim Statement of the Case, each contending that "the defendant was out of the country.” Since the certified record contains no testimony on this point, we do not reach the question of whether either, or both, of the appellants were out of the country.


author: HESTER, Judge:

text:
    457 A.2d 118
    COMMONWEALTH of Pennsylvania v. Victor CORNISH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 2, 1982.
    Filed March 4, 1983.

      Michael H. Van Buskirk, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   HESTER, Judge:

The appellant, Victor S. Cornish, was charged with Burglary, Criminal Trespass, Possessing an Instrument of Crime, and Attempted Theft by Unlawful Taking or Disposition on December 1, 1978. Appellant failed to appear at his preliminary hearing on December 6, 1978; consequently, a bench warrant was issued for his arrest. On March 14, 1980, the appellant was arrested and the bench warrant was withdrawn.

On May 15, 1980, the Commonwealth filed a Petition to Extend the trial run-date pursuant to Pa.R.Crim.P. 1100(c). This petition was granted and the time for commencement of trial was extended to September 6, 1980. On July 16, 1980, the Commonwealth filed a second Petition to Extend. This too was granted and trial was further extended to October 15, 1980.

Trial actually commenced on September 17, 1980; following a bench proceeding, the appellant was found guilty of all charges. Post trial motions were filed and denied.. On November 18, 1980, the appellant was sentenced to two concurrent terms of imprisonment of two (2) to five (5) years on the Possessing an Instrument of Crime, Burglary, and Attempted Theft bills. A suspended sentence was issued on the Criminal Trespass bill. This appeal from the Judgment of Sentence followed.

With the criminal complaint being filed December 1, 1978, the mechanical run date of 180 days was May 30, 1979. The actual trial did not commence until the passage of 655 days from the filing of the complaint. Rule 1100(c)(1) empowers the prosecution with the right to apply to the court for an order extending the time for commencement of trial; however, in addition to setting forth and proving the facts in support of an extension, the Commonwealth must file said application prior to the expiration of the original period for the commencement of trial. The Commonwealth filed its application eleven and one-half months following the 180-day mechanical run date; therefore, unless enough time is excluded from the period lapsing between the filing of the complaint and the filing of the first application to extend, Rule 1100 was violated and the appellant should be discharged.

Pa.R.Crim.P. 1100(d)(3)(i) excludes that period of delay resulting from the unavailability of the defendant or his attorney. The Commonwealth maintains that the appellant was unavailable for the period commencing with his failure to appear for his preliminary hearing on December 6, 1978 and terminating with his apprehension on unrelated charges on March 14, 1980. If the Commonwealth’s position is correct, the exclusion of this period of 464 days would render not only their application to extend but the actual commencement of trial in conformity with the 180-day mandate. Conversely, the appellant maintains that this 464 day period is not properly excluded due to the fact that the Commonwealth did not prove that a subpoena was duly served upon the appellant notifying him of his preliminary hearing date. The appellant concedes, however, that at the Rule 1100 hearing on July 19, 1980, the Commonwealth produced a bail document signed by him on the day of arrest and reflecting the preliminary hearing date. We primarily concern ourselves, then, with whether the appellant received proper notice of the December 6, 1978 preliminary hearing date.

Pa.R.Crim.P. 309(b)(1) makes reference to the manner of service; however, no guidelines for the form of notice to appear for a preliminary hearing are provided:

(b) Except as otherwise provided in these rules, any notice, paper or document for which service is required, may be served:
(1) by handing a copy personally to counsel or defendant;

In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the United States Supreme Court considered what form of service is required to meet the due process of law mandate. Instead of upholding specific forms and manners of service and denigrating others, the Mullane court viewed the impending circumstances determinative of valid or invalid service of process. Accordingly, the Mullane court made the following observations:

“... 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.” Id., 339 U.S. at 314, 70 S.Ct. at 657.
The notice must be of such nature as reasonably to convey required information, and it must afford reasonable time for those interested to make their appearance. Id., 339 U.S. at 314, 70 S.Ct. at 657.
The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Id., 339 U.S. at 315, 70 S.Ct. at 657-58.

In light of the approach taken in Mullane, supra, it is unimportant in itself whether the notice takes the form of personal service, general publication, oral notification, or regular or certified mail. Any notice, regardless of form, may satisfy due process of law. Indeed, decisional law bears evidence to this maxim. See Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982); Commonwealth v. Snyder, 280 Pa.Super. 127, 421 A.2d 438 (1980); Commonwealth v. Bundridge, 268 Pa.Super. 1, 407 A.2d 406 (1979); Mullane v. Central Hanover Bank & Trust Co., supra.

Appellant’s bail certificate contains the date and location of the preliminary hearing. It alone meets the “circumstances” test of Mullane, supra, in that it informed the appellant of the pending criminal proceedings; it allowed him to prepare for and raise arguments at the preliminary hearing; and, it was not substantially less likely to notify than a subpoena. Although some doubt remains as to whether the appellant actually received a copy of the bail certificate, inasmuch as it was signed by “Robert Cornish” as surety, the appellant does not deny receipt of the bail certificate or, for that matter, notice of the preliminary hearing date. Appellant’s only objection here concerns the form of notice and we heretofore find that to raise an irrelevant issue. Furthermore, notice to his surety satisfies Mullane standards. We note further that, at the sentencing proceeding, the appellant does not deny, in his reply to a court inquiry, the receipt of notice:

Q. Well, I don’t think you reported since December of ’78.
A. Yes, at the time when I didn’t come for the hearing the parole officer called me up and told me to come in. I said okay. He said bring your bail papers. I’m going to have to lock you up. I couldn’t force myself to go in. I wanted to several times. As a matter of fact, I went into my probation warrant (sic) after that because I was then negligent in reporting to the probation department and—. N.T. November 18, 1980, pp. 19-20.

Appellant’s reply can be construed to constitute an admission; it certainly does not advance his burden on appeal.

Having found adequate notice of the preliminary hearing, the entire 464 day period running its course between December 6, 1978 and March 14, 1980 is properly excluded from the 180-day calculation. The appellant accepted the terms of bail and was therefore responsible for appearing at the next scheduled proceeding. His willful failure to do so affords him no speedy trial protection under Rule 1100. See Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978).

Appellant also claims that he did not receive notice of the Rule 1100 extension hearing on July 10, 1980, thereby denying him the right to argue his ignorance of the preliminary hearing on December 6, 1978. The court file contains a subpoena setting forth the date, time and place of the Rule 1100 hearing. Moreover, the appellant signed the subpoena in acknowledgement of having received notice.

It should be further noted that appellant was represented by court-appointed counsel at the Rule 1100 hearing. His absence then becomes inconsequential so long as he was properly represented. See Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977).

Judgment of sentence affirmed.


author: WIEAND, Judge: BECK, Judge,

text:
    457 A.2d 121
    COMMONWEALTH of Pennsylvania v. Regis Paul ENGLERT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1981.
    Filed March 4, 1983.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.

      Louis J. Krzemien, Jr., Pittsburgh, for appellant.

      Kemal Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

Is a district justice who finds a motorist guilty of a summary violation of Section 3743 of the Vehicle Code required to advise the motorist of a potential license suspension by the Department of Transportation in order that the appeal period begin to run? The trial court held that such a requirement did not exist and refused to allow an appeal nunc pro tunc five months after the conviction and sentence. We affirm.

Regis Paul Englert was found guilty, after hearing on December 26, 1979, of failing to stop at the scene of an accident in violation of 75 Pa.C.S.A. § 3743(a). He paid the fine imposed by the district justice and took no appeal. On May 27, 1980, Englert filed a petition requesting leave of court to file an appeal nunc pro tunc. In support of this request he alleged that he had been unaware that a license suspension would follow his conviction. In fact, his license had been suspended for six months on April 15, 1980 pursuant to Section 1532(b)(1) of the Vehicle Code, 75 Pa.C. S.A. § 1532(b)(1). This section directs the Department of Transportation to suspend the operating privileges of a driver for six months upon conviction of Section 3743 of the Code. The trial court initially allowed the appeal but thereafter reconsidered and granted a Commonwealth motion to quash. This appeal followed.

When an Act of Assembly fixes the time within which an appeal may be taken, courts are without power to extend the period or allow an appeal nunc pro tunc absent fraud or its equivalent or some breakdown in the court’s operation. West Penn Power Company v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Commonwealth v. Horner, 449 Pa. 322, 324, 296 A.2d 760, 762 (1972); Commonwealth v. Bey, 437 Pa. 134, 137 and n. 4, 262 A.2d 144, 145 and n. 4 (1970); Hesson v. Weinrebe, 288 Pa.Super. 216, 218, 431 A.2d 1015, 1016 (1981); Appeal of Girolamo, 49 Pa.Cmwlth. 159, 164, 410 A.2d 940, 943 (1980); MacKanick v. Rubin, 244 Pa.Super. 467, 470-472, 368 A.2d 815, 817-818 (1976); Commonwealth v. Lord, 230 Pa.Super. 96, 100, 326 A.2d 455, 458 (1974); Klugman v. Gimbel Brothers, Inc., 198 Pa.Super. 268, 275, 182 A.2d 223, 226 (1962).

Judicial extensions of time, in the absence of fraud or its equivalent, are specifically prohibited by Section 5504 of the Judicial Code, which provides:

§ 5504. Judicial extension of time

(a) General rule.—Except as provided in section 1722(c) (relating to time limitations) or in subsection (b) of this section, the time limited by this chapter shall not be extended by order, rule or otherwise.
(b) Fraud.—The time limited by this chapter may be extended to relieve fraud or its equivalent, but there shall be no extension of time as a matter of indulgence or with respect to any criminal proceeding.

Appeals from summary convictions are to be filed within thirty days. See: Pa.R.Crim.P. § 67(c) and 42 Pa.C. S.A. § 5571(b). Appellant’s petition for leave to appeal nunc pro tunc was filed one hundred and fifty-two days after he had been convicted of a violation of the Vehicle Code. He did not allege that his failure to file a timely appeal had been caused by “fraud or its equivalent” or because of a “breakdown in the court’s operation.” He contended merely that he had been unaware that the Department of Transportation would suspend his operating privileges because of such conviction.

The suspension of operating privileges is a collateral consequence of a conviction for failing to stop at the scene of an accident in violation of 75 Pa.C.S. § 3743. It is a consequence, civil in nature, whose imposition has been vested in an administrative agency over which the magistrate had no control and for which he had no responsibility. “Courts have ... consistently held that a trial court’s failure to inform a defendant of [a] potential collateral consequence does not invalidate [a plea of guilty].” Commonwealth v. Wellington, 305 Pa.Super. 24, 27, 451 A.2d 223, 224 (1982). Accord: Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976); Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir.1973), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973); Tindall v. United States, 469 F.2d 92 (5th Cir.1972); Meaton v. United States, 328 F.2d 379 (5th Cir.1964), cert. denied, 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965); United States v. Cariola, 323 F.2d 180, 186 (3rd Cir.1963); Redwine v. Zuckert, 115 U.S.App.D.C. 130, 132, 317 F.2d 336, 338 (1963); Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973); People v. Thomas, 41 Ill.2d 122, 125-26, 242 N.E.2d 177, 179 (1968); State v. Reid, 148 N.J.Super. 263, 265-66, 372 A.2d 626, 628 (1977). If unawareness of .collateral consequences will not prevent a knowing and intelligent plea of guilty, it is difficult to comprehend how such unawareness can. adequately excuse a failure to file a timely appeal from a summary conviction. See: Commonwealth v. Meshey, 278 Pa.Super. 73, 419 A.2d 1363 (1980).

One can possibly contemplate many collateral consequences that may flow from a criminal conviction. To permit an appeal period to be extended whenever a defendant has failed to contemplate or has not been judicially advised of all collateral consequences of a conviction would be unrealistic and would, to a large extent, nullify established appeal periods. We conclude, therefore, that a failure to anticipate collateral consequences is an inadequate basis on which to allow an untimely appeal.

Appellant has not contended that he was “prevented from appealing by reason of fraud or a wrongful or negligent act of a court official____” Conrad v. Kemmerer, 301 Pa.Super. 410, 412, 447 A.2d 1032, 1034 (1982). Thus, there is neither legal nor equitable reason for allowing an untimely appeal, and the trial court was correct in refusing to allow appellant to proceed nunc pro tunc.

The order is affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent. The issue presented on appeal is: Did appellant’s failure to appeal his summary conviction of December 26, 1979 within the statutory thirty day period constitute a waiver of his right of appeal where: (1) at the time that the district justice announced the penalty, appellant had no actual knowledge that a mandatory consequence of his conviction was suspension of his operator’s license by PennDOT; and (2) appellant was informed of this suspension after the thirty day appeal period for his summary conviction had run?

Because we conclude that in the circumstances alleged here, appellant did not waive his right to appeal, we would reverse and remand.

The right to appeal from a summary conviction in this Commonwealth is founded on the Pennsylvania Constitution and state statute. Pa. Const, art. V, § 9; 42 Pa.C.S.A. § 5105(a). Pa.R.Crim.P. No. 67(c) provides that a person must perfect an appeal from a summary conviction within thirty days from the date of the conviction. It is well settled, however, that a convicted person who did not exercise an appeal right and whose failure to appeal was not knowingly and voluntarily waived is entitled to appeal nunc ;pro tunc. Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982); Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971); Commonwealth v. Gemberling, 443 Pa. 431, 279 A.2d 40 (1971); Commonwealth v. Musser, 214 Pa.Super. 128, 251 A.2d 664 (1969), rev’d on other grounds, 437 Pa. 131, 262 A.2d 678 (1970); Com. ex rel. Scoleri v. Myers, 423 Pa. 558, 225 A.2d 540 (1967); Com. ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A.2d 811 (1966); U.S. ex rel. Duncan v. Brierley, 277 F.Supp. 751 (E.D.Pa.1967).

At the hearing in the Court of Common Pleas, appellant contended that at the time of his conviction, he was unaware that four months after his conviction and payment of fine, he would be subjected to a mandatory suspension of his operator’s license. Since he did not have this actual knowledge until after the appeal period had run, he could not have understood the importance of his appeal right. Therefore, his failure to appeal within the statutory appeal period did not constitute a waiver of his appeal right.

In support of this contention, appellant’s counsel offered testimony to show: (1) that in the period from the issuance of the Summons on October 12, 1979 until April 15, 1980, when appellant received notification that his operator’s license had been suspended, he did not have actual knowledge that a Section 3743 conviction entailed a mandatory suspension of his operator’s license; (2) that appellant received no notice that the charge brought against him in the summons, if proven, entailed a mandatory suspension of his license until he received the PennDOT notification on April 15, 1980, after the statutory appeal period had run. (N.T., 7/30/80, 3, 4, 5.)

Appellee contends that appellant, as a licensed Pennsylvania driver, is charged with knowing that a Section 3743 conviction entails a mandatory six month’s suspension of his operator’s license. Appellee’s Brief, 9. It is well settled that in Pennsylvania, persons are, as a general rule, charged with knowledge of the prohibitions contained in criminal statutes or statutes in exercise of the police power. Commonwealth v. Mittelman, 154 Pa.Super. 572, 36 A.2d 860 (1944); Commonwealth v. Hendrie, 97 Pa.Super. 328 (1929); Weston v. Commonwealth, 111 Pa. 251, 2 A. 191 (1888); Commonwealth v. Massini, 29 Leh.L.J. 467, 471 (1962); Cf. Kratz v. Kratz, 477 F.Supp. 463, 480 (E.D.Pa. 1979).

It is clear that persons are charged with general knowledge that violators of such statutes expose themselves to sanctions of some kind. We do not believe however, that persons may be charged with exact knowledge of the fines and/or administrative actions entailed by conviction for violating these statutes. This is especially true in the instant case where the fine and license suspension were imposed at two separate times, the first within the statutory appeal period and the second after the appeal period had run. Here, appellant alleges that the district justice’s imposition of a fine without more, after the hearing, gave appellant reason to believe that there would be no further state action against him stemming from this Vehicle Code conviction.

Upon consideration of appellant’s offer of proof, we conclude that he alleged facts which, if true, establish that he did not make a knowing and voluntary waiver of a statutory and constitutional right of appeal. If there was no waiver, he would be entitled to appeal his summary conviction nunc pro tunc.

We base this conclusion on the nature of appellant’s right of appeal, Pennsylvania law governing waiver of state constitutional rights, and the importance of the legal interest that individuals have in their driver’s licenses.

A right to appeal from all summary convictions is a long standing right guaranteed to all residents of this Commonwealth by the Pennsylvania Constitution. Article V, § 9 of the state constitution declares that there “shall be a right of appeal in all cases to a court of record from a court not of record____” Pa. Const. art. V, § 9, Commonwealth v. Mitchell, 242 Pa.Super. 543, 364 A.2d 406 (1976). This right has been statutorily implemented by Section 5105(a) of the Judicial Code, 42 Pa.C.S.A. § 5105(a). Moreover, this right, although waivable, is stringently safeguarded. The presumption is against waiver of a constitutional right. Commonwealth v. Hill, 231 Pa.Super. 371, 331 A.2d 777 (1974); Commonwealth v. Mika, 277 Pa.Super. 339, 419 A.2d 1172 (1980). It is well established that a finding of waiver of an appeal right is not to be made lightly and every reasonably presumption against the waiver will be indulged. Commonwealth v. Wallace, 229 Pa.Super. 172, 323 A.2d 182 (1974); Com. ex rel. Scoleri, supra; Com. ex rel. Cunningham v. Maroney, supra; Com. ex rel. Edowski v. Maroney, 423 Pa. 229, 223 A.2d 749 (1966).

To determine whether there has been a waiver of a right guaranteed by the Pennsylvania Constitution, we apply the classical definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938), “an intentional relinquishment or abandonment of a known right or privilege.” Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978); Norman, supra. Our courts have consistently held that a defendant can not knowingly and voluntarily waive a right even when he knows of its existence and the conditions of its exercise, when he has no actual knowledge of the risks or consequences entailed by forfeiting the right. Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971). See Commonwealth v. Mika, supra; Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978); Commonwealth v. Carey, 235 Pa.Super. 366, 340 A.2d 509 (1975).

An individual’s interest in his operator’s license is sufficiently important that every person convicted of an offense entailing a mandatory license suspension should have actual knowledge of that consequence at the time he must decide whether to exercise his appeal right. It has been recognized that “the right to drive encompasses very important interests to most citizens today.” Calabi v. Malloy, 438 F.Supp. 1165, (D.Vt.1977). Once a person has obtained an operator’s license in the Commonwealth of Pennsylvania, he possesses an interest whether it be denominated a right or privilege sufficiently important so that it can not be terminated without the procedural due process required by the Fourteenth Amendment to the U.S. Constitution. Corn., Dept. of Transp., etc. v. Quinlan, 47 Pa.Cmwlth. 214, 408 A.2d 173 (1979); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). In light of the important interest involved, no person convicted of an offense entailing a mandatory license suspension can validly waive an appeal right absent actual knowledge that his or her interest in a driver’s license is at risk.

We would reverse the lower court’s order quashing appellant’s appeal nunc pro tunc, and direct the lower court to hold an evidentiary hearing concerning whether appellant validly waived his right to appeal.

      . This section provides as follows:
      The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.

      . It may also be observed that appellant learned of the suspension on April 15, 1980, and, again, more than thirty days expired before he attempted to appeal nunc pro tunc.

      . 75 Pa.C.S.A. § 1532(b)(1) states in pertinent part: “Suspension. (1) The department shall suspend the operating privilege of any driver for six months upon receiving a certified record of the driver’s conviction of any offense under the following provisions: ... Section 3743 (relating to accidents involving damage to attended vehicle or property) ■ • • •”

      . In the instant case, appellant allegedly learned on April 15, 1980 that PennDOT would suspend his operator’s license as a result of his Section 3743 conviction. On May 27, 1980, within a reasonable time after appellant became aware of the importance of his appeal right, he filed his petition for permission to appeal nunc pro tunc and his statutory appeal for a trial de novo. Miranda, supra; Norman, supra; Gemberling, supra; Musser, supra; Cunningham, supra; Duncan, supra. Compare, Appeal of Girolamo, 49 Pa.Cmwlth. 159, 410 A.2d 940 (1980); Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979); Nixon v. Nixon, 329 Pa. 256, 198 A.2d 154 (1938).

      . Section 5504 of the Judicial Code (Judicial Extension of Time) is inapplicable in the instant case, 42 Pa.C.S.A. § 5504. Appellant’s argument is not predicated on judicial extension of time but on non-waivability of his right to appeal. If appellant is to be granted an appeal nunc pro tunc, it must be shown that he did not knowingly waive his constitutional right of appeal.

      . We note that appellant chose not to appeal from PennDOT’s suspension of his operator’s license. It was recognized that such an appeal would be futile, because PennDOT’s decision to suspend appellant’s license was not discretionary, but statutorily mandated. 75 Pa.C.S.A. § 1532(b)(1); Commonwealth v. Von Altimus, 49 Pa.Cmwlth. 245, 410 A.2d 1303 (1980); Brewster v. Commonwealth, 52 Pa.Cmwlth. 112, 415 A.2d 922 (1980). The only issue in such an appeal would have been whether appellant had been in fact convicted of violating Vehicle Code Section 3743. Com., Dept. of Transp., etc. v. Adams, 53 Pa. Cmwlth. 636, 419 A.2d 233 (1980); Com., Dept. of Transp., etc. v. Lea, 34 Pa.Cmwlth. 310, 384 A.2d 269 (1978).

      . Since appellant was not permitted to put on testimony at the hearing before the trial court, the court made no findings of fact on the issue of whether appellant made a valid waiver of his right of appeal. For purposes of this appeal only, we must accept as true the facts alleged by appellant in his offer of proof.

      . See Pa. Const., 1874, art. V, § 14; Commonwealth v. McCann, 174 Pa. 19, 34 A. 299 (1896); Com. ex rel. Marsh v. Lindsey, 130 Pa.Super. 448, 198 A. 512 (1938), Commonwealth v. Bey, 150 Pa.Super. 93, 27 A.2d 457 (1942).

      . 42 Pa.C.S.A. § 5105(a) states in pertinent part: "There is a right of appeal under this subsection from the final order ... of every: (1) Court or district justice of this Commonwealth to the court having jurisdiction of such appeals.” (Emphasis added.)

      . The majority characterizes the license suspension as a collateral consequence. The dissent views the suspension as a mandatory consequence of the Section 3743 conviction. Indeed, under Section 1532(b)(1), the Vehicle Code mandates both the suspension and the length of the suspension for all persons convicted of Section 3743 violations, with no discretion left to PennDOT as to whether or not to suspend or to alter the length of the suspension.

      . Our holding concerning appellant’s claim to appeal nunc pro tunc from his summary conviction is based on the violation of a constitutional right. We do not impose on the Commonwealth or a district justice a duty to inform persons convicted of Section 3743 offenses that their conviction entails a mandatory driver’s license suspension by PennDOT. However, we would anticipate that the Commonwealth would provide appropriate notice on the citation received by defendants as to the consequences of the conviction to foreclose persons convicted of summary offenses from circumventing the time limitations of Pennsylvania Rule of Criminal Procedure No. 67(c) by asserting spurious non-waiver claims that could be difficult to disprove.

      . The Commonwealth would bear the burden of showing by a preponderance of the evidence, Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975), that appellant validly waived this right.


author: LIPEZ, Judge:

text:
    457 A.2d 127
    COMMONWEALTH of Pennsylvania v. Vallie WATSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 7, 1981.
    Filed March 4, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   LIPEZ, Judge:

In a nonjury trial, defendant was convicted on two counts of corruption of minors, 18 Pa.C.S. § 3125(a), and two counts of indecent assault, 18 Pa.C.S. § 3126(1) (Supp.1982-1983) involving two victims. After denial of post-verdict motions, the trial judge imposed sentences of five years psychiatric probation for each count of corruption of minors, and two years psychiatric probation for each count of indecent assault, all sentences to run concurrently. In this appeal from that judgment of sentence, defendant raises three issues.

Defendant claims that the trial court erred in granting the Commonwealth’s petition for an extension under Rule of Criminal Procedure 1100(c), and in denying defendant’s motion to dismiss under Rule 1100(f). We find that the trial judge’s opinion adequately discusses and disposes of this issue, to which we have nothing to add.

Defendant contends that his speedy trial motion should have been granted under Rule of Criminal Procedure 6013, which provides a 120-day rule for commencement of trial in Philadelphia Municipal Court, in contradistinction to the 180-day rule applicable in common pleas court under Rule 1100. Defendant argues that Rule 6013 was applicable to these proceedings, even though they occurred in common pleas court, because he had a right to a Municipal Court trial, which had not been properly waived. Defendant did not raise the specific issue of the applicability of Rule 6013 in either his original or amended post-verdict motions, and hence this issue is waived. Commonwealth v. Davenport, 307 Pa.Super.Ct. 102, 112, 452 A.2d 1058, 1062 (1982).

Defendant’s last contention is that the indecent assault convictions should have merged for sentencing purposes with the convictions for corruption of minors, because the convictions were based on the same acts. Although this issue is raised for the first time on appeal, it is not waived. Commonwealth v. Smith, 499 Pa. 507, 508, 454 A.2d 1 (1982); Commonwealth v. Roach, 307 Pa.Super.Ct. 506, 511 & n. 2, 453 A.2d 1001, 1003 & n. 2 (1982). We agree that the court below could not sentence defendant on both the indecent assault convictions and the convictions for corruption of minors. The record establishes that as to each of defendant’s two victims, the count for corruption of minors was based on essentially the same criminal act as the count for indecent assault. See Commonwealth v. Stafford, 307 Pa.Super.Ct. 278, 284, 453 A.2d 351, 353-54 (1982); see also Johnson v. Commonwealth, 499 Pa. 380, 453 A.2d 922 (1982).

Defendant could only be sentenced for the most serious offense, the one with the greater possible maximum penalty. Commonwealth v. Boerner, 281 Pa.Super.Ct. 505, 518-20, 422 A.2d 583, 590-91 (1980); see Commonwealth v. Maguire, 307 Pa.Super.Ct. 80, 85, 452 A.2d 1047, 1050 (1982). Both indecent assault and corruption of minors are misdemeanors of the second degree, 18 Pa.C.S. §§ 3125(a), 3126, and each carries a maximum sentence of two years, 18 Pa.C.S. § 1104(2). For each of the two criminal acts, defendant could properly be sentenced for either corruption or indecent assault, but not both.

The two-year probationary sentences for indecent assault equal the statutory maximum, while the five-year probationary sentences for corruption of minors exceed the statutory maximum. When the illegal sentences for corruption of minors are reduced, as they must be, to the statutory maximum of two years, they equal the sentences for indecent assault. Had the trial judge known she could properly impose only a total of two sentences with a two-year maximum for each, she might have made these two sentences consecutive rather. than concurrent. Since we cannot determine whether the sentences for corruption and indecent assault influenced each other, we shall vacate all judgments of sentence, and remand for resentencing only on either corruption or indecent assault for each of the two criminal acts.

Judgments of sentence vacated, and case remanded for resentencing.


author: PRICE, Judge:

text:
    457 A.2d 509
    COMMONWEALTH of Pennsylvania v. Lee N. CELANE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Nov. 19, 1982.
    Reargument Denied Jan. 27, 1983.
    Petition For Allowance of Appeal Denied March 15, 1983.

      Harold Gondelman, Pittsburgh, for appellant.
    James A. Meyer, District Attorney, Ridgway, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   PRICE, Judge:

Appellant, Lee N. Celane, was convicted by a jury of failure to make required disposition of funds received and of misapplication of entrusted property, while being acquitted on an additional charge of theft by deception. On this appeal from the judgment of sentence, entered October 3, 1979, appellant contends that: (1) the district attorney had a conflict of interest requiring reversal of his conviction; (2) acquittal on the count of theft by deception precludes his conviction on the other two counts; (3) the court below erred in ordering him to make restitution in the amount of $209,830.63. We find all appellant’s contentions to be without merit, except insofar as the restitution order apparently reflects a clerical error in the amount of $63.89.

Appellant was the owner and operator of Regional Contractor’s Association (“Regional”), an organization joined by small businessmen for the purpose of obtaining health and accident insurance at reduced group rates for themselves and their employees. From January, 1975 until April 1, 1977, Regional members were insured by, and paid premiums directly to Blue Cross/Blue Shield. In December of 1976, Blue Cross notified Regional members that their coverage through Regional would be terminated, effective April 1, 1977.

The Commonwealth presented witnesses who testified that appellant assured members (as well as his own employees who were to pass this information on to members) that the same insurance protection would be provided through Lincoln National Life Insurance Company (“Lincoln”) as had been provided by Blue Cross/Blue Shield, (see, e.g., N.T. Trial 495-496, 566-567, 700). According to the Commonwealth’s witnesses, they were informed that this coverage was to be at the same rates charged by Blue Cross/Blue Shield, and that members would receive an additional $5,000 life insurance policy at no extra charge (e.g. N.T. Trial 496).

Mr. Celane did meet with representatives of Lincoln, but was told that coverage could not be provided. (N.T. Trial 593-594). The accountant retained by the D.A.’s office to review Regional’s books testified that from March, 1977 to January, 1978, $209,766.74 was paid by 133 members to Regional (N.T. Trial 960). Regional Members testified that they thought the payments were for premiums to Lincoln, and that they would not have paid these sums except to obtain insurance with a reputable licensed company {e.g. N.T. Trial 913, 932). Appellant maintained to the contrary that he had informed all members that the group was to be self-insured, and that they would be part of a multiple employer trust.

A portion of the money received from members was used to pay some medical claims submitted. (N.T. Trial 964). The balance appears to have been used by Mr. Celane and his family personally {e.g. N.T. Trial 945-949), and for operating expenses of Regional. After complaints by Regional members as to non-delivery of policies and failure to pay outstanding claims, an investigation was conducted, as a result of which defendant was charged.

At the voir dire of the jury, the district attorney told the court and defense counsel that he had represented thirteen of the 133 Regional members listed in the information. His representation of these businesses included the preparation of wills and deeds and various business matters, none of which were related in any way to any civil claims arising out of the factual situation of this criminal case. The district attorney sent letters to all 133 Regional members, on a periodic basis, including the thirteen he had previously represented, keeping them advised of the status of the case.

After a jury trial, appellant was acquitted of theft by deception, but convicted of theft by failure to make required disposition of funds received and of misapplication of entrusted property. Appellant’s post-trial motions were denied, and sentence was entered on October 3, 1979. Mr. Celane was ordered to pay the costs of prosecution, to make restitution in the amount of $209,830.63 for the benefit of the 133 Regional members who made payments to him, and sentenced to a prison term of 3V2 to 7 years.

Appellant’s contention that the district attorney had a conflict of interest such as to require reversal of his conviction is unfounded. While it is, of course, improper for a prosecuting attorney to permit even the appearance of a conflict of interest, in order to obtain a new trial, appellant must establish not only that a conflict actually existed, but also that this conflict resulted in specific prejudice to him. Commonwealth v. Stoner, 264 Pa. Superior Ct. 136, 399 A.2d 703 (1979); Commonwealth v. Dunlap, 233 Pa. Superior Ct. 38, 335 A.2d 364 (1975), aff'd by an evenly divided court, 474 Pa. 155, 377 A.2d 975 (1977).

In this case, the district attorney had represented thirteen of 133 Regional members in civil matters unrelated to the criminal prosecution. He quite properly declined to represent anyone in civil suits arising out of the transactions which led to the criminal trial. In Stoner, supra, the district attorney had represented an individual in a civil suit against the defendant in an unrelated matter. In that very similar situation we found no conflict of interest.

Further, appellant apparently makes no allegations of specific prejudice, but rather claims that the informational letters sent to Regional members, and the fact that the district attorney accompanied state troopers executing the search warrant “tainted the trial with suspicion of prosecutorial misconduct.” Such allegations, if anything, go to the appearance of conflict, rather than to any actual conflict or prejudice.

Appellant finds it significant that the thirteen members who were clients of the district attorney are to receive restitution in the amount of the payments which they made to Mr. Celane. This establishes no prejudice to appellant. Restitution, calculated on the same disinterested basis, is to be paid all 133 Regional members. 18 Pa.C.S.A. § 1106(a) provides that restitution may be ordered when an individual is convicted of any crime wherein property has been stolen, converted, or otherwise unlawfully obtained, and it is not at all unusual that it was imposed by the court in this case. As we stated in Stoner, supra,

[w]e, of course, continue to require the district attorneys of this Commonwealth to exercise their duties with complete impartiality. This record, however, absolutely fails to establish any indication to the contrary. Moreover, it would presently be unrealistic to require our district attorneys to abstain from the private practice of law, when the economics of the office in most counties all but demand an ancillary source of income. While a district attorney must certainly strive to avoid even the appearance of a conflict of interest between his official duties and his private affairs, in most counties, particularly smaller ones, he may have a civil practice far more extensive than his official obligations. Although the same standards of professional conduct must be maintained and applied to all, we would naturally expect the district attorneys of the smaller counties to be subject to more frequent challenge on the grounds of possible conflict. Nevertheless, we must emphasize that the same standards must be employed regardless of county size or extent of private practice in measuring the conflict question.

Commonwealth v. Stoner, 264 Pa. Superior Ct. 136, 141— 42, 399 A.2d 703, 706 (1979).

Appellant’s second contention is also meritless. The jury’s acquittal of Mr. Celane oh the charge of theft by deception does not in any way preclude his conviction on the other two charges. Under 18 Pa.C.S.A. § 3922(a)(1), in order to establish theft by deception, the fact-finder must be convinced that the defendant intentionally created or reinforced a false impression at the time he obtained or withheld the property of another. No such requirement as to a defendant’s state of mind at the time the subject property is acquired is present in either 18 Pa.C.S.A. § 3927(a) or 18 Pa.C.S.A. § 4113(a), both of which deal with a defendant’s disposition of property after he has received it.

The court properly charged the jury that under § 3922(a)(1), “deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform a promise.” Thus, although the Commonwealth contended that appellant intentionally deceived Regional members when he obtained the premium payments, the jury could quite reasonably have concluded that Mr. Celane at one time intended to obtain Lincoln coverage for members, but that later, knowing these funds were given to him for the sole purpose of buying insurance from Lincoln, he diverted them to other unauthorized and improper uses.

Further, even if the verdicts were inconsistent, this would afford appellant no basis for relief. It has long been the rule in Pennsylvania that consistency in a verdict in a criminal case is not required. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Shaffer, 279 Pa. Superior Ct. 18, 420 A.2d 722 (1980); Commonwealth v. Glendening, 262 Pa. Superior Ct. 357, 396 A.2d 793 (1979); Commonwealth v. Dolny, 235 Pa. Superior Ct. 241, 342 A.2d 399 (1975). Thus, appellant’s acquittal on the charge of theft by deception provides no basis for a challenge to his conviction on the other two counts.

Finally, we deal with appellant’s contention that the court below erred in providing for restitution in the amount of $209,830.63. Aside from a minor error in calculation, this sum represents the total amount paid to Mr. Celane by 133 Regional members for the purpose of making premium payments to Lincoln.

Appellant argues that testimony showing that he paid some medical and hospital bills upon claims by members or their employees precludes restitution in the full amount of the premium payments. It is true that 18 Pa.C.S.A. § 1106(c)(1) provides that in ordering restitution the court “[s]hall consider the extent of the injury suffered by the victim ...” Commonwealth v. Erb, 286 Pa. Superior Ct. 65, 428 A.2d 574 (1981); Commonwealth v. Fuqua, 267 Pa. Superior Ct. 504, 407 A.2d 24 (1979). Here, however, Regional members made these payments to appellant for purchase of insurance coverage from Lincoln, which they did not receive, and not for piecemeal payment of some medical bills by Regional or appellant personally. Furthermore, the record reflects numerous incidents of unpaid claims and individuals unable to get other insurance because they developed physical problems while they erroneously thought they had been insured by Lincoln, through Mr. Celane. Thus, as the court below noted, the lack of insurance can be seen to have caused far greater damage to Regional members and their employees than was represented by the restitution ordered. (R. 1393a).

Appellant also maintains that his bankruptcy has rendered him unable to comply with the restitution order. We have held that, as the primary purpose of restitution is to promote rehabilitation of the defendant, the court in imposing restitution must make sure that the amount awarded not only does not exceed damages to the victim, but also does not exceed the defendant’s ability to pay. Commonwealth v. Erb, supra; Commonwealth v. Fuqua, supra. In this case, the sentencing judge determined that notwithstanding his bankruptcy, appellant would be able to pay the restitution ordered, based upon his “education and experience, his representation of his on-going success and various business operations, all of which reflect on his potential capacity, giving consideration to the fact that he could be eligible for parole at the expiration of his minimum sentence and furlough or work release in one-half of the minimum.” (R. 1394a). The amount of restitution was thus appropriately decided below on the basis of the damage caused by appellant and on the basis of his ability to pay, and is erroneous only to the extent of the miscalculation noted above.

In addition to evaluating the extent of injury caused by the defendant and his ability to pay, we have held that the sentencing court must consider on the record what type of payment—lump sum or installment—will best serve the needs of the victims and the capabilities of the defendant. Commonwealth v. Erb, supra; Commonwealth v. Fuqua, supra; see 18 Pa.C.S.A. § 1106(c)(1). It appears that the court below did not specify on the record the manner in which restitution was to be paid. We remand in order that the amount of restitution may be reduced by the $63.89 error and in order that the court below may consider and determine on the record the appropriate method and timing for payment of restitution by appellant.

This case is remanded to the trial court for the sole purpose that the order of restitution be reduced to $209,-766.74 and the manner of payment specified. Judgment is otherwise affirmed. Because of the very limited purposes of our remand, we do not retain jurisdiction.

      . 18 Pa.C.S.A. § 3927(a).

      . 18 Pa.C.S.A. § 4113(a). This charge was treated as merged with the charge under § 3927 for sentencing purposes (N.T. Sentencing Hearing 14).

      . 18 Pa.C.S.A. § 3922(a)(1).

      . These letters were not personalized communications from the district attorney to individuals he had represented, but rather part of a uniform mailing to Regional members (N.T. Trial 424-431). As a result of an agreement between the district attorney and defense counsel to limit the number of witnesses presenting repetitive testimony, only a small percentage of Regional members were actually involved in the trial. These bulletins served to keep those persons not called as witnesses informed as to the status of the case.

      . No actual misconduct has been alleged, and in fact, appellant’s attorney stated to the court below that he was not “impugning Mr. Meyer’s integrity.” (N.T. Trial 193).

      . See e.g., Commonwealth v. Crafton, 240 Pa. Superior Ct. 12, 367 A.2d 1092 (1976). (Deceptive intention was not necessary at time defendant travel agent collected deposits for group tour. Defendant violated 18 Pa.C.S.A. § 3927 when she failed to pay for trip as promised). 18 Pa.C.S.A. § 4113(a) similarly requires no deceptive intent on receipt, but only that the person to whom property is entrusted disposes of it in a manner which is unlawful or involves risk of loss.

      . The Commonwealth explains that the accounting showed the total amount of payments by Regional members to be $209,766.74. The information contained a figure of $209,830.63, which was apparently used in the court order of sentence. The Commonwealth agrees that the figure should have been $209,766.74, the amount proven in court. (N.T. Trial 960). Because the trial court clearly intended that restitution be in the amount Mr. Celane was paid by Regional members, we will remand to permit the correction of this clerical error.