author: Head, J.,

text:
    Commonwealth v. Maxwell, Appellant
    (No. 1).

      Tax collector — Bond—Judgment—Scire facias — County auditors — Reports.

    Where an official bond given by a tax collector to the commonwealth has been entered up by the county, a borough, and a school district acting together, and judgment entered thereon, a poor district which has placed its duplicate for poor taxes in the hands of the collector, may subsequently .intervene as a party plaintiff by a scire facias on the judgment; >nd it is immaterial that the judgment was entered on a warrant of attorney and was not the result of an adverse action on the bond.
    A report of county auditprs showing that a county treasurer was not charged with any balance outstanding in the hands of a borough collector, is not conclusive in favor of the'borough collector, in a proceeding against him, instituted by a poor district which had placed in the collector’s hands its duplicate for poor taxes.
    Where a tax collector’s liability is fixed at a sum stated for a particular year by the auditors, the fact that in subsequent years the auditors’ reports make no further mention of such balance, does not relieve the collector frqm its payment.
    Argued May 14, 1907.
    Appeal, No. 21, April T., 1907, by defendants, from judgment of C. P. Butler Co., Dec. T., 1905, No. 31, on verdict for plaintiff in case of Commonwealth to usq of the Butler County Poor District v. James M. Maxwell et al.
    Before Rice, P. J., Henderson, Oklady, Head and Beaver, JJ.
    Affirmed.
    Scire facias on a judgment entered on a tax collector’s bond. Before Galbreath, P. J.
    The opinion of the Superior Court states the case.

      íftror assigned among others was in refusing binding instructions for defendants.

      H. H. G-oucher, with him A. T. Scott, for appellants.
    The act of June 14, 1836, relating to actions on official bonds has no application to judgments confessed by virtue of warrants of attorney: Skidmore v. Bradford, 4 Pa. 496; Reynolds v. Lowry, 6 Pa. 465; Bank of Chester v. Ralston, 7 Pa. 482; Harger v. Washington County, 12 Pa. 251; Chambers v. Harger, 18 Pa. 15 ; McCann v. Farley, 26 Pa. 173 ; Jones v. Dilworth, 63 Pa. 447.
    October 7, 1907:
    The auditors found no balance against the collector and he had no occasion to appeal. The commissioners claim that there is a balance due the treasurer of the poor district from the collector, but, having neglected to appeal, this form of procedure was invented as a substitute for the remedy by appeal provided by law: Nason v. Directors of the Poor of Erie County, 24 W. N. C. 60; Westmoreland County v. Fisher, 172 Pa. 317.
    An auditors’ report unappealed from is conclusive, and their decisions cannot be inquired into except for fraud: Zeigler’s Petition, 207 Pa. 131; Northumberland County v. Bloom, 3 W. & S. 542 ; Northampton County v. Yohe, 24 Pa. 305; Blackmore v. County of Allegheny, 51 Pa. 160; Porter v. School Directors, 18 Pa. 144; Northampton County v. Herman, 119 Pa. 373 ; Westmoreland County v. Fisher, 172 Pa. 317 ; Siggins v. Commonwealth, 85 Pa. 278; Shartzer et al. v. School District, 90 Pa. 192; Schuylkill County v. Boyer, 125 Pa. 226 ; Lancaster County v. Hershey, 205 Pa. 343 ; Commonwealth v. Gruver, 13 Pa. Superior Ct. 553.

      J. W. Hutchison, for appellee,
    cited: Com. v. Stambaugh, 164 Pa. 437; Chambers v. Harger, 18 Pa. 15 ; McCann v. Farley, 26 Pa. 173; Templeton v. Shakley, 107 Pa. 370; Ramsey v. Ramsey, 15 Pa. Superior Ct. 214.
   Opinion by

Head, J.,

James M. Maxwell, one of the appellants, was the duly elected tax collector for the borough of Butler for the year 1902. As such collector he, with the remaining appellants as his sureties, entered into an official bond to the commonwealth of Pennsylvania, in the sum of 180,000, conditioned that he would “ well and truly collect and pay over or account for according to law the whole amount of taxes charged and assessed in the duplicates which shall be delivered to him,” etc. This bond contained a warrant of attorney in the usual form authorizing the entry of judgment thereon. On July 18, 1905, the county of Butler, the borough of Butler and the school district of the "borough of Butler, acting together, caused a judgment to be entered on this bond and warrant in favor of the commonwealth at the suggestion and to the use of the municipalities named. On October 14, 1905, the Butler county poor district, which had also placed its duplicate for poor taxes, collectible in the borough of Butler, in the hands of the appellant,. Maxwell, but which had no knowledge of the entry of the judgment on the bond and was not made a party plaintiff therein, filed in court its petition and suggestion setting forth its interest in said bond, a default on the part of the obligors and its continuance since the entry of judgment, and praying for leave to issue a scire facias on said judgment to enable it to collect the balance due to it by reason of said default. Leave was given, the writ issued and was so proceeded in that upon the trial that followed the court gave binding instructions to find for the plaintiff a sum as to the amount of which we do not understand there is any serious dispute. Later on a motion for judgment 'for the defendants non obstante veredicto, on the whole record, was denied and this appeal followed.

It is not questioned that the tax collector of the borough was the proper person to whom the plaintiff should have delivered its duplicate. From this it follows that the single bond which, under the law, that officer gives in the name of the commonwealth, must have been for the beneficial use of the present appellee, as well as of those in whose favor the judgment was actually entered. No good reason has been advanced to show why, where a judgment has been confessed on such a bond at the instance and for the use of some of the parties interested, other parties equally interested should not have a plain and simple procedure by which their claims could be engrafted on the judgment already entered nominally in favor of the commonwealth but really for the use of every party interested. The remedy by scire facias furnishes just such a plan of procedure. It gives to the defendants a day in court to resist the claim if it be unfounded, or, failing that, to have it liquidated at the true amount. It follows in letter and spirit the Act of June 14, 1836, P. L. 637, which provides, inter alia, “ The judgment of the commonwealth as aforesaid shall remain for the satisfaction of all persons entitled to the benefit of the bond or obligation upon which it was rendered, etc. In all eases where’ the condition of any sucb bond, shall be broken, after a judgment rendered for the commonwealth as aforesaid, it shall be lawful for the party aggrieved to proceed by writ of scire facias upon such judgment, suggesting his interest therein,” etc. The plaintiff suggests such a breach of the condition of the bond in the refusal of the defendant, after judgment, to pay over the money in his hands. The evils that would flow from any other construction of the act are strongly set forth by President Judge Rice in Monroe County v. Eilenberger, ante, p. 22. But it is argued that the remedy by scire facias cannot be invoked by the present plaintiff because the judgment was entered on a warrant of attorney and was not the result of an adverse action on the bond, and Longstreth v. Gray, 1 Watts, 60; Skidmore v. Bradford, 4 Pa. 296; McCann v. Farley, 26 Pa. 173, and Jones v. Dilworth, 63 Pa. 447, are cited as authorities for the position taken. All of these cases declare that the English statute of 8 & 9 William, III, ch. 11, No. 8, does not apply to a judgment entered on a bond with warrant of attorney.and hence that the obligee in such bond, given to secure the payment of money in installments or the performance of some collateral act, may have execution on his judgment without being required first to issue a writ of scire facias. But in none of them do we find any authority for the contention of the appellant that the court below fell into error in permitting the appellee to begin the proceeding we are now considering by the issue of such a writ.

But the appellants chiefly rely on the proposition that the county auditors in 1902,1903 and 1904, examined and audited the accounts of the county treasurer, who was, ex officio, treasurer of the poor district and as, in the last two years mentioned, that officer was not charged with any balance outstanding in the hands of the borough collector and those reports have not been appealed from, it has been conclusively adjudicated that there was no such balance. The position is ingeniously taken and supported, but is untenable. The county treasurer is in no sense a party to this proceeding. It was not' its object to affect or disturb the relations between him and the poor district in so far- as they had been established by the reports of the auditors referred to. It is true the auditors, in investigating his accounts, incidentally, but from his standpoint only, ascertain the balances due to him from the various borough collectors. But as to the latter such investigation is wholly ex parte. They are not required by law to submit their accounts to the county auditors or to appear before them, and hence could not be concluded by their report. As in this case the poor district does not seek to recover anything from the county treasurer, whose accounts were the proper subject of investigation by the auditors, but deals directly with the borougli collector over who'se accounts no jurisdiction is given to the auditors, it cannot be fairly argued that this proceeding is, in any just sense, revisory of the work lawfully done by them.

But even if we concede, arguendo, that the county auditors, by virtue of the authority expressly conferred on them to audit the accounts of the treasurer, had implied authority to conclusively fix and determine the amounts due from the borougli tax collector, so that neither the latter nor the district, failing to appeal from the report, could thereafter question such finding, what follows ? By the audit made in January, 1903, it was ascertained, as shown by the report, that there was due to the poor district from collector Maxwell, of the taxes of 1902, the sum of $812.96. From this report he took no appeal. His liability for that sum thus became fixed and absolute and could be discharged only by subsequent payment or exoneration. The later reports of 1901 and 1905, make no further mention of this balance and show neither payment nor exoneration by which it was reduced. Yet because the auditors did not, in each of their subsequent reports, reascertain and redetermine that the collector still owed the balance already adjudged against him, it is argued that it has been conclusively determined that he did not owe it. No statute or decision is cited to show that this was their duty or that their failure to so formulate their later reports should be followed by the result that the collector may'keep in his pocket a large sum of the money of the poor district against the payment of which he cannot and does not offer any meritorious defense. The account kept by the treasurer with the collector which was offered in evidence shows the subsequent payments and exonerations by which the balance, shown by the report of 1903, has been reduced to the sum claimed and recovered in the present action. Against the correctness of this account the appellant does not raise his voice! As we are unable to discover any reversible error in any of the rulings of the learned court below the assignments must all be dismissed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. Maxwell, Appellant
    (No. 2).
    October 7, 1907:

      Appeals — Interlocutory order — Judgment on official bond — Scire facias.

    An order allowing a scire facias to issue on a judgment entered by a warrant of attorney in a tax collector’s bond, is an interlocutory order from which no appeal lies.
    Argued May 14, 1907.
    Appeal, No. 20, April T., 1907, by. defendant, from order of C. P. Butler Co., Sept. T., 1905, No. 99,. allowing scire facias to issue in case of Commonwealth to use ■ of Butler County, the Borough of Butler, and the School Board of Butler Borough v. James M. Maxwell et al.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Scire facias sur judgment entered on a tax collector’s bond.

      Error assigned was order allowing a scire facias to issue on judgment entered by warrant of attorney on the bond of Jame.s M. Maxwell, tax collector for the borough of Butler.

      3. 3. Gfoucher, with him A. T. Scott, for appellant.

      J. W. Hutchison, for appellee.'
   Opinion by

Head, J.,

This appeal and Com. v. Maxwell, ante, p. 631, are based upon a single proceeding in the court below. An examina-, tion of the facts as set forth in the opinion there filed we. think will make it manifest that the order or decree from which 'this appeal is taken was in no sense final but only, interlocutory. After it was made the proceeding went on regularly to filial judgment' and then a second appeal was taken. In that appeal the appellants would have the right to.-have heard and adjudicated the same question raised in this one. This appeal was, therefore, prematurely taken and must be quashed.

Appeal quashed.


author: Orlady, J.,

text:
    Johnson, Appellant, v. Bumpus.

      Contract-Sale of timber — Breach of contract.

    Where a person purchases all of the timber on a tract of land with the right to cut and remove the same from the land, and in pursuance of the contract he enters upon the land and expends money in cutting down the timber and shaping it for marketable use, the owner of the land cannot prevent him from removing the timber thus cut and shaped without making due compensation therefor.
    Argued May 20, 1907.
    Appeal, No. 36, April T., 1907, by plaintiff, from order of C. P. Warren Co., Dec. T., 1903, refusing to take off nonsuit in case of Theodore Johnson et al. v. A. W. Bumpus.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for breach of contract. Before Lindsey, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      T. L. Sampson, with him Edward Lindsey, for appellants.—
    In an action for breach of such a contract actual damages may be recovered, and even if no actual damages be shown the plaintiff is entitled to a verdict for nominal damages: Stephens v. Barnes, 30 Pa. Superior Ct. 127 ; Carner & Johnston v. Peters, 9 Pa. Superior Ct. 29 ; McCafferty v. Griswold, 99 Pa. 270 ; Rineer v. Collins, 156 Pa. 342 ; Gray v. Howell, 205 Pa. 211; Swayne v. Swayne, 19 Pa. Superior Ct. 160 ; Sausser v. Steinmetz, 88 Pa. 324; Thompson v. Sheplar, 72 Pa. 160; Bell v. Andrews, 4 Dallas, 152 ; Ewing v. Tees, 1 Binn. 450 ; Bowser v. Cessna, 62 Pa. 148 ; Fry v. Flick, 10 Pa. Superior Ct. 362.
    October 7, 1907:
    If the parol contract has been so far in part executed that it would be unjust to rescind the same it will be enforced specifically in equity, and the same rule will be applied in. courts of law in actions for damages: Jamison v. Dimock, 95 Pa. 52; Brownfield v. Brownfield, 151 Pa. 565; McGibbeny v. Burmaster, 53 Pa. 332; Milliken v. Dravo, 67 Pa. 230 ; Ballas v. Wolff, 11 Pa. Superior Ct. 150 ; Hudson v. Watson, 2 Pa. Superior Ct. 422.

      C. W. Stone, with him R. W. Stone, for appellee.
    The timber sold, according to Stanford’s testimony, was to be taken off in his discretion, when he “ got ready.” This left it an interest in land and subject to the statute of frauds: Pattison’s Appeal, 61 Pa. 294; McClintock’s Appeal, 71 Pa. 365; Huff v. McCauley, 53 Pa. 206 ; Miller v. Zufall, 113 Pa. 317; Rogers v. Gilinger, 30 Pa. 185 ; Leidy v. Procter, 97 Pa. 486-492.
    Every parol contract is within the statute of frauds and perjuries, except when there has been such part performance as cannot be compensated in damages: Moore v. Small, 19 Pa. 461.
   Opinion by

Orlady, J.,

The court below entered a nonsuit and subsequently refused to lift it, for the reason that there was not sufficient evidence on the facts as developed in the plaintiff’s testimony. On July 1, 1899, the plaintiff purchased, by a parol agreement, from the defendant, all the timber on a described tract of land, at a price which was paid in full; the plaintiff entered into possession, expended money in making improvements, roads, etc., cut down and removed some of the timber, when on December 10, 1901, the defendant stopped plaintiff from cutting any more timber and from removing from the tract some already cut down and made into logs and railroad ties. The action was in assumpsit to recover damages for the breach of the contract, and the statement of claim embraces two specific items of claim, first, for the manufactured logs and ties remaining on the land, and, second, for the timber standing at the time the defendant gave his notice.

The testimony ■ showed some controversy as to the time within which the timber was to be removed, the plaintiff contending that he was to have three years, and the reason given for stopping further operation, was that the defendant claimed they had but one year. Whichever time might be established to the satisfaction o.f a jury, the contract was for the sale of the timber alone, the title to or estate in the land not being involved: Robbins v. Farwell, 193 Pa. 37. In reservations of growing timber, whether it be personalty or realty, depends on the nature of the contract and the intent of the parties : McClintock’s Appeal, 71 Pa. 365; Stephens v. Barnes, 30 Pa. Superior Ct. 127. But as to the timber cut down and made into marketable shapes, the plaintiffs had, with the consent of the defendant, expended time and money in the furtherance of the contract. The whole purchase price having been paid, and the defendant having agreed that the timber should be severed from the real estate, and when so converted into personalty, removed from the land, he cannot retain the fruits of the plaintiff’s expenditures without compensating him therefor.

Having shown the actual damages sustained as to this branch of the case, it should have been submitted to the jury under proper instructions as to the measure of damages.

The judgment is reversed and a venire facias de novo awarded.


author: Beaver, J.,

text:
    Sheraden Borough.

      Constitutional law — Boroughs—Annexation, of borough to city — Local and special laws — Contiguous territory — Counties—Act of April 28,1903, P. L. 332.
    The Act of April 28, 1903, P. L. 332, entitled “An act for the annexation of any city, borough, township, or part of a township, to a contiguous city, and providing for the indebtedness of the same,” does not violate article III, sec. 7 of the Constitution of Pennsylvania, which provides that “the General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” That there may be a county within the commonwealth to which this act, by reason of special legislation previously passed, governing the affairs of that county, would not at present apply, is no argument against the general character of the act.

      . A statute, general in form, is not to be treated as local or special, simply because of the intervention of some unrepealed local statute which prevents it from having general effect.

      Statutes —■ Repeal — Boroughs — Annexation of territory — Allegheny county — City of Pittsburg — Act of May 10, 1871, P. L. 718.
    The Act of May 10, 1871, P. L. 718, entitled: “An act to authorize the consolidation of adjacent territory within the city of Pittsburg,” is not repealed either expressly or by implication by the Act of April 28, 1903, P. L. 332, entitled: “An act for the annexation of any city, borough, township, or part of a township, to a contiguous city, and providing for the indebtedness of the same.” The two acts are not repugnant; they stand together; and proceedings may be instituted under either to accomplish the object in view.

      Municipalities — Cities—Boroughs—Annexation—Contiguous territory -,Judicial notice — Courts—Notice.
    In proceedings under the Act of April 28, 1903, P. L. 332, to annex a borough to a contiguous city, the courts will take judicial notice of the fact that the borough is contiguous to the city, and the proceedings will not be invalid because such fact is not verified by affidavit; and the same rule applies as to the fact that the borough is in the same county with the city.
    In proceedings under the Act of April 28, 1903, P. L. 332, the court commits no abuse of discretion in fixing ten days as sufficient notice to the public of the hearings in court of objections to the annexation.
    Where an order in proceedings under the Act of April 28, 1903, P. L. 332, directs that notice shall be given in the “ Pittsburg Gazette,” and it appears that the notice was published in the “ Pittsburg Gazette-Times,” and that there was no other paper known as the “ Pittsburg Gazette ” published in the county at the time, the publication is a substantial compliance with the order of the court.
    The certificate of the judges of the common pleas constituting a returning board of a special election held in annexation proceedings under the Act of April 28, 1903, P. L. 332, imports verity, and is conclusive of the facts therein stated.
    Argued May 9, 1907.
    Appeal, No. 140, April T., 1907, by William J. Sheraden et al., from order of Q. S. Allegheny Co., June T., 1906, Miscellaneous Docket No 40, in annexation proceedings to the city of Pittsburg In re Petition of Qualified Voters of the Borough of Sheraden.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for the annexation of Sheraden borough to the city of Pittsburg. Before Evans, J.

      November 18, 1907:
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court affirming the annexation.

      F. P. lams, with him John G. Bane and T. G. G-abler, for appellants.

      N. B. Griss, for appellees.
   Opinion by

Beaver, J.,

The inquiry suggested by the assignments of error in this case involves the consideration of the constitutionality and the interpretation of, and the regularity of the proceeding under, the Act of April 28, 1903, P. L. 332, entitled “ An act for the annexation of any city, borough, township, or part of a township, to a contiguous city, and providing for the indebtedness of the same,”-under and in pursuance of which, certain of the inhabitants of the borough of Sheraden sought to be annexed to the city of Pittsburg, the final decree of annexation being contested by the appellants upon the grounds hereinafter stated. -

1. Is the act constitutional? On its face and by its terms, it is applicable to the entire commonwealth. It is contended, however, by the appellants that it violates article III, section 7, of the constitution of Pennsylvania, which provides that, “ The general assembly shall not pass any local or special law regelating the affairs of counties, cities, townships, wards, boroughs or school districts.” This contention rests almost entirely upon the appellants’ interpretation of Sample v. Pitts-burg, 212 Pa. 533. This case, which is the authoritative interpretation of the Act of April 20, 1905, P. L. 221, and by which said act was declared unconstitutional, rests almost exclusively upon the fact that the only cities in the commonwealth to which said act could apply were those of Pittsburg and Allegheny. It is true that, in his.opinion, Mr. Justice Mestrezat refers to the fact that the act confines the territorial limits within which it is to apply to the same county but, as we understand the argument, this is used to further emphasize the fact that the cities referred to in the act can be no other than those of Pittsburg and, Allegheny. By the very terms of the act of 1903, under consideration, it applies to “ any city, borough, township, or part of a township, in any county in the commonwealth.” It is true that the annexation must be “ to any contiguous city in the same county.” It applies, however, to any city of any county and to any municipality to be annexed to any city of any county. We take it that it would be entirely legitimate for the legislature to say by a general act that no city of this commonwealth should be composed of parts of two or more counties, and such a provision would be most reasonable, otherwise the municipal authorities would be compelled to transact the business of the city in several counties. Liens for municipal improvements would necessarily be filed in the county within which the portion of the city where the improvements are made would.be situated. The police administration of the city would be necessarily involved in the administration of the criminal courts of more than one county. It will readily be seen that not only inconvenience but confusion would arise under such a state of municipal government. The regulation of this would clearly be within the power of the legislature. Indeed, under the provisions of the Act of May 23, 1889, P. L. 277, “ Providing for the incorporation and government of cities of the third class,” it is provided in article III, section 1, that “ Any borough or township, or part of a township, adjoining any city of the third class, and being part of the county in which the same is situated, may be annexed to such adjoining city in the following manner.” In Harris’s Appeal, 160 Pa. 494, this latter act, although not this particular section of it, was under consideration by the Supreme Court, and it was decided that it was not local or special legislation within the meaning of article III, section 7 of the constitution, as it was applicable to all cities of the third class. We cannot see, therefore, why the legislature may not say that, in the annexation of any borough, township, or part of a township, the annexation can be made only within the limits of the county within which the city, to which such annexation is sought, is situated. Such a restriction is, therefore, no more a violation of the constitution than if the legislature were to say, as it has said, that in the incorporation of cities the territory to be included within the city limits should be confined to a single county.

That there may be a county within the commonwealth to which this law, by reason of special legislation previously passed, governing the affairs of that county, would, not at present apply, is'no argument against its general character. This has been settled in very many cases, Evans v. Phillipi, 117 Pa. 226, in which it was held that “ A statute, general in form, is not to be treated as local or special, simply because of the intervention of some unrepealed local statute which prevents it from having general effect,” and Rose v. Beaver County, 20 Pa. Superior Ct. 110 ; s. c., 204 Pa. 372, are familiar examples. What was said in Com. v. Gilligan, 196 Pa. 604, is applicable here: “Undoubtedly many acts have been passed, whose framers intended to evade the constitutional prohibitions; these the courts have always unhesitatingly struck down, and may be safely relied on to continue to do so. But where the legislative intent is not to evade the restrictions the courts are not required to be astute in extending them over cases not really within the evil prohibited, though the form may have the appearance of coming within the literal words of the constitution.” “ It may, therefore, be taken as settled law that, in cases of this character, the courts will look beyond the mere form of the act and examine its true intent and effect, in the light of the purpose of the constitutional restrictions.”

2. Does the act apply to the county of Allegheny ? It is claimed that it does not, for the reason that the Act of May 10, 1871, P. L. 718, entitled “An act to authorize the consolidation of adjacent territory within the city of Pittsburg,” makes special provision for the annexation of adjacent territory to the city of Pittsburg, and that, inasmuch as the act under consideration does not in express terms repeal the act of 1871,' the former special act must govern to the exclusion of the later general act. It is true that the act of 1903, under consideration, does not contain any express words of repeal of the special act of 1871 or of any other law. It is true, therefore, that the latter act does not repeal the former, unless so repugnant in its provisions that the two cannot stand together, or the intention of the legislature touching the repeal is plainly apparent.

It is also true that: “ Repeal by implication is not favored. It is a reasonable presumption that' the legislature did not intend to.keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law, without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention. Hence it is a rule, founded in reason as well as in abundant authority, that, in order to give an act not covering the entire ground of an earlier one, nor clearly intended as a substitute for it, the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provisions and those of the earlier law so positive as to be irreconcilable by any fair, straight or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law and construing both together, in harmony with the whole course of legislation upon the subject: ” Endlich on The Interpretation of Statutes, sec. 210.

Later on, in section 218, it is said: Further, it is laid down generally, that when the later enactment is worded in affirmative terms only, without any negative, expressed or implied, it does not repeal the earlier law. Thus, an act which authorized the quarter sessions to try a certain offense would involve no inconsistency with an earlier one which enacted that the offense should be tried by the queen’s bench or the assizes; nor an act authorizing a proceeding to contest the validity of a will, by petition to the court of common pleas, any inconsistency with an earlier one for a proceeding by bill in chancery; and in neither case,- therefore, would the later repeal the prior law.”

Applying these general rules to the acts in question and comparing them the one with the other, we do not find, upon such a comparison, that there is such repugnancy the one to the other as to require us to declare that the special act is necessarily repealed by implication by the general and later one. It is true that they cover the same subject. The object to be attained by each is the same. But there is no reason why either the one or the other may not be pursued, in order to reach the definite object in view. The specific provisions of the two acts are not entirely similar, nor is it necessary that they should be. They are not repugnant. There is no antagonism between their provisions, and in such a case there is no necessarily implied repeal. We are clearly of the opinion that the proceedings in this case, under which the citizens of the borough of Sheraden endeavored to seek the annexation of that municipality to the city of Pittsburg, under the provisions of the later general act, were authorized and effective, even if tlie special act of 1871 relating to the same subject was not impliedly repealed.

“ Implied repeals are not favored. If the legislature have failed to adopt the plain and simple method of express repeal, it will not be presumed that they intended a repeal by implication, unless there is such a manifest repugnance and inconsistency between the statutes that they cannot justly and reasonably stand together, or unless every provision of the one is so effectually supplied by the other as to lead to an irresistible conclusion that the later statute was intended as a substitute for the earlier. Where both statutes are general and in the affirmative, and it is possible for them to be so construed as to stand together, the courts, in the absence of any clear showing of a contrary legislative intent, will construe them according to the general rule where statutes are in pari materia, so that both may remain in force: ” 20 P. & L. Dig. of Dec. 35,216.

What is true in regard to two general statutes is also true in relation to the repeal of a special statute by a subsequent general statute: “ The rule that implied repeals are not favored and will be held not to exist where there is no irreconcilable inconsistency, or where the later statute shows an intent to except the earlier from its provisions, operates to prevent an implied repeal of local or special statutes by subsequent general statutes: ” 20 P. & L. Dig. of Dec. 35,245.

There remains, therefore, the inquiry as to whether or not the proceedings under the act of 1903 were regular.

3. Ware the provisions of the act complied with? It is claimed that:

(a) The petition upon which the proceedings were based was not pro'perly verified by affidavit, as required in the first section of the act which prescribes that, “ The petition shall be subscribed by the petitioners within three months immediately preceding The presentation thereof to the court, and shall he verified by affidavit of one or more of the petitioners.” The petition itself is very brief and sets forth but two facts: (1) That the petitioners are qualified voters of the borough of Sheraden, and (2) “ that said borough of Sheraden is contiguous to the city of Pittsburg in said county of Allegheny, and the petitioners desire that it may be annexed to and become a part of said city of Pittsburg, according to the act of assembly in such case made and provided.” The affidavit accompanj'ing the petition, made, as required, by two of the petitioners, sets forth “ that the persons whose names are subscribed to the foregoing petition are all qualified voters of the borough of Sheraden, and that said petition is signed by at least five per centum of the qualified voters of said borough, as shown by the registry lists for the last preceding general election of said borough,” and “ that all of the signatures thereto have been affixed since the first day of June, 1906, and are in the proper handwriting of the respective petitioners.” The facts set forth in the petition, therefore, and those which are necessary to give the court jurisdiction under the act of assembly are all verified by the affidavit, except the fact that the borough of Sheraden is contiguous to the city of Pittsburg in said county of Allegheny. Under the general rule that courts will take judicial notice of the municipal divisions of the territory within their jurisdiction at least, we cannot see that it was necessary for this fact contained in the petition to be verified by affidavit. The court could and did take judicial notice of the fact that the .borough of Sheraden was contiguous to the city of Pitts-burg, because the alleged defect in the affidavit was called to its attention by the exception filed by the appellants to the original petition. If the court had not taken judicial notice of the fact, it would, of course, have required proof, and we may, therefore, assume that it exercised an undoubted right in taking judicial notice of an important fact which, if not correct, would have excluded its jurisdiction under the act.

It was further objected to the petition that “ Said petition does not contain any averment, verified by the affidavit of one or more of the petitioners, that said borough of Sheraden and said City of Pittsburg are in the same county.” Although such allegation is not set forth in words, it is alleged that the petitioners “ are qualified voters of the borough of Sheraden, Allegheny county, Pa.,” and “ That said borough of Sheraden is contiguous to the City of Pittsburg in said county of Allegheny.” Of this the court could also take judicial notice and it was, therefore, not essentially necessary that the allegation should be verified by affidavit. We think, therefore, the petition was sufficiently verified, as required by the act.

(b) After the filing of the petition, and notice to the chief executive officer of the city, to which the annexation is proposed to be made, it is made the duty of the councils of such city “ within three months from the date of said notice to, by ordinance, consent to or disapprove the proposed annexation. If the councils disapprove, then there shall be no further proceedings under that petition; but if the councils approve, then the court shall direct such notice to be given to the people of the territory proposed to be annexed as the court shall consider to be proper and reasonable, and the said notice shall state a reasonable date thereafter at which the petition will be considered and all parties heard.” In accordance with this provision of the law, the court made the following order: “ And now, September 26, 1906, it appearing to the court that, in pursuance to notice served on the mayor of the City of Pitts-burg, as required by law, and the prior order of this court, the said City of Pittsburg has, by ordinance duly passed and approved, a certified copy of which ordinance has been filed at the above number and term, consented to the annexation of the borough of Sheraden to said City. Now, therefore, the court, on motion of N. R. Criss, attorney for petitioners, does hereby fix Saturday, October 6, 1906, at ten o’clock A. M., as the time for consideration by the court of the petition in this case, when all concerned therein will be heard. It is further ordered and directed that notice of said hearing be given by posting at least thirty handbills in conspicuous places throughout said borough of Sheraden at least ten day prior to said hearing, and by one insertion in the ‘ Sheraden News ’ once prior to October 6,1906, and in the ‘ Pittsburg Chronicle-Telegraph’ three times prior to October 6, 1906.”

Prior to October 6, the appellants filed their exceptions to the proceedings, in the fourth of which, after previously reciting that Saturday, October 6 had been fixed by the court as the time for the consideration of the petition, etc., it was alleged: “ That notice of said time which was fixed as aforesaid by your honorable court for the consideration by said court of said petition has not been given by the petitioners, in accordance with the order of said court of date September 26, 1906, and of record in said proceeding. In and by said last mentioned order of said court it was ‘ ordered and directed that notice of said hearing be given by posting at least thirty handbills in conspicuous places throughout said borough of Sheraden at least ten days prior to said hearing,’ etc., and we are informed and believe, and expect to be able to prove, and therefore aver that notice of said hearing was not given by posting handbills in the manner required in said order for said period of ‘ at least ten days prior to said hearing.’ ” It is to be noted that the court fixed the day for the hearing on October 6, and that the order, requiring the handbills to be posted, was made on September 26. If the handbills were posted upon the day on which the order was made, ten days would have elapsed, counting that day as one, prior to the hearing on October 6. The court, therefore, must of necessity have so counted the time, and it is significant that the appellants had timely notice, for their exceptions were filed prior to the hearing.

It is significant that the act of 1903 does not fix any definite time as to notice. Its language is : “ The court shall direct such notice to be given the people of the territory proposed to be annexed as the court shall consider to be proper and reasonable, and the said notice shall state a reasonable date thereafter at which the petition will be considered and all parties heard.” The time fixed for the hearing was a reasonable time. The notice given was, in the opinion of the court below, in which we entirely concur, a reasonable notice, the proof of which is that the appellants — and it is not alleged that any others were not notified — had the notice and filed their exceptions. The notice to be given was entirely within the discretion of the court. That discretion was exercised, and, in computing the time fixed for the notice and in fixing the day for the hearing, the court evidently calculated that the ten days were included between the date of the order and the day of the hearing. To hold otherwise would lead us to the absurdity of a chronological impossibility which should not be charged to the court, without good reason.

(c) Notice of election, under the proceedings for annexation, was directed by the court to be given by its order of November 22, 1906, as follows: “ that notice of said election be given by publication in the ‘ Pittsburg Gazette ’ once a week for five weeks,” etc. It is alleged that what had been known as the “ Pittsburg Gazette ” for many years had, prior to the date of the order for the election, purchased the “ Pittsburg Times,” and that the paper, after said purchase, was known as the “ Pittsburg Gazette-Times.” No other paper known as the “ Pittsburg Gazette ” was published in Allegheny county at the time. To assert, therefore, that a publication in the “ Pittsburg Gazette-Times ” was not a compliance witli the order of the court that notice should be given in the “ Pittsburg Gazette ” is a refinement of technicality which requires no discussion. The publication, as made, was a substantial compliance with the order of the court.

(d) Were the returns of the special election in regard to annexation made to the proper court ? Section 4 of act of 1908 provides: “In receiving and counting and in making returns of the votes cast, the inspectors, judges and clerks of said election shall be governed by the laws of this commonwealth regulating municipal elections ; and the vote shall be counted by the court as is now provided by general laws governing municipal elections, and all the penalties of the said election laws,, for the violation thereof, shall apply to the voters, inspectors,, judges and clerks voting at, and in attendance upon the elections held under the provisions of this act. The result of the: election shall be certified to the court of quarter sessions having jurisdiction of the proceedings.” Among the records of the coiirt of quarter sessions in this case is a certificate entitled: “ Certificate of Returning Board of Judges,” addressed to the judges of the court of quarter sessions of Allegheny County, Pennsylvania, signed by “Marshall Brown, Judge C. P. Court No. 1, Robert S. Frazer, P. J., C. P. Court No. 2, John M. Kennedy, P. J., C. P. No. 3, Returning Board of Judges of Common Pleas Court,” in which it is certified that: “ The returns of the special election held in the borough of Sheraden, Allegheny, county, Pennsylvania, December 27, 1906, for the purpose of ascertaining the will of the Qualified electors of said borough upon the question of the annexation of said borough to the City of Pittsburg, having been submitted to the Judges of the Common Pleas courts of said county, at 12 o’clock noon on December 29, 1906, and by them opened and computed as directed by law, it is hereby certified that no fraud or mistake was alleged, or was apparent on the return, and that a total of 741 votes were cast upon the questions submitted, to wit: 4 Shall the borough of Sheraden be annexed to and with the City of Pittsburg?’ of which number 485 votes were ‘Yes,’ or in favor of such annexation, and 256 votes were 4 No,’ or against such annexation. Wherefore, it appears that a majority of 229 votes has been cast in favor of such annexation.”

We are now asked by the appellants to go back of this certificate and to inquire whether the judges of the court of common pleas, who constituted the returning board of said court, did their duty. Clearly, we cannot do this in this proceeding and determine the fact as to who presented to them the returns» from which they made their report to the court of quarter sessions. They knew their duty. They are presumed to have done their duty, and the doctrine relating to the conduct of public officers, omnia prsesumuntur rite esse acta, applies with peculiar force. The certificate of the judges of the common pleas, who constituted the returning board, filed in this case, imports verity. No exception to their action was taken. Their certificate, therefore, was conclusive of the facts therein stated.

The questions involved in this case are of great importance, and we have, therefore, considered it at some length.

It would have been especially satisfactory if, in view of its importance, an opinion of the court below had been filed in the case.

The argument of appellants’ counsel was ably and fully presented with much earnestness but, on a careful review of the entire case, we are unable to see any substantial ground for our interference.

The decree is, therefore, affirmed and the appeal dismissed at the costs of the appellants.


author: TAMILIA, Judge: ROBERTS, Judge,

text:
    489 A.2d 809
    COMMONWEALTH of Pennsylvania v. Bruce WARD, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1984.
    Filed Feb. 28, 1985.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Frank J. Scutella, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   TAMILIA, Judge:

This is an appeal taken from an Order of the trial court amending appellant’s 8 to 16 months sentence to provide for service of the sentence in a state correctional facility rather than in the Erie County Jail. This issue has not been reviewed recently by our appellate courts and the specific question of judicial power to amend a sentence to provide for a change of institution has not been addressed. The mootness issue is an important one as the appellate courts have consistently held that moot questions shall not be considered. Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977) (Roberts, J.). However, when the question presented is capable of repetition or escaping judicial review, Graziano Construction Company, Inc. v. Lee, 298 Pa.Super. 311, 444 A.2d 1190 (1982); Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969); Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976), the appellate courts will undertake such a review. In a case very much on point, Cunningham v. Commonwealth of Pennsylvania Board of Probation and Parole, 69 Pa.Cmmwth. 25, 450 A.2d 270 (1982), the Commonwealth court held that an action challenging computation of a maximum expiration date on a petitioner’s prior sentence was rendered moot by the fact that the maximum term on the prior conviction had expired while he began to serve a new sentence. However, in considering the question of mootness in Commonwealth v. Kelly, 274 Pa.Super. 242, 418 A.2d 387 (1980), our Court held that when a defendant appeals his conviction after he has completed his sentence, the appeal is not moot when there is a possibility of collateral civil or criminal consequences as a result of the conviction. Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971). In this case, if the sentence in question under the law relating to the regulation of probation and parole decisions of the Board of Parole would require that the new sentence to be served at the State Correctional Institution would be secondary to service of the unexpired parole, then this question will not be moot as the expiration time of service on the present sentence will not occur until some time in 1988.

The appellant at No. 175 of 1977 was sentenced to serve an additional term of two years to four years at a state correctional institution to take effect October 21, 1983, just seventeen days after the appellant’s transfer to the State Correctional Institution. While this is alleged by the district attorney and would appear to render the issue in this case moot, we would take pause and note the effect of hearings by the Board of Parole on parole violations involving homicide charges on which the defendant has already served five years of the five to ten year sentence of July 9, 1977. After his arrest on the assault charge in northeast Erie at No. 116 of 1983, which is the charge and sentence appealed from, a detainer was lodged against the defendant on the homicide parole violation. This detainer and parole violation adds a new dimension to the issue before us for the following reasons. It is provided at 61 P.S. § 331.21a Commission of crime during parole; other violations of terms of parole that:

... at the discretion of the board (a person found guilty of committing a crime), be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole____ The period of time for which the parole violator is required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator.
If a new sentence is imposed upon such parolee, the service of the balance of said term originally imposed shall precede the commencement of the new term imposed in the following cases:
(1) If a person is paroled from any State penal or correctional institution under the control and supervision of the Department of Justice, and the new sentence imposed upon him is to be served in any such State penal or correctional institution, (emphasis added)

In this case, even had the defendant commenced his sentence at the State Correctional Institution pursuant to the Order of October 21, 1983 at No. 175 of 1977, upon recommitment by the Board of Parole, that sentence could not be served until the completion of the term invoked by the violation of parole. A parole violator convicted and sentenced to prison for another offense must serve his or her “back time” and the new sentence is to run consecutive (and not concurrent) to the time remaining on the original sentence. Commonwealth v. Dorian, 503 Pa. 116, 468 A.2d 1091 (1983). Construing 42 Pa. C.S.A. §§ 9701 et seq., 9761, 61 P.S. § 331.21a. The net effect, upon application of Dorian is that neither sentence to the State Correctional Facility, that at issue, 116 of 1983, or the sentence of October 21, 175 of 1977, could supersede the parole violation order, once the defendant was returned to Parole Board custody, that being accomplished upon his transfer to the State Correctional Facility or Diagnostic Center. Defendant, pursuant to the Parole Violation order, would be required to serve the “back time” as opposed to “front time”, thus service of at least some part of the sentence of 116 of 1983, still remains to be served, and, therefore, this matter is not moot. Since on the record we are unaware of the actions of the Parole Board, and that knowledge is critical to determine the issue of mootness, the question now remains whether this matter can be resolved aside from a finding of mootness.

The trial courts, at this particular time, are under extreme pressure concerning commitments to county institutions and since many jails are under federal court order to reduce population, resulting in release and transfer of thousands of inmates committed by the courts, some clarification of judicial power in this area would be useful. We take notice of media reports of release or transfer in the past year of 2065 prisoners from the Allegheny County Jail in compliance with a federal order placing a cap on the jail population.

Pursuant to 42 Pa.C.S.A. § 9762, Sentencing proceedings; place of confinement, sentences of less than 2 years may (under certain conditions) be served at a state facility, and 61 P.S. § 72, Transfer to and from institutions, etc., authorizes and provides for the administrative transfers of persons confined in penal institutions. Additionally, 61 P.S. 75, Effect of transfer on sentence, etc., provides that such transfers are not to effect the terms of. sentence originally imposed. While we recognize these statutory provisions do not apply in this instance, they do provide guidance for our analysis of the issue presented here. Also, we are aware that the legislature has imposed the sole responsibility for transfer of a prisoner from one state institution to another in the Department of Corrections, 71 P.S. § 303, In Re Peiffer’s Petition, 193 Pa.Super. 476, 166 A.2d 325 (1960).

A convict has no constitutional or other inherent right to serve his imprisonment in any particular institution or type of institution. Commonwealth ex rel. Radziewicz v. Burke, 169 Pa.Super. 263, 82 A.2d 252 (1951). Appellant is now or will be serving the same sentence which was originally imposed although in a different place of confinement. This does not constitute an increase in punishment or sentence. Commonwealth ex rel. Stranahan v. Banmiller, 190 Pa.Super. 420, 154 A.2d 307 (1959). The change in place of confinement was made pursuant to and in compliance with due process, that is upon a petition and hearing and for cause shown. Also despite defendant’s plea that penitentiary time as opposed to county jail time is an increase in punshiment, this is belied by his own statement under oath at sentencing, to wit:

Your honor ... four and a half years was done in a bullpen environment, up here in [the] County Jail. That is hard time, I can tell you myself, so can other inmates. One year is like five years in the joint, (penitentiary) its not easy time, (sentencing transcript at p. 12.) (emphasis added)

Under Pa.R.Crim.P. 1410, Motion to Modify Sentence, such a motion must be filed within 10 days after imposition of sentence. Admittedly the District Attorney acted three months from time of sentence (June 30, 1983) filing its Motion to Correct Sentence on September 30, 1983. However, under the authority cited above, it is clear that a transfer from one institution to another, when it is not done for punitive purposes, is neither an increase in sentence nor a modification of sentence. A court has the inherent power to correct an illegal sentence, or obvious and patent mistakes in its orders at any time. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 n. 6 (1983); Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970); also see Comment to Pa.R.Crim.P. 1410. It is apparent the court was laboring under a misapprehension of fact as to the status of appellant in relation to the various sentences facing him. Here the court was unaware of any detainer and its effect on his sentence. The policy behind requiring that a person sentenced to simple imprisonment serve the sentence in a county jail and not a state penitentiary, recognizes that such a person, who is rarely in trouble, should not be subjected to imprisonment with persons guilty of serious misdemeanors or felonies. Commonwealth v. Stauffer, 214 Pa.Super. 113, 251 A.2d 718 (1969). To this we must add the emergent policy of accommodating county prisons primarily for the purpose of persons awaiting trial, and presumed to be innocent, as opposed to persons convicted of a crime. Because of overcrowding, prisoners, particularly in Philadelphia and Pittsburgh, are constantly subject to the possibility of movement to another institution and it is far better that the sentencing judge be involved in that process rather than the warden, acting under the rubber stamp of federal district court. Once it appeared that defendant was required to serve a number of years in a penitentiary as a parole violator, any rationale for retaining him in the local prison was obviated. The total combined maximum sentence was far in excess of two years, and was in fact beyond the five year maximum that requires he be sentenced to the Bureau of Corrections under 42 Pa.C.S.A. § 9762.

Even should we have found the matter to be moot, under these circumstances, there would have been no prejudice to the appellant on the amendment of the sentence by the trial judge to have the appellant serve it in a state institution. The Order of October 4, 1983, transferring the appellant to a state institution, is affirmed.

Order affirmed.

BROSKY, J., concurs in the result.

ROBERTS, J., concurs with statement.

ROBERTS, Judge,

concurring:

As Judge Tamilia’s opinion makes clear, the appellant is not subjected to an increase in punishment by virtue of the order amending his sentence, which merely changes the place of confinement from the Erie County Jail to the state institution where he is currently serving an extended sentence. Appellant has in no way established his entitlement to any relief, and consequently I join the order of affirmance.

      . As the sentencing transcript and the record indicate the sentence is 8-16 months, the lower court correctly stated the time to be 8-16 months in its Order amending the place where the sentence was to be served, although in its Opinion, sentence was erroneously stated to be 6-18 months.

      . In fact, a check with the parole board shows that their records indicate a revocation of parole and imposition of an additional 27 months on the parole violation.

      . The lower court Opinion details the following:
      Appellant, as a convicted parole violator, was required to serve the balance of his term of five to ten years for voluntary man’slaughter imposed in 1977 at No. 879 of 1977. In addition to the presently contested sentence of 8-16 months at No. 116 of 1983, he was also sentenced at 472 of 1973 to serve 6 months (to 12 months) at a state correctional institution.


author: CAVANAUGH, Judge: SPAETH, President Judge,

text:
    489 A.2d 813
    COMMONWEALTH of Pennsylvania, Appellee, v. Gerald L. CAPPELLI, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1984.
    Filed March 1, 1985.

      Robert F. Pappano, Chester, for appellant.
    Helen Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, JOHNSON, POPOVICH and CERCONE, JJ.

       Cercone, J. did not participate in the consideration or decision of this case.

   CAVANAUGH, Judge:

Appellant, Gerald L. Cappelli, seeks to set aside his judgment of sentence on the grounds that (1) the trial court erred in refusing his motion to reconsider sentence and withdraw his guilty plea without a hearing; (2) he was denied effective assistance of counsel; (3) the lower court erred in not assigning sufficient and adequate reasons for the sentence imposed; and, (4) the sentence imposed was manifestly excessive. We find no merit to any of these contentions and, therefore, affirm.

We may consider the first and second claims together since they are related. It is claimed that the court erred in failing to provide a hearing upon his post-sentence petition to withdraw his guilty plea. Conjunctively, it is claimed that trial counsel (different from present appellate counsel) was ineffective in that he “had indicated, prior to the entry of the guilty plea” that appellant would receive a sentence which was considerably less than the sentence actually received. Appellate counsel asserts that if there had been a hearing on the motion to withdraw the guilty plea this point' would have been established.

We first observe that the challenge to the guilty plea was made after sentencing and that, therefore, the standard for determination of the right to withdraw is a showing of manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973); Commonwealth v. Ammon, 275 Pa.Super. 324, 418 A.2d 744 (1980). See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1 (Approved Draft 1968). We next look to appellant’s motion to withdraw the guilty plea, which in this case was joined with a motion to appoint counsel and a motion to reconsider sentence. The reason given for withdrawal of the plea is that appellant “was mis-led by Counsel as to what the severity of the sentence would be” and that “in light of his age, intelligence, and standing he believes that the Guilty Plea was not knowingly and intelligently entered____” The trial court refused to grant a hearing upon appellants motions but did appoint new counsel to represent appellant on appeal. Under these circumstances, did the court err in not providing appellant with a hearing on his petition to withdraw his guilty plea? We think not. On October 8, 1981, Cappelli entered his guilty plea after an extensive colloquy. The guilty plea was a negotiated one which was memorialized in a detailed agreement which had been signed by appellant, his attorney and the district attorney. The agreement was placed in the record and there were painstaking efforts to assure that Cappelli understood the nature of the plea agreement.

At the outset, the court and the district attorney established the background giving rise to the plea:

MR. WIEDEMER: [Assistant District Attorney]
Good morning, Your Honor. May it please the Court, inviting the Court’s attention to Commonwealth versus Gerald Cappelli, 3325 of ’81 and 3516 of ’81. Let the record reflect the defendant is in court represented by Randolph Von Till, Esquire. Your Honor, this is a negotiated plea. There is a detailed agreement or plea agreement in this matter. I ask leave to hand up the original copy of this agreement signed by the Commonwealth’s attorney, the defendant, and Mr. Von Till.
THE COURT: I think that you’ll have to express the agreement on the record as far as handing it up, so I can be sure he understands what’s going on, et cetera.
Jerry, how old are you?
THE DEFENDANT: Twenty.
THE COURT: And Mr. Von Till is your lawyer?
THE DEFENDANT: Yes.
THE COURT: Now, have you been having meetings and conferences with Mr. Von Till?
THE DEFENDANT: Yes.
THE COURT: And are you satisfied that he understands the facts of all of the cases against you?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied that he’s represented you to the best of his ability and for your best interests?
THE DEFENDANT: Yes.
THE COURT: Do you have any complaints or criticisms about his representations of you?
THE DEFENDANT: No.
THE COURT: Are you satisfied with his representation of you?
THE DEFENDANT: Yes.
THE COURT: All right.
MR. WIEDEMER: Very well. May I go forward, Your Honor?
THE COURT: Yes.
MR. WIEDEMER: And now this first day of October, 1981, I, Gerald Cappelli, enter into the following agreement with the Commonwealth of Pennsylvania represented by A. Roy DeCaro, Deputy District Attorney and Kirk V. Wiedemer, Assistant District Attorney. I am entering this agreement with the advise [sic] and assistance of Counsel. My Counsel is Randolph Von Till, Esquire. I have reviewed this agreement with my Counsel and have discussed all of its terms with him. All the terms and conditions of this agreement have been explained to me and I fully understand them. I am entering into this agreement of my own free will. I am entering into this agreement voluntarily. I have not been forced or coerced to enter into this agreement. I am entering into this agreement because I am guilty of the crimes to which I will hereafter agree to plead guilty and because I believe that entering into this agreement is in my best interest.

Thereafter, the multiple charges to which Cappelli was pleading guilty were described and the agreement was further read into the record:

I, Gerald Cappelli, am agreeing to plead guilty to all of the offenses listed above because I am guilty of all and each of them.
I, Gerald Cappelli, agree to fully cooperate with the Commonwealth of Pennsylvania in the prosecution of any and all of the following persons: Richard Yacoubian, Tyrone Fox, Paul Cummings.

Thereafter, appellant’s specific obligations under the agreement were stated, and we quote, in part:

I, Gerald Cappelli, understand that in exchange for the above and foregoing, the Commonwealth of Pennsylvania, by Messrs. DeCaro and Wiedemer agree to make the following recommendations:
1. At time of my sentencing, the Commonwealth will recommend that the sentences on the crimes to which I am entering pleas of guilty as stated above will all be concurrent to and with one another.
2. That my minimum term of incarceration will not exceed ten years and that my maximum term of incarceration will not exceed twenty years.
3. That the actual terms of my sentence will be up to the sentencing Judge, in the Judge’s discretion, not to exceed the terms set forth immediately above. I understand that this means that I could go to jail for a minimum of ten years to a maximum of twenty years or for any period of time less than those periods.
I, Gerald Cappelli, understand that if I violate any of the terms of this agreement that the agreement becomes null and void and that the Commonwealth will not be bound by its terms, and that should I violate the agreement after I tender my guilty pleas and after they are accepted by the Court of Common Pleas of Delaware County and the Commonwealth of Pennsylvania will be free to make whatever sentencing recommendations it deems appropriate up to and including maximum consecutive jail terms for all of the crimes to which I am pleading guilty and for which I can be sentenced.
I have read and reviewed this agreement with my Counsel. I fully understand all of its terms. I am entering into this agreement fully and voluntarily, not having been pressured, coerced, or otherwise forced to do so.
By signing this agreement, I intend to be bound by its terms.
The original copy that I’ve handed up to the Court contains the signature of Mr. Cappelli, Mr. Von Till, Mr. DeCaro and myself, Your Honor.

At this point, the court took up further inquiry of appellant:

THE COURT: Jerry, Mr. Wiedemer is going to read me the facts which give rise to and support each one of the crimes to which you’re pleading guilty. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: I want you to listen closely and I’m sure Mr. Von Till will be listening with you. If there’s any change, you simply interrupt as Mr. Von Till has up to this point to bring to the attention of the Court any change. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you do not have to plead guilty to anything?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you don’t have to enter into any agreement? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if you wanted jury trials or non-jury trials on every one of the charges against you, we would give you such a trial and as a matter of fact, we have fixed trial dates as you’ve probably been aware beginning October 19th. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And do you understand that no matter what Mr. Von Till tells you, if you weren’t guilty and you didn’t want to plead guilty because you weren’t guilty, or if you didn’t want to plead guilty for any other reasons, we would have a trial. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Has anybody forced you or threatened you in any way in order for you to plead guilty?
THE DEFENDANT: No.
THE COURT: Now, this is a written agreement which indicates that you have previous to today read it and Mr. Wiedemer has today put it on the record. Do you understand that agreement?
THE DEFENDANT: Yes.
THE COURT: Is there anything about the agreement you don’t understand?
THE DEFENDANT: No.

Following an exhaustive colloquy as to the specific charges to which appellant was pleading guilty, he was further asked:

MR. VON TILL: Now, do you understand that the guilty plea will appear on your record as a conviction?
THE DEFENDANT: Yes.
MR. VON TILL: Do you understand what a conviction means? It’s the same as a jury finding you guilty or a Judge finding you guilty. Do you understand that?
THE DEFENDANT: Yes.
MR. VON TILL: And you do understand what the maximum sentences are?
THE DEFENDANT: Yes.
MR. VON TILL: Understanding those, you are making a statement of your own free will?
THE DEFENDANT: Yes.
MR. VON TILL: And that you haven’t been threatened, forced, or pressured in any way to make that guilty plea?
THE DEFENDANT: Yes.
MR. VON TILL: And that you have not received any promise for sentence in exchange for entering that except that which was read into the record at the beginning of the proceedings. Do you understand that?
THE DEFENDANT: Yes.
MR. VON TILL: And you did sign that in my presence and in your presence and Mr. Wiedemer’s presence downstairs, the District Attorney’s Office a couple days ago?
THE DEFENDANT: Yes.
MR. VON TILL: And that is the sole understanding that exists between the Commonwealth of Pennsylvania and you?
THE DEFENDANT: Yes.
MR. VON TILL: Now, you’ve read this statement with me and we’ve discussed it?
THE DEFENDANT: Yes.

and, further:

MR. VON TILL: And are you satisfied that I’m prepared to represent you and proceed to trial if you were not going to plead guilty as you are doing today.
THE DEFENDANT: Yes.
MR. VON TILL: And are you now suffering from any mental illness?
THE DEFENDANT: No.
MR. VON TILL: Are you intoxicated today? Did you have any alcoholic beverages?
THE DEFENDANT: No.
MR. VON TILL: Did you take any drugs this morning or in the last couple of days?
THE DEFENDANT: No.
MR. VON TILL: And you are 20 years of age?
THE DEFENDANT: Yes.
MR. VON TILL: How far did you get in school?
MR. VON TILL: Do you understand that English language?
THE DEFENDANT: Yes.
MR. VON TILL: And you can read it and write it?
THE DEFENDANT: Yes.
MR. VON TILL: And do you understand what we’ve discussed today?
THE DEFENDANT: Yes.

Finally, the matter reached its conclusion:

MR. VON TILL: Do you have any other questions?
THE DEFENDANT: No.
MR. VON TILL: Your Honor, I would ask that the pleas be made part of the record.
THE COURT: Jerry, Mr. Von Till has very carefully and in detail explained the rights that you have and the rights that you are giving up. Do you have any questions?
THE DEFENDANT: No.
THE COURT: You want to ask me or him concerning those things?
THE DEFENDANT: No.
THE COURT: You fully understand what’s going on?
THE DEFENDANT: Yes.
THE COURT: Now, you are going to be asked to sign in each specific case the informations to which you are pleading guilty. You’ll do that after I leave the bench but you’ll be asked to sign those and I know it will take some time, so Mr. Von Till will sit with you at the table and make sure you sign the rights ones because a couple of them are not going to be used. You understand, Jerry, if I accept this plea agreement, you are bound by the terms of that plea agreement as it’s been explained to you and as I further explained to you?
THE DEFENDANT: Yes.

In order to ensure that defendants who enter guilty pleas are fully informed of the nature and results of a guilty plea, our courts have provided for strict adherence to detailed procedures in order to effectively plead guilty to criminal charges. See Pa.R.Crim.P. 319 (Pleas and Plea Agreements). The exhaustive plea proceedings in this case represent a thorough compliance with the requirement of our rules and cases. To now require the court to conduct a hearing based upon a simple repudiation of all that was said at the guilty plea proceedings after sentencing, would depreciate the gravity which our procedures attach to guilty plea proceedings. Here, the record demonstrates that appellant, in open court, persuaded the court to accept his plea and unerringly evinced a full and voluntary understanding of his plea and its ramifications. Under the circumstances, it would be an affront to the dignity of the court and orderly procedures to direct that a hearing must be held because of the naked allegation that defendant’s counsel had, prior to the entry of the plea, indicated to the defendant that he would receive a sentence less than the one which defendant unmistakeably agreed was proper under his plea negotiation. We, therefore, hold that the court did not err in refusing to grant a hearing. Our decision has substantial support in the case law. In Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976) our court affirmed the denial of P.C.H.A. relief without a hearing. In that case, as here, it was alleged that the defendant was promised sentences at variance with the stated sentence in the colloquy. We affirmed and there stated:

A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We can not permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel.

Id., 242 Pa.Superior Ct. at 247, 363 A.2d at 1253.

Similarly, in Commonwealth v. Welch, 425 Pa. 591, 229 A.2d 737 (1967) our Supreme Court rejected the necessity for a hearing in a P.C.H.A. petition wherein appellant asserted that he was given assurances by his attorney which were at variance with his unequivocal record responses at the time of his plea. Accord Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983); Commonwealth v. Vesay, 318 Pa.Super. 320, 464 A.2d 1363 (1983); Commonwealth v. Scott, 318 Pa.Super. 526, 465 A.2d 678 (1983); Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983); Commonwealth v. Egan, 322 Pa.Super. 71, 469 A.2d 186 (1983); Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983); Commonwealth v. Young, 245 Pa.Super. 298, 369 A.2d 412 (1976).

Despite the fact that, in the main, these cases involve denial of a hearing in P.C.H.A. proceedings we feel that the same principle applies to denial of a hearing in a withdrawal of guilty plea proceeding especially where, as here, the petition was made to the court which accepted the plea, pronounced sentence and consequently is in the best position to determine whether or not the petition merits a hearing.

To be sure, there are cases which can be read to support the view that a hearing should be held. In Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978) our court remanded for a hearing when the P.C.H.A. voluntariness claim was at variance with statements in the guilty plea colloquy. See also Commonwealth v. Henderson, 298 Pa.Super. 180, 444 A.2d 720 (1982); Commonwealth v. Farnwalt, 286 Pa.Super. 559, 429 A.2d 664 (1981); Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979). It is true that in “borderline” cases a hearing should be granted. See Commonwealth v. Strader, supra. However, this should not lead to the grant of a hearing every time a claim is made that a guilty plea was improperly induced. When the claim (usually one of the promise of a more lenient sentence than the colloquy would permit) in support of withdrawal is clearly contradicted by the unambiguous language of a guilty plea colloquy we should be hesitant to set aside the trial court’s determination that a hearing is unnecessary. Indeed, the language of Pa.R.Crim.P. 321 makes it clear that a hearing is not contemplated in every motion to withdraw a guilty plea.

(c) The trial court may schedule a hearing on the motion and shall determine whether the motion shall be argued before one judge alone or before a panel of judges sitting as a court en banc. Whenever a single judge hears the motion alone, the judge may make any ruling that could be made by a court en banc. (Emphasis added.)

We, therefore, reject the claim that the trial court erred in refusing to grant a hearing on the motion to withdraw the guilty plea and that trial counsel was ineffective for promising appellant that he would receive a lesser sentence. Even if evidence of such sentence promises were received, they would be of no avail since this evidence could not be heard to contradict the incontrovertible terms of the record plea. See Commonwealth v. Edrington, supra; Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984); Commonwealth v. Garvin, 335 Pa.Superior Ct. 560, 485 A.2d 36 (1984).

We shall now turn our attention to appellant’s issues centering on the sentencing hearing.

At the sentencing hearing, the court heard evidence of appellant’s co-operation with authorities and of the broken home from which appellant came. Before pronouncing sentence, the court made this statement:

THE COURT: Well, Jerry, I guess you learned that a synagogue or a church is where good people go to pray.
THE DEFENDANT: Yes, Your Honor.
THE COURT: And most of these or a good many of these crimes involved those places. Jerry, as with the other defendants I have already said something about my thinking as to sentencing. In your particular case I am aware that you are on parole for I think it is a burglary and [defense counsel] has explained how that happened and when it happened. I figured out here what the maximum term could have been about a hundred and sixty-seven years. I don’t think I would have done that to you. You are lesser in the group that agreed to a cap of ten to twenty, but it doesn’t really make a difference when you look at it because there are so many crimes committed. You admitted to four burglaries as well as the other crimes of corrupt organizations. And when I tried to distinguish between you because of that cap I can’t, and I know that you tried to cooperate and that is why I am not disturbed with the cap that was placed. But obviously, as [defense counsel] has conceded, I could not think of putting you on probation. I have to go through that and take that step, but you are not a fit subject for probation and then you compounded these crimes by the silly thing you did involving the police. You pleaded guilty to resisting arrest, but the facts of the case could have been much more serious. Fortunately they weren’t. So the very people who were involved in the investigation of these sickening crimes had a problem with you and I can’t forget that. I can’t let the police think that society is not interested in their protection when they are doing their duty and doing a good job as they did in this case. So I have considered all of those things. I know something about you from reading the presentence investigation and from what defense counsel has told me. I know about the needs of the community. I have said it before, the community has to be protected. It cannot be ravaged as it has been in these series of events and I have put a message out and I intend to do that.

The court then sentenced appellant to a term of ten to twenty years on each of the counts of burglary and on the one count of conspiracy, plus sentences of two to four years for simple assault and one to two years on the four remaining counts of conspiracy and for possession of a controlled substance. All sentences were ordered to run concurrently.

Regarding his sentence, appellant argues first that the court did not assign adequate reasons for the imposition of sentence, and, second, that the sentence imposed was manifestly excessive. In the seminal case of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Supreme Court ruled that a sentencing court must place its reasons for a sentence on the record to show that the court took into consideration the sentencing guidelines enumerated by the Legislature. The factors listed by the Legislature as supporting a sentence of total confinement include a consideration that there is an undue risk that, if given probation or partial confinement, the defendant would commit another crime; that the defendant is in need of correctional treatment and, that a lesser sentence will depreciate the seriousness of the crime committed by the defendant.

A review of the record of sentencing reveals that the court took many factors into consideration as sentencing. The court acknowledged appellant’s co-operation with authorities, but the court also noted that appellant committed a great number of crimes and was presently on parole. The court further noted that when appellant was arrested, he resisted arrest. Citing the above factors, the court found appellant not to be a fit subject for probation, a conclusion, as the court observed, in which even defense counsel concurred. The court additionally stated that by its sentence, it was endeavoring to protect the community and, further, “to put a message out”, which is another way of saying that a lesser sentence would depreciate the seriousness of the offenses.

We find the above reasons to be adequate. Although the sentencing judge did not specifically refer to sections in the Sentencing Code, it has been held that a court is not required to list the criteria of the Code and detail his response to each section. Commonwealth v. Stufflet, 291 Pa.Super. 516, 436 A.2d 235 (1981). In the instant case, the sentencing court weighed appellant’s character as a repeat offender against the need of the community to be protected. Thus, the court exhibited its consideration of the relevant factors. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978).

Furthermore, the sentence was not manifestly excessive. As the court observed at sentencing, had appellant not entered into the agreement with the Commonwealth, appellant could have received a sentence of one hundred and sixty-seven years. Appellant’s sentence of ten to twenty years was well within that allowed by law. Also, as was previously discussed, the court adequately listed its reasons for the sentence. We, therefore, do not find the sentence to be manifestly excessive. Commonwealth v. Valentin, supra.

Judgment of sentence affirmed.

SPAETH, President Judge, files concurring opinion.

CERCONE, J., did not participate in the consideration or decision of this case.

SPAETH, President Judge,

concurring:

I agree that the judgment of sentence should be affirmed. However, I should rest that conclusion on the vagueness of the motion to withdraw the guilty plea, without reaching the issue of when, or whether, a defendant by specific motion to withdraw a plea may contradict what was said in the colloquy incident to acceptance of the plea.

      . The notes of testimony of the guilty plea proceedings cover fifty-seven pages.

      . 42 Pa.C.S. § 9725.