text:
    434 A.2d 196
    Carmen WILLIAMS, Trading and Doing Business as C. W. Coal Company, v. Victor E. VESLEY and Margaret Vesley, his Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1981.
    Filed Aug. 28, 1981.

      Vincent J. Roskovensky, II, Uniontown, for appellants.
    Gregg M. Rosen, Pittsburgh, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

In late December, 1977, the Plaintiff-Appellee initiated an action to quiet title, requesting that the lower court declare an agreement concerning the mining of coal to be valid. The agreement gave the Appellee the right to strip mine land owned by the Defendant-Appellants in Fayette County. The Appellants claimed that the Appellee had violated the terms of the agreement and lost any right to mine coal on their property. The lower court conducted a hearing and considered evidence in the matter, and found that the Appel-lee retained a right to mine on the Appellants’ land. The Appellants filed exceptions which were dismissed by the lower court en banc, and the Appellants filed the instant appeal with our Court.

The record shows that on September 11, 1976, the Appellants entered into a coal lease granting the Appellee the right to conduct coal mining operations on the Appellants’ property. The agreement was in a form prepared by the Appellee. As prepared, it set forth, inter alia, that: “The original term of this agreement is for a period of three (3) years, or, until all of said coal shall have been mined and removed therefrom. Testing operations shall begin as soon as practical; upon determination that coal can be profitably mined, such coal mining shall commence within thirty (30) days from the date of Permit issuance by the Commonwealth of Pennsylvania, Department of Natural Resources.” At the time the agreement was executed, the Appellants insisted upon the insertion of the following language, as a separate paragraph in the agreement: “Coal mining shall commence within twelve months from the date of this agreement.”

Within thirty days after the execution of the agreement, a mining contractor for the Appellee commenced exploratory drilling on the property. In early November, 1976, the Appellee’s contacting miner submitted a permit application to the Pennsylvania Department of Environmental Resources. Subsequently, the Department was supplied with all requested technical data relating to its permit application review process. During 1977, after a considerable delay in action on the permit application by the Department of Environmental Resources, representatives of the Appellee traveled to Harrisburg to meet with representatives of the Department of Environmental Resources to attempt to promote action on their permit application. Finally, after further procedures by the Department of Environmental Resources, a permit was issued on October 28, 1977, which authorized the Appellee to mine the Appellants’ property. On November 10, 1977 the Appellee’s contract miner posted a bond, complying with all necessary prerequisites to commence mining. The Appellants however refused to allow the Appellee and his contract miner to commence mining. The Appellants based their position upon the claim that the Appellee had violated the provision of the agreement stating that mining should commence within twelve months from the date of the agreement, or no later than September 11, 1977.

The lower court, while recognizing that mining had not commenced within twelve months of the initial date of the agreement, nevertheless found that the Appellee retained an enforcible right to mine the Appellants’ land. The lower court found that the clause concerning the commencement of mining within the initial twelve month period was inserted by the parties merely to prompt the Appellee to make every reasonable effort to commence mining at the earliest possible date. However, the lower court found that the clause was not sufficient to create a forfeiture of the Appel-lee’s rights under the agreement when the commencement of such mining was the result of circumstances beyond the control of the Appellee, and occurred despite the Appellee’s best efforts to diligently complete all steps necessary in order to begin mining the property. We believe that the record supports the conclusions reached by the lower court.

The Appellants’ position, if sustained, would require us to work a forfeiture of the Appellee’s rights under the lease. It is well-established that equity does not favor a forfeiture and our courts have been greatly hesitant in enforcing one, especially when a contract has been carried out or its literal fulfillment has been prevented by uncontrollable circumstances. Barraclough v. Atlantic Refining Co., 230 Pa.Super. 276, 326 A.2d 477 (1976). Further, forfeitures are viewed as odious in law, and are enforced by our courts only where there is the clearest evidence that a forfeiture was what was meant by the agreement of the parties. See Brown v. Brown, 164 Pa.Super. 350, 64 A.2d 506 (1949). In the instant case, it is clear that the Appellee made every reasonable and possible effort to commence actual mining operations as soon as possible. The record clearly establishes that the Department of Environmental Resources was unduly dilatory in the processing of the Appellee’s application for the necessary permits to begin the mining operation. Moreover, the record shows that the clause upon which the Appellants rely, concerning the commencement of mining operations within one year, was inserted without a specific provision for forfeiture. Decisions in our courts have held that the right to forfeit a mineral estate, in situations such as the instant one, must be distinctly reserved and as a general rule promptly exercised; further, the result of enforcement of such rights must not be unconscionable. See and compare Scilly v. Bramer, 170 Pa.Super. 276, 85 A.2d 592 (1952), and cases cited therein. The agreement under consideration in the instant case does not specifically state that any forfeiture will occur. While the lease does provide that the Appellants would be authorized to confess judgment for the recovery of possession of the demised premises if any of the terms of the lease were violated, the Appellants took no such action against the Appellee in the lower court. In view of all of these circumstances and the prevailing case law, as noted above, we cannot conclude that the lower court erred in its disposition of the case.

The order of the lower court is hereby affirmed.

      . The lower court found an action to quiet title to be inappropriate in the circumstances presented in the instant case. Instead, the court treated the action as one in ejectment. The correctness of the lower court’s action, in that regard, is not challenged by either party on this appeal. Therefore, we do not consider it as an issue in this case.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    434 A.2d 198
    Dr. Norman KURTZMAN, v. Julia B. PASSYN, Esquire, Theodore Passyn, and Mar-Fax, Inc., a Pennsylvania Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Aug. 28, 1981.
    Robert G. Bernberg, Philadelphia, for appellants.

      Fred Lowenschuss, Philadelphia, for appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in quashing their appeal from an arbitration award. We agree and, accordingly, reverse the order of the lower court and remand for reinstatement of the appeal.

Appellee commenced this action in assumpsit against appellants in early 1977. The matter was submitted to compulsory arbitration, and on June 20, 1979, after hearing testimony, the arbitrators found for appellee in the amount of $7,500. The award of the arbitrators was docketed on June 27, 1979. Nineteen days later, on July 16, 1979, appellants filed an appeal from the arbitration award in the Court of Common Pleas of Philadelphia County. On that same day appellants purchased a money order for $241.18, the exact amount specified in a bill of costs which they had received from appellee, and their counsel sent it by certified mail to appellee’s counsel at the office address listed on papers which the latter had filed earlier in the litigation. Appel-lee’s counsel had, however, moved his office sometime during the pendency of the litigation, and consequently the envelope containing the money order for appellee’s accrued costs was returned unopened to appellants’ counsel on July 26, 1979, twenty-nine days after the docketing of the arbitration award. Realizing his mailing error, appellants’ counsel had the money order hand-delivered that same day to appellee’s counsel at his new address. Appellee has apparently retained the payment of costs to date.

On August 21, 1979, appellee filed a motion to quash appellant’s appeal from the arbitration award. The basis of the motion was appellants’ failure to pay appellee’s accrued costs within twenty days, pursuant to 5 P.S. § 71 (repealed). Appellee noted in his motion that appellants had tendered the costs on July 26, but contended that such tender was untimely. The lower court agreed and granted appellee’s motion to quash. This appeal followed.

Appellants contend that they made an honest effort to pay all appellee’s accrued costs within twenty days after the docketing of the arbitration award, and that the mere fact that they inadvertently mailed their payment to the wrong address does not warrant the quashing of their appeal. We agree. The payment of costs requirement of 5 P.S. § 71 has been held to be mandatory and jurisdictional. James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 334-35, 346 A.2d 765, 767 (1975). Nonetheless, our Court has held that

a valid attempt to make such timely and full payment, coupled with substantial though incomplete compliance with the requirement should not result in the harsh finality of an order quashing an appeal from arbitration. Rather, our courts should examine the appellant’s attempts at compliance in order to determine whether an honest effort has been made to meet the requirements of the statute.

Black and Brown, Inc. v. Home for the Accepted, Inc., 233 Pa.Super. 518, 522, 335 A.2d 722, 724 (1975) (footnote omitted). See also Sager & Sager Associates v. Bock, 280 Pa.Super. 459, 421 A.2d 812 (1980); Mikita v. Bailey Homes, Inc., 265 Pa.Super. 399, 401 A.2d 1367 (1979); Lehman v. Moody, 260 Pa.Super. 428, 394 A.2d 1002 (1978); Friedgen v. Evangelical Manor, 253 Pa.Super. 216, 384 A.2d 1309 (1978). In Sager & Sager Associates v. Bock, supra, we applied this principle and reversed an order quashing an appeal from compulsory arbitration under the following circumstances. After filing an appeal from an adverse arbitration award, the defendants inquired at the prothonotary’s office to ascertain the plaintiff’s accrued costs. Upon being informed that the docket reflected costs of $200, they paid that amount to the prothonotary. Subsequently, the plaintiff successfully moved to quash the appeal on the ground that the defendants had failed to pay certain filing and sheriff’s fees totalling $40.65, of which the prothonotary had failed to inform them. We reversed, holding that “[t]he fact that the prothonotary erroneously did not include plaintiff’s filing fee and sheriff’s fee in the total does not change the fact that defendants] made a timely attempt to pay all the costs, though this later proved to be incomplete compliance.” 280 Pa.Super. at 461, 421 A.2d at 813. Cf. Black and Brown, Inc. v. Home for the Accepted, Inc., supra (trial court properly quashed appeal from compulsory arbitration where appellant made no attempt whatsoever to pay any costs during appeal period).

We believe that the facts of the present case warrant the same result as that reached in Sager & Sager Associates v. Bock, supra. Appellants made an honest attempt to pay all appellee’s accrued costs within twenty days after the docketing of the arbitration award. Had they mailed their payment to the proper address they would have been in full compliance with the payment of costs requirement of 5 P.S. § 71. As soon as appellants discovered their mailing error, they attempted to rectify it by promptly hand-delivering payment to appellee’s attorney at his new office. We are unpersuaded by appellee’s efforts to characterize what appears to be an honest mistake as a calculated effort to delay the proceedings. Accordingly, we reverse the order of the lower court and remand for reinstatement of the appeal.

So ordered.

      . Section 71, in relevant part, required a party wishing to appeal an arbitration award to “pay all costs that may have accrued in such suit or action,” § 71(11), “within twenty days after the day of the entry of the award of the arbitrators on the docket,” § 71(IV). Pursuant to the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [149], clause IV of section 71 was repealed effective June 23, 1978. Most of the remainder of section 71 was repealed effective June 27, 1980. Payment of accrued costs is no longer a requirement for perfecting appeals from compulsory arbitration. See Pa.R.Civ.P. 1308 (effective May 15, 1981) and its accompanying Explanatory Note.

      . Appellants contend additionally that pursuant to 42 Pa.C.S.A. § 5571(b), the statutory period for perfecting their appeal from compulsory arbitration was 30, rather than 20 days as the lower court held. Thus, appellants argue, their tender of the accrued costs on July 26, 29 days after the docketing of the award, constituted full and timely compliance with the payment of costs requirement in effect at the time they took their appeal. Appellee responds that this contention is waived because appellants did not raise it in the court below. We need not address this matter because of our conclusion that even if appellants had only 20 days in which to perfect their appeal, they substantially complied with the payment of costs requirement within that time period. We note, however, that at the time appellants filed their appeal in the lower court, the statutory period for perfecting an appeal from compulsory arbitration was (and still is) 30 days. In concluding that appellants’ tender of costs was untimely, the lower court relied on 5 P.S. § 71(IV), which established a 20-day period for the perfecting of appeals from compulsory arbitration. See note 1 supra. Section 71 (IV), however, was no longer in effect when appellants filed their appeal from arbitration, having been repealed effective June 23, 1978. See note 1 supra. Since the repeal of section 71 (IV), the time period for perfecting appeals from compulsory arbitration has been governed by 42 Pa.C. S.A. § 5571(b), which states in relevant part: “[A]n appeal from a tribunal or other government unit to a court ... must be commenced within 30 days after the entry of the order from which the appeal is taken .... ” See Acri v. Wintermeyer, 285 Pa.Super. 486, 428 A.2d 150 (1981) (local rule of court establishing 20-day period for appeals from compulsory arbitration invalid because in conflict with section 5571(b)); Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981) (section 5571(b) establishes time period for perfecting appeals from compulsory arbitration); Lewis v. Erie Insurance Exchange, 281 Pa.Super. 193, 200 n.7, 421 A.2d 1214, 1218 n.7 (1980) (noting in dictum that “an award by a board of arbitrators in a compulsory arbitration would be subject to the thirty day appeal period specified in ... § 5571[(b)].”). The 30-day appeal period mandated by section 5571(b) has been expressly incorporated into our rules of civil procedure. See Pa.R.Civ.P. 1308(a)(1) (effective May 15, 1981). See also former Pa.R.Civ.P. 247.1 (rescinded effective May 15, 1981).

      . We recognize, as the lower court pointed out in its opinion, that appellants should have been aware of appellee’s counsel’s new address inasmuch as it was plainly printed on the bill of costs submitted to them immediately after the arbitrators made their award. This oversight, however, does not alter our conclusion that appellants made an honest effort to comply fully with the payment of costs requirement and therefore should not suffer the “harsh finality” of having their appeal quashed. Black and Brown, Inc. v. Home for the Accepted, Inc., supra 233 Pa.Super. at 522, 335 A.2d at 724.


author: PER CURIAM:

text:
    434 A.2d 201
    COMMONWEALTH of Pennsylvania, v. Anthony Robert DUPREE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Aug. 28, 1981.
    Application for Reargument Denied Dec. 2, 1981.

      Edward J. Bilik, Greensburg, for appellant.
    Morrison F. Lewis, Jr., Assistant District Attorney, Greensburg, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

Appellant was convicted of robbery and conspiracy. Du-pree was tried with a codefendant, Carl Edwin Donley. Post-verdict motions were filed and denied. He was sentenced to pay the costs of prosecution and serve three to seven years imprisonment. We remand to the trial court.

Dupree and John Walter Hardy allegedly robbed Bill’s Dandy Dollar, a store in Herminie, Pennsylvania. They entered the store and masqueraded as shoppers. While browsing, they engaged Martin Swelbar in a conversation. After they apparently committed the offense, they fled the store into a car driven by Donley. One and one-half hours later, the police discovered a car matching the description given to them by witnesses to the crime. The three inhabitants of the car were then returned to the store where they were identified by several eye witnesses.

Appellant contends that the identification was impermissi-bly suggestive. He asserts his constitutional rights were denied because he had no opportunity to obtain counsel to assist him during the identification. He states his codefend-ant’s confession should not have been permitted to be entered into evidence when his codefendant did not testify. He claims “mug shots” were impermissibly entered into evidence. Finally, Dupree demonstrates that the information issued by the Commonwealth against him was void under Rule 225(b) of the Pennsylvania Rules of Criminal Procedure. We will address only the latter issue.

The critical facts which concern this issue are that the district attorney’s name was affixed to the information by a rubber stamp. An assistant district attorney placed his initials next to the facsimile of the district attorney’s name. The appellant specifically filed a pre-trial motion in which he asserted that the signature on the information violated Rule 225(b). Thus, the appellant specifically questioned the authority of the assistant district attorney to sign the information. This contention was asserted again in the appellant’s post-verdict motions. Thus, the issue was clearly preserved on appeal.

We said in Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978):

When the vehicle for initiating a criminal trial (i. e., the information) is unsigned, it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made. The signature on the information is, therefore, a vital ingredient which guarantees the authenticity and reliability of the document. The requirement that the information be signed by the attorney for the Commonwealth must, as a result, be deemed mandatory rather than merely directory.

Id., 258 Pa.Super. at 156-57, 392 A.2d at 731.

Our court has also decided that a rubber stamp facsimile of the district attorney’s signature, alone, is insufficient under Rule 225(b), Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981). However, the Judicial Code provides that an information may be signed by “any assistant district attorney whose authority to act for the district attorney ... is evidenced by a written designation executed by the district attorney .. . and filed with the clerk of courts.” 42 Pa.C.S.A. § 8931(i).

In Commonwealth. v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355 (1980), we held that where an assistant district attorney signed an information in Allegheny County, “Robert E. Colville by C.G.C./Attorney for Commonwealth,” where Robert E. Colville is the District Attorney of that county, that the signature satisfied Rule 225(b). We stated:

Appellant does not dispute the representation in the Commonwealth’s brief that “C.G.C.” are the initials of Chris G. Copetas, First Assistant District Attorney of Allegheny County, who signed the information as the district attorney’s designee. Nor has appellant argued that the district attorney failed to execute and file with the clerk of courts a written designation authorizing Copetas to act for him. We reject appellant’s argument that the information is void because Copetas failed to sign his full name on the information. In the absence of a specific requirement as to the manner of signing the information, we believe that the signature need not be made in any manner so long as it is subject to identification.

Id., 282 Pa.Super. at 410, 422 A.2d at 1357-1358.

Our Supreme Court has addressed the specific claim asserted by the appellant in Commonwealth v. Contakos, 492 Pa. 465, 470, 424 Pa. 1284, 1287 (1981), where the court said:

We believe that the approval and initialing of the information by an assistant district attorney, along with the stamped signature of the district attorney, complies with our Rules, the Judicial Code and the concerns enunciated in Belcher, as Warman had been designated to act in the district attorney’s stead in the manner called for in the Judicial Code.[]

Therefore, our Supreme Court has held that where a rubber stamp is used to indicate the district attorney’s signature and an assistant district attorney initials the information near the stamped signature, that the signature will be valid only when an appropriate designation for the assistant district attorney to so act has been filed with the clerk of courts. And as no Pennsylvania court has specifically stated whose burden it is to produce such information, under these limited facts, we remand to the trial court for an evidentiary hearing, at which time and place it shall be incumbent upon the Commonwealth to demonstrate to the trial court that the appropriate designation has been filed with the clerk of courts. If no such designation exists, the appellant shall be discharged. If such a designation exists, a new appeal may be filed before this court.

Accordingly, the case is remanded to the trial court for proceedings consistent with this opinion.

HESTER, J., concurs in result.

      . Pretrial motions were filed seeking to suppress the identification as impermissibly suggestive. The motions were denied.

      . In Commonwealth v. Contakos, supra the appellant asserted that the stamped signature was invalid. The court addressed the specific issue of the initialing procedure without regard to the absence of a specific referral to the procedure in his post-verdict motions. Thus, we hold the claim, herein, was preserved.


text:
    434 A.2d 203
    Gilbert DIPPOLD, Appellant, v. AMHERST INSURANCE CO. and Harvey C. Hauber, t/a The Hauber Insurance Agency.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1981.
    Filed Aug. 28, 1981.

      Vernan D. Roof, Ridgway, for appellant.
    Norbert J. Pontzer, Ridgway, for Amherst, appellee.
    John R. Fernán, Ridgway, for Hauber, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   PER CURIAM:

This is an appeal from a summary judgment granted under Pa.R.C.P. 1035 in favor of defendants-appellees.

The facts, taken in the light most favorable to appellant, are as follows: On December 10, 1976, appellee Amherst Insurance Company, (Amherst) through appellee Harvey C. Hauber t/a The Hauber Insurance Agency (Hauber) issued a physical damage motor vehicle policy to appellant’s son, Carl, insuring a 1974 Mack Tractor. This policy was subsequently replaced by a new policy which covered a period extending from January 26, 1977 to January 26, 1978.

On July 18, 1977, appellant and his son went to the office of appellee Hauber and obtained an endorsement on the policy deleting Carl as the named insured, and substituting appellant as the owner and named insured of the 1974 Mack Tractor. A copy of the endorsement was forwarded to appellee Amherst. On December 27, 1977, Amherst forwarded a notice of non-renewal to Carl Dippold, the original insured, and a copy to appellee Hauber. The notice of non-renewal was not sent to appellant, who continued to make premium payments to appellee Hauber beyond January 26, 1978.

On June 30, 1978, the 1974 Mack Tractor was extensively damaged in an accident. Appellee Amherst, claiming that the policy had expired on January 26,1978, refused to honor the policy. Appellant thereafter filed a complaint in trespass and assumpsit against appellees, and, following appel-lees’ motion therefor, the lower court granted summary judgment.

Appellant maintains that summary judgment was wrongfully entered because the pleadings and other papers properly filed disclose genuine issues of material facts which can be determined only by a jury. We agree.

“[Sjummary judgment should be granted only when the case is clear and free from doubt.” Bader v. Highway Truck Drivers and Helpers Local No. 107, 214 Pa.Super. 123, 125, 251 A.2d 692, 693 (1969). The moving party has the burden of proving that there are no genuine issues as to any material facts, and the record must be examined in the light most favorable to the non-moving party. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968).

With respect to appellee Hauber, the factual question which remains to be answered is whether a new one-year policy had been issued on July 18, 1977 when the insurance policy was transferred.

Questions of fact which remain as to appellee Amherst are whether appellant, because of lack of notice, reasonably believed the policy had been automatically renewed, and whether Hauber was the agent or subagent of Amherst with actual or apparent authority to bind the Company and, if so, to what extent.

Order reversed.


author: WIEAND, Judge: SHERTZ, Judge,

text:
    434 A.2d 717
    COMMONWEALTH of Pennsylvania v. Milton WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed June 5, 1981.
    Limited Reargument or Reconsideration Denied Sept. 25, 1981.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, SHERTZ, and WIEAND, JJ.
   WIEAND, Judge:

Milton Williams was tried non-jury and found guilty of aggravated assault, simple assault, recklessly endangering another person, and possessing an instrument of crime. At sentencing, after post trial motions had been denied, the trial court held that the conviction for simple assault had merged in the offense of aggravated assault and imposed three concurrent sentences of imprisonment of not less than four and one-half years nor more than nine years for the remaining convictions. On appeal, Wilson raises three issues: (1) that the evidence presented at trial was so contradictory that the trial court’s verdict must necessarily have been based upon conjecture; (2) that sentences in excess of the statutory máximums were imposed for the offenses of recklessly endangering another person and possession of the instruments of crime; and (3) that, on the facts of this case, double jeopardy considerations and the doctrine of merger precluded a separate sentence for recklessly endangering another person.

The facts of the case were developed primarily through the testimony of Daniel Allen, the complainant, who conceded that he was a homosexual. He testified that on May 23, 1979, he went to the Ritz Bar in Philadelphia, a place where homosexuals were known to gather, for the purpose of attempting to “score” or “meet a fellow.” There he met the appellant, with whom he struck up a conversation. Subsequently the two men stopped at the Fuel Pump and the Mr. Big Shot bars, where the complainant purchased drinks and they engaged in “homosexual conversation.” At 7:00 or 7:30 P.M., complainant told defendant he had to deliver some packages to the Regular Fellows Club at 1438 Federal Street, where he was the business manager. He suggested that defendant accompany him and that they could have a few drinks there and get to know each other better.

Upon arrival at the club, complainant poured drinks and gave appellant a tour of the club, which was then deserted. They took their drinks to the second floor of the club, where they sat at a bar and continued their conversation. As complainant was about to go downstairs to refill the glasses, appellant pulled out a barber’s razor and announced a “stick-up.”

When he realized that appellant was not joking, the complainant threw a chair at appellant and tried to get away. He tripped and fell near the stairs, however, where appellant repeatedly slashed at him with the razor, inflicting severe lacerations to the face and thigh, which left the complainant with permanent scars. Complainant began yelling for help, at which time the appellant ran downstairs and out of the club. Complainant called the police who transported him to the hospital, where 125 sutures were required to close his wounds.

On July 21, 1979, complainant again saw the appellant in the Ritz Bar and called the police. Officer John Rutter brought the appellant out of the bar whereupon he was identified by the complainant and arrested. Appellant was found to be carrying a barber’s razor.

Allen admitted at trial on both direct and cross-examination that he had given different versions of the incident to investigating police officers and at appellant’s preliminary hearing. He explained these inconsistencies at trial by saying that the prior statements had been motivated by his fear of being exposed as a homosexual. The trial court accepted this explanation and found the complainant to be a credible witness.

Appellant argues on appeal that these inconsistencies were of such significance that the trial court’s finding of guilt was necessarily based solely on conjecture or guess. We disagree.

If a witness has made inconsistent or contradictory statements they may be used to attack the witness’ credibility. Commonwealth v. Bean, 244 Pa.Super. 368, 372, 368 A.2d 765, 767 (1976); Commonwealth v. Lenker, 202 Pa.Super. 538, 541, 198 A.2d 347, 349 (1964); Commonwealth v. Bartell, 184 Pa.Super. 528, 537, 136 A.2d 166, 172 (1957). Prior inconsistent statements, however, do not render a witness incompetent or require that his testimony be disbelieved. Id. It is true, of course, that a conviction cannot properly be sustained if it be based upon testimony of a witness which is so contradictory on the essential issues as to make the verdict obviously the result of conjecture or guess. Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976); Commonwealth v. Lenker, supra, 202 Pa.Super. at 542, 198 A.2d at 349; Commonwealth v. Bartell, supra, 184 Pa.Super. at 537, 136 A.2d at 172. However, the mere fact that there are some inconsistencies is not alone sufficient to destroy the Commonwealth’s case. Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053-54 (1977); Commonwealth v. Bartell, supra, 184 Pa.Super. at 537-38, 136 A.2d at 172. It is the function of the trier of the facts, in this case the trial judge, to reconcile conflicting testimony; the mere existence of conflicts in the testimony does not mean that he is required to resort to speculation. Commonwealth v. Duncan, supra.

It is also the function of the trier of the facts to resolve inconsistencies, if any, which may exist between the testimony of different witnesses. Commonwealth v. Farquharson, supra, 467 Pa. at 59, 354 A.2d at 550. The Commonwealth is not bound by everything its witnesses say, and the trier of the facts can believe all, part or none of their testimony. Commonwealth v. Duncan, supra; Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Mahoney, 460 Pa. 201, 331 A.2d 488 (1975).

In the instant case, the prior inconsistent statements of the complaining witness and the relatively minor contradictions in the Commonwealth’s evidence pertaining to the precise part of the club in which the assault occurred were not of such a nature as to require that the guilty verdicts be set aside. The trial court could reason from the Commonwealth’s evidence, and not merely speculate, that a savage and vicious assault had been made upon the complainant’s person and that appellant was the person who had committed such an assault.

The trial court erred, however, when it imposed separate sentences for aggravated assault and recklessly endangering another person. Recklessly endangering was, under the facts of this case, a constituent offense of aggravated assault and, for purposes of sentencing, merged with the more serious offense.

The test for determining whether one offense merges into another for purposes of sentencing is whether one crime necessarily involves the other. In order for one crime to necessarily involve the other, the essential elements of one must also be the essential elements of the other. Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980); Commonwealth v. Lawton, 272 Pa.Super. 40, 48-49, 414 A.2d 658, 662-63 (1979); Commonwealth v. Belgrave, 258 Pa.Super. 40, 48, 391 A.2d 662, 666 (1978).

Aggravated assault is committed when a person “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Recklessly endangering another occurs when a person “recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. The element of recklessness may be demonstrated by showing that an accused acted in conscious disregard of a substantial and unjustifiable risk that death or serious bodily injury would result, 18 Pa.C.S.A. § 302(b)(3), or it may be established by conduct which is committed intentionally or knowingly. 18 Pa.C.S.A. § 302(e). It can be seen, therefore, that after the Commonwealth had proved an aggravated assault, no additional facts were necessary to prove the reckless endangering of the victim. Thus, there clearly was a merger for purposes of sentencing.

Because a merger had occurred, it was held to be error for a court to impose separate sentences where the same act constituted both recklessly endangering another person and simple assault. See: Commonwealth v. Belgrave, supra.

Moreover, the imposition of separate sentences for one act which constituted a violation of two distinct statutory provisions would, under the circumstances of this case, also have double jeopardy implications. See: Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). For these reasons, the sentence for recklessly endangering another person must be vacated and set aside.

Appellant contends, finally, and the Commonwealth and trial judge agree, that the concurrent sentence imposed for possessing an instrument of crime exceeded the maximum sentence authorized for such offense. This offense has been classified as a misdemeanor of the first degree (18 Pa.C.S.A. § 907) for which the legislature has authorized a sentence of imprisonment not to exceed five years (18 Pa.C.S.A. § 1104(1)). The sentence of four and one-half to nine years, therefore, was illegal and must be vacated.

The trial judge’s opinion suggests that his intention was to impose a sentence of four and one-half to nine years in prison for aggravated assault and not to add additional time because of the convictions for recklessly endangering and possessing an instrument of crime. However, we will not alter the sentence imposed by the court below. The preferable course is to vacate all sentences and remand for resen-tencing on the convictions for aggravated assault and possession of an instrument of crime. See: Commonwealth v. Belgrave, supra; Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972). It is so ordered.

SHERTZ, J., files a concurring and dissenting statement.

SHERTZ, Judge,

concurring and dissenting:

I agree with the majority insofar as it affirms the convictions of aggravated assault and of possession of an instrument of a crime and holds that the offense of recklessly endangering another person merged with the more serious offense. I disagree, however, with the decision of the majority to remand for resentencing, since I believe such a remand is unnecessary. A review of the record makes it clear that the lower court considered this essentially as a case of aggravated assault and sentenced accordingly. A remand, therefore, is unnecessary inasmuch as it would not result in any change of sentence. See, e. g., Commonwealth v. Cavanaugh, 278 Pa.Super. 452, 420 A.2d 674 (1980).

      . The first and second floors of the club were the second and third floors of the building. Many of the apparent contradictions in testimony complained of by appellant can be reconciled if one realizes that the witnesses often referred to floor numbers without identifying whether their reference was to the floor number of the club or the building.

      . While receiving hospital treatment following the incident, Allen said that he had been attacked from behind by an unknown assailant as he entered the club and could not identify the person.
      On July 21, 1979, following appellant’s arrest, Allen told a police officer that he had given a drink to a man at the club’s first floor bar and that as he had emerged from behind the bar the man grabbed him, held a razor in a threatening manner and demanded money. Allen said he had kicked the man, after which the man began slashing him with the knife.

      . At the preliminary hearing, Allen testified that after he and appellant had visited several bars he asked appellant to go to the club with him in order to assist in the removal of packages from the trunk of his car.

      . Compare the facts in Belgrave with Commonwealth v. Lawton, supra, where the actor’s punching another person endangered other members of a crowd gathered in a subway station. Under those circumstances, the crimes of simple assault and recklessly endangering were held to be separate offenses which did not merge.

      . The sentence imposed by the trial court also exceeded the maximum sentence authorized for recklessly endangering another person, an offense which has been classified as a misdemeanor of the second-degree.


author: PER CURIAM: WICKERSHAM, Judge,

text:
    434 A.2d 721
    Anthony CUSAMANO v. VESTED GENTRY, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1979.
    Filed Aug. 14, 1981.

      William L. McLaughlin, Paoli, for appellant.
    Albert C. Oehrle, Norristown, for appellee.
    Before WICKERSHAM, BROSKY, and ROBERTS, JJ.

       Justice SAMUEL J. ROBERTS of the Supreme Court of Pennsylvania is sitting by designation.

   PER CURIAM:

We reverse the order of the trial court of Montgomery County dated April 23,1978 striking appellant’s appeal from the Board of Arbitration.

Montgomery County Rule 807 provides the procedure in appealing an action of the Board of Arbitrators. Rule 807 in its pertinent parts states:

Rule 807. Appeals and Exceptions

(a) Any party may appeal from the action of the Board of Arbitrators to the Court of Common Pleas of Montgomery County. The right of appeal shall be subject to the following conditions, all of which shall be complied with within twenty (20) days after the report of the Board is filed with the Prothonotary:
(1) The appellant shall file with the Prothonotary a notice of appeal, a copy of which shall be served on the adverse party or his counsel by the appellant; an affidavit that the appeal is not taken for delay but because he believes an injustice has been done; an appeal bond with sufficient surety in double the amount of costs likely to accrue; and a praecipe ordering the case for trial on the civil trial list.
(2) Before taking an appeal, appellant shall pay to appellee all the record costs paid by the appellee to the time of taking the appeal, and shall file a certification that he has complied with this rule, (emphasis added)

The applicable docket records in this case are as follows:

August 21,1978 Report of Arbitrators was mailed to parties or their counsel.

August 30,1978 Defendant’s appeal from award of arbitrators filed.

August 30,1978 Affidavit of defendant of no delay.

August 30,1978 Cash bond $100 posted, filed by defendant.

August 30,1978 Praecipe for Civil Trial list filed by defendant.

September 13,1978 Defendant’s certificate of payment of costs filed.

Twenty-one days having elapsed from the mailing of the report and award of Arbitrators, appellee filed a petition to strike the appeal.

Two days later, appellant filed his answer alleging that on August 30, 1978 (nine days after the mailing of award), it deposited one hundred dollars ($100) with the Prothonotary’s office for the purpose of paying plaintiff all costs incurred and to be incurred and also mailed to the attorney for appellee expended costs of $25.50 for the Prothonotary and $10.90 for the Sheriff or a total of $36.40.

The gist of the lower court’s opinion is that because appellant failed to pay within 20 days the $36.40 to appel-lee’s counsel to reimburse him for costs advanced, his appeal should be quashed.

Appellee’s petition to strike does not allege it sent a statement to appellant or counsel informing appellant that it advanced costs and the amount thereof so that appellant could pay to appellee the costs advanced. As far as the record is concerned, the first clear statement that counsel for appellee advanced costs totaling $36.40 was contained in appellee’s petition to strike, which petition was filed 21 days after mailing of the award of arbitrators.

It is true that the arbitrations docket lists some costs which have been paid or are to be paid by the appellant. However, these costs are presented in a very cryptic manner. It is not clear exactly what costs were due. The instant case contains facts similar to those in James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 346 A.2d 765 (1975) where:

In the case before it, the Court examined the prothono-tary’s cost docket and found it confusing and incomplete.
For example, the docket entries did not specify the fee paid for filing the complaint or the amount of the sheriff’s fee. Moreover, a docket entry which read “Poltenstein, Esq.” and under which appeared “24.50” did not indicate what costs, if any, 24.50 specifically represented. In short, “. . . the Prothonotary’s records did not give proper notice of the costs which had accrued in the action. Under these circumstances, we cannot fault appellant’s counsel for not knowing of all the accrued costs. Only clairvoyant counsel would be able to determine the full amount of accrued costs from the docket page involved here.” supra, 464 Pa. at 336, 346 A.2d at 768. Accordingly, the Supreme Court ordered the appeal reinstated upon the payment of the additional accrued costs not specifically designated in the docket entries.

Accord, Friedgen v. Evangelical Manor, 253 Pa.Super. 216, 222, 384 A.2d 1309, 1312 (1978).

The lower court’s position is that of strict construction of Rule 807 and cites as authority for its position the case of Black & Brown, Inc. v. Home for Accepted, Inc., 233 Pa.Super. 518, 335 A.2d 722 (1975). We are aware that a portion of that opinion on, 233 Pa.Super. 522, 335 A.2d 722 states: “but with the caveat that a valid attempt to make such timely and full payment, coupled with substantial though incomplete compliance with the requirement should not result in the harsh finality of an order quashing an appeal from arbitration. Rather, our courts should examine the appellant’s attempts at compliance in order to determine whether an honest effort has been made to meet the requirements of the statute.” Using this standard, the lower court dismissed the appeal on the ground that appellant had failed to comply substantially with the requirement that record costs be paid within the twenty day period.

However, in James F. Oakley, supra., the Court held that where, as here, counsel has no notice of accrued costs beyond a few confusing notations on the docket sheets, the issue of substantial compliance is irrelevant. Therefore, we do not consider the implications of the caveat or the substantiality of appellant’s compliance with Rule 807.

We recognize that we must allow the local jurisdictions within our Commonwealth to enjoy relatively undisturbed autonomy in establishing and interpreting its rules. However, we also realize that it is our obligation to assure that the strict application of those rules does not tempt our courts to pursue the path leading to unjust results in the name of procedural efficiency. We must respect the rules of each court, but we must first assume that justice is accorded the parties in a fair manner.

We are left with no other reasonable course but to reverse the order of the lower court quashing the appeal form the arbitration award. Accordingly, we remand for reinstatement of the appeal.

WICKERSHAM, J., files dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I dissent.

Vested Gentry, appellant, plainly failed to comply with Montgomery County Civil Rule 807. While it did post surety in double the amount of costs likely to accrue in compliance with Rule 807(a)(1), appellant admitted it “inadvertently” failed to pay for record costs previously accrued as required by Rule 807 (a)(2). (Appellant’s brief p. 2). Moreover, appellant admitted that it failed to comply with Montgomery County Civil Rule 807(a)(2) in that it failed to file a certification within the twenty (20) day appeal period. (Appellant’s Answer To Petition To Strike Appeal, paragraph 7).

The trial court has broad discretion in construing its own rules, and its interpretation will not be reversed unless it amounts to an abuse of discretion. Germ v. Price, 175 Pa.Super. 286, 104 A.2d 166 (1954). I find that the lower court did not abuse its discretion and further I recognize the importance of strict adherence to procedural rules.

It cannot seriously be contended that procedural rules, either at the state or local level, are not an absolute essential to the orderly administration of justice and the smooth and efficient operation of the judicial process. . . The sheer number of cases and appeals make it imperative the rules be strictly enforced. Anything less would disrupt the already tenuous flow of trials and resulting appeals. Straff et al. v. Nationwide Mutual Fire Insurance Company, 230 Pa.Super. 403, 407, 326 A.2d 586, 587-588 (1974).

In light of the foregoing, I would affirm the order of the lower court.

      . August 30, 1978, nine days had elapsed from mailing report of arbitrators.

      . September 13, 1978, twenty-three days had elapsed from mailing report of arbitrators.


author: CERCONE, President Judge:

text:
    434 A.2d 724
    William J. PAULES, Appellant, v. William H. SMINKEY.
    Superior Court of Pennsylvania.
    Argued March 4, 1980.
    Filed Aug. 21, 1981.

      Timothy P. Ruth, York, for appellant.
    Samuel M. Learned, Jr., York, for appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

Occasionally, our courts are faced with situations wherein the spirit underlying our rules of civil procedure is obviated by some members of the bar, and as a result, the goal of providing for the swift, orderly, and efficient administration of justice is often obstructed. Far too frequently counsel for litigants discredit the objective of court rules in order to obtain unfair advantage over their adversaries. For instance, under the rule which provides for the taking of default judgments, we cannot condone the course of conduct followed by counsel for appellee in the present case who quickly “snapped up” judgment on his counterclaim without providing his opposing party with prior notice of his intention to do so.

On March 22, 1978, William J. Paules, appellant herein, filed suit in assumpsit against appellee, William H. Sminkey, to recover the sum of $3,800.00 with interest. This amount was alleged to be due and payable pursuant to an oral novation of a prior contract between Paules and Sminkey for the sale of an automobile. On April 17, 1978, Sminkey timely filed and properly served an answer, new matter and counterclaim for the amount of $950.00 with interest. Attached to this pleading was the standard notice to defend pursuant to Pennsylvania Rule of Civil Procedure 1018.1. In the answer, new matter, and counterclaim, Sminkey alleged a series of transactions between the two parties for the purchase and sale of automobiles which, in his overall calculation, left Paules owing Sminkey $950.00 plus interest and costs.

Paules failed to file a responsive pleading to Sminkey’s counterclaim despite the fact that it was prefaced with the Rule 1018.1 notice to defend. On May 9, 1978, two days after the time for filing had run, Sminkey’s attorney entered a default judgment against Paules in the amount of $950.00 for failure to file a reply to Sminkey’s pleading. Three days later on May 12, 1978, Paules filed a petition to open judgment and, on the same day, the Court of Common Pleas of York County granted a rule against Sminkey to show cause why the judgment should not be opened so that Paules could put forward a defense to Sminkey’s counterclaim. Paules’ petition alleged that he is a resident of Massachusetts and that this hindered communications between him and his attorney. He proferred this as his reasonable excuse for not filing a responsive pleading within the required twenty day period. Sminkey thereafter filed his answer to the petition to open judgment on May 22, 1978 and specifically denied Paules’ asserted reason for his failure to file a responsive pleading.

On June 5, 1978, Paules filed a motion to amend his petition to open judgment so as to allege meritorious defenses to Sminkey’s counterclaim because they were not present in his original petition to open judgment. On June 8, 1978, Sminkey filed an answer to the motion to amend along with a rule to show cause why Paules should not proceed under Pa.R.C.P. 209. After the court issued the rule to show cause, a status conference was held on June 20, 1978 pursuant to which an order was issued. The terms of this order indicated that Paules’ counsel should list the case for argument on his motion to amend the petition to open judgment and that Paules would not be obliged to proceed under Pa.R.C.P. 209 until the court entered an order on the motion to amend. Further, the order contemplated that “counsel for plaintiff shall at that time take the initiative in listing the petition to open judgment for pre-trial disposition in accordance with our local rules. We assume this will be after depositions. We expect counsel to move expeditiously.” (Emphasis added.)

Subsequently, the lower court granted Paules’ motion for leave to amend his petition by order dated September 27, 1978. On October 17,1978, Paules filed his amended petition to open judgment with the only difference being that he attached his proposed answer to the new matter and counterclaim as Exhibit “A”. On that same day Sminkey filed his answer to Paules’ amended petition to open judgment again specifically denying Paules’ asserted excuse for not timely filing a responsive pleading. Also on October 17, 1978, the court below issued an order stating that “[sjince it is obvious that no one is going to order this case for argument on petition and answer alone, the court now contemplates that the parties will proceed to take depositions consistent with Rule 209.” Counsel for Paules, however, did not take depositions but rather ordered the case for argument on the amended petition and amended answer alone. The trial court then entered an order on December 6, 1978 dismissing Paules’ amended petition to open judgment. This appeal followed.

It is by now well-settled that “a default judgment in an assumpsit action will not be opened unless (1) the petition to open was promptly filed; (2) the petitioner’s failure to respond was excusable; and (3) a meritorious defense can be shown.” Cruse v. Woods, 279 Pa.Super. 242, 420 A.2d 1123 (1980). See also Kennedy v. Black, 492 Pa. 397, 424 A.2d 1250 (1981); Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980); Horan v. Cook, 287 Pa.Super. 265, 430 A.2d 278 (1981); Sharon Hill Contracting v. Recreational Equip., 284 Pa.Super. 118, 425 A.2d 447 (1981). Moreover, such matters are left to the sound discretion of the trial court, whose decision will not be disturbed absent a manifest abuse of discretion or an error of law. Id.

The lower court’s decision in the instant appeal turned mainly upon the procedural aspects of Pennsylvania Rule of Civil Procedure 209. Under this rule which is entitled “Duty of Petitioner to Proceed After Answer Filed,” the moving party may either proceed to take depositions on disputed issues of fact, or order the cause for argument on petition and answer alone. If the latter course is followed, the rule then provides that all property pleaded averments of fact contained in the answer, in so for as they are responsive to those contained in the petition, are deemed to be admitted in determining the merits of the petition. Pa.R.C.P. 209. See Shainline v. Alberti Builder’s Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979); White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974).

In the instant case, the excuse offered by Paules in his petition and amended petition was specifically denied by Sminkey in his answer and amended answer to such pleadings. Thus, under Rule 209, Sminkey’s averment of fact which specifically denied Paules’ proferred excuse was deemed to be admitted for our purposes. This being the case, the decision of Paules not to take depositions on the disputed questions of fact, despite more than adequate prodding by the trial court, was inexcusable.

Nevertheless, we would be remiss to penalize an innocent party for the negligent handling of his case by counsel. In White v. Alston, 231 Pa.Super. 438, 443, 331 A.2d 765, 768 (1974) this Court, under similar circumstances, refused to deny a litigant his day in court simply on the basis of the oversight of his counsel:

While, generally speaking, a litigant is bound by the actions or inactions of his counsel, there is authority for the proposition that when a plaintiff places his case in the hands of a reputable counsel he will not be turned out of court if the delay complained of was almost entirely on account of neglect or oversight of his counsel.

Id. (quoting from several earlier cases).

Thus, in White v. Alston, supra, as well as in Shainline v. Alberti Builders, Inc., 266 Pa,Super. 129, 403 A.2d 577 (1978), we remanded the case to the lower court to again afford the appellant the opportunity to proceed under Pa.R.C.P. 209.

Moreover, in addition to our reluctance to penalize appellant for the inadvertence of counsel, we must again indicate our abhorrence of the deplorable practice of certain members of the legal profession who persist in quickly “snapping up” judgments without the courtesy of notifying their counterparts of their intention to do so. “Although the Rules of Civil Procedure do not contain a notice requirement, we have repeatedly chastized counsel for failing to accord that courtesy.” Brooks v. Surman Dental Lab., Inc., 262 Pa.Super. 369, 373, 396 A.2d 799, 802 (1972). See also Kennedy v. Black, supra. In fact, this author, writing for a majority of the Court in Silverman v. Polis, 230 Pa.Super. 366, 370-71, 326 A.2d 452, 454-55 (1974), once stated:

One very frequent element in the sets of circumstances of cases where a default judgment has been upheld is notice to opposing counsel of the intent to enter a default judgment. Conversely, the lack of such notice is frequently singled out as an important factor justifying the opening of a default judgment. [Citations omitted.]
. .. [Attempts to utilize every niggling procedural point for maximum advantage demean the legal profession, reducing its procedures to a vulgar scramble. No doubt it is for this reason that in so many cases, notice of intent to take a default judgment, or the lack thereof, is properly made a significant factor in reaching a just decision. [Footnote omitted.]

Cases such as those quoted above have led our Supreme Court to state recently that “snap judgments taken without notice are strongly disfavored by the courts.” Queen City Electrical Supply Co. v. Soltis Electric Co., 491 Pa. 354, 361, 421 A.2d 174, 177-78 (1980).

Finally, it must be noted that Pennsylvania Rule of Civil Procedure 237.1, effective February 1,1980, now requires an affidavit of prior written notice of intent to enter a default before the prothonotary may enter judgment. Pa.R.Civ.P. 237.1. The explanatory note to the rule indicates that this requirement was implemented upon the Superior Court’s recommendation to adopt a requirement of prior notice in Silverman v. Polis, supra and Brooks v. Surman Dental Lab., Inc., supra. Although the new rule is not applicable to the present case, the facts of which transpired in 1978, it is in keeping with the spirit of this new rule, as it manifests itself in cases such as in Silverman, Brooks and Queen City Electrical Supply Co., that we determine the equities of this matter to be overwhelmingly in favor of appellant Paules. See Toplovich et al. v. Spitman, 239 Pa.Super. 327, 361 A.2d 425 (1976). The fact that a “snap judgment” was taken without notice to opposing counsel, combined with the fact that opening the judgment would not result in any prejudice to appellee, supports our decision to reverse the court below. Id. To allow counsel to use every niggling procedural point in furtherance of an attempt to avoid the burdens of litigation with respect to both his defense and his counterclaim would subvert the very purposes behind our rules regarding default judgments:

The rules which authorize a default were designed to prevent a dilatory defendant from unreasonably thwarting plaintiff’s efforts to establish a claim. They were not intended ‘to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation.’

Shainline, 266 Pa.Super. at 139, 403 A.2d at 582, (quoting, in part, from Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. 441, 445, 368 A.2d 802, 804 (1976)).

For all of the foregoing reasons, the order of the court below denying the petition to open judgment is reversed and the case is remanded in order that the case may proceed to trial. In this regard we note that the only purpose for requiring that depositions be taken pursuant to Rule 209 would have been to factually establish Paules’ basis for not filing a timely answer to Sminkey’s counterclaim. Inasmuch as Sminkey took judgment only two days after the answer was due without notifying Paules of his intention to do so, we are inclined to eschew the requirement that Paules’ delay in filing his answer be explained. The judgment is therefore, opened and the case will now proceed to trial.

Reversed and remanded.

      . We note, however, that appellant, in his brief, points us to Canon 7, Ethical Consideration 7-38 and Disciplinary Rule 7-106 of the Code of Professional Responsibility regarding the requirement that an attorney should afford prior notice to opposing counsel of his intention not to follow local customs of courtesy and practice. See also Silverman v. Polis, 230 Pa.Super. 366, 370-71, 326 A.2d 452, 454-55 (1974). Former Rule 205 of the Pennsylvania Rules of Civil Procedure, rescinded effective October 27, 1976, adopted the Code of Professional Responsibility of the American Bar Association standard of conduct for attorneys of all courts of the Commonwealth. Since Rule of Disciplinary Enforcement 102 now incorporates the Code of Professional Responsibility, Rule 205 of the Rules of Civil Procedure was rescinded in order to avoid duplicity in the rules. Nevertheless, the explicit requirement now contained in Rule 237.1 will, for the most part, negate the likelihood that future litigants need depend upon this more circuitous argument.


author: SPAETH, Judge:

text:
    434 A.2d 728
    Carol M. WRIGHT & Clarice Wright, his wife, Steve M. Lasko-sky, Mike Watona & Martina Watona, his wife, J. B. Miller & Irene E. Miller, his wife, and Angelo DeLuca & Mary DeLuca, his wife, Appellants at 353, v. The BUCKEYE COAL COMPANY, Appellants at 284.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Aug. 21, 1981.

      Henry Ingram, Pittsburgh, for appellant at No. 284 and for appellee at No. 353.
    Simon B. John, Uniontown, for appellants at No. 353 and for appellees at No. 284.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an equity action by the owners of five private homes to recover for damage they say was done to their home by subsidence incident to coal mining. The chancellor awarded damages. The home owners have appealed, claiming that the damages were inadequate. The coal company has also appealed, claiming that its liability was not proved, but that if liability was proved, damages were not. We have concluded that liability was proved. However, we are unable to determine from the chancellor’s findings on what basis he computed damages. Accordingly, we shall remand for further proceedings. For convenience, we shall speak as though only one appeal had been taken, and refer to the coal company as appellant and to the home owners as appellees.

Appellees’ complaints were filed February 1, 1974. They allege that appellant violated appellees’ rights under the Bituminous Mine Subsidence and Land Conservation Act of 1966, Act of April 27,1966, P.L. 31 §§ 1-19, 52 P.S. § 1406.1 et seq. On April 3, 1974, appellant filed preliminary objections challenging the jurisdiction of the lower court on the theory that the Act of 1966 provided appellees with an exclusive administrative remedy. On September 6,1974, the lower court dismissed the preliminary objections, and appellant appealed to the Supreme Court. The Supreme Court affirmed, with costs on appellant. DeLuca v. Buckeye Coal Co., 463 Pa. 513, 345 A.2d 637 (1975). The actions were consolidated and tried on May 7 and 18, July 26, and August 2, 3, and 4, 1977. R.2a. On July 7, 1978, the chancellor issued an opinion holding appellant liable for subsidence damages, but ordering a further hearing on the amount of damages. On March 22,1979, after the hearing, the chancellor issued a second opinion, with findings of fact and conclusions of law, awarding damages. Appellant filed exceptions, which were dismissed, and on February 27, 1980, the decree nisi was made final.

Appellees’ properties are within 200 feet of Route 88, in Cumberland Township, Greene County, and are over a portion of appellant’s Nemacolin Coal Mine. Def. Exhibit # 9. The Nemacolin Mine was first mined in the late 1920s, when several passageways, subpassageways, and cross-cuts were made in a seam of coal about 400 feet below the surface. After this work, mining stopped. Late in 1968, however, appellant notified appellees that it intended to resume mining. This second stage of mining, which was called “retreat mining,” consisted of the systematic removal of coal from the coal “pillars” that remained after the development work. It started January 1, 1970. Appellees contend that when appellant removed the coal from the pillars, sometime after January 1, it either upset or removed too much coal, leaving the overlying stratum with insufficient support. See generally, for a discussion of development and retreat mining, Safety and Management Problems in Mine Operations in Pennsylvania, 52 P.S. XIX-XX.

The chancellor’s findings of fact and conclusions of law were, issued on March 2, 1979, were as follows:

FINDINGS OF FACT

1. The Nemacolin Mine is an underground coal mine located in Cumberland Township, Greene County, Pennsylvania, and at the time was owned and operated by the Buckeye Coal Company.
2. The common mining practice of the mine is to cut sixteen to seventeen foot wide entries through the Pittsburgh Coal vein on ninety five foot centers.
3. All five of the plaintiffs’ homes are located above the mine, at a place in the mine identified as Six Right off Two North, approaching the 118 Road Section.
4. The area was initially developed in 1928 and 1929, by entries driven twelve feet wide, and 5V2 to 6 feet tall, on 100 foot centers, leaving 87 to 88 foot square pillars.
5. The area was not further mined until 1970, commencing January 1 and this was done in compliance with the requirements of the Mine Subsidence Act as to notice and the state prescribed formula for support.
6. That the coal recovery in the area, at and after January 1, 1979 [sic; no doubt a typographical error for 1970], immediately beneath the location of the plaintiffs’ homes, caused the dropping and shifting of the surface, even though the same was of a relatively slight nature, to cause a consequent damage to the homes as evidenced in the cracks which appeared in the masonry walls, the plaster walls, and some damage to door jambs, floors, concrete floors and other portions of the homes.
7. That each of the homes was 20 years old or older, and prior to the time of the mining, had suffered some of the normal dissipation of structural condition, but that each of the homes, as a result of the mining and the movement of the sub-surface thereunder, suffered an acceleration of the deterioration, and direct injury to the homes, which has and will necessitate the expenditures of monies to restore and return the same to their condition immediately prior to the commencement of the mining.

CONCLUSIONS OF LAW

1. That the plaintiffs have established by a fair preponderance of the evidence that as a result of the mining by defendant, in close proximity of their homes, under the principle of absolute liability imposed by the Mine Subsidence Act of 1966, their homes suffered direct resultant damages to their homes.
2. That the defendant, under the terms of the Act, owes an absolute duty of surface support, which existed at common law, Pennsylvania Coal and Coke Corp. v. Duncan Spangler Coal Company, 333 Pa. 272, 3 A.2d 356 (1939), and was thereafter spelled out legislatively in the Mine Subsidence and Land Conservation Act of 1966.

3. That as a result of the mine subsidence damage to the homes, the defendant is liable to the homeowner plaintiffs as follows:

a. For Steve Laskosky, et ux $7700.00
b. For Carol M. Wright 7700.00
c. For J. B. Miller, et ux 7100.00
d. For Mike Watona, et ux 9300.00
e. For Angelo DeLuca, et ux 4800.00
And in addition to the principal sum, interest thereon shall be computed from January 1, 1975 to the present.

1

When approved by a court en banc (which here consisted of only the chancellor himself), the findings of a chancellor have the effect of a jury verdict, and therefore, if supported by adequate evidence, will not be disturbed on appeal. Bedillion v. W.A. Stave Co. Inc., 271 Pa.Super. 292, 413 A.2d 411 (1977). An appellate court is free, however, to review a chancellor’s conclusions—either of law or ultimate fact. Kemp v. Majestic Amusement Co., 427 Pa. 429, 234 A.2d 846 (1967); Hengst v. Hengst, 269 Pa.Super. 110, 409 A.2d 88 (1979), rev’d on other grounds, Hengst v. Hengst, 491 Pa. 120, 420 A.2d 370 (1980).

Here, our review of the record reveals sufficient evidence to support the chancellor’s finding that appellant caused appellees’ properties to subside. However, as to the chancellor’s findings on damages, the case is quite different.

In his opinion of July 7, 1978, the chancellor wrote that because of “a lack of reliable, accurate and worthy evidence of the damages before us, we will direct further hearings on this limited issue [of damages].” Slip op. at 7. In his opinion of March 22, 1979, immediately preceding his findings of fact, the chancellor wrote:

These cases were heard in full, and following the hearing, the Court entered a lengthy opinion, finding the defendant company to be liable, but having been dissatisfied with the quality of the testimony presented on the subject of damages, ordered additional testimony to be taken for that limited purpose. At this hearing, very little new evidence was presented by either side, and the only evidence before the court is very much the same as that which was presented earlier, that of Homer Miller, who, on behalf of the five plaintiffs, reiterated the repair estimates as to what, in his opinion, it will cost to restore the damaged homes. And, with inflation taking its voracious economic toll, the longer any of this remains unresolved, the greater becomes the financial hardship visited upon the parties.
In a review of the evidence before us on the issue of damages, we have, in addition to Mr. Miller’s estimates, the testimony of the homeowners themselves, and also the Court made a view and inspection of the homes of the plaintiffs. These are all homes of an older vintage, that is 20 years or more, all reasonably maintained, and all, as is almost every home to its owners, more valuable to them than the values which might prevail on the open market. However, in regard to that last observation, no area of rapid price increase has been more obvious than in the house market in this area.
The chief difficulty in regard to settling the value of the damage to these homes is the separation of the part which results from the natural deterioration of the structure, and which part is the improvement required by the subsidence damage.
Slip op. at 1-2 (emphasis added).

Given this observation by the chancellor, we find it difficult to avoid the conclusion that he was forced to guess the extent of appellees’ damages. As plaintiffs, the appellees were required to prove their damages, by a preponderance of the evidence. See, Link v. Highway Express Lines, Inc., 444 Pa. 447, 282 A.2d 727 (1971); Gordon v. Trovato, 234 Pa.Super. 279, 338 A.2d 653 (1975). Damages not proved are not recoverable. Maxwell v. Schaefer, 381 Pa; 13, 112 A.2d 69 (1955).

In any case, whether or not he guessed, the chancellor has not provided us with any findings of fact in support of his computation of damages; nor can we tell from our own review of the record how he computed the damages. The only evidence of the extent of the damages in monetary terms was the testimony of Homer Miller, who visited each of the houses in June 1976. He estimated the cost of repairing the several homes to be: Laskosky, $12,190, N.T. v. 2 at 46-47; Wright, $12,000, id. at 47—48; Miller, $11,900, id. at 49; Watona, $15,650, id.; and DeLuca, $8,150, id. at 50. The chancellor, however, rejected this testimony as not “reliable, accurate and worthy.” Slip op. of July 7, 1978, at 7. We therefore do not know what evidence he relied on to make his award. In these circumstances we are obliged to remand for further findings and an explanation of the award. Warden v. Zanella, 283 Pa.Super. 132, 423 A.2d 1026 (1980).

In this regard, we note that we share the chancellor’s concern that the damages from subsidence were not distinguished from damage otherwise caused.

Some of the evidence suggests that some of the damages may have occurred before appellant’s mining operations were close enough to appellees’ homes to have caused the damages. On cross-examination, appellees’ own expert witness, Carl Carnein, testified that “[i]f no mining had occurred within 500' of the particular houses before the cracks [in the houses] appeared, I would say the cracks [were] not caused by subsidence.” N.T. v. 1 at 198. Our review of the record indicates that as of January 1, 1970, appellant’s retreat mining activities were at various distances from appellees’ homes: DeLuca (575'); Laskosky (700'); Miller (700'); Wright (800'); and Watona (825'). See Defendant’s exhibit #9. Yet two of the five appellees testified that damage to their homes occurred on or before January 1, 1970. Clarice Wright testified, with absolute certainty, that damage to her home began on New Year’s Day 1970, N.T. v. 1 at 27 and continued into the “early part of 1970”. Id. at 30. J. B. Miller and his wife, Irene, testified that damage to their home began “approximately eight (8) to 12 (12) months” after they received notice from appellant of his intention to engage in retreat mining operations in the Nemacolin Mine, id. at 48 & 62, and that this damage continued thereafter. Id. Although the Millers could not remember when they received notice from appellant, our review of the record suggests that it was sometime in the latter part of 1968. See id. at 66, 83.

By July 1970 appellant had engaged in retreat mining well within the zone where its operations could potentially have caused subsidence. See Defendant’s Exhibit # 10. We are unable to determine from the record, however, just where appellant was mining from January to July 1970. At least one appellee complains of damage to his property in this interval. Steve Laskosky testified that he first noticed damage to his home “anywhere from the 1st to the 10th of January 1970.” N.T. v. 1 at 6. Angelo DeLuca was less precise, stating only that his home first incurred damage “sometime in 1970,” id. at 86, and Mike Watona testified that he first noticed damage to his home “maybe in the middle of 1970.”

If the chancellor accepted Carnein’s testimony, it would seem that he should have found that at least some of the damages complained of by appellees Wright and Miller were caused by something other than appellant’s mining. Similarly, as to some of the other damages claimed, the chancellor’s award would seem to depend on his appraisal of the evidence on where appellant was mining from January to July 1970, and when appellees’ homes first incurred damage.

Ordinarily, on the basis of the record we have before us, we would remand for further hearings so that the parties could introduce more evidence on the question of damages in light of this opinion. However, because we do not know, as we have no transcript of it, what evidence was introduced at the further hearing ordered by the chancellor in his opinion of July 7, 1978, we leave this decision to the chancellor. Should he decide, however, that further evidence is not needed, he should order all the testimony transcribed.

2

Appellant argues that in awarding damages, the chancellor should have awarded the cost of repairs or depreciation in market value, whichever was smaller. Brief for Appellant at 26-28. Although there are cases that seem to provide support for this proposition, see e. g., Art Club of Philadelphia v. Heyman and Goodman, 325 Pa. 587, 592, 190 A. 922, 924 (1937); Weaver v. Berwind-White Coal Co., 216 Pa. 195, 65 A. 545 (1907); Rabe v. Shoenberger Co., 213 Pa. 252, 62 A. 854 (1906); Bunbarger v. Walker, 193 Pa.Super. 301, 164 A.2d 144 (1960), the Supreme Court has held that it applies only where the damage was permanent. Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 369, 263 A.2d 432, 437 (1970) (expressly refuting analysis in Art Club of Philadelphia v. Heyman and Goodman, supra, to the contrary). Where, as here, damage to a building is remediable, the “correct measure of damages is the cost of repair, unless that cost would exceed the value of the building.” Lobozzo v. Adam Eidemiller, Inc., supra, 437 Pa. at 369, 263 A.2d at 437. Appellant introduced no evidence suggesting that the cost of repairing any of the appellees’ homes would exceed the value of the homes. Accordingly, the chancellor did not err in using the cost of repairs as the basis for measuring damages.

3

Finally, appellant argues that the chancellor erred in awarding pre-judgment interest. We agree.

“An examination of the cases dealing with the charge and allowance of interest will disclose many difficulties, but the decided trend of the courts of law and courts of equity has been ‘to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case’ . .. Unless a case can be found, which is conclusive precedent, the safest and at the same time the fairest way for a court is to decide questions pertaining to interest according to a plain and simple consideration of justice and fair dealing.”
Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 410, 276 A.2d 542, 545 (1971) quoting McDermott v. McDermott, 130 Pa.Super. 127, 130, 196 A. 889, 890, (1938).

The chancellor, it will be recalled, awarded interest as of January 1, 1975. He does not explain the significance of this date, nor have we been able to think of any.

Moreover, the chancellor’s opinions suggest that on a “consideration of justice and fair dealing,” the equities are not with appellees but appellant. Thus in his opinion of July 7, 1978, the chancellor said:

We agree that the Company has established a recognizable strong defense supportive of its contention that there was no vertical movement of the earth, and that, having accomplished the coal removal at that time in that area by well tested and well established mining practices, and in conformity with the provisions of the Act, there can be no liability to the property owners.
Slip op. at 5.

In contrast, in referring to appellees’ presentation, the chancellor said that appellees were “magnifying the extent of the actual damages,” slip op. at 6, and while he found this “understandable],” id., he nevertheless regarded their case as “lack[ing] . . . reliable, accurate and worthy evidence of the damages,” id. at 7, and therefore felt obliged to order a further hearing limited to the issue of damages. However, when this hearing had been held, the chancellor said in his opinion of March 2, 1979, that “very little new evidence was presented by either side.” Slip op. at 1. This failure was appellees’, not appellant’s, for it was appellees’ burden to prove damages.

When a defendant is faced with an excessive demand, so that it would be unfair to expect him to settle, the court will not penalize him by requiring him to pay damages for pre-judgment delay. See, Marrazzo v. Scranton Nehi Bottling Co., 438 Pa. 72, 263 A.2d 336 (1970); Conover v. Bloom, 269 Pa. 548, 112 A. 752 (1921); Pierce v. Lehigh Valley Coal Co. (No. 2), 232 Pa. 170, 81 A. 142 (1911); Stevenson v. Ebervale Coal Co., 203 Pa. 316, 52 A. 201 (1902); Mead v. Central Pennsylvania Traction Co., 54 Pa.Super. 400 (1913) later app. Mead v. Central Pennsylvania Traction Co., 66 Pa.Super. 343 (1917). Here, not only do the chancellor’s opinions indicate that appellees’ demand was excessive, but it was appellees who were responsible for a considerable part of the pretrial delay. See fn. 5, supra.

We recognize, however, that the chancellor is in a better position to weigh the equities than we are. If on remand, therefore, the chancellor still thinks that pre-judgment interest is warranted, he may award such interest. He must, however, explain his choice of date from which the interest is to run, and his appraisal of the balance of the equities.

On Appeal No. 284: The decree of the lower court is reversed and the case is remanded for further proceedings consistent with this opinion. After additional findings are filed, either party may file exceptions. Any further appeal must be from such final decree as may be entered following the dismissal of those exceptions.

On Appeal No. 353: The appeal is dismissed as rendered moot by the foregoing order.

      . Appellees rely on the following provision of the Act of 1966:
      In order to guard the health, safety and general welfare of the public, no owner, operator, lessor, lessee, or general manager, superintendent or other person in charge of or having supervision over any bituminous coal mine shall mine bituminous coal so as to cause damage as a result of the caving-in, collapse or subsidence of the following surface structures in place on the effective date of this act, overlying or in the proximity of the mine:
      (1) Any public building or any noncommercial structure customarily used by the public, including but not being limited to churches, schools, hospitals, and municipal utilities or municipal public service operations.
      (2) Any dwelling used for human habitation; and
      (3) Any cemetery or public burial ground. 1966, Special Sess. No. 1, April 27, P.L. 31, § 4.
      52 P.S. § 1406.4.

      . Appellees’ evidence consisted mainly of their own testimony concerning their observations of cracks and fissures in their properties, ground movement, and other indications of subsidence, such as noise; the opinion of two experts, Carl Camein and Charles Yeloush-an, as to the likely cause of the damage to appellees’ properties; and the testimony of Homer Miller, a contractor, as to the cost of repairs. Appellant attempted to refute the testimony of appellees’ experts by expert testimony of its own, and by demonstrating that it had left sufficient pillars in the mine to support the surface. Appellant attacks the sufficiency of appellees’ evidence by contending that the chancellor erred in accepting the testimony of appellees’ experts over the testimony of its own expert. Brief for appellant at 18-22; 37-39. We see no merit to this argument. Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976); Lobozzo v. Adam Eidemiller, 437 Pa. 360, 263 A.2d 432 (1970); Hankin v. Goodman, 432 Pa. 98, 246 A.2d 658 (1968).

      . Appellees’ argument, on their appeal, that it was error for the chancellor to award less than the amount of damages Homer Miller testified to is thus without any merit; the chancellor was free to reject the testimony.

      . In his opinion of July 7, 1978, the chancellor said that “whatever damage there is occasioned by that [mining] operation, it occurred at the time of the initial work.... ” Slip op. at 6. Also in this opinion he said that
      while four of the plaintiffs claimed their damage started occurring in January of 1970, the Company, in its defense, pointed out that except for the original headings and cross sections which were driven in this area in 1928, no additional mining operations took place in this section until March of 1970, when the secondary recovery operations were begun.

        Id at 2.
      However, in his opinion of March 22, 1979, the chancellor found that “the area was not further mined until 1970, commencing January 1, .... ” Finding. # 5, and “[t]hat the coal recovery in the area, at and after January 1, 1979 [sic, no doubt a typographical error for 1970], immediately beneath the location of the plaintiffs’ homes caused the dropping and shifting of the surface.... ”, Finding #6.
      There appears to be a conflict in these several statements as to whether the mining resumed in January or March 1970. Also, it would appear necessary to expand upon the phrases “this area,” “this section,” and “at and after January 1, 1970.”

      . The date of January 1, 1975, appears to be unrelated to any of the crucial dates in this litigation, which are as follows: Damages were alleged to have occurred sometime in 1970; complaints were served on February 6, 1974; appellant filed preliminary objections on April 3, 1974; the lower court dismissed the objections on September 6, 1974, and appellant appealed to the Supreme Court, where the case was argued on March 25, 1975, and decided on October 3, 1975, with costs being placed on appellant; appellant filed answers to the complaints on December 19, 1975; the case was listed for trial in February 1976, but was removed from the list when appellees failed to respond to appellant’s discovery requests; on September 17, 1976, appellees’ counsel withdrew, and on September 22, 1971, new counsel entered an appearance; on December 9, 1976, appellant filed a motion for a rule to show cause why a judgment of non pros should not be entered; on January 7, 1977, the lower court dismissed the motion; the matter was finally brought to trial in May, July, and August of 1977.


author: BROSKY, Judge:

text:
    434 A.2d 735
    COMMONWEALTH of Pennsylvania, v. Harry A. LAYMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 11, 1981.
    Filed Aug. 21, 1981.

      Thomas P. Ruane, Jr., Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   BROSKY, Judge:

Appellant was found guilty by a jury of robbery and theft by unlawful taking on June 9, 1978. A motion to dismiss was filed pursuant to Pennsylvania Rule of Criminal Procedure 1100 (hereinafter Rule 1100) and denied. Appellant was ordered to pay the costs of prosecution, make restitution and was sentenced to not less than four years and not more than eight years imprisonment. Post-verdict motions were also filed and subsequently denied. This appeal followed. We affirm the decision of the trial court.

Layman claims the trial court erred on five separate grounds. First, he asserts Rule 1100 was violated. Second, he remonstrates that a search warrant used by police was insufficient because it was not based upon sufficient probable cause. Third, he states the arrest warrant lacked probable cause. Fourth, he contends “a mistrial should have been granted based on the Commonwealth’s failure to provide an adequate bill of particulars listing all witnesses to be called for trial[.]” Appellant’s brief, page 2. And, fifth, he asserts the trial court improperly denied appellant’s request to seek certain questions of veniremen.

Appellant’s convictions stem from the following facts. On June 5, 1977, a robbery occurred at Melvin’s Service Station in Perryopolis, Pennsylvania. The appellant allegedly was confronted by an employee of Melvin’s Service Station at a “pop machine” in front of the station. Layman, according to the testimony of the attendant, held a revolver in one of his hands. The attendant then went to pump gas for a customer. While he returned to the service station building, he noticed the appellant was no longer outside of it. The attendant went inside the building and was apparently confronted by the appellant who is reputed to have said, “This is a stick up.” The attendant gave him what money he had in his pockets. The attendant stated he was then forced out and away from the service station. The attendant did not claim he saw appellant return to or enter the service station. He did state that he called the police and the station owner to report the events. Appellant was apprehended at a subsequent time. The attendant identified the appellant during the trial.

First, appellant claims Rule 1100 was violated. Layman was arraigned on June 23, 1977. Thus, his trial would need to be scheduled on or before December 20, 1977. However, on September 5, 1977, appellant’s counsel requested a continuance until December 5,1977, for the trial court’s December session. The continuance was granted and the case was ordered for trial on December 14, 1977. Thus, the continuance was ordered for at least 91 days. Under Rule 1100(d)(2), 61 days of this continuance are excluded from calculations. Rule 1100(d)(2) states:

(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (!)•••
(2) any continuance in excess of thirty (SO) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.

(Emphasis added.)

Appellant also presented several motions to suppress evidence which were denied on December 14, 1977. In response, presumably, to the court’s decision, Layman pleaded guilty. This plea was withdrawn on April 24, 1978. Thus, an additional 131 days delay was caused by the unavailability of appellant for trial. These days are excluded pursuant to Rule 1100(d)(1) which states:

(d) In determining the period for commencement of trial there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;

Therefore, 192 days may be excluded from the Rule 1100, 180 day period. Thus, while the appellant’s trial did not occur until June 8, 1978, 350 days after the Rule 1100 commencement date, 192 of those days are excludable, Rule 1100(d). Therefore, the trial commenced 158 unexcluded days after June 23, 1977. There was no Rule 1100 violation.

Next, the appellant challenges both the legitimacy of his arrest and a subsequent search. These events occurred in the following factual sequence, as described by the Commonwealth:

Mr. Unice was a state police officer at the time Mr. Layman was arrested. He was in the company of Officer Oudinot on the morning of the arrest; he physically took Mr. Layman off of the couch of the living room of the mobile home. Officer Oudinot later got the search warrant, went back and found the gun. Officer Oudinot was not inside the mobile home when Mr. Layman was laying on the couch.

First, appellant claims the arrest warrant under which he was arrested was invalid because it contained insufficient probable cause. In Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975), we said:

When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same “beyond-a-reasonable-doubt” standard which we apply in determining guilt or innocence at trial.

The burden of showing probable cause is on the Commonwealth. Commonwealth v. Holton, 432 Pa. 11, 14-15, 247 A.2d 228, 230 (1968).

The appellant challenges the arrest warrant because it was not sufficiently specific. It is true that we have consistently “held that descriptions equally applicable to large numbers of people will not support a finding of probable cause.” Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975). However, the arrest warrant in the instant case was supported by evidence of a description of the appellant. He was specifically described by a witness and who also gave a description of the type of car driven from the scene of the crime. The police knew through previous experience that these facts matched the appellant and his automobile. Thus, a warrant was issued naming appellant individually. We are satisfied that the warrant was based upon probable cause.

Next, Layman contends that evidence gotten at a search of appellant’s father’s home was illegal. A .25 caliber pistol was discovered by the police on a couch. The gun was linked to the appellant and entered into evidence against him. Layman did not live and had not been living with his father at the time of the arrest. The trial court held that Layman had no standing to challenge the search and we agree.

In Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the United States Supreme Court stated where the petitioner challenges the search of another person’s possessions.

In holding that petitioner could not challenge the legality of the search of Cox’s purse, the Supreme Court of Kentucky looked to our then recent decision in Rakas v. Illinois, [439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)], where we abandoned a separate inquiry into a defendant’s “standing” to contest an illegal search in favor of an inquiry that focused directly on the substance claim that he or she possessed a “legitimate expectation of privacy” in the area searched [citation omitted].

Id. at 104, 100 S.Ct. at 2561, 65 L.Ed.2d at 641.

Therefore, our Supreme Court’s decision in Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976), upon which the trial court and parties on appeal rely, which provided standing may be established when one is present at the time of the search, had a possessory interest in the evidence seized, that the offense was possessory in nature, or that one held a proprietary or possessory interest in the area searched is no longer controlling. Clearly, Rawlings v. Kentucky, requires that we view the totality of the circumstances and determine whether the appellant had a legitimate “expectation of privacy” in the area searched. In the instant case, we find no expectation.

At the time the search occurred, the appellant did not live with his father. However, Layman did occasionally stay at his father’s house. In fact, at the time of the search, Layman was incarcerated related to other offenses. We cannot hold that he had a “legitimate expectation of privacy in the area searched.”

Appellant claims “a mistrial should have been granted because the Commonwealth failed to produce an adequate bill of particulars listing all witnesses to be called for trial[.]” Appellant’s brief, page 2. In Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976), our Supreme Court held:

Furthermore, we do not believe the Commonwealth was required to list the name of Mrs. Chesonis as a potential witness in the bill of particulars. “The function of a bill of particulars is to enable the accused to prepare for trial and prevent surprise”, Commonwealth v. Simmione, 447 Pa. 473, 376, 291 A.2d 764, 766 (1972). The Commonwealth had properly listed the crimes charged and those witnesses it intended to call during the case in chief, thereby enabling appellant to prepare his defense.

Id., 467 Pa. at 282, 356 A.2d at 750.

In Commonwealth v. Bartman, 240 Pa.Super. 495, 367 A.2d 1121 (1976), we said:

Appellant’s final contention relates to the bill of particulars filed by the Commonwealth. Appellant contends that the court erred in allowing the Commonwealth to call witnesses beyond those listed in the bill of particulars. However, this contention is negated by the fact that the bill of particulars states that “[t]he names and addresses of all witnesses intended to be called by the Commonwealth for the case in chief as endorsed on the Indictment, are as follows: . . . and such other witnesses as deemed advisable by the Commonwealth.” Furthermore, as will be developed in the next section, the testimony of two of the three witnesses not named in the bill of particulars was prejudicial only to appellant-Bartman. The testimo ny of the third witness was not sufficiently prejudicial to require reversal

(Emphasis added.) Thus, even if a witness is called whose name was not in the complaint or bill of particulars, sufficient prejudice must be found if we are to reverse.

In this case, former State Police Officer, Joseph Unice, the arresting officer, was called to testify. The bill of particulars stated regarding witnesses to be called by the Commonwealth.

1. All witnesses are listed on the Information and/or complaint except Melvin Gardner, Post Office Box 392, Perryopolis, Pennsylvania, owner of Melvin’s Service Station, Route 51, Perryopolis, Pennsylvania. The address of the witness Stanley Scott Burkholder is R.D. #2, Box 13-R, Perryopolis, Pennsylvania, 15473. Trooper Lloyd Oudinoit is stationed at the Pennsylvania State Police Barracks, Belle Vernon, Pennsylvania.

The complaint made no mention of Detective Unice. Thus, since no mention of Unice was made in the bill of particulars and the bill did not indicate other witnesses might be called, our inquiry must first determine whether the appellant was prejudiced by the testimony given by Officer Unice. All the testimony given at trial related to the actual arrest was given by Officer Unice. He stated:

Q. Is Harry Layman here today?
A. Yes, sir, he is.
Q. Would you point him out to the jury?
A. The gentleman in the brown suit at the far end of the counsel table.
Q. Where was he when you entered the home?
A. He was lying on the couch approximately fifteen feet from the door that we entered.
Q. Was anyone else on the couch?
A. No, sir.
Q. Did you take him from the couch?
A. Yes, sir; he was sleeping and we woke him up. Q. Was Trooper Oudinot there at that time?
A. No, sir.
Q. How long after that did Trooper Oudinot arrive?
A. Just a matter of maybe five or ten minutes he came. Shortly after that.

Clearly, the weight of the testimony given by Officer Unice was necessary in the proceedings. The testimony of the arresting officer by its very nature is important to the Commonwealth’s case, however, as we said, the arrest was made pursuant to a valid warrant. The actions of Officer Unice in arresting the appellant merely represented the mechanical effectuation of a valid arrest warrant. The testimony he gave was not prejudicial. It did not bring out any evidence not presented to the jury by other Commonwealth witnesses at other points in the Commonwealth’s case.

Finally, appellant challenges the lower court’s decision to denying certain questions of veniremen. The questions were:

Do you have an opinion about the control or possession and ownership of handguns which would prevent you from entering a fair and impartial judgment considering all of the evidence?

And,

In this case the victim was not armed, but the robber allegedly had a gun. Would this fact, in and of itself prevent you from giving a fair and impartial consideration to all the evidence?

The court’s refusal to grant questions on voir dire will only be disturbed when there has been an abuse of discretion. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). We do not hold that the trial court abused its discretion.

In Commonwealth v. Werts, 483 Pa. 222, 355 A.2d 1316 (1978), our Supreme Court stated:

This Court has held that “the examination of jurors under voir dire is solely for the purpose of securing a competent, fair, impartial and unprejudiced jury. . . . Neither counsel for the defendant nor the Commonwealth should be permitted to ... ask direct or hypothetical questions designed to disclose what a juror's present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case. Commonwealth v. Johnson, 452 Pa. 130, 134, 305 A.2d 5, 7 (1973).

Id., 483 Pa. at 224, 395 A.2d at 1317. Clearly, trial counsel sought to ask the denied questions in order to ascertain “a juror’s present impression or opinion may be on what his attitude or decision will likely be under certain facts which may be developed in the trial of the case.” Id. The trial court did not abuse its discretion.

Accordingly, the judgment of sentence by the court below is affirmed.

SHERTZ, J., concurs in result.

      . For a discussion of recent Supreme Court decisions involving standing and the Fourth Amendment see: Burkoff, John M., 58 Or.L.R. 151 (1979).