author: POPOVICH, Judge:

text:
    464 A.2d 1327
    COMMONWEALTH of Pennsylvania v. William CARTER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 28, 1983.
    Filed Aug. 19, 1983.

      Abraham A. Hobson, III, Norristown, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the denial of appellant’s, William Carter’s, Post-Conviction Hearing Act (PCHA) Petition (19 P.S. § 1180-1 et seq.) by the Court of Common Pleas of Montgomery County. We affirm.

By Order of the Supreme Court of Pennsylvania dated September 12, 1977, the Superior Court’s per curiam affirmance of the lower court’s dismissal of appellant’s 1975 PCHA petition without a hearing was reversed. The record was remanded to the lower court to determine, after an evidentiary hearing, the truthfulness of appellant’s allegation that his guilty pleas were illegally induced.

Before examining what transpired at the PCHA hearing, it is necessary, in order to place this case in perspective, to set forth the allegations of the appellant as they appear in his 1975 pro se PCHA petition. In that portion of the PCHA petition which requests “the facts in support of the alleged error(s) upon which th[e] petition is based ...” is typed the following:

(1) The Attorney for the Commonwealth threatened to file additional criminal charges against the petitioner if he did not honor the plea bargain:
(2) The bargain consisted of a prison term of Three (3) to Eight (8) years but the petitioner was sentenced to a prison term of Five (5) to Ten (10) years:
Petitioner was also sentenced to pay restitution which was not a part of the bargain:
(3) The Attorney for the Commonwealth also made a part of the bargain that the two remaining charges of “simple Assult” [sic] would be Nol Pros: But the Petitioner was given an [sic] consecutitive [sic] sentences to follow the one he is presently serving:
(4) Prior Convictions was [sic] brought up befoer [sic] the plea was accepted:
(Appellant’s 1975 PCHA petition at 3)

In a document attached to the PCHA petition, captioned “Memorandum of Law,” appellant repeated his allegation that, “The plea of guilty arose out of a THREAT, made by the Prosecutor, who said “That if I didn’t plead guilty that additional charges would be placed on me .... [’]” In response, the Commonwealth filed an “Answer to Post Conviction Hearing Act Petition,” wherein it set forth, inter alia, that:

(a) A plea of guilty unlawfully induced (promises and threats made to induce the plea)—it is denied that the guilty plea was unlawfully induced, and it is averred, to the contrary, that the plea was voluntary, and that there were no improper threats or promises.
* * sjs # *
(i) It is denied that the Commonwealth threatened to file additional criminal charges if the petitioner did not honor his plea bargain, but to the contrary the notes of testimony of the guilty plea clearly set forth that, in connection with the guilty plea, there were assurances given by the Assistant District Attorney that nothing would be pursued with respect to possible charges by the Ambler Police Department because of the decision to enter the guilty plea (N.T. 7).
(Emphasis in original)

With the preceding as a backdrop, we can now examine what occurred at the December 9, 1977 PCHA hearing, which was restricted to the resolution of appellant’s claim that he was “threatened” by the attorney for the Commonwealth that if he did not plead guilty “additional criminal charges [would be filed] against [him.]” (RR. 5)

The first witness to take the stand was the appellant, who recounted how, on the day set for his trial for the July 31, 1974 robbery of a fast-food convenience (“Wawa”) store, he and his defense attorney (Mr. Narducci) had been discussing whether to accept a plea bargain offered by the assistant district attorney (Mr. Furber). Appellant recalled, in response to his own counsel’s (Mr. Hobson’s) inquiry as to what additional charges were threatened, that:

A Well, when Mr. Furber and Mr. Narducci first— ******
A Yes. We were all at the defense table. And they said that—
Q Who is they when you say they?
A Mr. Furber and Mr. Narducci, when they were talking to me about the plea bargain. At first I wasn’t going to accept it. Right? That’s when Mr. Furber told me about the sporting goods store in Ambler. And he said that if I didn’t take the plea bargain to five to ten for the Wawa store, that they were going to take me down and arrest me for the robbery of the sporting goods store.
BY MR. HOBSON:
Q ... Mr. Carter, the substance of your allegation is that you pled guilty on the threat of the Commonwealth that they would charge you with the additional [Am-bier, Pa.] robbery[, which occurred on July 26, 1974,] if you did not accept the plea bargain?
A Yes.
(RR. 6-7 & 9)

On cross-examination, appellant was asked a series of questions regarding the April 29, 1975 guilty plea colloquy conducted before Judge Honeyman. He recalled that at that time he indicated no one threatened or forced him to enter his plea and he understood the nature of the agreement. He also admitted that during the plea bargain discussion the prosecutor talked to him and Mr. Narducci. His recollection was that after telling the prosecutor that the offer of “five to ten years was too much,” (RR. 12), according to the appellant the prosecutor “later stated that he would try to get [appellant] back on the reconsideration of three to eight years, try to get [appellant] three to eight years.” Id. Appellant indicated this conversation occurred before the entry of the guilty plea at defense counsel’s table.

However, when counsel for the Commonwealth asked appellant why he did not object to the prosecutor’s recommendation at the plea to the accused receiving a sentence of five to ten years and the non-pros of the two simple assaults, the following exchange ensued:

A Well, really, I didn’t know any better. I was afraid because—
* * * * * *
THE COURT: Afraid because of what?
A I was afraid if I had spoke up [sic] that the plea bargain would not have been accepted and the additional charges would have been filed against me on another robbery charge.
THE COURT: Well, I addressed the questions to you, did I not, about the plea?
A Yes.
THE COURT: Were you afraid of me? I wasn’t in on the agreement.
A No.
THE COURT: Why did you answer untruthfully to me?
A I was saying what I thought I was supposed to say.
THE COURT: Well, who told you what you were supposed to say?
A Nobody told me what to say.
THE COURT: All right.
MR. WILLIAMSON [Commonwealth’s PCHA attorney]:
Q Mr. Carter, didn’t you realize that when your attorney got up and said to the court that the [assistant] district attorney is going to recommend to the court that Mr. Carter be sentenced to a term of five to ten years on all charges to which he’s pleading guilty, on the notes of testimony, page 6, didn’t you understand that that would mean that in all likelihood you would, in fact, be sentenced to five to ten and not three to eight?
A Yes.
Q Then why didn’t you say anything at that time to the court? Say to the court, gee, your Honor, my understanding was three to eight.
A Because, like I said before, I understood that he [the assistant district attorney] was going to ask for five to ten.
Q A-huh?
A But, to my understanding, I thought I was going to be called back down to court on the reconsideration and get three to eight years.
Q After the judge had already accepted the plea of guilty and a recommendation of a sentence of five to ten?
A Yes.
Q You thought that the judge then was going to reconsider it and give you three to eight?
A Yes.
(RR. 15-17)

It is to be noted that not until after the jury had been empanelled and an opening statement made by the prosecutor was there a motion to sequester the witnesses, which was granted upon request of the prosecution. Thereafter, the trial court was informed that the appellant agreed to plead guilty to the offenses charged. At this point in the discussion it is relevant to recite what was stated by defense counsel at the guilty plea hearing. It is reproduced in the PCHA court’s Opinion to this Court and the content thereof is not contested by appellant’s appellate counsel. To-wit:

It is agreed that the sentences of all cases would total five years to ten years[—this remark was stated by the PCHA judge, who also presided over appellant’s guilty plea proceeding]. Finally, defense counsel stated as follows:
“... it is also understood between Mr. Furber (Assistant District Attorney) and I, with the understanding that the court has played no part in this agreement, that there are at the present time a set of circumstances growing out of an incident in Ambler to which both the Ambler police and Mr. Furber have given assurances that nothing would be filed against Mr. Carter in conjunction with those charges because of his decision to enter a plea of guilty in this case today.” (N.T. 6-7)
Following that there was a further colloquy at the conclusion of which the trial judge stated
“THE COURT: All right, then, so long as the defendant understands that I have no power to nor would I participate in such a decision. It would be beyond the scope of my authority. I cannot act on anything except that which is before the court, and there is nothing before the court concerning Mr. Carter, concerning that Ambler robbery.
MR. NARDUCCI: That is correct.
THE COURT: So that I can offer him no sanctuary, solace, or immunity with regard to that.
MR. NARDUCCI: That is correct. The purpose of my statement for the record was simply to memorialize the understanding between Mr. Furber and Officer Wack [of Ambler, Pa.] and myself, and Mr. Carter.”
(N.T. 7-8)

(PCHA court’s Opinion at 2-3)

The next witness to testify was Mr. Furber, who, “[a]s best [as he] c[ould] recollect,” indicated that, as was customary between the defense attorney and the assistant district attorney, conversation was had with appellant’s counsel as to what, if anything, the Commonwealth might recommend as a sentence. The conversations between counsel “probably extended from the suppression hearing into the next day,” when the prosecutor opened to the jury. (RR. 23)

Since the prosecutor was preparing to try the appellant for robbery, criminal trespass, receiving stolen property, violation of the uniform firearms act, simple assault and conspiracy, (RR. 19), he initially offered to “recommend to the court, seven and a half to fifteen years,” (RR. 21), if appellant elected to plead. This was not acceptable. During the course of these discussions, Mr. Furber recalled indicating to Mr. Narducci that there was an investigation that was still in progress concerning the robbery in Ambler, and that the investigation “indicated that [appellant] was involved.” (RR. 25) This information, as far as Mr. Furber was concerned, “certainly ... was taken into consideration” in negotiating the ultimate plea bargain. Id.

After the initial offer by the prosecution was refused by appellant, Mr. Furber “moved off of [his] original thoughts of seven and a half to fifteen years, and made a recommendation or evidenced to Mr. Narducci that it possibly would be appropriate to recommend to the court five to ten years, but no less than that.” (RR. 23) This offer was “conveyed” to appellant, who, again, would not accept it. Thereafter, Mr. Furber opened to the jury.

When Mr. Furber was asked if any “assurances” were given to the appellant to the effect that no charges would be filed against him in conjunction with the Ambler robbery, the following appears of record:

[MR. FURBER:]

A Sure. Now, that was not in the way of any threat on my part. It was simply an acknowledgement that was made to the defense attorney in this case, and there was nothing surreptitious about it.
As a matter of fact, I was about to point out that we wanted to make sure that the judge also knew that at least these were our thoughts, at least my thoughts as a DA, and I thought Mr. Narducci’s as Mr. Carter’s defense attorney at that time.
But as far as threatening conduct, no, I don’t think I could characterize it as a threat.
[MR. WILLIAMSON—Commonwealth’s PCHA attorney]:
Q Now, you’ve heard the defendant testify that you came over to counsel table on the day of the hearing and made reference to the fact that additional charges might be brought against him.
Did you make any statement of any nature to the defendant, talk directly to the defendant?
A I don’t recall asking Mr. Carter any questions directly or making any statements to him directly.
Now, what he referred to may, in fact, be correct, that is, that I approached counsel table prior to the time I opened to the jury—I don’t remember, in the morning or after the suppression hearing—and talked with—
Q Well, Mr. Narducci was also at that counsel table.
A Oh, certainly. I did not, in any way, shape or form in this case, talk to Mr. Carter by himself, if that is what he indicated.
THE COURT: But he could well have overheard.
A Certainly, your Honor.
Q Do you have any recollection as to any promises that you made to the defendant that he would get a recommended sentence of three to eight years instead of what the ultimate plea bargain turned out to be, five to ten?
A I don’t have any recollection of that at all. Absolutely none.

(RR. 25-27)

On cross-examination, Mr. Furber disputed appellant’s counsel’s characterization that he “indicated to Mr. Carter that if [appellant] did not plead guilty that charges would be brought against him for the [Ambler] sportman’s store job[.] ” (RR. 29) Rather, Mr. Furber, sometime prior to his opening statement to the jury, had a three-way conversation with the appellant and his counsel in which he stated, “Rocco Wack, the detective from Ambler[,] ... indicated to [him] that if, in fact, Mr. Carter admitted his guilt in the Wawa robbery, that at that particular time the investigation concerning the Ambler robbery would, in essence, be complete ____ [T]he Ambler police department was not interested in pursuing charges against Mr. Carter.” (RR. 30-31) In other words, Detective Wack “said he would not press the charges against Mr. Carter.” (RR. 32) The reason the channels of communication were kept open prior to, as well as including, the trial phase, according to Mr. Furber, “was to continue whatever negotiations we had on-going.” (RR. 34)

To a point, Mr. Narducci, the last witness to appear, reaffirmed Mr. Furber’s version of what transpired. For example, Mr. Narducci agreed that the first offer of seven and a-half to fourteen years was unacceptable. Also, that the two had discussed the matter “for some time in an attempt to work out a plea disposition[.] ” (RR. 38) However, Mr. Narducci’s accounting of how the two struck an agreement at five to ten is not as clear. According to Mr. Narducci, the assistant district attorney, appellant and he did not act in concert at all times. As he states it, he “was kind of shuttling back and forth between Mr. Furber and Mr. Carter.” (RR. 40) After the five to ten figure had been agreed upon, Mr. Narducci then went back and told the appellant, “we have a new wrinkle in this matter.” Id.

That being that apparently they [Mr. Furber and Detective Wack] had information which would be sufficient to proceed against [appellant] in another robbery in Ambler area, and [he—Mr. Narducci—was] told that they wo[uld not] bring these charges in the event [appellant] agree[d] to the five to ten recommendation....
The discussion after that point, between Mr. Carter and [Mr. Narducci], revolved around what assurances [he] could provide him, as well as in [his] own mind [he] was concerned with what assurances [he] could be provided with, to make sure that if [he and appellant] accepted this arrangement that it would not be reneged on in any way. Because it goes without saying that [he] had Mr. Carter’s best interest at heart at that point, and [he] wanted to make sure that it couldn’t come back on him.
[He] remember[ed] going back and talking to Mr. Furber, and [he] believe[d he] also talked to Detective Wack. And [he] asked, how d[id he] know that what [they said they were] going to do [was] what [was] going to happen?
And they said, well, you have my word. You know me, I’ve been around here for a while.
THE COURT: Who is saying this, Furber or Wack?
A Both, your Honor____
(RR. 40-41)

Narducci went on to testify that some of the discussion “took place collectively” among all three, “rather than being directed to any individual specifically.” (RR. 42) When questioned on cross, Narducci also stated that Mr. Furber never mentioned anything about a sentence of three to eight years. (RR. 44) Shortly thereafter, the hearing came to an end and counsel for both sides presented closing arguments to the PCHA court.

The PCHA court, after finding as a fact that the assistant district attorney neither “threatened” appellant in any fashion nor “promised” him anything if he pleaded guilty, concluded as a matter of law that the pleas of guilty were not “illegally induced by either the [Assistant] District Attorney, defense counsel or the court, with respect to any representations concerning any other criminal proceedings or with respect to any promises or representations outside of the explicit terms of the plea agreement pursuant to which the pleas of guilty were entered.” (PCHA court’s Opinion at 3) This appeal followed.

Presently, appellant seeks to withdraw his plea after the imposition of sentence. The standard for granting withdrawal at this stage of the proceedings is that of “manifest injustice.” Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). “Manifest injustice” occurs where the accused makes an involuntary plea. Id. Upon a finding that a plea was involuntary, the court should permit withdrawal in order to correct a “manifest injustice.” The defendant is so entitled, it would appear, as a matter of right. Commonwealth v. Ammon, 275 Pa.Super. 324, 418 A.2d 744 (1980). However, the determination of the existence of “manifest injustice” is in the first instance for the trial court, which initially accepted the plea. Commonwealth v. Starr, supra; Pa.R.Crim.P. 320. Also, it needs to be remembered that the burden is on appellant to prove that his plea was not voluntary. Commonwealth v. Johnson, 273 Pa.Super. 488, 417 A.2d 753 (1979). Consistent therewith, albeit “[a] guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void[,] ” Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), appellant has not met this burden.

Historically, the vital role plea bargaining plays in this Commonwealth has not gone unrecognized. This Court has remarked:

It is well recognized that the guilty plea and the frequently concomitant plea bargain are valuable implements in our criminal justice system. See Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth v. McKee, 226 Pa.Super. 196, 313 A.2d 287 (1973). “The disposition of criminal charges by agreement between the prosecutor and the accused, ... is' an essential component of the administration of justice. Properly administered, it is to be encouraged.” Santo bello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) (emphasis added). In this Commonwealth, the practice of plea bargaining is generally regarded favorably, Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976); Commonwealth v. Alvarado, supra; Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966), and is legitimized and governed by court rule. Pa.R.Crim.P. 319(b). The desirability of disposing of criminal charges through plea bargaining is based on the premise that frequently a plea agreement is advantageous to all concerned:
“The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.” Blackledge v. Allison, supra [431 U.S.] at 71, 97 S.Ct. at 1627-28.
Commonwealth v. Schmoyer, 280 Pa.Super. 406, 413-14, 421 A.2d 786, 789-790 (1980). With these considerations in mind, we find additional guidance as to the manner in which we should rule from the United States Supreme Court’s most recent pronouncement on the subject of plea negotiations in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), reh. denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978).
In Bordenkircher, Paul Hayes was indicted by a county grand jury in Kentucky for uttering a forged instrument. After arraignment, Hayes, his counsel and the Commonwealth’s attorney met to discuss a possible plea agreement. The prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty. He also said that if Hayes did not plead guilty he would seek a grand jury indictment under Kentucky’s recidivist statute, which would subject Hayes to a mandatory sentence of life imprisonment by reason of his prior felony convictions. Hayes decided not to plead guilty, and the prosecutor did secure the indictment he had promised.
A jury found Hayes guilty of the uttering charge and, in an independent proceeding, also found him to be a recidivist. As called for by Kentucky law, he was sentenced to life imprisonment. The Kentucky Court of Appeals rejected Hayes’ constitutional objections to the enhanced sentence. The Sixth Circuit Court of Appeals reversed the Court’s judgment, on the ground that the prosecutor’s conduct during the bargaining negotiations had violated the principles of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), which protected defendants from the vindictive exercise of a prosecutor’s discretion. Hayes was ordered discharged.
The United States Supreme Court, speaking through Justice Stewart, disagreed with the Sixth Circuit Court of Appeals that the prosecutor was acting “vindictively” and in violation of due process of law because his charging decision was influenced by what he hoped to gain in the course of plea bargaining negotiations. In the course of making its ruling, the high Court made statements relevant to the case at bar:
... [I]n the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.
Plea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra, 397 U.S. [742], at 752, 90 S.Ct. [1463], at 1471 [25 L.Ed.2d 747]. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S., at 758, 90 S.Ct., at 1474. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App. Draft 1968); Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv. L.Rev. 564 (1977). Cf. Brady v. United States, supra, at 751, 90 S.Ct., at 1470; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable”— and permissible—“attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Chaffin v. Stynchcombe, supra, 412 U.S. [17], at 31, 93 S.Ct. [1977] at 1985 [36 L.Ed.2d 714]. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

Id. 434 U.S. at 363-364, 98 S.Ct. at 668, 54 L.Ed.2d at 610-611.

Instantly, it cannot be gainsaid that the appellant had at all times, with the knowledge and advice of his attorney, the option freely to accept or reject the prosecution’s offer. In fact, appellant’s guilty plea counsel memorialized the offer from the prosecution, in regard to Detective Wack agreeing not to pursue the investigation as to the Ambler robbery as the quid pro quo for appellant’s willingness to plead guilty, by having it placed on the record for transcription. Thus, we have no evidence of surreptitious activity characteristic of subtle “threats or promises” kept from the purview of the guilty plea court. Quite the contrary, everything was out in the open and, as can be gleaned from the testimony reproduced supra at the PCHA hearing, truly epitomizes the “give-and-take” of plea bargaining.

As stated by appellant’s guilty plea counsel at the PCHA hearing, he, in acting in the best interest of his client, advised appellant to accept the plea bargain. We cannot find fault with this counseling, given the particular circumstances presented to this Court. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Stated otherwise, we find that there are sufficient facts within the record for this Court to determine that the alternative of pleading guilty was one for which there was a reasonable basis. Cf. Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181 (1975).

Moreover, in accordance with the finding of the PCHA court, we hold that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the appellant with the unpleasant alternatives of foregoing trial or facing charges on which he might be subject to prosecution, did not constitute “unlawful inducement” nor will it be equated with “manifest injustice” warranting the' withdrawal of the guilty pleas. See Bordenkircher v. Hayes, supra; Commonwealth v. Starr, supra.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    464 A.2d 1336
    Henry J. ITRI and Joanne V. Itri, his wife, Appellants, v. EQUIBANK, N.A.
    Superior Court of Pennsylvania.
    Argued April 26, 1983.
    Filed Aug. 19, 1983.

      Lee R. Golden, Pittsburgh, for appellants.
    Sidney R. Finkel, Pittsburgh, for appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal by the appellants, Henry J. and Joanne V. Itri, from the Order of the Court of Common Pleas of Allegheny County sustaining appellee’s, Equibank’s, preliminary objections (in the nature of demurrers and jurisdictional grounds) to their Complaint in Trespass. We reverse and remand for proceedings consistent with this Opinion.

Since review is sought of the sustainment of the preliminary objections in the nature of demurrers, the well-pleaded factual allegations set forth in the Complaint are to be regarded as true for purposes of review. Carlino v. Whitpain Investors, 499 Pa. 498, 453 A.2d 1385 (1982). The facts as alleged by appellants’ Complaint establish the following: In 1973, appellants’ Pennsylvania based corporation, Itri Construction Co., of which Henry Itri was President, began to engage in banking transactions with (Douglas McAdams, William Roderas, H.P. Pernisek and Scott Gray) duly authorized agents of appellee. The transactions consisted of, inter alia, borrowing money with payments to be made in accordance with installment notes and demand notes.

On or about September 21, 1975, appellee (in particular William Roderas) became aware that Henry Itri had suffered a heart attack, and, as a result, would not be able to continue operating the construction business. Thereafter, on or about May 27, 1976, a 1975 commercial note drawn on the appellee in the amount of $10,000 was satisfied by the appellants borrowing $12,700 from the same banking institution and executing another note to evidence the debt. This was the first time that the appellant-wife became jointly liable with the appellant-husband to the appellee. After the passage of almost two years (September 9, 1978), appellants paid the outstanding balance owing on the May, 1976 personal loan by securing a new advancement ($10,-000), evidenced by a note, from appellee, which was to be used for personal rather than commercial expenses. There was no dispute between the parties that the $10,000 note was the primary obligation of the appellants, as distinguished from the corporation, and was secured by an insurance policy on the life of the appellant-husband, issued by General American Life Insurance and owned by appellant-wife. Lastly, it was agreed that repayment was to be made in monthly installments “and that the full amount of said note was not to be demanded unless [appellants] defaulted in making a monthly payment.” (See Appellants’ “Complaint in Trespass,” Point 19)

The last portion of appellants’ Complaint consists of sixteen (16) counts which allege, in pertinent part, the following:

COUNT I

20. On or about March 12, 1979, William Roderas, agent of Defendant, phoned Plaintiffs requesting a financial statement and said life insurance policy with General American Life Insurance Company to forward to the Downtown office at the request of agent, H.P. Pernisk; and this request for said life insurance was harassment and/or abuse____

COUNT II

21. On or about March 13, 1979, Plaintiffs met with William Roderus, agent of Defendant, at Defendant’s Monroeville office, and William Roderus agreed that it would be satisfactory to rewrite said. $10,000 note into a formal sixty (60) month installment loan note with credit life insurance in lieu of said General American Life Insurance policy, but William Roderus stated that he understood a judgment would be entered through the directions of the Downtown office; said judgment to be entered against Plaintiffs.

22. At said time and place referred to in Paragraph 21 above, William Roderus, agent of Defendant, stated that he was no longer allowed to do business with Plaintiffs or any companies with which they were associated, ____

COUNT III

23. On or about March 16, 1979, Defendant unlawfully confessed judgment upon said $10,000 note at No. GD 79-6672, in violation of the agreement between Plaintiffs and William Roderus when Plaintiffs’ monthly payments were current,____

COUNT IV

24. ...

25. On or about April 11, 1979, Plaintiffs received a letter from H.P. Pernisek, agent of Defendant, regarding said $10,000 note and said judgment without seeking a Court’s permission and/or without seeking the permission of Plaintiffs’ attorney ... who H.P. Pernisek should have known was involved in said judgment [since on or about April 6, 1979 the attorney filed a petition to open and/or strike said judgment], ____

COUNT V

26. On or about May 30, 1979, Plaintiffs met with H.P. Pernisek and Scott Gray, agents of Defendant, at H.P. Pernisek’s request in Defendant’s Oliver Plaza Building offices with reference to said $10,000 note.

27. At the time and place stated in Paragraph 26 above, H.P. Pernisek, agent of Defendant, knew Plaintiffs’ General American Life Insurance policy was a term policy without cash value and that a copy of said policy was on file with Defendant.

28. At the time and place stated in Paragraph 26 above, H.P. Pernisek, agent of Defendant, refused to accept Plaintiffs’ monthly payment on said $10,000 note until such time as said American General Life Insurance policy was turned over to Defendant, which conduct constituted harassment and/or abuse,____

COUNT VI

29. ...

30. At the time and place stated in Paragraph 26 above, H.P. Pernisek, agent of Defendant, communicated with Plaintiffs without seeking a Court’s permission and/or without seeking the permission of Plaintiffs’ attorney ... who H.P. Pernisek should have known,____

COUNT VII

31. At the time and place stated in Paragraph 26 above, Scott Gray, agent of Defendant, left the meeting room under the pretense of searching for records requested by Plaintiffs and instead telephoned General American Life Insurance Company, which phone call was a third party communication, ....

COUNT VIII

32. The conduct referred to in Paragraph 31 above was calculated to harass and abuse Plaintiffs, ....

COUNT IX

33. At the time and place stated in Paragraph 26 above, H.P. Pernisek, agent of Defendant, attempted to coerce and threaten Plaintiffs with action on said $10,000 note unless they settled another matter involving G.I. Partners, one, Theodore Gelet, and Plaintiff, HENRY J. ITRI, which conduct constituted additional harassment and abuse,____

COUNT X

34. ...

35. ...

36. On or about July 11, 1979, Scott Gray, agent of Defendant, contacted the office in Pittsburgh of Plaintiffs’ life insurance agent, Dominic Cerniglia, for information concerning and a copy of said life insurance policy,____

COUNT XI

37. The conduct referred to in Paragraph 36 above was committed with the intent of harassment and/or abuse upon Plaintiffs,____

COUNT XII

38. ...

39. On or about July 11, 1979, Scott Gray, agent of Defendant, telephoned the General American Life Insurance Company office in St. Louis to make inquiry regarding said life insurance policy, and such inquiry was beyond the scope of information needed by an assignee [Defendant was so designated by the Plaintiffs] of such a policy,____

COUNT XIII

40. The conduct referred to in Paragraph 39 above was calculated to harass and or abuse Plaintiffs.

COUNT XIY

41. .

42. On July 31, 1979, Scott Gray, agent of Defendant, contacted the office in Pittsburgh of Plaintiffs’ life insurance agent seeking information concerning said life insurance policy,____

COUNT XV

43. The conduct referred to in Paragraph 42 above was calculated to harass and/or abuse Plaintiffs, ....

COUNT XVI

44. Paragraphs 20 through 43 are incorporated herein as if fully set forth at length.

45. The conduct referred to above constitutes a pattern of conduct and bad faith conduct, which conduct is outrageous and was committed with the intent to harass and/or abuse Plaintiffs, in violation of 15 U.S.C., Section 1692(d) and 1692(f), and in violation of the law of the Commonwealth of Pennsylvania.

46. As a direct and proximate result of Defendant’s conduct as aforementioned, Plaintiff, HENRY J. ITRI, has suffered the following injuries:

A. Anxiety—hypertension;
B. Chest pains;
C. Loss of sleep; and
D. Shock.

47. As a direct and proximate result of Defendant’s conduct as aforementioned, Plaintiff, JOANNE V. ITRI, has suffered the following injuries:

A. Loss of sleep;
B. Anxiety; and
C. Shock.

48. As a direct and proximate result of Defendant’s conduct as aforementioned, which conduct was outrageous, malicious and wanton, Plaintiffs have suffered the following damages:

A. Invasion of privacy;
B. Marital discord and instability;
C. Pain, suffering inconvenience; and
D. Emotional distress.

WHEREFORE, Plaintiffs demand judgment against the Defendant in a sum in excess of $10,000 as follows:

A. For compensatory damages;
B. For statutory damages; and
C. For punitive damages.

We note that the first 15 counts, of appellants’ 16-count Complaint, attribute the appellee and/or its agent(s) with the commission of various acts, all of which concluded with the phraseology that the complained of acts were “in violation of 15 U.S.C., Section 1692” of the Fair Debt Collection Practices Act. {See Appellants’ “Complaint in Trespass,” Counts I-XV) The last count, “COUNT XVI,” asserts both a federal and state cause of action. Nonetheless, the trial court, by Order dated August 4, 1980, sustained appellee’s preliminary objections “as to the jurisdiction of the ... Court [of Common Pleas of Allegheny County, Civil Division,] to hear and rule upon the merits of appellants' Complaint.” In an accompanying Opinion, the trial judge (Zappala, J.) examined the federal statute in question (15 U.S.C.A. § 1692k(d)) and its counterpart in this Commonwealth (42 Pa.C.S.A. § 931), i.e., in terms of the jurisdictional issue, and concluded:

“Clearly, [in 15 U.S.C.A. § 1692k(d)], then, Congress intended concurrent jurisdiction between the federal and state court systems provided that the state legislature granted to its courts the power to adjudicate this type of federal claim. [After reproducing 42 Pa.C.S.A. § 931, the trial judge went on to hold:]
******
It is clear, then, that the General Assembly intended that our [Commonwealth] courts have jurisdiction over those claims which the General Assembly has provided legislative authority to act, or those claims which the courts have assumed the power to act through the common law. Review of our statutes fails to establish any authority for the enforcement of the Fair Debt Collection Practices Act. Furthermore, nowhere in our statutes is there any legislation comparable to that of the Act. Accordingly, this Court acted properly in sustaining the preliminary objections in that the Court does not have the power to adjudicate this federal claim.
The Court entered an Order on August 4, 1980, sustaining the preliminary objections of the defendant and dismissing the Complaint. That Order is adopted herein and incorporated with this opinion.” (Trial Court Opinion at 2-3)

As can be expected, the appellee echoes the sentiments expressed supra and argues that, “As the [trial] court did not have jurisdiction over the claims involving the alleged violations of the Act, the [trial] court necessarily had to dispose of the entire complaint due to the lack of jurisdiction.” (Appellee’s Brief at 4) Just as predictably, appellants argue to the contrary. However, interestingly enough, neither party to the litigation nor the trial judge cites any case law to substantiate their respective positions. Rather, each merely recites the statutory law in question, gives his interpretation of same and, then, ends his discussion with a conclusionary statement couched in terms supportive of their view.

Because of the dearth of relevant information presented to this Court, we have had to rely upon our own research. What we have uncovered undermines the trial court’s and appellee’s joint stance.

To start with, appellants’ federal cause of action is premised upon allegations that the appellee and/or its agent(s) has violated various provisions of the Fair Debt Collection Practices Act (FDCPA). 15 U.S.C.A. § 1692 et seq. Next, from a historical prospective, we observe that:

The FDCPA was enacted in 1977 as an amendment to the Consumer Credit Protection Act “to protect consumers from a host of unfair, harassing, and deceptive debt collection practices without imposing unnecessary restrictions on ethical debt collectors.” Consumer Credit Protection Act, Sen.Rep. No. 95-382, 95th Cong., 1st Sess. 1-2, reprinted in [1977] U.S.Code Cong. & Admin.News, pp. 1695, 1696. Among the specific practices prohibited are threats of violence, obscene language, the publishing of “shame lists,” harassing or anonymous telephone calls, impersonating a government official or attorney, misrepresenting the consumer’s legal right, simulating court process, obtaining information under false pretenses, collecting more than is legally owing, and misusing postdated checks. See 15 U.S.C. §§ 1692d, 1692e, 16921 The statute does not apply to persons or businesses collecting debts on their own behalf. Id. § 1692a(4). It is directed to those persons who are engaged in business for the principal purpose of collecting debts. Id. § 1692a(6). In order to prevent collection action against the wrong person or against a debtor who has already paid, the Act requires the debt collector to validate the debt. Id. § 1692g. Within five days after the initial communication, the debt collector must send the consumer written notice stating the name of the creditor and the amount owed. Id. § 1692g(a)(l)-(2). If the consumer disputes the validity of the debt within 30 days, the debt collector must cease collection until s/he sends the consumer verification. Id. § 1692g(b). Congress viewed the statute as primarily self-enforcing. Sen.Rep. No. 95-382 at 5, reprinted in [1977] U.S.Code Cong. & Admin.News at 1699. The statute provides for suit by the aggrieved consumer who may recover actual damages, attorney’s fees and costs, and additional damages to be assessed as the court deems appropriate, not exceeding $1,000. 15 U.S.C. § 1692k(a).

Staub v. Harris, 626 F.2d 275, 276-277 (3rd Cir.1980).

Furthermore, it must be noted that a plaintiff bears the unquestioned burden of establishing jurisdiction where the question of the sufficiency of his jurisdictional allegations is before the court on a motion to dismiss. See Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 938 (N.D.Miss.1978).

Having established a framework within which to understand the FDCPA, we may now turn our attention to the crux of the case, i.e., whether the court of common pleas has subject-matter jurisdiction over the matter in controversy under subsection (d) of Section 1692k, which reads: § 1692k. Civil Liability

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Jurisdiction

(d) An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.

15 U.S.C.A. § 1692k(d).

The appellee filed preliminary objections alleging, inter alia, that the Court of Common Pleas of Allegheny County had no jurisdiction to hear any cause of action under the FDCPA since “[t]he statutes of the Commonwealth d[id] not vest this Court with the requisite jurisdiction to entertain the Complaint of Plaintiffs.” (Appellee’s “Preliminary Objections,” Point 1) This position was embraced by the trial court and reasserted by the appellee before this Court. However, we are not dissuaded by such an argument, especially in the absence of supportive authority, for several reasons.

First, those (federal) courts which have had occasion to rule upon the meaning of subsection (d) of Section 1692k have stated that: “The language is to be construed as a concurrent grant of jurisdiction to U.S. district and state courts. See S.Rep. No. 382, 95th Cong., 1st Sess. 8 (1977), reprinted in 1977 U.S.Code Cong. & Ad.News 1695, 1702; Peterson v. United States Accounts, Inc., 638 F.2d 1134, 1135-36 (8th Cir.1981) (dictum).” In re Scrimpsher, 17 B.R. 999, 1004 n. 8 (Bkrtcy.N.D.N.Y.1982).

Second, the Pennsylvania Supreme Court, in ruling upon the propriety of a Commonwealth court acting as the forum for the enforcement of a federal law (Truth-In-Lending Act) that contained language in its jurisdiction section identical to that in FDCPA, held:

Here [the Truth-In-Lending Act] 15 U.S.C.A. § 1640(e), supra, specifically permits any court of “competent jurisdiction” to entertain the action. State courts thereby have the authority to hear such claims.

Household Consumer Discount Co. v. Vespaziani, 490 Pa. 209, 212 n. 5, 415 A.2d 689, 691 n. 5 (1980).

Lastly, we need only look to this Court’s decisions to buttress the contention that, in the case here, 15 U.S.C.A. § 1692k(d) would support a suit in either state or federal court. To-wit, in Harrington v. Philadelphia City Employees Federal Credit Union, 243 Pa.Super. 33, 364 A.2d 435 (1976), this Court had the opportunity to remark upon the viability of bringing a suit in either federal or state court under the Federal Credit Union Act. 12 U.S.C.A. § 1751 et seq. We first found that the Act permitted suit to be commenced “in any court of law or equity, State or Federal.” 12 U.S.C.A. § 1789(a)(2). Thereafter, we made remarks which are quite appropriate to the case at bar; viz.:

There is no doubt that in the instant case, the above language would support a suit in either state or federal court.
We also note that concurrent jurisdiction such as that here, is by no means a new and novel concept. As the United States Supreme Court stated in Charles Dowd Box Co. v. Courtney, 868 U.S. 502, 507-08, 82 S.Ct. 519, 522, 7 L.Ed.2d 483 (1962):
“We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule.”
There is nothing in the present statute making federal jurisdiction exclusive in all instances, nor is there any particular reason for restricting jurisdiction.

Id., 243 Pa.Superior Ct. at 41-42, 364 A.2d at 440.

Instantly, as in Harrington, we see no reason, given the federal statute in question and the manner in which it has been construed, to restrict resolution of appellants’ claims to the federal forum. For, as stated quite aptly by this Court in Harrington, “There is nothing in the present statute making federal jurisdiction exclusive in all instances, nor is there any particular reason for so restricting jurisdiction.” Id. Accord DiAntonio v. Pennsylvania State University, 455 F.Supp. 510, 512 (M.D.Pa.1978); cf. Salatino v. Pennsylvania Nurses Association, 293 Pa.Super. 336, 439 A.2d 140 (1981) (federal labor act did not preempt subject matter jurisdiction over case involving alleged breach of union’s duty of fair representation of its members, and, thus, common pleas court had jurisdiction to hear the dispute).

Since neither side presents any evidence to indicate that a cause of action identical to that being appealed from here was instituted in federal court, see Wolgin v. State Mutual Investors, 265 Pa.Super. 525, 402 A.2d 669 (1979), we find the foregoing discussion dispositive of the issue (jurisdictional controversy) before this Court. For the reasons stated above, appellants’ Complaint in Trespass is reinstated and the matter is to proceed in the court below as though no preliminary objections were sustained on behalf of the appellee.

Order is reversed and the case is remanded for proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . Because of the result reached instantly, we find it inappropriate to decide whether either cause of action presents a viable claim entitling appellants to the damages sought.

      . 15 U.S.C.A. § 1601 et seq. The jurisdiction portion of the Truth-In-Lending Act was interpreted by this Court as follows:
      State courts nevertheless have concurrent jurisdiction to hear disputes relating to the Truth-In-Lending Act. Section 130(e) of the Act provides that, “Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction ...." 15 U.S.C. § 1640(e). See Lewis v. Delta Loans, Inc., 300 So.2d 142 (Miss. 1974).

        Household Consumer Discount Co. v. Vespaziani, 255 Pa.Super. 367, 372 n. 4, 387 A.2d 93, 95 n. 4 (1978), rev'd on other grounds, 490 Pa. 209, 415 A.2d 689 (1980).

      . We will not rule upon the other assertions raised by the appellants or appellee in their brief to this Court, in light of the ruling just made, for to do so would be the equivalent of issuing an advisory opinion. As we stated in a similar context, "This Court is not in the practice of rendering advisory opinions on questions which have not been fully briefed and argued below [so as to give the lower court the first opportunity to resolve the dispute]; to do otherwise, would be presumptive of the lower court’s determination on remand.” Commonwealth v. Hamlin, 302 Pa.Super. 86, 93 n. 2, 448 A.2d 538, 542 n. 2 (1982); see also Mt. Lebanon v. County Board of Elections, 470 Pa. 317, 368 A.2d 648 (1977); Pa. Public Utility Commission v. County of Allegheny, 415 Pa. 313, 203 A.2d 544 (1964). However, we do advise that the following cases, although not an exhaustive list of matters to be reviewed in resolving the issues raised by appellants’ Complaint in Trespass, should be examined to ascertain some insight into the scope of, and the remedies afforded by, the FDCPA. See Peterson v. United Accounts, Inc., 638 F.2d 1134 (8th Cir.1981); Staub v. Harris, 626 F.2d 275 (3rd Cir.1980); Kizer v. Finance America Credit Corp., 454 F.Supp. 937 (N.D.Miss.1978). Also, the FDCPA should be read to facilitate a resolution of the controversy.


text:
    464 A.2d 1343
    COMMONWEALTH of Pennsylvania v. Jeffrey KATZ, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1983.
    Filed Aug. 19, 1983.

      Robert A. Rovner, Feasterville, for appellant.
    Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Jeffrey Katz, after he entered pleas of guilty to charges of theft by unlawful taking or disposition, burglary, and criminal conspiracy. The trial court sentenced appellant to a two year term of probation which was conditioned upon payment of restitution. We reverse and remand for the reasons herein stated.

On September 11, 1981, appellant was charged with burglary, theft by unlawful taking or disposition, criminal trespass, and theft by receiving stolen property stemming from the burglary of the D & A Kawasaki dealership in Trevose, Pennsylvania. Appellant and a co-defendant entered pleas of guilty. At the end of the guilty plea hearing on January 6, 1982, appellant was placed on conditional probation for a period of two years and directed to pay the costs of prosecution. However, the court announced that it could not determine the exact amount of restitution until a hearing was held. Approximately three months later, on March 29, 1982, a joint restitution hearing was held, and the trial court ordered the imposition of restitution in the amount of $40,000.00, with each defendant to pay a pro rata share of $20,000.00. This appeal followed.

Appellant argues that the trial court erred when it (1) ordered appellant to pay a pro rata share of restitution in the amount of $20,000.00 without considering appellant’s ability to pay; and (2) found appellant and his co-defendant responsible for $40,000.00 worth of merchandise which was missing from the burglary site because this factual finding was based upon insufficient evidence. We agree, in part, with appellant’s contention and reverse and remand for proceedings not inconsistent with this opinion.

At the outset, we must address the issue of the timeliness of the instant appeal sua sponte since the issue of the timeliness of an appeal is a jurisdictional one and has not been raised by the parties. See Commonwealth v. Gottshalk, 276 Pa.Super. 102, 104, 419 A.2d 115, 116 (1980).

Generally, an appeal must be taken within 30 days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a); see Commonwealth v. Gottshalk, supra. We have further delineated the prerequisites for taking an appeal and have said that:

“the date of the entry of the order is the day the court imposes sentence on the defendant, informs him of his right to appeal within 30 days, and enters the judgment on the docket.” Id.

In the instant case, an interesting scenario is presented because on January 6, 1982, the date of appellant’s guilty plea hearing, the trial court “placed [appellant] on probation for a period of two years”. N.T. Guilty Plea Hearing at 9. The trial court also directed appellant to pay the costs of prosecution. Id. Because the prosecution was unable to ascertain the exact amount of restitution, the court announced the following:

[THE COURT:]
“As an additional condition of probation, you are ordered to make restitution. If you can’t determine the exact amount of restitution, we will have a hearing for that purpose.
MS. DEVLIN: We don’t know the exact amount of restitution.
THE COURT: Well, we will have to wait, I suppose, and see what happens to the other young man involved in this case as well.
As soon as that is determined, it will be a condition of this probation that you make your pro rata share of the restitution.
Do you understand?
MR. ALVIN KATZ: Yes.
THE COURT: All right.
MR. ROVNER: Thank you very much, Your Honor.
THE COURT: You may have thirty days to pay the costs. (Hearing adjourned.)”
N.T. Guilty Plea Hearing at 9-10.

Subsequently, the court held a restitution hearing on March 29, 1982. At the close of the hearing, the trial court ordered the appellant and the co-defendant to make restitution in the amount of $40,000.00, with each defendant to pay $20,000.00. However, the trial court did not inform appellant inter alia of his right to appeal the sentence within thirty days or of his right to file a petition for reconsideration of sentence and the time limit for exercising such rights. See Pa.R.Crim.P. 1405.

In the instant case, a notice of appeal was filed on April 30, 1982, which was thirty-two days after the date that the court ordered restitution in the amount of $40,-000.00, and one hundred and thirteen days after the date that the court ordered appellant to be placed on two years probation. Because the trial court failed to inform appellant “of his right to appeal and the time within which he must exercise such right”, we cannot assume that “appellant’s decision to exercise his appellate rights late was done in a knowing, intelligent, and voluntary manner.” Commonwealth v. Thomas, 301 Pa.Super. 333, 337, 447 A.2d 994, 996 (1982). Thus, we are unable to quash the instant appeal when appellant was not aware that “an appeal had to be taken within thirty days of the date on which [the] court imposed his sentence. Accordingly, we will consider appellant’s appeal as if it had been filed timely.” Id.

Turning to the merits of appellant’s argument, we recognize that in Pennsylvania, a trial court may order a defendant to pay restitution “to compensate the victim of his criminal conduct for the injury that he sustained.” 42 Pa.C.S.A. § 9721(c). Additionally, the relevant portions of the restitution statute, 18 Pa.C.S.A. § 1106 provide:

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(c) Authority of sentencing court.—In determining whether to order restitution as a part of the sentence or as a condition of probation or parole, the court:
(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.
(2) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution ... shall not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted.”
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Of course, the Court has elaborated on the issue and stated the following:

“Since an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation or parole, it must be supported by the record. Commonwealth v. Fuqua [267 Pa.Super. 504, 510, 407 A.2d 24, 27 (1979) ].”
Commonwealth v. Galloway, 302 Pa.Super. 145, 161, 448 A.2d 568, 576-577 (1982).

We also recognize that:

“it is incumbent upon a sentencing court, before it enters an order of restitution, to consider on the record (1) the amount of the loss suffered by a victim; (2) the fact that such loss was caused by conduct of the defendant; (3) that the amount awarded does not exceed the defendant’s ability to pay; and (4) the type of payment that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1). See also Commonwealth v. Seminko, supra [297] Pa.Super. [418] at 420, 443 A.2d [1192] at 1193; Commonwealth v. Erb, [286 Pa.Super. 65, 81, 428 A.2d 574, 582 (1981); Commonwealth v. Fuqua, supra 267 Pa.Super. at 510, 407 A.2d at 27.”
Commonwealth v. Wood, 300 Pa.Super. 463, 467, 446 A.2d 948, 949-50 (1982).

At the restitution hearing Arthur DiLarso, Jr., the owner of D & A Kawasaki, who also was the owner of the building which housed the retail establishment, testified that the building had been closed to the public and that an inventory had been taken of the business two months before the incident as part of the regular inventory process. (N.T. Restitution Hearing at 17). He also testified that the parts which had been missing had a retail value of $88,510.00. The retail value represented a markup figure of “between 40 and 50%”. Id. at 21. However, DiLarso also stated that “[s]ome other items [we]re only 20%” markup. Id. at 21. A three page document labelled “Items missing as a result of break-in Date of offense: 9/10, 9/11/81” was introduced into evidence. Thus, it is clear that the record contains evidence of the victim’s loss.

Appellant next contends that the record fails to support the trial court’s conclusion that appellant and his co-defendant were responsible for the missing items which had a wholesale value of $40,000.00. We, however, are unable to resolve this issue because the record is incomplete at this stage.

The record shows that a witness, Gregory Bertino, who was about to take over as lessee of the building which housed the Kawasaki dealership testified that he had entered the building on September 10, 1981, and was the last one to leave. Later that night, he was driving by the building and noticed that the “back window was open, wide open.” Restitution Hearing at 7. Although he did not notice any vehicle parked in the parking lot, he did notice a “Ford van” which was “at a parking lot down from the building”, approximately one hundred feet away. Id. at 8. The witness noticed “two fellows standing outside the van”; however, he was unable to observe them closely. Id. At that time, Gregory Bertino went to the police station. Upon his return from the police station, he did not notice any van. The witness did notice, however, that inside the building “a lot of things were moved around and quite a few boxes of parts were stacked up in the office.” Id. at 9.

The testimony of a police officer established that he had received a police call at about 1:00 a.m. on September 11, 1981. After arriving at the location, the police officer with another officer proceeded to search the building with the assistance of Gregory Bertino. The police found appellant “hiding in a bathroom adjacent to the basement area and also found appellant’s co-defendant” in one portion of the business lying on the floor. Id. at 4. The police officers discovered that the actors had a “large rental truck approximately 16 feet in length”, which was empty and parked approximately 200 feet from the Kawasaki dealership. Motorcycle parts were found in the pockets of one of the defendants, and “several boxes loaded with various types of motorcycle parts and accessories” were located “in the vicinity of the door inside the premises.” Id. at 5.

The owner of the building testified that he had seen miscellaneous parts in two different locations outside the building. Id. at 19-20. Some were over near where the van had been parked, and the other parts were “on the ground leading out the hole in the fence,” leading in the direction of the rental truck. Id. at 19.

Neither appellant nor his co-defendant testified at the restitution hearing. The appellant’s and co-defendant’s case consisted of the testimony of the investigating officer, a detective, and appellant’s father. Appellant’s father testified that he owned a company which rented the sixteen foot truck in question, but that his son had signed the papers “that evening.” Id. at 50. The father testified that neither the. company nor his son had access to a Ford van. Id. at 51.

On this state of the record, the trial court said:

“The defendants testified that they knew nothing of the other van and that they had arrived at the scene in the van which was found there. They testified that they had not removed anything and had not taken any of the items included on the itemized list by the victim except for a few items which were actually found on their possession when they were arrested. Therefore, they denied that they had taken any of the items which the owners claimed missing and therefore contend that they were not responsible for any restitution.
As the finder of fact we determined that the items which the owner claimed to be missing were, in fact, missing. We further determined that we did not believe the testimony of the two perpetrators but rather that there had been another van there with perhaps another confederate and that the items which were found missing had already been removed by the time the police arrived and apprehended the defendants. Essentially, we concluded that the defendants were still in the act of burglarizing the premises but had been interrupted after they had removed a substantial number of items. Based upon that we accepted the testimony of the owner regarding the retail value of the items which he found missing. However, the owner testified that the retail value was worth approximately twice the wholesale value of the goods, or the price he paid for them. Therefore, we determined that restitution in this case should be in the sum of $40,000 and allocated a pro rata share to each of the perpetrators apprehended in the sum of $20,000. With this we do not believe we erred and it explains the reason for our order.”

Trial Court’s Opinion at 3-4. (Emphasis added).

The record at this stage does not support the trial court’s summary of facts. In reviewing the trial court’s determination, this Court must consider facts only of record. See Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981). The trial court’s opinion is not considered part of the record. Commonwealth v. Schwartz, 267 Pa.Super. 170, 172-73, 406 A.2d 573, 574 (1979); see also Pa.R.A.P. 1921.

The record shows that neither the appellant nor the co-defendant testified at the restitution hearing. The record of the guilty plea hearing also fails to indicate that the appellant denied taking the items which the owner claimed were missing. In fact, appellant said “I can’t give you a reason why I did it besides the fact that I wanted the stuff.” Guilty Plea Hearing at 9.

Although the record shows that appellant was responsible for the burglary of the Kawasaki dealership, we are unable to review the amount of restitution ordered by the trial court at this stage because (1) appellant did not have an opportunity to object to the manner at which the trial court arrived at its conclusion that appellant had caused the victim $20,000.00 worth of damage; and, (2) the record contains no evidence of appellant’s ability to pay and the type of payment which will best serve the needs of the victim and the appellant’s capabilities. This also should be corrected on remand. See Commonwealth v. Galloway, 302 Pa.Super. at 162, 448 A.2d at 577 (“No findings were made concerning the amount of damages nor the ability to Appellant to pay restitution[,]” and as a result, a remand was necessary.) See, generally, Annotation, Conditioning Probation upon Restitution, 73 A.L.R.3d 1240 (1976).

The reason for imposing these requirements on the trial court is because Commonwealth v. Wood, 300 Pa.Super. 463, 467-68, 446 A.2d 948, 950 (1982). (Emphasis in original).

“The purpose of a sentence of restitution and ‘the reason for its imposition, is the rehabilitative goal it serves by “impressing upon the offender the loss he had cause and his responsibility to repair that loss as far as it is possible to do so.” ’ Commonwealth v. Kerr, [298] Pa.Super. [257], [260], 444 A.2d 758, 760 (1982), quoting Commonwealth v. Erb, supra 286 Pa.Super. at 79, 428 A.2d at 581 and Commonwealth v. Fuqua, supra 267 Pa.Super. at 508, 407 A.2d at 26 (emphasis omitted and supplied). ‘If the amount of restitution imposed exceeds the defendant’s ability to pay, the rehabilitative purpose of the order is disserved, especially where the restitution payment is a condition of probation [or parole], for in such a case the defendant is told that he will not be imprisoned only if he somehow satisfies a condition he cannot hope to satisfy.’ Commonwealth v. Fuqua, supra, 267 Pa.Superior Ct. at 509, 407 A.2d at 26 (footnote omitted).”

The judgment of sentence is vacated and the case is remanded for resentencing. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3921.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 903.

      . In view of our disposition, we need not address whether the appeal period ran from the date the court placed appellant on probation or from the date that the court ordered appellant to pay restitution in the amount of $20,000.00 as a condition of probation. See generally Commonwealth v. Walton, 483 Pa. 588, 397 A.2d 1179 (1979). Although appellant also was not informed of his right to file a motion to withdraw his guilty plea under Pa.R.Crim.P. 1405(c)(2), we observe that appellant has raised no issues regarding the guilty plea proceeding and only challenges the restitution aspect of his sentence. Thus, there is no need to address any other issues.

      . Although the record refers to a statement which was made by appellant, the contents of the statement have not been included in the record filed with this Court. See Restitution Hearing at 45 & 47. As a result, we must conclude on these facts that the trial court's summary of facts is not supported by the record.

      . We note that although a letter dated April 5, 1982, which is addressed from the trial court to defense counsel states that the court will not reconsider the sentence imposed, our decision here is not affected by this communication since it is not a part of the official record. See Commonwealth v. Rini, supra.

      In order to assist the trial court on remand, we note that this Court has referred to New Jersey law in examining this requirement. See Commonwealth v. Fuqua, 267 Pa.Super. at 510, 407 A.2d at 27 ("Among the things the sentencing court must consider on the record [is]: ... the fact that the defendant’s action caused the injury and that he will be able to pay for it. See State v. Harris, [70 N.J. 586, 362 A.2d 32 (1976) ]”); See also In Interest of D.G.W., 70 N.J. 488, 361 A.2d 513 (1976).

      . The maximum period of time which the trial court may order appellant to pay in installments is dictated by the maximum term of imprisonment to which appellant could have been sentenced. See 18 Pa.C.S.A. § 1106, supra at 1346; see also 18 Pa.C.S.A. §§ 3921, 3903, 1103 or 1104, for possible terms of imprisonment for theft by unlawful taking or disposition; see Pa.C.S.A. §§ 3502, 1103 (burglary); see §§ 903, 905 (criminal conspiracy). On remand, the trial court is not free to delegate these duties to an agency. See Commonwealth v. Seminko, supra; Commonwealth v. Erb, supra.

      . Under Section 1106 of the Crimes Code, any order of restitution will have an effect on any damages recoverable in a civil action. This Section provides:
      "(g) Preservation of private remedies.—No judgment or order of restitution shall debar the owner of the property or the victim who sustained personal injury, by appropriate action, to recover from the offender as otherwise provided by law, provided that any civil award shall be reduced by the amount paid under the criminal judgment.”


author: CERCONE, President Judge:

text:
    464 A.2d 1349
    ALPHA TAU OMEGA FRATERNITY Tau Chapter Undergraduate Students, Appellants, v. UNIVERSITY OF PENNSYLVANIA and George S. Koval, Acting Vice Provost For University Life.
    Superior Court of Pennsylvania.
    Argued June 16, 1983.
    Filed Aug. 19, 1983.

      George F. Schoener, Jr., Philadelphia, for appellants.
    A. Grant Sprecher, Philadelphia, for appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellants, plaintiffs below, are members of a chapter of the national fraternity, Alpha Tau Omega, which is located at the University of Pennsylvania. Named as defendants below are the University of Pennsylvania and George S. Koval, Acting Vice Provost for University Life. Appellants come before us seeking reversal of an order by the Honorable Charles P. Mirarchi, Administrative Judge, by which he dismissed appellant’s complaint in equity for lack of jurisdiction, dissolved a temporary restraining order which had been in effect, and denied appellant’s petition for a preliminary injunction. We conclude that appellants’ arguments are meritorious, and therefore reverse the order of the lower court.

On February 17, 1983, the Alpha Tau Omega fraternity (A.T.O.) sponsored a party at the fraternity house on the University of Pennsylvania campus. On February 22, 1983 a woman complained to the university that she was raped by several members of A.T.O. while a guest in the fraternity house.

Investigations were conducted by the University Judicial Officer and the Office of Fraternity Affairs. As a result of the investigations, a hearing was held before the Fraternity/Sorority Advisory Board on March 23, 1983. Evidence was taken from witnesses who were members of the fraternity and those outside the fraternity. The fraternity submitted a “position paper” about itself. At the conclusion of the hearing, the Advisory Board recommended that the fraternity be suspended from the University through January of 1984.

Based upon this procedure, the decision was announced by the Acting Vice Provost to withdraw the recognition status of A.T.O. from the University of Pennsylvania, with a proviso that no active chapter will be permitted to exist on the campus earlier than September, 1984; it further provided that the national A.T.O. fraternity may submit a detailed plan for reconstitution of the chapter and for provisional recognition for the University to review.

A.T.O. then filed a Complaint in Equity and a Motion for Preliminary Injunction against any action by the school enforcing the decision to withdraw recognition. A temporary restraining order was issued; after oral argument on the matter of the preliminary injunction, the lower court found there was no authority for it to assume jurisdiction over the internal disciplinary actions of a Private Academic Institution. It is from the order dissolving the temporary restraining order, denying the preliminary injunction, and dismissing the complaint that A.T.O. now appeals.

A.T.O. frames its complaint in terms of having been denied its procedural due process and equal protection rights in violation of the Fourteenth Amendment to the Federal Constitution and of the state constitution. At the hearing on this matter, the University expressed an oral preliminary objection by which it claimed that appellants had not adequately alleged a prerequisite to relief under the Fourteenth Amendment, that the violation be a product of “state action”. Appellee claimed that this deficiency deprived the lower court of jurisdiction to hear the case. Appellant orally argued factors which it felt weighed in favor of a finding of state action and requested leave to amend its complaint. However, the lower court agreed with appellee.

The Fourteenth Amendment of the United States Constitution provides, inter alia, that “no state shall ... deprive any person of life, liberty, or property without due process of law.” The words “no state shall” have been interpreted to mean that in every case claiming a violation of the Fourteenth Amendment, the hand of the state must be discernible.

The Supreme Court has long held that, for state action to exist, the state must have “so far insinuated itself into a position of interdependence with [the private institution or its actors] that it must be recognized as a joint participant in the challenged activity” (Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961)), or there must exist a “sufficiently close nexus between the state and the challenged action ... so that the action may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), or the institution must perform a “public function” like those traditionally performed by the state itself (Burton v. Wilmington Parking Authority, supra, at 365 U.S. at 722, 81 S.Ct. at 860.)

Fischer v. Driscoll, 546 F.Supp. 861, 865-6 (ED PA 1982).

Thus, for A.T.O. to obtain its requested relief, a determination must first be made as to whether the disciplinary action ordered by the University constituted any of these forms of state action.

However, we depart from the lower court’s disposition of the instant case and find that it acted prematurely in refusing to hear the case premised on a lack of jurisdiction. As the United States Supreme Court said in Burton v. Wilmington Parking Authority, supra, 365 U.S. at 722, 81 S.Ct. at 860 “only by sifting facts and weighing circumstances can the non-obvious involvement of the State in private conduct be attributed its true significance.”

And, again, in the more recent case Blum v. Yaretsky, et al., 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), “Faithful adherence to the ‘state action’ requirement of the Fourteenth Amendment requires careful attention to the gravamen of the plaintiff’s complaint.” As the lower court stated in its opinion, “Plaintiffs’ Complaint contains no suggestion or averment that the Commonwealth of Pennsylvania by regulation or otherwise directed, influenced or in any way controlled the decision-making process of the University of Pennsylvania regarding the withdrawal status of Alpha Tau Omega fraternity.”

However, the importance of scrutinizing appellants’ Complaint and the finding of no such averment of state action therein does not automatically deprive the court of common pleas of jurisdiction. Pennsylvania is a fact-pleading state. Pa.R.C.P. 1019(a). A complaint must not only give the defendant notice of what the plaintiffs’ claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim. Baker et al. v. Rangos et al., 229 Pa.Superior Ct. 333, 324 A.2d 498 (1974) in Smith v. Brown 283 Pa.Superior Ct. 116, 120, 423 A.2d 743, 745 (1980). However, even if plaintiffs fail to aver all of the facts in the complaint entitling them to the relief sought, this failure raises no question of the court’s jurisdiction of the cause of action, since “jurisdiction” relates solely to a particular court’s competency to determine controversies of the general class to which the case before it belongs. Anderson, Pennsylvania Civil Practice, § 1501.12 (1979).

For example, in the case In re Motion Pictures Exhibitions on Sunday in borough of Hellertown, 354 Pa. 255, 47 A.2d 273 (1946), a referendum was submitted to the electorate to determine their will regarding the exhibiting of motion pictures after two o’clock p.m. on Sundays. Four days after the election, a local minister filed a Bill in Equity seeking to declare the election invalid because the petitions filed in support of the referendum were deficient. After a hearing, a preliminary injunction was granted until further order of the Court. A theatre owner and the ten taxpayers were granted leave to intervene as Parties Defendant. They objected to the Court’s jurisdiction because of the availability of a statutory remedy to the problem of the referendum.

In sustaining the lower court’s conclusion that it indeed had jurisdiction over the subject matter, Mr. Chief Justice Maxey wrote

[t]hat a court may ultimately decide that under the facts pleaded or proved it cannot grant the relief asked for does not constitute a renunciation on its part of the jurisdiction over the matter presented to it. Its jurisdiction is not limited to cases in which a good cause of action is presented. A cause of action inadequately or defectively stated does not thereby nullify the jurisdiction of the court to which the cause of action is submitted. Jurisdiction relates to the field of litigation in which a court has authority to adjudicate. Power refers to what a court can do in that field under a given set of circumstances, (emphasis in original).

In re Motion Pictures Exhibitions on Sunday, supra, 354 Pa. at 260, 47 A.2d at 276 (1946).

And, in another often quoted explanation' by Mr. Justice Horace Stern,

Even if a plaintiff have no standing to bring his action, even if his statement of claim or bill in equity be demurrable, even if he fail to establish the allegations in his complaint, even if the court ultimately conclude that the relief he seeks should not be granted in whole or in part, not any or all of these circumstances would enter into, much less determine, the question whether the court has jurisdiction of the litigation.

Zerbe Township School District v. Thomas 353 Pa. 162, 165, 44 A.2d 566, 568 (1945).

Thus, case law in Pennsylvania distinguishes between the competency of the court to act and whether it is able to grant the requested relief once it assumes jurisdiction.

In the Federal courts the same is true. In Fischer v. Driscoll, supra, before the district court granted the defendant’s Villanova University, motion for summary judgment, it had before it the affidavit of the President of Financial Affairs that only 1.5% of the budget was provided by Commonwealth Funds. Thus, the Court found that state action was absent and that the motion for summary judgment should be granted.

In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the district court granted the defendant-school’s motion for summary judgment, but only after it was presented with evidence that led it to conclude that there was no sufficient nexus between the school and the state even though 90% of the school’s funding came from State and Federal agencies. The United States Supreme Court affirmed.

The lower court cites Cardio-Medical Association, Ltd. v. Crozer-Chester Medical Center, 536 F.Supp. 1065 (DC PA 1982) to support its dismissal of appellant’s complaint. There the district court granted the defendant judgment on the pleadings for lack of subject matter jurisdiction. The court determined that the complaint failed to meet even the minimum notice pleading requirements of the Federal rules. However, in its opinion the district court did comment that in most cases, the judge should permit the plaintiff to file an amended complaint and/or to conduct limited discovery in order to supplement the initial allegations. However, that case was framed as a civil rights complaint against a hospital based on the denial of staff privileges. The district court found that the claim made was so legally deficient that the court could imagine no amended complaint which could pass muster.

Finally, in Rackin v. The University of Pennsylvania, 386 F.Supp. 992 (ED Pa 1974), although the defendant school, the same defendant as in this case, made a motion to dismiss based on the pleadings, the district court elected to permit the plaintiff to conclude discovery on the color of state law issue.

In the instant case, both parties came before the lower court for a hearing on the issuance of an injunction against the University’s implementation of the decision against A.T.O. On the oral preliminary objection of the University, after oral argument by counsel for both parties, the Court concluded it had no jurisdiction in the matter based on A.T.O.’s deficient complaint and proof regarding state action. Based on our review of the case law, we disagree with the action of the lower court. A determination of the presence of state action requires that certain evidence be provided the Court. At the time of dismissal, no affidavits were submitted to the Court, no discovery was conducted, and no testimony was taken. The Court’s dismissal of the action for lack of jurisdiction was premature. Thus, in considering appellant’s request for a preliminary injunction, the court’s exercise of jurisdiction required only a consideration of whether appellants had demonstrated the essential prerequisites for its issuance:

that it is necessary to prevent immediate and irreparable harm not compensable in damages; that greater injury would result by refusing it; and that the granting of relief sought would properly restore parties to their status as it existed immediately prior to the alleged wrongful conduct.

Rush v. Airport Commercial Properties, Inc., 28 Pa. Cmwlth. 51, 367 A.2d 370 (1976).

Thus, the order of the lower court is reversed; the temporary restraining order of the Honorable Afred J. Di Bona, Jr. is reinstated pending final disposition by the lower court on appellant’s petition for a preliminary injunction. Case is remanded and jurisdiction is relinquished.

      . Federal Rule of Civil Procedure 56 provides for Summary Judgment which is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. See Notes to F.R.Civ.P. 56.


author: SPAETH, Judge: BROSKY, Judge,

text:
    464 A.2d 1354
    Charles A. HASSLER and Jean S. Hassler, his wife v. COLUMBIA GAS TRANSMISSION CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1983.
    Filed Aug. 26, 1983.

      Stephen D. Marriner, Jr., Washington, for appellant.
    H. Terry Grimes, Waynesburg, for appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from a judgment entered on an order denying a petition to vacate an arbitration award. Appellant argues that the lower court erred in refusing to decide whether the arbitrators had exceeded their jurisdiction, and asks that we remand for a hearing on that issue. In our view, the lower court did not refuse to decide the jurisdictional issue but, rather, held that the arbitrators had not exceeded their jurisdiction. Except as to one part of the arbitrators’ award, we agree with the lower court. We therefore affirm in part and reverse in part.

Appellees, Charles and Jean Hassler, own land over which appellant, Columbia Gas Transmission Corporation, has a right-of-way. The right-of-way dates from 1900, when Columbia Gas’s predecessor, the Manufacturers Light and Heat Company, paid the Hasslers’ predecessor $189 for the right to lay, maintain, and remove a 10-inch pipe line across the land. R.R. at 8a. The relevant portion of the 1900 agreement provides that Manufacturers Light will

pay any damages which may arise to crops or fences from the maintaining, operating, or removal of said lines; said damages, if not mutually agreed upon, to be ascertained and determined by three disinterested persons, ... and the award of such three persons, or any two of them, shall be final and conclusive.

Id.

On March 7, 1978, the Hasslers filed an amended complaint in equity seeking, among other things, damages from Columbia Gas for “excavation of farm land, destruction of fences and crops, stampeding of cattle and spraying of ecologically harmful defoliants ____” Complaint, para. 5, R.R. at 6a. The complaint alleged that the excavation took place in 1969 (para. 7), and that the stampeding of cattle, destruction of crops, and spraying of ecologically harmful defoliants took place in 1977 (para. 6). Id. (There was no allegation of when the destruction of fences took place.)

In its answer, Columbia Gas alleged, by way of new matter, that the Hasslers’ “cause of action for all acts of commission or omissi[o]n by defendant, except for herbicidal spraying, occurred in the year 1968,” and was therefore barred by the statute of limitations and by laches, New Matter, paras. 21-22, R.R. at 15a, and that the “cause of action for spraying in the year 1977 and for other damages” was barred by the provision in the right-of-way agreement providing that damages not agreed upon must be determined by arbitration, New Matter, paras. 23-24, id. at 15a-16a.

By order dated November 28, 1978, the lower court “referred [the matter] to the arbitration set up by the parties themselves.” R.R. at 18a. On August 22, 1979, after hearing testimony and viewing the property, the majority of a panel of arbitrators recommended an award in favor of the Hasslers of $15,765.78, broken down as follows:

(1) $ 386.00 1969 loss

(2) 250.00 Cow lost due to 1977 spraying (“Helicop[t]er stampeded cattle and cow was destroyed due to broken leg”)

(3) 1,129.78 Trees lost due to 1977 spraying

(4) 10,500.00 Cutting and removal of trees due to 1977 spraying

(5) 3,500.00 Punitive damages

$ 15,765.78

R.R. at 19a.

On Columbia Gas’s petition to vacate the award, the lower court by order dated December 26, 1979, held that the award for the 1969 loss (item 1, supra) should be vacated as barred by the statute of limitations, and also, that the award for punitive damages (item 5, supra) should be vacated, but that otherwise the petition to vacate should be denied “because the concept of excessiveness is not available to the loser here.” R.R. at 35a. By order dated May 15, 1980, the court en banc, without opinion, dismissed Columbia Gas’s exceptions and confirmed the award.

Columbia Gas’s appeal to this court was quashed because no final judgment had been entered on the docket. Final judgment was entered on February 23, 1982, and this appeal followed.

As appellant, Columbia Gas’s only statement of question involved is as follows:

Where the parties[’] agreement creates arbitration only for damages to crops and fences, and the arbitrators award damages for a cow and trees, but not for crops and fences, may the court review the award to see if the arbitrators exceeded their jurisdiction?
Brief for Appellant at 3.

In the conclusion of its brief, appellant asks that we reverse the judgment of the court below and direct a hearing to determine the scope of matters submitted to arbitration.

Id. at 12.

We acknowledge that these statements leave us uncertain as to appellant’s position. While the lower court’s orders are somewhat cryptic, we think it sufficiently clear that the court has “determine[d] the scope of matters submitted to arbitration,” and we don’t understand what appellants think would be accomplished by our directing that a hearing be held. In these circumstances we have concluded that what appellant really is arguing is that we should reverse the lower court and vacate the arbitrators’ award on the ground that the arbitrators exceeded their jurisdiction.

It is of course true, as appellees argue, that “[i]n arbitration agreements under common law, the arbitrator is the final judge of both law and fact, and there is no authority which sanctions the vacatur of his decision for a mistake of either.” Parking Unlimited v. Monsour Medical Foundation, 299 Pa.Super. 289, 292, 445 A.2d 758, 760 (1982). See also Newspaper Guild v. Phila. Daily News, 401 Pa. 337, 346, 164 A.2d 215, 220 (1960). However, it is also true that whether a dispute is within the terms of an arbitration agreement is for the court to determine. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 663, 331 A.2d 184, 185 (1975); Borough of Ambridge Water Authority v. Columbia, 458 Pa. 546, 328 A.2d 498 (1974); Women’s S.P.C.A. v. Savage, 440 Pa. 34, 269 A.2d 888 (1970). We must therefore determine whether a dispute about the loss of a cow and trees is within the provision of the right-of-way agreement requiring arbitration of “any damages which may arise to crops or fences.”

In making this determination, we are

governed by two basic propositions: (1) that arbitration agreements are to be strictly construed and that such agreements should not be extended by implication: Jacob v. Weisser, 207 Pa. 484, 56 A. 1065 (1904); Scholler Bros., Inc. v. Hagen Corp., 158 Pa.Superior Ct. 170, 44 A.2d 321 (1945); McDevitt v. McDevitt, 365 Pa. 18, 73 A.2d 394 (1950), and (2) that when the parties agree to arbitration in a clear and unmistakable manner, then every reasonable effort will be made to favor such agreements. Capecci v. Capecci, Inc., 11 Pa.D & C 2d 459 (1957), affirmed per curiam 392 Pa. 32, 139 A.2d 563 (1958).
Emmaus Mun. Auth. v. Eltz, 416 Pa. 123, 125, 204 A.2d 926, 927 (1964).

And see Cumberland-Perry, etc. v. Bogar & Bink, 261 Pa.Super. 350, 396 A.2d 433 (1978); Flightways Corp. v. Keystone Hell. Corp., 459 Pa. 660, 331 A.2d 184 (1975). It is apparent that some tension between these two propositions may arise; in making “every reasonable effort ... to favor” an agreement providing for arbitration, one must be careful not to “extend[] [the agreement] by implication.”

As we have indicated, we are without the benefit of an opinion from the lower court, or, for that matter, the arbitrators. We assume, however, that the reasoning in support of the award for the loss of the cow went something like this: The spraying from the helicopter was incident to maintaining the right-of-way. The loss of the cow because of injuries she suffered when she was frightened by the helicopter and stampeded may therefore be regarded as damage consequential to and therefore “aris[ing] ... from the maintaining” of the right-of-way.

If this was the reasoning in support of the award for the loss of the cow, we aren’t persuaded by it. We agree that the word “aris[ing]” may fairly be construed as providing for the recovery of consequential damages, and that the loss of the cow may fairly be regarded as damage consequential to the spraying, and therefore to maintaining, the right-of-way. Bozzo v. Electric Weld. Division, 283 Pa.Super. 35, 423 A.2d 702 (1980) But the agreement only provides for “damages which may arise to crops or fences from the maintaining [of the right of way]”, and by no stretch of language can we .conclude that a cow is either a crop or a fence. That would indeed be an unwarranted extension of the right-of-way agreement; it would “compel[ ] [the parties] to arbitrate a given issue absent an agreement between them to arbitrate that issue.” Cumberland-Perry, etc. v. Bogar & Bink, 261 Pa.Super. 350, 353, 396 A.2d 433, 434-35 (1978). We therefore conclude that the lower court erred in refusing to vacate the award for the loss of the cow.

As regards the award for the loss of the trees, however, we find no error. For we believe that to construe “crops” as embracing “trees” represents a “reasonable effort ... to favor” the parties’ agreement to arbitrate. Capecci v. Capecci, supra. It is true that “crop” ordinarily means “all products of the soil that are grown and raised annually and gathered during a single season,” Black’s Law Dictionary, “Crop” at 448-49 (Rev. 4th ed. 1968). But it also means, “[i]n a broader sense, any product of the soil.” Id. Here we know from the allegations in appellant’s petition to vacate the arbitration award and appellees’ answer to the petition that whether the trees damaged by the spraying, and subsequently removed, were “crops” was an issue tried to the arbitrators. Appellant maintained that “[n]o evidence was presented by [appellees] upon which the arbitrators could support a finding that the trees were a ‘crop’ ____” Petition to Vacate, para. 16, R.R. at 23a. Appellees, however, maintained that they “not only testified to the fact [that the trees were a ‘crop’], but also presented testimony by a professional forester to support such a contingent [sic; ‘contingency?’].” Response to Petition to Vacate, para. 8, R.R. at 30a. The fact that most crops are harvested annually, while trees may take decades before reaching maturity, proves that trees are not annual crops, but not that they are not crops. Whether the evidence supported a finding that appellees’ trees were a crop, and therefore within the arbitration provision of the right-of-way agreement, was a decision for the arbitrators to make.

The Judgment of the lower court is affirmed, except that the arbitration award of $250 for the loss of a cow is vacated.

BROSKY, J., files a concurring and dissenting opinion.

BROSKY, Judge,

concurring and dissenting:

I respectfully dissent in part and concur in part for the reason that appellant’s claim should be considered waived. The judgment entered on the order of the court below should therefore be affirmed.

The problem I find with the majority opinion is best demonstrated by a comparison of two portions of that opinion. The majority first states that “whether a dispute is within the terms of an arbitration agreement is for the court to determine.” However, the opinion goes on to conclude that “[w]hether the evidence supported a finding that appellees’ trees were a crop, and therefore within the arbitration provision of the right-of-way agreement, was a decision for the arbitrators to make.”

If, as the majority states, the question of whether a dispute is within the scope of an arbitration agreement is only for the court to determine, I fail to see what relevance at all the arbitrators’ decision on that issue has. Therefore, despite the fact that the record indicates the arbitrability issue was tried to the arbitrators, I believe the lower court should have made an independent evaluation of that issue.

Although the majority states that it is “clear that the court [below] ... ‘determine^] the scope of the matters submitted to arbitration’, I do not find this to be the case. The court below had no record of the arbitration proceedings, had no opinion from the arbitrators, and took no testimony. Under such circumstances, it seems unlikely that it was able to determine the arbitrability issue. If, however, the court did indeed make such a determination, it did so in a fashion that I believe has left us unable to properly review its ruling. There is no record of the proceedings below except for the court’s “somewhat cryptic” orders and as the majority indicated we are without the benefit of an opinion from the lower court.

In the usual case, I believe such circumstances would warrant a remand for a hearing on the record to determine the arbitrability of the dispute. However, in this case, I believe appellant has waived its claim.

When appellees initially filed their amended complaint in equity, they charged appellant with “excavation of farm land, destruction of fences and crops, stampeding of cattle and spraying of ecologically harmful defoliants ... which ... caused substantial damage to ... trees, crops, and property.”

Appellant, in its answer to the complaint alleged that the “cause of action for spraying ... and for other damages” was barred by the provision in the right-of-way agreement providing that damages not agreed upon must be determined by arbitration and that arbitration was “the exclusive remedy available to plaintiffs for any damages” (emphasis added).

In other words, appellant, when the action was in the forum it now argues was the proper one, maintained that arbitration offered the exclusive remedy to appellees for any damages. Then, after suffering an unfavorable result in that arbitration, it returns to the court and argues that the dispute had, indeed, all along belonged in the court.

I believe appellant’s action in arguing to the court that the dispute belonged in arbitration should be considered a waiver of any future claim that the dispute was outside the scope of the arbitration agreement. To hold otherwise would simply encourage parties to follow the procedure of appellant in order to give themselves a possible second chance to litigate the merits of a dispute should they lose in the arbitration proceeding.

Thus, I would affirm the judgment of the Court below.

      . In his Concurring and Dissenting Opinion, Judge BROSKY finds this statement inconsistent with our earlier statement that "whether a dispute is within the terms of an arbitration agreement is for the court to determine.” Ante at 1356. We do not believe, however, that there is an inconsistency. Whether "crops” should be construed as embracing "trees” was a question of law, for the court. Whether appellees’ particular trees were a “crop”, and therefore within the arbitration provision as construed by the court, was a question of evidence, for the arbitrators. Nor are we persuaded by Judge BROSKY that waiver has occurred. If parties agree to arbitrate X, the party invoking arbitration does not thereby waive his right to object to arbitrating Y.

      . I note that all of the cases cited by the majority in support of the proposition that the arbitrability of a dispute is for the court to determine involve instances in which one party has sought to enjoin the other party from proceeding to arbitration. Thus, unlike the instant case no prior determination by the arbitrators existed at the time of the appeal.