author: OLSZEWSKI, Judge:

text:
    528 A.2d 1360
    COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1987.
    Filed July 17, 1987.

      Catherine S. Wilson, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from judgment of sentence for possession of an instrument of crime, simple assault, and retail theft. Appellant argues that he had ineffective trial counsel in that she failed to preserve for appellate review claims of: (1) insufficient evidence to prove intent for the possession and the retail theft convictions, and (2) excessiveness of sentence. Upon review, we find that the trial court correctly rejected appellant’s arguments. We therefore affirm.

After waiving his right to a jury trial, appellant was tried before the Honorable Joseph D. O’Keefe of the Court of Common Pleas of Philadelphia County. Judge O’Keefe accurately summarized the Commonwealth’s uncontradicted testimony as follows:

... On 2 October 1985 at approximately 1:30 in the afternoon, Defendant was found by Commonwealth’s witness, Michael Hallinan, co-manager of a Thriftway, to be acting suspiciously as he leaned over the meat counter. The witness testified that Defendant was “disheveled” and not “real steady” and that although he had no cart and had already picked up a package of chicken, he picked an additional two or three pieces of roast beef out of the meat counter. (N.T. pp. 5-7). The witness testified that he followed Defendant down the aisle and by that time Defendant had already “put the meat inside his coat (which was) maybe zipped halfway up.” The witness described Defendant has (sic) having “a big bulge you could see” under his coat. (N.T. p. 9). When he called to Defendant that he wanted to talk to him, Defendant said he was not talking to anybody. Mr. Hallinan then called for the other co-manager, Joe Bristow, who came running down the aisle towards them. At this point Defendant started taking the meat out and it apparently fell to the floor. (N.T. p. 10). When Mr. Hallinan told him that he wanted to talk to him about this, Defendant again said that he was not talking to anybody. He was going to go. (N.T. p. 12). He then pulled a knife out and started toward the witness with it. Mr. Hallinan testified that Defendant was trying to open it. The knife was described as being between twelve and fifteen inches long. The witness stated that before Defendant could get the knife completely opened, he and the other manager, Joe Bristow, rushed him and the knife fell to the ground. (N.T. p. 12).
The Commonwealth also presented the testimony of Joseph Bristow who corroborated Michael Hallman’s testimony (N.T. pp. 22-26).

Trial court opinion at 3-4.

Appellant’s trial counsel did not file post-trial motions and appellant was sentenced to prison terms of two and one-half to five years for possession of an instrument of crime, one to two years for simple assault, and ninety days for retail theft, the sentences to be served concurrently. Appellant subsequently filed a pro se petition for reconsideration, which the trial court denied, and a pro se appeal to this Court. Thereafter, the trial court appointed appellant new counsel.

Guiding our review of appellant’s ineffectiveness claims is the following three-component analysis.

First, it is necessary to determine whether the issues not preserved were of arguable merit. Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980). If the issues were of arguable merit, we then consider whether the course chosen by trial counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983); Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Cotton, 338 Pa.Super. 20, 487 A.2d 830 (1984). Finally, no basis for reversal exists if trial counsel’s actions were not prejudicial to the defendant. See Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985) (en banc); Commonwealth v. Byers, 349 Pa.Super. 162, 502 A.2d 1324 (1986). Counsel will not be considered ineffective for failing to preserve a baseless claim. Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Commonwealth v. Dougherty, 351 Pa.Super. 603, 608-609, 506 A.2d 936, 939 (1986). See also Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986), cert. denied, — U.S. —, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Common wealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Significantly, once we determine that the underlying issue is without merit, our inquiry ends.

Instantly, appellant contends that trial counsel was ineffective for not filing post-trial motions alleging that the evidence was insufficient to support his convictions for retail theft and possession of an instrument of crime. Specifically, appellant argues, the Commonwealth failed to establish his intent to commit these crimes. The well-established test for appellate review of a sufficiency claim is whether, viewing all the evidence received at trial in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. Commonwealth v. Gris-cavage, 512 Pa. 540, 517 A.2d 1256 (1986); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979).

A person is guilty of retail theft if he:

takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;

18 Pa.C.S. Sec. 3929(a)(1) (emphasis added). In deciding whether there is sufficient evidence of intent, we are aided by 18 Pa.C.S. Sec. 3929(c), which creates a presumption that anyone who intentionally conceals unpurchased property either on the premises or outside the premises of such store is presumed to have concealed such property with the intention of depriving the owner of its use or benefit. Commonwealth v. McSween, 265 Pa.Super. 458, 460, 402 A.2d 528, 529 (1979) (“This statutory presumption is an evidentiary device which may be available to assist the Commonwealth in proving an element of the offense beyond a reasonable doubt.”).

The evidence received at trial established that appellant concealed the unpurchased meat under his coat. The Commonwealth’s witness testified that he observed appellant picking up two or three pieces of meat and that when he started following appellant down the aisle, appellant had already “put the meat inside his coat and his coat was maybe zipped halfway up.” N.T. 4/7/86, 9. The witness then described appellant as having “a big bulge you could see” under his coat. N.T. 4/7/86, 9. From this testimony, the trial court could presume that appellant harbored the requisite intent.

The evidence further established that appellant refused to talk to the managers when requested to stop and that, while attempting to leave the store, appellant pulled a knife from one of his pockets and tried to open it. N.T. 4/7/86, 11-12. Drawing all reasonable inferences favorable to the Commonwealth, we conclude this evidence was more than sufficient to establish that appellant intended to deprive the store owner of the meat without paying for it.

In order to cohvict appellant of possession of an instrument of crime, the Commonwealth had to prove that he possessed the knife with an intent to employ it criminally. Commonwealth v. Hardick, 475 Pa. 475, 380 A.2d 1235 (1977); Commonwealth v. Jeter, 275 Pa.Super. 89, 418 A.2d 625 (1980). This intent need not be directly proved but may be inferred from the circumstances surrounding the incident. Commonwealth v. Hardick, supra, 475 Pa. at 479, 380 A.2d at 1237. Such intent, however, may not be inferred from mere possession. Commonwealth v. Moore, 476 Pa. 19, 381 A.2d 845 (1978); Commonwealth v. Hall, 304 Pa.Super. 489, 450 A.2d 1018. (1982).

The Commonwealth’s uncontradicted evidence showed that, after refusing to stop and talk about taking the meat, appellant pulled a knife from his pocket and began opening it as he approached one of the store managers. Before he could get the knife completely open, the managers rushed him and knocked it out of his hand. N.T. 4/7/86, 11-12. Again drawing all reasonable inferences favorable to the Commonwealth, we find that this evidence was sufficient for the trial court to conclude that appellant intended to employ the knife criminally. Because appellant’s insufficiency claims are without merit, his trial counsel was not ineffective in failing to file post-verdict motions raising them.

Appellant next contends that trial counsel was ineffective for neglecting to file a motion to modify sentence so that appellant’s sentencing claim would be properly preserved for our review. Underlying this contention is appellant’s assertion that, because of his alcohol problem and his remorse at sentencing, his sentence for possession of an instrument of crime, the statutory maximum, was unduly harsh.

Preliminarily, we observe that this issue involves a discretionary aspect of the trial court’s sentence and that appellant has raised it both directly and in the context of an ineffectiveness claim. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), our Supreme Court mandated that a party appealing the discretionary aspects of a sentence comply with Pa.R.A.P. 2119(f)’s requirement that he set forth a “concise statement of the reasons relied upon for allowance of appeal.” The Court explained that this rule was promulgated to implement 42 Pa.C.S.A. Sec. 9781(b), which provides that:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

Id. See also Note accompanying Pa.R.A.P. 902 (providing that a notice of appeal under that rule operates as a “petition for allowance of appeal” under the Sentencing Code and commenting that the filing of the “petition for allowance of appeal” is deferred by the rules until the briefing stage, “where the question of the appropriateness of the discretionary aspects of the sentence may be briefed and argued in the usual manner.”).

Appellant’s brief does not contain the Rule 2119(f) statement. This omission normally would preclude our review of appellant’s excessiveness issue, applying our Supreme Court’s decision in Tuladziecki. We are unable to discern anything in the language of Tuladziecki, however, requiring that we apply its holding to claims raising prior counsel’s ineffectiveness. Such claims request review of prior counsel’s representation, which implicates a federal sixth amendment constitutional issue. We therefore believe that, notwithstanding appellant’s failure to comply with Tuladziecki, we may consider whether appellant’s underlying sentencing issue has “arguable merit” within the context of his ineffectiveness claim.

Turning to the merits of that claim, we note that sentencing is a matter within the sound discretion of the trial court. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986), allocatur denied, 514 Pa. 624, 522 A.2d 49 (1987). The sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a decision. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). In choosing an appropriate sentence, however, the trial court must consider and evaluate a variety of factors, guided by the sentencing guidelines as well as general principles set forth in the Sentencing Code, 42 Pa.C.S. Sec. 9701, et seq.

We have reviewed the record and are satisfied that the trial court adequately discharged its sentencing responsibilities. We observe that the sentence imposed falls within the sentencing guidelines. Additionally, the record shows that the trial court considered appellant’s alleged mitigating factors. At sentencing, the court carefully reviewed appellant’s presentence report, including information on appellant’s long-term abuse of drugs and alcohol. N.T. 8/7/86, 6-9. Importantly, the court noted that, in spite of numerous opportunities to correct his problems, appellant “has just not learned.” N.T. 8/7/86, 12. Citing appellant’s extensive prior record, which includes, inter alia, convictions for burglary, rape, and possession of a dangerous weapon, the court concluded that appellant is an incurable recidivist. N.T. 8/7/86, 11. The sentencing court did not abuse its discretion. Accordingly, appellant’s trial counsel was not ineffective for choosing not to file a motion to modify sentence.

Judgment of sentence affirmed.

ROWLEY, J., concurs in the result.

      . Appellant also argues that his sentence is excessive because there is no evidence of his intent to use the knife. We have just concluded, however, that the record includes sufficient evidence to show that appellant possessed the knife with the requisite criminal intent.

      . According to appellant’s presentence report, appellant had been arrested eighteen times, convicted twelve times, incarcerated nine times, and had violated his probation five times. N.T. 8/7/86, 6-7. At the time of sentencing, appellant was in violation of parole from Kansas and in violation of probation from New York.

      . The trial court states that this issue is without merit because appellant filed a pro se petition to modify sentence. We do not rely on this fact in disposing of this issue because appellant’s petition was filed late. See Pa.R.Crim.P. 1410. As a result, this petition did not necessarily preserve appellant’s sentencing claims for our review. See Commonwealth v. Dumas, 299 Pa.Super. 335, 445 A.2d 782 (1982) (sentencing issue waived where appellant failed to comply with Pa.R. Crim.P. 1410, which requires that a motion to modify sentence be filed within ten days of imposition of sentence). See also Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983) (a violation of the time requirements of Pa.R.Crim.P. 1123(a) will work a waiver on appeal notwithstanding the trial court having treated a tardily filed post-verdict motion on its merits).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    528 A.2d 1364
    COMMONWEALTH of Pennsylvania v. Michael MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1987.
    Filed July 13, 1987.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered November 20, 1986 after appellant pled guilty to three counts of robbery. Appellant was sentenced to five (5) to ten (10) years imprisonment, pursuant to the mandatory provisions of 42 Pa.C.S. § 9712, Sentences for offenses committed with firearms. Appellant then filed a motion to modify sentence which was denied by the court below. This in forma pauperis appeal followed.

Appellant now contends his guilty plea was involuntarily entered as a result of a defective plea colloquy which failed to inform him of possible sentences and did not establish his understanding of the charges against him. However, appellant, while represented by counsel, did not file a petition to withdraw the guilty plea either prior to or subsequent to sentencing. Appellant claims the issue of the voluntariness of his plea has not been waived as counsel was ineffective for “not ensuring a knowing and understanding plea” and for not filing a petition to withdraw the guilty plea. (Appellant’s brief at 11.)

After an accused enters a guilty plea, only the voluntariness of the plea, the legality of the sentence imposed and the competency of counsel may be challenged on appeal. Commonwealth v. Moore, 321 Pa.Super. 442, 468 A.2d 791 (1983). “Ordinarily, a party on appeal who seeks to challenge a guilty plea must first have filed a motion to withdraw the plea in the court where it was entered.” Commonwealth v. Weiss, 289 Pa.Super. 1, 4, 432 A.2d 1020, 1021 (1981). However, “the failure to file a petition to withdraw an unlawfully induced plea does not result in a waiver where such failure is due to ineffectiveness of counsel.” Commonwealth v. Faust, 324 Pa.Super. 492, 497, 471 A.2d 1263, 1266 (1984). A claim of ineffectiveness is an extraordinary circumstance which prevents waiver of claims. Commonwealth v. Cofield, 310 Pa.Super. 356, 456 A.2d 650 (1983). Here, appellant’s claim that counsel failed to file a motion to withdraw is a sufficient allegation of ineffectiveness to prevent waiver. Also, effectiveness of prior counsel is being raised at the earliest stage in the proceedings at which the counsel whose ineffectiveness, is being challenged no longer represents appellant. Commonwealth v. Broadwater, 330 Pa.Super. 234, 479 A.2d 526 (1984).

“Allegations of ineffectiveness in connection with a guilty plea will provide a basis of relief only if ineffectiveness caused an involuntary or unknowing plea.” Commonwealth v. Owens, 321 Pa.Super. 122, 130, 467 A.2d 1159, 1163 (1983). In determining whether counsel rendered effective assistance we must first “ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client.” Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986).

We find the underlying issue of involuntariness of the plea has no arguable merit, and thus counsel cannot be deemed ineffective for failure to pursue a motion to withdraw the plea.

We turn first to appellant’s contention that' counsel should have contested the guilty plea as the plea colloquy did not establish that appellant understood the nature of the charges against him. Prior to the guilty plea colloquy, appellant signed a seven-page, forty three item, “Guilty Plea Explanation of Defendants’ Rights” form. The in-court colloquy then proceeded as follows:

The Court: Sir, did your counsel go over and explain this form to you and what is contained therein?
The Defendant: Yes, Sir.
The Court: Do you understand what she has explained to you?
The Defendant: Yes, sir.
The Court: Knowing your rights and understanding them, are you waiving them and entering a plea of guilty to these charges?
The Defendant: Yes, sir.

(Guilty Plea Colloquy, 8/1/86, p. 2.)

At that time, the prosecuting attorney presented a factual summary of the incident giving rise to these charges, which involved appellant and three others robbing three university students as they walked in the Oakland section of Pittsburgh at 1:00 a.m.

We do not find the lack of an on-the-record step by step recitation of the charges against him to be fatal to appellant’s guilty plea colloquy. Whether notice of the charges against a defendant is adequate “may be determined from the totality of the circumstances attendant upon the plea. . . .” Commonwealth v. Martinez, 499 Pa. 417, 420, 453 A.2d 940, 942 (1982). Reviewing all the circumstances surrounding the entry of appellant’s plea, we must conclude he was adequately informed of the charges against him. Appellant does not claim he did not understand the nature of the charges, but rather, that the court failed “to make inquiry of the defendant that the plea is ... understandingly entered.” (Appellant’s brief at 7).

Appellant’s claim that the colloquy did not reflect appellant’s awareness of his possible sentence is also belied by the record. Question 23 of the written colloquy asks:

23. Have you discussed with your attorney or are you aware of the permissible range of sentences and/or fines that can be imposed for the offense charged?

Appellant answered “yes” directly after this question and further, initialed the bottom of the page. During the plea colloquy, appellant again asserted he understood what was contained in the form he had signed. (Guilty Plea Colloquy, 8/1/86, p. 2.) Also, the Commonwealth stated on record during the colloquy that a mandatory five-year sentence was being sought. (Guilty Plea Colloquy, 8/1/86, p. 5.) A discussion was held at that time on record between the prosecutor and appellant’s counsel concerning the deferral of sentencing until an investigation and hearing on the applicability of the mandatory sentence. In his brief, appellant alleges the colloquy was defective because rather than the court conducting it, it was left to defense counsel. There was no objection made to the court in a timely fashion as to the use of the preprinted form and review of the colloquy by counsel with the defendant. Nor was there any request on the record that the colloquy be presented on the record by the judge pursuant to Pa.R.Crim.P. 319. The court was, therefore, provided with no opportunity to pass on the validity of the procedure prior to acceptance of the guilty plea.

The court did satisfy itself that the defendant understood the nature of the plea and his rights and that counsel had adequately covered these matters with him. Counsel stood by while the court questioned the appellant about his knowledge and by silence, indicated the accuracy of appellant’s response. We note from the presentence report attached to appellant’s brief that while he only reached the ninth grade in his formal schooling, he did achieve a G.E.D. diploma in 1984 indicating that his competence to participate in and understand the procedure may be presumed. The per se nature of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), reflected in the comment to Pa.R.Crim.P. 319 requiring an on-the-record colloquy to be conducted by the judge, has given way to a more practical approach in later cases. See e.g., Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). The requirement, that the colloquy be conducted by the judge on the record, is met by having the trial judge question the defendant, on the record, about his participation in and review of the written colloquy form, which consists of seven pages and forty-three questions (initialed by the defendant) and signed at the end thereof. The test of an adequate colloquy covering the mandatory six factors, as outlined in the comment to Pa.R.Crim.P. 319, is as follows:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?
Inquiry into the above six areas is mandatory during a guilty plea colloquy, under Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976).

The six requirements having been met in this case, and in light of the foregoing discussion, we find appellant’s guilty plea was voluntarily entered and that trial counsel did not err by failing to file a motion to withdraw appellant’s guilty plea as it would have been fruitless.

Accordingly, judgment of sentence is affirmed.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3701(a)(1)(ii)

      . THE COURT: All right. Go ahead, Mr. Jackson.
      THE COMMONWEALTH: Prepared to testify if this case were to go to trial are Pittsburgh police officers Mickey Stack, Rich Spaith, Lillian Roberts, Karen Deitrich and Officer Garlicky, as well as criminalist Robert Levine and civilian witnesses William Duffy, Brooks Campbell and Donna Charles.
      They would testify to the following facts: That on November 17th of last year at approximately 1:04 in the morning three Pitt students— Duffy, Campbell and Charles — one man and two women — were walking across Fifth Avenue — corner of Fifth Avenue and Darrough when they were approached by a young black male who asked them for a dollar. He asked Duffy. He said no.
      The three of them continued across the street, across Fifth down to McKee Place. At that point four young black males approached them — one being the defendant — one other young black male. He had a gun to them, asked for money. The defendant held out a pellet gun while this was all going on.
      The man, Mr. Duffy, said he didn't have money but did end up giving them a five dollar bill and three ones. They asked Brooks Campbell if she had any money. She gave them a gold watch. They asked Donna Charles for money, and she gave them a five dollar bill.
      At this point they fled back towards Fifth Avenue. The three students continued the block or two to the police station in that area, reported the robbery, described the four assailants.
      Several minutes after this Officer Stack and Officer Spaith see the four black males coming up Darrough Street. They see a group a young females go back. The males appear to see the marked car and start running through a parking lot. The two police officers give chase.
      They see a young man with the defendant throw a gun into the bushes. They catch that young man who turned out to be a juvenile, Steven Galightly. He was arrested at that time.
      The defendant continued running up Darrough Street. They put it over the radio, describing the defendant and his direction of flight. Officers Roberts and Deitrich see the defendant run into a parking garage about a block away, hide behind a cement pillar in the garage.
      They go over and hold him. The victims are brought up and identify him as theman with the pellet gun. That is the defendant standing here.
      Found on his person were three one dollar bills, a five dollar bill and a gold watch which is identified by Brooks Campbell as being her watch. The defendant is taken to the police station at which time he gives a statement to the police that he did plan the robbery with three other youths; one of them being Galightly. Galightly had a gun, the defendant had a pellet gun.
      The Commonwealth would rest on those facts.
      THE COURT: All right. Miss Novak, do you with any witnesses to be called?
      MISS NOVAK: None, your Honor.
      THE COURT: Do you with to offer any testimony?
      MISS NOVAK: No, your Honor.
      THE COURT: Pre-sentence?
      MISS NOVAK: Yes, your Honor. And at that time we would like to have a hearing on the gun.
      THE COMMONWEALTH: I will put on record the Commonwealth will be proceeding at sentencing under the five-year mandatory act.
      THE COURT: What do you mean you want a hearing on the gun?
      MISS NOVAK: Whether or not it applies — whether or not it was operable at that time, as to whether or not it would fire within the statute. That’s what the D.A. and I were talking about beforehand.
      But at the time of sentence—
      THE COURT: At the time of sentencing, all right.

      . The comment to Rule 319 states:
      In addition, nothing in the rule would preclude the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the plea proceedings. This written colloquy would have to be supplemented by some on-the-record oral examination.


author: MONTEMURO, Judge:

text:
    528 A.2d 1369
    Hopeton CROSS and Jethro Cooke, Appellees, v. 50TH WARD COMMUNITY AMBULANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1987.
    Filed July 21, 1987.

      Christopher J. Pakuris, Philadelphia, for appellant.
    Edward T. Feierstein, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and McEWEN and MONTEMURO, JJ.

       President Judge Cirillo replaced the deceased Justice Roberts.

   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying appellant’s petition to open a default judgment. Because appellant’s petition is inadequate, we affirm.

This litigation arose out of an accident between an ambulance owned by appellant and a car occupied by appellees. On April 26, 1985, appellees Hopeton Cross and Jethro Cooke filed a complaint alleging that their injuries were caused by the negligence of the driver of the ambulance owned by appellant 50th Ward Community Ambulance Company. The record indicates that on May 7, 1985, service was made at appellant’s headquarters to Charles Motley, Field Director. On June 17, 1985, appellees sent to appellant a notice of intent to take a default judgment. On June 28, 1985, a default judgment was entered against appellant on the issue of liability only. Notice of judgment was sent to appellant pursuant to Pa.R.C.P. 236. Appellant claims that it did not receive the notice of intent to take a default judgment until August 6, 1985. On May 30, 1986, nine and a half months after receiving notice of the default judgment, appellant filed a petition to open or strike the default judgment. Appellees answered. On July 15, 1986, the court of common pleas reviewed the petition, the answer and the parties’ memoranda of law and denied appellant’s petition on the ground that it was not filed promptly.

This appeal raises two issues: (1) was the record ripe for judicial action when the court denied the petition, despite neither party having taken any action pursuant to Pa.R.C.P. 209; and (2) did the court abuse its discretion when it denied appellant’s petition? We find that the record was ripe for adjudication and that the court did not abuse its discretion.

In the first issue presented by this case, appellant contends that we should remand this action to the court of common pleas because it acted prematurely when it denied the petition. Appellant claims that there were disputed issues of fact raised by the petition and answer, and that no depositions had been taken pursuant to Pa.R.C.P. 209. Appellant further asserts, quite correctly, that appellees did not take a rule as of course on appellant to show cause why appellant should not either take depositions or order the cause for argument. Appellant argues that this inaction by both parties should have prevented the court from taking any action on the petition and answer. We reject appellant’s argument.

We first note that:

A petition to open a default judgment is an appeal to the court’s equitable powers. The grant or denial of a petition to open a default judgment is a matter vested in the sound discretion of the trial court, whose decision thereon will not be reversed in the absence of an abuse of discretion or error of law. In determining whether a judgment by default should be opened, the court acts as a court of conscience. ‘In order to open a default judgment, the Petition to Open must be: (1) promptly filed, (2) state an adequate excuse why a timely answer was not filed, and (3) show a meritorious defense.’ Keystone Boiler Works, Inc. v. Combustion & Energy Corp., 294 Pa.Super. 145, 148, 439 A.2d 792, 794 (1982). “All three criteria must be met, and the three requirements must ‘coalesce’.’’ Id.

Ridgid Fire Sprinkler Service v. Chaiken, 333 Pa.Super. 213, 217, 482 A.2d 249, 251 (1984) (citations omitted) (emphasis added). The general rule that the court must find all elements of the three-part test before it can exercise its discretion to open a default judgment has been reiterated and applied by the Pennsylvania courts in many recent cases. See, e.g., Schultz v. Erie Insurance Exchange, 505 Pa. 90, 477 A.2d 471 (1984); Estate of Levy by Levy v. CNA Insurance Co., 338 Pa.Super. 191, 487 A.2d 919 (1985); Continental Bank v. Rapp, 336 Pa.Super. 160, 485 A.2d 480 (1984); Ridgid Fire Sprinkler Service, Inc. v. Chaiken, supra, and Vision Service Plan of Pennsylvania v. Pennsylvania AFSCME Health and Welfare Fund, 331 Pa.Super. 217, 480 A.2d 322 (1984). In denying petitions to open default judgments courts have found routinely that a petitioner’s failure to meet any “prong” of the three-part test is fatal to obtaining the relief sought. Generally, courts will not examine the facts alleged to sustain the other two prongs because failure to offer sufficient facts under one prong defeats the petition. See, e.g., Schultz, supra; Vision Service Plan, supra.

Appellant’s petition avers no facts with regard to its failure to answer the complaint in a timely fashion (the “reasonable excuse” prong). Rule 209 procedure is appropriate only where factual issues engendered by a petition and answer are “ripe for resolution,” see Shainline v. Alberti Builders, 266 Pa.Super. 129, 136, 403 A.2d 577, 580 (1979). Because appellant has failed to allege any facts with respect to one prong of the three-part test, we find a remand to be both unwarranted and unnecessary.

To explain its delay in answering appellees’ complaint, appellant states only that “[i]t is denied that service was properly made upon the answering defendant.” Appellant offers no facts to support this allegation. The allegation is a conclusion of law and as such does not give rise to a disputed issue of fact that requires resolution under Rule 209.

Moreover, even if we were to assume that appellant’s allegation was not a conclusion of law, it is questionable whether appellant’s averment concerning its “reasonable excuse” for failing to answer the complaint is material. The “fact” that service was “improper” does not by itself state a reasonable excuse. Improper service can occur where there is merely a technical defect in service, but that fact alone would not excuse appellant from answering the complaint. Appellant could have had actual notice of the litigation where some “nonfatal” defect in service existed. If that were the case, appellant would have no excuse for failing to respond to the complaint. See, e.g., Miller v. Carr, 221 Pa.Super. 306, 292 A.2d 423 (1972) (where no substantial rights of appellant were in jeopardy and appellant had received actual notice of litigation, the trial court could properly disregard procedural defects in service of process); First National Bank & Trust Co. v. Anderson, 7 Pa.D & C3d 627 (Somerset County 1977) (defective service sustained where defendant received process in time to defend and was not prejudiced thereby); Bruning v. Maizite, 2 Pa.D & C3d 632 (Northampton County 1977) (technical defects in service were overlooked where the defendant unquestionably had personal notice of the litigation). See also Pa.R.C.P. 126 (“[t]he rules shall be liberally construed”).

Further weakening appellant’s petition is the averment concerning the “promptness” prong, which although factual and not a conclusion of law, did not create a factual dispute with regard to a material issue. Therefore the “promptness issue” does not require Rule 209 resolution. See Triffin v. Thomas, 316 Pa.Super. 273, 275, 462 A.2d 1346, 1347 (1983) (petitioner must support material allegations with evidence). In order to satisfy the “promptness” prong of the three-part test, petitioner must show that he or she has exercised “due diligence under the circumstances in the filing of the petition,” Penn Clair Construction Co. v. Eden Roc County Club, 294 Pa.Super. 377, 380, 440 A.2d 514, 516 (1981). Appellant alleges that its counsel “has discussed the possibility of resolving this matter with plaintiff’s counsel, but his progress appears to have been stalled, the present motion as [is?] being filed.” Petition II6. Appellees admitted that “in recent weeks” there had been some settlement discussion but denied “that such recent settlement discussion in any way hindered or misled [appellant] to not file a petition to open judgment on or about the time that judgment was entered.” Answer ¶ 6. Therefore, a factual dispute existed, but it is unlikely that it was material. In other words, a resolution of the factual “dispute” concerning promptness would not have changed the court’s decision to deny the petition.

Negotiating for a voluntary opening of judgment has been accepted as an excuse for not immediately filing a petition to open upon notice of judgment. See, e.g., Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 446 A.2d 641 (1982) (because defendant was negotiating to open judgments, its filing of two petitions three months after notice of default judgments was considered prompt). However, before finding an allegation adequate to explain a delay in filing a petition to open, courts have generally required that the petitioner allege not only that there were ongoing negotiations, but also that plaintiff or its counsel “had engaged in conduct designed to confuse [petitioner-defendant] or lull her into a false sense of security.” Ridgid Fire Sprinkler Service v. Chaiken, supra, 333 Pa.Super. at 219, 482 A.2d at 253 (three-month delay in filing petition). Accord Kabanow v. Kabanow, 239 Pa.Super. 23, 27, 361 A.2d 721, 723 (1976) (six-month delay); Hersch v. Clapper, 232 Pa.Super. 550, 553, 335 A.2d 738, 741 (1975) (three and a half-month delay). Appellant has failed to allege any such misleading conduct by appellees. Even accepting the petition’s averments as true, it is questionable whether appellant has shown “due diligence under the circumstances in the filing of the petition,” Penn Clair Construction Co., supra, 294 Pa.Super. at 380, 440 A.2d at 516. A nine-month period between notice of judgment and the filing of the petition, even if negotiations were being conducted, does not satisfy the promptness requirement.

There is no need to adhere blindly to Rule 209 procedure to conduct depositions on disputed factual issues that are not material to the disposition of the petition. Cf. Merriam v. Cedarbrook Realty Inc., 266 Pa.Super. 269, 275, 404 A.2d 407, 410 (1979) (“[t]he court was not required to postpone a decision in this case pending endless, irrelevant dispositions, when the record before it was sufficient as a matter of law to dismiss the petition”).

Having decided that Rule 209 procedure is inappropriate because there is no factual dispute concerning the “reasonable excuse” prong of the three-part test and no material factual dispute with regard to the “promptness” prong, there still remains to be decided the question of whether compliance with Rule 209 is nevertheless required before a court can act upon a petition to open. Our supreme court answered that question in the negative in a case similar to the one before us.

In Schultz v. Erie Insurance Co., 505 Pa. 90, 477 A.2d 471 (1984), the facts averred in a petition to open a default judgment were not in dispute. There, plaintiffs general denial in answer to the petition constituted an admission of the facts averred in the petition. See 5 Standard Pennsylvania Practice 2d § 26.33 (1982). The supreme court affirmed the court of common pleas’ denial of the petition to open even though the parties had only filed a petition and answer and had taken no further action. Given the general denial, the supreme court accepted the averments in the petition as true and found them “inadequate to provide a justifiable explanation why [defendant] failed to ... respond in a timely fashion.” Id., 505 Pa. at 93, 477 A.2d at 472. The supreme court concluded that “[u]nder the circumstances the court’s action was quite proper; and [defendant’s] argument, that the court’s failure to wait for one of the parties to take depositions pursuant to practice set forth in Rule 209 constituted an abuse of discretion, is without merit.” Id., 505 Pa. at 94, 477 A.2d at 473. Thus, the court accepted as true all facts alleging a reasonable excuse and denied the petition because the allegations were inadequate to support the relief sought. See also DiNardo v. Central Penn Air Services, Inc., 358 Pa.Super. 1187, 516 A.2d 1187 (1986) (because plaintiff’s answer ineffectively denied the averments in defendant’s petition to open, there were no factual disputes that would require a Rule 209 procedure, and the court could examine the facts as alleged in the petition).

In the case now before us, because Rule 209 procedure is not required for the resolution of factual disputes created by appellant’s petition and the response thereto, the court did not act prematurely when it took action on the petition. Moreover, since the petition was inadequate, the court did not abuse its discretion when it denied relief to appellant. Cf. Pittsburgh v. Allegheny County Distributors, 339 Pa.Super. 109, 488 A.2d 333 (1985) (petition to open confessed judgment was dismissed as inadequate because it contained conclusion of law unsupported by factual allegations). We, therefore, find that appellant’s second issue is without merit. Finally, there are no equitable considerations in this case to persuade us otherwise. This was not a “snap” judgment, see Ridgid Sprinkler Service, supra, 333 Pa.Super. at 222, 482 A.2d at 254, and appellees complied with all notice requirements.

Judgment affirmed.

      . Although appellant’s petition to the trial court was labeled a petition to open or strike, on appeal, appellant pursues only the merits of the petition to open and does not offer alternative arguments that would support striking the default judgment.

      . We note that appellant’s petition was not verified pursuant to Pa.R.C.P. 206. Nonetheless, because appellees filed a responsive pleading, also unverified, they have waived their right to object to the defect. See 1 Goodrich-Amram 2d § 206.6 (1976).

      . Appellant actually presents the second issue as two questions:
      (1) Was the petition promptly filed?
      (2) Did appellant allege an adequate excuse for failure to answer the complaint in a timely fashion?
      These questions are incorporated in our general statement of issue (2).

      . Pa.R.C.P. 209 provides:
      Duty to Petitioner to Proceed After Answer Filed
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.
      (Emphasis added.)

        . The general rule that, in order to succeed, a petitioner must meet all three prongs of the test has been applied by the courts almost uniformly. However, in Provident Credit Corporation v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982) (en banc), this court stated in dicta that "where some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case.” Id., 300 Pa.Superior Ct. at 131, 446 A.2d at 264. The court stressed the equities of the case before it wherein a widow of limited education had lost her home because she had co-signed for a loan upon which her brother had defaulted and upon which a default judgment had been entered.
      While we do not believe that a court of equity should inflexibly adhere to a strict analytical framework to make decisions, it is unnecessary that a court examine each prong of the three-part test before denying a petition to open. Moreover, by applying the principle expressed in Provident, a court might find a petitioner’s action or inaction concerning one of the three elements to tip the balance of equities so against his or her favor that there is no need to examine the facts alleged with respect to each “prong.” See Hardware Wholesalers, Inc. v. Swope, 309 Pa.Super. 321, 323, 455 A.2d 180, 181 (1983) (the existence of the three prongs depends upon "equitable considerations”).

      . We note that because this petition was filed in Philadelphia County, a local rule governs the situation. Cases are listed automatically on a petition and answer, but the local rule authorizes the use of Rule 209 procedure if the court finds a factual dispute:

        (E) Disposition of Motions

      When a matter is filed in the Motion Court, it shall be referred to a Judge for decision, except those set forth in Section (F) hereof. The assigned Judge shall initially review the filing and response to determine whether any disputed issues of fact exist. Where it appears that disputed issues of fact exist which must be resolved under Pa.R.C.P. 209, the Judge shall enter a rule upon the parties to proceed in accordance with Rule 209. Any filings pursuant to Rule 209 shall be made directly with the assigned Judge.
      Phila.C.P. & Munic.Ct.R. 140(E) (1980) (emphasis added). Since the local rule applies in this case but expressly states that Rule 209 procedure is to be used to resolve factual disputes, we will confíne our discussion to Rule 209.

      . For the first time on appeal, appellant supplies facts to support its' allegation that service was improper. Appellant asserts that it never received service of the complaint and that the return of service is facially defective because it fails to identify the person served as appellant’s employee or agent. Appellant never made these allegations to the trial court either by petition or by memorandum in support thereof. In its memorandum of law addressed to the court of common pleas, appellant alleged only that "proper service was not performed." Although we acknowledge that facts contained only in a brief will not bolster an inadequate petition, see Tony Palermo Construction v. Brown, 326 Pa.Super. 566, 474 A.2d 635 (1984), we note this deficiency only to illustrate that the court of common pleas had no facts before it alleging a reasonable excuse for failure to answer the complaint. Appellant has, therefore, waived his right to make such allegations and arguments on appeal. See Kenworthy v. Burghart, 241 Pa.Super. 267, 270, 361 A.2d 335, 337 (1976), appeal dis

        missed 478 Pa. 20, 385 A.2d 975 (1978) (contention that was neither briefed nor argued to trial court is waived on appeal).

      . It is the court’s duty to draw conclusions of law from facts stated by a pleader or petitioner. 3 Standard Pennsylvania Practice 2d § 16:27 (1982). Appellant offered no facts from which the trial court could draw any conclusions as to the propriety or impropriety of service. Even appellant’s memorandum of law to the trial court contained no facts alleging a reasonable excuse for failing to answer the complaint.

      . The record indicates that proper service was made on appellant on May 7, 1985, pursuant to Pa.R.C.P. 405(b) and 424 (formerly Pa.R.C.P. 1013 and 2180). The general rule regarding attacking the propriety of service is that “in the absence of fraud, a return under oath which is regular, full and complete upon its face, and fully conforms to the statutory requirements, is conclusive ..., and may not be attacked by parol, extraneous or extrinsic evidence____” 2 Standard Pennsylvania Practice 2d § 10:101 (1982) (citation omitted). Accord Liquid Carbonic Corp. v. Cooper & Reese, 272 Pa.Super. 462, 416 A.2d 549 (1979). The conclusiveness however does not extend to facts stated in the return on which the sheriff cannot be expected to have personal knowledge. Hollinger v. Hollinger, 416 Pa. 473, 477, 206 A.2d 1, 3 (1965).

      . Although our research has not disclosed any case where a petition to open a default judgment, as opposed to a confessed judgment, was dismissed because it did not allege adequate facts, we see no reason to treat a petition to open a default judgment differently. The reasoning in the cases concerning petitions to open confessed judgments is equally applicable to cases, such as the one before us, that involve petitions to open default judgments. See, e.g., Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983) (conclusory averments unsupported by fact will not support the opening of a confessed judgment); Liberty National Bank of Pittston v. DeGillio, 406 Pa. 127, 129, 176 A.2d 446, 448 (1962) (cited with approval in Carducci v. Albright Galleries, Inc., 244 Pa.Super. 48, 366 A.2d 577 (1976) (a petition to open a confessed judgment must set forth "clearly and specifically, sufficient facts to induce the chancellor to grant equitable relief,” and "vague and indefinite" allegations will be deemed inadequate). See also Pa.R.C.P. 2959 (a petition to open a confessed judgment must state prima facie grounds for relief).


author: BROSKY, Judge:

text:
    528 A.2d 1374
    STATE AUTOMOBILE INSURANCE ASSOCIATION and Statesmen Insurance Company, a Corporation v. Carroll M. ANDERSON and Edward M. Lentz, Appeal of Carroll M. ANDERSON.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1987.
    Filed July 22, 1987.
    Petition for Allowance of Appeal Denied Jan. 19, 1988.

      Thomas S. Ling, District Attorney, Bedford, for appellant.
    Louis C. Long, Pittsburgh, for State Auto., appellees.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   BROSKY, Judge:

This is an appeal from an order granting summary judgment in a declaratory judgment action instituted by appellee insurance company. The effect of the order was to hold that appellee had no obligation to indemnify appellant for injuries arising out of an incident on appellant’s farm.

In challenging the issuance of summary judgment in this case, appellant advances two arguments. The first asserts that the exclusion set forth in the policy with regard to farm employees is ambiguous and therefore the appellee should be precluded from denying coverage. The second argument asserts that the injured party was not an “employee” at the time of injury and therefore his injury does not fall within the exclusion in question. Upon review of the record and arguments advanced by both parties we conclude that summary judgment was improperly granted below. Consequently, we vacate the order in question.

On September 15, 1982, Edward M. Lentz suffered personal injury to his left leg when his pants became caught in an unshielded power takeoff shaft of a tractor owned by appellant. Lentz had come to appellant’s farm that morning to assist in the loading of “silage,” cut hay and corn for cattle feed, into a silo. Appellee instituted a declaratory judgment action after notice of the accident was given to appellee. Appellant had purchased a Farmer’s Comprehensive Personal Insurance policy from appellee which was in effect at the time of the injury. The trial court, finding no disputed issues of material fact, decided that an exclusionary provision in the insurance contract was applicable and that appellee had no duty to indemnify or defend appellant. This appeal followed.

Under the insurance contract appellee was obligated to pay on behalf of the appellant/insured all sums to which the appellant became legally obligated to pay for bodily injury or property damage occurring and resulting from the operation of the farm. The appellee sought to deny coverage based upon the following language:

This coverage does not apply:
To bodily injury to (1) any farm employee, other than an insured farm employee, if the bodily injury arises out of and in the course of his employment by the insured ...

The term “farm employee” was defined as

“an employee of any insured whose duties are principally in connection with the farming operations of the insured but does not include a residence employee or an employee while engaged in any insured’s business pursuits other than farming”.

Deciding that the language above was “clear and unambiguous” and finding that the injury to Lentz fell within this exclusion, the trial court granted appellee’s motion for summary judgment. In so deciding, the trial court placed a great deal of emphasis on our Supreme Court’s decision in Standard Venetian Blind Company v. American Empire Insurance, 503 Pa. 300, 469 A.2d 563 (1983). Standard Venetian Blind, in essence, held that when an exclusion was clearly applicable to an occurrence, the exclusion could not be avoided by an insured’s allegation that he either was unaware of the exclusion or failed to comprehend it. In this respect, the Supreme Court rejected this Court’s holding in Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974), which stated that an insurer had a burden of showing that the insured was aware of the exclusion and that the effect was explained to him. However, contrary to the trial court’s assessment, Hionis has not been overruled. The Supreme Court simply rejected its application on the record presented in Standard Venetian Blind while indicating its continuing potential applicability under a different fact pattern. In fact, the Supreme Court recently upheld a trial court’s use of a jury charge based on Hionis in Tonkovic v. State Farm Mutual Automobile Insurance Co., 513 Pa. 445, 521 A.2d 920 (1987), and further expounded upon their Standard Venetian Blind decision. The Supreme Court explained that in Standard Venetian Blind the insured had purchased a standard liability policy yet attempted to recover damages sustained to their own property. Not only was this damage clearly excluded under the terms of the policy, the court also noted that it was unreasonable to expect such coverage under a policy of this type. Under such facts, Hionis would not compel coverage of this loss despite the exclusion.

In this case we are called upon to decide whether the exclusion relied upon is “clear and unambiguous” and if it applies to the occurrence in question. However, what seems clear from the extent of litigation involving contractual terms or statutory language is that what is clear and unambiguous to one individual is not necessarily so to another. In the present case we agree with appellee and the trial court that the exclusion is, relatively speaking, “clear and unambiguous” upon its face. However, this is so only upon reaching the conclusion that an individual was a “farm employee.” This term is defined in the policy but necessarily entails a finding that an individual is an “employee.” This term is not defined. Therefore, basic laws of contract construction and interpretation will govern the determination of whether Lentz was an employee at the time the injury was sustained.

Appellee indicates its position on the scope of coverage in its brief where it states “it is obvious that the insurer intended to exclude ... all persons remuneratively engaged in farming operations____” Be that as it may, our law has never indicated that one party’s subjective intent or understanding of a contractual obligation controls that obligation. Rather, instead, our law requires a “meeting of the minds” of sorts. If there is not an actual or literal understanding of the contractual obligation, then it is considered to be that which a reasonable person in similar circumstances would understand the contract to be. Another contractual principle requires that interpretation of an agreement be in favor of the party who did not draft the document. Perhaps it was the combination of these two principles which has led our Supreme Court to indicate that the proper focus with regard to the coverage extended under an insurance contract is the reasonable expectation of the insured.

In Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 594, 388 A.2d 1346, 1353-54 (1978), the Supreme Court stated:

The' reasonable expectation of the insured is the focal point of the insurance transaction involved here. Courts should be concerned with assuring that the insurance purchasing public’s reasonable expectations are fulfilled. Thus, regardless of the ambiguity, or lack thereof, inherent in a given set of insurance documents (whether they be applications, conditional receipts, riders, policies, or whatever), the public has a right to expect that they will receive something of comparable value in return for the premium paid. Courts should also keep alert to the fact that the expectations of the insured are in large measure created by the insurance industry itself. Through the use of lengthy, complex, and cumbersomely written applications, conditional receipts, riders, and policies, to name just a few, the insurance industry forces the insurance consumer to rely upon the oral representations of the insurance agent. Such representations may or may not accurately reflect the contents of the written document and therefore the insurer is often in a position to reap the benefit of the insured’s lack of understanding of the transaction.
Courts must examine the dynamics of the insurance transaction to ascertain what are the reasonable expectations of the consumer, (citations omitted).

The present case, like Tonkovic, differs from Standard Venetian Blind in that in this case the insured has purchased liability insurance and the coverage sought is related to his liability for injury to another. Consequently, it was not unreasonable for appellant to believe that coverage applies. Appellant has not sought to collect for loss to his own property or for some other loss which would seem clearly beyond the scope of the insurance purchased as was found to be the case in Standard Venetian Blind. Rather, instead, appellant sought initially to have coverage provided for injury to an individual who was injured on appellant’s farm where it appeared that appellant may indeed be legally liable for the injury.

Considering only the language of the policy coverage will not apply if the injured was an “employee” engaged in farming operations at the time of the injury. However, “employee” is not defined in the policy, and while most individuals would hold the same general concept of what an employee is, undoubtedly there are times when it is much less clear that an individual is an “employee” even under generally held concepts, much less considering individual conceptions, traditions or experiences. For instance, an individual who comes to “work” five days a week, every week and is paid an hourly wage would appear to be undisputably an “employee.” However, it is less clear whether an individual who helps a farmer out a few times a year when he needs assistance is an “employee” even if he receives some payment gratuitously for his labor. Perhaps, even less clear would be the case of a neighbor who occasionally gives a farmer a hand in the expectation that the grateful farmer will return the favor when the neighbor also needs a little help; and how problematical would it be to determine coverage when a farmer’s young nephew from the city comes out to the farm to visit and assists the farmer. Would coverage of an injury depend upon whether the young boy from the city gets a “kick” out of doing such “work”? Would it depend on whether the farmer gives his nephew a few dollars for helping, and if so, what if the farmer always gives his nephew a few dollars when he comes out to the farm regardless of whether the nephew helps out or not? From this perspective the present case is, in our opinion, far from clear.

The injured party, Edward Lentz, was a friend of appellant’s son. Appellant’s dairy farm was run principally through the labor of himself and his son. Approximately twice a year appellant would cut hay and com and store it for feed purposes in a silo. The night before the accident appellant’s son indicated to Lentz that they would be performing this operation and, as it can be performed more efficiently with three people, asked if Lentz could assist them. Lentz, who worked full time in a machine shop, indicated he could help out in the morning but had to be at work at 3:00 p.m. Lentz came to help on that Saturday morning and some time later suffered the injury in question.

Lentz testified at deposition that there was no understanding on the aspect of compensation. During the several years that Lentz knew appellant’s son he had “helped out” on several occasions. Sometimes Lentz would offer assistance simply so that the two could leave the farm earlier in pursuit of entertainment. Other times he came specifically to help out. Sometimes he would get paid a few dollars but other times he did not. On the day of the injury Lentz testified that he did not know whether he would be paid or not and that he didn’t particularly care whether he would be. Both Lentz and appellant testified that it was common;for neighbors to help one another when it was needed and that this kind of labor was given without monetary compensation. Appellant also testified that it was common for teenagers to approach him and ask for a little work and that if he could use their help he usually did. In such cases the “boys” were usually paid, but not always, and usually at a rate of a dollar or two an hour.

With respect to the liability insurance, appellant testified:

Q. Okay. Was it your understanding that the liability insurance which you had would cover an employee on the farm?
A. Well, my understanding of my liability insurance was that if anything happened, the insurance — this would cover it. So — and I’m sure there’s lots of other people that feel the same way.

Appellant’s testimony further indicated his understanding that if someone worked “regular” he would need workmen’s compensation insurance. In fact, appellant did purchase this coverage when his son came home from the service and indicated a willingness to work regularly because “he’s the only one that ever offered to work regular as a worker.” However, later he discovered that workmen’s compensation would not cover a family member and, understandably, he did not renew the coverage.

Mr. Roadman, the agent who sold appellant the liability policy, indicated that he was surprised appellee had denied coverage in light of the way the accident was reported. On this issue the following exchange took place at deposition:

Q. Are you satisfied that farmers who are purchasing general liability policies are clear on their understanding of what an insured farm employee is, what an employee is, what a non-employee is?
A. Yes, most of my farmers have worker’s compensation. I have very few just liability policies. Most farmers have worker’s compensation.
Q. Ok, I’m talking about the ones that just have the liability policy; are you satisfied that they have a clear understanding?
A. I certainly would hope so, particularly after this incident.
Q. Are you going back to those policy holders and advised [sic] them of this denial of coverage?
A. No.
Q. Well, how are they aware of this action then?
A. They aren’t.
Q. I misinterupted [sic] what you said then. I assumed by what you said that you, because of this accident, you may have provided some information to the other policy holders that—
A. I’m simply making darn sure I stress worker’s compensation.

Mr. Roadman also indicated his understanding of the term employee as being someone who worked for compensation, yet the following explanation was given at deposition:

For instance, a dairy farmer milks the cows, he’s paying somebody to milk the cows, he’s definitely a farm employee. But you might hire XYZ Painting Company to come in, even though XYZ Painting Company is just an individual, and he says I’ll paint it for six dollars an hour. You’re paying him by the hour. Do you want to call that wages? I wouldn’t. Not under those terms, and I would not consider that man an employee. And if he were injured because of negligence, then in my opinion, this policy should respond, without question.

While Mr. Roadman may or may not be an “expert” as to the meaning of the policy in question, and may or may not be an “agent” of appellee capable of binding appellee to a contract, he was the principal liaison between appellee and appellant with regard to securing liability insurance from appellee. In this respect certainly his discussions with appellant have influenced appellant’s expectations as to his coverage under the policy in question. Furthermore, it cannot be forgotten that appellant has been a farmer all his life and here has purchased farm liability insurance, consequently, his understanding of terms such as “farm employee” and “employee” will be influenced greatly by custom and practices in the rural farming community. In light of the foregoing, we feel the determination that, as a matter of law, appellee had no obligation to defend and/or indemnify appellant, was erroneous.

In making its decision the trial court rejected appellant’s argument that Lentz was not a “farm employee” at the time the injury was sustained. In so doing, the trial court cited cases discussing the concept and definition of employee under workmen’s compensation law. While such law may be helpful in determining if Lentz was an employee it is not controlling. The issue presented to the trial court was coverage of the occurrence under the policy. Relevant to this determination was the meaning of the word employee under the policy. The issue before the trial court was not whether Lentz was an employee as defined in the Workmen’s Compensation statute. Consequently, the legal definition of employee would not control unless there were indications that it was understood by the parties to control. Rather, instead, the determination of whether Lentz is deemed an employee under the policy should be governed by, among other things, general understanding of the term, representations or explanations by the agent and custom and practice in the farming community. Furthermore, under Collister and Tonkovic, supra, coverage of this occurrence should focus on the reasonable expectation of the insured and not on the subjective intent of the insurer.

For the foregoing reasons, we find that the granting of summary judgment in this action was erroneous. Consequently, we vacate the order in question and remand for proceedings consistent with this opinion.

Order granting summary judgment vacated, remanded for further proceedings, jurisdiction relinquished.


author: POPOVICH, Judge:

text:
    528 A.2d 1379
    Rick LAIRD, Appellant, v. ELY & BERNARD.
    Superior Court of Pennsylvania.
    Argued May 13, 1987.
    Filed July 20, 1987.

      Before WIEAND, KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal of an order of the Court of Common Pleas of Erie County denying an appeal of a judgment entered by a district justice against the appellant, Rick Laird. We quash.

It appears from the record that the appellant owed the defendants attorney fees and expenses for services rendered. Recoupment of the amount involved began at the district justice level with the filing of a complaint.

Judgment in favor of the defendants was entered by the district justice, according to the Common Pleas Court following argument on the question, “in open court in favor of Ely and Bernard in the amount of $84.25 on April 13, 1984.” (See Order of the Court filed December 24, 1984) Thus, the appellant’s request to appeal the judgment nunc pro tunc to Common Pleas Court was denied by order dated December 24, 1984. This appeal followed and is properly before us for review. See Goldberg v. Goldberg, 315 Pa.Super. 333, 461 A.2d 1307 (1983).

We note, at the outset, that the appellant’s pro se brief is devoid totally of any adherence with our Rules of Appellate Procedure regarding the “Content of Briefs” to this Court under Chapter 21 covering “Briefs and Reproduced Record.” In particular, Rule 2111, captioned “Brief of the Appellant” directs in mandatory (“shall”) language the format and content an appellant’s brief is to subscribe to in order to avoid having an appeal quashed. See Pa.R.App.P. 2101, which reads:

Briefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed.

Needless to say, the appellant’s failure to comply in any respect with the requirements of Rule 2111 leads inexorably to the conclusion that the mandate of each of the following Rules of Appellate Procedure was equally ignored, e.g., Rule 2114 (“Statement of Jurisdiction”); Rule 2115 (“Order ... in Question”); Rule 2116 (“Statement of Questions Involved”); Rule 2117 (“Statement of the Case”); Rule 2118 (“Summary of Argument”); and Rule 2119 (“Argument”).

Lest we be painted as a Court which vents its procedural frustration and flexes its remedial muscles against only pro se appellants whose pecuniary ability to pursue an appeal may be alluded to in their brief to us, as is the case here, we wish to dispel this notion by pointing to the exercise of our authority in those cases where we perceive our ability to accurately, incisively and judiciously scrutinize the record is “substantially” hampered, rather than enhanced by the methodology in which an appellant’s case is presented for our inquiry. See, e.g., Commonwealth v. Drew, 353 Pa.Super. 632, 510 A.2d 1244 (1986); Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1985); Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984); Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982).

A collection of reproduced documents, assembled in a fashion not consistent with our procedural requirements in securing appellate review “does not an appellate brief make”, nor can this be ignored and in the same breath require all other litigants to subscribe to the nuances of appellate practice/pleading without exposing oneself to hypocrisy in policy application and policing appellate briefs on an ad hoc basis.

Instantly, there is not a scintilla of evidence to admit the appellant’s overt compliance with any of our Rules of Appellate Procedure, nor does he allege any justification for his failure to do so. And, we state for all those who may come henceforth in the garb of “in forma pauperis” or pro se, justice will not be skewed for such litigants, but, on the contrary, will be meted out' even-handedly to those who exhibit at least a modicum of effort in following the prescribed rules of conduct in appellate practice.

This is not the case here, and we can decipher no rule of conscience or law which advises in favor of addressing the merits of the appellant’s appeal in the face of the procedural shortcomings pervading his brief to us. Accordingly, we will quash the appellant’s appeal for procedural non-compliance. Id.

Appeal quashed.


text:
    528 A.2d 1381
    In the Matter of Michael Ronald MONTENEGRO, Jr. Appeal of Michael Ronald MONTENEGRO, Sr., Mary Ann Taglioli.
    Superior Court of Pennsylvania.
    Submitted June 8, 1987.
    Filed July 17, 1987.

      Timothy J. Savage, Philadelphia, for appellants.
    Brad Cooper, Philadelphia, for participating party.
    Before CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   TAMILIA, Judge:

Appellant in this case, Michael Ronald Montenegro, Sr., appeals from the Order of the lower court which denied his petition to amend the birth certificate of Michael Ronald Montenegro, Jr., a minor child.

The child in this case was born out of wedlock on July 10, 1978. Michael Ronald Montenegro, Sr., was designated on the birth certificate as father, and the child was given the name Michael Ronald Montenegro, Jr. In September of 1980, the appellee/mother married the appellant and together, they had a daughter, Carmala Montenegro, who currently resides with appellee/mother and Michael Montenegro, Jr. The children attend the same elementary school.

In 1985, after separating from appellee/wife, appellant questioned the paternity of the child and proved through blood tests that he was not, in fact, the biological father of Michael Ronald Montenegro, Jr. Appellant then motioned for vacation of support for the child; that motion was granted on July 21, 1985. On August 14, 1986, appellant filed a petition to amend the birth certificate requesting that the certificate be amended to delete appellant’s name as father and alsp to change the surname of the child and substitute the surname of the natural mother therefor. Argument was heard before the lower court on January 5, 1987 (mistakenly entered as January 6, 1986 on the Order) and, on January 6, 1987, the court entered an Order striking from the certificate the name of Michael Ronald Montenegro, Sr., as father. (Slip Op., Zaleski, J., 3/6/87, p. 1.) On February 4, 1987, appellant filed this appeal.

We find the lower court properly determined it was without subject matter jurisdiction to order a change of name. Our legislature has decided “[t]he Court of Common Pleas of any county may by Order change the name of any person resident in the county.” 54 Pa.C.S.A. § 702. The trial court, in its Opinion, said that it was not disputed that the minor child resides in the state of New Jersey. Thus the Court of Common Pleas of Philadelphia County was correct in ruling it was without power to order the change sought by the appellant.

Additionally, the trial court’s determination that a change of name would not be in the child’s best interest was appropriate. Recently, this Court said that the child’s best interests unquestionably must control in a proceeding to change a minor child’s surname. Petition of Schidlmeier by Koslof 344 Pa.Super. 562, 496 A.2d 1249 (1985) (citing Petition of Christjohn, 286 Pa.Super. 112, 428 A.2d 597 (1981)).

Further, we said that the party urging the minor child’s change of name has the burden of coming forward with evidence that the name change requested would be in the child’s best interest, and that where a petition to change a child’s name is contested, the court must carefully evaluate all of the relevant factual circumstances to determine if the petitioning parent has established ,that the change is in the child’s best interest. Neither parent is to be accorded a presumption. Koslof, supra.

In Christjohn, supra, we recognized that in granting or refusing a name change petition after due hearing and notice, the court has wide discretion (citing Petition of Falcucci, 355 Pa. 588, 50 A.2d 200 (1947)). Our scope of review is limited to the question of whether the evidence is sufficient to support the decision reached by the court. Christjohn, supra.

Appellant, in his brief, argues: “there is no basis here for not granting the change since no evidence or claim of embarrassment to the child has been presented. On the other hand, appellant is humiliated by an illegitimate child bearing his name with the designation ‘Junior’.” (Brief of appellant at pp. 6-7.) Thus the lower court correctly determined the appellant failed to sustain his burden of proving the change would be in the child’s best interest. “Clearly, the only interest advanced by this petition is that of petitioner.” (Slip Op. at p. 2.)

Our legislature has determined that a person may at any time adopt and use any name, if such name is used consistently, nonfraudulently and exclusively (54 Pa.C.S.A. § 701(b)). This rule of law has its roots in English common law. In Falcucci, supra, the Supreme Court recognized that, at common law, no individual has such a property right to his name as to entitle him to prevent another from adopting it, unless that person’s doing had such a fraudulent purpose as would justify equitable restraint. The Court cited Lord Chelmsford’s statement, “[t]he mere assumption of a name, which is the patronymic of a family, by a stranger who had never before been called by that name, whatever cause of annoyance it may be to the family, is a grievance for which our law affords no redress.” Id. (Citing DuBoulay v. DuBoulay, [1869], 16 English Reports 638.)

The minor child in the case at hand adopted the name Michael Ronald Monenegro, Jr., at birth. Since that time, he has been using this name consistently, nonfraudulently and exclusively. Appellant married appellee; together they had another child and they named her Montenegro. Moreover, appellant, while not Michael Ronald Montenegro’s biological father, has been a father to him during the early years of his life. Appellant cannot now argue that the child’s use of appellant’s name has a fraudulent purpose. In fact, the only impropriety in this case was the earlier finding, in the support proceeding, that the appellant was not the father of the child. This leads to the final matter we must comment on, as it was considered but not resolved by the lower court, that being, whether appellant had standing to bring this action.

As stated earlier, appellant was designated on the birth certificate of the child as the father. He subsequently married the mother, thereafter living with the child in a family relationship, during which relationship a daughter was born. It was only upon separation five years after the marriage that appellant questioned his paternity of the child during a support proceeding. By obtaining a blood test, he was able to show that he was not the father of the child. For the following reasons, we hold for this case that finding is a nullity and provides no basis upon which the father can deny paternity and, therefore, precludes him from initiating an action to enjoin the use of the paternal name. The following provisions appear at 48 P.S. § 167:

§ 167. Children; legitimacy; determination of paternity
(a) Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in general Assembly met, and it is hereby enacted by the authority of the same, That all children shall be legitimate irrespective of the marital status of their parents and in any and every case where children are born out of wedlock they shall enjoy all the rights and privileges as if they had been born during the wedlock of such parents, except as otherwise provided in Title 20 Pa.C.S.
(b) for purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(1) If the parents of the child born out of wedlock shall have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.
(3) If there is clear and convincing evidence that the man was the father of the child which may include a prior court determination of paternity.

This section provides a strong policy statement by the legislature that children shall be legitimate, and when putative fathers hold themselves out to be the father of the child, by marrying the mother and assuming responsibility for the care of the child ((b)(l)(2)), paternity is thereby determined ((b)). Since the requirements of the law had been met to establish paternity, the father was estopped from denying paternity five years later. Evidence of the blood tests, therefore, was inadmissible to disprove paternity for any purpose. In Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963), this Court held a husband was not entitled to the grant of a petition for a blood test where he had lived with his wife during the time children in question were conceived, and for several years after the birth of the children, and did not deny paternity until after separation of the parties. See also Grassmyer v. Coleman, 345 Pa.Super. 358, 498 A.2d 441 (1985) and Commonwealth ex rel. Hall v. Hall, 215 Pa.Super. 24, 257 A.2d 269 (1969). The concept of “estoppel”, espoused above, was extended to the case of a putative father, who assumed the responsibility of a father in fact, by marriage to the mother subsequent to the child’s birth, and indeed, by his support of the child and acknowledgment of paternity to immigration authorities. Commonwealth ex rel. Gonzales v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976). There, it was held, under circumstances almost identical to those of the present case (child born out of wedlock, marriage to the mother, assuming duties of a parent for several years), the father was estopped from denying paternity, and a previously entered support Order could not be revoked. The rationale and holding in Gonzales applies equally to a case where a support Order has not yet been entered. Since we conclude estoppel applies in this case to prevent the father denying paternity, we hold, for the purpose of the present proceeding, he is also es-topped from denying paternity in order to enjoin the use of his name by the child. Therefore, appellant has no standing to proceed with this action. It is of increasing importance during this period, when changes in culture, life style and procreation are rapidly impinging on previously held values and children are being conceived out of wedlock in greater numbers, that we assure their rights are protected.

After considering the record in this case and all relevant circumstances, we find appellant has failed to establish the change he requests is in the best interests of the child.

The lower court’s denial of the petition is accordingly affirmed.

Order affirmed.

      . The best interests rule has been widely accepted in the context of petitions to change a minor child’s name. See e.g., In re Marriage of Schiffman, 28 Cal.3d 640, 647, 620 P.2d 579, 583, 169 Cal.Rptr. 918, 922 (1980) ("[T]he rule giving the father, as against the mother, a primary right to have his child bear his surname should be abolished. Henceforth, as in parental custody disputes, the sole consideration when parents contest a surname should be the child’s best interest.”); In re Marriage of Presson, 102 Ill.2d 303, 80 Ill, Dec. 294, 296, 465 N.E.2d 85, 87 (1984) (“[A] change in a minor’s surname shall be allowed only when the court finds that the change is in the best interests of the minor.”); Application of Saxton, 309 N.W.2d 298, 302 (Minn.1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 152 (1982) ("No preference is accorded either the paternal or maternal surname____ When one parent seeks to change the surname of a child, the other parent has standing to object and the resolution of the dispute hinges on the best interests of the child.”); Cohee v. Cohee, 210 Neb. 855, 317 N.W.2d 381, 384 (1982) (“[Ejach parent has an equal right and interest in determining the surname of a child____ [T]he standard to be used ... is the best interests of the child.”); In re Fletcher, 145 Vt. 209, 486 A.2d 627, 629 (1984) (court should “determine what is in the best interests of the child, and then decide ... whether the requested name change is warranted").

        Schidlmeier, supra, 344 Pa.Superior Ct. at 569, n. 4, 496 A.2d at 1253, n. 4.

      . In Falcucci, the Court affirmed the change of name of a minor child from Benjamen R. Falcucci to Thomas R. Frame, over objections by Attorney Thomas E. Frame, Jr.

      . We are of course presented with the determination that resulted from the grant of the petition for blood tests and vacation of a previously entered support Order in the 1985 action. While that Order, unappealed from, is res judicata of that issue, we believe it does not bind us in this matter as the issue is not the same and that result was based on an error of law.