author: KELLY, Judge: HESTER, Judge,

text:
    514 A.2d 921
    COMMONWEALTH of Pennsylvania v. James William BERTA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1986.
    Filed Sept. 2, 1986.

      Bruce A. Barrett, Assistant Public Defender, Meadville, for appellant.

      John M. Dawson, District Attorney, Meadville, for Com., appellee.
    Before KELLY, MONTGOMERY and HESTER, JJ.
   KELLY, Judge:

This is an appeal from the Court of Common Pleas of Crawford County, Pennsylvania, judgment of sentence of July 1, 1985, by the Honorable P. Richard Thomas, whereby defendant was sentenced to serve eight (8) to twenty-four (24) months imprisonment, to be computed from November 6, 1984, the date of appellant’s original incarceration in the Crawford County Jail. Appellant, James William Berta, was found guilty under 18 Pa.C.S.A. §§ 6106 and 6118 of the Uniform Firearms Act for carrying, without a license, a replica of an antique revolver concealed upon his person.

In this, case, appellant purchased the firearm in question as a kit at a local department store and subsequently assembled it into a replica of a cap and ball revolver common in the late nineteenth century. No permit was required for this over-the-counter purchase. In order to fire the gun, black powder, percussion caps, and lead balls were required as well as a working knowledge of its loading procedure. At the time he was cited for the alleged violation, the gun was not loaded, appellant was not in control of the materials necessary to fire the gun and there was no indication that he had ever purchased such materials. (N.T. 8).

We adopt the remaining findings of fact as ably set forth by the court below as follows:

On November 6,1984, Trooper Dan Lloyd of the Pennsylvania State Police was attempting to locate the Defendant while investigating an unrelated burglary matter. He found the Defendant at the residence of a friend. As the trooper entered the friend’s residence he saw the Defendant and saw the butt of what appeared to be a pistol protruding above the Defendant’s belt line and partially concealed by a coat the Defendant was wearing. The trooper promptly approached the Defendant, pulled the gun out of his belt line and subsequently filed charges of carrying an unlicensed weapon. At the nonjury trial the facts were not substantially in dispute and the Defendant testified in his own defense that he had purchased the gun in the form of an antique gun kit at the K-Mart Shopping Center the day before and had assembled the five (5) parts to form a working replica of an antique pistol popular in the 1800’s. The Defendant’s contention was that he had purchased it for a showpiece to hang on his wall.

(Trial court opinion at 2).

The issue before this Court is whether it was unlawful under the provisions of Sections 6106 and 6118 of the Uniform Firearms Act for appellant to possess in a concealed fashion an unloaded, unlicensed replica of an antique firearm.

Mr. Berta, appellant herein, argues that the lower court should not have concluded that the kit gun, being a replica of an antique revolver, was in violation of the Uniform Firearms Act where the revolver was not suitable for use. Appellant argues that because the antique replica in question was not loaded and appellant did not have within his possession at the time of his arrest the cap, balls or powder required to fire the weapon, that the replica firearm was not suitable for use and thus not in violation of the Uniform Firearms Act.

Moreover, appellant argues that under the caselaw of this Commonwealth he cannot be found guilty of violating Sections 6106 and 6118 of the Uniform Firearms Act, citing Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973) and Commonwealth v. Siiams, 260 Pa.Super. 409, 394 A.2d 992 (1978) in support of his contention. Appellant cites Siiams and Layton for the principle that the gun in question must be loaded and “capable of firing a shot” at the moment of the alleged violation in order to be considered “suitable for use” as the language of the Act mandates. We disagree with these contentions and affirm the decision of the lower court.

With respect to this appeal, one of the applicable sections of the Pennsylvania Uniform Firearms Act, as noted previously, is Section 6106 which reads substantially as follows:

(a) Offense defined—
No persons shall carry a firearm in any vehicle or concealed on or about his person except in his place of abode or fixed place of business without a license therefore as provided in this subchapter.

Initially, we find that Section 6106(a) describes those firearms which shall not be maintained without a license. “No persons shall carry a firearm in any vehicle or concealed on or about his person ... without a license ... ”, the exceptions to this principle being “except in his place of abode or fixed place of business ... as provided in this subchapter.” We know that the facts of this case show that appellant was not in his place of abode or fixed place of business, but was located on the porch of a friend’s residence. Consequently, none of the exceptions as listed in Section 6106(a) apply to this case. Second, Trooper Lloyd, who cited appellant for the instant violation, testified that the firearm was possessed in a concealed fashion as described in the lower court’s opinion, supra. Third, neither party disputed the fact that the firearm was unlicensed. (N.T. 8,10). The gun was concealed on his person, unlicensed and not found in his “place of abode” or “place of business”. Hence, relying for the moment on the assumption that the gun involved can be characterized as a “firearm” as defined in the Uniform Firearms Act, to be discussed infra, appellant was rightfully cited for violation of Section 6106.

To answer the question of whether the gun involved is a “firearm,” we must analyze Sections 6102 and 6118. Section 6102 of the Act defines “firearm” as follows:

Any pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.”

18 Pa.C.S.A. § 6102.

Trooper Lloyd’s testimony at trial revealed that the barrel of the antique gun replica was approximately six inches, thus clearly within the twelve inch maximum stated in Section 6102. (N.T. 7). Section 6118 refers to replicas of antique firearms. This section reads in part:

(a) General Rule. — This subchapter shall not apply to antique firearms.
(c) Definition. — For the purpose of this section “antique firearm” means:
(1) any firearm, including any firearm with ... percussion cap or similar type of ignition system ... and
(2) any replica of any firearm described in paragraph (1)----”

Thus, under the general rule, the firearm in question qualifies as a replica of such an antique firearm, and the Act would not apply in this case.

However, Section 6118(b) lists two exceptions which relate to Section 6106 and Section 6105, respectively. This section reads:

(b) Exception. — Subsection (a) shall not apply to the extent that such antique firearms, reproductions or replicas of firearms are concealed weapons as provided in section 6106 (relating to firearms not to be carried without a license), nor shall it apply to the provisions of section 6105 (relating to former convict not to own a firearm, etc.) if such antique firearms, reproductions or replicas of firearms are suitable for use.

18 Pa.C.S.A. § 6118(b). The lower court opinion, by P. Richard Thomas, J., stated: “[t]he fact that the antique replica was not loaded is immaterial as section 6118 only mandates that the antique be ‘suitable for use’. Testimony indicated that with proper cap, powder and ball, the replica could be put into operable use.” (Op. p. 4). Although the lower court properly applied the suitable for use test in finding a violation under the Act, such standard is not derived from the language of Section 6118, per se, but is a standard of operability which is inherent in every issue regarding a violation under Section 6106. Nevertheless, we find that the exception set forth in Section 6118(b) as it relates to Section 6106 does apply to this case. Consequently, appellant was properly found to be in violation of Sections 6106 and 6118 of the Act.

In Commonwealth v. Jennings, 285 Pa.Super. 295, 304, 427 A.2d 231, 235 (1981) the court said:

“[a] reasonable fact finder may ... infer operability [which is also an essential element to be proven in establishing violations of Sections 6105 and 6106,] from an object which looks like, feels like, sounds like or is like a firearm ... without direct proof of operability,” Commonwealth v. Layton, 452 Pa. 495, 498, 307 A.2d 843, 844 (1973).

The operability of a firearm is synonymous to its suitability for use. Here, though unloaded, the gun was mechanically operable and capable of firing a shot. It cannot be said that the gun in question was incapable of firing a shot, whether loaded or unloaded, merely because a shot was not fired or because ammunition was not found in the appellant’s possession at the time of his arrest. Moreover, it would be absurd to find that the intent of the legislature was to apply this Act only to those firearms which were discovered loaded as opposed to any firearm within the given definition that could be deemed a potential threat. When interpreting a statute, “[w]e are guided by the presumption that the legislature did not intend a result that is absurd, unreasonable or impossible of execution.” Commonwealth v. Stewart, 343 Pa.Super. 514, 495 A.2d 584 (1985), citing Commonwealth v. Bigelow, 484 Pa. 476, 482, 399 A.2d 392, 394 (1979). Thus, we conclude that the gun found in appellant’s possession was an operable firearm within the meaning of the Act. In defining firearm within the bounds of the Uniform Firearms Act, “suitable for use” applies to operability in general and not to operability of the moment. The instant ability to use a firearm is not the key to determining a weapon’s life-threatening capability. One who is a victim of a violator of the Act can hardly avail himself or herself of the opportunity in such a situation to ponder whether in fact the gun at that moment is capable of firing a shot.

This Court, in Siiams, supra, defined the terms “firearm” and “operable status” in order to provide a broader picture of applicability of the Act. It was determined that, even without a finding of operability, appellant had within his control the means to convert the object into one capable of firing a shot. Thus, appellant was found guilty of violating 18 Pa.C.S.A. Section 6106. The sole issue disputed on appeal in Siiams was whether the lower court was correct in finding the Commonwealth failed to prove that the gun found on appellant was in “operable” condition. The alleged inoperability was due to a mechanical defect in the gun itself. On appeal, this court found that sufficient evidence did in fact exist to prove operability and vacated the lower court order. In making its determination, the majority of the court, relying on Layton, supra, found that though the firearm máy have been “inoperable [for the moment]”, it was still capable of firing a shot by means within the control of the appellant.

Layton set out a standard of operability and the rationale for the statutory definition of “firearm”. The Court stated, “[I]f it can reasonably be concluded that the actor owned, possessed or controlled an operable firearm, there is a risk of violence by the firing of a shot which was the result sought to be avoided____” Layton, 452 Pa. at 499, 307 A.2d at 845. It was clear in Layton that operability of the firearm was a determining factor in finding a violation of Section 6105 of the Act. By footnote, Siiams found the holding in Layton applicable to Section 6106 as well as Section 6105. Siiams, 260 Pa.Superior Ct. at 412, 394 A.2d at 994. Thus appellant’s reliance on Layton and Siiams is misplaced, since operability of the firearm, as it has been defined, does apply to Section 6106 and thus to Section 6118.

In any criminal prosecution, the Commonwealth has an unshifting burden, to prove beyond a reasonable doubt all elements of a crime. Commonwealth v. Cropper, 463 Pa. 529, 535, 345 A.2d 645, 648 (1975). A review of the instant facts reveals that the aforesaid elements were proved beyond a reasonable doubt. The lower court was correct in holding that, at the time of being cited for violation of the Act, an antique firearm replica need only be found suitable for use, or “operable” rather than necessarily loaded.

We therefore affirm the lower court in finding appellant guilty of violations under the above-mentioned sections of the Uniform Firearms Act.

HESTER, J., joins this opinion and files a concurring opinion.

HESTER, Judge,

concurring:

I join in the scholarly opinion by Judge Kelly, but write separately because I believe appellant did not carry a concealed weapon and that his conviction was therefore erroneous. Although appellant’s counsel raised this issue in post-trial motions and the trial court addressed the issue in its opinion, counsel inexplicably abandoned the issue of concealment on appeal. We cannot properly treat the issue on its merits, for it has been waived. Pa.R.A.P. 2116(a), 2119(a); Commonwealth v. Balch, 328 Pa.Super. 71, 76, 476 A.2d 458, 461 (1984); Rago v. Nace, 313 Pa.Super. 575, 578, 460 A.2d 337, 339 (1983); Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150-51 (1982); Commonwealth v. Harper, 292 Pa.Super. 192, 196 n. 3, 436 A.2d 1217, 1219 n. 3 (1981).

Nevertheless, the issue is Of substantial importance to appellant, and I believe the trial court erred in its treatment of the issue involving the concealment of the weapon.

The trial court correctly cited Commonwealth v. Butler, 189 Pa.Super. 399, 403, 150 A.2d 172, 173 (1959), for the proposition that the “issue of concealment depends on the particular circumstances present in each case and is a question for the trier of fact to resolve in reaching a decision.” Slip op., 10/8/85, at 2. The court, however, characterized the issue as one of credibility when, in fact, there was no conflict in the testimony.

Butler and a line of cases following it hold that when there is conflicting evidence, concealment is a question for the fact-finder. Commonwealth v. Butler, supra, 189 Pa. Superior Ct. at 403, 150 A.2d at 173 (Butler had attempted to conceal the gun from police officers by passing it to his wife); Commonwealth v. Nickol, 476 Pa. 75, 81, 381 A.2d 873, 876-77 (1977) (evidence from which trier of fact could infer that Nickol concealed gun prior to robbery); Commonwealth v. Pressley, 433 Pa. 163, 166, 249 A.2d 345, 346 (1969) (evidence from which fact-finder could infer that Pressley had removed the gun from under his sweater); Commonwealth v. Horshaw, 237 Pa.Super. 76, 80, 346 A.2d 340, 342-43 (1975) (robbery victim testified that Horshaw pulled gun from his abdomen and victim first saw it when it was coming up by Horshaw’s side); Commonwealth v. Harris, 195 Pa.Super. 606, 608-09, 171 A.2d 850, 851 (1961) (testimony very much in conflict but Harris seen drawing gun from his jacket by one witness and seen drawing some object from his pocket by others).

When, however, there is no conflict in the evidence, there is no issue of credibility to be resolved by the trier of fact. I believe this case is indistinguishable from Commonwealth v. Williams, 237 Pa.Super. 91, 346 A.2d 308 (1975), overruled on other grounds, Commonwealth v. Foster, 250 Pa.Super. 32, 34 n. 3, 378 A.2d 438, 439 n. 3 (1977). Williams was seen in the City of Philadelphia firing a handgun at a passing automobile, walking to the corner, spinning the gun and tossing it from hand to hand. Then, Williams “stuck the gun in his belt, turned around and walked away.” Id., 237 Pa.Superior Ct. at 93, 346 A.2d at 309. Following Williams’ conviction of carrying a concealed weapon, this court reversed, stating: “In the instant case there is no evidence whatsoever as to any attempt by appellant to conceal any weapon; and, therefore, we must conclude that the evidence was insufficient to sustain appellant’s conviction as to Section 6106.” Id., 237 Pa.Superior Ct. at 95, 346 A.2d at 310. As in Williams, there is no evidence in this case that appellant attempted to conceal his weapon.

Although appellant failed to argue this issue, the Commonwealth did address it. The Commonwealth states that appellant’s

explanation that he intended to place the gun on a wall would have merit if it were not for the way in which he was carrying the gun in the meantime. People just don’t walk around with guns stuck in their pants, having the gun butt sticking out just enough so that others will realize that he is armed if the real intention is to place the gun on a wall.

Brief for appellee at 3 (emphasis added).

Accordingly, had the issue been argued on appeal, I would have reversed the conviction and discharged appellant. As it was not argued, I am constrained to join Judge Kelly’s opinion which correctly addresses the other arguments of appellant.

      . The transcript of the proceedings indicates that appellant was talking to a friend on a side porch of his friend’s residence. (N.T. 6, 9).

      . Trooper Lloyd testified that appellant possessed the gun in a concealed fashion by stating: "Upon approaching Mr. Berta, I noticed a butt of a weapon sticking out from underneath his coat." (N.T. 5). "When I approached him I saw the butt of the weapon sticking out and I reached in and took it.” (N.T. 6). "It was stuck in his pants.” (N.T. 7). Appellant endeavored to refute this testimony by claiming that the gun was not concealed. Upon making its determination that the testimony of Trooper Lloyd was more credible, the trial court conclued that the gun had in fact been concealed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    514 A.2d 926
    COMMONWEALTH of Pennsylvania, Appellant v. Daniel MANSBERRY.
    Superior Court of Pennsylvania.
    Argued May 1, 1986.
    Filed Sept. 5, 1986.

      Edward M. Clark, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by appellant, the Commonwealth of Pennsylvania, from an order denying its petition to extend the time for trial and dismissing the charges and discharging appellee, Daniel Mansberry, entered in the Allegheny County Court of Common Pleas. We vacate and remand.

A criminal complaint was issued against appellee on December 15, 1983. On March 25, 1985, the Commonwealth filed a petition to extend the time for trial pursuant to Pa.R.Crim.P. 1100. Appellee made an oral motion to dismiss the complaint under Rule 1100. The Commonwealth’s petition was denied, and appellee’s motion to dismiss the complaint was granted. A petition for reconsideration was denied. This appeal followed.

The sole issue presented upon appeal is whether the time appellee was hospitalized for mental disability was excludable in computing the time for trial pursuant to Pa.R.Crim.P. 1100.

From December 15, 1983 (date complaint filed) until March 25, 1985 (date petition filed), a period of 466 days expired. Pursuant to Rule 1100, it was the Commonwealth’s obligation to prove that the 286 or more days in question was time to be excluded in the computation of 180 days.

The Commonwealth contends that appellee was hospitalized for treatment pursuant to involuntary commitments at Mayview State Hospital, (hereinafter referred to as “May-view”), and Farview State Hospital, (hereinafter referred to as “Farview”), for a total of 280 days. Appellee’s initial involuntary commitment came as a result of a request by defense counsel following appellee’s first suicide attempt. In addition, the Commonwealth also contends that appellee was a fugitive for 35 days, a period which is also excludable under Rule 1100. Accordingly, the Commonwealth contends that its petition was timely filed, there being at least 29 days remaining before the expiration of the speedy trial period. We agree.

In Commonwealth v. Genovese, 493 Pa. 65, 69-70, 425 A.2d 367, 369-70 (1981), the Court held:

Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society.” Commonwealth v. Brocklehurst, 491 Pa. 151 [153-54], 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308, n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

When an accused applies for dismissal of charges due to an alleged violation of Rule 1100, the court must first determine whether or not circumstances were present which warranted the exclusion of any period of time pursuant to section (d). Commonwealth v. Shelton, 469 Pa. 8, 12, 364 A.2d 694, 696 (1976).

Pa.R.Crim.P. 1100(d)(1) provides that in determining the period for commencement of trial, there shall be excluded:

the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence.

In the case at bar, appellee was a fugitive between December 15, 1983, the date the complaint was filed, and January 19, 1984, the date of appellee’s arrest by Pittsburgh Police. This period totals 35 days and is excludable pursuant to Rule 1100(d)(1). Appellee himself concedes that this period is excludable. (Appellee’s Brief, p. 4).

Pa.R.Crim.P. 1100(d)(3)(ii) also provides that there shall be excluded such period of delay at any stage of the proceedings as results from:

(ii) any continuance granted at the request of the defendant or his attorney.

In the case at bar, appellee was initially committed to Mayview on January 26, 1984 at the request of his defense counsel, following a suicide attempt while in jail. Therefore, the commitment requested by appellee’s counsel and granted by the Court of Common Pleas of Greene County is a cause for exclusion of this period under Rule 1100(d)(3)(ii). Commonwealth v. Bankston, 332 Pa.Super. 393, 399, 481 A.2d 672, 676 (1984). Commonwealth v. Fisher, 334 Pa.Super. 449, 453, 483 A.2d 537, 539 (1984). In this case, the Commonwealth was ready to afford appellee his right to a speedy trial; however, it was the appellee who caused the delay. A defendant may not benefit from a delay that he has caused. Commonwealth v. Machi, 294 Pa.Super. 338, 343, 439 A.2d 1230, 1233 (1982).

Finally, Pa.R.Crim.P. 1100(d)(3)(i) provides that there shall be excluded such period of delay at any stage of the proceedings as results from:

(i) the unavailability of the defendant or his attorney. A defendant is deemed unavailable for the period of time during which he is “physically or mentally incompetent to proceed.” Rule 1100, Comment.

The Commonwealth is constitutionally barred from trying a defendant who is incompetent. Commonwealth v. McQuaid, 464 Pa. 499, 518-20, 347 A.2d 465, 475-76 (1975). The periods of time during which an accused is in the process of being examined to determine the state of his mental health are also excludable. Commonwealth v. Fisher, 334 Pa.Super. 449, 453, 483 A.2d 537, 539 (1984). However, this court has refused to exclude periods of hospitalization when a defendant has been ruled competent to stand trial, yet remained committed. Commonwealth v. Fisher, 283 Pa.Super. 370, 372-75, 424 A.2d 510, 511-12 (1980).

In addition, this court has held that a defendant who is hospitalized for a physical illness or injury is deemed unavailable for purposes of Rule 1100(d). Commonwealth v. Glessner, 337 Pa.Super. 140, 142, 486 A.2d 521, 522 (1985).

However, in the instant case, appellee was not physically ill, nor was he ever found to be mentally competent or incompetent. Rather, he was involuntarily committed to Mayview and Farview as the result of two suicide attempts.

In Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984), this court addressed the situation where a defendant was hospitalized pursuant to an involuntary commitment and subsequently released without a declaration of competency ever being entered. In Caden, the defendant attempted to commit suicide subsequent to his arrest. The defendant was involuntarily committed to Norristown State Hospital under the Mental Health and Mental Retardation Act of October 20, 1966, P.L. 96, Art. IV, 50 P.S. § 4101 et seq. The court held in Caden that “the purpose of this hospitalization was to provide appropriate treatment during that critical time.” In Caden, the total period of hospitalization was 20 days and necessitated a postponement of defendant’s preliminary hearing.

In Caden, the defendant was not physically ill, nor was he ever declared to be mentally competent or incompetent. However, the court declared the defendant unavailable for the entire period of his hospitalization. The court ruled:

It is true that we have refused to exclude periods of hospitalization when a defendant has been ruled competent to stand trial, yet remained committed. Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1980); Commonwealth v. Quinlan, supra [, 259 Pa.Super. 536, 393 A.2d 955 (1978)]. However, when an accused is in the process of being examined to determine the state of his mental health, we have ruled those periods to be excludable. Id. We find the instant facts to be similar in that appellant required immediate hospitalization to stabilize his precarious mental condition. We therefore exclude the twenty days from the mandatory period within which appellant should have been tried.

Commonwealth v. Caden, supra, at 326 Pa.Superior Ct. 201, 473 A.2d 1051.

The facts in the instant case are very similar to those in Caden. In the case at bar, as in Caden, appellee attempted to commit suicide subsequent to his arrest. Upon request of defense counsel, the court ordered appellee involuntarily committed to Mayview. This commitment lasted from January 26, 1984 until March 15, 1984. While at Mayview, appellee attempted to commit suicide a second time. Following his second suicide attempt, appellee was involuntarily committed to Farview from March 15, 1984 until May 3, 1984. Appellee was then committed to Mayview, where he remained until August 9, 1984. During this time, appellee voluntarily extended his hospital stay for six days. After a brief transfer to the State Correctional Institute of Pittsburgh on a detainer for parole violation, on August 23, 1984, appellee was again committed by the court to May-view, pursuant to Section 304 of the Mental Health Procedures Act (50 Pa.S.A. § 7304), where he remained until November 21, 1984. He was then returned to the State Correctional Institute of Pittsburgh.

The total period of hospitalization in question lasted 280 days. During this time, several scheduled preliminary hearings were postponed. Finally, due to appellee’s continued unavailability, the criminal information was finally filed by the Commonwealth without a preliminary hearing, pursuant to Pa.R.Crim.P. 231.

The lower court refused to exclude the periods of hospitalization in question because there was no evidence presented of appellee’s incompetence. However, in Caden, this court refused to decide the issue of excludable time on the basis of a formal determination of competence. Instead, the Caden court held the defendant to be unavailable until the treatment he was receiving “to stabilize his precarious mental condition” was no longer required. Commonwealth v. Caden, supra, 326 Pa.Superior Ct. at 201, 473 A.2d at 1051.

Like the defendant in Caden, appellee was initially committed as the result of a suicide attempt. However, in the instant case, appellee attempted suicide on two' separate occasions and required treatment for an extended period of time. Thus, as in Caden, the purpose of appellee’s hospitalization was to provide appellee with appropriate treatment during these critical times. Commonwealth v. Caden, supra, 326 Pa.Superior Ct. at 201, 473 A.2d at 1051. Under involuntary commitment, hospitalization is intended to make treatment available where it is needed and where the absence of treatment endangers that person or others. 50 Pa.S.A. § 7301. The Mental Health Procedures Act requires that the defendant demonstrates a clear and present danger to himself and others. In the case at bar, appellant’s two suicide attempts are clear indications that appellee presents such a threat to himself and others. 50 Pa.S.A. § 7301(b)(2)(ii). Thus, appellee was treated for his condition, and the treatment was continued until it was concluded that appellee was no longer in need of such specialized treatment.

It is the Commonwealth’s task to prove by a preponderance of evidence that it acted with due diligence to bring this case to trial. Commonwealth v. Burke, 344 Pa.Super. 288, 291, 496 A.2d 799, 801 (1985). Commonwealth v. Ehredt, 485 Pa. 191, 193, 401 A.2d 358, 360 (1979). The test to be utilized in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Burke, supra, 344 Pa. Superior Ct. at 292, 496 A.2d at 801. Commonwealth v. Williams, 317 Pa.Super. 456, 468, 464 A.2d 411, 417 (1983), quoting Commonwealth v. Wroten, 305 Pa.Super. 340, 345, 451 A.2d 678, 681 (1982). Whether unavailability of a person for trial will preserve the Commonwealth’s evidence of due diligence rests on whether the person was within the Commonwealth’s control. Commonwealth v. Burke, supra, 344 Pa.Superior Ct. at 292, 496 A.2d at 801; Commonwealth v. Singleton, 313 Pa.Super. 224, 228, 459 A.2d 821, 823 (1983).

In the case at bar, appellee was not within the Commonwealth’s control during the period when he was a fugitive. Appellee was also not within the Commonwealth’s control for those periods that he was involuntarily committed by the court to Mayview and Farview. Appellee was admitted for treatment following his first suicide attempt, and the treatment was extended for various periods of time until it was concluded by the court and the directors of said institutions that appellee was no longer in need of such specialized treatment. Thus, the Commonwealth should not be penalized for delays it neither caused nor could prevent.

The Commonwealth contends that the procedural requirements of 50 Pa.S.A. § 7301 were satisfied for each involuntary commitment and extension of appellee’s hospitalization. The record shows that the Commonwealth knew where appellee was during these periods of involuntary commitment following appellee’s two suicide attempts and that he was undergoing treatment for his precarious mental condition, but the Commonwealth had no control over appellee during his treatment. In addition, neither appellee nor his defense counsel objected to or appealed from the numerous commitment orders. This court has held:' “Where, as here, the defendant has assented to a period of delay and later takes advantage of it, we should be loathe to find a violation of the accused’s speedy trial rights.” Commonwealth v. Fisher, supra, 334 Pa.Superior Ct. at 457, 483 A.2d at 541. Also, as stated before, a defendant may not benefit from delay that he has caused. Commonwealth v. Machi, supra, 294 Pa.Superior Ct. at 344, 439 A.2d at 1233. The circumstances which caused a delay in bringing appellee to trial in this case, the period when appellee was a fugitive and appellee’s hospitalization following his suicide attempt, were created by appellee’s own actions. Our Supreme Court has held: “The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delay through no fault of the Commonwealth.” Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009, 1012, quoting Commonwealth v. Genovese, supra, 493 Pa. at 69-72, 425 A.2d at 369-370.

Therefore, since appellee was hospitalized for treatment for 280 days and a fugitive for 35 days, a total of 315 days were excludable from the 466 days that elapsed between the filing of the complaint and the filing of the Commonwealth’s petition. Thus, under Pa.R.Crim.P. 1100, at least 29 days remained before the expiration of the speedy trial deadline.

Accordingly, the Order denying the Commonwealth’s petition to extend the time for trial and granting appellee’s motion for dismissal and discharge is vacated, and the case is remanded for trial. Jurisdiction is relinquished.


author: HOFFMAN, Judge:

text:
    514 A.2d 930
    Eva RITTER, Administratrix of the Estate of Taazmayia Lang, Appellant v. THEODORE PENDERGRASS TEDDY BEAR PRODUCTIONS, INC. and CBS Records, a Division of CBS, Inc.
    Superior Court of Pennsylvania.
    Argued April 8, 1986.
    Filed Sept. 9, 1986.

      Michael R. Needle, Philadelphia, for appellant.
    David F. McComb, Philadelphia, for appellees.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment entered pursuant to the lower court’s order granting appellee’s preliminary objections and dismissing appellant’s complaint against appellee. Appellant contends that the lower court erred in dismissing her complaint because (1) appellant’s service of a writ of summons upon appellee’s co-defendant was sufficient to toll the statute of limitations as to appellee; (2) appellant’s failure to serve the writ of summons on appellee did not bar appellant from later commencing an action against appellee by serving a complaint upon it; (3) appellee could not raise the affirmative defense of statute of limitations in a preliminary objection; and (4) if appellee could raise the statute of limitations, appellant’s complaint should not have been dismissed because (a) the time at which the statute began to run is unclear, (b) the statute does not bar appellant’s cause of action, and (c) appellee is estopped from asserting the statute of limitations. For the following reasons, we vacate the lower court’s judgment, reverse its order and remand for further proceedings.

Appellant is the administratrix of the estate of Taazmayia Lang. She brought the instant action as part of a suit in equity against musician Theodore (Teddy) Pendergrass; his production company, Teddy Bear Productions, Inc.; and appellee, CBS Records, a division of CBS, Inc. The suit is based upon a personal management contract between Lang and Pendergrass pursuant to which Pendergrass was to pay Lang ten percent of “all gross compensation” received by Pendergrass during the term of the contract and ten percent of any compensation received by Pendergrass “from any and all agreements entered into during the term of the [contract between Lang and Pendergrass] or from any and all extensions, renewals or substitutions extending beyond the term of [that contract].” See Complaint, Exhibit A at 4. The contract, dated August 1, 1976, had a one-year term with options to renew for three consecutive one-year periods. On August 20, 1976, Pendergrass entered into a recording agreement with Assorted Music Co., Inc. (Assorted). This agreement, which had an initial term lasting until October 3, 1978 and contained options to renew for three one-year periods, provided that Assorted would pay royalties to Pendergrass for all recordings by him produced and sold by Assorted. On September 17, 1976, Pendergrass, Lang, and Assorted allegedly entered into an agreement that provided for Assorted to pay directly to Lang ten percent of all royalties owed Pendergrass under the August 20 agreement between him and Assorted. The letter agreement also directed Assorted to furnish Lang with copies of the royalty statements supplied to Pendergrass. Then, pursuant to a letter dated October 19, 1976, appellee allegedly assumed Assorted’s obligations under its August 20 agreement with Pendergrass.

Appellant contends that appellee thereby assumed Assorted’s obligations to pay Lang ten percent of Pendergrass’s royalties and furnish her with royalty statements. Lang died on April 17, 1977. Because appellee has never paid any royalties to her or her estate, appellant claims that appellee has breached its obligations to her.

On April 14, 1983, appellant filed a writ of summons to commence this action. She arranged for the writ to be served upon Pendergrass and Teddy Bear Productions, Inc., but failed to have the writ served upon appellee. On April 14, 1985, appellant filed a complaint that was served upon Pendergrass, Teddy Bear Productions, Inc., and appellee. On June 7, 1985, appellee filed preliminary objections to the complaint. The lower court sustained those objections and dismissed appellant’s complaint as to appellee in an opinion and order dated October 1, 1985. That order was reduced to judgment and this appeal followed.

Appellant first contends that the lower court erred in holding that appellant’s complaint should be dismissed because “service was untimely” and in relying upon Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), in support thereof. In Lamp, our Supreme Court held that “a writ of summons shall remain effective to commence an action only if the plaintiff refrains from a course of conduct which serves to stall in its tracks the legal machinery [s]he has just set in motion,” and directed plaintiffs to “comply with local practice as to the delivery of the writ to the sheriff for service.” Id., 469 Pa. at 478, 366 A.2d at 889. The plaintiff in Lamp had impeded service of a writ of summons upon the defendant until after the statute of limitations had expired. The plaintiffs action was not dismissed, however, because the Court’s ruling was prospective only.

In the instant case, appellant failed to make arrangements with the sheriff to have the writ of summons served upon appellee. Accordingly, we find that the writ was not effective to commence an action against appellee. Cf. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986) (action dismissed where plaintiff filed writ of summons on last day of statutory limitations period but inadvertently failed to instruct and pay sheriff for service until writ had expired).

Appellant’s failure to serve the writ upon appellee, however, does not necessarily bar her cause of action against it. After an original writ of summons has been issued, it is effective as process for thirty days. See Pa.R.Civ.P. 1009(a) (rescinded effective January 1, 1986; current version at id. 401(a)). When the thirty-day period expires, the writ may be reissued and served, or a complaint may be filed and served. Id. 1010 (rescinded effective January 1, 1986; current version at id. at 401(b)).

If an action is commenced by writ of summons and a complaint is thereafter filed, the plaintiff instead of reissuing the writ may treat the complaint as alternative original process and as the equivalent for all purposes of a reissued writ, reissued as of the date of the filing of the complaint.

Id. 1010(e) (current version at id. 401(b)(5)). Here, although appellant failed to serve the writ of summons upon appellee, she did serve the complaint upon it. Under the rules of civil procedure, service of the complaint was sufficient to commence this action against appellee as of the date the complaint was filed, April 14, 1985.

The question then arises whether the service of the complaint was timely. Appellant correctly contends that appellee could not raise the affirmative defense of the statute of limitations in its preliminary objections. See Lamp v. Heyman, supra 469 Pa. at 470-71, 366 A.2d at 885; Pa.R.Civ.P. 1017(b)(4), 1030. Appellee, however, raised the timeliness of appellant’s complaint in a preliminary objection asserting the bar of laches, not the statute of limitations; laches may be raised by a preliminary objection in an equity action. See Pa.R.Civ.P. 1509(b).

“While the defense of laches may be raised by preliminary objections, laches should never be declared unless the existence thereof is clear on the face of the record.” Estate of Marushak, 488 Pa. 607, 610, 413 A.2d 649, 651 (1980) (citation omitted). This means that the party asserting laches must show, first, a delay arising from the other party’s failure to exercise due diligence, and second, prejudice from the delay. Id. See also Leedom v. Thomos, 473 Pa. 193, 200, 373 A.2d 1329, 1332 (1977) (collecting cases). Whether this burden has been met is a factual question, answered by examining the circumstances of the particular case. Leedom v. Thomas, supra, 473 Pa. at 200-201, 373 A.2d at 1332-1333. See Shapiro v. Shapiro, 424 Pa. 120, 131, 224 A.2d 164, 170 (1966) (laches determined only after all circumstances of case examined); Stahl v. First Pennsylvania Banking and Trust Co., 411 Pa. 121, 128, 191 A.2d 386, 390 (1963) (well-settled that complaint will be dismissed on preliminary objections only if laches clearly apparent) (collecting cases).

Kehoe v. Gilroy, 320 Pa. Superior Ct. 206, 212, 467 A.2d 1, 4 (1983). See also Hansel v. Hansel, 300 Pa. Superior Ct. 548, 556, 446 A.2d 1294, 1298 (1982) (application of doctrine of laches requires examination of entire record in addition to complaint), allocatur denied.

Here, we find that the existence of laches was not clear on the face of the record. Appellee argues in support of its allegation of laches that, if appellant’s action had been brought in law rather than equity, it would have been barred by the applicable statute of limitations. It therefore argues that the action in equity should similarly be barred by the doctrine of laches. “Although statutes of limitation are not strictly and technically applicable to actions in equity, a court of equity will by analogy adopt and apply statutes of limitation.” 14 Standard Pa. Practice 2d § 79:43 (1983) (footnote collecting cases omitted). The rationale behind the adoption of statutes of limitation by courts of equity is that an action should not lie in equity if it would be barred at law. See, e.g., Rush v. Butler Fair & Agricultural Association, 391 Pa. 181, 185, 137 A.2d 245, 247 (1958).

Appellee’s argument, that appellant’s action would be barred in an action at law, is founded upon the premise that appellant’s cause of action accrued, and the statute of limitations began to run, when the one-year term of Lang’s contract with Pendergrass expired on August 1, 1977. See Brief for Appellee at 18. Both parties agree, that, because appellant’s cause of action is founded upon a contract, the applicable statute of limitations in an action at law would be six years. 42 Pa. C.S.A. § 5527(2). Therefore, appellee argues that the statutory limitations period expired on August 1, 1983 and appellant’s failure to effect service of process on appellee before that date would bar the action at law and should also bar it in equity.

We disagree. Although Lang’s duties under her contract with Pendergrass terminated, at the latest, on August 1, 1977, Pendergrass had a continuing obligation to pay Lang ten percent of any compensation he received from agreements entered into during the term of his contract with Lang and from any extensions, renewals, or substitutions of those agreements “extending beyond the term of [the contract between Lang and Pendergrass].” See Complaint, Exhibit A at 4 (emphasis added).

When we examine the agreements Pendergrass allegedly entered into during the term of his contract with Lang, it becomes clear that Pendergrass’s duty to pay Lang ten percent of the compensation he received pursuant to those contracts could potentially extend for years beyond the term of the management contract. Under the agreement between Pendergrass and Assorted, Assorted was to make periodic payments of royalties to Pendergrass. The letter agreement between Pendergrass, Assorted, and Lang modified that obligation so that Assorted was required to pay ten percent of those periodic payments directly to Lang and furnish her with royalty statements. The agreement between Pendergrass and Assorted had a term extending more than a year beyond the term of Lang’s and Pendergrass’s contract and was subject to three one-year renewals. Thus, the obligation to pay ten persent of Pendergrass’s royalties to Lang, which appellant alleges appellee assumed when it assumed Assorted’s contractual obligations, may have extended until October, 1981, or even later.

Our courts have held that where installment or periodic payments are owed, a separate and distinct cause of action accrues for each payment as it becomes due. See VanSciver v. VcmSciver, 337 Pa. 390, 395, 12 A.2d 108, 110 (1940); Bush v. Stowell, 71 Pa. 208, 211-12 (1872); Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 31 Pa. Commonwealth Ct. 212, 216-17, 375 A.2d 890, 892 (1977), aff'd, 482 Pa. 615, 394 A.2d 491 (1978). Here, Pendergrass’s agreement with Assorted provided that he would receive any royalties that accrued “at least semi-annually.” See Appellant’s Answer to Preliminary Objections of Appellee, Exhibit B at 6. The agreement, pursuant to which appellee is alleged to have assumed Assorted’s duties, modified that obligation by providing that appellee would account for and pay any royalties owed within ninety days of the expiration of its semi-annual accounting periods, which ended every June 30 and December 31. See id,., Exhibit D at 2. Thus, appellant may have had a new cause of action accruing against appellee as often as twice a year. While appellant’s claim for payments due more than six years before the date she served appellee with the complaint may be barred by the statute of limitations, and, by analogy, by laches, she still may have a viable claim for payments due within that six-year period.

In the instant case, it is impossible to determine from the record when, or if, appellee became obligated to make royalty payments to appellant and, thus, to determine when the statute began to run for each missed payment. Accordingly, we find that the existence of laches is not clear on the face of the record, vacate the judgment of the lower court, and reverse its order. The case is remanded to the lower court for further proceedings.

Judgment vacated and order reversed; case remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . The lower court’s entire opinion and order reads as follows:
      AND NOW, this 1_ day of Oct., 1985, upon consideration of the Preliminary Objections filed by CBS Records and the response thereto, it is hereby ORDERED that the Preliminary Objections are sustained and plaintiffs Complaint dismissed as to defendant CBS, it being the opinion of this Court that service was untimely. See Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).

      . Appellant contends that her service of the writ upon Pendergrass was sufficient to effect service upon appellee because appellee was in privity with Pendergrass. We disagree. Our rules of civil procedure provide the methods by which process may be served, and service upon a person in privity with a defendant is not one of the authorized methods. See Pa.R.Civ.P. 2180 (service of process upon corporation or similar entity) (rescinded effective January 1, 1986; current version at id. 424). We further note that appellant has not cited, and we cannot discover, any authority in support of her contention).

      . All citations to the Pennsylvania Rules of Civil Procedure have been made to the rules governing the parties’ actions at the time those actions were taken.

      . Although appellee filed several preliminary objections asserting grounds for relief other than laches, its memorandum of law in support of its objections addressed only the timeliness of the writ and complaint.
      We note that appellee’s memorandum contained argument that appellant’s claim was barred by the statute of limitations. See Memorandum of Law in Support of Preliminary Objections of [Appellee] at 4. We decline to consider that argument on its own merits, however, for, as noted previously, the statute of limitations was not, and may not be, raised by preliminary objections.

      . The lower court’s reliance upon Lamp v. Heyman, supra, a case dealing with the effect of the statute of limitations upon service of process, indicates that the court accepted appellee’s argument.

      . We note, without deciding the issue, that Lang's death in April, 1977 raises a question as to the date that her contract with Pendergrass terminated. See George v. Richards, 361 Pa. 278, 64 A.2d 811 (1949) (where contract involves services of person with particular skill, death of party possessing that skill terminates the contract).

      . The obligation to pay royalties to Pendergrass under the contract between Assorted and Pendergrass did not necessarily terminate at the same time as Pendergrass's recording obligations. Under that contract, the recording company had a continuing obligation to pay royalties to Pendergrass, at least semi-annually, based upon the wholesale price it received for his records.

      . Appellant also argues that appellee's failure to provide her with royalty statements amounted to fraud or conspiracy sufficient to estop appellee from asserting the statute of limitations. A defendant may be estopped from asserting the statute of limitations if by fraud or concealment the defendant causes the plaintiff to relax her vigilance or deviate from her right of inquiry. McNair v. Weikers, 300 Pa. Superior Ct. 379, 388, 446 A.2d 905, 909 (1982), allocatur denied. The plaintiff, however, must prove such fraud or concealment by clear, precise, and convincing evidence. Id. Here, we cannot say that appellee’s failure to provide appellant with royalty statements amounted to concealment such as to cause appellant to relax her vigilance or deviate from her right of inquiry to protect her rights. Instead, appellant’s failure to receive any royalties or royalty statements after a reasonable period of time should have caused her to increase her vigilance and employ her right of inquiry. Accordingly, we find that appellee was not estopped from asserting the statute of limitations, albeit as an analogy to the bar of laches.

      . Because the lower court dismissed appellant’s complaint on the basis of appellee’s preliminary objection asserting the bar of laches, it apparently did not consider the remaining preliminary objections raised by appellee. See Lower Court Opinion and Order, supra note 1. Upon remand, the lower court should consider appellee’s remaining preliminary objections, if it has not already done so.


author: CIRILLO, President Judge:

text:
    514 A.2d 936
    Derrick ROGERS and James Price v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Travelers Insurance Company. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. Edward A. BRUNO v. TRAVELERS INSURANCE COMPANY and Southeastern Pennsylvania Transportation Authority. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Sept. 11, 1986.

      Carl T. Bogus, Philadelphia, for appellant.
    Robert M. Sitoski, Philadelphia, for Rogers, appellees (at 2034) .
    David M. McCormick and Gary B. Cutler, Philadelphia, for Travelers, appellee.
    Lawrence R. Pierce, Philadelphia, for Bruno, appellee (at 2035) .
    Before CIRILLO, President Judge, and CAVANAUGH and WICKERSHAM, JJ.
   CIRILLO, President Judge:

This case involves a consolidated appeal from orders of the Court of Common Pleas of Philadelphia County. We are called upon to determine whether a trackless trolley is a “motor vehicle” under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa.C.S. § 1009.

Appellee Edward T. Bruno and appellees Derrick Rogers and James Price (hereafter “passengers”) instituted separate actions against appellant Southeastern Pennsylvania Transportation Authority (hereafter “SEPTA”) and appellee Travellers Insurance Company (hereafter “Travellers”). The passengers alleged in their complaints that they were injured while passengers on a trackless trolley owned by SEPTA, and that they had no insurance policies of their own because they did not own automobiles. Thus, they alleged they were entitled to basic loss benefits from either SEPTA or Travellers, which is the named assigned servicing carrier under the Assigned Claims Plan. Travellers filed motions for judgment on the pleadings, urging that the trackless trolley involved is a “motor vehicle” such as to put the burden of payment on SEPTA (the vehicle owner) pursuant to traditional application of the No-Fault Act. The trial court agreed with Travellers’ analysis and granted the motions, leaving SEPTA as sole defendant. These appeals by SEPTA followed.

At the outset, we note that all parties agree that a determination of whether a trackless trolley is a “motor vehicle” is dispositive of this appeal. If the trolley is a motor vehicle, then SEPTA must provide the security for the passengers’ injuries; as owner of the vehicle on which the uninsured person was injured, this would be its general duty under the No-Fault Act. 40 Pa.C.S. § 1009.204(3). We agree with the trial court that the trolley is a motor vehicle, and thus need not discuss the ramifications of any finding to the contrary.

SEPTA’s argument can be summarized as follows. Trackless trolleys need not be registered under the Motor Vehicle Code, 75 Pa.C.S. § 101, not because they are listed as an exception under § 1302(b) of the Code, but because the Department of Transportation has chosen to except them from registration as a policy matter. If it is not registered under the Vehicle Code, it is not a motor vehicle. To treat trackless trolleys as motor vehicles in the face of the Department of Transportation’s special classification of them would improperly disregard the Department’s regulatory powers. Further, trackless trolleys, despite their outward similarities to buses, actually have little in common with true motor vehicles because their travel is limited by their dependence on overhead power lines.

We find that SEPTA’s reliance on whether the trolleys are actually registered under the Vehicle Code is misplaced. In Siefert v. Nationwide Insurance, 289 Pa.Super. 160, 432 A.2d 1101 (1981), we were faced with the issue of whether a trail bike is a “motor vehicle” under the No-Fault Act. We noted that the No-Fault Act relies on the Motor Vehicle Code definition of motor vehicle, “a vehicle of a kind required to be registered ...” (emphasis added). The trail bike had no lights, safety features, or warning systems, and thus was not “of a kind” which can be registered. Therefore, it was not a motor vehicle. An en banc panel of this Court adopted the Siefert analysis in Phillips v. Nationwide Insurance, 348 Pa.Super. 351, 502 A.2d 244 (1985) (Cirillo, P.J., dissenting on other grounds).

The question, then, is whether trackless trolleys are more similar to vehicles that are registered under the Vehicle Code (cars, buses, etc.) than to those that are not (dune buggies, trail bikes, and the like). We conclude that, despite the fact that trackless trolleys are not actually registered under the Vehicle Code, they are “of a kind” required to be registered. They operate exclusively on public roadways and have all the safety features suiting them for that purpose. While they are not self-propelled, they do have motors, which are simply powered from an outside source. Indeed, apart from the power lines overhead, the trackless trolleys are virtually identical to SEPTA’s conventional buses. It is true that they are limited to those roadways that are equipped with power lines, but while they are operating on those roads the trackless trolleys accelerate, stop, and turn just like ordinary buses. We agree with the trial court that trackless trolleys operate on the roadways in such a fashion as to be deemed motor vehicles under the No-Fault Act.

The orders appealed from are affirmed.

      . The No-Fault Act was repealed October 1, 1984. It is controlling on this appeal, however, because it was in effect at the time of the accident at issue.


author:
WIEAND, Judge:
      CIRILLO, President Judge,

text:
    514 A.2d 938
    BOYERTOWN OIL COMPANY, INC., Appellee, v. OSAN MANUFACTURING COMPANY, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 8, 1986.
    Filed Sept. 12, 1986.

      Craig S. Boyd, Boyertown, for appellant.
    David L. Allebach, Jr., Pottstown, for appellee.

      Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

Boyertown Oil Company, Inc. (Boyertown) recovered a partial summary judgment against Osan Manufacturing Company, Inc. (Osan) for the price of oil delivered to Osan on three separate occasions. After the expiration of the appeal period, Boyertown issued execution on its judgment. Osan then attempted to stay the execution until liability for a fourth delivery of oil had been adjudicated. The trial court denied Osan’s request, and this appeal followed. We affirm.

The action had been commenced by Boyertown to recover the agreed price of oil delivered to Osan on four separate occasions. After discovery proceedings had been completed, Boyertown filed a motion for partial summary judgment on the basis of admissions made by Osan’s president that his corporation owed Boyertown the prices charged for the first three deliveries. The trial court granted the motion and caused judgment to be entered for Boyertown in the amount of $10,666.69. No appeal was filed from the entry of this judgment. After the appeal period had expired, Boyertown issued execution against its judgment debtor. Osan then filed a petition in the trial court asking the court to “clarify” the summary judgment by determining whether it was enforceable before there had been an adjudication of the dispute regarding liability for the fourth delivery and Osan’s counterclaim arising out of the fourth delivery. By order dated June 26, 1985, the trial court held that Boyer-town’s judgment could be enforced and refused to stay execution until after the remaining claim had been adjudicated.

Many years ago the legislature in Pennsylvania provided that a court should have the power to enter judgment in an amount which a defendant has admitted to be due. See: Act of May 31, 1893, P.L. 185, 12 P.S. § 736, suspended by 42 Pa.C.S. § 1722(a)(1); Practice Act of 1915, Act of May 14,1915, P.L. 483, § 17,12 P.S. § 735, suspended by 42 Pa.C.S. § 1722(a)(1). See also: 2 Goodrich-Amram 2d §§ 1037(b):3, (c):2. This power of the court remains extant. Pa.R.C.P. 1037(c) provides that “[i]n all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.” Rule 1037(c), when considered in conjunction with Pa.R.C.P. 1034(b), which authorizes a court to enter judgment “as shall be proper on the pleadings,” was held to constitute authority for the entry of a partial judgment on the pleadings for that portion of a claim whose validity was admitted. See: Kappe Associates, Inc. v. Aetna Casualty and Surety Co., 234 Pa.Super. 627, 630 n. 1, 341 A.2d 516, 518 n. 1 (1975). See also: Jeffrey Structures, Inc. v. Grimaldi, 186 Pa.Super. 437, 441-442, 142 A.2d 378, 380 (1958); 2 Goodrich-Amram 2d § 1037(c):2. Rule 1037(c) must also be read in pari materia with Rule 1035, which permits the entry of summary judgment whenever there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. It would be truly anomalous to permit a partial judgment on the pleadings for an amount admitted to be due but not a partial summary judgment if the amount admitted to be due should be contained in depositions or answers to interrogatories. It seems clear, therefore, that the trial court in this case could properly enter summary judgment on one or more, but fewer than all, claims alleged in the complaint.

In the instant case, Boyertown’s complaint stated not a single claim but four distinct claims arising out of four separate transactions. They were joined, as permitted by Pa.R.C.P. 1020(a), in one complaint. However, the four causes of action, being separate, might well have been asserted in separate complaints. In that event, Boyer-town’s right to summary judgments for the amounts due on account of three, separate deliveries of oil would have been clear. The result is not different because Boyertown elected to include the four separate claims in one complaint.

Moreover and in any event, no appeal was ever filed from the summary judgment entered by the trial court in this case. Therefore, the judgment became final after the expiration of thirty days. See: Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 243-45, 504 A.2d 335, 337 (1986); Hunter v. Employers Insurance of Wausau, 347 Pa.Super. 227, 229-230, 500 A.2d 490, 491 (1985). Any objection to the validity of the judgment was waived by Osan when it failed to take a timely appeal therefrom.

Osan’s appeal was taken from the order of June 26, 1985 which permitted enforcement of the judgment and not from the order entering summary judgment. The issue to be decided by this Court, therefore, is whether an unchallenged, final judgment can be enforced before related claims have been finally adjudicated.

“Executions are within the equitable control of the court from which they are issued.” Fedun v. Mike’s Cafe, Inc., 204 Pa.Super. 356, 360, 204 A.2d 776, 779 (1964), aff'd, 419 Pa. 607, 213 A.2d 638 (1965). See: Sinking Fund of Commissioners of Philadelphia v. Philadelphia, 324 Pa. 129, 135, 188 A. 314, 317-318 (1936). A court’s decision to grant or stay execution will not be disturbed absent an abuse of that discretion. Id. Generally, a “court may permit the issuance of an execution on a judgment entered on an admission of the defendant as to a part of the claim of the plaintiff ... even where there is no standing rule of court which authorizes such execution.” 12 Std.Pa.Prac.2d § 72:9.

In Sterling Electric & Furniture Co. v. Peterson, 409 Pa. 435, 187 A.2d 285 (1963), the plaintiff had obtained a judgment by confession in the amount of $6,650 pursuant to authorization contained in a judgment note which had been executed in blank by defendants. Although defendants admitted owing plaintiff $1,752 on the note, they filed a petition to open the entire judgment on the ground that plaintiff had fraudulently overstated the amount owed. Based on defendants’ admission, the plaintiff petitioned the trial court for leave to proceed with execution for the undisputed amount. The trial court denied plaintiff’s petition for execution and opened the entire judgment. In reversing, the Supreme Court said:

This action of the Court cannot be sustained. When a debtor solemnly acknowledges the existence of a certain amount due under a judgment note, no purpose is served in refusing execution to the creditor of that amount, merely because the debtor alleges that he does not owe another amount.
The defendants have admitted, under oath, that they owe the plaintiff $1,752; there is no contest as to this sum. They should therefore pay it. Paying this amount in no way impedes the exercise of justice and fairness in the opening of the judgment as to the difference between $1,752 and the amount of the judgment note as filed.

Id., 409 Pa. at 438, 187 A.2d at 287. See also: Nisenbaum v. Farley, 380 Pa. 257, 110 A.2d 230 (1955) (where the validity of a judgment is not at issue, it is erroneous to refuse execution on the undisputed amount).

The reasoning of the Court in Sterling Electric is controlling of the case sub judice. Where, as here, the defendant has “solemnly acknowledged” the validity of a portion of the plaintiffs claim and judgment has been entered in the amount admitted to be due, requiring the defendant to pay the judgment immediately does not impair the defendant’s right to litigate the remainder of the plaintiff’s claim. Indeed, to delay execution on a judgment, which is a recognized, vested property right, may well be contrary to notions of “due process.” See: Sinking Fund Commissioners of Philadelphia v. Philadelphia, supra 324 Pa. at 133-134, 188 A. at 317.

Once again, it is helpful to examine Boyertown’s right to execute in light of the fact that it has recovered on three causes of action which are separate and distinct from the fourth. These separate causes of action might have been stated in separate complaints. If Boyertown had recovered summary judgments in three separate actions, its right to enforce those judgments would have been clear. The right to enforce the judgment recovered in this case for moneys due in three separate transactions is equally unassailable.

We hold, therefore, that the trial court did not commit an error of law or abuse its discretion when it refused to stay execution on Boyertown’s judgment.

Order affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

Boyertown Oil Company, Inc. (Boyertown) was awarded a partial summary judgment against Osan Manufacturing Company, Inc. (Osan) for the price of oil delivered to Osan on three separate occasions. The majority holds that Boyertown may enforce this partial judgment despite the fact that the amount due for a fourth delivery is in dispute and Osan’s counterclaim against Boyertown for damages has not been fully and finally litigated. I respectfully dissent.

This is an appeal from an order entered by the Court of Common Pleas of Berks County whereby appellee, Boyer-town Oil Company (hereinafter “Boyertown”), was permitted to enforce, prior to trial, a money judgment gained by partial summary judgment against appellant, Osan Manufacturing Company (hereinafter “Osan”). Osan appeals averring that the trial court erred in permitting Boyertown to execute on a partial summary judgment before a final judgment was entered upon the remaining contested issues.

In this appeal, we are presented with an issue of first impression: whether a court which grants a “partial summary judgment” pursuant to Pa.R.Civ.P. 1035(c) may enter and enforce that judgment prior to trial on the merits of the claims still in "substantial controversy, or must merely enter an order specifying that the facts existing without substantial controversy are deemed established for trial. After a careful review of the record and applicable law, I would find that a party should be precluded from executing upon a “partial summary judgment” entered in his favor prior to disposition at trial of the contested issues which remain. Accordingly, I would reverse.

Appellant-Osan and appellee-Boyertown have engaged in numerous business transactions with each other over a number of years. Boyertown supplied oil and burner services to Osan. Osan phoned Boyertown when it needed oil and Boyertown would then deliver the requested amount. In January, 1983, Osan received its last delivery from Boyertown. Osan refused to pay for this final shipment claiming that it had never ordered the oil. In addition, Osan failed to pay for three prior deliveries which it received in October and November of 1982. Boyertown then initiated this action to recover the costs of these deliveries. Osan filed a counterclaim for damages allegedly caused by Boyer-town’s negligence.

Subsequently, appellee filed a motion for summary judgment. Osan admitted owing Boyertown for the three oil shipments it received in late 1982. However, Osan contested Boyertown’s assertion that it owed Boyertown for the January, 1983 shipment. Not only did Osan deny this portion of Boyertown’s claim but Osán filed a counterclaim against Boyertown for damages in an amount in excess of that claimed by Boyertown. The trial court granted a “partial summary judgment” for the first three oil deliveries for which Osan did not dispute owing Boyertown. Thirty days after the entry of this order, Boyertown levied upon Osan’s personal property. Osan then petitioned the trial court to clarify its order granting summary judgment. Osan requested clarification as to whether or not the money judgment granted was enforceable by Boyertown prior to the trial on the remaining issues raised in the complaint and counterclaim. The court entered an order stating that “partial summary judgment” was enforceable prior to trial on the merits of the complaint and counterclaim. This timely appeal followed the clarification order.

On appeal, appellant submits that the term “partial summary judgment” is a misnomer. Appellant argues that a partial summary judgment is not dispositive of all issues involved in the underlying claim; and, therefore it is not subject to execution immediately but must be held in abeyance until final determination of those issues which remain. Osan does not contest the propriety of the granting of the “partial summary judgment.” Appellant merely asserts that appellee must wait until the conclusion of the trial when the remaining portions of the claim and the entire counterclaim are fully and finally adjudicated. I agree.

The trial court determined that Pa.R.Civ.P. 1035(c) empowers it to enter a partial summary judgment such as the one entered in the case sub judice and that under this provision once such a judgment is entered it may be executed upon. This rule of procedure provides:

If on a motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Pa.R.Civ.P. 1035(c) (emphasis provided).

This rule is written clearly and is not subject to a variety of interpretations. It specifically states that in those situations where a summary judgment is “not rendered upon the whole case or for all the relief requested,” the trial court is authorized to “ascertain what material facts exist without substantial controversy.” Pa.R.Civ.P. 1035(c) (emphasis provided). The trial court simply determines which items are not disputed. Nothing in this provision empowers the trial court to enter a judgment as to a portion of the claim before it.

In addition, subsection (c) unequivocally provides that in those situations where the trial court may practicably determine. which issues are not in contention, the court “shall thereupon make an order specifying the facts that appear without substantial controversy.” Pa.R.Civ.P. 1035(c) (emphasis provided). Under this subsection of Rule 1035 no judgment is entered at all; the court merely enters an order. 2 Goodrich-Amram 2d § 1035(c):l; 6 Standard Pennsylvania Practice § 32:56. The trial court is authorized only to make an order as to the non-controverted facts. This rule does not contemplate a summary judgment for a portion of a claim in a suit. The purpose of this subsection is “to convert the proceedings on the motion for summary judgment into a pretrial conference by simplifying the issues, determining which items are not in controversy, and avoiding unnecessary proof at trial.” Id. Clearly, Boyer-town was merely entitled to an order specifying the amount of his claim no longer in dispute and not a judgment.

Both parties and the trial court frequently referred to Fed.R.Civ.P. 56. Rule 1035 of the Pennsylvania rules adopted, for the most part, the language present in the Federal rule on summary judgment. Based on the identical language of Fed.R.Civ.P. 56(d) and Pa.R.Civ.P. 1035(c), the trial court turned to the federal courts for guidance in interpreting the Pennsylvania rule. Mangino v. Steel Contracting, 427 Pa. 533, 235 A.2d 151 (1967); Michigan Bank v. Steensen, 211 Pa.Super. 405, 236 A.2d 565 (1967).

While a review of federal cases interpreting subsection (d) of Rule 56 offers guidance for Pennsylvania courts charged with the task of interpreting subsection (c) of Rule 1035, such cases are not controlling. This is especially true in light of the fact that when Fed.R.Civ.P. 56 and Pa.R. Civ.P. 1035 are read in their entirety the identical nature of subsections (d) and (c) of the respective rules loses its importance. The Federal rule clearly contemplated situations when a partial summary judgment would be necessary or desirable. See Fed.R.Civ.P. 56(a) (a party seeking to recover upon a claim, counterclaim, or cross-claim ... may move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof) (emphasis provided); Fed.R.Civ.P. 56(b) (a party against whom a claim, counterclaim, or cross-claim is asserted ... may move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof) (emphasis provided). Those Federal cases which permit the entry of a partial summary judgment under subsection (d) of Rule 56 do so by construing this subsection in conjunction with subsections (a) and (b) of that rule. Associated Hardwood Supply Co. v. Big Wheel Distributing Co., 355 F.2d 114 (3d Cir.1965); Gadsden v. Fripp, 330 F.2d 545 (4th Cir.1964); Velsicol Corp. v. Hyman, 103 F.Supp. 363 (D.C.Colo.1952).

The Pennsylvania rule on summary judgments has no provisions which correspond to subsections (a) and (b) of Rule 56 of the Federal rules. It is patently obvious that by failing to adopt these subsections as it did subsection (d) of Rule 56, the drafters of the Pennsylvania rule effectively precluded the granting of a summary judgment for a portion of a claim.

Those Federal cases which do not permit the entry of a partial summary judgment under subsection (d) of Rule 56 do so in reliance on subsection (d) alone. Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946); Bethlehem Steel Corp. v. Tishman Realty and Construction, 72 F.R.D. 33 (S.D.N.Y.1976). Under these cases, “all that [Boyertown] was entitled to was an order (not a judgment) fixing the amount of his claim no longer in dispute, which, under proper procedure would have ripened into a judgment only upon the ultimate disposition of the whole of his claim. It follows that the [trial] court at that stage of the proceeding was without authority to enter a judgment.” Biggins, 154 F.2d at 216.

Applying a purely common sense approach, there appear to be very few reasons to refuse to allow a party in Boyertown’s situation to wait for the conclusion of a trial on the remaining issues to collect a sum of money that Osan has already agreed is owed by it to Boyertown. However, to allow Boyertown to collect on this debt immediately would only encourage piecemeal litigation. “The policy of law ‘abhors piecemeal determinations and the consequent protraction of litigation.’ ” Fried v. Fried, 509 Pa. 89, 97, 501 A.2d 211, 215 (1985) (quoted with approval in Metropolitan Life Insurance Co. v. Bodge, 352 Pa.Super. 191, 507 A.2d 837 (1986)). Osan has filed a counterclaim against Boyertown in which it seeks damages in excess of what it owes Boyertown. If Osan’s counterclaim is successful, it would be in a position to set-off the debt it owes Boyertown against that debt then owed by Boyertown to Osan. By allowing Boyertown to execute upon the “partial summary judgment” immediately, Osan’s right to set-off is effectively destroyed.

In addition, allowing a party who has successfully moved for a “partial summary judgment” to execute upon it immediately would discourage parties, such as Osan, from acquiescing to part of their opponent’s claim. The effect of an order entered pursuant to Rule 1035(c) is to simplify those issues which will proceed to trial. It is not intended to subject the losing party to a demand for immediate payment of the admitted debt. “Primarily, its purpose seems to be to salvage some results from the judicial effort involved in the denial of the motion for summary judgment.” Yale Transport Corp. v. Yellow Truck & Coach Mfg. Co., 3 F.R.D. 440, 441 (S.D.N.Y.1944) (applying Fed.R. Civ.P. 56(d)).

Under subsection (c) of Rule 1035, the trial court is empowered to enter an order specifying the facts that appear without substantial controversy including the extent to which the amount of damages or other relief is not in controversy. The order is in the nature of a pre-trial adjudication, not a final judgment. In the case sub judice, the fact that Osan owed Boyertown $10,669.69 for the undisputed oil deliveries made in the latter part of 1982 will be deemed established pursuant to Pa.R.Civ.P. 1035(c), and the trial shall be conducted accordingly. Boyertown is not entitled to a judgment for this amount until final disposition of the remaining issues of the claim and the entire counterclaim.

Accordingly, I dissent. I would reverse the order of the trial court permitting Boyertown to enforce the partial judgment it has recovered against Osan.

      . The author of the dissenting opinion concludes that Pa.R.C.P. 1035(c) prohibits the entry of partial summary judgment under any circumstances. To support this conclusion, the dissent relies upon interpretations of the federal counterpart to Rule 1035(c). Such reliance, however, is misplaced. Although Pa.R.C.P. 1035(c) is a verbatim duplication of Rule 56(d) of the Federal Rules of Civil Procedure, Federal Rule 56(d) is only one of several provisions within the Federal Rules which delineate the circumstances under which summary judgments may be entered. Other provisions specifically empower federal courts to enter partial, summary relief. See: Fed.R. Civ.P. 54(b) and 56(a). Recognizing that these provisions have endowed the federal judiciary with the power to enter partial summary relief, some federal courts have held that Rule 56(d) does not create an overlapping power. See, e.g., Coffman v. Federal Laboratories, Inc., 171 F.2d 94 (3d Cir.1948); Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946); Testa v. Janssen, 492 F.Supp. 198 (W.D.Pa.1980); Bonda’s Veevoederfabriek, Provimi, B.V. v. Provimi, Inc., 425 F.Supp. 1034 (E.D.Wis.1976). See also: 10A Wright, Miller and Kane, Federal Practice and Procedure, § 2737, at 457-458. Contra: Gadsden v. Fripp, 330 F.2d 545 (4th Cir.1964); Blackford v. Action Products Co., 92 F.R.D. 79 (W.D.Mo.1981); Velsicol Corp. v. Hyman, 103 F.Supp. 363 (D.Colo.1952). However, they have not held, as the dissent suggests, that Rule 56(d) prohibits the entry of partial summary judgment. Indeed, such an interpretation of Rule 56(d) would deprive the other rules which create such a power of any meaning whatsoever. Instead of being interpreted as restricting the federal judiciary’s power to enter partial relief, Rule 56(d) has been construed to complement that power. Where the entry of a final judgment on one of multiple claims or on part of a single claim is not appropriate, Rule 56(d) nevertheless allows the court to enter an order specifying those issues which will not be in dispute in a subsequent trial on the merits of the claim or claims. See: Metal Coating Corp. v. Baker Manufacturing Co., 227 F.Supp. 529, 530 (W.D.Wis.1964).
      The Pennsylvania rules operate in a similar manner. Rule 1035(c) neither proscribes nor specifically authorizes summary judgment for parts of claims admitted by a party to be due and owing. When read with other rules authorizing the entry of judgment, however, it is clear that a final judgment may be entered as to one or more, but fewer than all, claims asserted in the complaint.

      . Boyertown contends that Osan’s appeal is untimely because it was filed more than 30 days after the entry of the “partial summary judgment.” I disagree. Osan is appealing from the June 26th order in which the court permitted Boyertown to execute immediately upon the March 11th “partial summary judgment.” Osan filed this appeal on July 12th which was well within the 30-day requirement of Pa.R.A.P. Rule 902.

      . In its counterclaim, Osan claims it was damaged when Boyertown failed to deliver a sufficient amount of oil to Osan in January, 1982. As a result of these allegedly inadequate deliveries, Osan submits that it suffered damage to its oil burner and was forced to get a new burner and to close its plant for one day.


author: WIEAND, Judge:

text:
    514 A.2d 945
    COMMONWEALTH of Pennsylvania v. John David CREMINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 7, 1986.
    Filed Sept. 12, 1986.

      Stephen I. Baer, Phoenixville, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Com., appellee.
    Before WIEAND, TAMELIA and ROBERTS, JJ.
   WIEAND, Judge:

John David Cremins, on February 11, 1972, entered pleas of guilty to charges of indecent assault and assault and battery. The convictions were based upon an incident in which Cremins, then a member of the United States Army, had brushed his hand across the buttocks of two women at a shopping mall. He was sentenced to pay fines and costs, and these were paid. The convictions have never been reversed or vacated and are, for our purposes, valid convictions.

On November 11, 1985, Cremins filed a petition to expunge his earlier convictions. He alleged that he was a supervisor for emotionally disturbed boys, employed by a school in Massachusetts. He feared that a legislatively mandated background check would have an adverse impact on his continued employment. After a full hearing before the Honorable Horace A. Davenport, an order was entered denying expungement. Cremins appealed. We affirm.

Our decision is mandated by prior decisions of this Court in Commonwealth v. C.S., 351 Pa.Super. 467, 506 A.2d 443 (1986) and Commonwealth v. Magdon, 310 Pa.Super. 84, 456 A.2d 194 (1983). Contrary to appellant’s present argument, the effect of these decisions was not limited to the non-expungement of valid felony convictions. Moreover, these decisions do not require a balancing of equities between expungement and continued maintenance of records of valid convictions. This Court has held that one who has been validly convicted of crime, whose conviction has not been reversed or vacated, is not entitled to have the record of such conviction expunged regardless of his subsequent progress and rehabilitation. See also: Commonwealth v. Homison, 253 Pa.Super. 486, 385 A.2d 443 (1978).

Appellant’s convictions of indecent assault and assault and battery have never been reversed and are valid convictions which have become a permanent part of his record. The trial court correctly held that he was not entitled to have the convictions expunged.

Appellant’s argument that 18 Pa.C.S. § 9122(b)(1) violates principles of equal protection is unavailing. The statutory provision permits expungement of a criminal conviction where the offender has attained the age of seventy years and has been free from arrest or prosecution for at least ten years. Although appellant has remained free from arrest and/or prosecution for more than ten years, he is only thirty-six years of age. Therefore, he does not meet the statutory requirements for expungement.

[S]tate regulations bearing upon rights and classifications not ... denominated [as fundamental or suspect] are subject to a relatively relaxed standard of judicial scrutiny, and will pass muster if the purpose of the classification bears some rational relation to a legitimate state purpose. San Antonio School District v. Rodrigues, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).... The rational basis standard presumes ... legislative action to be valid. It reflects the court’s awareness that the drawing of lines which creates distinct classifications is peculiarly a legislative task and an unavoidable one. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562 [2567], 49 L.Ed.2d 520 (1976).

Benner v. Oswald, 592 F.2d 174, 181 (3d Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 62, 62 L.Ed.2d 41 (1979) (footnote omitted). See: Price v. Cohen, 715 F.2d 87, 94 (3d Cir. 1983), cert. denied, 465 U.S. 1032, 104 S.Ct. 1300, 79 L.Ed.2d 700 (1984); Pennsylvania Liquor Control Board v. Spa Athletic Club, 506 Pa. 364, 369, 485 A.2d 732, 734 (1984); Estate of Cox, 327 Pa.Super. 479, 486-488, 476 A.2d 367, 370-373 (1984). The United States Supreme Court has recognized that a legislature “must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the state to remedy every ill.” Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 798-799 (1982). Thus, “ ‘[w]e will not overturn ... a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.' Estate of Cox, supra, 327 Pa.Super. at 489, 476 A.2d at 373, quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171, 176 (1979) (emphasis added).

The Commonwealth has a legitimate and perhaps compelling interest in maintaining records of persons who have committed crimes within its boundaries. Cf. Commonwealth v. Malone, 244 Pa.Super. 62, 69, 366 A.2d 584, 588 (1976). Preservation of conviction records enables courts to identify repeat and habitual offenders so that appropriate sentences can be imposed. We conclude also that the state’s varying treatment of convicted persons who have reached the age of seventy years and those who have not is rationally related to its interest in maintaining criminal records.

If we begin with the premise that a state has a legitimate interest in maintaining records of criminal convictions, this interest in maintaining records of criminal convictions would be defeated in whole or in part if expungement were readily attainable. Section 9122(b)(1) permits expungement only for those offenders who have attained the age of seventy years and have demonstrated that they have been law abiding citizens for the preceding ten years. The legislature has determined that the members of this small group, as opposed to those who are members of a younger age group, are unlikely to commit additional offenses. With respect to such persons, therefore, expungement of prior convictions will not impair the state’s interest in maintaining records of convictions. This distinction is rational and reasonable. People who are seventy years of age or older and have not been arrested or prosecuted for a period of ten years are, as a group, much less likely to commit additional offenses than persons of less maturity and experience. While it may be that some persons under the age of seventy years are also unlikely to commit future crimes, this unlikelihood, the legislature could rationally conclude, is less certain than in the case of persons over the age of seventy. Therefore, it cannot be said that the legislative enactment was irrational. “ ‘A classification having some reasonable basis does not offend against [the equal protection] clause merely because it is not made with mathematical nicety or because in practice it results in some inequality.’ ” Price v. Cohen, supra at 94, quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911).

Moreover and in any event, even if we were to determine that the Pennsylvania statute was invalid on equal protection grounds, this would not permit us to rewrite the statute to include appellant. A holding that the statute was invalid, therefore, would not benefit appellant. He would still not be entitled to have the record of his criminal conviction expunged.

Order affirmed.

      . See: U.S. Const, amend. XTV; PA Const, art. I, § 26.


author:
OLSZEWSKI, Judge:
      BROSKY, Judge,

text:
    514 A.2d 947
    Noel ARMSTRONG, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN and Travelers Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1986.
    Filed Sept. 19, 1986.
    Theodore Hauptman, Philadelphia, for appellant.
    David M. McCormick, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, WIEAND, OLSZEWSKI, DEL SOLE, MONTEMURO, BECK and TAMILIA, JJ.

       CAVANAUGH, J., did not participate in the decision in this case.

   OLSZEWSKI, Judge:

This matter comes before this Court en banc on appeal from an order of the lower court granting appellees’ motion for judgment on the pleadings. Appellant asks us to decide whether an uninsured owner-operator may receive uninsured motorist benefits from an assigned claims plan insurer. In a companion case, we answered this question in the negative. We refer appellant to the case of Brown v. Travelers Insurance Company, 355 Pa.Super. 535, 513 A.2d 1051 (1986).

Order affirmed.

BROSKY, J., files dissenting opinion.

BROSKY, Judge,

dissenting:

I dissent for the reasons set forth in my Dissenting Opinion in Brown v. Travelers Insurance Company, 355 Pa.Super. 535, 513 A.2d 1051 (1986).