author: OPINION BY BECK, Judge : CAVANAUGH, Judge,

text:
    568 A.2d 201
    COMMONWEALTH of Pennsylvania v. Ronald WALKER, Appellant.
    Superior Court of Pennsylvania..
    Argued March 7, 1989.
    Filed Dec. 26, 1989.

      Michael E. Furey, Norristown, for appellant.
    Thomas E. Waters, Jr., Dist. Atty., Blue Bell, for Com., appellee (submitted).
    Before CAVANAUGH, BECK and CERCONE, JJ.
   OPINION BY BECK, Judge :

This case presents significant questions concerning the power of a judge to increase the severity of the punishment for a crime after the initial sentencing hearing.

The relevant facts are not in dispute. On August 11, 1985, Ronald Walker gained entry to the home of his estranged wife and held her hostage at gunpoint for five hours. Following a jury trial in the Court of Common Pleas of Montgomery County, Walker was convicted of possessing an instrument of crime, simple assault, recklessly endangering another person, unlawful restraint, and criminal trespass. 18 Pa.Cons.Stat.Ann. §§ 907(b), 2701(a)(1), 2705, 2902, 3503(a)(1) (Purdon 1983). Post-verdict motions were denied. On December 4, 1986, the trial court imposed the following sentences: one to five years imprisonment for unlawful restraint; one to five years imprisonment for possessing an instrument of crime; one to two years imprisonment for recklessly endangering another person; one to two years imprisonment for simple assault; and seven years probation for criminal trespass. The court specified that all sentences were to run consecutively so that the aggregate sentence included minimum and maximum terms of four to fourteen years incarceration as well as an additional term of seven years probation.

Walker initially filed a notice of appeal but the appeal was discontinued. Walker then filed a pro se petition under the Post Conviction Hearing Act (PCHA). New counsel was appointed and a supplementary petition was filed. Among the issues presented was a claim that Walker’s conviction for simple assault merged with his conviction for recklessly endangering another person.

On July 11, 1988, Walker appeared at a PCHA hearing before the same judge who had presided at trial and at his original sentencing hearing. The judge agreed that he had committed an error of law by imposing separate sentences for recklessly endangering another person and simple assault, so he vacated judgment of sentence on all counts. The judge reimposed identical sentences for unlawful restraint, possessing an instrument of crime, and recklessly endangering another person. However, he replaced the one to two year sentence of imprisonment for simple assault and the probationary sentence for criminal trespass with a one to seven year sentence of imprisonment for criminal trespass. Thus, Walker’s total period of potential incarceration increased from four to fourteen years to four to nineteen years. Walker filed a motion to modify the new sentence that was denied. He then filed a timely notice of appeal with this court.

Appellant challenges the legality of his new sentence under the due process and double jeopardy clauses of the federal constitution. These claims merit serious eonsideration. One can imagine Walker’s surprise and confusion at the PCHA hearing. He was first told that his petition for relief had been granted as to his sentencing claim. He was then notified that as a result of filing a meritorious PCHA petition, he would now be subject to an additional five years imprisonment. We conclude, nonetheless, that under the unusual facts of this case, the PCHA court did not exceed the limits of its authority by increasing appellant’s maximum prison term. Accordingly, we affirm the enhanced sentence.

I.

Appellant contends that the PCHA court violated the due process protection against enhanced sentences first recognized by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Pearce Court held that once a defendant has been sentenced, his sentence may be increased only if the longer sentence was not motivated by judicial vindictiveness. The Court further emphasized that “since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id., 395 U.S. at 725, 89 S.Ct. at 2080 (footnote omitted). In Pearce, the defendants successfully appealed their judgments of sentence and were reconvicted and given increased sentences following a new trial. The Court viewed these increases as unconstitutional penalties that had been imposed upon the defendants for exercising their right to judicial review.

The instant case arises in an unusual procedural posture. We deal here with a defendant who did not pursue an appeal from his original judgment of sentence but instead received a new sentencing hearing after filing a PCHA petition. Pearce, however, is not limited to situations involving resentencing after a second trial. See Commonwealth v. Greer, 382 Pa.Super. 127, 141 n. 7, 554 A.2d 980, 987 n. 7 (1989) (Pearce applies to harsher sentence imposed by trial court after trial court granted post-trial request for resentencing); Commonwealth v. Maly, 384 Pa.Super. 369, 558 A.2d 877 (1989) (Pearce applies to harsher sentence imposed by trial court after appellate court vacated original sentence and remanded for resentencing). Pearce stands for the general proposition that defendants may not be coerced into foregoing constitutional, statutory, or procedural rights by instilling fear that a harsher penalty may be imposed in retaliation for pursuing those rights. Commonwealth v. Rocco, 375 Pa.Super. 330, 336, 544 A.2d 496, 499 (1988). Due process can no more tolerate the prospect of a defendant being punished for seeking a reduction in his sentence on collateral review than the prospect of a defendant being punished for seeking a new trial on direct appeal.

We must therefore consider whether appellant’s new sentence may have been tainted by judicial vindictiveness. In some cases, the fact that a sentencing authority punished the defendant for an impermissible reason will be apparent from the record. However, in most cases, it is exceedingly difficult to establish that a judge has retaliated against a defendant for exercising legal rights. See Pearce, 395 U.S. at 725 n. 20, 89 S.Ct. at 2080 n. 20. The Pearce Court addressed this problem by establishing, subject to certain exceptions, a presumption that an increase in sentence is the product of an improper motive on the part of the sentencing authority. We must examine whether this presumption of judicial vindictiveness applies to the instant case, and if it does, whether the trial court rebutted the presumption.

Whether a presumption of vindictiveness arises depends upon the factual context in which resentencing has taken place. The presumption does not apply in the absence of a reasonable likelihood that the increase in sentence was the product of actual vindictiveness on the part of the sentencing authority. Alabama v. Smith, — U.S.-,-, 109 S.Ct. 2201, 2206, 104 L.Ed.2d 865, 874 (1989); see Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 978, 89 L.Ed.2d 104 (1986) (collecting cases). Texas v. McCullough, provides an example of a situation in which the presumption of vindictiveness is not appropriate. McCullough was convicted of murder following a jury trial in Texas District Court at which Judge Naomi Harney presided. Under Texas law, McCullough had the option of having his sentence determined by either the trial jury or the trial judge. McCullough elected to be sentenced by the jury; the jury imposed a twenty year sentence of imprisonment. McCullough then filed a post-trial motion requesting a new trial on the basis of prosecutorial misconduct. Judge Harney granted the motion, and McCullough was retried and reconvicted. This time, McCullough opted to be sentenced by Judge Harney instead of by the jury. Judge Harney, relying in part on new evidence disclosed at the second trial, imposed a sentence of fifty years imprisonment. On appeal to the United States Supreme Court, a majority of the justices found that “[t]he facts of this case provide no basis for a presumption of vindictiveness.” Id. at 138, 106 S.Ct. at 979.

The McCullough Court relied on three factors in finding that the Pearce presumption was not implicated. First, the enhanced sentence was imposed by a judge, while the original sentence was imposed by a jury. Second, the same judge who imposed the enhanced sentence had previously granted the defendant a new trial. Third, the defendant had the option of being resentenced by a jury and instead chose to be resentenced by a judge.

The instant case is readily distinguishable from McCullough. The trial judge who enhanced appellant’s sentence was the same judge who had imposed the original sentence. This trial judge did not grant appellant’s request for a new trial; the only “relief” that the judge provided was to replace a defective sentence of four to fourteen years incarceration plus seven years probation with a harsher sentence of four to nineteen years incarceration. Furthermore, appellant did not have the option of selecting someone other than the original trial judge to hear his PCHA claims.

Appellant filed a petition alleging that the trial judge had committed an error of law when he imposed the original sentence. The trial judge responded by increasing the maximum prison term of the aggregate sentence by five years. Under these circumstances, there is a genuine danger that the judge’s conduct may have been influenced by vindictiveness toward the defendant. Moreover, the trial judge’s action in this case may deter other defendants from challenging their sentences. One should not underestimate the chilling effect on a defendant’s right to seek judicial review produced by a trial court’s decision to cure a defect in a sentence by increasing its severity. We therefore conclude that where, as here, a court responds to a defendant’s motion to vacate a sentence by increasing the severity of the aggregate sentence, the use of the Pearce presumption is clearly warranted.

The remaining question, is whether the trial court successfully rebutted the presumption of vindictiveness. The Pearce Court held that the presumption was controlling unless the new sentence was based upon “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 395 U.S. at 726, 89 S.Ct. at 2081. In McCullough, the Court modified this rule and held that the presumption could also be overcome by other forms of “objective information ... justifying the increased sentence” 475 U.S. at 142, 106 S.Ct. at 981, such as facts concerning the defendant’s criminal record that were not known at the time of the initial sentencing proceeding. The current focus is on whether the judge’s statements demonstrate that the increase in punishment was prompted by legitimate sentencing concerns.

In the instant case, the trial judge stated on the record at the resentencing hearing that his sole objective was to achieve the same purpose as his original sentence. Upon resentencing, a court has a valid interest in preserving the integrity of a prior sentencing scheme. See Commonwealth v. Greer, 382 Pa.Super. 127, 143, 554 A.2d 980, 988 (1989). A judge need not ignore the fact that one count of the original sentence must be vacated when fixing an appropriate punishment for the remaining counts. See Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987) (remanding for resentencing in accordance with original sentencing scheme after sentences on several counts invalidated). Yet, in most circumstances, a judge can duplicate the effect of the original sentencing plan by adjusting the sentences on various counts so that the aggregate punishment remains the same. When a court increases the aggregate of the sentences on all counts, it is appropriate to require a showing that the absolute increase was necessary in order to achieve the same rehabilitative or deterrent effect as the original sentence. If a judge could have imposed the same aggregate sentence he handed down at the original sentencing hearing, and the judge instead imposes a harsher aggregate sentence, the presumption of vindictiveness could not be rebutted by invoking the need to preserve the original sentencing plan.

In the case sub judice, however, the trial judge’s options were limited. As noted above, the court originally sentenced appellant to consecutive terms of one to five years for unlawful restraint, one to five years for possessing an instrument of crime, one to two years for recklessly endangering another person, one to two years for simple assault, and seven years probation for criminal trespass. The aggregate sentence was four to fourteen years imprisonment plus seven years probation. This sentence reflected the serious nature of appellant’s acts of violence. For each crime, the court had imposed a maximum term of the greatest length permitted by the law. The court mitigated its punishment only insofar as appellant was given a probationary sentence, rather than a sentence of imprisonment, on the criminal trespass count.

Given this scenario, once the one to two years sentence for simple assault was invalidated, the court could not rearrange the remaining sentences so as to reproduce an aggregate sentence of four to fourteen years imprisonment plus seven years probation. The judge could not add one to two years onto any of the remaining sentences without exceeding the statutory limit. In order to compensate for vacating the prison term for simple assault, he had to convert the probationary sentence for criminal trespass into a prison sentence. Moreover, if he had replaced the one to seven year probationary sentence with a one to two year sentence of imprisonment, the appellant’s aggregate sentence would have amounted to only four to fourteen years imprisonment instead of four to fourteen years imprisonment plus seven years consecutive probation. Rather than impose a more lenient sentence, the judge chose to impose a more severe sentence. Thus, he replaced the seven year probationary sentence with a one to seven year sentence of imprisonment.

The trial court concluded that a certain minimum level of punishment was essential in order for the penalty for appellant’s crimes to have its intended deterrent and rehabilitative effect. Consistent with this view, the court could not impose a less severe punishment than the aggregate sentence appellant had received at the original sentencing hearing. Furthermore, it was not possible for the court to impose the same aggregate sentence appellant had received at the original sentencing hearing. Under these unique circumstances, an increased aggregate sentence was necessary to preserve the original sentencing scheme. We therefore find that appellant’s enhanced sentence was not motivated by judicial vindictiveness, and that appellant is not entitled to relief under Pearce.

II.

Appellant also argues that the trial court violated the double jeopardy clause of the fifth amendment. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

It is well established that the double jeopardy clause does not bar an increase in the length of a sentence under all circumstances. In the seminal case of United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the United States Supreme Court upheld the constitutionality of a federal statute that authorized an increase in the defendant’s sentence following an appeal by the prosecution. In doing so, the Court specifically noted, “[although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where ... Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.” Id. at 139, 101 S.Ct. at 438. Following DiFrancesco, several federal courts have held that the double jeopardy clause prohibits an increase in punishment where the defendant does have a “legitimate expectation of finality” at the time of the original sentencing hearing. United States v. Fogel, 829 F.2d 77, 89 n. 10 (D.C.Cir.1987) (collecting cases); see Jones v. Thomas, — U.S.-,-, 109 S.Ct. 2522, 2531-33, 105 L.Ed.2d 322, 338-40 (1989) (Scalia, J., dissenting). Other courts have found that a defendant’s interest in the finality of a sentence is protected by the due process clause of the fourteenth amendment rather than by the double jeopardy clause. See United States v. Lundien, 769 F.2d 981 (4th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986).

For present purposes, there is no need to determine the precise source and extent of the constitutional protection against disturbing the finality of a sentence. It is sufficient to note that under the facts of this case, the increase in sentence could not have offended a legitimate expectation of finality on the appellant’s part. Appellant intentionally upset the finality of the original sentencing plan by challenging the legality of his term of imprisonment for simple assault. By filing a petition for collateral relief, appellant assumed the risk that his sentencing on the various counts would be adjusted insofar as was necessary to preserve the integrity of the original sentencing scheme. As noted above, the trial judge could not have preserved the integrity of the original sentencing scheme except by increasing the total aggregate sentence. Thus, the increase in the severity of the overall sentence in this case did not violate the double jeopardy clause or due process.

This reasoning is supported by the decision of the Sixth Circuit Court of Appeals in Gauntlett v. Kelley, 849 F.2d 213 (6th Cir.1988). In Gauntlett, a convicted sex offender was sentenced to a term of probation on condition that he take a drug that decreases sexual desire. The judge expressly noted at sentencing that if drug treatments were not available, he would have sentenced the defendant to a term of imprisonment. The defendant challenged the legality of the drug treatment condition, and his probationary sentence was vacated. On remand, the trial court then resentenced the defendant to a term of imprisonment. On appeal from the prison sentence, the circuit court held that the resentencing was constitutional since it did not transgress the defendant’s legitimate expectation of finality. Gauntlett indicates that once a defendant succeeds in invalidating his original sentence, he cannot object to an increase in sentence, at least where the increase was imposed in order to effectuate the intent of the judge at the original sentencing hearing and was necessary to achieve that purpose. Such is the case in the instant proceeding, and therefore appellant’s double jeopardy claim must fail.

III.

Appellant also raises a number of other issues on appeal. We have little difficulty in concluding that these additional claims are without merit.

Appellant contends that the punishment he received for his crimes was harsh and excessive. This challenge implicates a discretionary aspect of sentence rather than a question of sentence legality. The right to appeal from a discretionary aspect of sentence is not absolute. An 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 inappropriate under the Sentencing Code. 42 Pa.Cons.Stat.Ann. § 9781(b) (Purdon 1982). See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In arguing that his sentence is excessive, appellant alleges that he is a first time offender who has been a socially upstanding and contributing member of society, and that he is the father of three children. We decline to substitute our judgment for that of the trial court regarding the weight that should be assigned to these mitigating factors when balanced against the serious nature of appellant’s crimes. See Commonwealth v. Williams, 386 Pa.Super. 322, 327, 562 A.2d 1385, 1388 (1989) (en banc); Commonwealth v. Billet, 370 Pa.Super. 125, 131, 535 A.2d 1182, 1185 (1988).

Appellant raises several challenges to the decisions of the trial judge at trial and during pre-trial proceedings. He claims that the trial court erred by: 1) conducting certain pre-trial hearings during the defendant’s absence; 2) failing to sustain defense objections to testimony by the victim; 3) denying a motion for a sidebar conference; 4) denying a motion for mistrial following the admission into evidence of testimony by the victim; 5) denying a motion for dismissal of charges under the doctrine of collateral estoppel; and 6) refusing to grant relief on the grounds that the verdict was against the evidence and against the weight of the evidence on the criminal trespass charge. As to these issues, we affirm on the basis of the trial court opinion.

Finally, appellant maintains that his trial counsel provided ineffective assistance. He argues that counsel was ineffective for failing to make a motion for mistrial in a timely manner after statements by the victim were introduced into evidence. Since there were no grounds for declaring a mistrial, this claim is without arguable merit. Appellant also alleges that trial counsel was ineffective for all of the reasons stated in his PCHA petition. The argument section of appellant’s brief relating to this allegation consists of one sentence. Appellant offers no clue as to the contents of his PCHA petition, nor has he attached the PCHA petition to his brief. Appellant’s brief wholly fails to raise and develop the ineffectiveness claims stated in his PCHA petition. Accordingly, we decline to reach the merits of these claims. See Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

Judgment of sentence is affirmed.

CAVANAUGH, J., files dissenting opinion.

CAVANAUGH, Judge,

dissenting.

I respectfully dissent because the majority opinion permits the court below to increase the total sentence of imprisonment imposed in circumstances that are legally impermissible. The appellant was originally sentenced to an aggregate term of four to fourteen years imprisonment for various offenses, and seven years probation for criminal trespass.

Following a Post Conviction Hearing Act petition, the court determined that it had erred in sentencing the defendant to one to two years imprisonment for simple assault and vacated the sentence for that offense. It then replaced the sentence of probation for criminal trespass with a sentence of one to seven years imprisonment. Consequent ly, the new sentence was for a term of imprisonment of four to nineteen years.

The court below and the majority opinion justify the increase in the sentence on the basis that the trial court intended to carry out its original sentencing scheme after it properly realized that it erred in imposing a separate sentence for simple assault and recklessly endangering another person. We fail to see how an increase in a sentence of imprisonment from four to fourteen years, and seven years probation, to a sentence of imprisonment to four to nineteen years, with no sentence of probation, sets forth the same sentencing scheme. No matter how one attempts to characterize the amended sentence of incarceration, it was substantially increased. Even if the appellant were to be considered for parole prior to serving the maximum sentence, the adverse results of the increased sentence to imprisonment are manifest. Parole is a matter of grace and not of right, and is within the discretion of the court. Commonwealth v. Gooslin, 280 Pa.Super. 384, 421 A.2d 775 (1980). The implications of parole violation are far more severe than violation of probation. A defendant who violates his parole may be recommitted to serve the remainder of his sentence. 61 Pa.C.S. § 331.21 and § 331.22a. Parole is the legal equivalent of imprisonment, Commonwealth v. Thomas, 291 Pa.Super. 263, 435 A.2d 901 (1981), whereas probation is a suspended sentence of imprisonment. Fleagle v. Commonwealth Pennsylvania Board of Probation and Parole, 110 Pa.Cmwlth. 227, 532 A.2d 898 (1987).

In my opinion, the increase in sentence violates the appellant’s rights to due process of law. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) established the principle that due process requires that vindictiveness against a defendant must play no part in resentencing. In order to assure that there is no vindictiveness in increasing a sentence, the trial judge must affirmatively state justifiable reasons for doing so, otherwise, there is a presumption that the sentence was increased for vindictive purposes. Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). The recent case of Alabama v. Smith, — U.S.-, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) held that where there is no likelihood of vindictiveness, the burden is on the defendant to prove actual vindictiveness. In that case, the defendant was granted a new trial after he succeeded in withdrawing his guilty plea. His sentence after a jury trial was greater than it would have been under the guilty plea, but the trial judge who was the same judge who had accepted the guilty plea, had a fuller appreciation of the nature and extent of the crime involved following the jury trial.

In the case before us, the defendant did not receive a new trial and no additional facts were brought to the court’s attention. All the defendant did was properly complain that the trial judge erred in imposing separate sentences for assault and recklessly endangering another person. The court agreed and then increased the sentence for criminal trespass from seven years probation to one to seven years imprisonment.

The majority cites Commonwealth v. Greer, 382 Pa.Super. 127, 554 A.2d 980 (1989) to sustain the proposition that in resentencing, a court has a valid interest in preserving the integrity of a prior sentencing scheme. In Greer, supra, the defendant was sentenced by two different judges for factually similar but unrelated offenses. Judge Erb vacated his sentence and then resentenced the defendant for a term of imprisonment to run consecutively to that imposed by Judge Cassimatis. We stated at 382 Pa.Super. 141, 554 A.2d 980:

However, it is abundantly clear from the record that the trial court, in effect, did not impose a harsher sentence. At the time of the original sentencing, it was the intention of the sentencing judges to have the sentences at 1009 C.A.1979 and 1060 C.A.1979 run consecutively. Instantly, Judge Erb’s decision to have the present sentences run consecutively to those imposed by Judge Cassimatis merely gives effect to the original sentencing scheme. Simply put, the appellant will first serve the sentences imposed by Judge Cassimatis at 1060 C.A.1979 and then will serve the sentences imposed by Judge Erb, rather than vice versa as originally intended. (Emphasis added.)

In the case before us, the sentence to imprisonment was substantially increased and did not merely carry out the original sentencing scheme. For these reasons, I dissent and would remand for resentencing.

      The majority opinion was reassigned to this writer in August, 1989.

      . 42 Pa.Cons.Stat.Ann. §§ 9541-9551 (Purdon 1982). The Post Conviction Hearing Act was modified in part, repealed in part, and renamed the Post Conviction Relief Act by Act of April 13, 1988, No 47, §§ 3-4, 1988 Pa.Legis.Srv. 227, 229-232. See 42 Pa.Cons.Stat.Ann. §§ 9541-9546 (Purdon Supp.1986). Appellant’s petition for relief was filed before the effective date of the new act and is governed by the prior law.

      . A claim that a court increased the punishment for a crime in violation of the due process clause as interpreted in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), is regarded as an attack on the legality of sentence. Commonwealth v. Maly, 384 Pa.Super. 369, 558 A.2d 877 (1989); Commonwealth v. Mikesell, 371 Pa.Super. 209, 537 A.2d 1372 (1988). Double jeopardy claims also implicate the legality of sentence. Commonwealth v. Hartz, 367 Pa.Super. 267, 275, 532 A.2d 1139, 1145 (1987) (en banc) (Cirillo, P.J., concurring). Challenges to the legality of a sentence may be appealed as of right and cannot be waived. Commonwealth v. Smicklo, 375 Pa.Super. 448, 455, 544 A.2d 1005, 1008 (1988) (en banc).

      . The United States Supreme Court’s recent decision in Alabama v. Smith, — U.S.-, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), is not to the contrary. In Smith, the defendant initially pleaded guilty and was sentenced to thirty years imprisonment for rape. He withdrew his guilty plea, and following a jury trial, he was convicted and sentenced to one hundred and fifty years imprisonment for rape. On appeal, the United States Supreme Court rejected the defendant’s Pearce claim, and held that the presumption of vindictiveness does not apply when a greater penalty is imposed after trial than was imposed after a prior guilty plea. The Court noted that:
      Even when the same judge imposes both sentences, the relevant sentencing information available to the judge sifter the plea will usually be considerably less than that available after a trial____
      As this case demonstrates, in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. Finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present.

        Alabama v. Smith, — U.S.-, 109 S.Ct. 2201, 104 L.Ed.2d at 874 (citations omitted).
      This reasoning would not support a refusal to apply the Pearce presumption where the judge who had presided at trial and had imposed the original judgment of sentence responded to the defendant’s challenge to that sentence by increasing its severity. In such a case, it is not likely that upon resentencing the judge would be aware of significant information concerning the defendant’s character or his crime that was not available at the time of the original sentencing hearing. Nor is it likely that the basis for imposing a lenient sentence at the time of the original sentencing hearing would have been substantially undermined.

      . In Greer, the defendant was initially sentenced in August, 1980 by Judge Erb of the York County Court of Common Pleas to fifteen to thirty years imprisonment for rape and robbery. In September, 1980, Judge Erb vacated this sentence and scheduled a new sentencing hearing. The following month, Judge Cassimatis of the York County Court of Common Pleas sentenced appellant to fifteen to thirty years imprisonment on unrelated charges. Judge Cassimatis, who was apparently unaware that the prior sentence had been vacated, specified that the new sentence should run consecutively with the sentence imposed by Judge Erb. In March 1988, Judge Erb reimposed his original sentence for rape and robbery and specified that this sentence should run consecutively to the sentence imposed by Judge Cassimatis. On appeal, the defendant claimed that Judge Erb had violated
        Pearce by increasing the severity of his sentence for rape and robbery. This court found that Judge Erb was in no way motivated by vindictiveness. We concluded that Judge Erb had acted properly by adjusting his sentence in order to effectuate the sentencing scheme that he and Judge Cassimatis had originally intended.

      . We are aware that a number of Pennsylvania appellate decisions have permitted a trial judge to modify judgment of sentence over the defendant’s objection following the initial sentencing hearing. For example, in Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), the defendant received a two to five year sentence of imprisonment for multiple acts of theft and a concurrent five year probationary sentence for multiple acts of forgery. After the defendant’s theft convictions were vacated on appeal, the Commonwealth requested a remand for resentencing on the forgery counts. The Pennsylvania Supreme Court granted the remand request so that the trial court would have an opportunity to replace the original probationary sentence for forgery with a two to five year sentence of imprisonment for forgery. The Court emphasized that imposing a two to five year jail term for forgery would not constitute an increase in sentence since the defendant’s original aggregate sentence had included a two to five year jail term. Id., 512 Pa. at 594, 517 A.2d at 1284. The Goldhammer Court did not decide under what circumstances an aggregate increase in sentence is permissible. See also Commonwealth v. Grispino, 361 Pa.Super. 107, 521 A.2d 950 (1987) (finding no double jeopardy violation where aggregate sentence upon resentencing did not exceed original aggregate sentence); Commonwealth v. Adams, 350 Pa.Super. 506, 513, 504 A.2d 1264, 1268 (1986) (en banc) (same); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983) (same).
      On occasion, Pennsylvania courts have also rejected double jeopardy challenges in cases where the trial court actually increased the defendant’s aggregate sentence at a resentencing hearing. Under the circumstances of these cases, a defendant could not have entertained a legitimate expectation of finality in his original sentence. See Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989) (original sentence prohibited by Sentencing Code and promptly corrected by trial judge); Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986) (original sentence amended in response to appeal by Commonwealth; statute authorized Commonwealth sentencing appeals); Commonwealth v. Mysnyk, 364 Pa.Super. 262, 527 A.2d 1055 (1987) (original probationary and parole sentences contingent upon defendant observing conditions of probation and parole; defendant violated conditions of probation and parole); Commonwealth v. Gonzales, 350 Pa.Super. 373, 504 A.2d 886 (1986) (original sentence prohibited by Mandatory Minimum Sentencing Act and promptly corrected by trial court); Commonwealth v. Rainey, 338 Pa.Super. 560, 488 A.2d 34 (1985) (original sentence amended in response to Commonwealth’s motion to modify sentence; rule of criminal procedure authorized filing by Commonwealth of sentence modification motions); Commonwealth v. Bossche, 324 Pa.Super. 1, 471 A.2d 93 (1984) (original sentence resulted from fraud by defendant who misrepresented prior record to sentencing court).

      . Under Pennsylvania Rule of Appellate Procedure 2119(f), the appellant should set forth in his brief a concise statement of the reasons relied upon for allowance of the appeal with respect to the discretionary aspects of sentence immediately before his arguments on the merits of the discretionary sentencing issue. Although appellant has failed to comply with Rule 2119(f), we shall overlook this defect in light of the Commonwealth's failure to object. See Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    568 A.2d 210
    In the Interest of TINA K., a Minor. Appeal of MONTGOMERY COUNTY OFFICE OF CHILDREN AND YOUTH.
    Superior Court of Pennsylvania.
    Argued April 6, 1989.
    Filed Dec. 27, 1989.
    Stephen P. Imms, Jr., Ambler, for appellant.
    Wendy G. Rothstein, Lansdale, for participating party.

      Before BROSKY, McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

This is an appeal by the Montgomery County Office of Children and Youth Services (hereinafter “CYS”), from an order, which classified as dependent Tina K., a ten year old minor. Tina had been in the legal and physical custody of CYS as a result of voluntary placement with CYS by her parents in 1985. CYS asserts that the trial court erred (1) when it reversed its prior order of November 24, 1986, which classified the child as abused, and (2) reinstated her classification as dependent. We affirm.

The trial judge has aptly summarized the underlying factual history:

On November 25,1985, legal and physical custody of Tina K., [then] eight and one-half years of age, was voluntarily transferred for a period of thirty days by her parents to the Office of Children and Youth Services of Montgomery County. The agency immediately obtained residential placement for the child at Silver Springs-Martin Luther School (hereinafter referred to as “Silver Springs”). Just prior to the conclusion of the permitted period of placement, [CYS] filed a Dependency Petition with the Juvenile Court alleging Tina K. was an ungovernable child because her parents were “unsuccessful at controlling (her) wild and hyper behavior.”
Richard Blasetti, Esquire, having been appointed guardian ad litem, a hearing was held on December 18, 1985, before Juvenile Court Master Kent Albright, Esquire, and the resulting Master’s Report filed January 3, 1986. Findings of Fact and Recommendations contained in this report affirmed both the child’s ungovernability and her need for continued residential placement at Silver Springs. Exceptions were not filed and the Master’s Recommendations became the Order of the Court [of January 9, 1986, and the child was thereby adjudicated dependent.]
On May 20, 1986, pursuant to 55 Pa.Code Sec. 3130.71, a Placement Review was conducted by Master Albright and his Findings of Fact and Recommendations affirmed by the Honorable William Nicholas on July 18, 1986. The child's continued placement was necessitated by an unaddressed alcohol dependency problem experienced by Mrs. K., parental inability to provide an emotionally secure environment, and the child’s own need for the therapy and structure offered by Silver Springs. At no time were allegations of sexual abuse, or inappropriate sexual conduct by the child mentioned.
From November 25, 1985, until August of 1986, the physical custody of Tina K. was within the exclusive control of Silver Springs. Her parents enjoyed telephone contacts and approximately twelve home visits with their daughter during this period. On August 20, 1986, nine months after the child had been committed to Silver Springs, [CYS] informed the Court that Tina K. had been exhibiting inappropriate sexual conduct during the previous months of April and May. At a subsequent meeting with a [clinical social worker], Tina K. explained her conduct by accusing her father (Jack K.) of sexually assaulting her. As a result of the child’s statements [CYS] requested the Court terminate all telephone contacts between the child and her parents and limit parental visitation to one hour every two weeks and then only under strict supervision by [CYS]. This request was granted, however, no Petition alleging sexual abuse was immediately forthcoming thereafter, as the Court had expected.
On November 24,1986, approximately three months later, at a hearing originally scheduled as a Placement Review, [CYS] filed in open court a Juvenile Petition accusing Jack K. of sexually abusing his daughter and requesting her adjudication as a dependent/abused child. Jack K., having been given notice of the agency’s intention, agreed that an adjudication hearing could be conducted on this date. Accordingly, the hearing was held.
At the hearing, Sharon Fyffe, Christina Walton, and Judy Nissen all social workers supervising Tina K. at Silver Springs, and Ralph Battinieri, a [clinical social worker] specializing in child abuse, retained by [CYS], testified. All spoke of conversations with Tina K. in which she stated that her father had sexually assaulted her. Tina K. never testified herself, nor was any explanation offered by [CYS] to explain the reasons for her absence from the courtroom. Counsel for Jack K. objected to this testimony as hearsay and also raised the question of the child’s “unavailability” and the constitutionality of the statute.
The hearsay statements of Tina K. given to the aforementioned persons constituted the sole evidence against the father who emphatically denied the allegations. Moreover, Mrs. K., who according to [CYS’s] own affidavit, disbelieved her daughter, was not present because of her death the previous month.

The court determined at the conclusion of the hearing of November 24, 1986, that the child “is a dependent abused child”. The record reflects the following chronology of events subsequent to this ruling that the child was dependent/abused:

1. December 22,1986 — Appellee filed a Notice of Appeal from the Order of November 24, 1986.
2. March 25, 1987 — The appeal was withdrawn and discontinued as a result of a stipulation of the parties.
8. June 18, 1987 — The court, after argument, reversed its order of November 24, 1986, which classified the child as dependent/abused and reinstated the previous classification, namely, that she was a dependent/ungovernable child.

The trial court recounted in its order of June 18,1987, the basis for its decision to classify the child as dependent/ungovernable, and not as abused:

The Court’s decision is based on a finding that the due process rights of Jack K. were violated in that as a result of the Office of Children and Youth’s failure to make a showing of Tina K.’s “unavailability” to testify at the time of trial, Jack K. was denied the opportunity to confront his accuser and the opportunity to cross-examine through his counsel.

The issue presented by this appeal arises from the child victim exception to the hearsay rule created by the Act of 1986, February 21, P.L. 41, No. 14, Section 1:

§ 5986. Hearsay
A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child’s family, if a court finds that the time, content and circumstances of this statement provide sufficient indicia of reliability.

42 Pa.C.S. § 5986.

Appellant asserts that the court erred when it imposed upon CYS the further condition precedent of demonstrating the “unavailability” of the assertedly abused child since the statute prescribes but one prerequisite to the admissibility of such testimony, namely, “sufficient indicia of reliability”. Since, appellant argues, the trial court declared that “sufficient indicia of reliability” attended the hearsay testimony of the social workers presented by CYS, the trial court erred when it refused to classify the child as dependent/abused, and instead persisted in the classification of dependent/ungovernable.

Our study of the challenge presented by appellant proceeds from this factual posture:

The testimony of four of the witnesses presented by CYS contained statements by the child describing sexual abuse.
Those statements would not be “otherwise admissible by a statute or court ruling” because, the statements, as out of court declarations, are hearsay.
The court concluded that there existed “sufficient indicia of reliability” as to make the statements admissible hearsay under Section 5986.

The issue is, therefore, clear and narrow: Must, under 42 Pa.C.S. § 5986, the presentation into evidence of the out-of-court statements of a child be preceded by evidence — and a finding — that the child is “unavailable” because the appearance of the child as a witness would adversely traumatize the child?

We agree with the decision of the distinguished Judge Paul W. Tressler (1) that if a child is “unable to testify because of trauma”, she is “unavailable”, (2) that such “unavailability” is to be the subject of judicial determination, and (3) that, absent a demonstration by CYS of that unavailability, the statements of the child were inadmissible.

The trial court viewed the question we consider as:

The issue in the instant matter is not whether the due process rights of parents accused of sexual abuse should be ignored or lessened when a child is so traumatized by the courtroom that she is incapable of giving testimony. Rather the issue is whether a parent’s due process rights can be totally ignored in a dependency proceeding when the child is not traumatized and is capable of testifying,

and decided:

In conclusion, fundamental fairness requires that a parent accused of sexually abusing his child be given an opportunity to confront and cross-examine that child in dependency proceedings. These rights, however, will be limited to permit a child’s hearsay statements into evidence under two circumstances. First, if the child testifies at the hearing and is subject to cross-examination, a prior hearsay statement may come in as both corroborative and/or substantive evidence. On the other hand, if a child does not testify at the hearing, the hearsay statement may still be introduced, but only if the Court finds that the reason the child failed to testify was because he or she was “unavailable”.

The care and protection of the children of our Commonwealth is, of course, a sacred trust. A similar hallowed duty is to preserve the protections of the Bill of Rights. We are here called upon to weigh the precious balance between these commandments.

The legislature, at the outset of the Act which afforded to children the protection we here study, proclaimed:

§ 5981. Declaration of policy
In order to promote the best interests of the children of this Commonwealth and in recognition of the necessity of affording to children who are material witnesses to or victims of crimes additional consideration and different treatment from that of adults, the General Assembly declares its intent, in this subchapter, to provide these children with additional rights and protections during their involvement with the criminal justice system. The General Assembly urges the news media to use restraint in revealing the identity or address of children who are victims of or witnesses to crimes.

42 Pa.C.S. § 5981.

The legislators of Pennsylvania, our ever esteemed partners in government, have always been most sensitive when weighing human laws and constitutional protections. Surely then, the legislature intended that the protection of the human rights of children should require only such sacrifice of the constitutional right of confrontation as is necessary. The tension between the rights of two individuals in an adversarial status need effect an intrusion of one right upon the other only in that extraordinary situation when every means of easing the tension by adjustment of those competing rights has been employed but is unsuccessful. Here the adjustment of the competing rights to ease the tension between them — as well as the goal of the legislature to intrude upon the constitutional right of confrontation for only so much as is necessary to protect the child— can be achieved if we were to impose a restrictive interpretation of the statutory exceptions upon the hearsay rule enacted by Section 5986. Therefore, we hold:

That this child victim exception to the hearsay rule may only be invoked when the trial court determines that the actual appearance of the child as a witness would cause such trauma as would harm the child.
That, upon a finding by the court that protection of the child requires application of this hearsay exception, the statements of the child are admissible as substantive evidence.
That, following the presentation of testimony from the child as a witness, the statements of the child are admissible as substantive evidence and/or corroborative evidence.

Order affirmed.

      . The exact provisions of the order from which this appeal has been taken state, inter alia:

        "... the decision of the Court entered the [24th] day of November, 1986 finding Tina K. to be dependent/abused is hereby reversed. Tina K. shall remain classified as a dependent/ungovernable child."
      A careful scrutiny of the actual record does not reveal an order which earlier classified the child "dependent/ungovernable". Moreover, the initial order of classification, namely, the order of adjudication of January 9, 1986, is a printed form which expresses an adjudication of the child as "dependent/abused". Nonetheless, the trial court makes clear, and appellant does not dispute, that the order of January 9, 1986, served merely to adopt the report of the Master of January 3,1986, and that the report of the Master did not recommend that the juvenile be adjudicated "dependent/abused” but instead specifically recommended "to the court that the said juvenile be adjudicated a dependent child”. Thus we accept as a fact that the adjudication of January 9, 1986, classified the child as “dependent" by reason of being ungovernable and not as "dependent/abused”.

      . The Bill of Rights in the Sixth Amendment to the United States Constitution mandates:
      In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him____
      The Constitution of the Commonwealth of Pennsylvania proclaims in Article 1, Section IX:
      In all criminal prosecutions the accused hath a right ... to meet the witnesses face to face____
      There is no more scarlet “A” than that branded upon the abuser. An accusation of incest, or other sexual abuse upon a child, hurls the accused into the deepest, darkest abyss where the lash of shame and scorn is matched only by the cries of the furies for vengeance. It is, therefore, of no consequence that the accused confronts these charges in the family forum and not the criminal court. Thus, the constitutional right of appellant to confrontation is firm and certain.
      Every bit as firm and certain, on the other hand, is the human right of the child to be free of the trauma of appearance in court and exposure to the torment of savage cross-examination. Human rights are inherent elements of the moral order, and while philosophers may differ as to a precise definition of human rights, and legal scholars do not always agree as to what may be designated a human right, they are of one mind that the advent of mankind and of the moral order were simultaneous. That moral order is manifested in and by the laws of humanity. Those laws of humanity confer human rights upon each individual simply because he or she is a human, and not by reason of any legislative enactment, executive decision, or court decree — nor even by constitutional mandate or decision of the majority. Constitutions are to be revered, and enacted laws deserve respect, provided, of course, that their provisions do not clash with human rights.
      The founders of our nation considered such human rights so critical that they proclaimed at the outset of the Declaration of independence:
      When in the Course of human events it becomes necessary for one people ... to assume ... the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, ... they should declare the causes which impel them to the separation. — We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights____ (emphasis supplied).
      The Bill of Rights extended explicit guarantee of certain human rights, and declared in the Ninth Amendment that the Constitution was not to be considered a delineation of all human rights, because certain rights of “the people” are inherent and, while worthy of constitutional protection, require not expression there. Surely the human right of a child to be free of the trauma of the circumstances attendant a court appearance is such a human right and is as firm and certain as any of the rights guaranteed in the Bill of Rights.

      . The record does not reflect the basis for reference during the presentation of oral argument that a finding of dependent/abused will effect a higher rate of reimbursement to the county for the care of the child than would a finding of dependent/ungovernable. Nor does the record disclose the varying consequences to the child of a finding of dependent/abused and dependent/ungovernable since the child was, in any event, to remain in the custody of CYS. It is repugnant, of course, to contemplate that such enhanced reimbursement would motivate CYS to pursue a finding of abuse, and, therefore, we assume that the hint of such a motivation is spurious.


author:
CERCONE, Judge:
      KELLY, Judge,

text:
    568 A.2d 215
    KENNETH H. OAKS, LTD., T/A Oaks Printing Co., Appellant, v. Paul JOSEPHSON, Individually and d/b/a The Josephson Company and The Josephson Co., Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1989.
    Filed Dec. 28, 1989.

      Frank A. Baker, III, Bethlehem, for appellant.
    Daniel M. Replogle, III, Camden, N.J., for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a final order of the Court of Common Pleas of Northampton County, sustaining appellee’s (defendant’s) preliminary objections as to jurisdiction and dismissing appellant's (plaintiff’s) complaint. We reverse.

In October, 1988, appellant Kenneth H. Oaks, Ltd. (Oaks) filed a civil action complaint in the lower court alleging breach of a contractual agreement and negligence on the part of appellee The Josephson Company and Paul Josephson individually. Oaks is a Pennsylvania corporation engaged in the business of commercial printing and related services with offices in Northampton County, Pennsylvania. Paul Josephson is a resident of New Jersey and The Josephson Company is a New Jersey corporation with offices in that state. The Josephson Company (Josephson) is an advertising agency which provides services related to marketing communications.

In January, 1988, the parties entered into a contract whereby Oaks was to perform the printing of a sixty-eight page catalog for one of Josephson’s clients. Oaks alleged costs of $29,585.00 for these services. In February, 1988, the parties contracted for Oaks to render various other printing services to Josephson, including the preparation of 30,000 postcard inserts, for which Oaks’ cost was $2,056.00. During the course of the work, appellant prepared proofs, which were reviewed at appellant’s offices in Pennsylvania by Josephson’s art director. The art director approved the proofs with corrections, and authorized Oaks to print the materials. After delivery of the work to Josephson’s client, it was discovered that some of the copy was missing. Appellant notified Josephson of the cost of correcting the errors, made the necessary corrections and billed Josephson for the cost of corrections. Josephson refused payment of this latter amount and appellant commenced the instant action in the lower court. Appellee’s petition to strike the complaint for lack of personal jurisdiction was sustained by the lower court, and this timely appeal followed.

“[WJhen preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt.” Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-03, 464 A.2d 323, 332 (1983), cert. denied 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984), citing Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965). “Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.” Barber v. Pittsburgh Corning Corp., supra. Reviewing the evidence in the instant case in such a light, we find that it does not support the lower court’s order granting appellee’s preliminary objections.

A court may exercise in personam jurisdiction over a nonresident if (1) jurisdiction is conferred by the state long-arm statute and (2) the exercise of jurisdiction under the statute meets constitutional standards of due process. Eastern Continuous Forms v. Island Business Forms, 355 Pa.Super. 352, 513 A.2d 466 (1986). Under Pennsylvania’s long-arm statute, the Pennsylvania courts may exercise jurisdiction over nonresident defendants “to the fullest extent allowed under the Constitution of the United States” and jurisdiction may be based “on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa.C.S. § 5322(b).” See Skinner v. Flymo, 351 Pa.Super. 234, 240, 505 A.2d 616, 619 (1986).

“The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has ‘certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U.S. 457, 463, [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)].’ ” Eastern Continuous Business Forms, supra, 355 Pa.Super. at 354-55, 513 A.2d at 467, quoting Calder v. Jones, 465 U.S. 783, 787, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804, 810 (1984). In minimum contacts analysis, “talismanic jurisdictional formulas” are rejected and the facts of each case are weighed in determining whether personal jurisdiction will comport with fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 2189, 85 L.Ed.2d 528, 549 (1985) quoting Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696-97, 56 L.Ed.2d 132, 141 (1978), reh’g denied 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978). In the context of interstate contractual obligations, the United States Supreme Court has emphasized that “parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 473, 105 S.Ct. at 2182, 85 L.Ed.2d at 540 (1985), quoting Travelers Health Assn. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950).

While an individual’s contract with an out-of-state party cannot alone establish sufficient contacts with the forum state, negotiations prior to the contract, its contemplated future consequences, the terms of the contract and the parties’ actual course of dealing must be evaluated in determining whether the defendant “purposefully availed] itself of the privilege of conducting activities within the forum State.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 474-75, 105 S.Ct. at 2183, 85 L.Ed.2d at 542 & 545, quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). “If the efforts of a commercial enterprise are ‘purposefully directed’ toward residents of the forum state, the absence of the actor’s physical contacts with the forum cannot defeat an assertion of personal jurisdiction in that state.” Skinner v. Flymo, supra, 351 Pa.Super. at 242-43, 505 A.2d at 616, citing Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 476, 105 S.Ct. at 2184, 85 L.Ed.2d at 543.

Once it has been determined that the defendant has purposefully established minimum contacts with the forum state, those contacts may be considered in light of other factors to determine whether the exercise of personal jurisdiction will comport with fair play and substantial justice. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 476-77, 105 S.Ct. at 2184, 85 L.Ed.2d at 621. Those factors include the burden on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the “several States in furthering fundamental substantive social policies.” Id.

In the instant case, the facts, viewed in the light most favorable to the non-moving party, show that The Josephson Company solicited quotations from Oaks for the printing work for which the parties eventually contracted. In connection with the contract, Josephson mailed and “faxed” bid specifications to Oaks at its place of business in Northampton County, Pennsylvania. Oaks prepared its bid quotation in Pennsylvania in response to Josephson’s solicitation, and purchase orders by Josephson were mailed to Oaks in Pennsylvania. Numerous telephone calls between the parties’ offices in Pennsylvania and New Jersey were exchanged, and an employee of Josephson visited the Oaks plant in Pennsylvania on at least one occasion to review proofs in connection with the parties’ contract. All of the work on the contract was performed in Pennsylvania. In our view, these facts are sufficient to establish personal jurisdiction of appellee in the Pennsylvania courts. Appellee’s initiation of contact with appellant which eventually yielded a contract between the parties, the continuing telephone and mail communication between them, and appellee’s visit to Pennsylvania to review the work in progress, all point to the conclusion that appellee “purposefully availed” itself of the privilege of conducting its business activities within Pennsylvania. Appellee’s contacts with the forum were thus sufficient to meet the due process “minimum contacts” test.

In addition, the exercise of personal jurisdiction over appellee would not offend any notions of “fair play and substantial justice.” Appellant is a Pennsylvania corporation with whom appellee initiated contact in order to conduct business in the form of a contract to be performed in Pennsylvania. Appellee also maintained telephone and mail contact with appellant at its Pennsylvania office, and visited Pennsylvania in order to monitor and assess the progress on its work. Such circumstances do not lead us to the conclusion that appellee’s contacts with Pennsylvania were “attenuated.” Rather, they were purposeful and continuous enough such that appellee could reasonably have anticipated “being haled into court” here. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980) (“the foreseeability analysis that is critical to due process ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there”).

Our conclusion is supported by the following cases in which jurisdiction was found in Pennsylvania over non-resident corporate defendants who sought dismissal of actions brought against them in Pennsylvania. In Sterling Industrial Corp. v. Telephone, Inc., 484 F.Supp. 1294 (W.D.Mich. 1980), a default judgment was entered in the United States District Court for the Middle District of Pennsylvania against defendant, a Michigan corporation. The judgment was registered in the Western District of Michigan and execution was issued and defendant’s inventory seized. Defendant then moved to void the Pennsylvania judgment on the basis that personal jurisdiction was lacking in Pennsylvania. The court held that jurisdiction was proper in Pennsylvania because the plaintiff was a Pennsylvania corporation located in Pennsylvania which supplied goods under contract to the defendant in Michigan. Further, the court reasoned, the defendant took the initiative in ordering goods from the plaintiff in Pennsylvania, visited the forum on one occasion, and placed numerous telephone calls and orders with plaintiff. The court did not find defendant’s visit to Pennsylvania decisive but held that even if the defendant had not made any visits to Pennsylvania, jurisdiction could still have been based on the parties’ telephone and mail contacts. The visit or visits simply made it more certain that sufficient minimum contacts existed for the exercise of personal jurisdiction. Id.

Similarly, in Controlled Metals, Inc. v. Non-Ferrous Intern. Corp., 410 F.Supp. 339 (E.D.Pa.1976), sufficient contacts were found to exercise jurisdiction over a New York corporation on the basis of telephone contacts with plaintiff’s agent in Pennsylvania out of which the parties’ contract was formed, acceptance of defendant’s offer to buy was made by plaintiff’s agent in Pennsylvania, and performance was to take place in this state. Id. at 343. The court also found the exercise of jurisdiction over this non-resident corporation to be fair and reasonable because defendant initiated the communications with plaintiff that led to their agreement, and mailed shipping materials to plaintiff demonstrating a recognition of plaintiff’s obligation as well as an expectation of performance. Such conduct, the court held, evidenced defendant’s active role in dealing with plaintiff and demonstrated that defendant was not merely a “passive purchaser.” Id. See Proctor & Schwartz, Inc. v. Cleveland Lamber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974) (non-resident defendant not a passive purchaser but actively negotiated with plaintiff; thus no unfairness in exercise of personal jurisdiction over defendant).

The Controlled Metals court also found that Pennsylvania had an interest in protecting its resident by providing a forum, via the Pennsylvania long-arm statute, for its citizens to seek redress for harm caused by foreign corporations which have availed themselves of the privilege of doing business in Pennsylvania. Controlled Metals, Inc., supra 410 F.Supp. at 344. The fact that the New York corporation had no office or business facility in Pennsylvania, no bank accounts or mailing address, no telephone listing or employees within Pennsylvania was not significant in light of the other factors cited.

A similar result was also reached in Packard Press Corp. v. Com Vu Corp., 584 F.Supp. 73 (E.D.Pa.1984). In that case, the court held that the fact that the New York corporate defendant sought out the Pennsylvania plaintiff to print its prospectus, that the prospectus was used in a public offering, that plaintiff billed and made extensive communications by mail and telephone with defendant and that defendant voluntarily communicated with plaintiffs in Pennsylvania to amend and correct the prospectus before its final printing were sufficient contacts to establish in personam jurisdiction in Pennsylvania.

We do not find persuasive the lower court’s holding that the case of Eastern Continuous Business Forms, Inc. v. Island Business Forms, Inc., supra, is distinguishable from the instant case. In that case, Eastern (plaintiff) sought to recover, in a Pennsylvania court, for various materials and services which it had allegedly supplied to Island (non-resident defendant), who had refused to pay the balance due on the parties’ contract. The lower court sustained Island’s preliminary objections on the grounds of lack of personal jurisdiction over Island. On appeal, a panel of this court reversed, holding that Island had allegedly “deliberately reached out beyond the Virgin Islands and negotiated with a Pennsylvania Corporation for the purchase of various materials and services.” 355 Pa.Super. at 357, 513 A.2d at 469. Further, Island’s refusal to make the contractually required payments had caused “foreseeable injuries to Eastern which at least makes it presumptively reasonable for Island to be called to account in the Commonwealth of Pennsylvania for such injuries.” Id., citing Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 480, 105 S.Ct. at 2186, 85 L.Ed.2d at 545.

The instant case is similar. Although Island may have made more visits to Pennsylvania than did the appellee herein, thereby “strengthening” its contacts with the forum, Eastern Continuous Forms v. Island Business Forms, supra, 355 Pa.Super. at 357, 513 A.2d at 469, the Eastern court found more significant the two factors, just noted: (1) that Island “reached out” beyond the boundaries of its home state to negotiate and contract with a Pennsylvania corporation, and (2) that Island’s refusal to make payments under the contract caused foreseeable injuries to the Pennsylvania corporation. Both of these factors are present in the instant case. In addition, although Island may have made more visits to Pennsylvania than did appellee herein, the number of visits is non-decisive in a minimum contacts analysis. See Sterling Industrial Corp. v. Telephone, Inc., supra.

We conclude that the lower court erred in sustaining appellee’s preliminary objections on the basis of lack of personal jurisdiction over appellee. Therefore, we reverse the lower court’s order and remand for further proceedings consistent with this memorandum.

Order of the lower court reversed; case remanded for further proceedings consistent with this memorandum; jurisdiction relinquished.

KELLY, J., files a concurring statement.

KELLY, Judge,

concurring:

I join in Judge Cercone’s well-reasoned opinion. I note that I find the analysis of in personam jurisdiction contained therein entirely consistent with the analysis of the same subject, in a different context, in Scoggins v. Scoggins, 382 Pa.Super. 507, 555 A.2d 1314 (1989) (per Kelly, J., Beck & Hester, JJ., join).

      . An order which dismisses a complaint for lack of personal jurisdiction is final and appealable. Bergere v. Bergere, 364 Pa.Super. 100, 527 A.2d 171 (1987).


author: MONTEMURO, Judge:

text:
    568 A.2d 219
    Vasilios and Marie NICHOLAIDES, Appellants, v. UNIVERSITY HOTEL ASSOCIATES and Continental Services, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed Jan. 3, 1990.

      Albert Saltz, Philadelphia, for appellants.
    Dennis L. Platt, Philadelphia, for appellees.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal from the May 8, 1989, Order of the Court of Common Pleas of Philadelphia County, wherein the court, following a jury trial, denied post-trial motions and awarded delay damages. We affirm.

In September of 1982, appellant, Vasilios Nicholaides, was a guest at the University City Holiday Inn located in Philadelphia, Pennsylvania. Appellee University Hotel Associates owned the hotel, and appellee Continental Services operated it. Upon arriving at the hotel, Nicholaides unpacked a coin collection which he owned and placed it in a dresser drawer under some garments. On September 4, 1982, Nicholaides left the coin collection in his hotel room while he visited coin shops in Philadelphia. On September 6, 1982, Nicholaides discovered that his coin collection was missing. Vasilios and Marie Nicholaides instituted the present action to recover the value of the coin collection.

The pleadings and the trial in this matter proceeded on two different theories. The first theory is an old one in our common law, and it is clearly set forth in Walsh v. Porterfield, 87 Pa. 376 (1878):

At common law a hotelkeeper or innkeeper was liable at all events for the goods and baggage of his guests. He held himself out as an innkeeper, and was required to receive all persons coming and desiring lodgings, and upon him was imposed the duty of strict care of the property of his guests whilst in his hotel. That law is the same to-day as it was years ago, except where it has been modified by our Acts of Assembly.
* * * * * *
It was in fact insuring, as it were, the safety of the property of the guests, and it was immaterial (if a loss occurred or property was stolen whilst the guest was in the hotel) by whom it was stolen, unless it was by the guest’s own servant or a fellow guest of the party who was robbed, or the negligence of the guest; and however vigilant the landlord might have been he was responsible to the party losing the property. That was the common-law liability. He was practically an insurer of the safety of the property whilst the guest remained in his house.

Id. at 377. No case law has altered this strict and absolute common law liability on the part of an innkeeper to protect the property of those whom he receives as guests. However, it has likewise been the law that “the conduct of the plaintiff contributing to the loss, whether voluntary or negligent, is always a defense.” Shultz v. Wall, 134 Pa. 262, 19 A. 742 (1890). Consistent with the doctrine of contributory negligence, it was held that if a guest’s own negligence contributed to his property loss to any degree, then the guest’s recovery against the innkeeper was completely barred. See Benjamin v. Colonial Hotel Co., 268 Pa. 459, 112 A. 54 (1920); Shultz v. Wall, supra; Buck v. Hankin, 217 Pa.Super. 262, 269 A.2d 344 (1970).

The innkeeper’s strict and absolute liability at common law can also be affected by the Act of June 12, 1913, P.L. 481, as amended, 37 P.S. § 61. The section of that legislative enactment applicable instantly provides:

No innkeeper or hotelkeeper ... who has in his inn or hotel ... a metal safe or suitable vault, in good order and fit for the custody of money, bank notes, jewelry, articles of gold and silver manufacture ... and who keeps on the doors of the sleeping-rooms used by guests suitable locks or bolts, and on the transoms and windows of said rooms suitable fastening, and who keeps a copy of this section, printed in distinct type, constantly and conspicuously posted, in not less than ten conspicuous places in all, in said hotel or inn, shall be liable for the loss or injury suffered by any guest, unless such guest offered to deliver the same to such innkeeper or hotelkeeper, for custody in such safe or vault, and such innkeeper or hotelkeeper has omitted or refused to take it and deposit it in such safe or vault for custody, and to give such guest a receipt therefor: Provided, however, That the keeper of any inn or hotel shall not be obliged to receive from any one guest, for deposit in such safe or vault, any property hereinbefore described exceeding a total value of three hundred dollars, and shall not be liable for any excess of such property, whether received or not.

37 P.S. § 61. This statute provides a manner by which an innkeeper can be absolved from common law liability for a guest’s loss of valuable property, as such property is defined in 37 P.S. § 61, where the innkeeper has complied with the requirements of the statute. See Levin By Levin v. Desert Palace Inc., 318 Pa.Super. 606, 465 A.2d 1019 (1983) (innkeeper is liable for his guests’ property losses unless he equips each room with bolts and locks on all doors, locks on all windows, a copy of the Pennsylvania Innkeepers Statute, and has a safe or vault available for the guests’ use). We note that a reasonable reading of 37 P.S. § 61 indicates that if an innkeeper has provided the locks and bolts required, the safe required, and has posted the copies of 37 P.S. § 61 as required, the innkeeper is only obligated to receive a maximum of three hundred dollars in valuable property from a guest in order to be absolved from liability under 37 P.S. § 61. The fact that an innkeeper nevertheless agrees to receive valuable property which is worth more than three hundred dollars will not alter this result.

The second theory pursued by the Nicholaides sounded in negligence. Following deliberations, the jury determined that appellees had failed to comply with the requirements of 37 P.S. § 61, that the appellees were negligent, and that this negligence was a substantial factor in causing the loss of the coin collection. Additionally, the jury found that Vasilios Nicholaides was contributorily negligent, that his negligence was a substantial cause of the loss, and that, in fact, the percentage of causal negligence attributable to Nicholaides is forty-nine percent. In view of the jury’s assessment of damages at $34,973.00, the trial court reduced the verdict because of “the finding of contributory negligence on the part of the plaintiff of 49%. Total amount to plaintiffs is $17,836,23.” Order of Trial Court, April 6, 1989. Later, on May 8, 1989, the trial court added $9,768.13 in delay damages to the verdict.

On appeal, the appellants claim that the trial court erred in permitting the finding of contributory negligence to reduce the verdict because appellees’ common law liability is strict and absolute. This claim is patently meritless. As we have stated, a guest’s contributory negligence has always been a defense to an action brought against an innkeeper for loss of a guest’s property. Although the trial court considered whether the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. § 7102, as opposed to the doctrine of contributory negligence, applies to an action based upon an innkeeper’s strict and absolute common law liability, we find that we need not address this precise issue. It is clear that even if contributory negligence is no longer applicable to such an action at common law due to 42 Pa.C.S.A. § 7102, then the doctrine of comparative negligence would have to be employed to diminish the amount of damages recoverable by the guest. Certainly, if contributory negligence is found to be inapplicable, this would not result in no reduction in the damages recoverable by the guest where the guest’s own negligence was a substantial factor in causing the property loss. This would be inconsistent with the established set of case law which recognizes that a guest’s own negligent conduct will have an impact upon his ability to recover from the innkeeper where valuable property has been lost or damaged.

In the case at bar, appellees were found to be negligent, separate and apart from their strict and absolute common law liability. Thus, the Comparative Negligence Act was properly applied to reduce the damages recoverable by the Nicholaides. Any decision which we would render as to whether comparative negligence or the doctrine of con-tributary negligence, one of which must necessarily apply, should be employed in actions brought solely on an innkeeper’s strict and absolute liability would have no effect on the result which has been reached in this matter. Thus, we leave this issue for another day when an actual controversy may exist as to this question. See Graziano Construction Co., Inc. v. Lee, 298 Pa.Super. 311, 444 A.2d 1190 (1982). Our disposition of appellants’ first issue renders their second claim that the trial court erred in its calculation of delay damages meritless.

Order affirmed.

POPOVICH, J., concurs in the result.

      . Although the issue is not presented in this appeal, we note that the trial court in the instant case charged the jury that if an innkeeper complies with all of the requirements of 37 P.S. § 61, then he would not be absolved from liability but, instead, his liability for a guest’s loss of valuable property would be limited to three hundred dollars. We believe that this was an erroneous interpretation of the statute but, as the jury determined that the appellees failed to comply with the dictates of 37 P.S. § 61, this error did not affect or prejudice the result of the trial and is not a part of this appeal.

      . We are aware that both the trial court and the appellees have voiced their concern that 37 P.S. § 61 may be outdated. We are concerned that, in the instant case, the hotel apparently had available safe deposit boxes, locks on individual guest rooms, and a copy of the Innkeeper’s Liability Statute in each guest room. We must agree with the appellees that neither the Act itself nor the scant case law based upon the Act, clarifies the manner in which an innkeeper can satisfy the requirements of the Act. Of course, whether the Act needs to be revisited by our Legislature is a matter for them alone to decide.


author: CAVANAUGH, Judge:

text:
    568 A.2d 223
    Kenneth QUICK, Appellant, v. Stephen SWEM, Esquire, Appellee.
    Superior Court of Pennsylvania.
    Submitted Oct. 16, 1989.
    Filed Dec. 29, 1989.

      Kenneth Quick, in pro. per.
    Thomas C. Reed, Pittsburgh, for appellee.
    Before CAVANAUGH, MELINSON and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Appellant, Kenneth Quick, brought a legal malpractice action against appellee, Steven Swem, Esquire, a public defender who represented him in criminal proceedings. Quick pled guilty while represented by Swem to the charges of involuntary deviate sexual intercourse and related offenses. No direct appeal was taken. He was represented by new counsel at the collateral appeal stage. Quick’s petition filed under the Post Conviction Hearing Act, (PCHA), 42 Pa.C.S.A. § 9541 et seq. (repealed) has been twice remanded by this court for consideration of the merits of the petition.

The complaint in malpractice was filed while the second appeal was pending before this court. After the lower court dismissed the malpractice complaint, this court remanded the criminal matter for the second time. The basis upon which the lower court sustained appellee’s preliminary objections and dismissed the complaint with prejudice was that it was without jurisdiction to act, pursuant to the Post Conviction Relief Act, (PCRA), 42 Pa.C.S.A. § 9542. This section provides as follows:

§ 9542. Scope of subchapter
This subchapter provides for an action by which persons convicted of crimes they did not commit or serving unlawful sentences may obtain collateral relief and for an action by which persons can raise claims which are properly a basis for Federal habeas corpus relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect including habeas corpus and coram nobis. This sub-chapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, nor is this subchapter intended to provide a means for raising issues waived in prior proceedings.

We disagree that this statute precludes maintenance of a civil action for malpractice that seeks monetary damages. We interpret it to preclude only collateral actions which pose a challenge to the judgment of sentence. The specification of the remedies of habeas corpus and corum nobis indicate that the legislature intended to limit challenges to a judgment of sentence to the procedure set forth in the PCRA. The award of monetary damages through a civil action is not precluded by this statute. The language that the PCRA petition encompasses all other remedies “for the same purpose” means that where the purpose is to overturn a judgment of sentence it is the sole means of relief. Civil actions alleging negligent conduct by counsel remain available under this revised statute. See, ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986). We believe that far more specific language than that employed in this statute would be required for us to conclude that the legislature intended to extinguish a valuable common law right such as that involved in this case.

The lower court erred in dismissing the complaint. The elements of a cause of action for legal malpractice are as follows:

The necessary elements to prove a cause of action based on legal malpractice are: (1) the employment of the attorney or other basis for a duty on the part of the attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) negligence by the attorney which was the proximate cause of damage to the plaintiff. Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (1986). See also Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493 (1979).

Alberici v. Tinari, 374 Pa.Super. 20, 31, 542 A.2d 127, 132 (1988).

Additionally, the plaintiff must be able to establish by a preponderance of the evidence that he or she would have prevailed in the underlying litigation. Brock v. Owens, 367 Pa.Super. 324, 328-329, 532 A.2d 1168, 1170 (1987); Trice, supra.

Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 403, 551 A.2d 1112, 1115 (1988).

Although Quick has not demonstrated that he would have prevailed in the underlying litigation, because the proceedings are at the pleading stage, no such demonstration is possible. While there is still no final outcome of the criminal case, Quick’s, cause of action has accrued since he has alleged an injury, i.e., incarceration, which he alleges to have been caused by the negligence of Swem. Clearly, appellant has lost all confidence in the stewardship of his former counsel, and the time within which to commence his action for malpractice has begun to run. See, Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (1986); Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841 (1983). Resolution of the PCHA petition is not necessary before the maintenance of a civil cause of action against trial counsel is legally cognizable. See, Id.

Order reversed and remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished.

      . Also named in the complaint is Attorney John A. Halley. However, the Complaint was apparently not served upon him. Only Mr. Swem has participated in the case, and our disposition relates only to him.


author: WIEAND, Judge:

text:
    568 A.2d 224
    Frank SHELLHAMER, Appellee, v. Nadine GREY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed Dec. 27, 1989.

      Michael B. Kaleugher, Pittsburgh, for appellant.
    Michael Balzarini, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

This is an appeal by a defendant from an order awarding delay damages under amended Pa.R.C.P. 238. The case is unusual because of the manner in which it wended its way through the courts while the rule was being amended, first by Supreme Court decision and secondly by an amended rule.

On June 26,1981, Frank Shellhamer, age thirty-seven and mildly retarded, was struck by a car driven by Nadine Grey as Shellhamer attempted to cross a four-lane freeway in Mt. Lebanon, Allegheny County. Shellhamer incurred a skull injury which, even after surgery, augmented his mild retardation and made it more acute. On October 27, 1982, Shellhamer filed a complaint in trespass against Grey. On April 19, 1984, shortly before trial, Grey’s insurance carrier offered in settlement the $25,000.00 limit of Grey’s insurance policy. Shellhamer rejected the offer, and the matter proceeded to trial. On January 14, 1985, the jury returned a verdict in favor of Shellhamer, which, after adjustment on account of his contributory negligence, was molded as $233,750. Shellhamer petitioned for and was granted damages for delay pursuant to Pa.R.C.P. 238 in the amount of $36,929.34. The amount was calculated at the rate of ten (10%) percent per annum from the filing of the complaint on October 27, 1982 to May 8, 1984. Grey’s post-trial motions were denied, and she appealed.

While this appeal was pending, the Supreme Court handed down its decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), which suspended the mandatory provisions of Rule 238 requiring the assessment of delay damages without regard to fault. Thereafter, the Court said, a plaintiff’s right to delay damages was to be based on considerations of fault and was to be determined upon petition and answer.

Also during the pendency of Grey’s appeal, the Superior Court decided Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986), which held that “a plaintiff shall not be awarded damages for delay pursuant to Pa.R.C.P. 238 after the date of the defendant’s offer when the court determines that, because of the defendant’s indigency, the offer was the full amount available for payment of the plaintiff’s claim and it was impossible for the defendant to have offered more.” Id., 348 Pa.Superior Ct. at 627, 502 A.2d at 722.

When Grey’s appeal came before the Superior Court, the Court remanded the case to the trial court to redetermine Shellhamer’s right to delay damages in accordance with Craig and Berry. Shellhamer v. Grey, 359 Pa.Super. 499, 519 A.2d 462 (1986), allocatur denied, 515 Pa. 594, 528 A.2d 603 (1987).

Before the matter came before the trial court on remand, the Supreme Court had rescinded Pa.R.C.P. 238 and substituted an amended version, to become effective on November 7, 1988. Subsection (f) of the amended rule provides that it “shall apply to actions pending on or after the effective date of this rule in which damages for delay have not been determined.” Pa.R.C.P. 238(f). Since Grey’s liability for delay damages had not been finally determined when the new rule became effective, revised Rule 238 was applicable. See: Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc); Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en banc).

At an evidentiary hearing on January 13, 1989, the parties stipulated that, except for the policy of insurance which had been issued by Erie Insurance Exchange, Grey was indigent at all relevant times. Therefore, the learned trial judge computed delay damages on the amount of the verdict, at rates prescribed by amended Rule 238, from the date of filing the complaint until April 19, 1984, when Grey’s insurer offered to pay policy limits. The amount of delay damages was determined to be $44,663.45. Grey again appealed.

Her first argument on appeal is that where an indigent defendant has offered all available assets and the plaintiff has refused to accept them in settlement of a claim, the defendant should be excused from paying any delay damages. We reject this argument. Although amended Rule 238 contains language that is different than the original rule, the reasoning of the Superior Court in Berry v. Anderson, supra, continues to be relevant. The payment of delay damages is excused in such cases only after policy limits have been offered in settlement of plaintiff’s claim against the indigent defendant. The amended rule contains no language that would exclude an award of delay damages by a defendant prior to the offering of policy limits. Instead, it excludes awards of delay damages only during (1) any periods of time after which the defendant has made a written offer of settlement, the offer is continued in effect for at least ninety days or until the commencement of trial, whichever first occurs, the offer is rejected by the plaintiff, and the plaintiff does not recover more than 125 percent of the offer; and (2) any periods of time during which the plaintiff caused delay of the trial. King v. Southeastern Pa. Transp. Auth., 383 Pa.Super. 420, 424, 557 A.2d 11, 13 (1989), citing Miller v. Wise Business Forms, 381 Pa.Super. 236, 241, 553 A.2d 443, 446 (1989) (en banc); Pa.R.C.P. 238(b). No other exclusions are permitted. Where a defendant has not made an adequate offer of settlement and the plaintiff has not delayed the trial, the plaintiff is entitled to recover delay damages. In this case an adequate offer was made for the first time on April 19, 1984.

Amended Pa.R.C.P. 238(a)(3) directs that delay damages “shall be calculated at a rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.” This amended rule, as we have observed, is applicable to actions such as the present one in which damages for delay have not been determined. Its application is not prevented merely because it results in a higher rate than that previously assessed, from which an appeal was successfully prosecuted by the defendant-appellant.

A more difficult issue is whether delay damages should be calculated on the amount of the verdict or on the total assets of the defendant, all of which were offered in settlement of plaintiff’s claim prior to trial. The defendant-appellant contends that it is wholly unrealistic and unfair to assess delay damages on an amount which cannot be realized by the plaintiff because it exceeds the defendant’s ability to pay.

Pa.R.C.P. 238(a)(1) provides that “damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff____” Although the rule also establishes the rate at which delay damages are to be calculated and the periods of time for which damages for delay shall be awarded, the rule does not state expressly to what amount the established rate shall be applied to determine the amount of delay damages which are to be added to the award of compensatory damages.

In Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), the Supreme Court likened delay damages under Rule 238 to pre-judgment interest. If a defendant failed to move expeditiously and adequately to settle a claim for an amount determined to be reasonable in accordance with the terms of the rule, that defendant would be required to pay pre-judgment interest. This payment of interest, the Court said, would serve to indemnify the plaintiff for the money he would have earned on his award if it had been promptly paid in much the same manner as in breach of contract cases. Id., 496 Pa. at 65, 436 A.2d at 154. In contract cases, the amount of interest is determined by applying the rate thereof to the amount owed, and not according to the defendant’s ability to pay. Neither is it determined by applying the rate of interest to the amount of an offer of settlement made by the defendant. It is measured, simply, by applying the rate of interest established by law or contract to the amount of money owed.

Amended Rule 238 will be interpreted in the same way. Where pre-judgment interest is payable to compensate a plaintiff for the delay in receiving monetary damages owed as a result of a defendant’s tort, the amount thereof will be determined by applying the rate established by Pa.R.C.P. 238 to the amount determined to be due.

Finally, appellant argues that amended Rule 238 is unconstitutional because it violates principles of equal protection and due process and also because it exceeds the Court’s power to adopt rules pertaining to procedure. The same or similar arguments, however, were examined carefully by the Supreme Court and rejected in Laudenberger v. Port Authority of Allegheny County, supra. We are bound by that decision, and it would be spurious for us to reconsider the same issues in this appeal.

Judgment affirmed.