author: KELLY, Judge:

text:
    610 A.2d 484
    UNITED CAROLINA BANK, Appellant, v. Domenic MARTOCCI and Helen Martocci, Appellees.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed July 7, 1992.

      Edward H. McGee, Allentown, for appellant.
    Angelo T. Almonti, Allentown, for appellees.
    Before McEWEN, BECK and KELLY, JJ.
   KELLY, Judge:

In this Opinion, we are called upon to determine whether the trial court properly granted the appellees’, Domenic and Helen Martocci’s, preliminary objection which asserted that the trial court lacked subject matter jurisdiction over the appellant-bank’s, United Carolina Bank’s, petition to fix the fair market value of property located in North Carolina brought pursuant to the Deficiency Judgment Act, 42 Pa. C.S.A. § 8103 et seq. We affirm.

The relevant facts and procedural history are as follows. On July 18, 1989, the appellees, residents of Pennsylvania, borrowed $104,000.00 from the appellant-bank. The loan was secured by a mortgage note the appellees executed in favor of the appellant-bank on a condominium they owned in Brunswick County, North Carolina. The appellees subsequently defaulted on the mortgage note. Because the appellees defaulted, the appellant-bank petitioned the clerk of the Superior Court of Brunswick County, North Carolina for the public sale of the property. The clerk of the Superior Court of Brunswick County, North Carolina, authorized the public sale of the property. The public sale was held. The appellant-bank’s bid of $104,000.00 was the last and highest bid. After the public sale of the property, the appellant-bank maintained that the appellees still owed it $15,370.15 in costs and interests; however, the appellant-bank instituted no proceedings in North Carolina to obtain a deficiency judgment against the appellees.

In an effort to recover the $15,370.15, the appellant-bank filed a petition to fix the fair market value of the property at $104,000.00 in the Common Pleas Court of Lehigh County. The appellees subsequently filed a preliminary objection to the petition to fix the fair market value of the property at $104,000.00 arguing that because the property was located in Brunswick County, North Carolina, the trial court did not have subject matter jurisdiction over the petition. The appellees asserted that pursuant to the Deficiency Judgment Act, the appellant-bank must bring its petition to fix the fair market value of the property at $104,000.00 in the jurisdiction where the property was located. The trial court agreed with the appellees’ argument and the distinguished trial judge, the late Honorable David E. Mellenberg, entered an order denying the appellant-bank’s petition to fix the fair market value of the property at $104,000.00 and dismissed the complaint. This timely appeal followed.

On appeal, the appellant-bank raises two issues for our review:

A. WHETHER THE PENNSYLVANIA COURT OF COMMON PLEAS IN THE COUNTY WERE DEFENDANTS RESIDE HAS JURISDICTION TO HEAR AN ACTION BROUGHT TO ENFORCE A JUDGMENT ENTERED IN NORTH CAROLINA?
B. WHETHER THE CASE SHOULD BE TRANSFERRED TO NORTH CAROLINA IF IT IS DETERMINED THAT THE COURT OF COMMON PLEAS OF PENNSYLVANIA HAS NO JURISDICTION?

(The Appellant-Bank’s Brief at 4).

The appellant-bank, in its first issue on appeal, contends that the trial court erred in determining that it did not have subject matter jurisdiction over the appellant-bank’s petition to fix the fair market of the property located in Brunswick County, North Carolina. The appellant-bank argues that because the appellees are residents of Pennsylvania, the petition to fix the fair market value of the property may properly be brought here. The appellant-bank asserts that under the Full Faith and Credit Clause of Article IV of the United States Constitution, the trial court is compelled to entertain the appellant-bank’s petition to fix the fair market value of the property in order to allow it to recover the balance of the money purportedly still owed to it by the appellees.

The jurisdiction of the court over the subject matter can be raised at any time. Tops Apparel Mfg. Co. v. Rothman, 430 Pa. 583, 244 A.2d 436 (1968). Neither silence, nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Hafer v. Schauer, 429 Pa. 289, 239 A.2d 785 (1968); Pulluim v. Laurel School District, 316 Pa.Super. 339, 462 A.2d 1380 (1983). In determining whether the trial court has subject matter jurisdiction, we must first look to Pennsylvania law. Barndt v. Barndt, 397 Pa.Super. 321, 326, 580 A.2d 320, 322 (1990).

The Deficiency Judgment Act provides as follows: “Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.”

42 Pa.C.S.A. § 8103(a) (emphasis added).

In Dearnley v. Survetnick, 360 Pa. 572, 63 A.2d 66 (1949), our Supreme Court stated that under the Deficiency Judgment Act a petition to fix the fair market value of property should be addressed to the court “having jurisdiction.” The court further stated,

“This cannot reasonably be construed as referring to any court other than that where the sale of the property was held. A judgment might be entered against an obligor on his bond in any court of the Commonwealth or even in another State where defendant might reside, and it obviously would be impractical and undesirable to have the value of the property appraised in such other jurisdiction; it is where the property is situated, and by the court in which it was sold on foreclosure, that its value can best be determined.”

Id., 360 Pa. at 576, 63 A.2d at 69. Accordingly, the trial court properly followed our Supreme Court’s instructions and determined that it did not have subject matter jurisdiction over the appellant-bank’s petition to fix the fair market value of property in Brunswick County, North Carolina.

Moreover, the appellant-bank’s claim that under the Full Faith Credit Clause of Article IV of the United States Constitution, the trial court is compelled to entertain the appellant-bank’s petition to fix the fair market value of the property in order to permit it to recover the balance of the money allegedly still owed by the appellees is without merit. It is well settled that under the Full Faith and Credit Clause of the United States Constitution, a judgment rendered by a sister state in which the sister state court had jurisdiction over both the subject matter and the parties, it is entitled to the same faith and credit, validity and effect in Pennsylvania as the judgment has in the rendering sister state. Stewart v. Stewart, 127 Pa.Super. 567, 576, 193 A. 860, 864 (1937); Natovitz v. Robinson, 64 Montg. 79, 63 D.C. 334 (1948); 42 Pa.C.S.A. § 4306. In a proceeding to enforce a decree rendered by a sister state court of competent jurisdiction, full faith and credit must be given to such decree. In re Stewart’s Estate, 334 Pa. 356, 5 A.2d 910 (1939). Ordinarily, a judgment for the payment of money will not be enforced in another state unless it is a final judgment for a specific amount of money. Everson v. Everson, 494 Pa. 348, 431 A.2d 889 (1981).

Instantly, the North Carolina decree relied upon the appellant-bank as its basis for filing the petition to fix the fair market value of the property in Lehigh County only authorized the judicial sale of the property. The North Carolina decree did not enter a deficiency judgment or monetary judgment against the appellees. As the validity and effect of the decree in the rendering state (North Carolina) was merely the authorization of the public sale of the property, only public sale of the property itself must be given full faith and credit recognition by the courts of this Commonwealth. The appellant-bank is not permitted to attach any deficiency claims it may have against the appellees to the North Carolina decree authorizing the public sale of the appellees’ property for enforcement here. See Meco Realty Co. v. Burns, 414 Pa. 495, 497-98, 200 A.2d 869, 871 (1964) (a judgment in a mortgage foreclosure action is in rem and imposes no personal liability upon the mortgagors against whom the judgment is obtained).

The appellant-bank’s second issue on appeal is that the trial court erred in not transferring its petition to fix the fair market value of the property to a North Carolina court. The appellant-bank argues that under the doctrine of forum non conveniens, a matter should not be dismissed unless an alternative appropriate forum exists for the plaintiff. The appellant-bank asserts that the trial court erred in failing to determine whether the plaintiff may still proceed in North Carolina before dismissing the petition to fix market value of the property.

Pa.R.C.P. 213(f) provides, in pertinent part as follows: (f) When an action is commenced in a court which has no jurisdiction over the subject matter of the action it shall not be dismissed if there is another court of appropriate jurisdiction within the Commonwealth in which the action could originally have been brought but the court shall transfer the action at the cost of the plaintiff to the court of appropriate jurisdiction.

Here, neither the Common Pleas Court of Lehigh County nor any other court in this Commonwealth has subject matter jurisdiction over the appellant-bank’s petition to fix fair market value. See Dearnley v. Survetnick, supra. Additionally, Pa.R.C.P. 213(f) does not authorize the courts of this Commonwealth to effectuate the interstate transfer of this matter to the courts of North Carolina. Thus, the trial court properly dismissed the appellant-bank’s petition to fix the fair market value. Cf. Bliss v. Bliss, 343 Pa.Super. 17, 493 A.2d 780 (1985) (Pa.R.C.P. 1006(d) provides for a change of venue in support actions, but permits transfers only between the courts of the several counties of Pennsylvania and does not purport to sanction interstate transfers).

Based upon the foregoing, the trial court’s order dismissing the appellant-bank’s petition to fix the fair market value of property located in North Carolina is affirmed.

Order affirmed.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    610 A.2d 488
    COMMONWEALTH of Pennsylvania v. Ronald Cole PRICE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1991.
    Filed July 8, 1992.

      Daniel S. Armagh, Washington, D.C., for appellant.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lawrence County following appellant Ronald Cole Price’s conviction for driving under the influence of alcohol. 75 Pa.C.S. § 3731(a)(1). We reverse and discharge the appellant.

Shortly after midnight on October 29, 1989, Trooper Ronald F. Wethli received a report that a car was being driven recklessly near the junction of Routes 422 and 551 in Lawrence County. When he arrived in that area, Trooper Wethli saw Price seated in the driver’s seat of an automobile. He then saw Price leave the vehicle and open its trunk at which point Wethli believed Price’s gait indicated intoxication. Trooper Wethli spoke to Price. Price told the trooper that he had been driving down the road and hit a pothole which flattened a tire and broke the wheel rim, rendering the car immobile. The quality of Price’s speech also indicated to Wethli that Price was intoxicated. When asked to take a field sobriety test, Trooper Wethli testified that Price stated, “Okay, you got me for drunk driving. I did 30 days last time. What happens to me this time?” Trooper Wethli then arrested Price.

The matter was tried before a jury. At the close of the Commonwealth’s case, Price demurred to the Commonwealth’s evidence. He then proceeded to present his defense. Price introduced evidence indicating that his girlfriend had been driving the automobile prior to its breaking down, that his girlfriend went to a friend’s house which was down the road for assistance leaving Price with the car, and that when she returned, Price was gone. The jury found Price guilty of driving under the influence. In response to a special interrogatory asking whether the jury “[found] beyond a reasonable doubt that defendant operated the vehicle on a public highway prior to the arrival of the police,” the jury responded “no.”

Price filed post-trial motions which the trial court denied. The court sentenced Price to not less than ninety days nor more than twenty-three and one-half months incarceration. This timely appeal followed.

Price raises fifteen issues for our consideration. We need only address the following issue, however, to fully dispose of this case: whether the court erred when it failed to grant appellant’s demurrer to the Commonwealth’s evidence that appellant was an operator in violation of 75 Pa.C.S. § 3731(a)(1). Before reaching the merits of this issue, we must address a procedural matter. Normally, a defendant’s presentation of evidence after a demurrer to the evidence waives this issue for appeal purposes. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Mignogna, 401 Pa.Super. 188, 585 A.2d 1 (1990). However, an appellate court may treat the motion on appeal as a challenge to the sufficiency of the evidence. Id.

Although Price has failed to brief a sufficiency of the evidence argument, we have the complete trial transcript before us and are quite aware of our standard of review. We, therefore, can effectively review this issue on appeal. In reviewing claims of sufficiency of. the evidence, we apply the following standard of review:

[W]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence— Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered____ Finally, the trier of fact, while passing upon the credibility of the ■witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted.)

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256,1257 (1986) (citing Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979)). Our review of the record leads to the conclusion that there was insufficient evidence to render a guilty verdict.

In order to meet its burden of proof in this case the Commonwealth must prove that: (1) Price was driving, operating or in actual physical control of the automobile, and (2) while under the influence of alcohol to a degree which rendered him incapable of safe driving. 75 Pa.C.S. § 3731(a)(1); Griscavage, supra, Commonwealth v. Labelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990). Here, the Commonwealth has failed to prove beyond a reasonable doubt that Price was driving, operating or in actual physical control of the automobile.

First, the jury’s response to the special interrogatory on the verdict slip indicates that it was not persuaded by the Commonwealth’s evidence that Price had driven or operated the vehicle prior to its immobility. The interrogatory stated as follows: “Did you find beyond a reasonable doubt that defendant operated the vehicle on a public highway prior to the arrival of the police?” The jurors’ response to this question was “no.” Thus, it is clear that any disputes which may have arisen regarding Price’s driving or operating the vehicle were resolved in favor of Price. The jury found, however, that Price was guilty because he was in actual physical control of the vehicle.

The record, however, does not support such a finding. Trooper Ronald F. Wethli, the arresting officer, testified that he approached Price’s car and stood about three feet from the vehicle. He further stated:

I looked in the window, the car wasn’t running nor were the lights on but he was sitting there with the keys in hand and for just three or five seconds he ignored me, then he got out of the vehicle, walked to the back of the vehicle, and it was like a hatch back, he opened it up with the key.

The testimony of the defense witnesses indicates that the car had been driven by Price’s girlfriend, who hit a pothole causing a flat tire and a broken wheel rim. She went to a friend’s house, which was approximately a mile to a mile and one-half from where the car broke down, leaving Price behind.

Merely because Price sat in the driver’s seat of the car, which was not running, and held the keys to the trunk in his hand does not rise to the level of actual physical control necessary to support a conviction for driving under the influence. A brief review of the cases which considered the concepts of actual physical control reveals that, at a very minimum, a parked car should be started and running before a finding of actual physical control can be made. See, e.g., Commonwealth v. Bobotas, 403 Pa.Super. 136, 588 A.2d 518 (1991) (car running with defendant in parked car); Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974) (automobile parked, lights on, engine running, driver asleep behind steering wheel); Commonwealth, Department of Transportation v. Farner, 90 Pa.Commw. 201, 494 A.2d 513 (1985) (engine running, transmission in park, brake lights on, person behind wheel with hands on steering wheel); Commonwealth v. Kallus, 212 Pa.Super. 504, 243 A.2d 483 (1968) (car immobile in snow bank, engine running). In this case, however, the police found Price in the driver’s seat, with the engine and lights off and the keys out of the ignition. These facts fall far short of the degree of control required by the aforementioned precedents.

There are myriad reasons to leave keys to a stranded car with a person who is waiting with it while another seeks assistance. Obviously, if the person waiting should accidently lock himself or herself out of the car, the key would provide access. The key may be necessary to open windows on a warm evening or to allow for heat on colder evenings. The key also provides access to the radio and the lights, both interior and exterior, without draining a car’s battery. Merely possessing keys while seated in a parked car is not adequate to warrant a finding of actual physical control sufficient to sustain a conviction for driving under the influence. There must be some indicia that the intoxicated person, who was seated in the car, had actual physical control of the vehicle. The facts of this case do not indicate such an inference.

The jury credited the testimony of Price’s girlfriend that she had operated the vehicle for the entire evening prior to its becoming inoperable. The Commonwealth admitted that the vehicle was inoperable when the police arrived. The jury’s answer to the special interrogatory indicated that appellant did not drive the vehicle prior to it becoming inoperable. Thus, the Commonwealth’s case is rendered meritless. Price was not driving the car before it became inoperable, and he could not drive the car after it became inoperable. There was simply no danger of him driving the car at all. Therefore, the Commonwealth has failed to meet its burden of proving the element of actual physical control and, thus, failed to demonstrate sufficient evidence to support Price’s conviction.

Finally, the requirements of proof of driving, operation or actual physical control under the statute form the basis for the inference that a person was previously operating the car. It is when one of these requirements coexists with intoxication that a crime is committed. The legislature, however, did not intend to make it a crime to merely sit in a car while intoxicated.

Judgment of sentence reversed. Appellant discharged.

FORD ELLIOTT, J., dissents.

      . The Commonwealth admits that the vehicle was inoperable when the police arrived.


author: POPOVICH, Judge:

text:
    610 A.2d 491
    Edward SOJA and Barbara Soja, Appellees, v. FACTORYVILLE SPORTSMEN’S CLUB, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1992.
    Filed July 13, 1992.

      James E. Davis, Tunkhannock, for appellant.
    George E. Clark, Jr., Scranton, for appellees.
    Before CAVANAUGH, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

We are asked to review the September 14, 1991, order of the Court of Common Pleas of Wyoming County, sitting in Equity, upholding an injunction issued against the defendant/appellant, Factoryville Sportsmen’s Club. We reverse.

We quote with approval from the appellant’s recitation of the facts in its brief; to-wit:

The initial Complaint in Equity, [b]y Mr. and Mrs. Soja vs. the Factoryville Sportsmen’s Club was filed on July 5, 1984. Testimony was taken by the Wyoming County Court of Common Pleas, sitting in Equity, on September 4, 1984, pursuant to the Sojas’ request for a Preliminary Injunction. The Sojas maintained that the Club’s operation of trap shooting ranges in Overfield [T]ownship, Wyoming County, was a nuisance and, that the Sojas, being property owners adjacent to the firing ranges, were entitled to injunctive relief and damages. On August 15, 1985, the Wyoming County Court of Common Pleas, Roy A. Gardner, President Judge, filed an Adjudication and Decree Nisi, finding that the Club’s activity was lawful and not a public nuisance but that there was a private nuisance or nuisance in fact, requiring relief. After post-trial motions by both parties were denied, the Factoryville Sportsmen’s Club appealed to the Superior Court. The appeal resulted in a reversal of the Trial Court’s Order on procedural grounds, in that the Order of the Trial Court constituted a permanent injunction, when the purpose of the only hearing that had been held by the Trial Court, was for the purpose of [a] Preliminary Injunction. Soja v. Factoryville Sprotsmen’s [sic] Club, 361 Pa.Superior Ct. 473, 533 [522] A.2d 1129 (1987). The matter was remanded to the Trial Court for the purpose of [a] full hearing on the question of permanent relief. The Court, sitting in Equity, took additional testimony on the 21st of April, 1987, and the 18th of June, 1987 before closing the record. On November 30, 1987, Wyoming County Court filed an Adjudication and Decree Nisi, granting injunctive relief to the Sojas. The Club filed timely post-trial motions which were argued before the Court of Common Pleas of Wyoming County, sitting in Equity, end [sic ] a [F]inal Decree and Adjudication were filed by the Court on the 25th of May, 1988, concluding that the Club’s activities constituted a nuisance in fact; that the Sojas were not guilty of laches; and that the Sojas had sustained their burden of proof. Pursuant to these findings, the Wyoming County Court granted injunctive relief to the Sojas, limiting the days and hours of shooting, on the Appellant’s shooting ranges, to Tuesdays, Thursdays and either Saturday or Sunday, during the months of April through November of each year, commencing not earlier than 10:00 a.m. and continuing not later than 8:00 p.m. or sunset. In addition, on Tuesday during the shooting season, trap shooting may continue until 10:00 p.m. The final decree also permitted shooting for weapons sighting purposes on Saturday during the winter months, no earlier than 10:00 a.m. and not later than 8:00 p.m. or sunset, whichever occurs first. The Order also included other restrictions with respect to the club’s activities.
Eight (8) days after the Final Decree was filed, the Legislature of Pennsylvania, on June 2,1988, enacted Act No. 74 of 1988, P.L. 452[,] 35 P.S. §§ 4501, 4502, which provides immunity for owners of shooting ranges in the Commonwealth of Pennsylvania, from civil action, criminal prosecution, actions for nuisance and injunctions, on the basis of noise or noise pollution. Upon learning of the enactment of this statute, the Club promptly filed an application for reconsideration of the Wyoming County Common Pleas Order on June 16, 1988, citing the provisions of the Act of June 2, 1988. Notice of Appeal to the Pennsylvania Superior Court was filed June 23, 1988. The Wyoming County Court, by Orders dated June 27, 1988, denied the application for reconsideration and also denied a request for the granting of supersedeas or stay pending the appeal to the Superior Court.
The matter was argued before a panel of the Pennsylvania Superior Court, consisting of Ju[dg]es Cirillo, Beck and Kelly, on December 9,1988, in Philadelphia. On June 29, 1989, by Memorandum Opinion and Order, the Superi- or Court Panel affirmed the Adjudication and Order of the Wyoming County Court of Common Pleas. The Factoryville Sportsmen’s Club filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. By Order dated April 18, 1990, the Pennsylvania Supreme Court, [P]er Curiam, granted the Petition for Allowance of Appeal. The Supreme Court on January 14, 1991, issued the following Judgment:
ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this Court that this case be remanded to the Court of Common Pleas of [the] 44th Judicial District, Wyoming County Branch, to consider impact of Act of June 2, 1988, P.L. 452, No. 74, 35 P.S. § 4501, Jurisdiction relinquished.
Soja v. Factoryville Sprotmen’s [sic] Club, 526 Pa. 185, 584 A.2d 953 (1991).
On September 14, 1991, after the parties submitted briefs, the Court of Common Pleas issued its Order finding that Act 74 has no impact upon the original decree dated May 25, 1988____ Appellant[,] within the time provided[,] filed its notice of appeal____

The sole issue which the appellant has proffered for our consideration appears in its “Statement of Questions Involved” and reads:

WHETHER A STATUTE, ENACTED SUBSEQUENT TO THE ENTERING OF AN INJUNCTION BUT PRIOR TO THE EXPIRATION OF THE APPEAL PERIOD, MUST BE APPLIED TO THE CONTINUING EQUITY PROCEEDING AND MANDATES MODIFICATION OR DISSOLUTION OF THE INJUNCTION?

We disagree with the lower court’s disposition, and we do so by a route which uses as its guidepost the case of Ladner v. Siegel, 298 Pa. 487, 148 A. 699 (1930).

In Ladner, an injunction was granted to prevent the use of a building for garage purposes by a group of individuals (for brevity identified as Siegel) and by adjoining landowners (referred to as Ladner).

Despite the issuance of an injunction, Siegel used the building for parking and, as a result thereof, was adjudged to be in contempt. On appeal, the order was sustained, but Siegel was granted leave to seek modification of the injunction before the court below. An order to that effect was issued and the Ladner group perfected an appeal challenging the modification of the initial injunction. The request for modification was granted.

The court of equity’s modification of the injunction was affirmed on appeal. In the course of doing so, our Supreme Court set forth some time-honored precepts which need to be satisfied as a condition precedent to allowing an injunction to be altered.

First, the Court acknowledged that an injunction, despite the equitable nature of the proceedings resulting in its issuance, was subject to modification or removal. To do so, however, the Court deemed the following to be a sine qua non to its implementation; to-wit:

The modification of a decree in a preventive injunction is inherent in the court which granted it, and may be made, (a) if, in its discretion judicially exercised, it believes the ends of justice would be served by a modification, and (b) where the law, common or statutory, has changed, been modified or extended, and (c) where there is a change in the controlling facts on which the injunction rested.

298 Pa. at 497, 148 A. 699 (Emphasis added). At first blush, it may appear that the use of the conjunction “and” in Ladner requires that all three factors must coalesce as a condition precedent to a modification/recission of an injunction. In actuality, however, the case law holds otherwise. Id.

For example, in 46 South 52nd Street Corp. v. Manlin, 404 Pa. 159, 172 A.2d 154, 155 (1961), the same Court observed:

There is no question that a court of equity which has entered a decree for an injunction may open, vacate or modify the same where the situation and circumstances of the parties or the law are shown to have so changed as to make it just and equitable to do so. [Emphasis added]

Even more insightful into the disjunctive nature of the Ladner criteria is Tamagno v. Waiters and Waitresses Union, 373 Pa. 457, 96 A.2d 145, 146 (1953), wherein the Supreme Court explicitly deleted reference to Ladner’s “ends of justice” and “change in the law” criteria in deciding whether to dissolve an injunction; to-wit:

There is, of course, no question but that a court of equity has the power to modify or vacate an injunctive decree previously granted by it if the circumstances and situation of the parties have so changed as to make it just and equitable to do so and if the court feels that the protection given to the complainant is no longer necessary. Ladner v. Siegel (No. 4), 298 Pa. 487, 495, 496, 148 A. 699, 701, 68 A.L.R. 1172. It was stated in that case in 298 Pa. at page 497, 148 A. at page 702, that “The modification of a decree in a preventive injunction is inherent in the court which granted it, and may be made * * * if, in its discretion judicially exercised, it believes the ends of justice would be served by a modification, * * *.” And, further, 298 Pa. at page 495,148 A. at page 701, that while an injunctive decree “is an adjudication of the facts and the law applicable thereto, it is none the less executory and continuing as to the purpose or object to be attained; * * *. It operates until vacated, modified, or dissolved.” And again, 298 Pa. at page 500, 148 A. at page 703, that “A decree preventing [an injury to a property right] does not give to the complaining party a perpetual or vested right either in the remedy, the law governing the order, or the effect of it. He is not entitled to the same measure of protection at all times and under all circumstances. A decree protecting a property right is given subject to the rules governing modification, suspension, or dissolution of an injunction. The decree is an ambulatory one, and marches along with time affected by the nature of the proceeding.”

373 Pa. at 460-61, 96 A.2d at 146-47. Accord Three Rivers Aluminum Co. v. Brodmerkle, 119 Pa.Cmwlth. 409, 547 A.2d 814, 816 (1988) (Court may modify an injunction if: a) ends of justice served; b) the law has changed; or c) the controlling facts have changed); Records Center, Inc. v. Comprehensive Management, Inc., 363 Pa.Super. 79, 525 A.2d 433, 436 (1987) (An injunction may be dissolved only upon a showing of changed circumstances; no mention is made that a “change in the law” must be extant as well); Dravosburg Housing Ass’n v. Dravosburg Borough, 71 Pa.Cmwlth. 144, 454 A.2d 1158, 1161 (1983) (Preventive injunction may be modified where there is a change in the controlling facts); Borough of Trappe v. Longaker, 59 Pa.Cmwlth. 572, 430 A.2d 713, 715-16 (1981) (An injunction may be vacated where the circumstances of the parties or the law changes).

From the preceding it is evident that it has been well-established for some time now that:

... a change in the law after the rendition of a decree was grounds for modification or dissolution of that decree insofar as it might affect future conduct. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 431-432, 15 L.Ed. 435 [ (1855) ]. This principle is rooted in the practice of courts of equity and is well settled in the vast majority of the States. See 7 Moore, Federal Practice (2d ed.1955) ...; Ladner v. Siegel, 298 Pa. 487, 148 A. 699, 68 A.L.R. 1172.

Polites v. United States, 364 U.S. 426, 438, 81 S.Ct. 202, 209, 5 L.Ed.2d 173 (1960) (Dissenting Opinion by Justice Brennan, with whom the Chief Justice, Justice Black & Justice Douglas joined); United States v. Swift & Co., 282 U.S. 468, 469, 51 S.Ct. 202, 202, 75 L.Ed. 464 (1931).

To reiterate, the Ladner Court found that the first criterion need not be delved into because it drew its strength from the lower court’s interpretation of its own decree. As for the remaining criteria, the Court found that an injunction does not establish a vested right in an order or decree creating it:

A decree protecting a property right is given subject to the rules governing modification, suspension or dissolution of an injunction. The decree is an ambulatory one and marches along with time affected by the nature of the proceeding.

298 Pa. at 500, 148 A. 699. In essence, the Court held that where the right to an injunction has been modified according to settled authority, e.g., where the act enjoined is no longer prohibited, “it is quite plain the decree [injunction] of the court cannot be enforced.” This second element was satisfied in Ladner as well as the case at bar.

Accordingly, consistent with established case law, we find that the appellant has proven, with the passage of Act 74 of 1988 (which validates gun ranges and proscribes injunctions against the same) is a “change in the law” under Ladner to justify a recission of the lower court’s injunction. To the extent that the lower court has ruled to the contrary, its order is reversed and the injunction entered against the appellant is rescinded.

Order reversed; injunction rescinded; jurisdiction is relinquished.

      . Neither party argues that the vintage nature of the case undermines its continued vitality and applicability to the modification/recission of an injunction. See Mohn v. Hahnemann Medical College and Hasp., 357 Pa.Super. 173, 515 A.2d 920, 922 (1986).

      . Act 74 provides, as is herein relevant:
      § 4502. Nuisances and injunction
      The owners of the ranges shall not be subject to any action for nuisance____
      The Act of June 2, 1988, P.L. 452, No. 74, § 2, immediately effective, 35 P.S. § 4502 (Supp.1991).


author: CAVANAUGH, Judge.

text:
    610 A.2d 495
    Dennis RUZICKI, Appellant, v. CATHOLIC CEMETERIES ASSOCIATION OF the DIOCESE OF PITTSBURGH.
    Superior Court of Pennsylvania.
    Argued April 9, 1992.
    Filed July 16, 1992.

      Monica M. Lovre, Pittsburgh, for appellant.
    Charles R. Volk, Pittsburgh, for appellee.
    Before CAVANAUGH, HUDOCK and MONTGOMERY, JJ.
   CAVANAUGH, Judge.

This case arises out of appellant Dennis Ruzicki’s termination by the appellee, Catholic Cemeteries Association of the Diocese of Pittsburgh. Appellant claims that provisions in an employee handbook modified his status as an at-will employee, despite a disclaimer in the handbook which stated that the handbook was not intended to give rise to any contractual obligations or to establish an exception to the employment at-will doctrine. Appellant wishes us to find that an implied contract was violated when the appellee terminated his employment and did not follow the handbook’s progressive discipline provisions. We find that summary judgement was appropriately granted, and affirm.

Appellant was employed by the appellee from 1977 until 1990, in various capacities including laborer, assistant manager, purchaser and clerk. In March, 1990, the appellee terminated his employ, allegedly because the appellant did not have the interpersonal skills to successfully interact with the persons he supervised. Subsequently, the appellant filed suit asserting breach of contract/wrongful termination, equitable estoppel, and emotional distress.

Both sides agree -that the appellee issued an employee handbook to certain of its non-union employees, although they dispute whether managers like the appellant were among those who received a handbook. The handbook stated that the appellee believed in “the principle of progressive discipline,” and that certain enumerated offenses would normally subject the employee to discipline “in the from of written waming(s), 3 day suspension, 2 week suspension and discharge____” The handbook contained a separate list of offenses for which an employee could be fired without resort to the progressive discipline system. The handbook also declares in a section entitled “Purpose” as follows:

This handbook is designed to be used as an informational guide to certain employment policies of the Catholic Cemeteries Association. It is not intended to give rise to any contractual obligations or to establish an exception to the employment-at-will doctrine.

Although the appellant was informed that his job performance was considered unsatisfactory and his job was “on the line,” the progressive discipline provisions (which required written warnings) were not followed when he was terminated.

Following discovery, the appellee moved for summary judgment alleging, inter alia, that no employment contract, express or implied, existed and that the appellant was an at-will employee under Pennsylvania law subject to dismissal for any reason. The lower court agreed and granted the appellee’s motion, declaring that the appellant’s reliance on the handbook was misplaced given the clear language of the above disclaimer.

On appeal, the appellant raises two issues: (1) did the lower court err in granting summary judgment where it was a question for the jury whether appellant’s status as terminable at-will was procedurally modified by appellee given the totality of the circumstances and (2) whether the lower court erred in not finding that the appellee should be equitably estopped from terminating the appellant without following the procedural requirements of the employee handbook.

Our standard of review for orders granting summary judgment is as follows:

Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law____ It is basic that summary judgment may be entered only in a case that is clear and free from doubt.

Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 44-5, 489 A.2d 828, 831 (1985), quoted in Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 94, 545 A.2d 334, 336 (1988) (citations omitted). We address the appellant’s arguments in the order presented.

The appellant’s first argument is that it is a jury question whether appellant’s status as a terminable at-will employee was procedurally modified by the appellee given the totality of the circumstances. The tenor of appellant’s argument is that the progressive discipline provisions in appellee’s handbook (1) applied to the appellant and (2) was part of a legally enforceable implied contract.

We find no merit to appellant’s argument. Pennsylvania adheres to the employment at-will presumption, which holds that absent a contract to the contrary, an employee may be discharged for any or no reason. Scott, supra, 376 Pa.Superior Ct. at 94-5, 545 A.2d at 336; Darlington v. General Electric, 350 Pa.Super. 183, 188, 504 A.2d 306, 309 (1986). We have recently held:

The sine qua non of the presumption is that except in rare instances, discharges will not be reviewed in the judicial forum. The presumption may be overcome by express contract, implied in-fact contract (the parties did not intend it to be at-will), and additional consideration passing from the employee to the employer (that is, if the employee bestows a legally sufficient detriment for the benefit of the employer beyond the services for which he was hired, a court may infer that the parties intend to overcome the at-will presumption). An employer has no right to discharge even an at-will employee if the firing would contravene a clear public policy or if it is effected with specific intent to harm the employee ... Several recent decisions have noted that any further erosion of the at-will presumption in Pennsylvania should be effected by the legislature, not the courts.

Scott, supra, 376 Pa.Superior Ct. at 95, 545 A.2d at 336 (citations omitted). The appellant does not assert that he is covered by an express contract, that additional consideration passed from the appellant to the appellee, that public policy is violated by his termination, or that his employer specifically intended to harm him by dismissing him. He only asserts that the employee handbook creates an implied contract.

“A handbook is enforceable against an employer if a reasonable person in the employee’s position would interpret its provisions as evidencing the employer’s intent to supplant the at-will rule.” Scott, supra, 376 Pa.Superior Ct. at 97, 545 A.2d at 337; accord Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 222, 511 A.2d 830, 841-2 (1986). The handbook, moreover, must contain a clear indication that the employer intended to overcome the at-will presumption. Scott, supra, 376 Pa.Superior Ct. at 97, 545 A.2d at 338; Martin, supra, 354 Pa.Superior Ct. at 222, 511 A.2d at 841-842. We have held that it is for the court to interpret the handbook to discern whether it contains evidence of the employer’s intention to be legally bound. Scott, supra, 376 Pa.Superior Ct. at 97, 545 A.2d at 337.

As noted supra, the handbook contains a section entitled “Purpose” which disclaims any intention on the appellee’s part of the handbook modifying the at-will employment relationship. Given the explicit disclaimer stating that the handbook does not effect an employee’s at-will status, even assuming that the handbook applies to the appellant, appellant faces an insurmountable burden in arguing that the handbook converts him from an at-will employee to one who can only be fired through the use of progressive discipline as articulated in the handbook. After reviewing appellant’s arguments as to why the disclaimer should be discounted, we remain unconvinced that the handbook may be said to have modified the at-will relationship between the appellee and his employees.

The appellant attempts to dismiss the existence of the disclaimer in the booklet by arguing that prior handbooks did not contain them, and the existence of the disclaimer was not mentioned to the employees at the manager’s meeting when the new handbooks were distributed. Thus, appellant feels we should reduce the significance of the disclaimer to the fine print in the contract of adhesion. He also argues that the existence of the disclaimer merely proves his point: the existence of a disclaimer would not be necessary if the handbook was not confusing enough to be considered an implied contract.

We find the appellant's attempt to downplay the disclaimer unpersuasive. The appellant cannot rely on the handbook as a source of his alleged rights, and yet select only those provisions which militate in favor of an implied contract. Our inquiry is to determine if the handbook would provide the employee with a reasonable belief that his employer intended to overcome the at-will presumption. We believe that the disclaimer indicates it is does not, and we refuse to let the appellant have his cake and eat it too by relying on one section of the handbook to establish his claim while ignoring another section which calls his claim severely into question.

We also reject as particularly unpersuasive appellant’s argument that the presence of the disclaimer actually indicates that the handbook was confusing. This argument sounds in desperation, because rather than prove his point, the disclaimer quite obviously is an unassailable indication that there can be no mistake on the employee’s part as to the aspirational nature of the handbook.

The appellant’s second and final argument is that the appellee should be equitably estopped from terminating him without following the procedural requirements in the employee handbook. The drift of appellant’s argument is that the employee handbook gave the appellant a reasonable expectation that he would only be terminated pursuant to its provisions.

We find this argument totally without merit. Our supreme court in Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346 (1990), rejected the notion that the strictures of the employment at-will doctrine could be evaded by couching the claim as falling under the doctrine of equitable estoppel. Id., 524 Pa. at 95, 569 A.2d at 348. The Court declared the following:

The doctrine of equitable estoppel is not an exception to the employment at-will doctrine. An employee may be discharged with or without cause, and our law does not prohibit firing an employee for relying on an employer’s promise. In the absence of a legally cognizable cause of action, the trial court erred in submitting the issue to the jury.

Id., 524 Pa. at 95, 569 A.2d at 348-9. The import of the Court’s reasoning was that allowing an employee to claim equitable estoppel where the law declares that no implied contract exists would simply undercut the rule that an action for wrongful discharge does not exist in an at-will employment relationship. Id. Thus, we find that the Court’s ruling and reasoning disposes of appellant’s second argument.

As we have found that both of appellant’s arguments are without merit, we affirm.

Judgment affirmed.

      . Appellant’s brief violates Pa.R.A.P. 2119, 42 Pa.C.S.A., by articulating a different question in its Statement of Questions Involved than it addresses in its Argument. In the Statement of Questions Involved, the appellant's second issue is as follows: did the lower court improperly grant summary judgement where federal and state law is unsettled in situations dealing with particular provisions of employment handbooks and the factual circumstances necessary for the handbook to modify an employee’s at-will employment status. However, in the Argument, the appellant asks us to consider whether the lower court erred in failing to equitably estop the appellee from terminating the appellant given the protection afforded by the employee handbook. These issues are as different as day and night, and we consider the former issue waived as appellant has made no effort to argue his position in his appellate brief. See, e.g., Harvilla v. Delcamp, 521 Pa. 21, 24 n. 1, 555 A.2d. 763, 764 n. 1 (1989). We will, however, address the estoppel issue as appellant’s brief has sufficiently raised and argued this issue.

      . Although the appellant contends that the “totality of the circumstances” indicate that he has an implied contract with the appellee, he proffers no additional alleged representation by the appellee of such a relationship other than the employee handbook.

      . The appellee asserts that the appellant, as a manager, was not covered by the employee handbook, which only covered non-union employees not employed as managers.


author: CIRILLO, Judge.

text:
    610 A.2d 499
    SAMUEL J. MARRANCA GENERAL CONTRACTING CO., INC. and Samuel J. Marranca v. AMERIMAR CHERRY HILL ASSOCIATES LIMITED PARTNERSHIP, Amerimar Realty Company, Amerimar Associates, C. Ronald Bleznak, David G. Marshall, Kenneth P. Balin, Linso Cherniahivsky & Associates, Ollie Cherniahivsky, United States Fire Insurance Company and Rollins Burdick & Hunter. Appeal of AMERIMAR CHERRY HILL ASSOCIATES LIMITED PARTNERSHIP, Amerimar Realty Co., Amerimar Associates, C. Ronald Bleznak, David G. Marshall and Kenneth P. Balin.
    Superior Court of Pennsylvania.
    Argued May 29, 1992.
    Filed July 20, 1992.

      Douglas B. Lang, Philadelphia, for appellants.
    Wilbur H. Seitzinger, Jr., Philadelphia, for appellee Marranea.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   CIRILLO, Judge.

This is an appeal from an order of the Court of Common Pleas of Luzerne County denying appellants’ petition to stay judicial proceedings and to compel arbitration. We affirm.

The parties entered into a contract for the construction of the Cherry Hill Residence Inn in Cherry Hill, New Jersey. Appellees Samuel J. Marranea General Contracting Company, Inc. and Samuel J. Marranea (Marranea) initiated the underlying lawsuit by filing a writ of summons against appellants, Amerimar Cherry Hill Associates Ltd., Amerimar Realty Co., Amerimar Associates, C. Ronald Bleznak, David G. Marshall, and Kenneth P. Balin (Amerimar). In its complaint Marranea also asserted claims against Linso, Chemiahivsky & Associates, an architectural firm, Ollie Chemiahivsky, the architect, United States Fire Insurance Company, the insurer, and Rollins, Burdick and Hunter, the insurance broker.

Pursuant to the contract, construction commenced on September 12, 1988. Approximately one year later, Amerimar contemplated termination of Marranea as general contractor; on September 26, 1989, Amerimar sent formal notice of termination to Marranea. On October 17, 1989, Marranea terminated the contract due to Amerimar’s failure to make payment. Without Marranca’s knowledge, Amerimar had allegedly removed Marranca’s name as a named insured from the insurance policy on the project on October 12,1989. On October 15,1989, prior to Marranca’s termination of the construction contract but after Amerimar’s removal of Marranea from the insurance policy, an arson fire destroyed several partially constructed buildings. Marranea had requested but had not received the payment for this work.

On April 26, 1990, Marranea filed a writ of summons against Amerimar, the architect, the insurer and the insurance broker. The complaint was filed on June 25, 1990. Amerimar filed preliminary objections to the complaint alleging, inter alia, improper venue and forum non-conveniens. The preliminary objections were denied. Thereafter, on July 11, 1991, Amerimar filed its answer to Marranca’s complaint. Approximately two weeks later, Amerimar filed a demand for arbitration pursuant to the terms of the construction contract between Marranea and Amerimar. Marranea refused this request, prompting Amerimar to file a motion to compel arbitration and stay judicial proceedings pursuant to 42 Pa.C.S. § 7304(a) and (d). The court denied Amerimar’s motion finding that Amerimar had waived any right it may have had to such relief in this case.

On appeal, Amerimar presents one issue for our consideration: Whether the trial court erred in refusing to stay the proceedings and in refusing to compel arbitration pursuant to 42 Pa.C.S. § 7304 and the express terms of a construction contract entered into by the parties?

In reviewing a decision of a trial court, our scope of review is limited to determining whether the trial judge’s findings are supported by substantial evidence or whether the trial court abused its discretion. Northview Motors, Inc. v. Attorney General, 128 Pa.Cmwlth. 54, 562 A.2d 977, allocatur denied, 525 Pa. 605, 575 A.2d 570 (1989). With this standard in mind, we will review the contract provision at issue and the applicable case law and rules of court. The relevant portions of the contract provide:

Para. 7.9.1. All claims, disputes and other matters in question between the Contractor [Marranea] and the owner [Amerimar] arising out of, or relating to, the Contract Documents or the breach thereof, ... shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.

An addendum was added to paragraph 7.9.1, which provides in relevant part:

Nothing contained herein shall prevent any party from seeking and obtaining legal or equitable relief as may be available at law or in equity.

The trial court determined that Amerimar had waived its right to elect arbitration, stating:

We need not and do not decide whether or not the arbitration clause is applicable and/or enforceable because we believe that under the circumstances Amerimar has waived and/or abandoned any right it may have had to such relief in this case. We emphasize that Amerimar Defendants never opposed this civil action until resort was made to this Court for at least a third time by the Plaintiffs for some form of relief. The record in this case unequivocally establishes a willingness on the part of the Amerimar Defendants to have the Court of Common Pleas adjudicate the issues being raised without resort to arbitration as long as the Court was not the Luzerne County Court of Common Pleas. Clearly, Amerimar was ready to litigate this case in another jurisdiction and, accordingly, we find it difficult to understand and/or appreciate how, after having made and lost the venue and forum non-conveniens arguments, it can now contend that the arbitration provision is mandatory and not elective.

We agree with the trial court’s conclusion that Amerimar waived its right to enforce the arbitration clause.

Waiver is a voluntary and intentional abandonment or relinquishment of a known right. Zitelli v. Dermatology Education & Research Foundation, 409 Pa.Super. 219, 240, 597 A.2d 1173, 1184 (1991). See also 28 AmJur. 2d, Estoppel and Waiver § 30. Waiver may be established by a party’s express declaration or by a party’s undisputed acts or language so inconsistent with a purpose to stand on the contract provisions as to leave no opportunity for a reasonable inference to the contrary. See 17A Am.Jur.2d, Contracts § 656. Here, Amerimar’s conduct amounts to waiver. Amerimar chose not to file a petition to compel arbitration. Amerimar also elected not to assert arbitration as an affirmative defense either in preliminary objections or in new matter. Instead, Amerimar waited until it had received an adverse ruling on pretrial motions before invoking and seeking to enforce the arbitration provision of the contract. Further, Amerimar initiated other proceedings in different jurisdictions regarding matters related to the contract. This conduct is inconsistent with Amerimar’s present contention that the arbitration provision is mandatory and not elective.

The defense of arbitration is an affirmative defense; it must be pleaded in new matter or it is waived. Pennsylvania Rule of Civil Procedure 1030 provides in pertinent part:

All affirmative defenses including but not limited to defenses of ... arbitration and award, ... shall be pleaded in a responsive pleading under the heading “New Matter.” A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleadings.

Pa.R.C.P. 1030. In addition, Rule 1032 provides in relevant part:

A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply, ...

In Teodori v. Penn Hills School District Authority, 413 Pa. 127, 196 A.2d 306 (1964), the Pennsylvania Supreme Court confirmed the requirements of the rules when it held that Rule 1030 provides that the defense of arbitration and award shall be pleaded as new matter in a responsive pleading, and Rule 1032 provides that failure to do so constitutes a waiver of the defense except under certain enumerated circumstances. In the instant case, the pleadings are devoid of any mention of the defense of arbitration and, therefore, we find that it is waived. See Foster v. Philadelphia Manufacturers, 140 Pa.Cmwlth. 186, 592 A.2d 181, (1991).

Amerimar’s actions clearly indicate its preference for judicial proceedings for resolution of disputes arising under the construction contract. In light of Amerimar’s participation in the present action and its initiation of other suits relating to the construction contract in other jurisdictions, Amerimar cannot now contend that the arbitration provision is mandatory and not elective. Moreover, the language of the addendum to paragraph 7.9.1 indicates that the arbitration clause is elective and not mandatory for disputes arising out of the contract.

Amerimar had every opportunity to raise and pursue the issue of arbitration but failed to do so. Amerimar cannot avail itself of the judicial process and then pursue an alternate route when it receives an adverse judgment. To allow litigants to pursue that course and thereby avoid the waiver doctrine and our rules of court is to advocate judicial inefficiency; this we are unwilling to do.

Amerimar also contends that the trial court erred in failing to determine whether the dispute involved is covered by the arbitration clause. This claim is unsubstantiated. The trial court was correct in holding that the applicability and/or enforceability of the arbitration clause is irrelevant since Amerimar had waived any right it may have had to such relief in this case.

Amerimar claims that the unreasonableness of the delay in filing its motion to compel arbitration is an issue for the arbitrators, and not for the court, to decide. This claim, too, is meritless. Timeliness is an issue in arbitration, but only after the court has determined that the arbitration clause is valid and applicable. Hallo v. Flore, 386 Pa.Super. 178, 562 A.2d 856, allocatur denied, 525 Pa. 612, 577 A.2d 544 (1989). It is clearly within the purview of the court to determine the applicability of the arbitration clause as well as any occurrences of waiver. Kwalick v. Bosacco, 329 Pa.Super. 235, 478 A.2d 50 (1984).

Finally, Amerimar argues that the trial court erred in holding that it waived its right to arbitration by its involvement in related litigation. Regarding its suit against United States Fidelity & Guaranty (USF & G) and Marranea in federal court for delay damages, Amerimar asserts that that action relates only to a bond in which there is no arbitration clause, and that the suit is the only means to assert claims based on the bond. We are not persuaded by this argument. Amerimar’s success in the federal suit is contingent upon a determination that Marranea was in default of the underlying construction contract. Moreover, the delay damage claim against USF & G could have been resolved by arbitration. Paragraph 7.9.1 provides, in pertinent part:

... No arbitration shall include, by consolidation, joinder, or in any other manner, parties other than the Owner, the Contractor, and any other persons substantially in volved, in a common question of fact or law, whose presence is required if complete relief is to be accorded in the arbitration. No person other than the Owner or Contractor shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial.

(emphasis added). Since USF & G was a primary party to the federal lawsuit, Amerimar obviously considered USF & G to be “persons substantially involved in a common question of fact or law whose presence is required if complete relief is to be accorded in the arbitration.” In addition, Amerimar’s federal complaint supports the proposition that USF & G had “responsibility” not “insubstantial” since Amerimar is seeking compensatory damages in the amount of one million three hundred thousand dollars ($1,300,00.00) and punitive damages in the amount of one million dollars ($1,000,000.00). Therefore, USF & G should have been part of an arbitration proceeding if the arbitration clause was intended to be “mandatory.”

Amerimar also asserts that the complaint filed in New Jersey against J. Marranea General Contracting Company, USF & G, and Tri-County Security Service for losses sustained as a result of a fire on the construction site was not initiated by Amerimar. Rather, Amerimar argues, the action was commenced by and pursued for the benefit of Amerimar’s insurer, United States Fire Insurance Company (U.S. Fire), as the subrogee of Amerimar. However, in its response to Marranca’s motion for summary judgment, Amerimar asserted that Amerimar itself was the plaintiff in the litigation and that it was seeking recovery from Marranea for non-insurable fire damages from the arson fire. Amerimar, by instituting two separate suits in other jurisdictions, has clearly construed the arbitration provision of the construction contract as “elective” and not “mandatory.”

We conclude that the trial court’s determination of waiver is a correct application of the law. We, therefore, find no abuse of its discretion. Northview Motors, supra. The trial court’s order denying both Amerimar’s petition to stay judicial proceedings and petition to compel arbitration is affirmed.

Order affirmed.

      . Certain defenses and exceptions are not waived even if they are not raised in preliminary objections, and answer, or a reply. None of these exceptions, however, are applicable here. Pa.R.C.P. 1032.


author: MONTGOMERY, Judge.

text:
    610 A.2d 503
    CASTLE PRE-CAST SUPERIOR WALLS OF DELAWARE, INC., Appellant, v. Lynn STRAUSS-HAMMER, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 20, 1992.
    Filed July 17, 1992.

      Dolores J. Varga, Media, for appellant.
    Charles G. Nistico, Media, for appellee.
    Before JOHNSON, HUDOCK and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

The plaintiff-appellant, Castle Pre-Cast Superior Walls of Delaware, Inc., instituted a mechanics’ lien proceeding in the trial court against the defendant-appellee, Lynn Strauss-Hammer. The action was based upon work which had allegedly been performed by the plaintiff on property owned by the defendant, for which no payment had been made. The plaintiff initiated the action by filing a Notice of Filing of Mechanics’ Lien, as well as a verified Statement of Mechanics’ Lien, which included a description of the labor, materials and prices involved in the work allegedly performed. The plaintiff also filed an Affidavit of Service with a copy of a sheriff’s return attached, attesting to the service of the Notice of Filing of Mechanics’ Lien. Also appended to the Affidavit of Service was a copy of the Notice of Filing. The defendant filed Preliminary Objections which, inter alia, challenged the service. documents, maintaining that the Affidavit of Service was fatally defective. The trial court, ruling on that ground alone, determined that the Affidavit of Service was defective, and could not be amended. Accordingly, the trial court sustained the Preliminary Objections and ordered the striking of the plaintiff’s action. The instant appeal followed. After review, we conclude that the trial court erred in sustaining the defendant’s Preliminary Objections and granting the motion to strike. We shall reverse.

The record shows that the Affidavit of Service, which the trial court deemed to be defective, was signed by a deputy sheriff of Delaware County. In the Affidavit he stated that he “... personally served upon Lynn Struass-Hammer (sic), the owner or reputed owner herein, the notice of filing of mechanics’ lien____” Attached to the Affidavit was a Sheriff’s Department service document which indicated that service of the notice and other documents in the case had been made upon the defendant by handing a copy of same to the defendant’s husband, an adult family member with whom she resided, at her residence. The trial judge concluded that because the Affidavit itself purportedly indicated that the documents were served upon the defendant herself, while the attached sheriff’s return indicated the documents were delivered to her husband at their residence, the Affidavit had a fatal defect on its face.

It is well settled that strict compliance with the Mechanics’ Lien Law is necessary in order to effect a valid claim. Brann & Stuart Company v. Consolidated Sun Ray Incorporated, 433 Pa. 574, 253 A.2d 105 (1969), cert. denied, 396 U.S. 840, 90 S.Ct. 102, 24 L.Ed.2d 91 (1970). However, it is also clear that when the sustaining of preliminary objections will result in a denial of claim or a dismissal of suit, preliminary objections in a mechanics’ lien proceeding should be sustained only in cases which are clear and free from doubt. Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 470 A.2d 159 (1983). Further, we have recognized that while the notice and other requirements under the Mechanics’ Lien Law are to be strictly construed, we must also apply the doctrine of substantial compliance to temper such strict construction. See Tesauro v. Baird, 232 Pa.Super. 185, 335 A.2d 792 (1975).

Section 502 of the Mechanics’ Lien Law (Act of August 24, 1963, P.L. 1175, No. 497, Art. V, § 502), which is set forth at 49 P.S. § 1502, details the requirements for the filing and service of a mechanics’ lien claim. It provides that in order to perfect a lien, a claimant must file a timely claim with the prothonotary, and serve written notice of such filing upon the owner within time limits provided. Further, in subsection (c), it declares that service of the notice of the filing of a claim shall be made by an adult in the same manner as a writ of summons in assumpsit. The manner of service of a writ of summons in assumpsit is governed by Pa.R.Civ.P. 402. It provides that service may be accomplished, inter alia, at the residence of the defendant, by handing a copy to an adult member of the family with whom the defendant resides.

That is exactly the manner in which service was accomplished by the plaintiff in the instant case. The sheriff’s return, which was attached to the Affidavit of Service, indicated that service was made by a deputy sheriff by handing copies of the appropriate mechanics’ lien documents to the defendant’s husband, an adult who resided with her, at their common residence.

However, the trial court ruled that the service documents were defective, in that the Affidavit recited that the deputy sheriff accomplished service of the documents when he “personally served [them] upon [defendant].” In support of this ruling, the trial court cited the decision of the Court of Common Pleas of Chester County in Hoffman Lumber Co. v. Geesey, 35 Pa.D. & C.2d 200 (1965). Of course, that trial court decision, from a different county, provided no binding precedent for the Delaware County Court in the instant case. Moreover, in J.H. Hommer Lumber Co., Inc. v. Dively, 401 Pa.Super. 72, 584 A.2d 985 (1990), our court rejected the narrowness of the interpretation of the Mechanics’ Lien Law, which had been rendered by the Chester County Court in the Hoffman Lumber Co. case. The trial court in the instant case should have been guided by our discussion and holding in the J.H. Hommer Lumber Co., Inc. case, because its facts were so analogous to those before us in the instant case. In the J.H. Hommer Lumber Co., Inc. case, the trial court sustained preliminary objections in a mechanics’ lien action and dismissed the claim because of an alleged defect in the record as to service of a notice of the filing of the mechanics’ lien. It held that a sheriff’s return, which indicated service was made, was insufficient to comply with the affidavit requirements of 49 P.S. § 1502. In rejecting the trial court’s ruling, and its reliance upon the reasoning of the trial court in the Hoffman Lumber Co. v. Geesey case, we noted that notice was the overriding concern, and held that a sheriff’s return was adequate proof that the owner received the requisite notice under the Act. Further, our court held that a timely filed return of service by the sheriff, even if unsworn, constituted substantial compliance with the Act. Therefore, the sheriff’s return which was appended to the Affidavit in this case, standing alone, satisfied the requirements to establish service had been properly accomplished, and the trial court’s ruling to the contrary is rejected.

The trial court further erred, in two separate regards, in this case in finding that there was a difference between the averments of service in the sheriff’s Affidavit and the attached return, and in holding that no amendment should be permitted to cure the alleged conflict between the two. A reasonable reading of the Affidavit permits one to conclude that the deputy sheriff averred that he, acting personally, served the defendant in accordance with the service requirements of the Rules of Civil Procedure. The same sentence of the Affidavit which includes the words “personally served upon Lynn Struass-Hammer (sic)”, also notes that such service was evidenced by a copy of the sheriff’s return which was attached thereto and marked as an exhibit to the Affidavit. That return showed service was accomplished by handing the documents to the defendant’s husband, an adult, at their residence. However, even if that reasonable construction of the language of the Affidavit did not occur to the trial court, it is clear that if an affidavit in a mechanics’ lien action is timely filed, it may be amended as necessary to adhere to statutory requirements. Tesauro v. Baird, 282 Pa.Super. 185, 335 A.2d 792 (1975). The trial court’s ruling that no amendment would be permitted in this case was clearly wrong.

We must remand this case for further proceedings in the trial court. While other issues were presented to the trial court by the defendant’s preliminary objections, they were not the subject of any ruling in the trial court’s disposition of this case. Accordingly, it would be inappropriate for our court to address such matters for the first time on this appeal.

The order of the trial court is reversed and this case is remanded for further proceedings. Jurisdiction is not retained.


author: DEL SOLE, Judge:

text:
    610 A.2d 970
    COMMONWEALTH of Pennsylvania v. Matthew H. ROGERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed June 8, 1992.
    Reargument Denied Aug. 18, 1992.

      Robert B. McGuinness, Towanda, for appellant.
    Robert Fleury, Asst. Dist. Atty., Troy, for Com., appellee.
    Before DEL SOLE, HUDOCK and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from an order of the Court of Common Pleas of Bradford County denying and dismissing Appellant’s Motion to Dismiss on Double Jeopardy Grounds. Appellant, Matthew Rogers, was charged with two motor vehicle code violations, Driving Under the Influence of Alcohol (75 Pa.C.S.A. § 3731(a)(1) and (4)), a misdemeanor charge, and Vehicle Turning Left (75 Pa.C.S.A. § 3322), a summary offense. At a Preliminary Hearing before the magistrate it was determined that the Commonwealth did not establish a prima facie case. Therefore, Appellant was discharged. Ten days later, a second complaint was filed, charging him with the same offenses. On this occasion, the magistrate bound the charges over to the Court of Common Pleas. Appellant filed an Omnibus Pretrial Motion which included a Motion to Dismiss the DUI prosecution on grounds of double jeopardy. He argued that the discharge of the first criminal complaint was effectively an acquittal of the included summary offense, and, therefore, the accompanying DUI charge which arose from the same conduct was barred. The trial court denied and dismissed Appellant’s motion, concluding that the discharge from the pendant summary offense did not amount to an acquittal for double jeopardy purposes. Appellant appealed from the order and filed an Application for Stay Pending Appeal, which was denied by both the trial court and this court. Appellant was then placed on Accelerated Rehabilitative Disposition, and the Commonwealth moved to quash this appeal on the grounds that the ARD order rendered the appeal moot. The Commonwealth’s motion was denied. For the following reasons, we affirm the order of the trial court.

Appellant advances several arguments on appeal. First, in answer to the Commonwealth’s Motion to Quash, he claims that his acceptance into an ARD program is not the equivalent of an acquittal. We agree. Initially, we note that the ARD order was entered while this appeal was pending. It is well established that “once a party takes an appeal to an appellate court the trial court is divested of jurisdiction over the subject matter until further order of the appellate court reinstating jurisdiction.” Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1990), citing Bartle v. Bartle, 304 Pa.Super. 348, 450 A.2d 715 (1982). Therefore, because the trial court in the instant case was without jurisdiction to enter the ARD order, such order is a nullity and the Commonwealth’s Motion to Quash was properly denied. Even if the ARD order was valid, however, the possibility of prosecution on the charges would still exist if Appellant did not successfully complete the program, and he would continue to have a stake in the outcome of this appeal; therefore, it would not be moot. Also, we note that Appellant would continue to have a liberty interest at stake, regardless of whether he successfully completed the ARD program. While Appellant could still be prosecuted if he failed to successfully complete the ARD program, even upon successful completion, the DUI charge would still be considered a first conviction for the purpose of computing sentencing for subsequent violations. 75 Pa.C.S.A. § 3731(e)(2). Therefore, this appeal is properly before this court.

This case presents a situation where a summary offense and a misdemeanor arising from the same set of facts, are charged in a single criminal complaint. This criminal complaint is dismissed at a preliminary hearing by a magistrate, because the Commonwealth failed to present a prima facie case. Appellant would have us hold that when such charges arise from the same episode, since magistrates have jurisdiction to adjudicate summary offenses, the dismissal of a criminal complaint that includes a summary offense and a “Court Case” implicates double jeopardy.

Initially, we note that the purpose of a preliminary hearing in a court case is not to decide guilt or innocence; but rather to determine whether the Commonwealth has presented a prima facie case which is legally sufficient to hold the accused for court. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589, 592 (1991); Pa.R.Crim.P. 143. Thus, the standard of proof for the Commonwealth is merely to establish a prima facie case (i.e., that a crime has been committed and that the accused is probably the one who committed it), and there is no requirement that the Commonwealth establish the accused’s guilt beyond a reasonable doubt at this stage. Id., 528 Pa. at 157-58, 595 A.2d at 591. Furthermore, jeopardy ordinarily does not attach until after a prima facie case has been established by the prosecution at the preliminary hearing, Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), and a finding by a magistrate that a prima facie case has not been established is not a final determination, such as an acquittal, and the accused is subject to rearrest on the same charges. Commonwealth v. Weitkamp, 255 Pa.Super. 305, 341, 386 A.2d 1014, 1031, 1033 (1978).

In a hearing on a summary offense, however, the function of the magistrate and the determination which takes place differs from a preliminary hearing. In a summary case:

If the defendant pleads guilty, the issuing authority shall impose sentence. If the defendant pleads not guilty, the issuing authority shall try the case in the same manner as the trials in criminal cases are conducted in the court of common pleas ...

Pa.R.Crim.P. 83(b).

When considering a Court Case, the role of the magistrate is to determine if a prima facie case exists. A magistrate can only hold a defendant for court or discharge the defendant. See Pa. Rule of Criminal Procedure 143. The discharge of a Court Case at a preliminary hearing is not a determination of guilt or innocence on the included summary offenses. Therefore, the appellant’s double jeopardy claim must fail since he had not been acquitted of the summary offense by the actions of the magistrate at the first preliminary hearing.

We deny the Commonwealth’s Motion to quash this appeal and affirm the decision of the trial court denying Appellant’s Motion to Dismiss on Double Jeopardy Grounds.

      . Court Case is defined in Pa.R.Crim.P. 3(g).

      . Because of our disposition of this issue, we need not analyze whether the summary offense charged includes the type of criminal conduct that would implicate double jeopardy.


author: BECK, Judge.

text:
    610 A.2d 973
    Daniel J. PYSH and Janice L. Pysh, His Wife, Individually and on Behalf of all Others Similarly Situated, Appellants, v. SECURITY PACIFIC HOUSING SERVICE, a Delaware Corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1991.
    Filed May 29, 1992.

      Michael P. Malakoff, Pittsburgh, for appellants.
    Mark D. Shepard, Pittsburgh, for appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   BECK, Judge.

This case presents a single issue — whether a financing company’s use of the “Rule of 78s” method of calculating the unearned finance charge to be rebated to the owner of a mobile home upon prepayment of his/her installment sales contract for the mobile home violates the Motor Vehicle Sales Finance Act. The trial court found that such a method of calculation does not violate the Act. Finding no error in the trial court’s analysis, we affirm.

The issue arises in the context of an action commenced by appellants, Daniel J. and Janice L. Pysh, against appellee Security Pacific Housing Service, purportedly on behalf of the Pyshs and all purchasers of mobile homes who are or were liable under installment sales contracts with Security Pacific pursuant to which the Rule of 78s could be used to calculate the amount of unearned finance charge to be rebated to the owner of the mobile home upon prepayment of the contract.

The Pyshs’ complaint set forth two causes of action. In the first, they alleged a violation of the Motor Vehicle Sales Finance Act, tit. 69, §§ 601 et seq. (Purdon 1965 & Supp. 1991) (the “MVSFA”). In the second, they alleged a violation of the Unfair Trade Practices and Consumer Protection Law, tit. 73, § 201-1 et seq. (Purdon Supp.1991). However, both counts were based solely on the allegation that Section 623(G)(5) of the MVSFA prohibits Security Pacific’s use of the Rule of 78s to calculate the amount of unearned finance charge to be refunded to the buyer of a mobile home who pays off his or her installment sale contract prior to the end of the term thereof. Section 623(G)(5) provides:

5. Mobile home installment contracts contracted for on or after the effective date of this amendatory act may be prepaid without any penalty or other charge for such prepayment at any time before the end of the period of the loan.

Specifically, the Pyshs alleged that they had entered into a contract with Pre-Owned Mobile Home Sales to purchase and finance a 1985 Skyline mobile home. They executed an installment sale contract which provided, inter alia, as follows:

PREPAYMENT: You may prepay the Total of Payments without prepayment penalty or premium. If you repay in full, whether in cash, upon sale of the Vehicle because of your default, by refinancing or for any other reason, you will receive a refund of unearned finance charge. The amount of finance charge we earn is determined by using the accounting method called the “Rule of 78’s.” However, you will not receive a refund if it is less than $1.00 or results in our earning a minimum finance charge of less than $10.00.

The contract designated Concord-Liberty Savings and Loan Association as the assignee, which received a security interest in the Pyshs’ mobile home. The Pyshs were later notified that their contract had been assigned to Security Pacific and that Security Pacific was therefore the new lienholder on their mobile home.

The Pyshs further alleged that they twice wished to prepay their mobile home installment contract and, therefore, requested payoff statements, first from Concord-Liberty and then from Security Pacific. In each instance, the payoff statement reflected a calculation of unearned finance charge pursuant to the Rule of 78s and, therefore, reflected a payoff amount of approximately $3,000 more than if the unearned interest had been calculated by the actuarial method. The Pyshs contend that this use of the Rule of 78s constitutes imposition of a prepayment penalty or charge in violation of Section 623(G)(5) of the MVSFA, that the contract wrongfully represents that the use of the Rule of 78s is permissible under Pennsylvania law, and that the appropriate method for calculating unearned finance charges on mobile homes is the actuarial method. Thus, their complaint claimed entitlement to both injunctive and monetary relief.

Security Pacific filed preliminary objections in the nature of a demurrer. Therein, Security Pacific alleged that use of the Rule of 78s was not violative of the MVSFA because both the language of Section 622 of the Act and the Pennsylvania Department of Banking regulations issued pursuant thereto specifically permitted the use of the Rule of 78s in calculating unearned finance charge rebates on mobile homes. Following argument, the trial court granted Security Pacific’s preliminary objections and dismissed the Pyshs’ complaint. This timely appeal followed.

On review of an order sustaining preliminary objections in the nature of a demurrer and dismissing a complaint, our review is plenary. We must determine if the trial court correctly determined that, taking as true all properly pleaded material facts and disregarding all pleaded conclusions of law, under no circumstances will the law permit recovery on the complaint. Pawlowski v. Smorto, 403 Pa.Super. 71, 588 A.2d 36 (1990); Doe v. Dyer-Goode, 389 Pa.Super. 151, 566 A.2d 889 (1989), app. denied, 527 Pa. 587, 588 A.2d 509 (1990).

At the outset, we must delineate those areas which are not in dispute in this appeal. First, as our standard of review indicates, we must accept as true all well-pleaded facts in appellants’ complaint. Thus, we must accept, and Security Pacific does not argue to the contrary, that use of the Rule of 78s to calculate unearned finance charges does in fact result in a higher payoff obligation for a mobile home owner who wishes to prepay his installment sale contract than the actuarial method. This disparity occurs because use of the Rule of 78s in computing finance charge results in a greater accrual of the finance charge in the early months or years of the loan period. When a buyer attempts to prepay his or her loan, the financing company must compute how much is still owed on the loan, including all principal and finance charge, and then must rebate to the buyer, or apply as a credit to the amount owed, the amount of the finance charge not yet accrued as of the time of prepayment. Since the Rule of 78s accrues more of the finance charge early in the loan, or “up front,” the amount of finance charge earned by the company early in the loan is higher. Therefore the amount to be rebated or credited to the buyer on prepayment will be lower. In contrast, under the actuarial method the finance charge accrues over the life of the loan more evenly, and the amount to be rebated or credited to the buyer on prepayment will be higher. See generally Lanier v. Associates Finance, Inc., 114 Ill.2d 1,101 Ill.Dec. 852, 499 N.E.2d 440 (1986) (explaining operation of Rule of 78s).

In this matter the parties agree that Section 623(G)(5), quoted above, prohibits imposition of a prepayment penalty or charge on prepayment of a mobile home installment sale contract. They also agree that Section 622 of the MVSFA authorizes the calculation of unearned finance charge rebates under motor vehicle installment sale contracts by use of the Rule of 78s. Section 622 states:

Refund for prepayment of contract
A. The buyer, notwithstanding the provisions of any installment sale contract, shall have the privilege of prepaying at any time all or any part of the unpaid time balance under an installment sale contract.
B. Whenever all of the time balance is liquidated prior to maturity by prepayment, refinancing or termination by surrender or repossession and re-sale of the motor vehicle, the holder of the installment sale contract shall rebate to the buyer immediately the unearned portion of the finance charge. Rebate may be made in cash or credited to the amount due on the obligation of the buyer.
C. The unearned finance charge to be rebated to the buyer shall represent at least as great a proportion of the total finance charge as the sum of the periodical time balances after the date of prepayment bears to the sum of all the periodical time balances under the schedule of payments in the original agreement:
Provided, however, The holder shall not be required to rebate any portion of such unearned finance charge which results in a net minimum finance charge on the contract less than ten dollars ($10.00); And provided further, the holder shall not be required to rebate any unearned finance charge when the amount due, computed as herein set forth, is less than one dollar ($1.00).

The parties agree that the computational method set forth in subsection C, supra, permits the use of the Rule of 78s in calculating the amount of the unearned finance charge to be rebated on prepayment. See In re Jones, 79 B.R. 233 (E.D.1987).

Against this backdrop, it is clear that the only question presented on appeal is how Sections 622 and 623(G)(5), when read together, are properly to be construed. In other words, this case presents a pure question of statutory construction.

Appellants argue that use of the Rule of 78s results in a lower rebate of unearned finance charge than does the actuarial method, and that some courts have therefore viewed the Rule of 78s as effectively imposing a charge or penalty upon buyers who seeks to prepay their loans. See, e.g., In re Jungkurth, 74 B.R. 323 (E.D.Pa.1987). Appellants thereby conclude that use of the Rule of 78s violates the MVSFA because section 623(G)(5) thereof prohibits a penalty or charge upon prepayment of a mobile home installment sale contract.

However, the question presented for our resolution is not simply whether the Rule of 78s might be seen as imposing a penalty or charge upon prepayment when looked at in vacuo. Rather, the question for us is whether the Rule of 78s should be viewed as imposing an impermissible charge upon prepayment in light of the language of Section 622. Our research has disclosed no Pennsylvania case addressing the interplay and proper construction of Sections 622 and 623(G)(5) of the MVSFA.

Therefore, we engage in a de novo review of the statutory language and employ well-accepted general principles of statutory construction to construe the meaning of the MVFSA.

The two sections in question, section 622, permitting the use of the Rule of 78s, and 623(G)(5), prohibiting prepayment penalties, were enacted at different times. Section 622 was enacted as part of the original Act in 1949, whereas section 623(G)(5) was not enacted until 1978 as part of an amendment to the MVSFA. The two sections also have differing scopes of applicability. Section 623(G)(5) by its own terms is applicable only to mobile homes. Thus, while prepayment penalties or charges are not permitted as to mobile homes, there is no corresponding prohibition applicable to the prepayment of installment sale contracts on other motor vehicles within the coverage of the Act.

Section 622, on the other hand, does not contain any language limiting its applicability. It broadly addresses the rights of all “buyers” of “motor vehicles” pursuant to “installment sale contracts”, as those terms are defined in section 603 of the Act. Thus, on its face, section 622 would appear to apply equally to mobile homes as to any other motor vehicle within the coverage of the Act.

Although at points in appellants’ brief to this court there appears to be a suggestion that mobile homes are exempt from the coverage of section 622, we see no legislative intent to exclude mobile homes from section 622. The 1978 amendment that added section 623(G)(5) to the Act also added a definition of “mobile home.” That definition, which states that “mobile homes” are “those vehicles defined as such in section 102 of Title 75 ...,” clearly establishes mobile homes as simply one class of motor vehicles to which the Act applies. Although certain sections of the Act apply only to mobile homes (i.e. section 623(G)(5)), there is no suggestion anywhere in the Act that the general provisions relating to all motor vehicles are somehow inapplicable to mobile homes. Thus, based on the express language of the Act, section 622 applies equally to mobile homes.

The gravamen of appellants’ argument is that when the legislature enacted section 623(G)(5), it evidenced an intent to prohibit all charges or penalties on prepayment of a contract on a mobile home. Since appellants characterize the use of the Rule of 78s as a “charge,” then section 623(G)(5) should be read as prohibiting its use. Moreover, by appellants’ logic, since section 623(G)(5) specifically applies to mobile homes and prepayment charges on mobile home contracts, appellants argue that section must be construed to predominate over section 622’s provisions regarding the calculation of unearned finance charges generally. Thus, appellants conclude, section 623(G)(5) should be viewed as effectively amending or carving out an exception to section 622 for mobile homes.

We disagree. If we were to accept appellants’ argument, we would necessarily have to find a basic inconsistency between the two sections of the Act. We would have to determine that whereas section 622 permits the use of the Rule of 78s, nevertheless section 623(G)(5) forbids its use for one class of motor vehicles, i.e. mobile homes. However, we see no inconsistency between these sections and find that they are easily reconciled.

Section 622 deals specifically with the permissible manner in which a finance company can calculate unearned finance charges to be rebated to a motor vehicle owner upon prepayment. Thus, it concerns how a finance company can determine how much owners of the vehicles still owe on their installment sale contracts at the time of prepayment. In contrast, section 623(G)(5) deals specifically with whether additional charges or penalties may be imposed upon prepayment of mobile homes. As the trial court concluded, one .section is about unearned finance charges and the other is about the separate subject of charges and penalties imposed for the privilege of prepayment. The two sections can be construed consistently by reading section 622 as permitting the use of the Rule of 78s to calculate the rebate of unearned finance charge and reading section 623(G)(5) as prohibiting the imposition of any separate penalty or charge simply for the privilege of prepaying.

In adopting this construction, we follow the clear mandate of the Statutory Construction Act, which provides:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

1 Pa.Cons.Stat.Ann. § 1933 (Purdon's Supp.1991).

Although appellants focus our attention on the latter portion of this section and contend that the special provision regarding prepayment penalty found in section 623(G)(5) must prevail over the general provision found in section 622, we focus first on the beginning of the section which directs that we give effect to both sections if possible. As we have demonstrated above, we may easily construe these two sections so that logical effect may be given to both simply by delineating the two different subjects they address.

Moreover, as appellees point out, we must take cognizance of the fact that section 623(G)(5) was added to the MVSFA in an amendment thereto in 1978. The Statutory Construction Act also provides guidance in construing amendatory statutes, as follows:

Whenever a section or part of a statute is amended, the amendment shall be construed as merging into the original statute, become a part thereof, and replace the part amended and the remainder of the original statute and the amendment shall be read together and viewed as one statute passed at one time; but the portions of the statute which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.

Id. at § 1953.

Pursuant to this directive, we must construe the MVSFA in its present form as one integrated statute, incorporating the amendments passed in 1978 into the original statute. See Snyder v. Commonwealth, Dept. of Transportation, 64 Pa.Commw. 599, 441 A.2d 494 (1982). In addition, we must not construe the amendment to have altered any portions of the statute that the amendatory act did not address. Thus, although the addition of section 623(G)(5) clearly added a prohibition on prepayment penalties or charges as to mobile homes, it cannot be construed to have sub silentio also amended section 622 insofar as it addresses the permissible method of calculating unearned finance charge. Nothing in 623(G)(5) expressly or impliedly makes reference to this specific subject. If the legislature wished to address this subject, and carve out an exception to the provision addressing it found in section 622, it could have done so by amending section 622 in the 1978 amendatory act.

Our analysis of this issue is further supported by reference to an interpretive regulation issued by the Department of Banking, which is charged with administration and enforcement of the MVSFA, shortly after enactment of the 1978 amendments to the MVSFA. In this regulation, the Department of Banking reconciled section 622 and the new section 623(G)(5) as follows:

(a) Installment sales contracts executed on or after July 1, 1978 [the effective date of section 623(G)(5)] may be prepaid in full without a penalty or other charge at any time before the end of the period of the loan, and the buyer will be entitled to a refund of the unearned finance charge under Section 22 of the act (69 P.S. § 622).

10 Pa.Code § 55.3 (1986).

Although an interpretive regulation issued by an administrative agency is in no way controlling, nevertheless such regulations are accorded substantial weight and are to be disregarded only where they are clearly inconsistent with the statute being construed. Chappell v. Pennsylvania Public Utilities Comm., 57 Pa.Commw. 17, 425 A.2d 873 (1981). Such regulations are accorded particular weight when they are issued by administrative agencies charged with administering complex areas, such as banking and finance, as to which the agency has particular expertise. See Skolnick v. Ford Motor Credit Co., 319 Pa.Super. 83, 465 A.2d 1064 (1983), app. dismissed, 505 Pa. 608, 482 A.2d 1275 (1984) (court defers to Department of Banking interpretive regulation in determining whether finance charge under MVSFA can be calculated by “add-on” method); Beneficial Consumer Discount Co. v. Whitesell, 45 Pa. Commw. 156, 404 A.2d 794 (1979).

Instantly, we find that the above-quoted Department of Banking regulation appropriately views sections 622 and 623(G)(5) as addressing separate subjects and as presenting no irreconcilable conflict. Thus, although no prepayment penalty or charge may be imposed upon prepayment of a mobile home contract, the finance company may calculate the amount of unearned finance charge to be rebated in accordance with section 622, i.e. by means of the Rule of 78s.

We are cognizant of the fact that use of the Rule of 78s to calculate unearned finance charge does result in a lower rebate to the consumer than would use of the actuarial method and that this aspect of the Rule of 78s had led some courts to view it as an unfair calculation method. Under traditional analysis we must conclude that the legislature intended this result. If the legislature should determine it does not wish the Rule of 78s to be applicable to mobile home owners, then the legislature can take appropriate action. In the meantime we are bound by the existing legislation as interpreted by established principles of statutory construction.

Order affirmed.

      . In contrast, other courts have refused to characterize the Rule of 78s as imposing a penalty or charge and have permitted its use as a method of calculating unearned finance charges. See, e.g., Lanier v. Associates Finance, Inc., 114 Ill.2d 1, 101 Ill.Dec. 852, 499 N.E.2d 440 (1986).

      . In Livingston v. Vanguard Federal Savings Bank, 386 Pa.Super. 496, 563 A.2d 175 (1989), a panel of this court reviewed a trial court order dismissing a complaint that raised a similar challenge to the use of the Rule of 78s. However, the court reversed the trial court on other grounds and declined to address whether use of the Rule of 78s results in payment of a prepayment penalty. Id., 386 Pa.Superior Ct. at 499, 563 A.2d at 177 n. 3.